The ABA Model Rules of Professional Conduct, which have been adopted by all 50 States and the District of Columbia, forbid a lawyer who is participating in a litigation from making public statements about the case “that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. See ABA Rule 3.6 Trial Publicity. Moreover, a lawyer “shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge….” ABA Rule 8.2 Judicial and Legal Officials.
At a rally on Friday in San Diego, Donald Trump said the following about the Honorable Gonazlo P. Curiel, the United States federal judge presiding over the lawsuit against Trump University that accuses the school of misleading thousands of people who paid up to $35,000 to learn about real estate investment strategies:
I have a judge who is a hater of Donald Trump.
We’re in front of a very hostile judge. The judge was appointed by Barack Obama, Trump said, adding that he believed Judge Curiel was Mexican.
An attorney who uttered such nonsense on television would likely find him or herself sitting in jail charged with contempt and facing disciplinary action from the applicable bar association. Mr. Trump was clearly trying to prejudice the case against Trump University by means of public communication. He really crossed the line by speculating that Judge Curiel, an American who was born in Indiana, hates Trump due to his alleged Mexican ancestry.
Donald Trump is not a lawyer. However, here is what some legal scholars are saying about whether Trump could face legal consequences for his inappropriate criticisms of Judge Curiel:
Mr. Trump’s conduct could be subject to sanction for indirect criminal contempt of court,” said Charles G. Geyh, a legal ethics expert at Indiana University’s Maurer School of Law.
He has impugned the honesty of the judge in a pending case,” Mr. Geyh said, “and has done so in the context of a political rally that seems calculated to intimidate by inciting anger among his supporters.
Arthur D. Hellman, an expert on federal courts and judicial ethics at the University of Pittsburgh School of Law, said the judge was in a difficult position.
He can’t respond directly,” Mr. Hellman said. “He’s not supposed to talk out of court about proceedings before him. Judges have gotten into trouble defending themselves from attacks.
These experts hit the nail on the head. The legal profession cannot remain silent while a very public figure impugns the honesty and integrity of a judge in a pending case involving the public figure. Our Constitution guarantees American citizens the right to trial by jury. If the rich and powerful are allowed to intimidate the judiciary, the right and our very democracy are at risk.
Fortunately, Judge Curiel does not seem to be intimidated by Mr. Trump’s attack. On the same day that Trump criticized the judge during a public rally, Judge Curiel ruled against Trump University and found that previously sealed documents concerning the University’s procedures on dealing with students and the news media should be unsealed.