From bringing back waterboarding to temporarily banning Muslims, legal professionals says Donald Trump ‘pays no attention to the law’

Donald Trump’s racist attack on a judge of Mexican heritage won him criticism across the political spectrum. But it is not the only issue worrying former judges, an ex-attorney general, and legal scholars as they contemplate a Trump presidency.

Several other issues have also raised serious legal concerns among such observers, including the presumptive Republican nominee’s call for a temporary ban on Muslim immigration, his advocacy of bringing back waterboarding, and his statement that if elected he would “open up” the nation’s libel laws to make it easier to sue the press and win “lots of money”.

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Republican and Democratic legal critics tell the Guardian that Trump on several occasions has seemed woefully ignorant of the law, and dismissive of American social conventions.

“My concern is that he lacks respect for basic norms,” said Robert Smith, a former associate judge on the New York court of appeals who was appointed by ex-governor George Pataki, a Republican. “He’s a totally irresponsible egomaniac, and it should be no surprise he pays no attention to the law and other basic social norms.”

Attack on Trump University judge

Criticism of Trump escalated in legal circles last month when he devoted almost 12 minutes at a San Diego rally to vilifying Judge Gonzalo Curiel – who is overseeing fraud lawsuits against the candidate’s defunct Trump University – as “ a hater”. Trump charged that the judge was biased and had a conflict of interest in overseeing the fraud case because of his Mexican heritage, initially claiming the Indiana-born judge was Mexican.

Stephen Larson, a former US district court judge in California who was appointed by President George W Bush, was appalled by Trump’s attacks on Judge Curiel. “Those remarks were racist. Those remarks were foolish. And those remarks were embarrassing,” Larson told the Guardian. Larson added that “it’s embarrassing to have a leading presidential candidate invoke race”.



Likewise, former attorney general Richard Thornburgh who served under President George HW Bush, said in an interview that while he found certain Trump statements “troubling”, the attacks on Judge Curiel were “particularly offensive. If broadly applied they threaten the sanctity of the rule of law.”

Separately Larson, now a lawyer in Los Angeles with the firm Larson O’Brien, voiced dismay over Trump’s calls for bringing back waterboarding and killing family members of terrorists, statements that the former judge deems “contrary to long and deeply held American legal and moral values”.

Trump’s notion of bringing back waterboarding also outrages ex-New York court of appeals judge Robert Smith, who says that the now-banned practice is tantamount to “torture [which] violates American and international law”.

Smith also takes strong exception to Trump’s oft-touted proposal for a ban on Muslim immigration, an idea he brought up again after the recent massacre in Orlando as a way to curb terrorism. “I think the idea of a religious test for immigration is un-American and appalling,” said Smith, who served on the New York court for a decade and is now with the law firm Friedman Kaplan.

‘Constitutionally problematic’

Smith’s view of the proposed ban was echoed by legal scholars who spoke with the Guardian. Deborah Rhode, a Stanford law professor, said Trump’s call for banning Muslim immigrants was “hard to reconcile with the ideals that have motivated this nation”.

Rhode noted that the standard test for immigration has long been good moral character, and said that “to suggest that someone fails to meet this standard because of religion alone seems constitutionally problematic”.

Similarly, Erwin Chermerinsky, the dean of the University of California Irvine Law School, said he thought Trump’s call to ban Muslim immigration “violates the constitution’s principles of equal protection and freedom of religion”.

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Moreover, other legal scholars are deeply dismayed by Trump’s suggestion in February that if he wins in November he intends to “open up our libel laws, so that if they [the press] write purposely negative and horrible and false articles, we can sue them and win lots of money”.

“If you open up the libel laws, the first person who would be sued is Donald Trump,” said Richard Epstein, a law professor at the University of Chicago who is highly regarded in conservative legal circles. “He makes false and malicious statements about public and private people … I regard him as semi-hysterical and self-righteous [and] utterly unfit to be president of the United States.”

Ironically perhaps, during his decades-long business career, Trump has exhibited a strong penchant for filing suits and has often been sued. According to a recent survey by USA Today, Trump has sued or been sued an astonishing 3,500 times over the past three decades, a sum that is more than all the suits combined against five other prominent real estate moguls.

‘All-consuming egomania’

On another legal front, conservative lawyers are aghast that Trump has made statements that are flat-out erroneous and betray his ignorance of fundamental judicial matters. A case in point: in late March, Trump stated that he would probably appoint a supreme court justice or attorney general who would “look very seriously at [Clinton’s] email disaster because it’s a criminal activity … What she is getting away with is absolutely murder.”

But Smith noted that he “would hope that high school students after civics classes would know that judges don’t investigate. Judges decide.”

In an effort to allay fears about his judgment and conservative bona fides, Trump in May published a list of 11 judges that, if he wins in November, he would consider as supreme court replacements for the late Antonin Scalia. The judges, eight men and three women, are all white and all allied with the Federalist Society, a powerful conservative legal organization. Chicago law professor Richard Epstein and ex-judge Robert Smith have also been involved with the Federalist Society.

Nonetheless, if Trump wins the election, Smith worries that the candidate’s “all-consuming egomania makes him irresponsible,” traits that could affect his appointments. “You have some chance that you would get a principled conservative. But there’s also a chance you could get someone completely off the wall. You don’t put an unfit person in the presidency just because you think you’d like his supreme court appointments.”