Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. Will former President Trump’s criminal trial for his efforts to overturn the 2020 election be televised? The issue has become a political and legal football in recent weeks. In early October, a coalition of media companies asked Judge Tanya Chutkan, the district court judge overseeing the trial to broadcast the proceedings. Special Counsel Jack Smith’s office opposed the idea, citing a federal rule against broadcasting trials and arguing that putting the proceedings on air would lead to a carnival atmosphere. President Trump’s legal team responded by filing in favor of broadcasting, arguing that Trump was calling for sunlight. New York Times Supreme Court correspondent Adam Liptak has written about the argument surrounding the courtroom camera controversy and has covered a backup idea by NBC Universal to record the trial for posterity rather than airing it live. He joins me to discuss the camera conundrum.

Adam, welcome back to the show.

Adam Liptak:

It’s good to be here.

Preet Bharara:

So I know you’ve been covering this for a while. I have some experience with it from the time I was a staffer in the Senate. Could you just first explain to a layperson what this rule is in the federal system, Rule 53?

Adam Liptak:

So Rule 53 of the Federal Rules of Criminal Procedure says that you cannot, I’m paraphrasing, but pretty closely, broadcast the proceedings from the courtroom. And you can bear down on those words and that may lead you to different conclusions, but most people understand it to be a flat ban on camera coverage of federal criminal proceedings.

Preet Bharara:

So doesn’t that settle the question? What are people doing in court if the rule is as clear as you’ve suggested?

Adam Liptak:

Well, so there are two attacks on it, and I should say part of that media coalition asking for openness is my employer of the New York Times, but I’m going to give you my disinterested view. There are two kinds of arguments. One is constitutional, that the First Amendment guarantees authentic access to court proceedings, criminal proceedings in particular. And the Supreme Court has said that public access is required by the First Amendment and public trials are required by the Sixth Amendment. So you can make the argument that public means realistic, practical access for people away from the courtroom. I don’t think that argument is likely to succeed at the Supreme Court, which is itself allergic to cameras. The other kind of argument you could make is a textual one, saying broadcasting from the courtroom has a particular meaning. It means you are immediately shooting out into the whole world a broadcast from the courtroom.

But what if you recorded it, shipped it across town and NBC broadcasted out to the world? We already have instances of camera coverage in the very courthouse we’re talking about where there are closed circuit broadcasts to overflow rooms. So Rule 53 doesn’t bar all kinds of camera coverage but only broadcast from the courtroom. So the argument would go that maybe you can get around that on a kind of, you might say a textualist reading, you might say a hyper-technical reading. I don’t think that argument is likely to succeed, but I do think there’s some merit in NBC’s argument that whatever broadcasting means future generations ought to have the fullest possible access to this historical moment. And that recording it for posterity and releasing it in due course is a good idea. And B, not in conflict with Rule 53’s text that you can’t broadcast from the courtroom.

Preet Bharara:

So let’s take a step back and see if you can give a fair rendering of the arguments on each side. So you can pick which you want to do pro or con. Tell us what the best and good faith arguments are both for and against cameras and federal criminal proceedings.

Adam Liptak:

Well, the argument for is that knowledge is better than ignorance. That people in the democracy ought to be able to see their government at work. The court system is their government and it shouldn’t turn on whether you have the time and the ability and the luck to get in line for some limited number of seats in the courtroom. If these are meant to be public trials, they ought to be authentically public, and that there’s a value in letting people see for themselves what is going on in their name. So there are good policy arguments in favor. There are also policy arguments against, that the presence of a camera could alter the proceedings, that whatever you can say about camera coverage of appellate proceedings or even civil proceedings, criminal proceedings are what you have to protect the most. The jurors certainly witnesses probably. And that if you are going to experiment in the federal system, you may not want to start with the biggest criminal trial, most important criminal trial maybe in the history of the republic.

Preet Bharara:

Where do judges generally stand on the issue?

Adam Liptak:

Many, many state courts have camera coverage and it happens almost entirely without incident. Those of us old enough to remember the OJ trial will remember that as an example pointing in the opposite direction. But I think judges in the state court systems are generally comfortable with them. We’ve had during the pandemic and since in the federal appeal courts live audio, we have live audio in the Supreme Court. I think we’re taking baby steps in the direction of camera coverage in the federal courts, but again, criminal harder than civil, tria harder than appellate. The Trump trial, sort of the apotheosis of where you might not want to start the process. So I think there are authentic arguments on both sides, but it’s a little hard to imagine that the media coalition will not be hurt by former President Trump’s delighted joining of their effort because he says this is a political trial that needs to be exposed to sunlight and shouldn’t take place in secret. And that’s rather a vast overstatement to call it secret when it will be held in front of lots of interested observers.

Preet Bharara:

You mentioned a second ago that in state courts criminal trials have been publicized and broadcast almost entirely without incident. The one that I’m thinking of recently that I thought was definitely a public service was the trial of Derek Chauvin and his co-defendants in connection with the murder of George Floyd. So I wonder if you have a comment on that A and B, if you’re aware of in your reporting, any actual data or evidence or studies that show with real rigor that cameras in the courtroom affect in some unfair way the proceedings or the way witnesses react to questions? Or does it cause additional preening and departure from the facts and the evidence?

Adam Liptak:

So second question first. I suspect there are such studies, I don’t know them. It’s probably hard to measure. You certainly have a lot of people who think that the presence of a camera will give rise to showboating or some kind of difference. I do think the presence of a camera may well alter the proceedings, but I think they would generally alter them for the better. When I’m being observed by more people rather than fewer, I will probably try to do a better job. As to the Chauvin trial and other trials, the American justice system is something we should be proud of. So many areas of our government are in a tailspin, and the judicial system, state and federal works well and letting people see that would seem to me to be a positive good.

Preet Bharara:

Is there any argument that maybe you should allow cameras in the courtroom as a default if the parties agree, if the government and the defense agrees, and certainly with deference to the defense, and if the defendant does not want a camera in the courtroom because of that distortion that is assumed, maybe you give that some weight? But if the defendant wants the camera in the courtroom in the same way that a criminal law often bends to the will and gives the benefit of the doubt the defense and his or her team, we do so there is that more workable or not?

Adam Liptak:

I like that idea and it’s sort of consistent with the Sixth Amendment’s guarantee to a criminal defendant of a public trial. Maybe the defendant has some say over how public, I might footnote a little bit that maybe witnesses should also have a chance to say whether they want to be on camera or not, particularly in a setting where there’s a realistic prospect that their testimony could endanger them.

Preet Bharara:

So you mentioned this idea that NBC has put forward of not broadcasting live but having a broadcast made for posterity. What’s the thinking behind that and do you think that’s a possibility?

Adam Liptak:

Well, the thinking behind that is twofold. One, it doesn’t seem to be barred by Rule 53. Two, and there’s some precedent for this, it would just be a great thing to have. I mean, if we’re going to have this proceeding and it’s going to maybe resolve not only the fate of a leading candidate for president, but also a wrenching historical moment, we might want to have the fullest accounting of it available for historians and students and journalists and biographers in the future. And it reminds me of, you remember the Prop 8 trial where California years ago passed a ballot measure amending the constitution to bar same-sex marriage, and David Boies and Ted Olson challenged it and it goes to trial, and the judge there wanted to have closed circuit broadcast to a number of courtrooms around the country. The Supreme Court said no, and the judge said, “Well, I’m going to record it for posterity because this will be a gift to later generations.” And that trial was more than a decade ago, just recently it’s been released and I think it’s great that we have it.

Preet Bharara:

As I mentioned to you when we were chatting before we began recording, every year or every congress when I worked on the Senate Judiciary Committee, my boss at the time, Senator Schumer would be a chief co-sponsor of a version of a cameras in the courtroom bill, and Senator Specter and some others were always on that bill as well. And I noted to you, and I’ll note for the audience that unlike most issues relating to criminal justice, whether it’s mandatory minimums or other things where you could kind of guess if you’re a Republican or a Democrat, where the lawmaker would come down, on cameras in the courtroom, they were Democrats and Republicans on both sides of the issue. Have you in your research and reporting come to any theory as to why some politicians support cameras and others don’t?

Adam Liptak:

I think it comes down to intuitions to some extent it may be generational and it doesn’t have an obvious partisan valence. It’s not clear who it’s good for and who it’s not good for on one political side or another. I think people just have a sense that a camera will disrupt, will fundamentally alter or will enhance, will illuminate. And that’s not based on evidence. You were asking about studies earlier, Preet, and I guess we probably don’t have convincing enough studies that are going to move people off of their intuitions about whether this is a good thing or a bad thing.

Preet Bharara:

Yeah, my own pet theory relates to whether or not the particular lawmaker or politician, what their relationship is with the camera. I think Senator Schumer and some other senators, Arlen Specterb and others when he was alive, felt that they behaved the same when a camera was on or off. The off-camera senator is very similar to the on-camera senator and you have these intrusive C-span cameras at every committee hearing, at every confirmation hearing, at every vote on the Senate floor or the house floor. And we’re one branch of government and that’s appropriate. And so what’s the big deal if you have those in the courtroom too? And as you say, there’s not any sort of partisan valence to any of this. I always found it just very interesting who was for and who was against.

Adam Liptak:

Well, another thing that happens is that confirmation hearings, for the most part, nominees say that they’re open to cameras for the Supreme Court and when they get on the court they change their minds. And one of the reasons they sometimes give for changing their minds is look what happened to Congress when you let cameras into Congress. And there I don’t have the expertise, but I think you do. Did that alter the nature of congressional sessions?

Preet Bharara:

I don’t know. Probably a little bit, but what I can’t get over and obviously I have over the years become more convinced that cameras maybe not in every instance and maybe not over the objection of a defendant, but the cameras in the courtroom are good. They’re certainly, I think, advisable and proper in appeals court arguments and Supreme Court arguments, because there you don’t have witnesses so people understand, right? Those are professional arguments with professional appellate judges, and for the most part, quite professional appellate advocates who are making particular deliberate legal arguments based on the facts to season judges. On panels, you don’t have the opportunity to argue to a jury. There’s not the same, I think ability to play to the camera. You don’t have lay witnesses who are parading in and out or expert witnesses. It’s lawyers and judges. And so I really don’t understand the opposition to cameras and appellate courts and in the Supreme Court. Do you?

Adam Liptak:

I think I know the court’s reasoning. I think they have reasons. I don’t think they’re principled reasons. I think they’re basically twofold. One is they like what privacy they have. They like to be able to go about their business without being recognized, and if they were on camera every day, that would be different. The other is that they’re kind of terribly afraid of being mocked on late night television and on YouTube, and they do say goofy things on the bench, and I think that they want to preserve their dignity.

There’s a third reason that I also don’t think clears the bar, but maybe is a little more serious in the wake of Citizens United, there were occasionally protests in the courtroom, and I think those protests would become a little more likely if there were television coverage also. But the solution to that is to have rigorous enforcement of courtroom decorum, not to bar cameras. So I’ve listed a few reasons why they don’t want cameras. I don’t think any of those reasons are principled ones, and I do think they’ve had very good experience with something that would’ve been unthinkable before the pandemic with live audio. And that’s been a real boon to the American public.

Preet Bharara:

Is that sufficient, you think?

Adam Liptak:

It’s not quite sufficient, but it gets you about 90% of the information you would get if there were cameras. It does the job for me, but I recognize their voices. I think the main reason it’s not good enough for the public is that in listening to the arguments, you don’t know who’s talking and you would have a better sense of who’s talking if you saw them.

Preet Bharara:

Yeah. In my much more mundane life, I recently was saying to someone that we have too many Zooms. Everything always has to be a Zoom now on camera as opposed to the old days when we just did conference calls. The one advantage parallel to what you’re saying just now to a Zoom conference is that now I know who the hell is talking. Is that a guy on my side or is it a guy on the other side who’s making that argument?

Adam Liptak:

Should I agree with him?

Preet Bharara:

I have no idea. And sometimes people sound similar to each other, so you also know who’s there and you know who’s left without too much difficulty. Do you think there’s any disconnect between the fact that the January 6th committee had open public hearings where people testified and arguments were made and facts were laid out, which is the thing that you could argue as it got underway in full force, got the Department of Justice in gear to bring this January 6th case that we’re arguing about with respect to cameras, that there’s some disconnect or irony in the fact that the underlying congressional hearings were televised, got people interested, got the Department interested, and the Department itself is opposing cameras in a similar kind of proceeding,

Adam Liptak:

I guess. I think they have no choice. There’s law here that applies there in a sense, giving the court their best view of the law, and they also know that this is truly a special case. We already have seen from the New York civil fraud trial that Donald Trump will be eager to turn the proceedings into a kind of carnival, and if you’re going to make measure deliberate steps in the direction of camera coverage, which I think is a good idea, this is probably not the forum in which to start.

Preet Bharara:

Right. Except that the point you’re making about Donald Trump and the civil fraud trial is interesting given that he’s turning it into a carnival and there are no cameras. So it feels like Donald Trump is the kind of person, whether the cameras are on or off is the same kind of person.

Adam Liptak:

That’s not a bad point at all. If it’s not going to change the nature of the proceedings, and you’re probably right, Preet, that it doesn’t, then that takes away a key argument and maybe the American public should see for itself and evaluate and assess a candidate who would want to use a sober criminal trial to make political points.

Preet Bharara:

Last question. How’s this going to turn out? Are you allowed to say, since your employer is a party?

Adam Liptak:

I think I’ve already written it. In the language of newspapering when you say something has no chance, I wrote that they have a steep uphill climb.

Preet Bharara:

There you have it, ladies and gentlemen, steep uphill climb, which is I think, unfortunate and too bad, but none even. Adam Liptak, thanks so much for your time and for focusing on this issue with us.

Adam Liptak:

Thanks, Preet.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former US Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned in Brief is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Matthew Billy. The audio producer is Nat Weiner. The editorial producers are David Kurlander, Noa Azulai, and Jake Kaplan. The production coordinator is Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.