DONALD TRUMP’S OPINIONS ABOUT ANY JUDGE MUST BE DEEMED PROTECTED SPEECH

Critics of Donald Trump have complained that he has veered too far from the path of decent and acceptable political discourse almost from the moment of his first campaign comments. The most recent freak-out stems from Trump’s comments concerning Judge Gonzalo Curiel who is presiding over the civil fraud case wherein the plaintiffs have alleged that they were deceived by Trump University. Trump called the federal judge, an Obama appointee, “very hostile” and a “hater of Donald Trump,” and said he “should be ashamed of himself.  I think it’s a disgrace that he’s doing this.”, the New York Times reports.

Shortly after Trump made these comments at a political rally in San Diego, the judge ordered the unsealing of around 1,000 pages of Trump University’s internal documents per a routine request made by the Washington Post, an arch enemy of Trump (The consensus of civil law experts is that such requests, and the court’s Order, are routine and proper). The rub is, the paper has pledged to keep 24 journalists working on Trump stories, all presumed to be negative towards the Presidential candidate. To Trump loyalists, this probably doesn’t pass the smell test. The Times, rushing to the rescue of the judge wrote, “In a masterpiece of understatement, Judge Curiel, who is prevented by ethical rules from responding directly to comments like these, noted in his order that Mr. Trump “has placed the integrity of these court proceedings at issue.” 

We think judges are fair game for criticism by politicians– especially when you consider that federal judges are appointed for life and only answer to higher appellate courts where their judicial rulings are concerned. In reality, however, the Federal Circuit Courts are the last resort for litigants given the limited numer of cases the Supreme Court accepts for review. In essence, they are among the most powerful, and unchecked, government officers in the country. It is true that Congress and the Senate can impeach them,  but such events are rare. The Times position on this issue is odd: The press should be ever vigilant where the activities of federal judges are concerned precisely because of their lofty and powerful positions. We believe this to be true, even here, where the judge was apparently acting appropriately on a routine request.

Of course, Trump comments about the court at his possible peril when he is a party to the litigation, but absent any gag orders, he must be entitled to do so. The judge should play by different rules and not publicly comment or write at all about protected political occurrences outside the courtroom. It should also be noted that Trump’s remarks occurred during his political campaign– political speech consisting of opinions, should require almost absolute protection. It seems to us that the New York Times has “flipped script” on many principles once dear to them out of their distaste for Trump. This misguided philosophy continues to set their pirate ship on a dangerous course.

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