FINDING: TRUMP UNIVERSITY JUDGE MISLED SENATE AT CONFIRMATION

Overwhelming evidence of judge bias on Mexican-American issues

Contributing Writers | Opinion | AMERICANS FOR INNOVATION  | Jun. 08, 2016, Updated Jun. 12, 2016 | PDF

Fig. 1—Obama-appointed Judge Gonzalo P. Curiel placed his Mexican-American ethnicity squarely in the public arena at his Senate Confirmation on Mar. 28, 2012 and in his conduct as a U.S. Attorney between 1990 and 2012. As a result, his Mexican parentage, and how that might affect his decisions as a federal judge, are not only fair game for Donald Trump on general principle, but also because Judge Curiel very evidently withheld at least 13 sets of documents that would have described his opinions on various Mexican-American issues at the confirmation hearing. Willful failure to disclose information material to the Senate Judiciary confirmation process is criminal.

Graphic: Fox News (with spelling correction).

(Jun. 08, 2016)—Presumptive Republican Presidential nominee Donald Trump’s detractors have been quick to criticize his comments about the Mexican-American judge in his Trump University lawsuit, Judge Gonzalo P. Curiel.

Mr. Trump complained that Judge Curiel has issued unfair rulings in the case.

For example, Judge Curiel recently allowed the woman who filed the suit, Tarla Makaeff, a yoga instructor, to withdraw from the complaint, yet allowed her to remain as essentially a behind-the-scenes hanger-on sub-plaintiff in one of the subsequent class-actions filed. Makaeff’s lack of confidence in her own case should have resulted in dismissal of at least her participation under the principle of res judicata —plaintiffs cannot make the same claims twice. But instead, Judge Curiel shuffled her aside into a parallel action and refused to dismiss her complaint.

Leonard P. Stark, Delaware Federal District Court. Obama nominated Stark after Facebook's devastating pre-trial loss of the pivotal Markman Hearing in front of 25-year veteran judge Joseph J. Farnan in Leader v. Facebook. One month before trial, Stark was ordered to take over the case even though he had not been confirmed. Stark is heavily invested in Facebook's largest mutual fund stockholder, Fidelity.

Thomas G. Hungar, Gibson Dunn LLP. Chief Justice John G. Roberts was Hungar's legal mentor while Hungar represented Facebook when the Leader v. Facebook case came before Roberts, who just winked while counting his Facebook investment winnings and declined to hear Leader's petition.

Chief Justice John G. Roberts, Jr. failed to recuse in Leader v. Facebook despite his financial holdings and Facebook lawyer relationships (and every federal judge, incl. Curiel, knows this).

We at AFI know about judge bias. We have investigated and proved scandalous judge bias in the Leader v. Facebook patent infringement case. That bias reaches right into the U.S. Supreme Court where Chief Justice John G. Roberts, Jr. held substantial Facebook financial interests, yet failed to recuse himself when the petition came before him. Justice Roberts even mentors Facebook’s appeal attorney, Thomas G. Hungar, Gibson Dunn LP, yet failed to disqualify himself. See Timeline for Hijack of the Cyberworld.

Chief Justice John G. Roberts, Jr.—the fish rots from the head

With such non-stellar examples of judicial ethics as Justice Roberts', it is no wonder that lower court judges like Judge Curiel feel no compulsion to be ethical. Clearly, our justice system is on the verge of a "no confidence" vote by the American public. Much of the judiciary appears to be on the take from their deep pocket corporate cronies.

Donald Trump complained about Judge Curiel’s Mexican-American heritage as the clearest reason to him why he was not being treated fairly in Curiel's court.

Mr. Trump's opponents in both parties were quick to label the comment racist and fan the flames of this favorite narrative. Even Republican House leader Paul Ryan called the comment racist.

Q. Can a judge's family heritage ever be an issue without being labeled a racist for bringing it up? A. Yes.

Polemics aside, the real question is can a judge’s ethnic heritage ever be grounds for him or her to recuse from a case?

If we follow Donald Trump’s detractors, one would conclude that Americans must ignore ethnic and racial heritage in all lawsuits—even if that heritage biases the judge toward one of the litigants.

Even the rhetoric of groups like Black Lives Matter reinforces Trump’s position that race and ethnicity can and do bias policing and courts. In Trump’s case it’s a white billionaire with the bias complaint.

Is Donald Trump justified to raise the spectre of bias regarding Judge Curiel’s Mexican-American heritage? Since repatriating undocumented Mexican immigrants, building a wall, drug smuggling and crime figure so prominently in his political platform in this election, the answer is obviously yes.

The ethics standard for judge bias is stated in Canon 2 of the Code of Conduct for U.S. Judges:

Code of Conduct for U.S. Judges, Canon 2:

"A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities."

The U.S. Constitution promises every citizen the right to a fair and impartial tribunal. Questions of judge impartiality cannot be suspended for any reason including race, ethnicity, gender, nationality, social status, etc.

If Judge Curiel’s Mexican-American heritage predisposes him to actual bias—or even the appearance of bias in Mr. Trump’s case—then he has a solemn Constitutional duty to disqualify himself from the Trump University case.

Given the sharp rhetoric in the presidential campaign surrounding Mexican-American relations, any reasonable person can see that Judge Curiel’s Mexican-American heritage may bias the Trump University case, either way. The judge might favor Trump’s opinion. We doubt it, but we just don't know for the reasons discussed below. Given these reasonable questions and appearances, the possibility of bias is real and requires Judge Curiel's recusal.

The Senate judicial confirmation process

Before each presidential judge nominee to a federal court is confirmed, the Senate Judiciary Committee holds a confirmation hearing. Prior to that hearing, the candidate must submit written answers to a lengthy questionnaire about his or her personal, financial and legal background.

Judge nominee Curiel answered his confirmation questions on Mar. 28, 2012.

DECEPTION—Curiel omitted disclosure of 13 major speeches and writings on drug trafficking over 20 years

We will jump directly to what we consider the most glaring problem with Curiel’s Senate Judiciary disclosure.

While Judge Curiel was able to provide transcripts and recordings of innocuous speeches to his charter schools, endorsements and family court trainings, his disclosure was remarkably devoid of such information for any significant event in his career involving Mexican border issues, drug trafficking and illegal immigration.

Specifically:

1. As case summary writer (1986) for the Daily Appellate Report of the Los Angeles Daily Journal, he was unable to provide even a single writing from the daily.
2. As lead attorney for the Presidential Organized Crime Drug Enforcement Task Force (OCDETF) from 1999 through 2002, he was unable to provide a single report or memorandum. He claimed that the office did not maintain such records.
3. As guest speaker (2011) at the La Raza (translated: “The Race”) Lawyers of San Diego Membership Development Luncheon he was unable to provide any notes, transcripts or recordings.
4. Ironically, as a continuing legal education panel member (2010) on discovery and disclosure, he was unable to provide any information.
5. As keynote speaker (2010) for the Spanish Honors Society (Sociedad Honoraria Hispanica) he was unable to provide any information.
6. As a presenter at a bi-national UN (2009) US drugs and crime conference he was unable to provide any information about his comments on drug trafficking prosecutions and the manufacturing of illegal drugs.
7. As the honored guest (2007) at the La Raza Lawyers Association of San Diego, he was unable to provide any information about his speech.
8. As international coordinator and teacher (2005) at the U.S. Attorney’s Office in Los Angeles on mutual legal assistance and provisional arrests, he was unable to provide any information from his writings and teachings.
9. As a trainer (2000) for Colombian prosecutors and law enforcement officers in Bogota, Colombia on money laundering, he was unable to provide any information from his trainings.
10. As a presenter (1999) at an international seminar for Mexican federal judges in Veracruz, Mexico, he was unable to provide any information from his trainings.
11. As a trainer in professional responsibility issues (1999) as Professional Responsibility Officer for the U.S. Attorney’s Office, he provided no information about his writings or trainings.
12. As an instructor (1999) to Costa Rican magistrates and law enforcement officers on available means to investigate and prosecute organized criminal organizations, he provided no information about his writings or trainings.
13. As an instructor (1991-2000—nine years) in “up to four” bi-national conferences of prosecutors from Mexico and the US on investigating and prosecuting international drug traffickers organized by the Department of Justice Executive Office and Office of International Affairs, he was unable to provide any information from his writing and training.

Withholding required information is inexcusable

This pattern within the Obama Administration to withhold, suppress, stonewall, lie, fabricate, spin, and obfuscate has been elevated to a new anti-ethical art form. For example, Barack Obama's college transcripts are still sealed. Add this to a laundry list of documents withheld about IRS targeting, Benghazi, Fast & Furious, AP snooping, Zuckerberg's 28 computer hard drives and Harvard emails, Obamacare and Hillary's private emails—all supressed illegally. However, a maddening fog has settled over officialdom that saps the righteous indignation we need from our law enforcement officials to seize the withheld information.

Judge Curiel: Sloppy Record Keeper or political Deceiver?

Sins of omission and commission often carry the same penalty in law

At the very least, the Judge Curiel omissions are either: (1) very sloppy record keeping, or (2) they were intentional.

Either way, the omissions prove that Judge Curiel is unprofessional and unfit to be a judge in the Trump University case, or perhaps in any other case for that matter.

A reasonable person will assume that these omissions were intentional. Obama’s nominee withheld all writings and information that would have described Curiel’s opinions on a range of Mexican-American issues at the heart of this 2016 presidential race.

Aside: Senate Judiciary Committee is asleep at the wheel

Why did the Senate allow Judge Curiel's glaring omissions? This signals a breakdown in the Senate confirmation process. The committee appears to be little more than an old boy rubber stamp.

Incorrect Citations

In reviewing Curiel’s disclosure of “interviews you have given to newspapers, magazines and other publications, or radio or television stations," several things stand out:

1. 49 of 49 citations of drug trafficking related. Clearly, drug prosecutions are Curiel’s expertise, not business law.
2. We were not able to source all 49 citations, but of the 10 we did read, at least two of those do not mention Curiel. Here are two of his cited references that don’t even mention him that we have found so far:
1. Anne-Marie O’Connor, Seduction of a Generation. Los Angeles Times, July 28, 2002.
2. Chris Kraul, The Collapse of Mexico’s ‘Invincible’ Drug Cartel, Los Angeles Times, Mar. 16, 2002.

Judge Curiel wears his ethnicity on his sleeve

Judge Curiel trades on his Hispanic roots, as does the U.S. Justice Department. Therefore, by his self-promotion, Judge Curiel puts his ethnicity in play in the public square. Donald Trump is therefore well within the bounds of public discourse to raise conflicts of interest issues about the judge’s Mexican heritage.

For example: Tim Weiner, New Web of Trust Topples a Mighty Mexican Cartel, New York Times, Apr. 26, 2002.

From The New York Times article:

According to participants on both sides, the Mexicans looked across the table at Mr. Chavez, Mr. Vega and Mr. Curiel, all born of Mexican parents, and the spark of recognition lit a fire.

''It couldn't but help,'' Mr. Curiel said. ''We were working without the disconnect of interpreters and barriers of culture. When it comes down to it, this involves the country of our parents.'' Mr. Vega, now in private practice, said the simple fact that the meetings were conducted in Spanish ''broke the ice.''

''It was confianza,'' he said, the Spanish word for trust.

Bias #1: Barack Obama-nominated judges appear to be:
1st political,
2nd self-enriching,
3rd cronyistic, and
4th oh yeah, lawful

On Nov. 10, 2011, Barack Obama nominated Gonzalo P. Curiel. This was the same day that conservative commentator Glenn Beck began exposing hedge fund financier George Soros and his plans for a “New World Order” on Fox.

Soros notoriously funds Obama, Clinton and various left-leaning PACs contributing tens of millions to Obama and Clinton political causes. While Glenn Beck is no Trump fan, the spectre of Curiel’s political bias against Trump as a conservative is obvious nonetheless. Curiously, a week later Obama nominated Evan J. Wallach to the Federal Circuit. Wallach was subsequently assigned to the Leader v. Facebook appeal and protected Obama’s go-to propaganda tool, Facebook, despite having no patent law experience and having substantial Facebook interests.

There are plenty of judges who could have been assigned to the Trump University case other than someone recently appointed by Barack Obama—one of Donald Trump’s chief political foes in the 2016 presidential election. Indeed, the Trump University case, which was filed on Apr. 30, 2010, was transferred three years later to Judge Curiel on Jan. 30, 2013, well after Trump had announced his presidential exploratory committee.

Bias #2: Judge Curiel & the Trump University Case—Like sending a school nurse to perform brain surgery

Judge Curiel is a 23-year criminal drug trafficking prosecutor. The 9th Circuit Court of Appeals docket contains 68 unique cases between 1990 and 2012 where Curiel was often the sole U.S. Attorney on the case. All 68 cases are criminal drug trafficking cases. He received his commission to be a federal judge on Oct. 01, 2012. Trump University was his second case. Imagine that.

Usually judges are assigned to cases in which they have legal expertise. This is pure common sense. They also are required by law to check for conflicts of interest. But, Judge Curiel has very little business law experience. Therefore, assigning Curiel to the Trump University case is a little like sending a school nurse to perform brain surgery (no disrespect to school nurses). Such political assignments have occurred regularly during the Obama reign and are a travesty of due process and fair play.

For example, on a summary judgment motion, Judge Curiel has no experience as a judge with which to assess motivational real estate sales and investing training, much less a yoga student’s naive assessments of its value. Judge Curiel understands drug dealers, not sophisticated real estate investing case law.

Any motivational educator knows that most people who sign up for sales training never implement their training for a variety of reasons. It is classic for the student to blame the teacher for the lack of follow through to protect the student's ego and excuse the student's lack of follow through.

Sales 101: Be positive and sell to your strengths without misleading the prospective customer

It is highly unlikely that Judge Curiel has ever attended a motivational business seminar of the kinds provided by Trump University. How can he possibly then hold himself out as an impartial judge in this matter when he has zero understanding of the business context? Of course, he cannot.

The authors have not attended a Trump University program, but the average real estate program is always full of positivism. That is just the nature of real estate development and sales, and of selling in general. Salespeople magnify their strengths and minimize their weaknesses. That is their JOB. Anyone with business experience knows this. The authors are very familiar with such dynamics and find Judge Curiel's agenda to draw out the litigation for political purposes quite evident.

Only a judge savvy in the ways of business, investing and sales can understand these dynamics well enough to make fair decisions. Students in such situations often expect magic, miracles, quick fixes and instant results. The Trump University programs promised training in good processes, not individual results.

By comparison, business school MBA educators do not promise that every student or any student will make a million dollars by age thirty after getting their MBA. Instead, they present good processes that people who do make that kind of money use. It’s up to the student and his or her circumstances whether or not the million dollar income happens.

Bias #3: Judge Curiel’s numerous Hispanic Law Associations

Judge Curiel disclosed that he is or has been a member of the following groups:

1. Hispanic Advisory Committee of the Commission on Public Understanding about the Law (1993-1994)
2. Hispanic National Bar Association, Life-time Member
3. La Raza Lawyers of San Diego (SDLRLA - San Diego 's Latino/Latina Bar Association)
4. Latino Judges Association
5. National Hispanic Prosecutors Association

The literal translation of "La Raza" as “The Race” has been floated as its own form of Latino racism. However, we have it on good authority from a Spanish linguist that "La Raza" in this context should be translated "The People." While "The Race" makes for a juicier story, the facts are damning enough without this sensationalized interpretation.

In Summary

Fig. 2—Judge Gonzalo P. Curiel promised to judge impartially at his Senate confirmation hearing on Mar. 28, 2012. As his conduct in et al v. Trump University shows, he lied.

Photo: Unknown.

Judges swear a solemn oath to avoid impropriety and the appearance of impropriety in all their activities (Canon 2). Judges are supposed to self-police their conflicts. In other words, if they discover they have a conflict, they are duty-bound to recuse themselves, without being asked.

However, almost no judge does this. To the contrary, litigants must challenge the judge’s conflict, then chip away at his or her intransigence with an ice pick.

Judges and sycophant lawyers argue that more frequent recusals would overwhelm the courts with frivolous requests for impartiality.

Really? We heartily disagree. The U.S. Constitution promises a fair and impartial judiciary. When conflicts of interest are pointed out, recusal should occur without fuss. The fuss comes when judges become obstinate (which is the norm today) as if they are oligarchs who work for themselves, and not the citizens.

Fox News' commentator-lawyer Megyn Kelly expressed the view that more frequent judge recusals would harm the judicial system. Bill O'Reilly disagreed. While hedging his bets in labeling Curiel a "fair judge," O'Reilly nonetheless called on Curiel to recuse himself. CNN, MSNBC, CBS, NPR and ABC commentators are coyly silent on this topic.

As this post has proven, Curiel is anything but fair and honest. As long as the mainstream media remain silent on judicial corruption, the light of justice will not be shined into this dark corner of the American Republic, and establishment weasels will rule.

Clearly, judges with hidden financial and political agendas who are working to fix a case for their friends will become obstinate when asked to recuse.

Like the sycophant judges in every Banana Republic, it is evident that Judge Curiel is carrying out political orders to extend the Trump University case with fabricated legal justifications.

Judge Curiel's confirmation omissions/lies, combined with his Mexican heritage, is clear evidence of bias or an appearance of bias

Judge Curiel certified that his Senate confirmation disclosure was truthful. His failure to disclose at least 13 sets of material documents means his certification was a lie. Had Judge Curiel not withheld ALL of his substantive writings, opinions and teachings in his Senate confirmation hearing, perhaps we could conclude he is able to be objective, despite his Mexican heritage.

However, since he withheld ALL of his information in 13 substantial matters, and since border and immigration issues with America's southern board figure so prominently in this 2016 presidential campaign, a reasonable person can only conclude that Judge Curiel has a political agenda that supports his sponsor: Barack Obama and his Washington Cartel surrogate Hillary Clinton.

The withholding of confirmation information aside, Judge Curiel's extensive activity in various Hispanic law associations shows he has a dog in this hunt.

Suspiciously, he allowed the lady who brought the original Trump University complaint to withdraw in such a way that her involvement is protected while the case proceeds with people who joined the original complaint.

Logic says if the original complaintant is dismissed, so should the case.

Something smells.

Trump rightly called Judge Curiel out for more scrutiny about his potential bias against Trump’s Mexican issues of obvious interest to Curiel.

Thanks to the whitewashed Senate Confirmation Hearing, we have little idea what Curiel’s real opinions are about Mexican border issues and illegal immigration since he withheld at least 13 sets of documents that would have otherwise informed the American public.

Demand that Judge Gonzalo P. Curiel produce the 13 sets of evidence of his speeches and writings that he withheld from his Senate Confirmation Hearing.

Allowing the original Trump University complaintant to leave the case, yet allowing the case to continue is odd.

Just like Hillary Clinton must produce the transcripts of her Goldman Sachs speeches, Judge Curiel must produce the 13 sets of documents that he withheld from his Senate Confirmation.

Truth and justice demand that Judge Curiel come clean, or be impeached.

* * *

Resources:

1. Full Senate Judiciary Hearings incl. Curiel (919 pgs., 44.7 MB):
   S. Hrg. 112-72 pt2. (Mar. 28, 2012). FULL RECORD: Gonzalo P. Curiel Senate Confirmation Hearing. Serial No. J-112-4 Part 7, U.S. Senate Judiciary Committee. GPO.
2. Gonzalo P. Curiel Senate Judiciary Hearing Segment (64 pgs., 2.3 MB):
   S. Hrg. 112-72 pt2. (Mar. 28, 2012). CURIEL SEGMENT: Gonzalo P. Curiel Senate Confirmation Hearing. Serial No. J-112-4 Part 7, U.S. Senate Judiciary Committee. GPO.
   
3. Gonzalo P. Curiel. (1990-2012). 9th Circuit Court of Appeals Docket Appearances representing the U.S. Attorney. Accessed Jun. 07, 2016.
4. AFI. (Jun. 08, 2016). FINDING: Trump University judge misled Senate at confirmation. Americans for Innovation.
   

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