I recently blogged about how US institutions are moving to protect the Constitution in the event of a Trump Presidency.
Now comes evidence that the Federal Courts, at least, are moving to make it less likely that one who has contempt for the constitutional balance becomes President.
Yesterday, candidate Trump showed contempt for the judiciary, as well as contempt for diversity, by insulting the Judge who he called the “Mexican Judge,” hearing the so-called “Trump University” Federal Court case.
Trump delivered a lengthy monologue about the years-old case involving students who claim they were defrauded by Trump’s real estate “university.” He delved so deeply into details of the case — at one point, he talked about the origin of the name of the law firm representing him — that he seemed to lose the attention of his crowd.
Trump leveled a series of blows against Curiel. He called him “a hater of Donald Trump” and “very hostile” person who had “railroaded” him. He then taunted the judge, who has scheduled a trial for late November, after the election.
“I’ll be seeing you in November, either as president…” Trump said, trailing off. “I think Judge Curiel should be ashamed of himself. I think it’s a disgrace that he’s doing this.” Trump brought up Curiel’s ethnicity: “The judge, who happens to be, we believe, Mexican…I think the Mexicans are going to end up loving Donald Trump.”
Now, today, we hear that the Judge has ordered (link to order) documents in the case released in response to a request from the Washington Post.
As the Post put it.
In his order, Curiel noted that Trump had emerged as a leading presidential candidate over the course of the civil case against Trump University and that Trump had “placed the integrity of these court proceedings at issue.” The judge pointed to a previous case to say that courts deciding on public disclosure must weigh “whether a party benefitting from the order of confidentiality is a public entity or official; and . . . whether the case involves issues important to the public.”
The rally in San Diego appears to have started at 2 PM pacific, and I can not tell from the Order itself whether it was released before or after the rally, although there was a hearing on May 27 itself, as stated in the Order. (Indeed, Politico reports that hearing and rally took place around the same time, but comes to no conclusion as to whether the Judge knew of the new insults. It reports on more detail on the prior insults, “including an NBC story which noted Trump called Curiel “extremely unfair” and an Associated Press story titled, “Trump: Judge’s ethnicity matters in Trump University suit.””
However, given Trumps prior behavior, the interrelationship between Trump’s attitude and the new order is plain on its face, regardless of the timeline. (The Order cites to the Washington Post Motion in support of the proposition that Trump, “placed the integrity of these court proceedings at issue.”
Note how very careful this is. This is NOT, REPEAT NOT, a judge retaliating against a public figure litigant who insults him. No, it is a court moving to protect the integrity of the judicial process and the constitutional balance by making clear that one who shows contempt for those principles thereby places the integrity of the proceedings at issue, thus making public interest in the disclosure of documents much greater, and indeed necessary of the protection of those principles.
I would suggest that this will not be the last we hear of this concept, or indeed of perhaps many other ways and legal theories that will help institutions move to protect our constitutional values, with possible risk to one campaign.
By the way, I would hope that any recussal motion woldbe laughed out of court, given that if anyone could obtain recusal by insulting the judge, a litigant such as Trump could always choose his or her judge.