Donald Trump’s election conspiracy case may be billed as the trial of the century, but as things stand, the public won’t have any way of seeing or hearing it — save for going to the E. Barrett Prettyman United States Courthouse in Washington, D.C., waiting in line and hoping for a seat.
Federal criminal courts long have prohibited cameras or recording devices of any kind, but the momentous nature of the Trump case already has seen Capitol Hill lawmakers argue for an exception, and a coalition of major news organizations is expected to make some sort of appeal to the judicial branch.
Yet as unlikely as Depp/Heard-like live coverage of Trump’s federal case seems, given futile efforts so far to secure camera or audio of the proceedings, legal experts say that there are other options that would at least expand what is available.
Other options include:
- Audio coverage. During Covid, the Supreme Court started to allow live audio streaming of oral arguments, a move that boosted hopes for further expanded access. There also was a break from precedent at district courts during the pandemic, as the public and media were allowed to listen to virtual proceedings, as long as they weren’t recording or broadcasting them. Audio also would address a central concern that judges have about cameras in the court — that they inadvertently might show jurors.
- Partial coverage. Another option is to allow cameras or audio for portions of the proceedings, like attorney opening and closing statements. That is far short of being able to transmit the most compelling aspects of the Trump trial — think Mike Pence’s testimony — but it is something that would convey the experience in the room. Some federal appellate courts already allow cameras to capture oral arguments.
- Tape delay. The Supreme Court in 2000 saw the unprecedented nature of the Bush v. Gore case and allowed the release of audio of oral arguments just shortly after they finished. That sounds like a pretty minimal step today, but it was a big deal at the time, as the justices had traditionally waited for a month to release those recordings. The point, according to University of Minnesota Law Professor Jane Kirtley, is that there have been moments when the high court has recognized when a case has such a large-scale public impact that it is necessary to break from longtime tradition. “My own gut feeling is the only way this is going to work is if the Judicial Conference, and [Chief Justice] John Roberts is approached with the argument of the exceptional nature of this case and that this is a one-off,” she said.
- Virtual courtrooms. Cameras already were in the courtroom when Trump appeared for his arraignment in Washington, D.C. The purpose, though, was to provide a video feed to public overflow and media rooms within the courthouse. Cameras and recording still were prohibited in those rooms, but it at least opened up the proceedings to more than 200 additional members of the public and media. One idea that has been floated in the past is to expand those virtual proceedings to other courthouses around the country. It’s far short of any kind of broadcast, but it still would mean more people can watch. This idea was floated back in 2010, when a federal trial over California’s ban on same-sex marriage was set to begin. Although the judge in the case approved of the plan for the virtual transmissions, defendants objected and the Supreme Court put the kibosh on it.
Attorney Ted Boutrous, who was part of the legal team representing plaintiffs in the Prop 8 case, has been a big supporter of cameras in the courtroom and said that there is ample example of judges being “very good at managing the circumstances.” He also noted that modern technology has made equipment less disruptive, while there are plenty of hybrid examples that have tested and have worked.
“It’s hard to argue against it, especially if the defendant is willing to support it,” he said.
That seems to be the case. Over the weekend, Trump’s attorney John Lauro told CNN he personally wanted cameras allowed.
In an op-ed in The New York Times this week, Court TV founder Steven Brill wrote: “The last thing our country and the world needs is for this trial to become the ultimate divisive spin game, in which each side roots for its team online and on the cable news networks as if cheering from the bleachers. Much of that would still happen, but imagine how a quiet and methodical but sure to be riveting presentation of both sides’ arguments — subject to the rules of evidence and decorum of a federal court, not the algorithms of Facebook and Twitter — might temper the national mood when a verdict is announced.”
But he was clear-eyed about what it might take to allow for cameras or any other rule change, for that matter. The U.S. Judicial Conference, chaired by Roberts, would have to vote to suspend the rules prohibiting cameras, as would the judicial council of the D.C. Circuit. There also would be a change to the federal rules of criminal procedure.
Boutrous, who has represented the news media in a number of cases and issues of access, said that there is still time to do so before a trial, perhaps eight months to a year. While Brill and Kirtley say that the appeal should be the extraordinary circumstances of the Trump case, Boutrous said that it may be better to seek a rule change that could apply to all circumstances and now be “Donald Trump specific.”
As Trump was arraigned in his New York state criminal case in April, the judge did allow for a brief moment where still cameras could capture the former president and his attorneys, but they had to stop when the proceedings started. There is a bit of a conflict in New York law when it comes to trial court proceedings, but media can request to broadcast or record any proceeding that does not include witness or party testimony, according to the Radio and Television Digital News Association.
Trump also faces the prospect of charges in Georgia, where state courts do not have a blanket prohibition. The rules say that a “properly submitted request for recording should generally be approved,” but judges still have discretion.
“It would be somewhat strange for viewers to be able to see that trial and not the federal trial,” Boutrous said, albeit he said that he believes that courts will still be respected even if cameras are not allowed. “But there is so much public benefit.” He and others point to an adage: “The public can trust more of what they see.”
Kirtley notes that Minnesota courts have a policy that generally has restricted cameras of criminal proceedings, but Peter Cahill, the judge in Derek Chauvin’s trial for the murder of George Floyd, allowed for access, in part because of the obvious importance of the case and because of Covid restrictions otherwise limited in-person attendance. Cameras still were not allowed to show those testifying, with audio only, but Kirtley said that the experience showed that a judge’s concerns can be worked out.
“None of the things that naysayers said would happen happened,” she said, noting that Attorney General Keith Ellison had shifted from opposing cameras to supporting them.
“All of the arguments about cameras being a distraction and about the potential intimidation of witnesses — those are all things that judges have the inherent authority to control,” she said.
Federal courts have tested the idea of cameras in the courts going back to the 1990s but always have come out against it. With the sensationalism of the 1995 O.J. Simpson trial in Los Angeles, a state proceeding, “suddenly cameras became the scapegoat,” she said, noting that federal courts operate under stricter rules.
“All of those things they worry about can be dealt with,” she said.
C-SPAN, which long has advocated for cameras in the Supreme Court and increased access in Congress, is part of a national media coalition advocating for access to the Trump federal and state trials, according to a spokesman. The channel “stands ready to provide live, gavel-to-gavel coverage of these trials on its TV and digital platforms on behalf of an informed public,” the spokesman said.
The most recent effort to ease the federal court policy in the Trump cases took place in June, when a media coalition requested limited camera access to Trump’s arraignment and the release of audio recordings immediately following the proceedings.
The coalition, which included major networks and news publications, argued that “the special and historic nature of this case warrants, at the very least, a limited, non-disruptive visual record before the hearing begins.”
The response from Magistrate Judge Jonathan Goodman was not only to reject the request but to deny electronic devices anywhere in the courthouse, including an overflow room with a video feed. That left networks scrambling to devise unique ways to get the news out about Trump’s not guilty plea.
While that was a last-minute request, past efforts to secure camera access to cover federal trials and pre-trial proceedings have had limited success.
In the 2010 Prop 8 case, the judge also was set to allow YouTube to stream the proceedings, albeit not live, and it eventually would be part of a Ninth Circuit pilot program to test cameras in the courtroom for civil proceedings. After the Supreme Court halted the plan, the proceedings still were videotaped — with Boutrous among those arguing at least for that historic record. But it was only last year, after records were sealed for a decade and then some extensive legal wrangling, were they made public. (The link to the proceedings is here.)
Despite experiments with cameras in federal district proceedings — some Ninth Circuit districts have continued a pilot program for civil cases — Judicial Conference has stuck with the status quo.
So far, the public’s information about Trump’s criminal case proceedings has come from journalists’ own accounts, something that will get more complicated once trials begin, or later in the day when official transcripts are released (for a hefty price). At the very least, in places where electronic devices are allowed in overflow rooms, there will be heavy reliance on fast typists for something close to real-time transcripts
With no cameras or audio feed, it would be up to the networks or major news organizations to come up with alternatives. When the Prop 8 case was unfolding, two filmmakers took to enlisting a group of actors for re-enactments of each day’s proceedings, based on court transcripts.
Thirteen years later, with advances in AI, could something else be possible?
Content Source: deadline.com