Nov 7 (Reuters) – Televising the federal criminal trial of former U.S. President Donald Trump for attempting to subvert the results of the 2020 election would put the fairness of the proceeding at risk, according to the special counsel prosecuting the U.S. Justice Department’s case against Trump.
Special Counsel Jack Smith urged U.S. District Judge Tanya Chutkan of Washington, D.C., to deny petitions by NBCUniversal and a separate coalition of news organizations, arguing in a Nov. 3 brief that the undeniable public interest in Trump’s case cannot override the concerns underlying a federal rule barring the broadcast of criminal trials.
NBC and the media coalition had argued, among other things, that because television cameras and microphones are now hardly noticeable, there is little risk that video equipment will distract jurors or otherwise disrupt Trump’s trial, which is scheduled to begin on March 4.
But the government countered that even if clunky video cameras and bright lights – which the U.S. Supreme Court cited in a 1965 case explaining why broadcasting a criminal trial might interfere with a defendant’s due process rights – are no longer a problem, the internet and social media are an even bigger threat to fairness.
“Paired with the ever-increasing acrimony in public discourse, witnesses and others who appear on video may be subjected to threats and harassment,” Smith’s brief argued. “Even the knowledge that their images will circulate on social media may temper a witness’s initial testimony.”
Prospective jurors, Smith said, might be unwilling to serve if Trump’s trial were televised for all to see. (As you may recall, the government has already told Chutkan that it’s worried about protecting the privacy of prospective jurors.) And even after a jury is seated, the special counsel argued, jurors might feel intimidated by video coverage, even if their faces are concealed from the cameras.
The special counsel also said there’s a risk – “possibly more so” in this case than any other – that a live video stream of the trial will prompt “grandstanding” by participants in the case.
So, according to Smith, Chutkan should resist media requests to carve out an exception to the federal rule barring the broadcast of criminal proceedings.
That rule, Smith noted, has repeatedly survived 1st Amendment challenges to its constitutionality. That precedent, he said, includes an internet-era decision in which U.S. District Judge Leonie Brinkema of Alexandria, Virginia, denied a media request to broadcast the trial of accused al Qaeda 9/11 conspiracist Zacarias Moussaoui, citing concerns about protecting jurors and witnesses.
Moreover, Smith said, the governing body of the federal court system, has steadfastly refused to loosen the broadcast prohibition, which was formally adopted back in 1946. The federal Judicial Conference most recently reconsidered the issue in September, when it ordered courts to revert to pre-pandemic strictures on remote access to most proceedings. Even during the pandemic, when courts allowed unprecedented video access to hearings, the Judicial Conference did not allow any witness testimony — in civil or criminal cases — to be televised, Smith said.
Media organizations, he argued, are certainly free to lobby the Judicial Conference to change its anti-broadcast rule, as, indeed, the media coalition in the Trump case has done. But Smith said there’s no basis for Chutkan to disregard a recently reaffirmed policy that has never been deemed constitutionally invalid.
Trump defense lawyers John Lauro and Todd Blanche did not respond to my request for comment. Lauro has previously said in television interviews that his side would welcome cameras in the courtroom for Trump’s trial. Smith’s brief said, however, that Trump’s lawyers told the special counsel they will take no position on the media petitions to televise the case.
Siding with the government and denying video access to Trump’s trial would be the easiest course for Chutkan, for all of the reasons Smith offers in his brief. But would it be the right outcome?
Full disclosure: When I first wrote about the media petitions last month, my employer, Reuters, was uninvolved in the matter. Reuters has since joined the coalition petitioning for video access to Trump trial.
As I told you in that column, media lawyers contend that the public’s 1st Amendment right of access to criminal trials must extend in this case beyond the journalists and spectators who are able to attend Trump’s trial in person.
The public, according to the media petitions, has an undeniable constitutional right to know what’s happening in the Trump trial. And because modern technology allows news organizations to provide that access without disrupting the proceeding, the media petitions said, it would be unconstitutional to televising the trial.
Media coalition lawyer, Chuck Tobin of Ballard Spahr said the government’s new brief fails to acknowledge that state courts across the country have now concluded that criminal trials can be televised without compromising the fairness of the proceedings.
“Camera technology is so unobtrusive now that, in the many states and federal civil courts that actually allow them, people hardly notice,” Tobin said. “As far as grandstanding — whatever that means — for generations judges have successfully used the host of tools at their disposal to control any inappropriate behavior.”
NBC counsel Theodore Boutrous of Gibson, Dunn & Crutcher pointed me toward a section of NBC’s petition that seems to undermine Smith’s arguments about witness intimidation. Trump’s impeachment after the Jan. 6, 2021, riots and a subsequent Congressional Jan. 6 inquiry were both televised. And if the judge in the criminal case decides that a particular witness needs protection, NBC said, she can use her discretion to cut off video access.
In short, the media organizations contend that members of the public have a right to see the unfiltered evidence behind the Justice Department’s charges against the former president and to make up their own minds about whether Trump committed a federal crime.
I’m glad my employer has now signed on to that position. In polarized times, people need to see evidence. Courts should allow them access to it.
Read more:
Should Trump’s federal election subversion trial be on TV?
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Reporting By Alison Frankel
Our Standards: The Thomson Reuters Trust Principles.
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