Neal Katyal, a law professor at Georgetown University, served as acting solicitor general of the United States from 2010 to 2011.
The upcoming trial of United States v. Donald J. Trump will rank with Marbury v. Madison, Brown v. Board of Education and Dred Scott v. Sandford as a defining moment for our history and our values as a people. And yet, federal law will prevent all but a handful of Americans from actually seeing what is happening in the trial. We will be relegated to perusing cold transcripts and secondhand descriptions. The law must be changed.
While many states allow cameras in courtrooms, federal courts generally do not. Federal Rule of Criminal Procedure 53 states: “Except as otherwise provided by a 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.” Whatever the virtues of this rule might have been when it was adopted in 1946, it is beyond antiquated today. We live in a digital age, where people think visually and are accustomed to seeing things with their own eyes.
A criminal trial is all about witnesses and credibility, and the demeanor of participants plays a big role. A cold transcript cannot convey the emotion on a defendant’s face when a prosecution witness is on the stand, or how he walks into the courtroom each day.
Most important, live (or near-live) broadcasting lets Americans see for themselves what is happening in the courtroom and would go a long way toward reassuring them that justice is being done. They would be less vulnerable to the distortions and misrepresentations that will inevitably be part of the highly charged, politicized discussion flooding the country as the trial plays out. Justice Louis Brandeis’s observation that “sunlight is said to be the best of disinfectants” is absolutely apt here.
There are at least two pathways toward televising the Trump trial. One is for the Judicial Conference, run by Chief Justice John G. Roberts Jr., to vote for an amendment to Rule 53. Indeed, the conference has considered the idea of allowing cameras for more than 30 years and in 1994, it considered and rejected a proposal to televise criminal trials. But there is no need for the conference to resuscitate that proposal — it need only authorize broadcast of this unique case.
The other mechanism is for Congress to pass a law — a possibility contemplated in Rule 53. While Congress finds itself incapable of much action these days, Sen. Charles E. Grassley (R-Iowa) notably introduced a bill this year that provides a framework for presiding federal judges to permit television coverage of their trials. That legislation could be a model for a specific bill in the Trump case. This shouldn’t be a partisan issue. (Grassley’s bill was co-sponsored by four Democratic senators.) Democrats might expect the broadcast to demonstrate to skeptics the definitive clarity of the prosecution’s case against Trump; Republicans might count on the audience seeing the trial as a tedious, technicality-laden political stunt.
Allowing cameras in the courtroom squares with the purpose of the Sixth Amendment, which guarantees a public trial. The handful of public observers in the courtroom might technically meet the amendment’s criteria. But in our Instagram era, an event that allows only a few to actually see hardly seems “public.”
Televising the trial would also provide deep educational benefits. Law is often viewed as inaccessible, chock full of jargon and impenetrable procedures. This broadcast would provide a real-time civics lesson, especially for children, in how our legal system operates.
Some fear that televising trials will create a circus atmosphere, undermining the decorum and dignity of the court. That risk exists, but the far greater risk is that if this trial is done out of the public eye, many more people will question the legitimacy of the court and its decisions. We should do what is needed to keep that from happening. This case, after all, is not some celebrity spectacle or a morbidly fascinating murder being broadcast for ad revenue or high ratings. It is the gravest matter of public concern imaginable: A former president is alleged to have tried to launch a coup to keep himself in power, and used his powers as president to do so.
A recent high-profile case offers an example of the successful use of cameras in the courtroom: the 2021 trial of Derek Chauvin for the murder of George Floyd (in which I served as a special prosecutor). It took place in Minnesota, which has a flat ban televising criminal trials. The judge authorized an exception, even though the Minnesota rule mirrored the language of federal Rule 53. And television worked. Americans across the land watched the trial and observed the demeanor of Chauvin and the others involved. When the verdict was rendered, the fact that so many had seen the trial firsthand went a long way toward building public confidence in the jury’s decision.
Besides the states and other U.S. jurisdictions that allow criminal trials to be televised, the International Criminal Court also broadcasts its proceedings, using a 30 minute delay to ensure confidentiality of information. All of this reflects the need to assure the public that justice is being done.
This criminal trial is being conducted in the name of the people of the United States. It is our tax dollars at work. We have a right to see it. And we have the right to ensure that rumormongers and conspiracy theorists don’t control the narrative.
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