The Critical Importance of Televising the Trump Trials

Cameras, Anonymous Juries and Gag Orders

It’s hard to believe that one-quarter of the way through the 21^st century, with Americans spending more time looking at screens than ever before, the criminal trials of a former President and a leading candidate to be our next President will not be televised. That the charges are unprecedented and of the utmost seriousness – seeking to overthrow the government and overturn the results of a free and fair election, as well endangering national security – only make the lack of access that much more distressing.

It’s even stranger when you consider that in papers filed just a few days ago, the defendant in the Washington election case submitted that he was for camera coverage. Especially since it is usually the criminal defendant who opposes televising his trial – defendants typically don’t like to be seen in that role – why the American public can’t see the actual trials in probably the most important cases in our history  is virtually inexplicable. The explanation, weak as it may be, is in a federal rule which bars cameras from federal courts. (That is why the Georgia election case, in contrast, will be televised; Georgia state laws allow camera coverage; interestingly, it would seem it’s the Georgia case which is the strongest for the prosecution.)

The most plausible reason for the stubbornness of the federal judiciary mirrors why the Supreme Court bans cameras from its proceedings: judges fear that having their faces broadcast would compromise their privacy. This parallels their unseemly opposition to ethical rules governing their behavior: they oppose transparency and oversight.

Also unusual is the unhelpful position of Jack Smith, the prosecutor who represents the American people, in favor of barring cameras. Prosecutors generally should – and do – favor television coverage for a number of reasons, prime among them that they represent citizens who, after all, have an interest in the outcome and ought to be able to see for themselves what is going on. But Smith appears opposed – whether it’s because he wants to limit possible appeal points or fears witnesses will be intimidated from showing up or giving truthful testimony I don’t know, but no rationale warrants the lawyer bringing such serious charges from keeping the trial from the eyes of the public. After all, those purported interests pale before seeing first-hand a trial which will give evidence as to the status of our democracy and presumably show the world how our long and honorable tradition of the peaceful transfer of power was threatened.

Just as this edition of the LawLetter was about to be distributed, Mr. Smith filed a short brief with the Court explaining his opposition to cameras in the Washington case. He fears that tv cameras would “create a carnival atmosphere” and would play into Trump’s strategy of trying “his case in the courtroom of public opinion, and turn{ing} his trial into a media event.” First, the prosecutor should hardly be fearful of the  “courtroom of public opinion.” The public ought to have an opinion and ought to see the evidence with its own eyes, all the better to overcome the silly conspiracy theories some believe and escape from the silos from which they get their news . Second, the whole argument that televised trials lead to zoos is woefully misplaced. Even in OJ, the days of trials were shown to be largely plodding and unspectacular; the zoo was on the courthouse steps with fiery statement from lawyers, t-shirt sales and the like. If cameras are barred, the courthouse steps scene takes precedence; if cameras show the trial, the out-of-court scene should be de-emphasized.

Whatever the arguments for banning cameras, the rule certainly ought to be suspended for trials where the health of our democracy is at stake.

But the real culprit is not the prosecutor, but the federal rule which bans federal criminal trials from being televised. After 50 years of televised trials in most state courts, and no evidence of the administration of justice being undermined, it seems anachronistic for the Supreme Court and the federal judiciary to have a broad rule barring televised trials, let alone a trial of this importance and magnitude.

The most plausible reason for the stubbornness of the federal judiciary is the same reason why the Supreme Court bans cameras from its proceedings (where there are no witnesses or jurors to be potentially intimidated): judges fear that having their faces broadcast would compromise their privacy. This parallels their unseemly opposition to ethical rules governing their behavior: they oppose transparency and oversight. (The rather lame ethical guidelines, without enforcement mechanisms, that the court released this week, hardly changes this.) Whether they like it or not, they are public officials, and ought to be as subject to public scrutiny and oversight as those working at the highest levels of other branches of our government. Whatever the arguments for banning cameras, the rule certainly ought to be suspended for trials where the health of our democracy is at stake.  

In a fiercely divided country, it is vital for people to see the trial first hand, not through the filter of either red or blue supporters.

Now it is true that due to the bizarre character of the defendant in these cases, there are some additional complications. One is that the former Apprentice star and current Presidential candidate would doubtless use the opportunity , with his usual mix of bluster and belligerence, to make political speeches aimed at the public and irrelevant to the proceedings. He already did this in his (untelevised) New York civil case, and would have all the more incentive to expound his themes of victimhood and witchhunts which are centerpieces of his campaign. But it would be up to the trial judge to rein him in, and there is no reason to believe that a judge couldn’t successfully make rulings keeping him from making offensive irrelevancies.

Second is the issue that a Trump trial, somewhat like a Mafia trial, could expose jurors and witnesses to intimidation, both implicitly and explicitly from the defendant and his zealous supporters. But , again, the court system has dealt with such fears before, and they can and should do so here. (And the media should also make clear that jurors would remain totally outside the purview of any camera coverage.)

These problems, unique as they are to a Trump trial, are easily outweighed by the interest in allowing the public to see the evidence, the law and the arguments themselves. This is doubly important not only because of the significance of the case, but because it is being played out in our polarized society, where many in the public get their news reports from cable stations with very one-sided views and ideologies. In a fiercely divided country, it is vital for people to see the trial first hand, not through the filter of either red or blue supporters.

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The need for public understanding of these trials and their results is critical given their political nature and the importance to our democracy of public acceptance of the verdicts. If the federal rules or the discretion of the trial judges bars cameras, then it is all the more important that the anonymity of the jurors ought to be limited. I understand why jurors’ names should not be released during the trial. Given that the former President does not appear to respect the most basic rules and traditions of the judiciary, the threat of intimidation is real, and the security of the jurors must be protected at all costs. However, once a verdict is rendered, an explanation of how the jury reached its decision becomes paramount. For the verdict to be accepted by the American people, they must be given an explanation of how the jury came to its result, and this can only happen if jurors are the ones giving that post-trial narrative.

However, once a verdict is rendered, an explanation of how the jury reached its decision becomes paramount.

What typically should happen is that juror names be given to the press soon after the verdict is announced in court. Reporters then either engage in a wild goose chase as they try to locate and question the jurors as they leave the courthouse and go home or, through their addresses, call them on the phone when they reach their homes. Getting some jurors to talk is critically important.(I remember when William Kennedy Smith was acquitted of rape, it might’ve been easy to attribute the outcome to the Kennedys power and money. But because the trial was televised and watched by millions, the public understood that the result was because the prosecution hadn’t made its case. Hence there was a public acceptance of the result.)

In the coming Trump trials, such public acceptance is crucial. One argument for continued juror anonymity and their secret departure from the courthouse to unknown addresses is that it avoids  the unruly scene noted above, of reporters chasing  jurors out of the courthouse and of harassing phone calls. But that can be solved by the court setting up a room for a juror press conference. That is, the judge can advise the jurors that it is up to them whether or not they want to talk to the press. But if they do, the court should designate a room where they can meet with the press in an orderly setting, perhaps akin to a press conference with each willing juror to speak and answer questions in turn. I have suggested that in the past, usually with no agreement by the trial judge, but the reason for rejection was usually pretty porous, more often than not, that there was no suitable room in the courthouse. In these Trump cases, perhaps such arrangements could be worked out beforehand. And perhaps the judges who have tried these cases will well understand that enhancing the opportunity for a public explanation will go a long way to establishing vital public acceptance of the result.

If these trials are not televised, the citizenry must get a clear first-hand explanation of how the result was obtained. Usually, judges simply balance the interests of the two parties in front of them. In these cases, it is imperative that the judges throw into the mix a third party whose interest is far greater: the citizens of the United States.

If a judge nonetheless fears that the jurors might be victims of threats or violence because of however they decided, such a procedure might be doable without releasing identifying information about the jurors. That is, they could meet with the reporters anonymously or, if absolutely necessary, masked. To my knowledge this has never been done before, but given the stakes involved in the Trump trials, such an out-of-the-box approach would be preferable to juror silence until a judge decided to release the names maybe some six months later.

One way or the other, a solution must be found. If these trials are not televised, the citizenry must get a clear first-hand explanation of how the result was obtained. Usually, in making decisions of these kinds, judges simply balance the interests of the two parties before them. In these cases, it is imperative that the judges throw into the mix a third party whose interest is far greater: the citizens of the United States.

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Finally, a related issue is whether these judges should issue gag orders on Trump and his cohorts. At the outset, this presents a stark dilemma for media attorneys. On the one hand, the media have a great interest in obtaining as much information as possible, so generally we are strongly opposed to gag orders of any sort, whether they be gags on the media themselves or on actual or potential sources; and, in principle, First Amendment attorneys are opposed to government orders restraining speech. On the other hand, we do believe in the judicial system and react in shock when a litigant blasts judges or prosecutors, or worse, as in the Trump case, their families. We also recoil at a litigant’s unfounded outrageous accusations about courthouse staff, such as Trump’s bloviating that the New York judge’s clerk is sleeping with the Senate Majority Leader.  

So while we are usually very opposed to such gag, or restraining, orders, many of us concede that in this case a check on speech may well be appropriate. This is really a pretty unprecedented situation.We are dealing with a person who doesn’t accept or respect the most fundamental rules and traditions of our legal system. A man who lies habitually; who demeans and scares judges, adversaries and their families; who, by his own admission, files baseless litigation to punish opponents through hefty legal fees, is so far outside the bounds of normal behavior that the rules were never designed to reach him. Indeed, his behavior and disrespect of everyone connected to administering the law is worse than even hardened criminal defendants; gag orders of the type served on Trump are unnecessary in normal criminal cases.

We are dealing with a person who doesn’t accept or respect the most fundamental rules and traditions of our legal system. A man who lies habitually; who demeans and scares judges, adversaries and their families; who, by his own admission, files baseless litigation to punish opponents through hefty legal fees, and is so far outside the bounds of normal behavior that the rules were never designed to reach him.

In my view, the judges so far have dealt with Trump’s outrageous statements fairly, ordering gags only after numerous improper outbursts and judicial warnings. The gag orders have been narrow, not impeding his political campaign and covering only invective aimed at particular people, mainly court officers and those directly involved with the cases. Moreover, when inevitably those orders have nonetheless been violated, the punishment has been light, though with appropriate warnings that they will get harsher if the behavior is repeated.

I sympathize with these jurists who are caught between a rock and a hard place. If they ignore Trump’s outrageous bluster, they risk losing control of the proceedings and will be accused of giving preferential treatment to a rich politician. On the other hand, by restraining Trump’s speech, they will be accused of stifling free expression, particularly of highly protected political speech, of having a bias against Trump and will also unwittingly help the Trump cause by making him a martyr if serious punishment is imposed. So far the judges have done pretty well, but it’s only a matter of time until the situation gets more dire.

These cases will be of historic importance. Let’s hope they are handled properly and that the public will be able to follow them first-hand and therefore be in a position to understand and accept whatever the judge and jury decide.

The views expressed are those of the author and not of MLRC. Please send your responses to gfreeman@medialaw.org; with permission, they may be printed in next month’s LawLetter.