The media has focused with laser-like intensity on one specific aspect of Trump’s rhetoric about the Trump University case – the fact that Trump has said the judge cannot render an objective decision because he is “a Mexican.” Every time the media questions Trump or one of his surrogates about the case, they ignore everything else Trump and his surrogates say, and try (in vain) to get the subject of the interview to admit Trump is a racist (which never happens).
Meanwhile, if you watch what Trump is doing carefully, and assume that he has some rational plan here and isn’t just spouting off at the mouth (never a safe assumption), you can see that what Trump is doing is using his racist remarks about Curiel to allow him to filibuster a bunch of other untruths about the Trump University lawsuit without challenge.
Watch his interview this weekend with Jake Tapper, for instance. For the span of about five minutes, Trump is allowed to spew bovine fecal material virtually without challenge while Tapper is focusing exclusively on the racism angle:
Now, I get why Tapper and the rest of the media is doing this: it’s not often you have a major party’s nominee for President espousing openly racist rhetoric during the course of an interview with you, and if you can nail him down on it, that’s a major story. Furthermore, Trump has shown an amazing propensity throughout this campaign to distract reporters with side shows as a means of avoiding a tough question, and I am sure Tapper (and John Dickerson on Sunday) felt like they were really doing what journalists should have been doing all along – pick one question, stick to it, make Trump answer.
However, in this case, Trump may be using the racism angle as a distraction, and the other stuff he is saying about Trump University might be the real point he is trying to lodge in the voters’ minds. After all, last week the story was on the incredibly damaging documents that were released as part of the Washington Post’s public interest request. Now, the stories of Trump University swindling vulnerable people have gone completely by the wayside while everyone obsesses over whether Trump’s comments were racist or not.
Well, they were racist, but I think Trump is gambling that everyone has more or less made up their minds on that score, and that rubbing it in a little more won’t hurt him that badly. What he really wants people to believe, as they come away from all this, is that this lawsuit is a sham and they shouldn’t take any of the revelations contained in it seriously.
Insofar as this was planned, he is accomplishing it brilliantly. Right now, every time Trump or his surrogates get on television, they are able to tell the following six lies with total impunity because no one is even bothering to challenge them on it.
1. The withdrawal of the named plaintiff from the class action suit against him means that the judge was legally required to dismiss the case. One of the things that’s been curiously absent in all the furor over whether Gonzalo Curiel is biased against Donald Trump or not is any evidence of any ruling that exhibits bias against Donald Trump, as opposed to adherence to the law. I mean, if Trump and his team are going to assert that the judge’s impartiality is hopelessly impaired by Trump’s plan to build a wall, surely they should be able to come up with some specific ruling the judge made that flagrantly violated the law. Right?
Wrong. Trump has made three repeated assertions about what the judge has done that are supposedly obviously wrong, and each is a flat out lie or a gross misstatement of the law. The first of these, and the most oft-repeated one, is that the judge erred by refusing to dismiss the case when the lead named plaintiff chose to withdraw from the case (more on that in a bit; Trump has also been lying through his teeth about her).
This is flat-out untrue. When the named plaintiff (or plaintiffs) in a class action suit withdraws (or settles), the judge essentially has to make a determination of whether the particular named plaintiff(s) whose case has been withdrawn/settled is so central to the case as a whole that the case should be dismissed, or whether the particular named plaintiff(s) were just basically interchangeable with all the other plaintiffs, such that a substitute named plaintiff should be permitted. The basic determination boils down to whether the named plaintiff(s) were the only ones in the case who had some special harm done to them, and everyone else was just a hanger on (in which case the case should be dismissed), or whether the named plaintiff(s) were just one (or several) of a large number of plaintiffs, all of whom were equally harmed by the alleged conduct.
Judge Curiel determined, and I see no reason that his determination was wrong, that the initial named plaintiff was really just one of the thousands of people who were all bilked by Trump University to a more or less equal degree. Given that everyone more or less paid the same price, and was subject to the exact same marketing scheme, it is really hard to see how any other conclusion could possibly be reached. Definitely Trump has offered no reason why his determination in this case was so erroneous that it indicates some racial or partisan animosity against Trump, just the (flatly erroneous) claim that the case must be dismissed because the lead plaintiff withdrew.
Note: Trump’s own lawyers did not raise the contention that the case had to be per se dismissed because of the lead plaintiff’s withdrawal; their claim was that her withdrawal this late before the trial (8 months) would prejudice the defense at trial. Specifically, they claimed that their entire defense strategy rested on calling her a liar because of the customer satisfaction survey she filled out. Judge Curiel rightly ruled that this contention was ridiculous since, by their own filings and according to discovery, Trump’s lawyers had many of these customer satisfaction surveys with respect to the plaintiffs, and this particular named plaintiff’s wasn’t anything special.
2. The original lead plaintiff withdrew because “she was a disaster” and “she couldn’t win.” This is one of the more galling lies that Trump has repeatedly told throughout his sob story about this case, and he has never once been challenged to his face about it, that I’ve seen. The truth is that Trump’s legal team made this woman – whose name is Tarla Makaeff – go through living hell as part of scorched earth tactics. They countersued her individually and dragged her through separate litigation that was so extensive that at the end of it – which she won – the judge awarded her an astounding $800,000 in legal fees.
She also alleged (and who does not believe her?) that both Trump and his attorneys have repeatedly threatened to ruin her financially for pursuing the suit, regardless of how long it takes. Given that this suit was started five years ago, and that Trump is now running for President, while followed by a bunch of slobbering hate-filled lunatics who harass everyone who dares to disagree with Trump, Makaeff furthermore says (and who does not believe her?) that she does not wish to continue being harassed by Trump, his lawyers, and his fans for the duration of this awful Presidential campaign.
For five years, Makaeff has been the face of the Trump University plaintiffs, and Donald Trump tried to destroy her life for it. He shows every indication of continuing to do so for all eternity. Ordinary people cannot deal with this kind of perpetual pressure in their lives. That is why she withdrew from the case.
3. The Plaintiffs’ surveys prove that the Judge should not have allowed the case to go to trial. Trump has also repeatedly bleated about the fact that many (most) of the plaintiffs submitted surveys at various parts of the program that indicate that the judge should not have allowed this case to go to trial. This ignores a couple of basic facts. First, that all the plaintiffs have likewise submitted affidavits stating that they were initially satisfied with the short seminars, and that Trump University used that satisfaction to fraudulently upsell them to higher level programs, which were a scam and did not offer what was promised.
In other words, the Plaintiffs’ positions are not even arguably contradictory, but even if they were, it isn’t the judge’s decision to make judgments on witness credibility. That’s a jury’s job. To the extent that the plaintiffs have potential credibility problems, it isn’t the judge’s job at the pretrial stage to make that call. All he is even supposed to do is determine whether the Plaintiff’s accusations, if true, are legally actionable such that a trial should be permitted.
The fact that Judge Curiel did not dismiss the whole suit based on the Plaintiffs’ survey is not evidence that Judge Curiel is biased against Trump whatsoever. It is evidence that he is doing his job professionally and conscientiously.
4. The fact that various states like Texas and Florida declined to pursue a case against Trump University proves there was nothing wrong with Trump University. It is true that Texas, and Florida, and other states did receive complaints about Trump University, and ultimately decided not to pursue legal action against Trump or the University. However, all the Attorneys General who have commented on the case indicated that their refusal to take action was not an indication of their belief that the Plaintiffs’ complaints had no merit.
Two prominent Attorneys General who are both current Trump supporters have indicated as much. Florida AG Pam Bondi has stated that her office chose not to pursue a case against Trump because of the ongoing New York litigation. Greg Abbott, likewise, brags that his investigation “Forced Trump U out of the state… and protected Texas consumers.” There is no indication that any state’s attorney general considered complaints against Trump University and decided they were not meritorious.
5. Gonzalo Curiel is a member of “La Raza.” This is another whopper that is going largely unchallenged. Gonzalo Curiel is a member of a Hispanic lawyer’s association that bears a name that is superficially similar to the radical left wing organization National Council of La Raza. Conservatives commonly shorten this name to “La Raza” (which is also just the term many Hispanics use to refer to themselves). That is not the organization to which Gonzalo Curiel belongs, and they are not affiliated.
This particular lie has taken perhaps the firmest root of all among conservatives, many of whom have heard Trump or his surrogates make this point unchallenged, and who therefore believe that the Judge must be as racist as Trump (the leftwing group National Council of La Raza is filled to the eyeballs with odious left-wing radicals).
Conservatives who are desperate to cling to this false assertion have pointed out that the group to which Curiel does belong contains a link on their website to National Council of La Raza. Seriously. I know in the ordinary course of business conservatives do not believe in holding every website responsible for the content of every website they ever link to, or of all blogs on their blogroll, but Trump supporters are willingly abandoning common sense and intellectual honesty in the defense of Trump.
If a lawyer belonged to the San Diego Black Lawyers Association and on the Association’s website there was a link to “other resources” and the “other resources” included the NAACP, you would not say that the lawyer in question was a member of the NAACP, especially if the lawyer himself denied it. That’s not how memberships (or websites) work. Get a grip, people.
As a fallback position, some conservatives have discovered the shocking proposition that the Hispanic lawyers association to which Curiel belongs has donated to Democrats. This would surprise me zero per cent and is not at all indicative of bias. The legal profession as a whole – especially in large cities – is probably about 85% registered and committed Democrats. As part of the cost of business of being a lawyer – even a judge – you have to belong to these associations so you can involve yourself in the tedious, soul crushing job of “networking.” So you give your money and you go to these meetings and even if you happen to be one of the 15% or so of lawyers who occasionally donates to Democrats you grit your teeth and know that some portion of your bar association dues will eventually go to Democrats.
I know in the past I have been basically required by my law firm to belong to both the Nashville Bar Association and Tennessee Bar Association. Those associations, without my consent or input, regularly spent and donated to Democrats and left-wing causes. Unless you are an exceptionally committed ideological conservative, and are cavalier about your career advancement, this is part of what you deal with.
Now look, Gonzalo Curiel by all accounts is not a committed ideological conservative of any kind. The fact that he belongs to a Hispanic Lawyers’ Association is thoroughly expected of basically anyone in his position. The fact that they donate to Democrats and left-wing causes is not surprising and probably isn’t something Curiel directs or controls at all. I would bet that he isn’t bothered by it, but there’s no evidence that he’s a committed left-wing crusader at all.
And, most importantly, the Trump campaign has produced no evidence that he has issued a single biased ruling against Trump at all.
6. Trump and his lawyers want Curiel recused from the case. This is something Trump has said repeatedly in the media. “I think he ought to recuse himself.” Well, as it turns out, there’s an actual way that you can ask a judge to recuse himself, and that is to file a motion in court for the judge to recuse himself. If Trump and his lawyers had even a colorable case for why this should happen, they would have filed the motion back in March when Curiel allowed the Plaintiffs to substitute the named plaintiff without withdrawing the case (which, again, was totally proper, but this is allegedly what enraged Trump).
They have not done so. That is because they know that filing a motion to recuse a judge because he is Hispanic and Trump is going to build a wall is a good way to get yourself sanctioned, or worse. Trump has some of the ballsiest and most aggressive lawyers on the face of the earth; if even they have not filed a motion for the judge to recuse himself, they must either not want him to recuse himself or they know they have no case, or both.
I suspect that Trump does not give a tinker’s dam whether he wins or loses the case, he just wants a reason to call the loss (if it happens) “unfair” and the product of a biased, liberal judge.
These are not, by any means, the only lies Trump has told about Trump University. He also has lied about the Better Business Bureau rating that the University had, and he has lied about the fact that he promised to give all proceeds to charity, when in fact he pocketed them. But the media has confronted those reasonably well. In the meantime, Trump is lying through his teeth about the legal aspects of this case, and the media is letting him because they are so flabbergasted by his open racism.