Lawyers in Trump University case seek maximum political pain
Legal fight is escalating over potential release of real estate mogul's deposition videos.
By
JOSH GERSTEIN and
MAGGIE SEVERNS
06/10/16 03:24 PM EDT
The plaintiffs' lawyers in two class-action lawsuits against Donald Trump over Trump University are trying to make four dozen video clips public. | M. Scott Mahaskey/POLITICO
A battle is escalating over the potential release of videos of Donald Trump dodging and weaving during depositions in the Trump University case, footage that could make its way into attack ads aimed at the Republican White House hopeful.
The plaintiffs’ attorneys in two class-action lawsuits are pressuring U.S. District Court Judge Gonzalo Curiel — the target of Trump’s racially charged attacks — to take steps that could make public four dozen video clips of Trump being pressed on whether his real estate seminar business was a sprawling scam, as well as his thoughts on the 2016 political race.
It’s just one of a series of tactics that the attorneys are using to exploit Trump’s pursuit for the highest office in the United States as they seek to maximize the political pain for Trump — and the strategic gain for their clients.
Trump has denied accusations that Trump University students were ripped off, and he has painted the legal assault as part of a politically motivated campaign to damage his presidential ambitions. He has noted that Robbins Geller Rudman & Dowd, the major class-action law firm involved, has long ties to presumptive Democratic presidential nominee Hillary Clinton and her husband, former President Bill Clinton, paying them $675,000 for speeches in recent years. Attorneys at the firm have also been generous donors to the Clintons' campaigns.
However, legal experts say the plaintiffs' lawyers' approach in the long-running litigation seems less driven by political loyalties and more by opportunism — a chance to capitalize on Trump's predicament to try to force him into a financial settlement far more costly than would have been on the table before his improbable political ascent.
"They might have been willing to accept a settlement of 'X' dollars before, but Trump appeared unwilling to settle," said University of Chicago law professor David Zarfes. "Now, it would probably be '2X' or '3X' or '4X.' They have him in a very difficult, tenuous situation. It's unfortunate for him."
Stephen Gillers, a legal ethics professor at New York University, said the strategy by the plaintiffs’ attorneys would usually be unremarkable, but that Trump’s stature puts the case in a different league.
"It's how lawyers litigate, although the leverage is not generally focused on political circumstances,” he said. “Trump always has recourse to the magistrate judge or the district court if he thinks the strategy, the timing or the deadlines are abusive."
While Trump has not signaled any openness to a settlement — even falsely claiming that he never settles cases — the Trump University case has in recent days almost swallowed up his campaign, with Clinton accusing Trump of swindling everyday Americans and Republicans distancing themselves from him over his claims that the Indiana-born Curiel cannot be impartial because he’s “Mexican.”
The blurring of the lines between the legal and the political in the cases was most evident when Trump testified behind closed doors on two occasions in recent months. On Dec. 10, Trump sat for a seven-hour deposition at Trump Tower before heading off to Portsmouth, New Hampshire, for a campaign speech that same evening. A dispute erupted over the developer's refusal to answer some questions based on advice from his lawyer, Daniel Petrocelli.
During the deposition, Trump circled around questions posed by Jason Forge, an attorney for the plaintiffs, often answering them with questions of his own or saying he didn’t remember people or incidents because they took place too long ago.
“Just answer the questions and we'll get through it quickly,” Forge said at one point.
“You're not going to get anything through quickly,” Trump replied. “You don't want to get anything through quickly.”
Pressed repeatedly to say what roles a series of people played in Trump University programs, the mogul said he couldn't recall.
"Same answer to your harassment questions," Trump replied tersely as the questioning went on.
Two weeks later, Magistrate Judge William Gallo overruled the vast majority of Petrocelli's objections and warned against stalling in the case.
"Any further instructions not to answer without a lawful basis (e.g. privilege) may result in the imposition of sanctions," Gallo wrote in an order giving the plaintiffs' lawyers another 3½ hours to question Trump.
That showdown came in Las Vegas on Jan. 21, hours before a rally during which Trump boasted about his poll numbers and chided his opponents in front of a ballroom full of supporters.
During the deposition held that day on the 61st floor of the Trump International Hotel — the same floor on which Trump reportedly has a penthouse suite for his own use — the lawyers pushing the Trump University suits zeroed in on Trump’s past statements about Bill and Hillary Clinton and former Republican Govs. Jeb Bush of Florida and George Pataki of New York.
They asked: Does Trump think Bill Clinton was a “great president”? Did Trump mean it when he said "Hillary is smart, tough and a very nice person” in a Trump University blog post written in 2008? What about another post, in which he said he thought she would make “a great president or vice president”?
At first, Trump went along with the politically barbed questions. About Bill Clinton, he said: "He had moments. He had some moments. But overall, he was hurt very badly by Monica Lewinsky and all of the scandal. I think it hurt his presidency very much."
However, the GOP presidential hopeful quickly grew irritated with the questioning. "I think it's inappropriate for here because we're not talking about politics now. We're talking about something else," Trump said.
Petrocelli also made it clear he didn’t think the interrogation on presidential politics was fair game, but that he couldn't stop it under the order Gallo issued the previous month.
The line of questioning is “completely irrelevant, and the kind of examination that should be subject to a protective order,” Petrocelli said. But the magistrate has said “only instructions based on privilege can be made,” Petrocelli said, “a ruling with which I disagree, but will abide by at the moment.”
Trump, under court order to answer the questions, told the lawyers that when he praised Hillary Clinton on his blog he “didn’t give it a lot of thought” because he was a businessman at the time. Then, he invoked Clinton's most acute controversy: the imbroglio over her private email server.
“Now that I see what she's done and how she's handled herself and how she's handled her emails and all of the problems that she's got, I would say she wouldn't make a very good vice president or president,” Trump added.
The questioning about Trump's statements on political figures spans 18 pages of the deposition transcript and includes queries about Pataki and former Republican Gov. Rick Perry of Texas, as well as discussion of an appearance on ABC's "This Week" at which Trump was also questioned about his past praise for political opponents.
Legal ethics experts seem divided over whether the questioning should have been allowed.
"I was waiting for them to ask whether you've ever had syphilis, because that's about as relevant as whether Bill Clinton was a good president," Zarfes said, adding that while the questions might not be unethical, most judges would probably block such questioning. "It's not at all germane to the case. ... It's heavy-handed tactics. Does it push the envelope a little? Yes. Is it over the line? Probably not."
However, Gillers said the questions do go to Trump's credibility and truthfulness, which are relevant to the case. And the lawyer noted that attorneys have greater latitude asking questions at a deposition than at a trial.
"It seems to me the import of the questions is that Trump says things without believing them to be true. That is also and partly the claim of the Trump University plaintiffs," the NYU law professor said. "So, while the questions may seem more political than legal, there really is a legal angle to the questions."
During the depositions, Petrocelli claimed confidential status for the questioning about the Clintons and other politicians. That could have blocked the plaintiffs from making those portions of the testimony public, but the magistrate again ruled against Trump, saying those portions did not have to be kept under wraps.
Trump's side "argues that the designation is necessary to protect against the likelihood that such testimony will be publicly disseminated and used against him in the current presidential campaign. However, Plaintiffs argue that these statements by Defendant are already publicly available, and, as such, merit no further protection," Gallo wrote in a March order.
Trump’s blunders start to catch up to him
"The Court finds that these portions of the transcript are not entitled to a confidential designation. Most, if not all, of Defendant’s original statements about various public figures appear to originate from public sources, including past blog articles published by Trump University, LLC. The corresponding deposition testimony (i.e. affirming or denying these past statements) merely reiterates this already public information," the magistrate wrote.
Petrocelli didn't appeal that ruling to Curiel. However, Trump's lawyer did protest when the attorneys pressing the suits made that testimony public by filing it in court — in a submission turned in a day before the deadline and hours before a nationally televised GOP debate in Detroit on March 3.
"All of a sudden, it shows up in presidential campaigns with briefs filed by the plaintiff a day before the filing [deadline] on the day of the national debates," Petrocelli complained at a hearing before Curiel. "It has virtually nothing to do — it has nothing to do, your honor, with the issues in this case. ... There are very serious questions being raised about whether the defendants can ever get a fair trial if the atmosphere is being poisoned."
Forge didn't respond directly to Petrocelli's claim of a "strategic decision" to inject the testimony into the political campaign, but the plaintiffs’ lawyer did blame Trump's attorney for contributing to the publicity over the case. Forge noted that although Petrocelli was "pounding the lectern about us poisoning the atmosphere for this trial," Petrocelli had been quoted in a New York Times article published that same day about the cases.
Lawyers on both sides of the case did not comment for this article.
One area in which the plaintiffs' lawyers have had less success pressuring Trump politically is in the timing of trials in the two lawsuits. The class-action attorneys pushed hard to have Curiel schedule a trial in June or August, smack in the middle of the presidential race and at a time when it would have been massively distracting and embarrassing for Trump.
But Curiel ultimately rejected that gambit, setting the first trial for about three weeks after the November election in order to try to avoid what Petrocelli has called a publicity "zoo" and even Forge has acknowledged is a "media circus." By that time, Trump will either be a failed presidential candidate or president-elect.
In the meantime, the plaintiffs’ lawyers haven't given up trying to make the case as politically uncomfortable for Trump as possible. Earlier this week, they sought to file with the court 48 video clips from Trump's deposition — videos that could become part of the public record and quickly make their way into attack ads aimed at the presumptive GOP nominee.
Curiel rejected the videos on a technicality, but in a motion filed Thursday the plaintiffs again urged the judge to accept them to allow the court to really soak in Trump's testimony in ways that don't come across on the written page.
"Trump made many spontaneous and ad hominem remarks that are not reflected in the paper transcript of his depositions. Last, Trump’s tone, facial expressions, gestures, and body language are also not reflected in the paper transcripts, yet they speak volumes to ... Trump’s complete and utter unfamiliarity with the instructors and 'instruction' that student-victims received, instead of 'my hand-picked instructors [teaching] my techniques, which took my entire career to develop,' which is what Trump promised," the plaintiffs' lawyers wrote.
Trump's lawyers notified Curiel on Friday that they plan to oppose the filing of the videos, triggering yet another battle sure to produce negative publicity for the presumptive GOP nominee just as he's trying to consolidate support for his highly unorthodox presidential campaign.
Trump has publicly attacked the opposing lawyers on their politics, too — though both Trump and his trial lawyer in the case also have a history of donating to Hillary Clinton.
Trump's suggestion that all the Trump University litigation is politically motivated defies logic because the first federal lawsuit was filed in 2010 and the second in 2013, years before Trump became a serious presidential contender. However, the key firm involved, Robbins Geller Rudman & Dowd, has a long history of generous financial support for the Clintons and other Democrats.
Speaking to Sean Hannity this week about the fees and donations, Trump said that “the whole thing is disgusting.”
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http://www.politico.com/story/2016/06/trump-university-lawyers-political-pain-224083#ixzz4BR6npQaC
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