By Alan M. Dershowitz via The Daily Caller News Foundation | June 14, 2023
The American public has the right to view legal proceedings regarding former President Donald Trump, including pretrial, trial and post-trial courtroom appearances.
At the moment, federal trials are not televised, although many state trials are. The two impeachment trials of President Trump were televised.
Transparency and accountability require that both of the Trump trials now pending — the one in Manhattan and the one in Miami — should be televised. Both sides should agree and should petition the judge. If the judge refuses, Congress should enact immediate legislation opening this federal trial to television cameras.
I don’t know whether either side favors or opposes televising the trial, but I am certain the public supports maximum transparency.
I have long believed that all trials, except perhaps those involving minors and other select exceptions, should be televised. Citizens have a right to see all three branches of their government in action.
Today Congress is on television. So is the president’s State of the Union and other important addresses and events. There is no good reason for making an exception for the judiciary. This is especially true now, when there is so much public distrust of the courts.
If the Trump trial is not televised, the public will learn about the events through the extremely biased reporting of today’s media. It will be as if there were two trials: one observed by reporters for MSNBC, CNN, the New York Times and other liberal media, the other through the prism of reporters for Fox, Newsmax and other conservative outlets. There will be nowhere to go to learn the objective reality of what occurred at trial.
There are of course some small risks associated with televising a highly publicized trial, such as Trump’s in Florida. Participants may play to the camera, but that is already true of members of Congress and other officials whose hearings are currently televised. The public can generally distinguish pomposity from authenticity. But whatever small risks that there are, they are more than outweighed by the benefits of transparency.
As with state trials that are now televised, jurors’ faces would not be revealed, and information sealed by the judge should be kept from viewers. But the testimony, the cross-examination, the physical evidence and other important elements of the trial should be made available for all to see and judge. There can be a brief delay in transmission to protect against any glitches.
I have argued several cases that were televised. The participants quickly forget the cameras and focus on the judge and jurors. There are some distractions, but they don’t have a major impact on the case.
In the OJ Simpson case, the judge and some of the lawyers played to the cameras, but their presence had no discernible effect on the trial or verdict. Those who watched it learned a lot about the legal system.
The same is likely to be true in a trial involving Trump. Today, people have chosen sides. They are rooting for an outcome consistent with their side and they are likely to read newspapers and view media that support their perspective.
These biases may not be completely eliminated by observing the trial in its entirety, but they will be moderated by seeing the evidence and testimony for themselves.
Most important, the American legal system is under attack from both the right and the left. Although it is far from perfect, our legal system is, in general, better than how it is perceived by partisans. Most of the participants — judges, jurors, lawyers and even litigants — try to do their jobs honestly. Some do better than others, and we the public are entitled to see the good, the bad and the ugly.
There will be resistance from some, especially judges, who would rather operate behind the cloak of relative secrecy, but the Constitution forbids that. It requires public trials.
At the time of the Constitution’s framing, there was of course no TV or radio. A public trial consisted of townsfolk and newspaper reporters being present.
Today, “public” has an entirely different meaning. I believe that the framers would have required the trial to be as open as technology permits, consistent with other important considerations. A public trial today is a trial that every American can see and evaluate.
TV should become a part of our legal system. This is true of every trial, federal and state, civil and criminal.
It should be especially true of the first trial in American history in which the leading candidate to unseat the incumbent president is the defendant. Justice must not only be done, it must be seen to be done. And the more people see it, the more justice there will be.
So let’s do whatever it takes, whether through judicial opinions or legislation, to open our courthouses — especially the one in the Southern District of Florida, which will become the focus of the world when Trump goes on trial.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This is republished from the Alan Dershowitz Newsletter.
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