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George Shepherd: Judge's ruling in Trump University case may have played key role in clearing way for Trump's election

Outcome might have been different if campaign's final weeks were focused on Trump, not Clinton's emails

Editor’s Note: George Shepherd is a professor at the Emory University School of Law. The views expressed are his own.

CNN  — 

During the presidential campaign, Donald Trump relentlessly attacked Gonzalo Curiel, the judge in a lawsuit charging that Trump University defrauded thousands of consumers. Trump complained that because Judge Curiel is “Mexican,” he “is giving us very unfair rulings.”

The first claim is indisputably false: Judge Curiel is a US citizen born in Indiana. But the second claim was also false. Indeed, one of Judge Curiel’s rulings was probably crucial in helping Trump become president.

Months before Trump became the Republican Party’s presumptive presidential nominee, Judge Curiel signaled that he would schedule the trial in the case during the summer or early fall of this year – right in the midst of the presidential campaign. Among his reasons was the fact that the lawsuit had been filed in 2010, and after six years of pretrial litigation and discovery, the plaintiffs – many of whom are elderly – were entitled to have their claims tried in court.

George Shepherd

In mid-March, Trump’s lawyers argued against a summer or fall trial date, in part because “[p]laintiffs’ proposal also would require the Court to conduct a trial … while Mr. Trump is running for President. Not only would such a trial impose an extreme hardship on defendants, it would also invite a ‘media circus.’”

By early May, Trump had become the presumptive presidential nominee of his party.

Judge Curiel would have been on strong legal ground if he had required the fraud trial to proceed during the campaign. Almost 20 years ago, the Supreme Court unanimously rejected President Bill Clinton’s request to exempt him from testifying in the sexual harassment lawsuit brought by Paula Jones until after his term as president was completed.

Although the court accepted the argument that the president “occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties,” it nonetheless held that the Constitution does not provide a sitting president with even temporary immunity from being sued for his “unofficial acts.”

Because Trump would not have a constitutional argument for postponing a trial until after the election, his lawyers instead turned to another issue raised in the Clinton v. Jones opinion. The Supreme Court recognized that a sitting president might face significant burdens if forced to testify in civil litigation, and that these “are appropriate matters for the District Court to evaluate in its management of the case.”

Nonetheless, the Supreme Court held that the district court had abused its discretion by delaying the trial until after Clinton’s presidency. President Clinton subsequently testified both at a civil deposition and before a federal grand jury during his second term in office. His testimony led the House of Representatives to impeach him.

Because the Supreme Court has held, in Clinton v. Jones, that a sitting chief executive and commander in chief can be sued and is not too busy to testify, Judge Curiel could have appropriately ruled that someone merely seeking that office can be expected to testify in a civil suit brought against him.

Nonetheless, Judge Curiel ruled in Trump’s favor, and postponed the trial until November 28, after the election.

This ruling may have played a crucial role in clearing the way for Trump’s election. If the trial had occurred as originally scheduled, Trump would have been forced to defend against charges that he defrauded thousands of people during the height of the presidential campaign.

The plaintiff’s trial evidence would almost certainly have been politically damaging. The plaintiff’s evidence includes marketing materials containing Trump’s promises to prospective students, together with other evidence including Trump’s own deposition testimony, that appears to belie those promises.

For example, in a variety of documents, Trump promised prospective students that he would hand pick their instructors and mentors. Likewise, in a promotional video, Trump declared that “We’re going to have professors and adjunct professors that are absolutely terrific. Terrific people. Terrific brains. Successful. The best. We are going to have the best of the best. And…these are all people that are handpicked by me.”

Despite promising that he would handpick the instructors, Trump admitted during his deposition that he did not select either the instructors or mentors. The deposition suggests that Trump knew nothing of the instructors’ names, faces or qualifications.

Moreover, because many class members were over the age of 65 when they purchased Trump University products and services, plaintiffs will try to prove that Trump violated a California statute prohibiting “Financial Elder Abuse.” This type of “elder abuse” occurs, for example, when a person obtained the “real or personal property of an elder or dependent adult…with intent to defraud.”

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    The election’s close outcome might have been different if the campaign’s final weeks focused not on Hillary Clinton’s emails, but on testimony by appealing elderly plaintiffs accusing Trump of defrauding them of their life savings. News reports would have focused not on Trump speaking before thousands of adoring supporters at his rallies, but instead on Trump sweating under humiliating cross-examination.

    In the next couple of weeks, Trump may finally have to face in court the people who claim that Trump University defrauded them, although his lawyers are trying to convince Judge Curiel to postpone the trial yet again.

    But, as much as anyone else, Judge Curiel, the “Mexican” judge whom Trump attacked, is arguably responsible for Trump being President Trump – not just Donald Trump, fraud defendant.