Donald Trump and the Case for a Public Trial

When then-accused Oklahoma City bomber Timothy McVeigh was brought to trial 26 years ago, victims of the deadliest attack on American soil were granted unprecedented access: a closed-circuit feed of the federal court proceedings.

The same concession was granted to the 9/11 families when Zacarias Moussaoui, the then-accused al-Qaeda conspirator, was tried in a federal courtroom in Alexandria, Va.

A former president now stands accused of the most serious political crime in U.S. history – attempting to subvert the 2020 election as part of a fraudulent campaign to undermine a bedrock of American democracy. Donald Trump’s alleged crimes, while fueling a violent insurrection, did not result in the kind of human suffering endured in Oklahoma City or on 9/11.

Yet the magnitude of the offenses, as detailed in a 45-page indictment returned by a D.C. federal grand jury, make a new case that millions of victims of alleged election fraud may deserve even broader deference than Congress granted in the Oklahoma City and 9/11 prosecutions.

Both Oklahoma City and 9/11 proved to be crucial tests for the American judiciary. A Trump trial for subverting a presidential election arguably poses a more far-reaching challenge to the entire U.S. criminal justice system desperately in need of transparency at a time of unparalleled national suspicion.

‘The most significant criminal trial in history’

“This may be the most significant criminal trial in the history of the country,” said Donald Ayer, a former deputy attorney general in the George H.W. Bush administration. “And I think there is a pretty strong argument to be made for televising this. This is a case in which all the light of day needs to shine in.”

Alberto Gonzales, a former attorney general in the George W. Bush administration, similarly described the latest Trump indictment as deserving of a strong review for public broadcast.

“The number one consideration is whether televising the proceeding would impede the defendant’s right to a fair trial. But putting that aside, this is one case that would make a strong argument that it should be televised,” Gonzales said. “The government has made the argument that every American was affected. This case is so unique that televising the proceedings deserves serious consideration.”

Indeed, the government specifically alleged in count four of its election interference indictment that Trump engaged in a conspiracy to deny the right of citizens to vote.

The former president, prosecutors asserted, intended to “create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”

Like the Oklahoma City and 9/11 prosecutions, Ayer said a decision to broadcast a trial on the new indictment – the third criminal case lodged so far against the former president – would likely require an act of Congress.

Cameras in federal courts have been banned since 1946, under the Federal Rules of Criminal Procedure. The specific prohibition, according to Rule 53, states that “except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

Pushing for ‘sunshine’

A bipartisan group of lawmakers have been pushing for change, with the most recent effort launched earlier this year.

Sens. Chuck Grassley, R-Iowa, and Amy Klobuchar, D-Minn., proposed legislation in March that would open the doors to television cameras in federal courtrooms.

The bill, cast as the Sunshine in the Courtroom Act of 2023, would “grant the presiding judge in all federal courts, including the Supreme Court, the discretion to allow cameras” while taking steps to guard the identities of witnesses and jurors when necessary.

The proposal contains a three-year sunset provision in which Congress is required to determine how the new access may be affecting operations.

“The judicial branch has a massive impact on our daily lives and the lives of generations to come, yet few Americans ever get the chance to see inside the legal process,” Grassley said then. “Allowing cameras access to the federal and Supreme courts would be a victory for transparency and would help the American people grow in confidence and understanding of the federal judiciary.”

Access poses risks

Raising the curtain on any criminal trial is not without risk, especially in cases involving high-profile defendants.

No discussion of cameras in courtrooms is complete without reviewing the 1995 trial of O.J. Simpson, accused in a state court in Los Angeles of murdering his former wife, Nicole Brown Simpson.

Unlike the federal system, state courts have long allowed such access. And the Simpson case, while delivering riveting television, also offered up a striking view of official dysfunction. The daily proceedings often devolved into open warfare between prosecutors and defense lawyers while the judge struggled to maintain order.

Aitan Goelman, a former federal prosecutor who served on the government’s team in the trials of McVeigh and co-conspirator Terry Nichols, sounded a cautionary note, suggesting Trump could try to obstruct the proceedings.

“I’m all for open access, but I think cameras in the courtroom can have an effect on things,” Goelman said.

Showcasing the justice system

The O.J. debacle was not lost on federal officials who were preparing the Oklahoma City prosecution soon after Simpson was acquitted.

Attorney General Janet Reno was adamant that the bombing trial represent a showcase of the American justice system – a task she delegated to a young Merrick Garland, then serving as a top aide to Deputy Attorney General Jamie Gorelick.

The result was a masterclass in evidence presentation, witness selection and pacing, overseen by the ultimate in taskmasters, U.S. District Judge Richard Matsch. The judge’s performance had some analysts casting him as the “anti-Ito,” a reference to the jurist in the Simpson case, Lance Ito.

And none of the performances appeared to be altered by the camera fixed to the back of the courtroom that provided the closed-circuit feed to survivors and victims’ families in Oklahoma City.

Restoring public confidence at DOJ

Just as the Oklahoma City trials, and their closed-circuit broadcasts, helped boost trust in the criminal justice system and judiciary at time when conspiracy theories swirled, analysts said the public broadcast of a Trump trial could do the same for the Justice Department and FBI.

Both institutions have been relentlessly targeted by Trump’s allies as partisan for pursuing the former president.

“They can show that they didn’t bring this case because they simply didn’t like Donald Trump,” Gonzales said. “They brought this case because of the crimes that were allegedly committed.”

If there was any doubt where Trump stands on a televised trial, defense attorney John Lauro made his client’s position clear:

“The first thing we would ask for,” Lauro told Fox News, “let’s have cameras in the courtroom so all Americans can see what’s happening in our criminal justice system.”

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