Column: Donald Trump actually has gotten a very fair shake from his ‘Mexican’ judge
Seeking to tamp down the uproar over his bigoted attack on the federal judge hearing two lawsuits against Trump University in California, Donald Trump on Tuesday issued a statement purporting to lay out his substantive complaints about the judge’s rulings.
Referring to U.S. District Judge Gonzalo Curiel, an Indiana-born jurist of Mexican descent, Trump stated: “I do not feel that one’s heritage makes them incapable of being impartial, but, based on the rulings that I have received in the Trump University civil case, I feel justified in questioning whether I am receiving a fair trial.”
He refers to “unfair and mistaken rulings in this case,” ascribing them at least in part to “the Judge’s reported associations with certain professional organizations,” as a result of which “questions were raised regarding the Obama appointed Judge’s impartiality.” (Raised by Trump, that is.) The two components of this charge, therefore, are that (1) Judge Curiel’s rulings have been “unfair and mistaken,” and (2) they’re the result of Curiel’s ethnic resentment of Trump’s hostility to Mexican immigrants.
“I do not feel that one’s heritage makes them incapable of being impartial, but ... I feel justified in questioning whether I am receiving a fair trial.
The statement also offers several defenses of Trump University, a series of real estate investment seminars that the plaintiffs, along with New York Atty. Gen. Eric Schneiderman, allege were worthless frauds. Helaine Olen of Slate has an excellent rundown of the “bluster, semitruths, and outright smoke” of these defenses.
But let’s examine the core issue underlying Trump’s attack on Curiel: Has the judge made “unfair and mistaken” rulings that disadvantaged Trump and Trump University? (“I have had ruling after ruling after ruling that’s been bad rulings, OK?” Trump told CNN’s Jake Tapper last week.)
Several experienced trial lawyers have taken a look at the record, and their conclusion is: No. Not only has Curiel adhered closely to the applicable law in every particular, but many of his rulings have been highly advantageous to Trump and the, er, “university.”
Nor has Curiel refrained from criticizing the plaintiffs’ lawyers on occasion. In a February 2014 order in the class-action lawsuit brought by former Trump University student Tarla Makaeff and others, Curiel disdained them for having “woven a quilt made up of causes of action from all fifty states” in an effort to sweep in the broadest possible class of victims ostensibly harmed in 14 categories of shoddy business practices. He slapped them down, narrowing the causes of action to only five categories and limiting them to only California, Florida and New York.
As Philadelphia plaintiffs lawyer Max Kennerly observed, the ruling fulfilled “one of the key goals of a defendant” in a class-action — narrowing the class certification. It could only be considered a huge victory for Trump.
Kennerly, along with Ken White, a Los Angeles lawyer who blogs at Popehat.com, has taken an especially deep dive into the record of both cases. Kevin Drum, a non-lawyer, also offers a typically cogent look at the cases, citing White and Kennerly.
Kennerly reported that Trump also notched a win last September on class-certification issues, although the judge did give plaintiffs a victory on the issue of how much the former Trump University enrollees should recover if they won their case. The question turned on whether the courses they took were completely worthless or had some residual value, even if they’d been misled into thinking that Trump himself was intimately involved in developing the curriculum and hand-picking instructors. In passing, Curiel observed that although a trial court might eventually find that the Trump University programs “possessed value,” restitution should turn on the fact that the customers probably wouldn’t have bought the programs at all if they knew in advance that Trump’s role was marginal, if even that. If they win, he ruled, they should get all their money back. “The fraud in the selling, not the value of the thing sold, is what entitles consumers in this case to full refunds,” he ruled.
But as Kennerly explained, this ruling wasn’t out of left field. It was “a straightforward application of precedent” set down by the U.S. 9th Circuit Court of Appeals, which applies in Curiel’s courtroom.
Trump has tried to make much of the withdrawal of Makaeff as a plaintiff in one of the class-action lawsuits. “Once the plaintiffs’ lawyers realized how disastrous a witness she was,” Trump said in his statement Tuesday, “they asked to have her removed from the case. Over my lawyers’ objections, the judge granted the plaintiffs’ motion, but allowed the case to continue.”
That’s not what happened. Trump may be feeling his pique because Makaeff figuratively bloodied his nose before departing from the case: She beat him when he sued her for defamation, winning recovery of nearly $800,000 in legal fees and court costs. On the other hand, she had sought more than $1.3 million. In February, Makaeff asked to withdraw because she had been “put through the wringer” by Trump, whose counter-suit left her fearing bankruptcy. She was experiencing health problems and could not “match, or even scratch, Trump’s pulpit,” she said in her motion, adding that “for years, Trump has tried his case in the press through a website and taunting media quotes.”
Curiel let her go, but specifically ruled that Trump wouldn’t be disadvantaged by her departure because other plaintiffs remained on board.
Trump has made much of Curiel’s refusal to dismiss the lawsuits on summary judgment. White and Kennerly have made short work of this argument, as did Curiel in the Makaeff case.
White explained that summary judgment isn’t about whether one side’s evidence is stronger than the other — it’s about whether one side has no evidence at all, in which case judgment should be entered for the other. “Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements,” White wrote. He placed it “well within the range of normal federal judicial decisions on summary judgment.”
Curiel hasn’t ruled yet on Trump’s motion for summary judgment on the second case. A hearing on that motion is scheduled until July 18.
Put it all together and Trump’s complaints are the routine grousing of a litigant who has lost a few and won a few, and wants to whine only about the rulings he’s lost. His bootstrapping of a bigoted ethnic attack on the judge is what matters, and even his Republican colleagues are running from that in horror.
“Judge Curiel is doing his job like a normal judge, issuing rulings consistent with the case law,” Kennerly concluded. “But you already knew that.”