Trump Trials on TV Would Be a Circus and Public Service

From a Wall Street Journal essay by Peter Funt headlined “Televising the Trump Trials Would Be a Circus and a Service”:

Monday’s indictment in Georgia of Donald Trump and 18 others on racketeering and related charges differs in many respects from the two federal cases now pending against the former president, but one difference could have particular significance: The new case, if it goes to trial, is likely to be televised. Federal courts traditionally prohibit cameras in the courtroom, but the new case would be adjudicated in Georgia Superior Court, where TV coverage is routine.

Live coverage of O.J. Simpson’s murder trial in 1995 was the most-watched TV event in U.S. history, with an estimated 157 million Americans tuned in as the “not guilty” verdict was read. Nothing, including the Apollo moon landing in 1969 (125 million) or this year’s record-setting Super Bowl (115 million), has topped it. Trump’s Georgia case could eclipse those numbers (assuming it isn’t moved to federal court, as Trump’s legal team may try to do).

Televised theatrics in Simpson’s trial are frequently cited by opponents of cameras in court. Earlier this month The Wall Street Journal’s editorial board came out against such coverage for Trump, stating that many Democrats want “a long-running O.J. Simpson-style trial that consumes public and political attention, especially if it takes place before Election Day in 2024.” But one of Trump’s attorneys, John Lauro, has since taken the opposite view, saying that he would “love” to see live coverage.

Do courtroom cameras interfere with the administration of justice? The decades-old argument is that participants in a trial might speak and act differently when cameras are present. Trump’s civil trial in May, in which a jury found him liable for sexually abusing and defaming the writer E. Jean Carroll nearly 30 years ago, was not televised, but portions of a pretrial deposition were. A person familiar with the case said that Trump seemed to play to that camera and that the video had a significant impact on jurors. It showed Trump calling Carroll’s attorney Roberta Kaplan a “disgrace” and saying that, as with Carroll herself, he could take no sexual interest in Kaplan either.

In Georgia, the judge in Trump’s case is Scott McAfee, appointed last February to fill a vacancy on the bench. McAfee has his own YouTube channel, on which he posts clips of his trials, so his support of courtroom telecasts is well established. And if ever participants in a trial had reason to play to the larger TV audience, it would be Trump, McAfee and prosecutor Fani Willis, each of whom is seeking election in 2024. Trump has already labeled Willis a “radical Democrat activist,” who is using the case “for her own political benefit.”

Would TV have a political impact? Trump presumably believes a televised trial would help his campaign since his representatives are openly advocating it.

“Trump is masterful when it comes to television,” said Douglas Heye, the former communications director of the Republican National Committee. “But he’s never been in a situation like this, and if the Georgia trial is televised, the judge will be in control and the process will be regimented. Trump may try to break that, but it’s not clear if he’ll be able to.”

Is the public entitled to a televised trial? Lawyers for a coalition of news organizations are discussing strategy to request TV access at Trump’s federal trials, similar to what occurred in 2000 regarding the Supreme Court’s consideration of Bush v. Gore. Back then, Chief Justice William Rehnquist cited “heightened public interest” in allowing audio recordings—though not video—of oral arguments in the case to be released to the media immediately, rather than weeks later through the National Archives as was then the Court’s practice.

C-Span took the lead in the 2000 matter, and its current co-CEO, Susan Swain, says, “I can’t think of a more compelling national interest than these trials that are in front of us now, to make the case for electronic access to the federal courts. This is so important for our republic, it’s so important for the faith that people around this country—and I would argue around the world—have in the American judicial process.”

A 2022 study on the impact of television in courtrooms—in this case, state supreme courts—reached a different conclusion. One of the authors, Ryan Owens, a professor of American politics at the University of Wisconsin-Madison, says, “If we televise everything, and we turn trials into media circuses, I don’t think it does anyone any good. I don’t think it does litigants any good. I don’t think it does the courts any good. And I don’t think it does any good for the people’s views of the judiciary.”

Justice is the overriding consideration in a criminal case, of course, but Trump’s trials might be one of those rare situations in which other factors also weigh heavily. For example, Gerald Ford decided in 1974 that the public was better served by forgoing a criminal trial for Richard Nixon. His decision to pardon Nixon wasn’t based on strict justice; it was based on both political calculation and what he saw as the public interest. As Ford said at the time, “It is not the ultimate fate of Richard Nixon that most concerns me, though surely it deeply troubles every decent and every compassionate person. My concern is the immediate future of this great country.” Chief Justice John Roberts, in his role as head of the policy-making Judicial Conference of the United States, could reach a similar conclusion in permitting TV at Trump’s federal trials.

Recently introduced bipartisan legislation known as the “Sunshine in the Courtroom Act” would grant presiding judges in all federal trials authority to permit live television (with restrictions on the identity of jurors and witnesses, if necessary). “Allowing cameras access to the federal and Supreme Courts would be a victory for transparency,” said one of the sponsors, Republican Sen. Chuck Grassley of Iowa, “and would help the American people grow in confidence and understanding of the judiciary.”

If the trials are televised, Trump might well play to the cameras and make a mockery of the proceedings. But even without cameras, he’s likely to attack the process in speeches and social media and write his own version of the story. In an age of disinformation, “alternative facts,” media echo chambers and aggressive political speech, live TV might be the best choice among flawed alternatives.

Complicating matters, if cameras are not allowed at Trump’s trials, it is likely that some broadcaster will use actors to present quickie re-enactments, as was done by E! Entertainment television during O.J. Simpson’s 1996 civil trial and Michael Jackson’s 2005 trial for alleged child molestation. Today, AI technology could be used to speed such stagings and distort them for dramatic effect.

Among the 19 defendants in the Georgia case is Rudy Giuliani, the Trump attorney and adviser, who in 2000 was mayor of New York during the trial of four police officers for the shooting of an unarmed man, Amadou Diallo. The cops were acquitted, and Giuliani credited courtroom TV for helping citizens accept the contentious verdict. “I commend the judge for opening the courtroom to cameras, because people can make their own judgment about this case,” he said. “I believe that fact alone—the camera and the television coverage of it—has changed the minds of a lot of people about what happened.”

Peter Funt is a journalist and TV host and the author, most recently, of “Playing POTUS: The Power of America’s ‘Acting Presidents.’”

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