ONE LAWYER’S DILEMMA

Paul Manafort is campaign chairman and chief strategist for Donald Trump. He also has a law degree from Georgetown. That combination has landed him in a tough spot.

The J.D. from Georgetown means Manafort can’t plead ignorance about the significance of Trump’s escalating attack on the rule of law. As The New York Times reported recently, reliably conservative legal scholars express deep concern over Trump’s failure to acknowledge the limits of presidential power. Uniformly, every high-level Republican has repudiated Trump’s criticisms of Judge Gonzalo Curiel, the Indiana-born federal judge presiding over the cases against Trump University:

Senator Mitch McConnell: “I couldn’t disagree more with what he had to say.”

Representative Paul Ryan: “I completely disagree with the reasoning behind that.”

Former majority leader Newt Gingrich, who has made no secret of his vice-presidential ambitions on a Trump ticket: “This is one of the worst mistakes Trump has made. I think it’s inexcusable,”

And that backlash came before June 5, when Trump added all Muslims to his growing list of “possibly” biased judges who can’t give him a fair shake in a courtroom because their ethnicity collides with his most vile public policy pronouncements.

Manafort Knows Better, Even If His Client Doesn’t

Trump is no stranger to litigation. According to USA Today, his personal and business interests have been involved in more than 3,500 state and federal legal actions — 70 of them filed after announcing his presidential bid. Playing a game that’s worse than identity politics, he’s now engaged in a full frontal assault on the integrity of the judiciary for obvious personal gain in a private lawsuit. At best, it’s unseemly. At worst, it’s could be an unlawful attempt “to influence, intimidate or impede” a judge “in the discharge of his duty” (18 U.S.C. Section 1803) and/or “obstruct the administration of justice” (18 U.S.C. Section 401).

At Georgetown, Paul Manafort learned the legal rules governing every litigant’s right to challenge a judge’s fairness. Prevailing on a motion to recuse requires a factual showing, not a racist rant. The law is well settled that ethnicity or national origin is not a valid basis for disqualification. In fact, a recusal motion on those grounds would be on the receiving end of sanctions for frivolous pleading. It’s no accident that Trump’s outside lawyers — led by the widely respected Daniel Petrocelli at O’Melveny & Myers — haven’t pursued that path.

Enter Manafort

When Trump hired Manafort in April, Senator Ted Cruz was collecting more than his share of delegates from states where Trump had won the popular vote. Trump complained that the system was “rigged,” “corrupt” and “crooked.” Manafort’s assignment was to corral Trump delegates and keep them in line to avoid a contested convention.

In 1976, Manafort was involved in a similar task. Only two years out of law school, he was was President Gerald Ford successful “delegate-hunt coordinator” for eight states during Ronald Reagan’s attempt to wrest the nomination. After Ford lost the general election, Manafort spent three years working for a private law firm in Washington, D.C.

When Reagan prevailed in 1980, the president nominated him to the board of directors of the Overseas Private Investment Corporation — the government’s development finance institution. At that point, what would become Manafort’s lucrative career began. Since 1981, he’s been a lobbyist and consultant, sometimes for notorious international clients.

Master of Extreme Makeovers

In 2005, Manafort became an adviser to Viktor Yanukovych, whose political career seemed over after losing the Ukranian election for prime minister. With the help of Manafort, Yanukovych won in 2010 by exploiting popular frustration with government, exacerbating cultural divisions within the Ukranian electorate, and railing against NATO.

Sound familiar? History may not repeat itself, but sometimes it rhymes. Cue the Trump assignment.

His Latest Client Makeover

On April 21, 2016, newly appointed Manafort assured members of the Republican National Committee that Trump’s rhetorical antics were just an act for the crowd.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting…”

A month later, Manafort had accomplished his delegate mission and received a new title: campaign chairman and chief strategist. Since then, Trump’s attacks on the rule of law have intensified. It now appears that, in contrast to Manafort’s April 21 prediction, the only thing that Trump has “played” is Manafort as he dutifully lined up establishment Republicans who fell in line.

As uncomfortable as Trump’s statements have made those establishment Republicans, none has stepped forward to defend their candidate’s recent outbursts. None has repudiated his or her endorsement, either. Even as they decry Trump’s comments as deplorable, they implicitly suggest that his problem is speaking vile thoughts, not that he has them.

What Could Be Worse?

The same supporters rationalize their continuing support of Trump by assuring themselves that Hillary Clinton as president would be worse. They can’t possibly know that. Senator Bob Corker said that Trump — who turns 70 this month — “is going to have to change.” But change to what? Has anyone ever tried to change a 70-year-old billionaire’s fundamental beliefs, character, or behavior? Besides, Trump has made it clear that he has no desire to change. His approach has worked.

Corker’s position is a triumph of hope over reality. As for Trump’s positions, beyond divisive and destructive rants and branding tag lines –“We’ll make America great again” and “We’ll build a wall” — no one can state with confidence what they will be in five minutes, much less what they would become if he won the presidency.

Which takes us back to Paul Manafort, who assured RNC members in April that Trump was evolving. He went on to say, “Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Either Manafort shares responsibility for encouraging Trump’s subsequent evolution, or he has an uncontrollable client. If it’s the former, he has put his candidate and his country on a treacherous course; he knows that from his legal training at Georgetown. If it’s the latter, his Trump-tarnished reputation will continue to deteriorate as he remains the campaign’s top strategist. Either way, he’s already lost. And so has the country.

TRUMP AND THE RULE OF LAW

“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.

Limited Options

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.”