More On Trump’s Business Practice Coming Soon to a Screen Near You

Updated:

Donald Trump’s attacks on U.S. District Court Judge Gonzalo Curiel brought widespread attention to the Trump University lawsuits, thrusting them into the 2016 presidential campaign. I examined what has been occurring in Judge Curiel’s courtroom in my last column, and the fact is this is about as high a stakes situation as Trump has ever dealt with in his many years of heavy litigation because one suit charges him with criminal fraud, the RICO civil suit, which calls for treble damages, an amount that possibly could provoke another bankruptcy.

Mainstream news reporting on this lawsuit has been intermittent, at best, so I have been watching the case’s docket, and can report the lawsuit will be back in the news soon. While Trump’s lawyers have filed a motion for summary judgment to dismiss, and/or decertify as a class action, the civil RICO action, that is not likely to happen. In addition, several media news organizations—CNN, CBS, Tribune Publishing, NBC, ABC, The New York Times, The Washington Post, and Fox News—have further intervened in the case to obtain Trump’s video depositions, along with material Trump currently has under seal as “confidential.”

Judge Curiel has scheduled a hearing on these matters in his San Diego courtroom on Wednesday, July 13, 2016 at 1:30 pm. The judge may rule at that time or soon thereafter. Because Trump’s arguments are not persuasive at all, more news is coming about Trump University.

Summary Judgment in the RICO Case

Trump argues that “if this case is allowed to proceed, it would represent an unprecedented and unprincipled expansion of civil RICO” law; this is an argument his earlier attorneys made and lost. At issue in a motion for summary judgment is whether there are undisputed facts, therefore precluding the need for a jury to make a fact-finding, thus disposing with the need for a trial. Defendant Trump claims that there are no genuine issues of fact regarding his alleged activities, and that he was not involved in the RICO racketeering enterprise, notwithstanding the claims of the plaintiff as set forth in the complaint.

Here is the gist of Trump’s positon: “Once TU was established in 2005—as with many of his scores of businesses—Defendant [Trump] relied on well-qualified executives, including a president, chief marketing officer, chief operating officer, compliance officer, and others, to ensure that TU provided quality programs and followed applicable laws.” As far as Trump is concerned there is no issue that “TU’s marketing materials were fraudulent,” as claimed by the student bringing the action. Nor, Trump argues, is there any evidence that he harbored a “specific intent to defraud.” He claims that the undisputed facts show he believed the “students were receiving a high quality education in real estate and were satisfied with TU’s instruction.” He relies on the infamous evaluations required from the students, thus claiming a 97 percent approval rating for TU. Based on these purportedly undisputed facts, Trump wants the RICO case dismissed because there was no fraud, nor is there any evidence of his involvement in it.

The record appears to show quite differently from how Donald Trump portrays them. The plaintiff has responded to the motion for summary judgment by directing the court to the record showing that: “Trump orchestrated a multimillion dollar marketing scheme with one goal: to influence students to enroll in TU. The three pillars of Trump’s success as a promoter are: (1) playing to people’s fantasies; (2) using hyperbole; and (3) employing what he calls ‘innocent exaggeration.’ These are the pillars of what the rest of us would call lying.” Next the plaintiff proceeds to lay out fact after fact showing Trump’s fraud, thus creating a factual dispute that will preclude summary judgment.

It would be very surprising for Judge Curiel to dispose of this case by summary judgment at this late date, not to mention to reverse himself and decertify the case as a class action. Before Paula Jones sued President Bill Clinton, Trump might have thought there would be refuge from a civil lawsuit if he became president, but the U.S. Supreme Court in Clinton vs. Jones (1997) resolved the issue holding that sitting presidents are subject to civil lawsuits. If Trump won the presidency, but is unable to settle this lawsuit (which I suspect the case), it would follow him into the White House. Trial is scheduled for after the election.

Media Requests for Trump’s Confidential and Video Depositions

Even weaker than Trump’s pursuit of a summary judgment is his effort to prevent the news media from having access to his depositions. Much of that material has already been released but the news organizations are seeking additional material that was sealed as “confidential” as well as video copies of the depositions. So weak was Trump’s position on confidentiality that his lawyers have conceded it and agreed to remove the confidentiality claims.

Court proceedings are public proceedings, and to withhold information in a lawsuit takes a persuasive claim of specific harm that will result from public revelation of the material. It appears that Trump initially claimed confidentiality based on a claim that revealing the workings of Trump University would expose his trade secrets, but it turns out that trade information was actually rather unsavory conduct. Thus, this ploy did not work to keep information hidden.

As for keeping the videos from being made public, Trump’s filing shows that he has not been able to provide the court with any real or specific explanation as to harm that might result. The media organizations have made three core arguments in calling for the release of the video depositions:

First, neither the facts nor evidence support [Trump’s] assertion that disclosure of video deposition testimony would interfere with their ability to get a fair trial. [Cites omitted.] Even in cases with widespread publicity (much more than this case) courts have rejected claims that a “fair” jury cannot be found. [Citing as examples cases involving Charles Manson and the Watergate trials.]

Second, [Trump has] no basis for complaining about the potential for “excessive media coverage,” because Defendant Trump made the decision to make the litigation an issue in his presidential campaign. [Trump has] not (and cannot) identify any specific risk of harm that would result from disclosing video of the deposition testimony – to the contrary, video and audio tape will portray the deponent more accurately than a cold transcript, which cannot convey inflections, demeanor, or nuance. This lawsuit is likely to receive substantial media coverage whether or not deposition videos are publicly available, given Defendant Trump’s presidential campaign….

Finally, [Trump] ignore[s] the unusually strong public interest in this action. * * * Defendant Trump is the presumptive Republican presidential nominee, and the allegations in this case relate to his business record, which he has presented as his primary qualification for the nation’s highest elective office. Defendants also cannot dispute Trump’s extensive experience in dealing with the media. He chose to speak out about this case, which further reduces any purported interest in keeping these videos confidential.

In short, Trump’s attacks on Judge Curiel have drawn attention to this lawsuit, and his efforts to intimidate the judge may be coming back to bite him with his own words in the video depositions. Thus, it appears that by mid-July this lawsuit should produce a frowning, and less than gracious, Mr. Trump (based on videos of his prior depositions floating about) but here discussing his business practices. It is not likely Trump envisioned his depositions would be viewed publicly when he gave them, and seldom are videographers good at lighting or making anyone being deposed look their best.

In reviewing this case I’ve noted that Trump has had several lawyers representing him. When rulings have not gone his way, it appears he gets new lawyers. Given the revelations about how many lawyers he has stiffed over the years I keep wondering if his current lawyers are getting paid in advance, or risk having to litigate with The Donald themselves. What is most interesting about this case, however, is that it seems like Trump University is a microcosm of his campaign, and his presidential bid, where he promises the world knowing he will be unable to deliver, so he will have to convince everybody that they don’t understand what they were buying in the first instance.

As was said about showman P.T. Barnum, and Donald Trump has proven again, “There’s a sucker born every minute.” In fact, that would be a perfect motto for his campaign.

  • Good column, but I’m not sure any of this will matter to Trump’s sincere supporters. His lies at every level (though usually quite low levels of lies) have become so visible and public that it is impossible to ignore them. If you are drinking the Trump cool-aid now, then you have to believe that sometimes Trump is not talking to you. Since you believe in the Donald the only true stuff must be what he says that agrees with you, and the rest of it is just politics and he’s just fooling all those other suckers.

    My current analysis is that the Brexit vote in the UK resembles the Trump votes in America. They are short-sighted and based on ignorance and fear on a base of hatred. Most of Trump’s support can be classified by the relevant hatreds: government haters, Hillary haters, bigots, and racists. Some of Trump’s supporters have realized the negatives don’t sell well, so they try to put some positive shoe polish on it, but if you scratch a Trump supporter, you always find a hater. I have yet to find a counterexample, though the Trump supporters are becoming more and more visible and vocal.

    • CleanLeon

      Are you a government lover? Then why not send them more of your money and calling for more taxes on poor people like yourself?

      • gator

        What does that have to do with Trump being a con artist?

        • CleanLeon

          In what way is he a con artist anymore than every other politician?

          • Seems incoherent, but typical if you are actually a Trump supporter. In that case there is only one question worth asking:

            Who do you hate most?

          • CleanLeon

            You seem very emotion based. Hate the most? Abu Bakr al Baghdadi I guess. That guy is evil. All the sex slavery and crucifixions etc.. in his regime. You probably hate Christians or Donald Trump more if you are being honest. Who do you hate most?

          • My emotions are rather weak, it seems. There are things I like and dislike, but I can recognize a hater when I encounter one. So far, every Trump supporter I have scratched has proven himself a hater, and usually a vicious hater. Trump’s new problem is that hate was a great sales pitch for the fanatics voting in the so-called Republican primaries, but doesn’t work so well for most Americans, who are basically rather happy people.

            Now about your answers to the question, I don’t believe you. I still think you’re a hater, but you have enough cleverness to hide it a bit. I still want do know who you hate most. Want to make your best pitch for that particular terrorist as worthy of your primary hatred? If you’re sincere, then you must have a list, since he’s likely to die at any time.

          • CleanLeon

            Hater this and hater that. You really have some strong emotions against your fellow countrymen. But, do you logic bro? Or do you just emote? I know your type. Always going around calling other people hateful and trying to win some unearned moral superiority. Yet when the charities are in need no money or time comes from you.

            So who do you dislike most?

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        • It might be sophistry. One of their popular troll games is to change the subject. In the specific case of Trolls for Trump, I think there is only one question worth asking: “Who do you hate most?”

          Insofar as hatred always underlies all of their positions, I think it is always germane and to the point. If there were some positive and defensible argument to be made for the Donald, someone would have made it by now.

          Of course that’s why the questions about Trump’s business practices are so important. It’s the closest anyone has come to a positive argument for Trump. However, I think it’s an impossible defense. No one can honestly accumulate the kind of wealth that Trump claims. Either he accumulated most of the money via scams such as Trump University or he doesn’t have the money. So far the balance of evidence makes me believe his wealth is pretty much the same as his inheritance, but the details of active and passive investments would be heading off topic here.

      • tuckerfan

        We’re not lovers, just good friends. I call on all people to pay taxes because in a country of 380 million we need government to do many things we can’t do as individuals, and can’t trust the private sector to do for us. It’s not that hard to understand.

    • tuckerfan

      A few hundred years ago millions of immigrants fled Europe due to religious oppression and lack of economic opportunity and came to the Americas. The locals, seeing they were rapidly becoming outnumbered and their entire way of life being swept aside in favor of the newcomer’s culture reacted by going to war. In our modern world we are not taught that the Native Americans were racist haters, but rather noble defenders of their way of life in the face of the evil white invader. The UK and the USA now face waves of immigrants fleeing the violence of anarchy and lack of economic opportunity. These migrants are overwhelming the host culture and sweeping away our cultures in favor of our own. But we are not praised as noble defenders of our way of life, we are condemned as bigots if we do not embrace the invasion. The Brits who voted exit almost certainly don’t hate the migrants, they simply want the sovereignty of their nation restored so they can control the pace and quantity of migration, and thus preserve their culture. Trump is offering the same thing to the USA, fraud lies and all. Given his opponents integrity, I doubt this election will be decided on character of the candidate, but on agenda. Painting Trump as a liar is easy, but since Clinton is a criminal it doesn’t seem to make much difference.

      • 98C3LCMT9Y4

        Wow, talk about a one-sided view of that european invasion from the 16th century onward.

        It was not so much that ‘culture’ but the wave after wave of disease that they brought to a continent that had had ZERO exposure to any of the diseases. To say nothing of all the ‘treaties” that were never actually honored.

  • G.N.M.

    But nothing about Hillary.

    • So here we have a Trump supporter from the Hillary hating leg of the Donald’s high chair, not to be confused with any sort of throne. The other three legs are for government haters, bigots, and racists. Only one question worth asking a Trump supporter: “Who do you hate most?”

  • Victor Grunden

    When RICO was first proposed and passed it was represented as criminal legislation only. And that criminality had to be approved by the federal justice system. It is interesting that under current bankruptcy laws that it is legal to bankrupt out of RICO settlements but not credit card or student loan debt. During the housing crisis there were plenty of people to buy distressed houses but the banks kept the valuable property close to their vest while trying to unload the “dogs”. Had all distressed property been put on the market, the housing crisis sans government bailout would have been over much quicker with the fraudsters that created the crisis in court, not Trump. Wonder how the housing crisis would have evolved in a Trump Presidency? But if this is to be a precedent for civil RICO seems a lot of lawyers will be busy in the future. Since the judge delayed things until after the election, then Trump won’t have a pending criminal indictment as with Hillary’s e-mails. Of course, there is no connection between the two cases.

  • I asked you for your #1 hate, not the start of your infinite list, but thank you for proving my point. If you are not a hater, you are an extremely talented liar.

  • Only one question: Who do you hate most?

  • tuckerfan

    Back from whom, last time I checked it is still a Republic and free from foreign domination.