Could Trump get judge off the case?

Story highlights

  • Donald Trump complains about judge handling the Trump University case but hasn't filed motion to get him to step aside
  • Danny Cevallos says if Trump sought recusal of the judge, he would have to show a stronger reason than judge's ethnicity

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. He has also been a member of the Hispanic Bar Association of Pennsylvania.
Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)In the past few days, Donald Trump has doubled down on his position that the federal judge assigned to one of the Trump University lawsuits is biased because of his Mexican heritage. Trump continues to believe the judge should recuse himself from the case, offering as support such statements as "he's a Mexican. We're building a wall between here and Mexico."

Danny Cevallos
If the Trump defendants in this case thought the judge was biased from the beginning, why didn't they file a recusal motion at the beginning of this case? Instead, the defendants in this case appear to have raised no issues about a prejudiced judge until after they were dissatisfied with something he'd done.
    Before we even examine the law, if a defendant only seeks to recuse a judge after some adverse rulings, that doesn't sound like there's really a deep-rooted personal animus. It sounds like the litigant doesn't like the ruling, and may be trying to shop around for replacement judges. House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell and Hillary Clinton have already joined those who have condemned the Trump defendants' recusal demands as improper and biased.
    Many are writing off this sudden demand for disqualification as "sore loser" tactics.
    Not everyone, though. Alberto Gonzales, who led the Justice Department under President George W. Bush from 2005 to 2007, and was the first Latino attorney general in U.S. history, believes Donald Trump should be able to challenge in court the impartiality of a Hispanic judge who is presiding over a Trump University lawsuit, although in a Washington Post op-ed, he also criticized Trump's public bashing of the judge because "it demeans the integrity of the judicial office and thus potentially undermines the independence of the judiciary."
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    In fairness, anyone, including a judge, has biases. We're all biased, and like an iceberg, our peers probably see only the tip of it. Most of our biases lie hidden under the surface. They're either intentionally concealed, or, more likely, we're not even consciously aware of them. As much as Trump's claims sound outrageous, we have to concede that they are at least possible; a judge is ultimately human, and humans have biases.
    But this discussion is different: Can the Trump defendants force the recusal of this federal judge based on bias, solely because he's Hispanic? Legally, the answer is: probably not, not for that reason alone. But that doesn't mean the defendants can't get this judge recused, either. It has happened before under somewhat similar circumstances.

    What the laws say

    Two laws govern the recusal of district judges: 28 U.S.C. § 144 and 28 U.S.C. § 455(a)-(b). For the most part, the recusal standards under both are identical, though the procedural requirements differ somewhat.
    Because the Trump defendants are only now raising this recusal issue for the first time, legally, it's too late. Recusal motions under either statute must be filed in a "timely" manner. While that's open to some interpretation, "timely" is not "well into the actual litigation."
    Of course, things come up unexpectedly. If, for example, Jude Gonzalo Curiel started tweeting #NeverTrump last night, or showed up in late May to heckle at a Trump event, well, that is a "new" issue that might warrant a demand to disqualify His Honor. But federal appellate courts have specifically held that "where the facts are known [in advance of the case], waiting to file ... a motion until the court has ruled against a party is untimely."
    Additionally, Section 144 requires the defendant to file an affidavit specifically identifying tangible bias or prejudice, at least 10 days before the beginning of the court term. If the defendants didn't timely submit this motion and the affidavit of specific facts, Section 144 cannot apply.
    So, before we even reach the merits of Trump's demand for recusal, a court would be justified in dismissing a recusal demand based on the legal principle of "you snooze, you lose."
    Supposing that the court decided to hear the case on the merits — lateness notwithstanding, the two laws ultimately have similar standards: Section 144 applies when a party to a proceeding believes that the district judge "has a personal bias or prejudice ... against him or in favor of any adverse party."
    Section 455 is broader and requires a judge to disqualify himself when he has an actual personal bias or prejudice concerning a party. The defendants would have to show compelling evidence of "a personal animus or malice ... of a kind that a fair-minded person could not entirely set aside ..."
    There's also a general catchall provision, requiring recusal simply if the judge's "impartiality might reasonably be questioned." That really isn't all that helpful. Laws are good at giving us standards and guidelines, but it's really the courts that help us apply them to specific situations.

    Sheriff Joe Arpaio's case

    It turns out that the issue of bias and a judge's Latino identity has come up before. One case in particular involved controversial Arizona Sheriff Joe Arpaio, who was a defendant in a suit alleging racial profiling and unlawful detention of persons of Hispanic appearance. The defendants sought to disqualify the judge, the first Latina federal judge in that district in Arizona.
    Arpaio moved for recusal of this Latina judge because her twin sister was the head of the National Council of La Raza, the largest national Latino civil rights organization in the United States. To Judge Mary Murguia, however, the motion was a thinly veiled claim that the judge's alleged bias somehow flowed from her racial heritage.
    According to Murguia, a race-based argument for recusal was: "unwarranted and baseless. Beyond that, the idea that an Hispanic judge should never preside over a controversial case concerning alleged acts of racial profiling purportedly committed against Hispanics is repugnant to the notion that all parties are equal before the law, regardless of race."
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    Yet, because of the relationship with her sister, and her sister's relationship to an organization, and that organization's relationship to the case, this judge ultimately did recuse herself. In summary, she rejected any inherent bias based on her ethnicity, and denied any actual personal bias. But she correctly pointed out that the law also has an objective standard: whether a reasonable person who knew all the facts would question her impartiality.
    That's a different test, and based on all her familial relationships and degrees of separation, she had to admit: It was a close call. And, the federal appeals court that would hear both this Arizona case and also Trump's case has instructed that when a case is close, the balance should tip in favor of recusal.
    "No court should tolerate even the slightest chance that its continued participation in a high profile lawsuit could taint the public's perception of the fairness of the outcome."
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    Motion granted in Arizona. Judge recused, though not for her race. For Sheriff Joe Arpaio, a win's a win, right?
    This Arizona case really still stands for the proposition that some supposed innate Hispanic bias is not a ground for recusal. It stands for the proposition that only concrete facts tending to show bias will justify disqualifying a judge. Along with other cases, it makes clear that the recusal statute "is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice."
    But, if you're one of the Trump defendants, it's a case where a Hispanic judge was disqualified because of her personal relationship to persons supporting Hispanic causes. In fact, former Attorney General Gonzales pointed out that, like the judge in the Arizona case, Curiel is also a member of the La Raza Lawyers Association's San Diego chapter, though the organization is separate from an advocacy group that has opposed Trump, the National Council of La Raza.
    When Gonzales opined that the demand to disqualify this judge could be legitimate, perhaps this is what he was talking about. To Trump, a case like this, along with Gonzales' affirmation, stands for what he's been saying over the past few days. To the defendants, it would bolster their hope to win should they move for recusal.
    To federal judges, if Trump were to be successful in a recusal bid, there's a subtle message of discrimination: If you want to perform your appointed duties, have no hobbies, traits, interests, ethnicity, or race — anything about your personal life might be used against you.