Boston Marathon bomber Dzhokhar Tsarnaev was convicted in 2015 of killing four people and given the death sentence, but unless you squeezed into the courtroom, you were dependent on artists, reporters, lawyers, and talking heads to convey what went on inside. The same was true when Whitey Bulger was found guilty in 2013 of being involved in the killing of 11 people. Now, with Donald Trump accused of trying to kill our democracy, cameras should be allowed in the courtroom so all of America can see a trial that may determine whether that democracy survives.
US District Court Judge Tanya Chutkan, who will preside over the proceedings in which Trump is charged with trying to overturn his 2020 presidential loss, can’t order cameras at the trial even if she wants to. Federal Rules of Criminal Procedure prohibit it.
But a majority of Congress or Chief Justice John Roberts himself could change those rules for this most important of trials. Neither is likely to unless the locked-out public demands it.
Televising the proceedings may be one thing that both Americas can agree upon. The anti-Trumpers, with dreams of orange jumpsuits dancing through their heads, don’t want Trump to be able to walk out of the courtroom each day and lie about what happened without themselves knowing what really happened in order to combat his lies.
The pro-Trumpers, with dreams of a second inauguration dancing through theirs, will find a live broadcast hard to resist, even if they need to change the station from the only cable network they watch. They can hope that Trump’s lawyers will rip the loyalists-now-turncoats limb by limb. Some may even watch for the chance to see courtroom Trump show the same contempt for this Black woman judge that he’s shown for two Black prosecutors in New York and one in Atlanta, all of whom he’s called racist.
Then maybe, just maybe, some of those Fox News-only viewers, a mere 5 percent of whom told The New York Times they believe Trump committed serious federal crimes, will let a few real facts replace the alternative ones.
Even if that’s the stuff of pipe dreams, there’s a far more unassailable argument for letting the public in: It’s the United States v. Donald J. Trump — a former president is being prosecuted in our name. We have a right to be there. In 1980, the Supreme Court seemed to agree. It found that the right to attend criminal trials was “implicit in the guarantees of the First Amendment.”
Can a right to attend really be limited to those who fly to Washington, D.C., and stand in line overnight, hoping they can snag a seat? Senator Elizabeth Warren thinks not. She believes all federal courtrooms should allow cameras. Last week on the radio, she said: “They’re supposed to be public, but (now) it’s like this fake version of public. It’s public but only a tiny little door on how you get in, and there’s only so much space inside.”
Some opponents of cameras in the courtroom suggest they’ll be obtrusive (they’ve obviously never seen a movie shot on an iPhone). Another, Cristina Tilley, a law professor at the University of Iowa, said, “when the judge is instructing the real jurors ... about what a conspiracy is and here’s how you have to prove it, I suspect that’s exactly when our armchair jurors are going to go get a snack.” She thinks whether we take a nachos break should decide the issue?
The principal argument for not televising the trial is the risk that lawyers and witnesses, and even some judges, will perform for the camera. This ignores that for decades, cameras have been in almost every state courtroom without any claimed harm. The far greater risk is that if this trial is conducted out of public view, many will find it easier to challenge the legitimacy of the court and jury’s decisions.
Former US District judge Nancy Gertner has been one of the few on the federal bench willing to publicly endorse bringing cameras in — twice testifying before Congress. In 2009, she authorized the webcast of a hearing of a man accused of illegally downloading and sharing songs, finding that the case had importance for the public in the digital age. The First Circuit Court of Appeals said she had no such power. She told me that she believes other judges are sitting out the cause because there’s no incentive to take a stand when the chief justice remains opposed.
Ronald S. Sullivan Jr., of Harvard Law School, represented the late New England Patriots player Aaron Hernandez in a televised state proceeding in which Hernandez was acquitted of a double murder. Even though a camera in that trial was briefly, mistakenly, trained on jurors, Sullivan said he supports bringing them inside federal courtrooms. But he’d start slowly, not with the Trump trial, the biggest case of them all. He told me he’s guessing that Judge Chutkan, his former staff attorney when he ran the D.C. public defenders office, might agree.
Here’s hoping he’s wrong.
In late 2021, when handing down a sentence to a Jan. 6 rioter that was tougher than what prosecutors had asked for, Chutkan said this: “The country is watching to see what the consequences are. … There have to be consequences.”
There have to be. And for the country to be able to watch a trial in which democracy is on the line, Capitol Hill or Roberts need to give Chutkan the authority to open up her courtroom — then all she has to do is use it.
Jim Braude cohosts Boston Public Radio, 89.7FM, at GBH News.