Special counsel Jack Smith’s latest indictment of Donald Trump was a new salvo in an ongoing battle. On both sides, millions of Americans have already dug in. Polls show clear partisan divisions, with Republicans appearing increasingly skeptical that the former president did anything wrong. Given this context, many people have argued that Trump’s trial(s) should be televised.
This is a tempting push, and has picked up proponents in Congress and across the liberal pundit sphere. But we should resist it.
This is a tempting push, and has picked up proponents in Congress and across the liberal pundit sphere.
The first problem is that televising the trial would require changing federal rules that prohibit cameras in federal courtrooms. The source of that prohibition is telling: It can be traced to the 1935 trial of Bruno Hauptman, who was accused and convicted of kidnapping and killing the baby son of the famous aviator Charles Lindbergh.
That trial was a media circus, although it would likely be nothing compared to the Trump trial.
In the early 1990s, the federal judiciary started conducting pilot programs with cameras in the courtroom. But in 1994, the Judicial Conference rejected a proposal to televise federal, criminal trials. Since then, members of Congress have introduced various “sunshine in the courtroom” acts to give presiding judges in federal courts the discretion to permit camera coverage. But none of these proposed rules have been enacted and the general prohibition remains in place.
There are a few points to evaluate here, but the first is procedural. Whether the federal rules about cameras in the courtroom are good or bad, they should not be changed just for the Trump case. If the Judicial Conference wants to reconsider those rules, it should do so by following its usual process. Making up new rules, or changing existing rules just to suit the exigencies of the present moment, is, as every law student knows, a bad way to make laws. In this instance, doing so would almost certainly be characterized by Trump and his allies as part of the “witch hunt” they claim is being led by the Biden Justice Department.
Just as importantly, bringing cameras in the Trump courtroom may not do what proponents think they will do. The argument is that cameras will help the public see the whole truth, and thus better ensure that the truth will win, and impartial, fact-based justice will prevail.
On Aug. 3, a group of 38 Democratic representatives wrote a letter to the Judicial Conference asking it to “authorize the broadcast of proceedings in the cases of the United States of America v Donald J. Trump.” Among those who signed the letter are Jan. 6 committee members like Reps. Bennie Thompson, Adam Schiff and Zoe Lofgren.
The signatories offered seemingly nonpartisan reasons for televising the trial. “It is imperative,” they argued, that “the Conference ensures timely access to accurate and reliable information surrounding these cases and all of their proceedings, given the extraordinary national importance to our democratic institutions and the need for transparency.” The letter went on to suggest that because of “the historic nature of the charges brought forth in these cases, it is hard to imagine a more powerful circumstance for televised proceedings. If the public is to fully accept the outcome, it will be vitally important for it to witness, as directly as possible, how the trials are conducted.”
That is an optimistic and, in my opinion, ultimately inaccurate interpretation of televised trials. And indeed, a substantial body of research demonstrates that the camera is never a neutral witness.
As Georgetown law professor Naomi Mezey explains, “images produced by cameras and computers are always mediated, their meaning influenced by aspects of the medium, the context of viewing, and the perceptions of the viewer.” Americans should have learned this lesson in the aftermath of the O.J. Simpson trial, which mesmerized millions of people, and again during the House of Representatives’ Jan. 6 hearings. In the Simpson case, viewers’ reactions to the trial split along racial lines and reactions; even more predictably, the televised Jan. 6 hearings saw viewer opinion split along party lines.
Viewers see what they want to see. John Lauro, one of the lawyers representing Trump in the 2020 election case, recently said he wants cameras in the courtroom. Trump’s own position on the question of televising his trials is unsettled. When the issue of allowing cameras in the courtroom was raised after former president’s felony indictment in the New York hush money case, Trump’s lawyers opposed the request. They argued that “the presence of TV cameras would “create a circus-like atmosphere at the arraignment, raise unique security concerns, and is inconsistent with President Trump’s presumption of innocence.” But John Lauro, one of the lawyers representing Trump in the 2020 election case, recently said he wants cameras in the courtroom in order to “take the curtain away and all Americans can see what’s happening.” Why would Lauro support such a move? Probably because he knows Trump’s fans are unlikely to be swayed by a live feed. Meanwhile, his client thrives in the spotlight. Giving a reality TV star a reality TV trial seems almost too easy. Suddenly, Jack Smith will be forced to compete with a literal showman. And perception often outweighs reality. That is not the best way to ensure an effective, or fair, prosecution. In the end, the rule of law will be best served if Trump’s trial is conducted in much the same way as any other federal criminal trial would be, without fear or favor. Maybe someday in the future the court system will figure out how to effectively televise high-profile trials. But trying to change the rules for Trump is one of those ideas where the risks outweigh the potential benefits.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
