As most, if not all, of us know by now, on August 1, 2023, the criminal case of United States of America v. Donald J. Trump, Dkt. No. 1:23-cr-00257-TSC was filed in the United States federal district court in Washington, D.C. This is the big one (asserting Trump’s violation of our criminal laws in four substantive counts, to overthrow the free and fair 2020 election) among the three indictments lodged so far against him, with a fourth in Fulton County (Atlanta), Georgia expected shortly. One of those counts is his conduct—not speech—to violate the civil rights of everyone by trying to take away the vote that we cast for president in 2020. This lawsuit is all about Trump’s attempts to subvert the underpinnings of our Constitution and our constitutional rights, not to mention attempting to shred the democracy upon which the nation is based and grounded.
So, what does all this have to do with cameras in the courtroom? Plenty.
The springboard for this is a compelling and forthright op-ed scribed by law professor Neal Katyal of Georgetown University and former acting solicitor general of the United States from 2010-2011 (he is often seen on MSNBC as a legal analyst and commentator). His writing appears here. The thesis of it is not peculiar to any confidential or singular observations because they are already part of the public dialogue and in plain sight; however, the views he espouses need to be spread around and be repeated, certainly for the readers of this site, so I will take on that task.
Some states allow cameras or video recordings in the courtroom, but, to date, none are allowed in federal courts. Federal Rule of Criminal Procedure 53, first adopted in 1946, states:
Except as otherwise provided by a statute or these rules,
the court must not permit the taking of photographs in the
courtroom during judicial proceedings or the broadcasting of
judicial proceedings from the courtroom.
1946 is not 2023, and certainly not next year when this Trump case is expected to go to trial. Nowadays, we are used to experiencing events in real or almost real-time; that, of course, did not exist in the middle of the 20th century where how we found out about trials was through written documents called trial transcripts available days and months after the fact, or through an occasional reporter’s notebook.
Notwithstanding Rule 53, and as explained by Professor Katyal, there are two ways to circumvent the rule’s mandate. The first is for the Judicial Conference headed by Chief Justice Roberts to amend the rule, more likely merely to authorize the broadcasting of the Trump trial. The other mechanism is for Congress to enact legislation. To this end, Senator Chuck Grassley (R-Iowa) introduced bi-partisan legislation earlier this year, providing a framework for federal trial judges to permit television coverage of their trials. Whether either of these options becomes persuasive will depend on what we Americans want to see when our democracy is being threatened and why a former president wanted to deprive us of how we voted in 2020. There is an even more critical reason for wanting to see Trump’s trial televised.
Our country is divided, with Trump spewing daily assaults, lies, and dishonesty, if not threats, on everyone that does not come to him on bended knee, currently and notably Special Counsel Jack Smith and his team of prosecutors, law enforcement officials, the DOJ, the judge to preside over his case, Hon. Tanya Chutkin, etc. On August 4, three days after being indicted, Trump wrote on his Truth Social platform, “IF YOU GO AFTER ME, I’M COMING AFTER YOU.” Threatening words of a mob boss have prompted Smith to ask the court for a protective order against Trump. Millions are part of his cult. Get the point?
Trials involve seeing and listening to witnesses on direct and cross-examination, typically not important, of interest, or relevant to our daily lives. And, depending on what cable channel one views, such testimony can be filtered through a particular political lens or from a perch unfamiliar to us offered by a particular anchor or reporter. So, notwithstanding the educational value to the lay public, certainly for our children, of experiencing a televised trial, it is even more important -given all the dynamics and parameters surrounding Trump-that all Americans be provided the opportunity to judge for themselves who testifies, what testimony is offered under oath, how such testimony is received, and how the judge rules on various matters. We don’t need human filters, at least anything coming from the mouth of Donald J. Trump or his pundits over cable news channels answering his beck and call. The same goes for those who oppose Trump’s words at every turn.
As Katyal opined, some fear that televising the trial “…will create a circus atmosphere, undermining the decorum and dignity of the court.” That risk is worth taking, for it is (also) outweighed by only receiving daily reports each day of the trial by those reporters allowed in the courtroom to be interpreted by many as illegitimate, clothed in bias and prejudice, or promoting the views of the reporter’s network or channel. Absent seeing what transpires first-hand would additionally call into question the court’s legitimacy and its decisions—again, depending upon one’s views. And we certainly do not need politicians in Congress giving us their opinions and telling us what to believe, depending on whether they have an R or a D after their names. Katyal could not have more bluntly put it, “And we have a right to ensure that rumormongers and conspiracy theorists don’t control the narrative.”
A final word. This trial is brought on behalf of the people by prosecutors. Likewise, the Trump trial, of course, paid for by the taxpayers as are our criminal trials, has at its core a past president as a defendant exposed to years in prison if found guilty, the first in the history of the country; a past president whom it is alleged tried to steal our votes as part of a fraudulent conspiracy with others; a past president’s vice president scheduled to be a star witness against him at that trial; and a past president who tried to steal our democracy from under us. Thus, don’t we have a right to see with our own eyes and listen with our ears unfiltered by anyone else’s reporting whether the allegations against him can be proven beyond a reasonable doubt? After all, it’s the people’s country and democracy on trial; Trump is merely the vessel to test their survival.
Perhaps more so, only through witnessing the trial in real-time can we ever hope to heal and restore our faith in our constitution, our democracy, and, just maybe, each other.
A graduate of Case Law School in Cleveland, Miles Zaremski is the longest-serving chair of the American Bar Assoc.’s Standing Committee on Medical Professional Liability and a past president of the international organization, The American College of Legal Medicine. He is also an author of many acknowledged and peer-reviewed publications, including several articles published by this site.