The high-profile prosecution of former President Trump for his role in seeking to block the transfer of power is eliciting a long-shot campaign to bring cameras into the courtroom.
While the case against Trump itself may be unprecedented, it’s running up against a long-standing federal court precedent that bars televising the hearings or recording them in any fashion.
It’s a factor that has alarmed Democratic lawmakers, who argue the public may not fully grasp the weight of the evidence — or back the outcome of the case — without an ability to tune in.
“Given the historic nature of the charges brought forth in these cases, it is hard to imagine a more powerful circumstance for televised proceedings,” lawmakers wrote in a letter spearheaded by Rep. Adam Schiff (D-Calif.) and more than 40 lawmakers.
“If the public is to fully accept the outcome, it will be vitally important for it to witness, as directly as possible, how the trials are conducted, the strength of the evidence adduced and the credibility of witnesses,” added Schiff, a former prosecutor and member of the House Jan. 6 committee.
The letter was addressed to the Judicial Conference, the body that oversees the federal court system and its rules of procedure, including Rule 53, which bars cameras.
Federal courts have prohibited the practice since the 1940s, while the Supreme Court only began livestreaming audio from its proceedings due to the pandemic.
But the high court has steadfastly opposed cameras in the courtroom, as have observers.
When a bill that would have cleared the way to do so was introduced in the Senate, former Deputy Attorney General Jeffrey Rosen warned doing so would inject politics into the court and “would make the Supreme Court more like Congress — the last thing Americans should want.”
At the same time, the restrictions as a practical matter make it more difficult to relay what happened in proceedings.
The bar on using any recording devices at all is a stumbling block for journalists, who often paraphrase arguments and capture brief snippets of remarks in lieu of being able to offer full quotes from attorneys making their case before the court.
“There’s no doubt that a great deal is lost between being in the courtroom and being outside it and having to rely on the media for others who are in the courtroom to relay what was happening,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute.
“The public’s interest in actually hearing the evidence, seeing the evidence as it is relayed to the jury in the way that it is being relayed by counsel, by witnesses is remarkably important. It’s important for understanding not only the judicial process but also to be able to make judgments about how fair the process is and whether in the end, the jury reaches the right verdict.”
The interest in transparency for Trump’s trial nods to the issues in relaying what happened in court — and the fractured media environment in which the public will learn about the trial.
“I think what we’ve seen for the last X number of years is that people are not debating from the same set of facts. … Everything’s an opinion. Nothing’s a fact. Nobody believes anything,” Steven Brill, the founder of Court TV, said in an interview with NPR this week.
“What you see online, you have no idea how credible it is, who the source is, who’s paying them to say something — the total opposite of what happens in a courtroom, where all the evidence is vetted, lawyers are bound by standards of conduct where they can’t just voice their opinions. They can’t introduce hearsay or rumors. That’s what the world needs to see in this trial because we’re going to be debating this trial forever.”
One of Trump’s attorneys, John Lauro, has pushed for cameras in the courtroom.
“I personally want the public to see what’s going on in this country right now. I want the public to see what kind of prosecution is going on. And I want the public to see the evidence,” he said during an appearance last weekend on CNN’s “State of the Union.”
And Trump himself has already been extremely vocal about the case, attacking prosecutors, President Biden and the judge, dismissing all as biased.
The letter from Schiff nods at that dynamic, and though it does not name Trump, stresses the need for “reliable information” about the trial.
“It is imperative the Conference ensures timely access to accurate and reliable information surrounding these cases and all of their proceedings, given the extraordinary national importance to our democratic institutions and the need for transparency,” the lawmakers wrote.
But some have raised concerns a televised trial would lead to a circus, pointing to the intense scrutiny of the O.J. Simpson trial.
It’s a dynamic that could be comfortable for Trump, who spent years as a reality TV star.
“A major lesson from the O.J. Simpson murder trial, which gripped the nation when it was broadcast starting in 1995, is how the impact of television can undermine a trial when the judge, lawyers, defendant and witnesses play to the viewing audience, as they did then. This turned a grave murder trial, with Mr. Simpson’s guilt or exoneration hanging in the balance, into daily entertainment,” Nick Akerman, who served as an assistant special Watergate prosecutor, wrote in an op-ed in The New York Times.
“Mr. Trump probably wants cameras in the courtrooms precisely for that reason. His successes or failures as a president will always be debated, but almost everyone agrees that he excels at creating reality TV. No matter how experienced a judge is in controlling the courtroom, Mr. Trump could, through gestures or well-timed outbursts, try to use the broadcast to sway public opinion and in the process undermine the trial’s solemnity.”
Previous efforts to get cameras in the courtroom for Trump’s other federal trial in the Mar-a-Lago case failed, with Judge Aileen Cannon rejecting a request from numerous media outlets.
Changing the systemwide ban for federal cases would take an act of Congress or action from the Judicial Conference that Schiff pushed for intervention.
The conference can propose changes to court procedures, but such an action must be reviewed by several committees that are a part of the conference and then circulated for public comment. The change is then sent to the Supreme Court for further review, and, if approved, goes to Congress, which can likewise make changes, or, without action, they take effect.
“The whole process can and usually does take over a year,” Paul Rothstein, a professor at Georgetown Law, told The Hill.
And any action that would attempt to change the rule just for Trump’s case would not be likely to succeed.
“It could not be done for one trial without some extraordinary action by Congress and/or the committees or some fantastically bold judge — who would likely be reversed,” he said. “Virtually a practical impossibility.”