Presidential comments on pending cases in court can have an improper influence on the tribunal. This is most acute in military courts where the commander-in-chief can be seen as placing his thumb on the scales of justice. See, Military Judge: Obama’s Comments On Military Sex Abuse An “Undue Command Influence”; Trump’s comments about Bergdahl ‘disturbing,’ judge says.
This improper influence on the tribunal can also extend to cases pending in the federal courts. Presidential comments on pending Supreme Court decisions.
Which brings me to this incident from the 2016 election. Trump Attacks a ‘Mexican’ U.S. Federal Judge:
The presumptive Republican nominee for president devoted almost a quarter of his hour-long rally in San Diego on Friday night to criticizing Judge Gonzalo Curiel, who is currently presiding over a class-action lawsuit against the real-estate businessman for his role in Trump University.
During his disjointed remarks at the rally, Trump invoked Curiel’s ethnicity, said the judge should recuse himself from the trial, called for an investigation into him, described him as “negative” and a “hater,” insisted on a summary dismissal of the case, complained about being “railroaded by a legal system,” and asserted he would win the trial.
* * *
Mr. Trump also told the audience, which had previously chanted the Republican standard-bearer’s signature “build that wall” mantra in reference to Mr. Trump’s proposed wall along the Mexican border, that Judge Curiel is “Mexican.”
Judge Curiel’s parents were immigrants from Mexico, but he was born in Indiana. He is a U.S. citizen. Trump’s comments led to accusations of racism, including from Republicans.
It just so happened that Judge Curiel was also assigned Trump’s “big beautiful wall” on the Mexico-U.S. border case. Judge Dissed By Trump As ‘Mexican’ Presiding Over Border Wall Case. Trump’s attacks on Judge Curiel were repeated and sustained.
Trump said Judge Curiel wouldn’t give him a fair shake on anything specifically because of a perceived animus based on the wall and his Mexican heritage.
Well, on Tuesday Judge Curiel ruled in favor of “Dear Leader” and his “big beautiful wall” on the Mexico-U.S. border after Trump’s years-long effort to disparage, intimidate and browbeat this Judge. Judge whom Trump called biased for Mexican heritage sides with president in border wall case:
A federal judge whom President Trump suggested would be biased against him because of the judge’s “Mexican” heritage sided with the administration Tuesday in a lawsuit over whether officials could move forward with expedited plans to build a border wall with Mexico.
In a 101-page opinion , U.S. District Judge Gonzalo P. Curiel wrote that the government had the authority to waive environmental laws and proceed with its border wall.
Curiel wrote that he was “aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers,” but that he could “not consider whether underlying decisions to construct the border barriers are politically wise or prudent.”
The decision granting summary judgment is an unequivocal win for the Department of Homeland Security and the Justice Department, although those who had sued to slow down construction said they would look to a higher court to intervene.
“We intend to appeal this disappointing ruling, which would allow Trump to shrug off crucial environmental laws that protect people and wildlife,” said Brian Segee, a senior attorney at the Center for Biological Diversity, one of the groups suing. “The Trump administration has completely overreached its authority. . . . They’re giving unprecedented, sweeping power to an unelected agency chief to ignore dozens of laws.”
* * *
Advocacy groups and the state of California sued the administration over its plans, arguing that DHS was improperly relying on a years-old immigration law so it could ignore obligations under environmental laws and put Trump’s vision into place quickly. The government argued that the Homeland Security secretary had wide latitude to waive other requirements to improve border security.
California Attorney General Xavier Becerra said, “We remain unwavering in our belief that the Trump Administration is ignoring laws it doesn’t like in order to resuscitate a campaign talking point. . . . We will evaluate all of our options and are prepared to do what is necessary to protect our people, our values, and our economy from federal overreach. A medieval wall along the U.S.-Mexico border simply does not belong in the 21st century.”
The case had threatened to delay implementation of one of Trump’s signature campaign promises. The president is seeking $25 billion for enhanced border security, including hundreds of miles of new barrier construction. His proposal would extend the physical structure by about 300 miles and replace another 400 miles with more formidable barriers. Right now, about one-third of the 2,000-mile U.S.-Mexican border has some kind of wall or fencing.
One of the grounds for appeal should be President Trump’s attempts to improperly influence the tribunal through his repeated and sustained effort to disparage, intimidate and browbeat Judge Curiel into giving him a favorable decision. There is no factual dispute that this occurred.
I have no idea whether Judge Curiel was actually improperly influenced by Trump’s abuse of him, but that is really beside the point. It is the perception of improper influence on the federal courts, that the tribunal is not an impartial arbiter of facts and law, i.e., blind justice, that the courts must jealously guard against. For if the courts can be improperly influenced in such a way, we are no longer a nation of laws.