“I have a judge who is a hater of Donald Trump,” the presumptive Republican presidential nominee shouted at a political rally in San Diego on May 27. “He’s a hater. His name is Gonzalo Curiel.”
On cue, the crowd booed.
“He is not doing the right thing,” Trump continued. “And I figure, what the hell? Why not talk about it for two minutes.”
There were several reasons for him not to talk about it, including 18 U.S.C. Sections 401 and 1503 of the criminal code, but we’ll come to those shortly. He then rambled on about the judge for eleven more minutes.
“We’re in front of a very hostile judge. The judge was appointed by Barack Obama. Frankly, he should recuse himself because he’s given us ruling after ruling after ruling, negative, negative, negative.”
That’s Trump. If you don’t agree with him, you’re wrong. Greatly, hugely, bigly.
“What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine.”
Trump knew that the crowd was ripe for his characteristic mixed-message ethnic pitch (“Mexican – which is great”). It had been chanting one of his campaign slogans, “Build that wall.” The audience had no idea that Judge Curiel is a Hoosier – born and raised in a state that Trump “loved” when it delivered the final blow to the stop-Trump movement.
Judge Curiel received his bachelor’s and JD degrees from Indiana University. After graduation, he spent a decade at two small Indiana law firms before moving to California where he was a career prosecutor for seventeen years. In 2002, Republican governor Arnold Schwarzenegger appointed him to the San Diego Superior Court. After President Obama named him to the federal bench, the Senate confirmed him by a voice vote in 2012.
“I think Judge Curiel should be ashamed of himself,” Trump persisted. “I’m telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace. OK?”
As assistant U.S. Attorney, Judge Curiel prosecuted drug traffickers along the Tijuana corridor. In 2002, ABC’s Nightline reported that a cartel targeted him for assassination after his attempts to extradite two cartel members from Mexico. His track record demonstrates that he can take the heat. That’s not the point.
Rules That Apply to Everyone Else
The point is that he shouldn’t have to. After Trump blew his dog whistle of anger and intolerance in the city where the judge lives and works, severe legal consequences should follow. His remarks weren’t those of a typical politician criticizing judges who don’t share his ideology. It was a verbal assault by a candidate for President of the United States directed toward the federal judge presiding over a pending case in which he has a personal financial stake.
Federal law prohibits “any threatening letter or communication” in an attempt to “influence, intimidate, or impede” any court officer “in the discharge of his duty….” Likewise, anyone using “any threatening letter or communication influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice” commits a felony punishable by imprisonment for up to ten years.
Trump is counting on the weakness of others to let him skate. That’s why this wasn’t his first offense and it won’t be his last. In February, he complained to Chris Wallace’s Fox News, “I think the judge has been extremely hostile to me. I think it has to do with the fact that I’m very, very strong on the border, and he happens to be extremely hostile to me. We have a very hostile judge. He is Hispanic, and he is very hostile to me.”
Four days after his outburst in San Diego, he did it again on May 31.
For those who respect the rule of law, Trump has crossed an ominous line. But he feeds on the willingness of others to allow his most outrageous misconduct to go unchallenged. Federal prosecutors could open a criminal investigation into his rant. Trump assumes that no one – other than Trump – would have the guts to do that.
He could have filed a motion to recuse the judge, but that would require following rules whereby his grievances could be aired and evaluated according to established legal standards. Why didn’t he have the guts to do that?
Testing the Limits
Trump’s lawyers might argue that the First Amendment protects his rant. But at a time of heightened concern about threats to federal judges, Trump’s actions present a unique situation worth testing the limits of that defense here. He’s not just a private litigant complaining about unfair treatment. He’s a presidential candidate using a political rally to lambast the judge presiding over his personal case. And he did it in the judge’s hometown.
Another penalty route is simpler, but it would put Judge Curiel in an impossible predicament. Professor Charles G. Geyh at Indiana University’s Maurer School of Law suggests that Trump’s conduct “could subject him to sanction for indirect criminal contempt of court.” In such cases, a court can summarily impose a prison sentence of up to six months without a jury trial.
Appellate courts have upheld such sanctions for conduct less egregious than Trump’s, such as vulgar words from a convicted defendant during a sentencing hearing. The difficulty is that if Judge Curiel issues a criminal contempt order, Trump would play the retribution card. The villain would again make himself the victim, if not a martyr. And it would probably allow him to dominate yet another news cycle.
Judge Curiel has to remain on the high road. Ethical rules prevent him from responding to Trump’s improper outburst. But they don’t bar other attorneys and judges from speaking up. And they should – in a loud, uniform, bipartisan, and unambiguous way. Democracy and the rule of law are more fragile than Judge’s Curiel’s previously demonstrated courage under fire. Those who believe otherwise should spend a little time walking through the ruins of once-great civilizations. In their time, Athens and Rome ruled the world. Today? Not so much.
“But we’ll come back in November,” Trump warned as he wrapped up his tirade. “Wouldn’t that be wild if I’m President and I come back to do a civil case. Where everybody likes it. OK. This is called life, folks.”
Wild is one word for it. In a recent article for New York Magazine, conservative commentator Andrew Sullivan observes: “In terms of our liberal democracy and constitutional order, Trump is an extinction-level event. It’s long past time we started treating him as such.”
Perhaps a Trump branding technique would help: “Dangerous Donnie.”