RENEE MONTAGNE, HOST:
Donald Trump has been embroiled for a week now in a conflict with a judge who is presiding over the civil suit involving Trump University. He has been accusing this judge of bias in the case because to quote Trump, "he's a Mexican." In fact, the judge is American, born in Indiana of Mexican descent. Yesterday on CBS's "Face the Nation," Trump reiterated why he thinks that it is an issue.
(SOUNDBITE OF TV SHOW, "FACE THE NATION")
DONALD TRUMP: He's just a member of a club or society very strongly pro-Mexican, which is all fine. But I say he's got bias. I want to build a wall.
MONTAGNE: NPR's Nina Totenberg joined us to put this into some legal perspective. Good morning, Nina.
NINA TOTENBERG, BYLINE: Good morning.
MONTAGNE: Tell us a little bit more about this case and this judge. Bring us up-to-date.
TOTENBERG: Well, the case was brought - actually, there are two cases, class action cases - brought against Trump and Trump University by students who claim that they were defrauded of thousands and thousands of dollars in tuition and not provided with the services that they were promised.
Trump has variously called the judge in the case unfair because he's Mexican, unfair because he's of Mexican heritage and thus has an inherent conflict. The judge, Gonzalo Curiel, was born in Indiana the son of Mexican-American immigrants. This has come up primarily because the judge unsealed documents in the case that prove very embarrassing to the Trump campaign.
MONTAGNE: Now, Donald Trump has been criticized by the left and the right and even House Speaker Paul Ryan who, days ago, only endorsed Donald Trump. He has also objected to Trump's comments. Why are these people so alarmed by what's happening here?
TOTENBERG: Well, first of all, if there is actual evidence in this case that the judge is biased against Trump outside of rulings that Trump just doesn't like - that is, rulings against Trump - then his lawyers, Trump's lawyers, can go to court and ask the judge to recuse himself. But they haven't done that.
And the reason the lawyers haven't done that is that if they did do that and they didn't have actual bias evidence, then they can be disciplined. The lawyers can be disciplined. Donald Trump can't be disciplined. He has a First Amendment right to say anything he wants.
But the courts have consistently said that lawyers who mess with the system by complaining about a judge, that that does enormous damage to the system and that they can be disciplined.
MONTAGNE: Give us a simple example, though, of the law here. That is to say, Donald Trump is saying that the judge is of Mexican heritage, that his parents were immigrants and therefore, just because of that, that's indication of bias. But what does the law say about the whole question of somebody's heritage or their religion or - what does it say about that?
TOTENBERG: Look, the American democracy is based on the notion that, as we say, no man or woman is above the law, not even the president, and that each and every one of us can be held to account for breaking the law. The question here is if this judge, without evidence, can be knocked off this case or pilloried in the public mind to the point that he might recuse himself or think that he's actually now in a place where he can't judge the case, it tampers with the whole legal system.
So think, for example, about the Unites States Supreme Court. There are five Catholic justices. Does that mean that none of them is capable of being fair in a case that touches on the Catholic Church? We presume, in our system, that judges duly appointed by the president of the United States to the federal bench for life - so that they can be independent - we presume that they will be fair.
And in order to knock somebody out of a case, you have to have evidence that they aren't fair, not just, oh, dear, he ruled against me.
MONTAGNE: Well, then, Nina, where do you see this headed?
TOTENBERG: My guess is he'll stay on this case. Trump doubled down yesterday saying an answer to a question that he would possibly do the same thing with a Muslim judge, too. So you could end up with the only people under this theory who could be qualified to be judges would be, I suppose, white, male, maybe Protestants - and maybe not even Protestants.
Maybe people who don't have a religious faith. The system, to some degree, is based on a certain degree of trust and built-in protection for judges from political and other influences with life tenure. That's what the Constitution says.
MONTAGNE: NPR legal affairs correspondent Nina Totenberg, thanks very much.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.
