The inexplicable inaction of Trump’s lawyers

(Marc van der Chijs via Flickr)

As an attorney, I wonder what I would do if I had a client like Donald Trump. His latest outrage was a racist attack on the Mexican heritage of Gonzalo Curiel, the federal district court judge presiding over the Trump University fraud case. What does a lawyer do in a situation like that? Would my personal disgust with him permit me to resign from the case? Or would I, as an attorney, be required to remain silent even in the face of my client’s disgusting and seemingly uncontrollable conduct toward the judge? Lawyers don’t always agree with — or even like — their clients. So even if I were repulsed by Trump’s bigotry against the judge would I have to hang on as his lawyer to protect him as a client?

Fortunately — and not surprisingly — the American Bar Association Model Rules of Professional Conduct make it crystal clear that a lawyer can — indeed should — ask the court for permission to cut a client like Trump loose. The rules clearly provide that a lawyer must seek to withdraw from representation when a client insists on doing something the lawyer finds “repugnant or with which the lawyer has a fundamental disagreement.”

Donald Trump’s behavior would seem to be the textbook example.

Given the outrageousness of Trump’s hateful rhetoric I would normally assume that his lawyers — who hail from the distinguished law firm of O’Melveny & Myers LLP — are uncomfortably saddled with an out of control, bigoted client whose allegations against Judge Curiel they find repugnant and with whom they fundamentally disagree; that they, like all decent minded people, believe that Trump’s vile attacks against Judge Curial are despicable; that they are, at this point, professionally mortified by Trump and do not want any part of the vitriol he’s spewing against Judge Curiel; and that they can’t stop Trump from continuing to make despicable charges against the judge who presides over the Trump University case.

Normally, under these hideous circumstances, I would expect Trump’s lawyers to file a motion to withdraw from the case based on the Rules of Professional Conduct.

But, unfortunately, it’s impossible to make such assumptions about Trump’s lawyers. To the contrary, it appears they may very well agree with their client’s repulsive antics. That’s because while the mainstream media’s intense focus on Trump’s racist denigration of Judge Curiel is new, his ugly, very public charge that Curiel’s Mexican heritage compromises his impartiality is not. Trump’s attacks against the judge started months ago at rally in Arkansas. There the GOP front runner first made the outrageous claim that Curiel’s ethnicity was the reason the judge refused to dismiss the Trump University lawsuit. According to a February 28 Associated Press report:

Trump claimed the case should have been thrown out years ago, ‘but because it was me and because there’s a hostility toward me by the judge — tremendous hostility — beyond belief.’ He then noted, as an aside: ‘I believe he happens to be Spanish, which is fine. He’s Hispanic — which is fine.’

Nor is there any question Trump will continue to double, even triple down on his brazenly racist tirades against Curiel, a former federal prosecutor who was once targeted for assassination by Mexican drug cartels. In a stunning interview with CNN’s Jake Tapper the presumptive GOP nominee plainly admitted that he believes Judge Curiel — who was born in East Chicago, Indiana — is incapable of fairness in the Trump University litigation because Curiel’s parents came from Mexico.

Now, this judge is of Mexican heritage,

Trump said to Tapper.

I’m building a wall, OK? I’m building a wall. I am going to do very well with the Hispanics, the Mexicans.

Over the weekend Trump made clear he’s not limiting his prejudices to American judges of Mexican descent. In an interview that aired Sunday on CBS’s “Face the Nation” Trump told John Dickerson he’d have similar concerns about a Muslim judge. Even former House Speaker Newt Gingrich, a supporter of Trump, agrees that “His description of the judge in terms of his parentage is completely unacceptable.”

Nor can Trump’s racist campaign against Judge Curiel be justified by any ethical legal strategy that I know of. As the Seventh Circuit Appeals Court noted in MacDraw Inc. v. Cit Group Equipment Financing,

Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s impartiality

If Trump’s lawyers are similarly repulsed by his allegations against Judge Curiel their failure to withdraw from the case is incomprehensible. On the other hand, if, for some unfathomable reason, Trump’s lawyers agree with their client’s despicable claim, why have they not asked Judge Curiel to recuse himself from the Trump University case? The law plainly requires judges to disqualify themselves if they cannot be impartial. But such a motion undoubtedly poses an insurmountable and professionally dangerous challenge for Trump’s lawyers. Again, the Seventh Circuit Appeals Court in MacDraw:

A suggestion that a judge cannot administer the law fairly because of the judge’s racial and ethnic heritage is extremely serious and should not be made without a factual foundation going well beyond the judge’s membership in a particular racial or ethnic group. Such an accusation is a charge that the judge is racially or ethnically biased and is violating the judge’s oath of office.

If they are indeed at odds with their client’s racist attacks against Judge Curiel, Trump’s lawyers do not have the luxury of sitting idly by. They have a legal, ethical and moral duty to act.