A modest proposal for the Trump trial

Put it on the radio.

Steven Brill was on NPR the other day, talking about the Trump indictment. I suppose I need to clarify that he wasn’t talking about this Trump indictment, but one of the other ones—not this week’s state indictment in Georgia for trying to overturn his 2020 election defeat, but the previous federal indictment for approximately the same thing.

Brill, the founder of Court TV who now runs an organization called NewsGuard, urged the federal courts to televise Trump’s trial. This would require a significant change. Cameras are banned in federal courtrooms, which is why you see the work of courtroom sketch artists on TV, as if the trial was taking place in the nineteenth century.

Talking with Leila Fadel, Brill argued for transparency.

I think what we've seen for the last X number of years is that people are not debating from the same set of facts. One of the reasons I wrote this is I've been sort of living in the world of online media through what I do at NewsGuard. Everything's an opinion. Nothing's a fact. Nobody believes anything. What you see online, you have no idea how credible it is, who the source is, who's paying them to say something - the total opposite of what happens in a courtroom, where all the evidence is vetted, lawyers are bound by standards of conduct where they can't just voice their opinions. They can't introduce hearsay or rumors. That's what the world needs to see in this trial because we're going to be debating this trial forever.

As a general matter I wouldn’t say that Brill is wrong. Transparency is good, and I’m in the transparency business. As a citizen I want to see things for myself. But I do want to air out the specific idea that cameras in the courtroom may encourage the public at large to see “the same set of facts.” Would they? They didn’t in the case of O.J. Simpson.

The former pro football star went on trial in 1995 for the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. It was in a state court, so cameras were allowed. And it became a months-long television spectacle. Judge Lance Ito became a household name, as did the prosecutors (Marcia Clark), defense attorneys (Johnnie Cochran, Robert Kardashian, F. Lee Bailey!) and even a number of witnesses. Everyone at the trial seemed to be performing for TV; their wardrobes and mannerisms drew commentary; and the climax came when Simpson was asked to try on a bloody glove that didn’t fit.

America really watched that trial—and according to surveys and interviews, Black and white viewers frequently saw the case differently. People went in with different sets of concerns and assumptions about how the justice system would treat a Black defendant. They viewed Simpson’s trial and acquittal through those filters.

In fairness, televising the trial didn’t create the Black-white divide. It just didn’t change it—at least not immediately. Twenty years after the trial, when passions had cooled (and after Simpson had made moves such as writing a book called If I Did It) white and Black opinions converged.

But we can’t assume partisans who watch Trump’s trial on TV would all see the same thing on screen. Many wouldn’t; and many people would not see the trial in its entirety. They would see video clips edited by their partisan media or social media influencers. And the presence of cameras would create a spectacle that arguably could change the trial itself.

This article by Eric Lichtblau pushes back on all such arguments (as has Steven Brill). It delivers a bottom line that the public should see, for example, the testimony and cross examination of Mike Pence, William Barr and other witnesses. I would watch! But as Lichtblau notes, a bill in Congress to force TV in federal courtrooms has not advanced.

There is one alternative if the judicial branch can’t bring itself to put cameras in the courtroom.

Audio in the courtroom. Play it on the radio.

Audio will give plenty of transparency. The trial will accompany people during long stretches in their cars. And audio would encourage a focus on the substance of the case—the testimony, the words.

There is precedent for this in federal court. In 2000, when the Supreme Court heard arguments in another polarizing case—Bush v. Gore, over the results of that year’s presidential election—the Court allowed an audio feed from the courtroom. I still remember where I was while listening to one of the arguments. It was helpful. And it has since become common for the Court to allow audio of its arguments.

The Judicial Conference of the United States recently completed a pilot program “to livestream audio of certain proceedings involving matters of public interest.” It operated in a limited number of federal courts.

Like video, audio of the Trump trial would have upsides and downsides. But it might come across to the public as a little cooler, a little less likely to alter the trial itself, and more of an appeal to reason.

Would audio cross the partisan divide, so we all would see it the same way? Probably not in most cases. It didn’t make Bush v Gore much less divisive. But it would help.

I’m pretty sure NPR would broadcast it, though I don’t speak for the company here.

Thanks for reading Differ We Must, a companion to my forthcoming book of the same name. It tells Lincoln’s life story through his meetings with people who differed with him. It’s out October 3, and you can preorder here. I really hope you’ll give it a look.