Donald J. Trump will walk into a federal court room — eventually — and stand in front of a judge and a jury. His hair will be perfectly poofed. And a prosecutor will accuse him of trying to interfere with the election of apresident of the United States.
And he will smugly smile or grimace or gesticulate. He will tug on his red tie. And when some of his co-conspirators turn on him, he will give them the stink eye. And one never knows what kind of fireworks will brew.
We will never see it, however. Artists will draw us scribbly pictures of the court room. But we will not see Rudy Giuliani squirm in the witness seat or Mark Meadows show his cool contempt as prosecutors unfurl Trump’s machinations in the days leading up to the Jan. 6 insurrection and coup. Not that it really matters, does it? The jury of 12 of Trump’s peers (does he have a peer?) will decide his fate.
And, like all defendants, he deserves what the Sixth Amendment guarantees — a fair, speedy and public trial. The question we now face — and have for 50 years — is whether “public” should be interpreted as a trial with television cameras silently whirring in a corner, capturing events for a viewing audience beyond the courtroom, whether livestream, on C-Span or rebroadcast on nightly newscasts.
Should the American people be able to view the first-ever criminal trial of an ex-President in American history, a trial many believe is pivotal for the future of the republic? Shouldn’t the voters, many of whom are suspicious of a “Deep State” conspiracy, be able to see the detailed allegations, the witnesses, the defense, the drama of the great confrontation?
The answer is, unequivocally, yes, if you share the sentiments of Justice Louis Brandeis, who famously said, “Sunlight is said to be the best of disinfectants.”
For me there is little doubt: as long as the presiding judge has complete control of how cameras are used and can alter a broadcast any time the judge fears it will interfere with a fair trial, then TV should become a normal part of federal and state courtrooms.
And, one way or another, we also need those cameras in the hallowed halls of the U.S. Supreme Court, even though as a high court judge once said, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Cameras in courtrooms serve American democracy
To not have cameras in our courts — especially when study after study has shown them to be useful and not an impediment — is just plain authoritarian. Democracy as a movie is a good thing, a necessity of the 21st century. But the powers that be — Chief Justice John Roberts and high-level legislators in New York — mysteriously don’t want the people to see what takes place.
The trials of Donald Trump “have raised the issue the public has not really cared about,” U.S. District Court Judge Robert S. Lasnik told me in a phone interview from Seattle. “Wait a minute, why not in federal courts? It’s an important moment in that sense.”
And Lasnik — a federal judge for 35 years — firmly supports cameras in courts. Judges, he says, “are all comfortable with the presence of cameras. We know how to control the courtroom and believe the more the people see how our courts work, the more they will feel good about their federal judiciary.”
I should note: Lasnik and I grew up together in New York City and are long-time friends. But he has special credentials on this press-related issue. He worked briefly as a journalist, has a master’s degree in journalism and has been especially active over the years in helping sketch out guidelines in federal courts for press-bar relationships.
Lasnik added cautionary notes on cameras. First, nothing in the First Amendment free speech clause compels that cameras be allowed in court. In fact, in 1981 the Supreme Court ruled that it’s up to states to decide the fate of cameras. But nothing prevents federal courts from allowing them. It is a discretionary privilege.
Thus, Georgia will allow cameras in Trump’s trial on 13 counts of interfering with the 2020 presidential election. But New York will ban cameras as the state tries to prove Trump paid off an adult film actress with $100,000 to hide an alleged affair — and protect his election chances.
As for televising Trump’s two upcoming federal trials, “There’s no chance they will be televised,” Lasnik predicts. “The federal judiciary takes forever. Not going to happen.”
This despite, as Lasnik notes, seemingly with some bewilderment, that various federal court committees over the years “almost to a person supported allowing cameras in the courtroom.” And yet only pilot projects on cameras exist in federal courts. “The Chief Justice could change this in a minute,” he bemoans. “Not sure what it will take for the policy to change with the Chief Judge being so opposed.”
In New York, cameras were allowed for a 10-year period in the 1980s. Two studies, ordered by the Legislature, found judges and lawyers better prepared. And the press did not sensationalize even sensational cases.
“The experiences of many states, including New York, have been overwhelmingly positive,” concluded Modern Court, a nonprofit that has lobbied for cameras. Yet, no cameras will capture Trump’s Stormy Daniels trial.
In Georgia, a state panel concluded, “Open courtrooms are an indispensable element of an effective and respected judicial system.” And there, cameras are permitted. Go figure.
What drives opposition to cameras in courts?
So why the opposition? Opponents throw out lots of possible evils, although it should be noted this is not a partisan issue. (Trump’s lawyers have not opposed cameras.)
Jurors and witnesses would feel threatened. The trial would become a circus a la O.J. Simpson’s. Lawyers would play to the cameras.
But Lasnik dismisses these myths.
“No doubt we can maintain the fairness of the trial,” he says. “Great example. The George Floyd case in Minnesota. The trial judge allowed cameras in. The public could see how he handled the criminal trial. It showed the American justice system the way it is supposed to be.
“Everyone,” Lasnik concludes, “ups their game when they know they are being watched.”
Many years ago, I took a news reporting class to a criminal trial in a state court in Kingston, New York. The judge actually asked who we were and welcomed us. But during the trial, he slurred his words. Twice he dozed off. The students were shocked, as was I. And I could only wonder: if cameras were capturing this, would he get away with it?
Cameras hold participants accountable. Publicity is indeed the soul of justice. But it also makes sure no one accused of a crime gets railroaded.
If Trump has a defense for all these alleged wrongdoings, let’s hear them. Or I should say, let’s see his defense. Bring it into my living room!
Rob Miraldi’s writing on the First Amendment has won numerous awards. He taught journalism at the State University of New York. Email: rob.miraldi@gmail.com
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