A Dissenting Opinion On Cameras at the Trump Trials

These are not performances, and the American people are not the jury.

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I was a newsroom lawyer for a total of more than 20 years, and it was an article of faith in that work that important trials and appellate oral arguments should be televised (even though I never represented a company that owned many TV cameras). So I understand why lots of people, many of whom I deeply respect, are saying that the criminal trials of Donald Trump should be televised.

But I don’t agree, and I want to devote this week’s column to telling you why.

What we know

Let’s start with a few things on which I hope almost all of us can agree. First, the Trump trials, especially whichever is the first of them to be tried to a verdict—likely the Washington election obstruction case—will be critical moments for our democracy. And, as the Supreme Court ruled more than 40 years ago, there is a public right of access to such proceedings. So reporters will be present, and transcripts will be quickly available. You can expect plenty of coverage, including in near real time and in great detail, whether cameras are present or not.

Next, a number of red herrings have been advanced in the debate on cameras. Security, for instance, is not the question. Trump has now or will imminently be arraigned criminally in four cities, in two state and two federal courts. Order and decorum were, so far, handily preserved. No good judge will permit the naming, no less the photographing or broadcasting of jurors during the performance of their duties. And, yes, testifying against Trump will be challenging for some witnesses, but this risk has been greatly reduced by having most of the key witnesses testify already in private before grand juries, locking in their testimony and fortifying them with the risk of perjury charges if they don’t repeat what they have already said under oath.

The crux of the matter

The issue comes down to what cameras add—and how they may detract. They would surely add nuance to the ability of citizens not physically present to assess the credibility of witnesses, which is not a small thing. But don’t get too excited about this extending to Trump. He is exceedingly unlikely to testify in any of these cases, precisely because his compulsive lying would subject him to cross-examination in which his ability to filibuster and deflect would be greatly circumscribed, and from which he would almost certainly emerge battered in the eyes of the jury, no matter how some in the TV audience felt. This is why Trump didn’t testify when the company he ran was convicted in a criminal trial, nor in the Jean Carroll defamation case, even when it left him open to the jury’s conclusion that he raped a woman.

It would be better not to produce fuel for parodies

How might cameras detract? I think we have seen enough in recent decades to be pretty confident about this as well. Unfortunately, it is fact of life in our society that TV cameras turn even people who should know better into performers. Whatever you thought of the O.J. Simpson trial, if you are old enough to remember it, that was certainly the case there. (The George Floyd murder trial is admittedly a notable counter-example.) Cameras are why most congressional hearings are so unedifying, with our elected representatives almost invariably giving up the privilege of questioning experts in favor of the self-gratification of seeing themselves pontificate on TV—or, more recently, insult one another.

A fallacy about the real jury

Beyond this, cameras in the courtroom in a case of such momentousness help foster a misconception: The American people are not the jury in these cases. The jurors—Trump’s peers in the eyes of the law-- are. In our system, you don’t get to decide a case just because you watch the testimony. You also have to be selected in a process that aims to weed out the worst bias, then to swear an oath to comply with court procedures (including not discussing the case with others or reading accounts prepared by third parties), and finally must sit through instructions from the trial judge on what to consider, what not, and what the law governing the case is.

In the end, we have agreed as a society to generally accept the results of this system—including as safeguarded by trial and appellate judges-- not to make criminal justice a referendum on how people feel about defendants or prosecutors or anything else.

Listening closely

Interestingly, audio does not seem to have the same grandstanding effects as TV, and I would have no objection to audio broadcasting of the Trump trials. Here some evidence for how access does not undermine the integrity of the proceedings is found by how little changed oral arguments in the Supreme Court were at the height of the pandemic, when they were conducted remotely, essentially by conference telephone, or how small the effect seems to have been from making audio recordings of them available on a same-day basis ever since.

Donald Trump brought the circus to town in our politics. Too often, the press just sold Cracker Jacks and watched. As we sort through his criminality, it is time, indeed past time, for a sober reckoning, and to send the circus on its way. That requires access to the courts in near real time, and very public trials. But it does not require more spectacle. We need the searching eyes of reporters in the Trump trial courtrooms, but not those of TV cameras,