Looking Closer at Trump’s Attacks on Judge Curiel

Posted in: Criminal Law

Republican presumptive presidential nominee Donald Trump has grown increasingly vocal with his race-based criticisms of U.S. District Court Judge Gonzalo Curiel, who is presiding over two class action lawsuits relating to Trump University. Trump has been publicly complaining about Judge Curiel since February of this year but he became increasingly obstreperous this week which resulted in more media blowback than normal for Trump. As Trump became blunt so did his racism.

On June 3, 2016, during his Wall Street Journal interview, Trump flat-out claimed Judge Curiel had “an absolute conflict” in presiding over the Trump University litigation because he was “of Mexican heritage” and a member of a Latino lawyers’ association. Trump claimed that Judge Curiel’s background was important because of the Trump campaign’s positions against illegal immigration and his pledge to seal the U.S./Mexican border. “I’m building a wall. It’s an inherent conflict of interest,” Trump told the Journal. Trump further noted Judge Curiel’s former colleague and friend was one of the attorneys representing the plaintiffs against Trump University.

Fact checking shows it is true that Judge Curiel was born in Indiana of parents who had immigrated from Mexico (reportedly before Trump’s grandmother so the judge is more American than Trump). Contrary to Trump’s suggestion, however, the judge is not a member of a radical Latino lawyers’ association. While the judge does have a prior relationship with one of the attorneys in the Trump U case, this often happens with federal judges who find former colleagues from the U.S. Attorney’s Office appearing in their courtrooms, but no one has ever charged that was a conflict of interest. And here that former colleague of the judge told the Journal he had never seen the judge socially. Thus, the heart of Trump’s conflict claim was the judge’s Mexican heritage.

As most observers noted, Trump’s charge is pure racism. This fact, in turn, resulted in a few high-ranking Republicans pulling back from Trump, and criticizing him, at a time he needs to be consolidating the support of his party behind his presidential bid. To stem this blowback, on June 7, 2016, Trump issued a written statement saying his remarks were “misconstrued as a categorical attack against people of Mexican heritage,” when, in fact, he loved Mexicans and has hired thousands of them in his organization.

After self-confirming that he was not a racist, Trump’s statement returns to the litigation before Judge Curiel, whom he never mentions by name while he again attacks him. Trump writes, “The American justice system relies on fair and impartial judges. All judges should be held to that standard. 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.”

Then Trump pivots to address the rest of the world: “I have watched as the media has reported one inaccuracy after another concerning the ongoing litigation involving Trump University,” so the remainder of the statement seeks to set the media and world straight on his defense of the Trump University litigation. In brief, Trump reiterates that during a “five-year period [of Trump U’s operations], more than 10,000 paying students filled out surveys giving the courses high marks and expressing their overwhelming satisfaction with Trump University’s programs.” There is only one way to determine if this defense is valid and that is by looking at the facts of the situation. The pleadings are available behind the PACER paywall, although a few key documents have been publicly posted because of class action status. While it will take a couple days to read everything, I have paused after reading most of the pleadings to report it is far worse than I thought based on news reports.

The pleadings and rulings reveal a potentially far direr situation for Donald Trump than I believe is understood. They also indicate that Trump may be on the attack because he is fighting for his financial and political life in this lawsuit. This litigation was commenced long before anyone, probably including Trump himself, knew that he was going to run for president, not to mention obtain the Republican nomination. The fact that he has not settled is not because as a businessman he does not settle lawsuits out of concern settlement will encourage more lawsuits (he has, according to USA Today, settled not fewer than 175 lawsuits); rather it is doubtful he can financially afford to settle. Damages could reach billions of dollars. For Trump’s fiscal health these lawsuits are as serious as a heart attack combined with Stage IV cancer. As for Trump’s political future, if he is elected president and loses these cases while in office, it would result in his impeachment because all these civil actions are predicated on criminal behavior. Let’s look at each briefly, and then his defenses.

Schneiderman v. Trump

New York Attorney General Eric Schneiderman filed a civil action in August 2013 on behalf of the People of New York against Trump and others involved in Trump University, charging them with operating an unlicensed, illegal educational institution to purportedly “teach students Donald Trump’s real estate strategies and techniques.” More specifically, Trump and others (Respondents) are charged with engaging

… in a widespread marketing campaign for Trump University both in New York and across the country to lure prospective students to a free 90-minute seminar that served as a sales pitch for a three-day seminar costing $1495 — but this three-day seminar was itself an upsell to increasingly costly “Trump Elite” packages starting at around $10,000 and ending with what was supposed to be year-long personal mentorship programs at a cost of $35,000. To induce students to enroll in their paid courses, respondents engaged in numerous deceptive practices. Respondents repeatedly claimed that prospective students would be taught by successful real estate “experts” who were “hand-picked” by Donald Trump. In fact, respondents lacked substantiation for the claims that their instructors and mentors were successful real estate entrepreneurs. Not a single one was “hand-picked” by Donald Trump. Many came to Trump University from jobs having little to do with real estate investments, and some came to Trump University shortly after their real estate investing caused them to go into bankruptcy. Respondents also assured prospective students that they would recoup the cost of the courses in a few months, with “insider” access to special financing and close mentoring by Trump instructors who would coach students through their first real estate deal. Relying on these representations, individuals spent thousands of dollars of their savings and took on thousands of dollars in debt – while Trump University brought in over $40 million in revenue.

This action alleges Trump and company using deceptive and unlawful practices misled over 5,000 people nationwide, including 600 New Yorkers, in violation of New York laws. (The scheme broadly outlined in the New York action occurred throughout the country, drawing in an estimated 80,000 people to the free seminar, from which the 5,000 takers emerged. The Washington Post, which went to court in the cases outlined below to obtain sealed records of these scripted activities, explained how these “sell, sell, sell” seminars operated virtually identically across the country.

Cohen v. Trump

On October 18, 2013, Art Cohen filed an action on his own behalf and those similarly situated based on a single cause of action in violation of the Racketeer Influenced and Corrupt Organizations [“RICO”] Act. Cohen, in alleging fraud and racketeering on behalf of a nationwide class, is relying on the civil remedy for criminal behavior, more specifically showing “a pattern of racketeering activity,” which in this instance alleges activities indictable under provisions of federal law, namely mail and wire fraud. The complaint charges that the scheme to defraud employed by Trump used both U.S. Postal Service and interstate radio and telephone services, which made the frauds federal crimes. (Needless to say, while this RICO action is civil in nature these are serious underlying federal crimes with each punishable by up to $1 million in fines and 30 years in prison.)

Cohen (and similarly situated parties) alleged the following misrepresentations: “that the programs would give access to Donald Trump’s real estate investing secrets; that Donald Trump had a meaningful role in selecting the instructors for Trump University programs; and that Trump University was a University.” In fact, as the discovery evidence shows, none of Trump’s representations were true.

Low v. Trump

This case was originally titled Tarla Makaeff et al v. Trump University and Donald Trump, and it was transferred to Judge Curiel as a related case on October 22, 2013. Trump makes much of the fact the Ms. Makaeff withdrew as the lead plaintiff in the case. For example, most recently, in his June 7 statement he less than accurately notes: “Once the plaintiffs’ lawyers realized how disastrous a witness she was, 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.” The record, however, shows that Trump drove her from the case. He filed a counterclaim against her for defamation based on less than flattering statements she had made about her experience with the Trump Organization. But Trump lost this action which was dismissed on a motion that cost him $800,000. Not everyone thrives on litigation, and Ms. Makaeff, after disposing of Trump’s defamation lawsuit against her, requested the judge remove her as lead plaintiff for the sake of her health, as she did not wish to be attacked further by Trump. The judge agreed and Plaintiff Sonny Low, a 70-year-old, took Ms. Makaeff’s place as lead plaintiff.

This class action addresses persons in California, New York, and Florida who purchased a Trump University three-day live workshop for $1,500 and/or an “Elite” program for $35,000 (dollar numbers rounded) and did not receive a full refund. The causes of action (depending on the residence of the plaintiff) are based, broadly speaking, on unlawful, fraudulent and unfair business practices, and deceptive advertising, in violation of California, New York, and Florida laws; as well as financial elder abuse in violation of California and Florida laws. Some of these statutes call for special fines and treble damages.

The Trump Defense

Trump’s legal defense to these lawsuits has been much like his public defense that something was terribly amiss at Trump University: How could anything be wrong when 98 percent of the students gave the courses favorable reviews. This defense has been raised again and again by Trump in the lawsuits, but no judge is buying it because the defense was part of the scheme to defraud.

Buried in the pleadings I found a 229-page ethics complaint filed by Donald Trump against New York Attorney General Eric Schneiderman with the New York State Joint Commission on Public Ethics in January 2014. It was dismissed without any action, seen for what it was. In talking about the New York case against Trump, Schneiderman was often confronted with Trump’s defense. His answer cuts right to the bottom-line. For example, on “Good Morning America,” Schneiderman responded to Trump’s claim of student satisfaction with the following comment: “If you talk to any of the investors with Madoff before they learned that their money was gone, they thought he was the greatest thing that ever happened to them. The same thing with Mr. Trump.” More recently, Schneiderman compared Trump with an infamous snake oil salesman.

The record shows the approvals and praise for the seminars were all but extorted from the students, who were told by instructors, falsely, they would lose their jobs if they did not get the highest ratings. In short, when this matter comes to trial, Donald Trump’s defense is only going to establish the care with which this fraudulent scheme was prepared. It is nice to see that more and more media outlets are digging into these pleadings and putting the lie to Trump’s bogus characterizing of Trump University. Here is a nice analysis of Trump’s phony defenses by Slate.

What’s Next?

The New York action will not proceed until after the election. Nor will the California-based actions. Notwithstanding Trump’s claim that Judge Curiel is treating him unfairly, at Trump’s request the judge postponed the trial of the two class-action cases before him until after the election. At that time Trump will be either (1) the defeated former Republican candidate for president (in Trump-talk “another loser”); or (2) the president-elect. It is the latter that raises interesting questions to which I will return. In the meantime, I will be contemplating how people just like those who have been defrauded by Trump—for they are the core of his following—could elect as President of the United States a man who has cheated thousands of similar people out of their savings, or given them credit card debt with which they continue to deal. And if you think Trump’s actions at Trump University were isolated conduct, read the reports of USA Today and the Wall Street Journal on his normal business conduct.

  • bogart

    WOW! What a biased, TOTALLY ONE-SIDED piece. This piece is a perfect example of why everyone needs to hear both sides of the story.

    • Michael L. Becker

      Go ahead. Tell us the other side.

      • Magginkat

        @ bogart – – Did you expect Mr. Dean to write in defense of that fraudulent, self-absorbed crook?

        • Michael L. Becker

          Of course not because there is NO defense. And to think that, if elected, he would also be appointing federal judges. Really scary.

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    • g kelly

      As suggested by my earlier post, this article is based on the allegations contained in the legal documents filed by the plaintiffs (the “complaints.”) So of course, they are “one sided.”

      Generally speaking, the defendants file a document which says either “it isn’t true,” or “even if it is true, it doesn’t give rise to any obligation to pay damages.”

  • Victor Grunden

    Trump has a right , however misguided, to challenge anything he feels would prevent him from getting a fair trial. A vast majority of Americans feel they can’t get a fair hearing for a variety of reasons and lacking Trump’s resource never bother going to court. Strategic Lawsuits Against Public Participation(SLAPP), although now illegal in many venues, is a classic example. While the part about Indiana is true, it’s that part of Indiana that is right next to Chicago, IL which is a sanctuary city, has a large Latino and Hispanic population and gang presence with a direct drug pipeline to the Mexican cartels. The public feud between the drug kingpin and Trump could cause concern. At any rate, the list of schools and seminars promising easy riches is long indeed. The question is really about what did the people think they were buying and did Trump do anything that gave them mistaken ideas. Did they think Trump was selling limited partnerships, shares or making a “finders” service available among his many contacts? It is interesting though that those condemning Trump have made money over the years from re-zoning schemes, chameleon trucking firms, usurious lending, financial universities and a host of schools made possible by student loans while those most likely to fall victim to “get rich quick schemes” including multi-level marketing support Trump. But, since this is a class-action lawsuit, it’s hard to see how this could be billions of dollars even if the judge rules against Trump. Seems Trump made the mistake of not incorporating in a corporate friendly state like Delaware and including that all legal actions be settled in Delaware according to their laws. The judge made the right decision by delaying the decision until after the election. The criticism of Trump’s racism is coming from those that wanted to grant amnesty in hopes of getting the Hispanic vote so of course they are going to amplify Trump’s statements. They should be more concerned in regards to RICO as applied to those providing investing seminars. Madoff represented he was investing other peoples money and providing financial statements to affirm his wise investing. Trump was purportedly educating people on how to use their money invested at their own direction to make money. Thus the Madoff analogy is prejudicial by all accounts. And the judge made it.

    • Elaine Morris

      It isn’t misquided…the Judge was part of LaRaza.

      • Victor Grunden

        The “however misguided” was speaking in generalities not a specific incident. There is a lot of imagined injustice and guilt by association but an individual has a right to express their feelings and address it according. Have you ever heard anyone else say they can’t get justice because of racism? If so, how did the same people criticizing Trump react?

  • Jeff Norman

    For a supposedly evidence-based analyst, Dean falls absurdly short of establishing that Trump expressed a racist opinion. The Golden Wrecking Ball clearly cited the judge’s rulings and affiliations, but he’s nonetheless guilty of racism because Dean thinks Trump’s arguments are weak? That’s some logic! New definition of racism: Anything that somehow refers to race and offends one or more people.

  • Frank Willa

    Mr. Dean thank you for taking the “Trump University” matter to a more detailed review, which of course the pleadings provide the specifics of the laws alleged as violated. In my view this is an alarming summary; one I hope the beltway media follows up on. Further, if it happened that Trump was convicted after being elected it would indeed be a shocking sight to see a President of the United States “perp” walked out of the White House in handcuffs. However, in my opinion, you have in some of your other articles in Justia, pointed out the “authoritarian” personality in politics and how it plays out. So, the Trump appeal to the “followers”- the core – pushed him to win the primary spot, and they will adhere to him, and find ways to rationalize their support. I look forward to your next article on this issue.

    • I think we should have a contest to find the worst examples of Trump’s total lack of ethics. Easy to find LOTS of data. Trump keeps popping up in random books I’m reading, even though these books were published years before his so-called presidential campaign. I checked the index of the book I’m going to read next, and the Donald (with Ivana) are mentioned on page 393 in relation to his purchase of the Plaza hotel. Was that one of his deals that ended in bankruptcy?

      In a book I finished recently, it included the tragic story of the Central Park Jogger from 1989. Trump paid approximately $80,000 to run an advertisement for the death penalty for the kids who were convicted. The book focused on how they were forced into confessing, but if Trump had “won”, they might have been executed before the actual rapist and murderer was identified in 2002. Turned out the kids were not involved in any way.

      Or perhaps we should try to start malicious rumors about Trump the way he destroys other people’s reputations? “Trump wants to legalize marijuana!” I’m not saying that, but I heard that some other people have said it. Or maybe I just misheard the people who were saying that “Trump wants to legalized cocaine and heroin.” I’m not saying that, either, but I’m just saying what I’m not saying so you can know what I’m not saying. Like the Donald loving Mexicans.

      • Elaine Morris

        You are a honest person…However, you might want to research more before you come to a conclusion that is totally biased and wrong.

        • Do you have any accurate information to offer in defense of Trump? I don’t think so, or you would have said something. If you want to do research, you might start with the Wikipedia pages on the Central Park Jogger.

          However, I do want to ask you [even though I’m pretty sure you’re just another sock puppet] a simple question:

          What do you hate most?

          Insofar as I’ve had “relatively deep” interactions with Trumpeters, all of them have been negatively motivated by their assorted hatreds. That led me to that question, and so far every Trumpeter who has received it has run away. I think someone has been telling them to hide their hatreds, which makes perfect sense. First, such negativity does not appeal to normal people, but second, and perhaps more importantly, they might realize the depth of their conflicting hatreds with other Trump supporters. How long can they sustain the delusion of a unique agreement with the Donald when it requires believing Trump is lying to everyone else, including people who seem to agree with you about supporting Trump?

          • CleanLeon

            The Central Park Joggers confessed to their crimes.

        • Magginkat

          And you might want to practice what you preach. Research instead of making silly very biased comments.

      • CleanLeon

        Are you unable to distinguish between a legal or illegal immigrant? Or do you think all Mexican Americans are illegal immigrants?

    • Howell

      I don’t

  • Looking at the pro-Trump defensive comments, you have to wonder why Trump can’t hire better shills.

    However, I want to switch to a different angle of the Trump topic via another lawyer. Do you [John Dean] personally know Mike Godwin? If so, perhaps you could ask him to do a joint column on this topic: “Is it time to repeal Godwin’s Law?”

    As background, Mike wanted to discourage excessive and hyperbolic appeals to the Nazis. Therefore he proposed what has become the eponymous law, but there are times when Nazi comparisons are in order and should NOT terminate the discussion or concede any point. (And usenet is dead, anyway.)

    Let me be clear that I do NOT think Trump should be compared to Hitler, though I increasingly wonder if Stalin might be a fair target for comparison with him. However I absolutely think that some of Trump’s supporters should be compared to Nazi supporters, especially his fanatical Trumpeters and the Brown Shirts, focusing on the period before Nazis first gained substantial political power.

    Unfortunately, the Trumpeters are much better armed than the Brown Shirts. Not in terms of muscles. I’m pretty sure the Germans of that time ate little junk food and were probably generally healthier than Americans these days. Nor am I talking about guns. To the contrary, I’m confident that Americans have more guns.

    I think the really dangerous weapon the Trumpeters have is the Internet. Remember the pen is mightier than the sword, and Trump and his minions are becoming (or may already be) great experts in destroying their opponents using the Internet. Hillary already seems like a soft target.

    They also use the Internet as a communication channel, but perhaps the most dangerous use of today’s Internet is to bolster their own ignorance by stuffing their own ears and eyes with infinite amounts of bad data. Like the bubble of the fake conservatives, but much worse and they are deliberately doing it to themselves.

    In conclusion, Trump is a liar of the lowest level. That is the Level 0 lie of self-contradiction, where you don’t even need to check the facts. Trump says things like “I am not saying that climate change is just a Chinese conspiracy to destroy American industry, but there are people who are saying that, and I have to say what they said so I can tell you that I am not saying that, even though you just heard me say it. Now vote for me, even if you can’t understand what I just said. Make that especially if your can’t understand.”

    P.S. A few footnotes seem to be in order: My ontology of lying starts with Level 0 lies of self-contradiction, where you know there’s at least once lie without checking anything, though Trump is often lying on both sides. Level 1 lies are counterfactual statements, where any fool can check the facts. Some debate, but I think confabulation belongs here even though the liar sincerely believes the false memories and continues to reject any contradictory facts. Level 2 lies are partial truths, which are especially popular with politicians. The most notable difference between Trump and politicians is that Trump rarely includes enough truth to get to the partial level. Level 3 lies are framing, but I cannot recall a single example of Trump reaching such logical sophistication. Trump lacks the personal credibility to reverse shade the truth, and he lacks the logical sophistication to understand the trick framing of “Have you stopped beating your wife yet?” Also, I have to note that I used to know Mike Godwin personally, though I can’t recall that he had a good word for me… We were probably friends at some point?

    • CleanLeon

      The Chinese see it as an opportunity to sell us solar panels and use coal for their energy needs as they attract companies that are being killed by regulations here b

  • Forgot one point of clarification. Some sources say that Trump has been involved in over 3,000 lawsuits, of which he initiated approximately 1,900. Are those figures inaccurate, or have only so few of them been settled? The context of the column is unclear if that means settled out of court or something else. Perhaps most of the lawsuits initiated by Trump were only bluffs (or negotiation tactics), such as the silly letter an attorney sent to Bill Maher complaining about the orangutan joke.

    • CleanLeon

      Name a major businessman that hasn’t been involved in litigation. Hillary got rich taking bribes. Bribery doesn’t lend itself to many lawsuits.

  • bluemoon

    And so Hillary is such a saint? What’s all that about “e-mails” ?? and HER Criminal activity? Wouldn’t THAT call for impeachment?? hmmmm ? Oh and I have faced off against a racist Latino judge who had his mind made up, and my case was lost before it started. So I do understand why Trump said what he said. Too many unethical self serving racist judges playing God.

    • So we can assume the thing you you hate most are judges? (I’m doing you the courtesy of assuming you got confused about what the word “racist” means?)

      • CleanLeon

        You hate white people like most SJWS I assume. Why isn’t that racist? You want people to be able to break laws because most that do are members of a particular ethnicity. Why isn’t that racism?

  • G.N.M.

    I remember Watergate and Mr. Dean’s role in it. Why should we listen to him now?

  • acrookedaturne

    Why would anyone believe this guy? He has no morals at all and lost his license to practice Law for criminal activity. He was referred to as the “master manipulator of the cover-up” by the Federal Bureau of Investigation (FBI) in the Watergate investigation. He pleaded guilty to a single felony count, in exchange for becoming a key witness for the prosecution. This ultimately resulted in a reduced prison sentence, which he served at Fort Holabird outside Baltimore, Maryland.. G. Gordon Liddy claims in Liddy’s book Will, and Len Colodny claims in his book Silent, that Dean was the mastermind of the Watergate burglaries and the Watergate cover-up, and that the real target of the Watergate burglaries was to seize information implicating Dean and the former Maureen “Mo” Biner (his then-fiancée) in a prostitution ring. So now we’re supposed to believe a disbarred manipulative felon wo was possibly involved in a prostitution ring. WTF

    • So what do you hate most?

  • Howell

    Mr. Dean lost me in the beginning of his article when he used the phrase “pure racism”. Is there such a thing as “not so pure racism? Now we know how Nixon go all tangled up with this kind of thinking. Terms like this should be defined when used by an author. When black defendants have claimed that they did not get a fair trial in Boogalou, Down South because the judge was white with an “I know everyone on the all white judge’s jury….is the black defendant a pure racist? Come on…JD!…..you can do better than this…at least I sincerely hope so.

  • g kelly

    John Dean, thanks for wading through the pleadings in the Trump U lawsuits and providing a summary of the causes of action involved. I haven’t seen a detailed presentation thus far, and it is very helpful. It also shows why Mr. Trump is so outspoken about it, it threatens him with bankruptcy or a significant diminution of his wealth, and destruction of his reputation.

    Lay readers should keep in mind that the “complaints” filed by the plaintiffs state their case in the strongest language possible. The defendants’ “answers” usually deny the allegations of the complaints. Disputed issues are resolved at trial or by motions for summary judgement.