Nov 13 (Reuters) – Former president Donald Trump formally registered his support on Friday for the live television broadcast of his upcoming federal trial on election subversion charges, in a filing that was short on legal analysis but long on outrage.
Trump defense lawyers John Lauro and Todd Blanche called the case brought by Special Counsel Jack Smith a “travesty” and an illegitimate political “show trial” in which the former president and leading candidate for the Republican nomination in 2024 has been deprived of fundamental due process rights.
“President Trump absolutely agrees, and in fact demands, that these proceedings should be fully televised so that the American public can see firsthand that this case, just like others, is nothing more than a dreamt-up unconstitutional charade that should never be allowed to happen again,” Trump told U.S. District Judge Tanya Chutkan of Washington, D.C.
The government, as I’ll explain, fired back at Trump on Monday, calling his filing “a transparent effort to demand special treatment, try his case in the courtroom of public opinion and turn his trial into a media event.”
But when you put aside the rhetorical volleys, the real question is whether Trump’s filing improves the odds that Chutkan (and, eventually, the District of Columbia U.S. Circuit Court of Appeals) will decide that the public’s First Amendment right of access to the former president’s trial is important enough to supersede the federal judiciary’s ban on the broadcast of criminal proceedings.
As I’ve told you, NBCUniversal and a separate coalition of news organizations filed petitions in October to broadcast Trump’s criminal trial, which is scheduled to begin on March 4. The petitions advanced nuanced arguments about why, among other things, technological advances in video photography have eliminated the risk that television cameras and lights will distract jurors or disrupt the trial.
Full disclosure: My employer, Reuters, is part of the media coalition petitioning to broadcast Trump’s trial. And I’ve said in a previous column that I share my employer’s view that the proceeding should be televised.
The government, however, opposes the broadcast of Trump’s trial. Smith’s office told Chutkan earlier this month that there’s no good reason for her to countermand the longstanding – and recently reaffirmed – federal rule barring television access to criminal trials. Even if television equipment is unobtrusive, prosecutors argued, jurors and witnesses may be intimidated by the prospect of video clips reverberating around the internet for years to come.
The media petitions and the government’s opposition brief engaged deeply with the text and history of the federal rule, debating whether several decades-old appellate decisions rejecting First Amendment challenges to the broadcast ban remain persuasive.
Trump’s five-page filing does not grapple with precedent on cameras in courtrooms. It is instead a catalog of the former president’s claims of unfair treatment by Smith and Chutkan, whom Trump accuses of failing to safeguard his constitutional rights.
But Chad Bowman of Ballard Spahr, who represents the media coalition petitioning to broadcast the trial, told me by email that Trump’s filing will nevertheless help the media case.
Courts are always worried that televising a criminal trial will compromise a defendant’s due process rights. So, Bowman said, by insisting that he cannot receive a fair trial without live television coverage, Trump has eliminated due process worries as an obstacle for the news organizations.
Moreover, Bowman said, the tone of the Trump filing also bolsters media arguments for televising the trial.
The former president, Bowman noted, blasted the prosecution’s case as illegitimate, comparing the proceeding to a show trial in an authoritarian regime. “That type of challenge to the legitimacy of the proceedings,” Bowman said, “makes it even more crucial for the public to be able to see the criminal trial for itself.” (NBC declined to comment.)
Trump’s most-cited authority on political show trials told me he agrees with Bowman. In describing the characteristics of a political trial, the former president’s lawyers relied on a 2005 law review article by University of Chicago law professor Eric Posner. I asked Posner if he had any opinion on the legitimacy of Smith’s election subversion case against Trump.
Posner said via email that he is “not skeptical of the special counsel’s motives,” but added, “I agree that the trial should be televised so that the public can decide for itself.”
Not according to the special counsel. In its filing on Monday, Smith’s office argued that Trump’s handling of the broadcast issue proves the risk of allowing his trial to be televised.
Trump’s lawyers, Smith’s office said, told prosecutors earlier this month that they had no view on the broadcast question, which is what Smith’s office told Chutkan in its opposition brief. Then, the government said in Monday’s filing, Trump apparently decided to capitalize on an opportunity to gin up media coverage of his accusations against Smith. (Trump counsel Lauro and Blanche did not respond to my query.)
Trump’s goal in advocating for television coverage, the government said, is not to assure fairness but to create “a carnival atmosphere” to intimidate witnesses and distract attention from the charges against him.
That is precisely why the federal judiciary has been wary of allowing cameras to broadcast criminal cases, Smith’s office said. Prosecutors exhorted Chutkan not to allow Trump and his lawyers to bypass a rule that has applied to every other federal criminal defendant in U.S. history in order to turn her courtroom into a “spectacle.”
I’ve said before that the easy course for Chutkan would be to follow precedent and deny the media petitions. The judge could certainly interpret Trump’s bombastic filing on Friday as confirmation that the former president and his lawyers will, to use Smith’s word, grandstand for television cameras if the trial is broadcast.
But I contend there’s a more compelling argument that the best way for the federal criminal justice system to prove its legitimacy is to allow members of the public to see how both sides – and, for that matter, the judge — conduct themselves during Trump’s trial.
Protect jurors. But air the trial.
Read more:
Why the US government doesn’t want Trump election subversion trial to be on TV
Should Trump’s federal election subversion trial be on TV?
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Reporting By Alison Frankel
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