Show Trial

When I told my editor this morning that I’d be writing about broadcasting The Trial Of The Century on television, she replied in all caps without hesitating: “THAT’S A TERRIBLE IDEA.”

(Airing the trial on TV, that is. Not writing about it.)

Can you blame her? I’ve written whole columns about my antipathy to televising government proceedings. This piece from January about expanding C-SPAN’s access to Congress can be summarized in those four words: THAT’S A TERRIBLE IDEA. 

Former Sen. Ben Sasse explained why last year during then-Judge Ketanji Brown Jackson’s confirmation hearing, when he lobbied her against allowing cameras at oral arguments once she was seated on the Supreme Court. Transparency is important, he allowed, but a well functioning judiciary is more important. His position also boiled down to four pointed words: “Cameras change human behavior.”

Believing that there should be more cameras in the House and Senate is like believing that fentanyl should be more freely available in American cities. Our country has a very serious addiction to demagogic political grandstanding and no shortage of dealers; making it easier for sellers to reach buyers will assuredly mean more overdoses.

So no cameras in Congress, please. But cameras at Donald Trump’s prosecution for trying to overturn the 2020 election? In theory that could function a bit like a methadone clinic, helping to wean some Trump junkies off their habit. We should want a program like that to be widely accessible, no?

Upon weighing the pros and cons of turning The Trial Of The Century into The Reality Show Of The Century, I arrive at the conclusion that airing the proceedings … won’t matter much. How’s that for some bold Friday punditry?

“Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” That’s Rule 53 of the Federal Rules of Criminal Procedure.

It’s pretty straightforward. There will be no televised Trump trial, then—unless …

Rules can always be amended, former Solicitor General Neal Katyal reminded us on Thursday. The Judicial Conference of the United States, which oversees federal procedural rules and is led by Chief Justice John Roberts, could make a special exception for televising Trump’s trial given the immense public and civic interest. Or Congress could step in and pass a law amending Rule 53 to give federal judges discretion in allowing cameras in their courtrooms. A bipartisan bill to that effect has been kicking around the Senate for months, in fact, driven by angst among the Republican base about how January 6 insurrectionists are being treated in court.

Who better, then, to usher in the age of televised federal trials than the insurrectionist-in-chief?

Twenty-six House Democrats sent a letter to the secretary of the Judicial Conference on Thursday asking the body to authorize cameras at Trump’s proceeding. “Given the historic nature of the charges brought forth in these cases, it is hard to imagine a more powerful circumstance for televised proceedings,” they wrote. “If the public is to fully accept the outcome, it will be vitally important for it to witness, as directly as possible, how the trials are conducted, the strength of the evidence adduced and the credibility of witnesses.”

I’m struggling to find a good counterargument to that. Although I can think of some less good ones.

“If the idea is to treat Trump like any other defendant, treat him like any other defendant. No cameras for them? Then no cameras for him.” The problem is that he isn’t “any other defendant” and he’s already benefited from that in ways small and large. After three separate arraignments, for instance, he has yet to suffer the indignity of having his mug shot taken. And he’s far more likely than any other federal defendant to be pardoned for his crimes despite lacking all remorse for having committed them. The momentous political implications of the outcome suffice to distinguish this trial from others.

“The presence of cameras will prove intimidating for witnesses.” I think the risk here is “baked in” but it’s of real concern. The MAGA movement runs on threats and physical intimidation; many times already this year Trump has hinted on social media that his fans will turn violent if he pays for his crimes. At least one judge in a Trump case warned jurors against revealing their identities afterward, the sort of advice you’d give following the trial of a mob boss. The tragic reality, however, is that all of the witnesses against Trump at trial will be ruthlessly doxxed online and harassed whether the trial is televised or not. Airing their testimony on TV might make it easier for casual detractors to identify them in public, which is alarming, but anyone motivated to harm a Jack Smith witness won’t be deterred by a dearth of video footage. That’s America 2023.

“Cameras change human behavior.” Yes, but they’re less likely to do so in court than in Congress. Courts follow strict procedural rules, after all. Typically only the lawyers and witnesses speak, limiting—somewhat—the opportunities for political grandstanding. (Trump certainly won’t testify.) Grandstanding in court also carries the risk of criminal penalties if it bleeds over into outright lying, which is why Trump’s lawyers avoided making the sort of stark “rigged election” claims during court hearings in 2020 that they routinely made to the public.

And in some cases, cameras might change human behavior for the better. If you’re the sort of MAGA stalwart who believes Trump can’t possibly get a fair trial from an Obama-appointed African American woman judge who sits in D.C. and is known for being hard on January 6 defendants, the prospect of a televised trial should cheer you. National scrutiny will help keep Judge Tanya Chutkan honest in case she’s inclined to put a thumb on the scale for Jack Smith.

Sometimes the political magnitude of an event is such that it should be aired notwithstanding the real risk of cameras changing human behavior. I can’t recall anyone on either side arguing that Congress’ session on January 6, 2021, to count the electoral votes and hear objections shouldn’t have been televised even though doing so was destined to lead pandering nihilists like Ted Cruz to make mischief.

This trial might well be the most important development of the 2024 presidential cycle in terms of the number of votes it influences, far more so than what happens at any of the primary or general election debates. It would be strange if we televised those lesser events but made the more significant one a press-only affair.

Trump being Trump, I assume he wants the trial televised. Passing on a chance to “star” in the biggest “show” of this generation would go against every fiber of his attention-whoring nature. I doubt he can even intellectually process the possibility that publicizing the evidence against him would hurt him politically more than it would help him. He can’t recognize his own failures (which is how he ended up in this mess). No matter how badly things go at trial, he’ll believe his vindication was as “perfect” as his infamous phone call with Volodymyr Zelensky.

So let’s capitalize on that self-delusion and give him what he wants.

Here I confess: My support for airing the trial is colored by my political interest in defeating him. It would be good for the country if he never held power again, and I suspect putting the trial on TV will make that more likely.

I suspect those 26 House Democrats suspect it too. Reminding swing voters in a vivid way how nutty he was and is about the 2020 election will frame the stakes of next fall’s vote starkly. Republicans are worried about it, the Washington Post reports:

The looming courtroom showdown is poised to push his insistence that election fraud occurred in 2020 toward the center of the 2024 presidential campaign, a dismaying prospect for Republicans and some of Trump’s advisers who have urged him to stop belaboring that subject. Trump’s defense team has signaled that they’ll focus on rebutting prosecutors’ allegations that Trump knew his fraud claims were false.

…

Trump has said that he wanted to subpoena people about the 2020 election and argue that he won, as prosecutors allege that he knew he lost and that his claims were false, according to people close to the former president, who like others spoke on the condition of anonymity to describe private conversations.

As I said, I can’t imagine him testifying in his own defense. As much as he wants to rant during direct examination about how he was robbed, he’s reportedly “rattled” by the high stakes of losing this trial. When his lawyers advise him that he’d be nuts to testify, and they will, he’ll listen.

I can, however, imagine him calling Sidney Powell and Rudy Giuliani and other kooks to the stand to run through the bizarre particulars of their 2020 conspiracy theories provided they’re willing to waive their Fifth Amendment rights to do so. We won’t get Captain Queeg himself babbling about the strawberries but we might get the Queeg-ettes babbling on his behalf. And Americans aren’t going to elect Captain Queeg president.

I think.

There’s a second obvious political upside to televising the trial. MAGA voters will watch with their own eyes as familiar faces provide damning testimony against Trump. Convicting him in a proceeding that no one but the media gets to watch firsthand is not the way to sell paranoid populists on the legitimacy of a controversial outcome. Giving them access will help solve that problem.

Former U.S. Attorney Harry Litman expects Smith’s star witness to be none other than Mike Pence: “It’s clear he’s going to testify. Pence is the most integral fact witness.” That’s a safe prediction, as Smith’s indictment cited “contemporaneous notes” taken by the former VP in meetings with his then-boss as evidence of Trump’s criminal mindset. Meanwhile, inquiring minds have wondered why Trump’s former chief of staff, Mark Meadows, is missing from Smith’s indictment despite having been thoroughly jungled up in Trump’s post-election chicanery. His deafening silence amid Trump’s deepening legal trouble has allegedly led TrumpWorld to smell a “rat.”

Last year’s House hearings held by the January 6 Committee didn’t draw a Republican audience because they lacked superstar testimony against Trump and were easily discredited by motivated partisans as a political stunt. A criminal trial brimming with human drama in the form of Pence and Meadows, among others, confronting Trump when his freedom is on the line will be different.

For some right-wing viewers getting an unfiltered look at the case against their leader for the first time, the evidence of wrongdoing might be sobering. You can’t save every junkie with methadone, but you can save some.

Although probably not many.

As a cynic and a fatalist long ago driven to despair by the Trump era, I default to believing that televising the trial will produce the same takeaway as every other right-wing political development of the last eight years: “LOL nothing matters.”

In fact, I doubt Trump’s January 6 trial will ever be held.

His trial in the classified documents case is tentatively set for May 2024 but I expect that will be delayed past the election by procedural machinations and the court’s reluctance to divert the presumptive Republican nominee for president in the thick of a national campaign. That prosecution is further along than the January 6 case, of course, so we should expect the latter to be delayed until after the election as well.

If it is, how does Trump end up ever going to trial? If he wins the presidency, he’ll short-circuit the charges against him by ordering the Justice Department to stand down. If he loses, Joe Biden will decide it’s best not to further antagonize the twice-beaten American right by tossing their hero in the slammer. Trump won’t deserve to be pardoned, but he will be.

But if the trial does somehow come off before Election Day, it defies all experience to think Republicans who watch it on television might be swayed by the prosecution’s evidence. To believe otherwise is to ignore, well, everything that’s happened since 2015.

There’s data to the contrary, admittedly. A new Reuters poll asked Republicans whether they’d vote for Trump if he were convicted of a felony and nearly half said no. His favorable rating within the party has begun to slip as the indictments have piled up: One poll has it falling from 75 percent a year ago to 66 percent last month, another from 77 percent in May to 67 percent in June. A fourth survey published last week saw the share of Republicans who believe he’s done “nothing wrong” slide from 50 percent to 41. The right is growing less enthusiastic about Trump!

But … they’re not growing less enthusiastic about nominating him. At 35.5 points, his advantage today over Ron DeSantis in the RealClearPolitics national average is among his largest of the campaign. 

Here I remind you that what propelled him to that gargantuan lead was the criminal indictment brought against him in Manhattan in late March, after which his margin over DeSantis doubled almost overnight. Most of the key events that inspired Jack Smith’s latest prosecution of him played out in full public view two and a half years ago, from Trump ranting about rigged elections on Twitter to Sidney Powell and Rudy Giuliani touting conspiracy theories at press conferences to the sacking of the Capitol by crazed MAGA voters on live television. Yet he’s having an easier time in this primary than he did in 2016, when Trumpmania was fresh.

A political movement willing and able to overlook all of that will not suddenly have a “come to Jesus” moment watching Mike Pence swear on the Bible that Trump privately believed he lost the election fair and square. They’ll do what they always do, deriding Trump’s enemies as liars with ulterior motives (“of course Pence would say that, he’s running against Trump for president”) and seizing on any adverse ruling from the bench to insist that his trial wasn’t fair. It’s no exaggeration to say that the reason right-wing media exists in 2023 is to supply MAGA voters with hourly talking points for why whatever the latest disastrous Trump development happens to be isn’t disastrous at all and that only an establishment cuck would think otherwise. 

We are very far past the point of learning that Trump really could shoot someone on Fifth Avenue without losing any votes. There’s zero chance—none—that convicting him after a fully televised trial will lead Republican influencers to concede that the process was legitimate. Especially with the defendant himself framing the proceedings as nothing more than an attempt to use the justice system to do what the electoral process could not, removing him from American politics.

The most we can expect from putting the trial on TV is a marginal shift toward Biden or toward not voting among voters who are currently leaning Trump—which ain’t nothing, given how disgracefully tight this election is likely to be. And if he ends up being acquitted, a public window onto the process might make it somewhat easier for his critics to stomach the result, helping to keep the peace in case he ends up being reelected. But for most it’ll be the same ol’ political Rorschach test that all things Trump inevitably become no matter how convincing or unconvincing the evidence is.

Sunlight is the best disinfectant, Louis Brandeis once famously said of government transparency. A political culture as toxic as ours will need something stronger to decontaminate it.