Federal Rule of Criminal Procedure 53 bans photography or broadcasting of judicial proceedings, which will include the forthcoming trial of Donald J. Trump on his four-count indictment surrounding January 6th. So, will the trial of the century of the millennium of the week be televised? Don’t count on it…
Writing in Washington Post, Neal Katyal argues for an exception, if not repealing, of the rule:
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.
On the one hand I agree, on the other I disagree.
~ The Internet
If we’re going to get a Code Red trial, then yes… if we’re going to get an OJ trial, then no.Report
Neither is going to happen. Congress passing an exception might happen if the Republicans really seem to believe that Trump is charismatic enough that an audience could help and the Democratic Party believes he will be exposed to the wind.Report
I tried a televised high-profile civil case in 1993, back when that was allowed. (Sadly, when my mother-in-law tried to tape it, I ended up with a shelf full of All My Children and other soaps.) It had genuine potential to be a circus, but it wasn’t. I can’t speak for my adversary, who seemed to act the same way he acted when not on television, but I know I was too focused on the matter at hand even to think about being on TV. The judge hated us, which several people noticed from watching the case on TV, but when they asked me about it I told them that being on TV seemed to keep him in bounds.Report
…but I know I was too focused on the matter at hand even to think about being on TV.
When I was on the budget staff for the Colorado legislature, every meeting of the Joint Budget Committee had live streaming audio. You had to learn to not think about the microphone in front of you, or you couldn’t juggle all of the details of what you were trying to do.Report
This trial should be televised though. Trump attempted to stage a coup. This is a really big thing. The political desires of the majority of voters on who they wanted to be President was almost subverted.Report
It’s a terrible idea especially since the vast, vast majority of trials are not televised. Making an exception would have Trump play to the television audience and only deepen the possibility of another crisis. It would undermine the system, not solidify it. If anyone wants to review the transcripts those should of course be available as normal as should witnesses be permitted to attend in person, again, in accordance with normal rules.Report
Just to add, people keep thinking putting Trump on tv will cause him to be damage himself politically. It fails every time.Report
It depends on how you put him on TV. When you don’t give him an audience to play too or don’t let him play to the audience, it doesn’t work.Report
He’s been on TV before, even had his own show. Most Lawyers for the DoJ have not. Likely the Judge has not.
Putting him into a situation where he has more practical experience than everyone else in the room combined has expected outcomes.
He uses the forum to generate PR for his Presidential Run. He also delays the Court Case so it doesn’t end before he becomes President.
After he becomes President he… pardons himself? Fires everyone in the DoJ who is involved?
Leave the Court Room officials inside their comfort zone.Report
As someone who has been there, I doubt that the DOJ lawyers will have trouble working on TV. A lawyer trying a case and doing it right is too intensely focused on the task at hand to be thrown off stride by TV cameras.
Trump’s TV experience, on the other hand, will be of very little help where he is unscripted and doesn’t set the rules of engagement.Report
How much of the OJ case disaster was because of the cameras?Report
Not much, I think.Report
A TV show that they had to massively edit because he was so random and haphazard. He’d just say things, make random decisions, and they’d have to glue together out-of-context snippits that at least vaguely implied what he said made sense.
Also, and perhaps more importantly: Defendants do not actually notable talk in trial. Literally, they did not generally utter a single word except their plea and maybe one or two housekeeping statements. Lawyers talk, not defendants.
The only exception is if Trump chooses to take the stand, which would be _hilariously stupid_ of him, I can’t even emphasis how stupid that would be. And honestly, the fact it’s on TV would make him more likely to do that, which in turn would make it more likely he’d incriminate himself and lose his case.Report
A much overlooked point. The only time Trump himself is going to talk is when he takes the stand. (I say “when” because any competent lawyer would tell him not to take the stand. Therefore, he will do the opposite.) The rest of the talk will be by lawyers and prosecution witnesses. It is unlikely that there will be any defensed witnesses of an consequence.Report
I’d love to hear Pence talk. Might lift his standing.
Not sure if he counts as a witness for the defense or not. Certainly Trump’s lawyer is trying to claim him.Report
I’d love to hear Pence talk too. I think the prosecution will call him and the defense will try to make hay on cross-examination rather than risk calling him themselves. Unless they are better than I think, it won’t help much.
But lift Pence’s standing with whom? After years of shameless pandering, he had a brief, glorious moment when he simulated being a vertebrate, and it cost him dearly. He has been flirting with doing it again, but it won’t help him with the voters he needs and everyone else will write it off as the soft bigotry of low expectations.Report
I don’t think it matters. Even if the proceedings themselves were kept under control you’d be producing nightly content for the Trump show, for him and his sycophants to spin to their hearts content. There is no upside.Report
Agreed. Absent some sort of Colonel Jessup meltdown hard to see an upside.Report
Even that would be spun in some kind of positive way. To tie it to a previous post, we’d have thoughtful, thorough, and technically accurate 2,000 word explainers from Ken White versus the ape like yodeling of cretin social media and cable news. It’s obvious who would benefit.Report
Sure, but the meltdown puts him in prison… no further questions.
Now, he might still win the primary and maybe the election, but I’ll cross that hypothetical after he self incriminates for fraud.Report
Trial wins or loses at jury selection no matter what else happens.Report
Of all the charges, these seem to be the most political rather than substantial. Don’t shine a light on what looks like a show trial unless you’re sure it’s not a show trial.Report
So you think it’s fine to conspire to overturn an election you lost?
Fascinating.Report
I don’t think it’s fine to conspire to overturn an election. I don’t think he did conspire to overturn an election. I don’t think what he did was fine. I don’t know that what he did was illegal.Report
https://en.wikipedia.org/wiki/Attempts_to_overturn_the_2020_United_States_presidential_electionReport
Hey, I remember that!Report
Have you read the indictment?Report
I read it over, which is to say, IANAL and I know I’m not going to get as much out of it as others might. It looks like a recap of events as they happened, events which we knew about as they happened, but with the words “co-conspirator” and “fraudulent” in place of “advisor” and “stupid”. I don’t see anything in it that’s new or that would persuade anyone that crimes did or didn’t happen.Report
It’s all going to be in the evidence produced. Good evidence, the prosecution should prevail; bad evidence, Trump walks.Report
Just curious – what would you want to see in terms of evidence to believe he did illegal things?Report
It’s not the evidence, it’s the lack of clear crimes.Report
So you don’t believe it’s crime to try and stop ballot counting? Fascinating.Report
Give me the specific situation and the specific crime.Report
“Will no one rid me of this turbulent priest?”Report
That quote is the opposite of what I’m saying. The Democratic side *is* saying that though. They’ve decided who they want to get rid of and they don’t care how.Report
Trump’s claim of innocence has exactly that ring.Report
Weird. The only similarity I see is that Henry II and Trump both don’t speak contemporary English. The pivotal difference I see between the two is that when Trump tried to push through his reelection claims, people stumbled over themselves in a mad rush to say no and exit the room.
If Trump had actually pursued “lock her up”, that would have been like Henry. Biden pursuing “lock him up” has been like Henry. Trump seems more like James II.Report
There is the not so small matter of January 6, which is the direct result of DJT’s words that morning. Not to mention more than a few slates of fake electors. The man’s finger was definitely in this pie, and he ought to answer for why it was in there.Report
20 Years Federal PrisonReport
So are you saying that it’s the fact that Trump didn’t do anything but complain that reminded you of Henry II?Report
Think of Mike Pence (LOL) as Thomas a Becket.Report
They’ve already convicted Jan 6th people for exactly this, aka, they’ve already determined that what was going on was an official proceeding and that the Jan 6th people did attempt to impede it.
They not only charged Trump with that, they charged him with conspiracy to do to that., 1512(k), which merely requires he planned it out with someone (Which they provide a lot of evidence for) and did one overt act to further it.Report
What is the evidence that he planned the obstruction – which started, specifically, when the protestors started to enter the Capitol? Or is there a different obstruction you’re talking about?Report
So you didn’t actually read all 45 pages of the indictment? Its all laid out there in chronological order. . .Report
That’s when the _actual_ impediment stated, but that was the conspiracy’s plan b, the first plan was to cause Pence to not present the result.
And to quote the indictment: The Defendant and his co-conspirators committed one or more of the acts to effect the object of the conspiracy in Paragraphs 13,15-16, 18-22, 24, 26, 28, 30-33, 35, 37-39,41, 43-44, 46, 50, 52, 54, 56, 57-56, 67, 71-75, 78-82, 84, 85, 87-97, 99-100, 102-104, 111, 114, 116, 118-119, 122.
But let me guess: You’re someone who thinks inventing fake electors and demanding the VP break the law might somehow be legal?
Then let me assure you, even if we pretend that is true, that Trump’s clearly illegal plan for Pence was legal…everything starting at 87 onward in that list is about the backup plan of mob violence, when it became clear Pence would not go along with it. That was the entire purpose of gathering supporters in DC, to either threaten Pence into going along with it (Which, regardless of whether or not he had the legal right to not present the result, I think we can all agree it is not legal to _threaten_ him into not doing that.) or cause violence in the streets.
Again: Trump does not actually have to have done anything criminal. All he has to do is have an understanding with others that crimes are going to happen, and do at least one overt action to help them along.
And the easiest overt act to show is the constant lies by Trump about how Pence _was_ going to object to to the votes, despite the fact that Pence had told him, repeatedly, point blank, that he wouldn’t.
There seems no logic to do that besides making the crowds angry, which, incidentally, Trump is quoted as saying they already would be the day before.Report
I suppose you believe that we ought to haul everyone to gaol who stopped an Election Judge from entering the ballot counting rooms…
NO? So much for democracy.
Do you honestly think I should vote for election judge this year, considering the way the last one was treated?
Barred from the ballot room, and I’m supposed to vote a new one? Dems aren’t even running an election Judge this year.Report