Constitutional “scholars” are neither hard to define nor find– they abound in local pubs, barbershops, bazaars, county fairs, colleges and wherever people gather: Each of these people has strong opinions about the meaning of the Constitution. Some are legally educated; others invoke common sense and still others just think they are right. Donald Trump falls into the latter category. He makes “bold claims of presidential power” and “shows contempt for the First Amendment, the separation of powers and the rule of law”, the New York Times says. Some legally educated scholars critical of Trump ground their beliefs on Trump’s stated positions regarding banning Muslims from the country, building a wall to keep Mexicans out, making libel laws against the press easier to pursue and more recently, his attack on a federal judge who is presiding over the alleged fraud suit against Trump University.
Starting with Trump’s criticism of the judge, as a threshold matter, it ‘s hard to intelligently comment on this issue without knowing the details of the judicial proceedings. But even if the judge has made rulings unfavorable towards the defendant university, or if there are actual instances of bias, there are remedies under the law to correct such actions. Naturally, the judge can be appealed. But many in the press take issue with Trump’s personal attacks on the judge—especially his comments on the judge’s race. Again, without being privy to the facts of the case and rulings of the court, it is impossible to access whether there is any plausibility to his critic’s claim: Certainly, the race of a judge, in general, would not normally be relevant. But again, there are procedures under the rules of court to address such matters: For example, Trump could ask his lawyers to bring a motion to have the judge recuse himself from the case and make a record for appellate purposes. Although Trump is not an attorney, bound by rules of ethics in the case, we think the public arena is not the place to make such claims although his right to do so should not be infringed upon.
Concerning Trump’s political rhetoric regarding an expansive use of executive powers to impinge on the freedoms of the first amendment, we think his critics are underestimating the power of the courts to correct any abuses in this realm. Moreover, Trump is running a campaign to attract initially outliers and people who mistrust many established institutions, including the media. Extremism is often at the core of his marketing center. If elected President, his advisers, and lawyers would surely tame his game– if not, as noted earlier, the courts, just as they have in previous administrations, will. A robust and fortitudinous press is crucial to our country and so is a person’s right to express his or her opinions. The balance struck between the public’s right to know about things, and a person’s right to privacy and to be free from libel and defamation, can be influenced by legislation subject to constitutional analysis.
Trump clearly has the right to advocate for laws that strengthen the rights of individuals who claim they have been defamed. Just because he holds these opinions does not make him a foe of the first amendment. Indeed, those that attack Trump’s positions on libel, freedom of association and his criticism of public figures, may be disingenuously advocating against his first amendment rights.