As the indictments against former President Donald Trump multiply, TV and print media commentators as well as members of Congress have called for cameras in the courtroom. They claim that broadcasting the trials will increase the public’s understanding of the charges and the evidenceagainst Mr. Trump and that it is the only way there can be full “transparency.” Even Mr. Trump’s lawyer John Lauro says he “personally” wants the American public to see “what kind of prosecution is going on.”
But the arguments in favor of broadcasting the trials do not give enough weight to the dangers that could pose to trial witnesses and jurors, or the potential to undermine the integrity of the trial processes themselves.
As an assistant United States attorney in the Southern District of New York, I tried a number of Mafia and organized crime cases. It was difficult, if not impossible, to convince ordinary citizens to testify in such cases because they were all fearful of physical retaliation. Even armed with subpoena power, I was reluctant to force people to testify, not only because of the real danger that existed but also because of the impact that fear would have on their testimony before the jury.
The Trump trials are no different. The judge who presided over the E. Jean Carroll civil (not criminal) rape trial, Lewis Kaplan, explicitly recognized the danger to the jury of being harassed and targeted by Trump partisans and ruled that the names of the jurors not be publicly disclosed. “If jurors’identities [in this case] were disclosed, there would be a strong likelihood of unwanted media attention to the jurors, influence attempts, and/or of harassment or worse of jurors by supporters of Mr. Trump,” Judge Kaplan found on March 23. In reaching that decision, the judge referred to reports of Mr. Trump’s previous “violent rhetoric.”
The concern is the same for witnesses in the Trump criminal prosecutions. If there was any doubt that Judge Kaplan’s reason for protecting the safety of jurors applies equally to trial witnesses, it was obliterated last week when Mr. Trump threatened on social media: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
It is one thing to testify in a public courtroom; it is a whole different level ofpublic exposure to testify before the entire world on television. A witness who is named and pictured on television becomes a sitting duck for any Trump partisan intent on seeking retribution.
A major lesson from the O.J. Simpson murder trial, which gripped the nation when it was broadcast starting in1995, is how the impact of television can undermine a trial when the judge, the lawyers, the defendant and the witnesses play to the viewing audience, as they did then. This turned a grave murder trial, with Mr. Simpson’s guilt or innocence hanging in the balance, into daily entertainment.
Mr. Trump likely wants cameras in the courtrooms precisely for that reason. His successes or failures as a president will likely always be debated, but almost everyone agrees that he excels at creating reality TV. No matter how experienced a judge is in controlling the courtroom, Mr. Trump could, through gestures or well-timed outbursts, try to use the broadcast to sway public opinion and in the process undermine the trial’s solemnity.
Concerns about witness intimidation and safety in this case certainly extend to potential TV coverage. Broadcasting trials is sometimes acceptable, but in this instance, because of concerns about protecting witnesses and jurors, shots and angles would almost certainly not include their faces nor jurors’ reactions to the evidence. But they are critical elements of understanding witness credibility and impact on a jury.
Judges have the power to enforce decorum in their courtrooms. A criminal defendant who defies the formalities of the courtroom risks being held in contempt and being fined or immediately incarcerated. Unfortunately, the threat of contempt will not restrain Mr. Trump, who has already personally and publicly issued verbal attacks against Manhattan District Attorney Alvin Bragg and the judge presiding over the New York prosecution as well as Special Counsel Jack Smith.
Mr. Trump’s contemptuous behavior would likely have landed any other defendant in jail, but it is highly unlikely that any judge will take such a step with the former U.S. president.
To ensure greater transparency, the media can do more to, among other things, regularly rely on commentary from seasoned criminal trial lawyers who actually attend the trials and can provide in-depth, practical legal analysis.
For example, in the E. Jean Carroll case, the press extensively reported onthe cross-examination of Ms. Carroll by Mr. Trump’s lawyer and the testimony he elicited from her. Far less commented on was the classic rookie mistake by Mr. Trump’s lawyer of enhancing Ms. Carroll’s credibility with an unnecessarily lengthy cross-examination, whichpermitted her to explain facts she could not include in her direct testimony.
Televising the Trump trials is no substitutefor contemporaneous expert legal reporting and analysisto provide the public with real transparency.
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Nick Akerman (@nickakerman), a lawyer in New York, was an assistant special Watergate prosecutor and an assistant U.S. attorney for the Southern District of New York.
