I hope I'm wrong about this, but I'm really worried about "presumptive [GOP presidential] nominee" Donald Trump's latest outburst. For several months I've been noticing echoes of neo-fascism in his rhetoric and his appeal to working-class voters who have lost ground in today's economy -- compare them to the "Reagan Democrats" of the 1980s or lumpenproletariat of the 1930s -- but this week's personal attack on U.S. District Judge Gonzalo Curiel crosses a new line. I think he threatens our historic commitment to what constitutional scholars call the "rule of law," in a way I hadn't seen before.
Maybe I'm over-reacting, but I take it almost personally -- I wrote my doctoral dissertation on it. It was a spellbinder titled "The Idea of Limited Government in English History Plays During the Reign of Elizabeth I, 1558-1603," and it's been gathering dust (unless the hard copies has been retired and it's now available only in microfilm) in the University of Tennessee library at Knoxville since 1975. To my mind, Trump is playing fast and loose with principles that were already settled law in the 1500s.
But, you're wondering, how do we get from Donald Trump to the idea of limited government? Isn't that kind of a stretch? Well, yes, I hope it is. But in Queen Elizabeth's day, the formula was that "the king is under the law because without the law, there is no king." It dates back to Henry de Bracton, an adviser to King Henry III in the 1200s, and it means -- translating it into today's language -- the royal government was bound by the law of England because without the law any warlord with a big army could overthrow the king.
In other words: Laws, not the whims of the people who administer the law, are the controlling authority.
So at the end of Shakespeare's 2 Henry IV, when Prince Hal just become King Henry V, his old drinking buddy Falstaff comes up to him, and this dialog ensues:
FALSTAFF God save thee, my sweet boy!KING HENRY V My lord chief-justice, speak to that vain man.
LORD CHIEF-JUSTICE Have you your wits? know you what 'tis to speak?
FALSTAFF My king! my Jove! I speak to thee, my heart!
KING HENRY IV I know thee not, old man: fall to thy prayers;
How ill white hairs become a fool and jester!
I have long dream'd of such a kind of man,
So surfeit-swell'd, so old and so profane;
But, being awaked, I do despise my dream.
In other words: Prince Hal is now king, and the law -- here personified by the Lord Chief Justice -- rather than personal friendship is the controlling authority.
Bottom line (to my way of thinking): When Trump, as a presidential candidate with a real chance of winning the presidential election, injects personalities into a court case and makes ominous, if vague, remarks about might happen to the case if he wins in November, he's stepping all over legal principles that are as old and as basic as anything we have in the Anglo-American system of law. It's the Donald being the Donald, sure, but it's also way beyond troubling.
Some verbatim excerpts from news coverage and editorials follow below:
LATER (June 4): This editorial in yesterday's Washington Post isn't as English major-y as what I wrote, but it goes part-way there.
"Trump wants to put himself above the law — and that is dangerous." Editorial. Washington Post. 3 June. https://www.washingtonpost.com/opinions/trump-wants-to-put-himself-above-the-law--and-that-is-dangerous/2016/06/03/3181b6c6-29aa-11e6-a3c4-0724e8e24f3f_story.html.
LET US assume, contrary to the known facts so far, that U.S. District Judge Gonzalo Curiel does harbor some bias against Donald Trump, the defendant in a class-action lawsuit brought to Judge Curiel’s Southern California courtroom by aggrieved former customers of the Trump University real estate school. Let us assume, further, and also contrary to known fact, that this bias even has something to do with Judge Curiel’s Mexican American heritage, as Mr. Trump venomously insists. The thing to do would be for Mr. Trump to file a motion with the court, urging the judge to recuse from the case and spelling out the reasons why. If the motion’s denied, he can appeal to a higher court.
The fact that Mr. Trump has not filed such a motion says a lot about his attitude toward the rule of law and stable political processes — more, in a sense, than his bigoted attacks on the judge themselves. When things don’t go his way, Mr. Trump’s first resort is not to use options for redress the system provides; it is, rather, to blame his problems on an enemy and whip up public hostility against him, in crude ethnic terms, if it seems advantageous. One implication of Mr. Trump’s words, that he is the one with a bias, against Americans of Latino heritage, is bad enough; possibly worse is the ominous signal his behavior sends about how a President Trump would deal with any sort of opposition he might encounter.
Jose A. DelReal and Katie Zezima, "Trump’s personal, racially tinged attacks on federal judge alarm legal experts" Washington Post 1 June 2016 https://www.washingtonpost.com/politics/2016/06/01/437ccae6-280b-11e6-a3c4-0724e8e24f3f_story.html.
Donald Trump’s highly personal, racially tinged attacks on a federal judge overseeing a pair of lawsuits against him have set off a wave of alarm among legal experts, who worry that the Republican presidential candidate’s vendetta signals a remarkable disregard for judicial independence.
That attitude, many argue, could carry constitutional implications if Trump becomes president.
U.S. District Judge Gonzalo Curiel, who is handling two class-action lawsuits against Trump University in San Diego, has emerged as a central target for Trump and his supporters in recent weeks. The enmity only escalated after Curiel ordered the release of embarrassing internal documents detailing predatory marketing practices at the for-profit educational venture; that case is set to go to trial after the November election.
“I have a judge who is a hater of Donald Trump, a hater. He’s a hater,” Trump said at a campaign rally in San Diego, adding that he believed the Indiana-born judge was “Mexican.”
He also suggested taking action against the judge after the election: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. Okay? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case? Where everybody likes it. Okay. This is called life, folks.”
Trump’s attacks on Curiel stand out for their personal nature, for the racial remarks and for the suggestion by a potential president that someone “ought to look into” the judge.
Charles Gardner Geyh, a professor at Indiana University’s Maurer School of Law, said he has no problem with presidents or presidential candidates criticizing judges or judicial decisions. But, he said, “there’s a line between disagreement and sort of throwing the judiciary under the bus that I think is at issue here.”Trump’s attacks on Curiel stand out for their personal nature, for the racial remarks and for the suggestion by a potential president that someone “ought to look into” the judge.
Katrina Pierson, a spokeswoman for Trump, has expanded on the accusations of bias, wrongly suggesting Curiel is part of a group organizing protests at Trump rallies around California. Curiel is a member of the San Diego La Raza Lawyers Association, a professional group that she appeared to confuse with the National Council of La Raza, an advocacy group.
Luis Osuna, the president of the lawyers association, said the group is not an advocacy group and supports candidates on both sides of the aisle. He said Trump’s attempts to discredit Curiel should give voters serious pause, not least because his comments reduce Hispanics in the legal profession to their heritage.
“Every time there is a comment like this, it is disheartening,” Osuna said. “It is not, unfortunately, surprising, given the source of the comments. But it displays a complete lack of understanding of the role that we have as attorneys and judges and the role that we have in upholding the Constitution.”
“He’s definitely using it as a dog whistle to his supporters,” he added. “Obviously, I don’t know what is in his heart. I can only judge based on the way he has acted in the past, but this has been a recurring theme in his campaign.”
"Donald Trump and the Judge." Editorial. New York Times 31 May 2016. http://www.nytimes.com/2016/06/01/opinion/donald-trump-and-the-judge.html.
One would think Mr. Trump, whose sister is a federal appellate judge, would know how self-destructive it is for any litigant anywhere to attack the judge hearing his or her case. But Mr. Trump is not any litigant; he is running to be president of the United States — a job that requires at least a glancing understanding of the American system of government, in particular a respect for the separation of powers. When Mr. Trump complains that he is “getting railroaded” by a “rigged” legal system, he is saying in effect that an entire branch of government is corrupt.The special danger of comments like these — however off the cuff they may sound — is that they embolden Mr. Trump’s many followers to feel, and act, the same way.
For good measure, Mr. Trump added that Judge Curiel “happens to be, we believe, Mexican.” False; the judge is from Indiana. But facts are, as always, beside the point for Mr. Trump, who reassured his audience that “the Mexicans are going to end up loving Donald Trump when I give all these jobs.” (Presumably he was not referring to those he has promised to deport if he is elected.) In a masterpiece of understatement, Judge Curiel, who is prevented by ethical rules from responding directly to comments like these, noted in his order that Mr. Trump “has placed the integrity of these court proceedings at issue.”
No comments:
Post a Comment