You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

Why Isn’t Trump Using the Law to Back Up His Mouth?


Getty/US District Court Southern District of California




If Curiel, who was born in Indiana to Mexican immigrants, betrayed a racially motivated bias in his comments from the bench or in written orders, it would be a different story. But the most Trump has offered on that score is that Curiel has issued rulings that denied Trump’s motions to dismiss the case—hardly the appearance of bias that the law demands.

Trump’s lead counsel in the case is Daniel Petrocelli, who is the chair of the Trial Practice Committee at the megafirm O’Melveny and Myers, which is headquartered in Los Angeles and has 800 lawyers in offices around the world. Petrocelli is one of the most highly regarded trial lawyers in the United States, with an outstanding reputation for both ability and integrity. It is all but unimaginable that he would risk his reputation—and his firm’s—by bringing such a patently frivolous motion.

Could Trump order Petrocelli to move for Curiel’s disqualification? After all, Trump is a valuable fee-paying client, and lawyers are generally required to follow their client’s instructions. There is an exception, however, when clients make unreasonable demands. Under the California Rules of Professional Conduct, a lawyer may not “seek, accept, or continue employment” where the client’s objective is to “present a claim in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for extension, modification, or reversal of such existing law.”

In other words, Petrocelli would have to withdraw as counsel if Trump were to insist on asserting his charges against Curiel in court rather than on television.

Because of attorney-client confidentiality, we have no way of knowing whether Trump and his lawyers have discussed the possibility of bringing a disqualification motion in the case. But we can be all but certain that Daniel Petrocelli would refuse if asked. That would leave Trump with only two choices. He could continue to suffer the public embarrassment of accepting a judge whose impartiality he has challenged, or he could fire his lawyers and hire new ones.