Whether you love Trump or hate him, what’s happening in courtrooms across America may well determine our next president. Televising Trump’s trials is necessary to ensure that the 2024 presidential election is as fair as it can possibly be.
On Nov. 3, Special Counsel Jack Smith asked the court to deny applications by a group of media organizations to “record and telecast” the upcoming election interference trial.
That same day, a federal appeals court paused the gag order imposed on Trump in the case. But the order could still be reinstated, blocking Trump from attacking many aspects of the prosecution against him — a cornerstone of his 2024 presidential campaign.
The media outlets, in their request for cameras in the courtroom, wrote that the nation has never “had a federal criminal trial that warrants audiovisual access more than the federal prosecution of former President Trump.”
On Nov. 11, Trump’s lawyers backed the media’s request to allow cameras in the courtroom, arguing that the cameras would show how “unfairly” Trump is being treated by the justice system to the American public.
They make a good point.
With less than a year until the 2024 election, Trump finds himself in a position no presidential candidate has ever encountered: He’s facing two federal prosecutions, two state prosecutions and a state civil prosecution, all of which are converging on his calendar as Election Day nears.
As former federal prosecutors and criminal defense attorneys, we’re skeptics of each of these prosecutions, each for very different reasons. The verdicts in these cases will depend upon the nuance of the law and evidence — something that can only be truly appreciated by watching every moment of the trials.
Each case is incredibly complicated. Prosecutors know their task in front of a jury is to make the path to conviction seem simple and straightforward. Defense attorneys, meanwhile, often find success by exposing the degree of complexity of the case to the jury to demonstrate that the burden of proof has not been satisfied.
Before Trump even gets to a jury verdict, the judges will decide complex legal issues. Many of those legal issues will be discussed in hard-to-digest legal briefs, but the attorneys will also have an opportunity to orally argue in front of the judge, something that would be important for the public to hear.
These legal issues are profound and not only impact the nature of Trump’s prosecutions but will shape the future of the American presidency.
The truth of these cases lies in the granular.
The clash between the gag orders and the lack of cameras in the courtrooms affects the credibility of these proceedings at the highest level. If the prosecutors going after Trump have their way, the only information most of the public will know will come exclusively from the indictments, media sound bites and out-of-context courtroom quotes. Prosecutors and the media will be free to characterize the cases any way they wish, essentially without rebuttal. And Trump won’t have any way of correcting the record or exposing the Department of Justice’s case to be as corrupt as he claims it to be.
There’s no precedent for prosecuting a president for acts committed while in office, much less acts that are related to official duties. Both federal indictments and the Georgia indictment deal directly with allegations related to Trump’s time in office while engaged in acts arguably connected to it. Trump’s adversaries minimize these arguments, but the judges in each of these cases will have to wrestle with complex and unprecedented Constitutional questions — and those decisions are all but guaranteed to be reviewed by the Supreme Court.
There’s also no precedent for judges rushing defense teams to trial. While many cases go from indictment to verdict in six months or less, many others take much longer, sometimes years.
The election interference trial is predicted to see hundreds of witnesses, many of whom are top government officials who have made dozens or even hundreds of past public statements, and other private statements relevant to their testimony. Each of these witnesses will also be subject to attacks on their motives, biases and interests to testify in the manner that they do. The preparation to adequately defend against allegations requires attorneys to spend hours, days or even weeks preparing cross-examinations for each witness — again, a deeply granular task.
Trump’s First Amendment rights to protest election results are also a central legal question. There’s a long history of candidates from both parties “denying” election results and seeking paths to challenging results — even when the evidence of fraud was unproven.
Federal courts have never permitted cameras in courtrooms. The Supreme Court permits the audio release of arguments after the fact but does not broadcast them live.
These no-camera, no-live-stream rules are memorialized in federal law.
The law could (and should) change immediately.
A bipartisan group of senators agrees and has sponsored the Sunshine in the Courtroom Act of 2023, which would grant federal judges the discretion to allow cameras in the courtroom while protecting the identities of witnesses and jurors when necessary or upon request.
The absence of live feeds creates a void where one should not constitutionally exist.
Live-streaming Trump’s trials will alleviate this out-of-court battle over the message. It puts the American people in charge of examining the truth behind these prosecutions without the need to trust reporters or legal analysts. It allows for an informed electorate who are given the opportunity to examine the nuances of the entire process. It would allow for open debate examining the specifics instead of debating summarized and biased perspectives of the events in the courtrooms.
As long as live-streaming isn’t permitted so we can all independently witness the conduct of Smith, the judges, witnesses and more, Trump should have free reign to defend himself to the public — without restriction.
Katie Cherkasky (@CherkaskyKatie) and Andrew Cherkasky (@CherkaskyLaw) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm, Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues.