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If you were to dream up a hypothetical case that demanded cameras in federal courts, it would be United States of America v. Donald J. Trump.
Every American voter will have a unique and pressing interest in watching the federal government present evidence next March that the former president and current Republican frontrunner for the next election tried to overturn the last election.
No doubt Trump would take the opportunity to try to turn the cases against him into political theater. He’ll do that anyway, like he did Monday when he played to cameras outside the courtroom in New York for the civil fraud case against him, miming a zipper across his lips in what appeared to be a reference to the gag order he’s under.
With cameras documenting testimony from Trump or his former allies, it would be harder for him to lump the four different criminal cases together and write off documented evidence as a “witch hunt.”
Under oath, but off camera
While it was not televised or recorded, Trump’s behavior on the witness stand Monday could offer evidence to support placing cameras in the courts for his upcoming criminal trials.
Unlike when he’s on TV most of the time, Trump had to take an oath to tell the truth on Monday. While the New York judge, Arthur Engoron, has already found Trump liable for fraud and is now determining his punishment, Trump took the opportunity of being questioned by the attorney for the New York attorney general’s office to rail against the justice system writ large and deflect from answering questions about why the value of his assets were inflated on financial disclosure forms.
Rather than a larger-than-life figure, however, he was reduced to being another citizen before the law.
The civil trial may be the only proceeding in which Trump testifies, but it is only a preview of what’s to come.
Four trials and an election
A federal prosecution for 2020 election meddling gets underway just as most of the nation’s voters begin to take part in primary elections. Another federal trial for mishandling classified data and state trials in Georgia (election interference) and New York (falsifying business records in a hush-money scheme) are expected to follow, although it’s not clear how many will conclude before Election Day.
The importance the coming four criminal trials will play in the 2024 election cannot be overstated. A new series of polls by The New York Times and Siena College suggest that a conviction by Trump in court could have a profound impact on his support in key states.
From the Times report:
“If the former president is convicted and sentenced — as many of his allies expect him to be in the Jan. 6-related trial held next year in Washington, D.C. — around 6 percent of voters across Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin say they would switch their votes to Mr. Biden. That would be enough, potentially, to decide the election.”
Attacking the credibility of the justice system
Trump’s efforts to undercut the justice system raise an important question: Would giving every American access to the court case further undermine or build confidence in the system?
One person currently considering what access to give the public is Judge Tanya Chutkan, the federal judge in Washington, DC, who is overseeing what’s expected to be the first, and potentially most consequential, of four criminal prosecutions of Trump.
Let the people see
Media organizations, including CNN, have filed motions asking Chutkan for an exception to federal court policy, which prohibits the broadcast of court proceedings based on First and Sixth amendment rights.
They also noted the normal rationales for transparency “have particular resonance in this case, where a polarized electorate includes tens of millions of people who, according to opinion polls, still believe that the 2020 election was decided by fraud.”
Trump’s attorneys have not taken a position on cameras specifically in Chutkan’s court, but they have endorsed the idea in media interviews.
“This is not a legal defense that Trump is trying to put on; it is a political one,” said Laura Coates, CNN’s chief legal analyst, reacting on CNN to Trump’s combative testimony on Monday. “He would like to have the cameras in the courtroom because he wants to send a message of defiance.”
The argument against cameras
Attorneys for special counsel Jack Smith, on the other hand, oppose the idea and have asked Chutkan to abide by current judicial policy, first spelled out for cameras in 1946 in Federal Rule of Criminal Procedure 53. Broadcasting of proceedings was expressly prohibited in 1972.
While the Sixth Amendment guarantees that trials should be “public,” the current court interpretation is that this applies only to whatever people can fit into the courtroom and, in some cases, an overflow room with a closed transmission of proceedings.
Everyone else must hear about things secondhand.
In the Trump case, that might be better, according to federal prosecutors, who cited “acrimony in public discourse” and suggested the broadcast of proceedings could have a chilling effect on both potential witnesses and jurors.
“Even the knowledge that their images will circulate on social media may temper a witness’s initial testimony. In addition, knowing that the trial will be broadcast in the first instance may make jurors unwilling to serve,” the prosecutors’ filing on Friday said.
The territory of an open democracy
I put those concerns to Gabe Roth, executive director of Fix the Court, a nonpartisan group that pushes for transparency in the US court system.
He said there are ways to mitigate security concerns, starting with the fact that nobody is advocating for the idea of broadcasting images of jurors. Concerns about witnesses could be addressed with audio rather than television feeds, or in other ways, he argued, but it’s not as if anyone will testify anonymously in these cases.
“It goes with the territory of an open society,” he said. “There is going to be a heightened security aspect around any of the Trump trials, regardless of whether or not there are cameras, so that heightened aspect shouldn’t prevent greater public access.”
A rule since 1946, a prehistoric time for cameras
The larger issue of cameras in courts has been revisited multiple times in recent decades, including with pilot programs for audio and video transmissions and during the Covid-19 pandemic, when courts adapted, temporarily, to not being able to have everyone in the same room.
The Supreme Court, which makes its own rules and has been recording audio of oral arguments since 1955, has inched toward transparency in recent years. Now, all Supreme Court arguments are posted the same day they are heard.
Supreme Court justices, as we’ve previously written in this newsletter, frequently endorse the idea of cameras in the courtroom right up until they get that lifetime Supreme Court appointment.
The group that makes administrative policy for US courts is the Judicial Conference of the United States, which meets twice each year and is presided over by Supreme Court Chief Justice John Roberts, a cameras-in-the-court skeptic.
It is becoming clear the Judicial Conference won’t be making a special exception for the Trump cases, and any proposed change isn’t expected to take effect until 2026, long after it would matter for the upcoming election and these prosecutions.
Congress could act. There’s bipartisan support
That leaves advocates for cameras with two options.
Chutkan could make an exception of her own, citing the request by media organizations.
Or, Congress could intervene and change the rules by statute. That’s not an entirely crazy idea since the Trump ally Rep. Mike Johnson is now speaker of the House.
In the Senate, there is a bipartisan proposal to require the Supreme Court to allow cameras in its courtroom. That’s not exactly what we’re talking about with the criminal trials of Trump in the lower federal court, but it does suggest bipartisan openness to the issue of making courts more transparent.
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