Sometime in the near future, former President Donald Trump may be charged with criminal offenses arising out of his participation in the January 6, 2020 insurrection in Washington, D.C.; the effort to overturn the election results in Georgia; and the unlawful possession and concealment of material related to the national defense in Palm Beach, Florida. He has already been indicted for crimes related to the payment of hush money to adult film actress Stormy Daniels. Trump’s prosecution for his part in the storming of Congress and in attempting to pressure Georgia’s Secretary of State Brad Raffensperger to “find” 11,780 more votes to make Trump the winner in Georgia may be the most consequential criminal cases in United States history. But will those consequences be good or bad for our democracy?
Even though there is no evidence that the election was stolen, 29% of the electorate believes it was. Few care that 86 judges, including 38 appointed by Republicans, rejected claims of voter fraud brought by Trump’s lawyers.
These Trump supporters subscribe to claims made by Fox News personalities that Trump won the election, despite the fact that neither these broadcasters, nor management, nor the owner of Fox believed it to be true. Trump’s followers will never abandon their support for Trump even if Trump is convicted by overwhelming documentary and testimonial evidence.
New York is the only state in the nation that prohibits televising trials. However, there is legislation pending in the New York Senate and the Assembly that, if enacted and signed into law by the governor, would make it possible for the Manhattan prosecution to be televised. Georgia permits televising criminal trials. It is quite likely that if a party or the press requests that the trial in Fulton County, Georgia, be televised, the court will exercise its discretion to grant this motion. In far less important cases, trial courts have been overturned for denying requests to televise the proceedings.
When the Federal Rules of Criminal Procedure became effective in 1946, Rule 53 prohibited broadcasting any proceedings in federal courts. But in 1988, the judiciary began to consider whether the rule should be changed. Thus far, the opponents of any change have prevailed. Those opposed to televising trials have successfully argued that participants in proceedings may be influenced by the presence of cameras. Depending upon the case, jurors might be afraid for their safety or the community’s reaction to their verdict. Lawyers may grandstand or prolong examinations so as to have more “face time” with the TV audience. And in numerous high-profile or celebrity state prosecutions, the greater publicity that TV brings has caused some judges to act in bizarre ways and lose control over their courts.
The poster child for these objections is the prosecution of O.J. Simpson. Judge Lance Ito has been universally condemned for his handling of the trial. While reasonable people may differ as to the validity of some of Judge Ito’s actions—such as allowing the trial to go on for almost a year or excluding certain arguably relevant testimony while admitting clearly irrelevant evidence—other actions demonstrated that he had totally lost control over the lawyers. In his book, The Run of His Life, The People v. O.J. Simpson, Jeffrey Toobin describes that loss of control. For example, frequently F. Lee Bailey and Marsha Clark traded insults in front of the jury. When Judge Ito limited the introduction of evidence of Detective Furman’s racist statements and admission of police brutality, Defense Attorney Johnny Cochran called a news conference at his office and condemned the judge’s ruling. During the course of the trial, Judge Ito would invite celebrities into his private chambers, and on the eve of opening statements, when he was considering the state’s motion to admit Simpson’s history of domestic violence, Ito told Larry King what his ruling would be.
By contrast, in the prosecution of Casey Anthony for murdering her child, another trial that captured the attention of the nation, Judge Belvin Perry was widely praised for his management of the trial.
This was no easy task since lawyers on both sides did their best to cultivate the media and repeatedly clashed in court, prompting Judge Perry to threaten to fine both defense attorney Jose Baez and Assistant State Attorney Jeff Ashton if they continued to act unprofessionally in court.
As to the safety of jurors and the potential impact that televised proceedings might have on their verdict, courts already have mechanisms in place to address these concerns. Juror sequestration has been around since the trial of the British soldiers for the Boston Massacre in 1760. The jury in the prosecution of mobster John Gotti was anonymous. The jurors were only identified by number in court.
There is no reason that televising a prosecution of Donald Trump would necessarily defeat these protections. The court can impose conditions such as the use of one stationary camera focused on the judge and the witness stand to prevent the jurors’ faces from being displayed on television, or counsel grandstanding. Of course, none of the practices are foolproof. Even without cameras in the courtroom, jurors can be photographed going to and from the courthouse.
It is highly unlikely that any federal judge presiding over the trial of Mr. Trump would engage in the kinds of antics that Judge Ito did. Indeed, federal judges uniformly run a very tight ship and conduct by defense counsel or prosecutors that is often tolerated in state courts can subject an attorney to discipline, as some of the lawyers who represented Trump have already found out. Some federal districts have local rules that circumscribe how lawyers conduct themselves in court. These rules may require that counsel stand behind the podium when addressing the jury or examining witnesses, prohibit counsel from repeating a witness’s answer during the examination of the witness, and restrict how counsel can make objections. Moreover, federal judges are appointed for life and there is an extensive vetting process that occurs even before they go before the judiciary committee for questioning by senators. Unlike most state courts, where judges are elected, federal judges are selected not only for their intellect and experience but also for their demeanor and discretion.
If it is true that Donald Trump was personally involved in the violent effort to prevent the Senate from declaring Joe Biden president, if it is true that he tried to overturn the election by promoting false electors and strongarming the Secretary of State of Georgia, the evidence of that conduct must be laid before the American Public. The viability of our democracy depends upon the legitimacy of our elections. Those who believe that the Democrats stole the election may not waiver from their beliefs, but like Holocaust deniers, they will find it far more difficult to convince others where the truth is available for anyone to see for themselves.
Moreover, while children will listen to what their parents have to say, they are much more independent of thought.
For that reason, for the next generation of American citizens to be able to make up their own minds about Trump’s culpability, unencumbered by second-hand reports and biased opinions, they must have the opportunity to see the evidence themselves, which can only happen if each of the trials is televised.
Although Rule 53 prohibits televising criminal trials in federal court, the Supreme Court makes the rules and can change the rules, even for one case. The New York legislature and the governor can enact pending legislation to permit televising trials in New York before Trump’s case goes to trial.
The Sixth Amendment to the Constitution of the United States guarantees that trials be open to the public. This right does not just belong to the defendant; it belongs to every American. It is a fundamental protection of our civil liberty. One cannot imagine any greater circumstance calling for an open trial than a prosecution of a former President of the United States. Today, it is no longer sufficient for trials to be open just to individuals to attend proceedings in person. It is no longer sufficient for the public to be limited by second-hand accounts of trial proceedings by reporters and pundits. For the sake of our democracy, in this one instance, the trials of former President Donald Trump must be televised so that anyone, anywhere in the country or the world, can see the truth for themselves.
Various resources were used in the preparation of this article, but the content and text were created solely by Jon May and not with any assistance by any artificial intelligence program.