The Scowling Trump Video, Coming to a Screen Near You

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Donald Trump at a campaign rally in Raleigh, North Carolina, on July 5. John Dean writes that if Trump wins the presidency but is unable to settle the Trump University lawsuit, it would follow him into the White House. See Paula Jones v. Bill Clinton. Joshua Roberts/reuters

This article first appeared on the Justia site.

Donald Trump's attacks on U.S. District Court Judge Gonzalo Curiel brought widespread attention to the Trump University lawsuits, thrusting them into the 2016 presidential campaign.

I examined what has been occurring in Judge Curiel's courtroom in a previous column, and the fact is this is about as high-stakes a situation as Trump has ever dealt with in his many years of heavy litigation because one suit charges him with criminal fraud, the RICO civil suit, which calls for treble damages, an amount that possibly could provoke another bankruptcy.

Mainstream news reporting on this lawsuit has been intermittent at best, so I have been watching the case's docket, and can report the lawsuit will be back in the news soon.

While Trump's lawyers have filed a motion for summary judgment to dismiss, and/or decertify as a class action, the civil RICO action, that is not likely to happen. In addition, several media news organizations—CNN, CBS, Tribune Publishing, NBC, ABC, The New York Times, The Washington Post and Fox News—have further intervened in the case to obtain Trump's video depositions, along with material Trump currently has under seal as "confidential."

Judge Curiel has scheduled a hearing on these matters in his San Diego courtroom on Wednesday, July 13, at 1:30 p.m. The judge may rule at that time or soon thereafter. Because Trump's arguments are not persuasive at all, more news is coming about Trump University.

Summary Judgment in the RICO Case

Trump argues that "if this case is allowed to proceed, it would represent an unprecedented and unprincipled expansion of civil RICO" law; this is an argument his earlier attorneys made and lost.

At issue in a motion for summary judgment is whether there are undisputed facts, therefore precluding the need for a jury to make a fact finding, thus disposing with the need for a trial. Defendant Trump claims that there are no genuine issues of fact regarding his alleged activities, and that he was not involved in the RICO racketeering enterprise, notwithstanding the claims of the plaintiff as set forth in the complaint.

Here is the gist of Trump's positon: "Once TU was established in 2005—as with many of his scores of businesses—Defendant [Trump] relied on well-qualified executives, including a president, chief marketing officer, chief operating officer, compliance officer, and others, to ensure that TU provided quality programs and followed applicable laws."

As far as Trump is concerned, there is no issue that "TU's marketing materials were fraudulent," as claimed by the student bringing the action. Nor, Trump argues, is there any evidence that he harbored a "specific intent to defraud."

He claims that the undisputed facts show he believed the "students were receiving a high quality education in real estate and were satisfied with TU's instruction."

He relies on the infamous evaluations required from the students, thus claiming a 97 percent approval rating for TU. Based on these purportedly undisputed facts, Trump wants the RICO case dismissed because there was no fraud, nor is there any evidence of his involvement in it.

The record appears to show quite differently from how Donald Trump portrays things. The plaintiff has responded to the motion for summary judgment by directing the court to the record showing that "Trump orchestrated a multi-million dollar marketing scheme with one goal: to influence students to enroll in TU. The three pillars of Trump's success as a promoter are: (1) playing to people's fantasies; (2) using hyperbole; and (3) employing what he calls 'innocent exaggeration.' These are the pillars of what the rest of us would call lying."

Next, the plaintiff proceeds to lay out fact after fact showing Trump's fraud, thus creating a factual dispute that will preclude summary judgment.

It would be very surprising for Judge Curiel to dispose of this case by summary judgment at this late date, not to mention to reverse himself and decertify the case as a class action.

Before Paula Jones sued President Bill Clinton, Trump might have thought there would be refuge from a civil lawsuit if he became president, but the U.S. Supreme Court in Clinton v. Jones (1997) resolved the issue, holding that sitting presidents are subject to civil lawsuits.

If Trump wins the presidency but is unable to settle this lawsuit (which I suspect will be the case), it would follow him into the White House. Trial is scheduled for after the election.

Media Requests for Trump's Confidential and Video Depositions

Even weaker than Trump's pursuit of a summary judgment is his effort to prevent the news media from having access to his depositions. Much of that material has already been released, but the news organizations are seeking additional material that was sealed as "confidential" as well as video copies of the depositions.

So weak was Trump's position on confidentiality that his lawyers have conceded it and agreed to remove the confidentiality claims.

Court proceedings are public proceedings, and to withhold information in a lawsuit takes a persuasive claim of specific harm that will result from public revelation of the material.

It appears that Trump initially claimed confidentiality based on a claim that revealing the workings of Trump University would expose his trade secrets, but it turns out that trade information was actually rather unsavory conduct. Thus, this ploy did not work to keep information hidden.

As for keeping the videos from being made public, Trump's filing shows that he has not been able to provide the court with any real or specific explanation as to harm that might result. The media organizations have made three core arguments in calling for the release of the video depositions:

First, neither the facts nor evidence support [Trump's] assertion that disclosure of video deposition testimony would interfere with their ability to get a fair trial. [Cites omitted.] Even in cases with widespread publicity (much more than this case) courts have rejected claims that a "fair" jury cannot be found. [Citing as examples cases involving Charles Manson and the Watergate trials.]

Second, [Trump has] no basis for complaining about the potential for "excessive media coverage," because Defendant Trump made the decision to make the litigation an issue in his presidential campaign. [Trump has] not (and cannot) identify any specific risk of harm that would result from disclosing video of the deposition testimony–to the contrary, video and audio tape will portray the deponent more accurately than a cold transcript, which cannot convey inflections, demeanor, or nuance. This lawsuit is likely to receive substantial media coverage whether or not deposition videos are publicly available, given Defendant Trump's presidential campaign.…

Finally, [Trump] ignore[s] the unusually strong public interest in this action. Defendant Trump is the presumptive Republican presidential nominee, and the allegations in this case relate to his business record, which he has presented as his primary qualification for the nation's highest elective office. Defendants also cannot dispute Trump's extensive experience in dealing with the media. He chose to speak out about this case, which further reduces any purported interest in keeping these videos confidential.

In short, Trump's attacks on Judge Curiel have drawn attention to this lawsuit, and his efforts to intimidate the judge may be coming back to bite him with his own words in the video depositions.

Thus it appears that by mid-July this lawsuit should produce a frowning, and less than gracious, Mr. Trump (based on videos of his prior depositions floating about), but here discussing his business practices. It is not likely Trump envisioned his depositions would be viewed publicly when he gave them, and seldom are videographers good at lighting or making anyone being deposed look their best.

In reviewing this case, I've noted that Trump has had several lawyers representing him. When rulings have not gone his way, it appears he gets new lawyers.

Given the revelations about how many lawyers he has stiffed over the years, I keep wondering if his current lawyers are getting paid in advance, or risk having to litigate with The Donald themselves.

What is most interesting about this case, however, is that it seems like Trump University is a microcosm of his campaign, and his presidential bid, in which he promises the world knowing he will be unable to deliver, so he will have to convince everybody that they didn't understand what they were buying in the first instance.

As was said about showman P.T. Barnum, and Donald Trump has proved again, "There's a sucker born every minute."

In fact, that would be a perfect motto for his campaign.

John Dean, a Justia columnist, was White House counsel to President Richard Nixon.