Donald Trump’s criminal trial in federal court in Florida is scheduled to begin in August, although most likely it’ll be months later, given all the issues around classified documents and Trump’s penchant for delay as a legal strategy.
Nonetheless, it’s an historic milestone for both the presidency and our criminal justice system, and the American public deserves to watch it on television, live and in real time.
State courts began to let cameras in the courtroom during the late 20th century and today about two-thirds of the state courts in the country allow, typically on a case-by-case basis, some recording or livestreaming of court proceedings.
Federal courts, however, generally prohibit live cameras, a prohibition that extends from District courts all the way up to the Supreme Court.
The old objection to recording or carrying proceedings live was always that “lawyers will play to the cameras.” Thirty years of experience with state courts, though, have proven this wrong; there’s no discernable difference between courtroom behavior with or without cameras.
Another objection was that it might subject accused people to unnecessary notoriety by being televised, but mug shots and other evidentiary photos and video are routinely subject to release, either voluntarily or through legal proceedings invoking freedom of information concerns.
Cameras in federal courts have been an issue for years, with bipartisan support in both chambers of Congress; they just haven’t yet hit the threshold to make it through both bodies as final legislation.
In the Senate, Republicans Chuck Grassley and John Cornyn have been joined by Democrats Amy Klobuchar, Dick Durbin, Richard Blumenthal, and Ed Markey in co-sponsoring the Sunshine in the Courtroom Act of 2023, which would give Federal District Court judges — including Aileen Cannon — the power to authorize live or recording cameras in their courtrooms.
Senator Grassley believes it’s not particularly controversial and with a push from the public could become law:
“I think it is just a matter of getting it on the agenda and it will become law,” he told reporters.
Democratic Senator Blumenthal was equally enthusiastic, telling CBS News he believes:
“[T]he vast majority of the American people want more visibility in the courtroom.”
Back in 2005, Chuck Schumer in the Senate sponsored companion legislation to a House amendment that would allow cameras in federal district courtrooms; it passed the House but never made it through the Senate.
The 2023 version of the law to allow cameras in courtrooms gives Federal District Court judges wide latitude:
“[T]he presiding judge of a district court of the United States may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides.”
It’s not a mandate; it’s merely permission. And another section explicitly prohibits filming the jurors or conferences between attorneys or attorneys and the judge.
While I’d argue this should be expanded to include Appellate courts and the Supreme Court, it’s at least a start and one that would apply to the Trump trial.
Assuming the experiment with District courts turns out the same as it has with state courts — producing no downside but enlightening the public — the next step could include the Supreme Court.
Canada, after all, has allowed television cameras in their Supreme Court for years with a positive outcome. And several of our Court’s justices have already weighed in on the possibility:
Sam Alito said at his confirmation hearing:
“I will keep an open mind despite the decision I took in the Third Circuit [in favor of permitting camera coverage].”
Sonia Sotomayor also told the Senate:
“I have had positive experiences with cameras.”
Similarly, when Elena Kagan was asked about cameras in the Supreme Court, she was unambiguous:
“I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people.”
This spring, Americans were glued to their TVs for the Alex Murdaugh trial in South Carolina. It was not only interesting; it educated many about courtroom procedure, the importance of a presumption of innocence, and other aspects of our justice system and law more people should understand.
It was, in addition to being compelling programming, a public service.
The trial of the first president formally charged with crimes is far more important and historic than the courtroom drama of a country lawyer who murdered his wife and son.
It’s also an important slice of history that future generations deserve to see, hear, discuss, and learn from. And that will only happen if it is recorded on video.
As Justice Felix Frankfurter noted in a concurring opinion in Pennekamp v Florida (1946):
“Of course, trials must be public, and the public have a deep interest in trials.”
In Maryland v Baltimore Radio Show (1950), Frankfurter expanded his thoughts on the importance of public access to trials:
“One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.”
And the Supreme Court has already asserted that all trials must be open to the public, most notably in their 1980 decision in Richmond Newspapers, Inc. v. Virginia. Putting television cameras in a courtroom is merely an extension of this doctrine.
Back in 2011, fourteen District Courts began an experiment to test the impact of cameras in the courtroom, although the trials were limited to civil matters. As the Columbia Law Review noted in 2014, arguing for an extension and expansion of the program:
“The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, the program has revealed an equally important, and unanticipated, benefit: improving the quality and integrity of future adjudication.”
I’ve been unable to find any legislation in the House of Representatives that would parallel Grassley’s Senate bill, so now is definitely the time to begin lobbying for one. This should — like the Senate bill — be an easy bipartisan issue, particularly with Trump’s trial coming up.
If Republicans believe his defense is strong, they’d want their voters to watch his attorneys present it: after all, he may well be their presidential nominee next year.
On the other hand, if there’s more than a handful of Republicans in the House who believe Trump is going to be found guilty and would like to improve their party’s chances of taking the White House by getting him convicted and out of the way, they should join with Democrats — who broadly support judicial transparency — in co-sponsoring and voting for such legislation.
The federal courts are not going to do this on their own: Congress will have to act.
And Congress only acts when it’s provoked, by either money or public opinion. We, of course, are the public. We should let them know our opinion.
Now is therefore a good time to call your representative in the House and your two Senators to let them know if you’d like to see the Trump trial on TV, requiring them to act on legislation allowing it.
You can reach out by calling 202-224-3121, the main switchboard for Congress. If you’re not sure of who represents you, the operator will be happy to tell you when you provide a just a state or ZIP Code.
As they say on TV, call now!
