The Historic Trump Court Cases That We Cannot See

Neal Katyal / The New Yorker

The former President is on trial in a courtroom that has banned cameras. Meanwhile, the Supreme Court is deciding whether his other trials should even happen.

Over the past month, in two courtrooms some two hundred and fifty miles apart, the government was hearing arguments in two of the most consequential court cases in American history. In New York, at the Manhattan Criminal Courthouse, a judge was presiding over the first criminal trial of a former U.S. President. Meanwhile, in Washington D.C., at the United States Supreme Court, the nine Justices were mulling over a grave question of constitutional law—whether a former President is immune from criminal prosecution.

The two courtrooms could hardly be more different, with the polished white marble of the U.S. Supreme Court contrasting with the more ramshackle wooden court furnishings in Manhattan. And yet both rooms are similarly opaque, with most Americans unable to see what’s happening inside of either one. Cameras are prohibited, and so the only way to observe the proceedings is to wait in line outside, in hopes of snagging one of the few seats reserved for members of the public. (The Supreme Court saves room for fifty public spectators; the Manhattan Criminal Courthouse has been able to accommodate around ten.) This is despite the fact that the American people pay for these courtrooms with their tax dollars, and the fact that prosecutions are brought in their name. The New York case is called the People v. Donald J. Trump.

Like grownups who abstain from tequila because of a bad experience with it in high school, the bans on cameras are the lingering effects of some early issues with courtroom photography. In 1935, Bruno Hauptmann was put on trial in New Jersey for kidnapping and murdering the nearly two-year-old son of the aviator Charles Lindbergh. At that trial, cameras were allowed under certain conditions: they could film during trial recesses but not while witnesses were testifying. And yet camera footage of the trial testimony leaked, and Hauptmann’s trial became a media circus. This defiance of court restrictions, paired with the bright flashes in the courtroom and the general mayhem caused by the cameramen, ultimately led the trial judge to ban photography for the rest of the proceedings. Many states followed suit.

Once television became ubiquitous, in the nineteen-fifties, the prohibitions on cameras began to seem antiquated. Some states rolled back their anti-camera legislation, and, today, most permit some form of audiovisual coverage in court, whether it be still photography during testimony, audio recordings, or live broadcasts on television. Federal appellate courts, too, permit live broadcasts, as does the International Criminal Court. But not so New York. In 1952, the state adopted a statute still in place today, banning all cameras in the courtroom—a law so broad that one court-reform organization, the Fund for Modern Courts, has called it “an extreme outlier among the states.” The U.S. Supreme Court, for its part, prohibits cameras but makes live audio of oral arguments available. That puts the Court in better audiovisual stead than New York, and yet there’s a lot that happens in court that cannot be captured by either audio or transcript.

As a member of the Supreme Court bar, I was able to sit at the front of the courtroom for the arguments in Trump v. United States, the Presidential-immunity case. I could see Justice Amy Coney Barrett’s face twist into an expression of utter incredulity as Trump’s lawyer D. John Sauer claimed that a President sending a Navy SEAL team to assassinate a political rival was not an indictable crime. I was able to watch Michael Dreeben, the lawyer for the special counsel Jack Smith, painstakingly describe the counts in one of the federal indictments against Trump, relating to his abuse of the Justice Department. Dreeben outlined how Trump tried to pressure top Justice Department officials into sending letters to state legislatures expressing doubt about the election counts, and how Trump threatened to fire those officials if they didn’t comply. After Dreeben relayed this information, almost two hours into the proceedings, I could see the Court dynamics shift. The Justices began to listen far more closely to him, sitting up in their chairs.

I’ve personally seen more than four hundred oral arguments at the Supreme Court. Why bother trudging all the way to One First Street when I could just listen to audio recordings or read a transcript? Because neither is any sort of substitute for watching the way in which these arguments are delivered, and for observing the dynamics on display in the courtroom. The Court itself isn’t satisfied with just reading a bunch of written words in briefs; it insists on seeing advocates deliver their arguments in person. More than fifty Americans should get that same basic opportunity.

The judiciary is the least democratic of the three branches of the government. Supreme Court Justices, who have lifetime tenure, are appointed, not elected. And so they are required to justify their decisions in ways that elected officials are not. President Joe Biden can sign an executive order without explaining his reasoning behind it. (It might cause a P.R. crisis, but it’s certainly within his power to do this.) By contrast, when the Justices overturn a longtime legal precedent, or when they create a new one, whether major or minor, they must issue written opinions explaining their decision-making process. This process might be as significant as the opinion itself. Oral arguments are, undoubtedly, a major part of that process, and yet most Americans are barely even aware that oral arguments are happening—let alone what arguments are being made—creating a situation in which the public receives a pile of controversial opinions, every June, with little context. One can imagine that if oral arguments were televised, Americans might spend the year doing what the Justices do: thinking through a bunch of complicated, nuanced questions before ultimately reaching their own conclusions.

The Court today is relying far too much on the idea that Americans are going to seek out audio feeds of oral arguments. This is unrealistic in an age of TV and Instagram. It’s not 1936, and Americans aren’t huddled around a radio in the family room. Without the visual component, it is unlikely that they are going to pay attention to the arguments in a Supreme Court case, even if the decision that’s eventually rendered may directly affect their lives. It would serve the Court well for Americans to be confronted with the same questions that are raised during oral arguments. It would also serve Americans well to see how the Court, which is increasingly seen as a politically motivated entity, is genuinely grappling with questions about governance, such as how to draw the line between an official Presidential act (like appointing a Cabinet member), and a private one (like taking a bribe from said Cabinet member).

The public is missing even more when it comes to Trump’s criminal trial in Manhattan, which, ironically, is all about whether Trump committed crimes in his efforts to keep information from the American people, in the run-up to the 2016 Presidential election. Last week, the adult-film actor Stormy Daniels went on the stand and told the full story of her relationship with Trump, from their initial sexual encounter, in 2006, to the hush-money agreement that she negotiated with Trump and his former lawyer Michael Cohen some ten years later. We were unable to watch her tell it, or to watch how she handled being cross-examined, in the same way that we were unable to watch Hope Hicks, a witness called by the government, tearfully testify about her old boss, or the former tabloid C.E.O. David Pecker speak to the dozens of stories that the National Enquirer has killed about Trump and other politicians over the years. We can read quotes published online, but it is much harder, from behind our computer screens, to read between the lines. Did Hope Hicks start crying because she felt bad about turning on Trump, or because she was overwhelmed by the trial, or because of something else? Different reporters have had different takes, but we’ve been denied the opportunity to watch her testimony and decide for ourselves. And, of course, we’ve been unable to observe the behavior of the defendant, Donald Trump: how he comports himself in the room, how he reacts to the testimony of witnesses, how he carries himself, and so much more. (Just imagine how different the O. J. Simpson “gloves don’t fit” testimony would have been, had it been reduced to a transcript—or even a highly descriptive newspaper article.) Journalists have done their best to describe what’s happening in the room, and yet even the most faithful retellings can be subjective, skewed by something as simple as where the writer was sitting in the courtroom, and what kind of view they may have had. Some reports, for example, say that Trump keeps falling asleep during the trial; others disagree.

On Monday, Cohen is on the stand—more important testimony that we will not see. There’s also a chance, albeit a small one, that Trump himself will eventually testify in the New York trial. If he does, the American people will not be able to witness some of the most significant trial testimony given in our lifetimes. And if he does not testify, cameras would be the only way for us to see Trump’s true reaction to the case being presented against him. Instead, the lack of cameras has catalyzed a lopsided spin cycle outside the courtroom. Trump leaves the courtroom each day, where the reporters waiting outside for him do have cameras, and he characterizes the proceedings in a gravely slanted way, which then gets broadcast on cable news. The lawyers for the prosecution cannot publicly grandstand like this; rules of prosecutorial ethics require them to make their arguments inside the courtroom, not outside of it. The result is a structural asymmetry, which isn’t just confined to the two sides of the court case. The characters appearing on the witness stand, from Daniels to Cohen, are all subject to innuendo and character attacks, with the public unable to fact-check how these individuals are portrayed by the media. The same goes for the Supreme Court. Don’t believe what I said about Justice Barrett’s facial expression during oral arguments? Tough luck, you can’t go back and check the video, because there isn’t one.

Even if one accepts these rules for a normal trial, you’d think that there’d be an exception for ones that are so clearly in the public interest. Trump is not just a former President but a candidate for President, and twenty-four per cent of Republicans say they would not vote for him if he were convicted of a felony by a jury. The immunity case, too, is of grave concern to the public, as the Justices are essentially deciding whether Trump’s other trials should move forward. The risk is of a double darkness—that a Supreme Court the American public cannot see will render a decision preventing Americans from even hearing the rest of evidence against Trump, by stopping his trials from taking place altogether.

What possible rationale can there be for having a courtroom placed out of view of the people who paid for it? To be sure, confidentiality is sometimes required, from the Constitutional Convention of 1787 to the modern-day jury room. But courtroom proceedings are, by their nature, meant to be transparent, centered on a fact-gathering and argumentation process. Expecting cameras in the courtroom is not unlike expecting body cameras to be worn by police officers, who, like judges, are sworn to uphold the rule of law.

Some fear that courtroom cameras will prompt witnesses to be intimidated and scared. I understand this concern; indeed, I once shared it. From 2020 to 2023, I was privileged to serve as special prosecutor in one of the most high-profile trials in modern history, the trial of Derek Chauvin for the murder of George Floyd. Up until this case, Minnesota had never televised a criminal trial. As prosecutors in the case, and in accordance with Minnesota law and practice, we requested that cameras be forbidden. We feared, in particular, for the safety and comfort of a seventeen-year-old witness, who had taken the video of Floyd’s murder.

The judge, fortunately, overruled us. Americans were able to see, with their own eyes, what happened in that courtroom. They could see the evidence that both sides were able to muster, examine Chauvin’s demeanor in court, and assess the credibility of the on-the-scene witnesses and medical experts. The result was public confidence in the outcome of the trial. When Chauvin was ultimately convicted, there were no mass riots or protests, despite speculation beforehand that either outcome would result in unrest. The trial underscored the importance of courtroom cameras, just as the initial video of Floyd’s murder, recorded by that young witness, was critical in drawing public attention to the incident in the first place.

There have been concerns, too, that televised legal proceedings create perverse incentives for lawyers and judges, who may be tempted to play for the public, and distort the truth-seeking function of the court. That is a possibility, although the democratic benefits strongly outweigh that risk, just as they do for Congress (televised) and the President (extensively televised). And the reverse is more likely, as courtroom participants are incentivized to act with greater care when their actions will be viewable by millions. In 2017, I argued against President Trump’s Muslim ban in the federal appeals court in Seattle, and the oral argument was covered on live television. If anything, the cameras induced us attorneys to be even more conscious of keeping the proceedings solemn. Ultimately, cameras would allow Americans to see what I get to see when I am in court: a bunch of judges who are trying their hardest to resolve difficult cases in a straightforward and honest way. Judge Juan Merchan, who is presiding over Trump’s criminal trial in Manhattan, is a perfect example. Those in the courtroom describe an even-keeled and balanced judge, but Trump goes out every day blasting him as a biased accomplice of President Biden. Televised proceedings would empower Americans to make these judgments for themselves.

The mechanism to fix all of this is not difficult to implement. Changing the rules in New York would likely require the state legislature to lift its ban on cameras, although it is conceivable that a court may try to do so on its own, as Minnesota did in the Chauvin case. Televising Supreme Court arguments would not even require legislation; it could be done by mere Court rule. And, should the Court not act, legislation has been introduced by Senators Chuck Grassley and Dick Durbin to force them to do so. The bill, known as the Cameras in the Courtroom Act, would require the Supreme Court to permit television coverage of oral arguments and other open sessions. It’s accompanied by another bill, the Sunshine in the Courtroom Act, which extends to all open federal court proceedings. Both bills are pieces of bipartisan legislation; Grassley and Durbin don’t agree on much, but they agree on this. Even the Justices themselves have, in other contexts, recognized the importance of governmental transparency in a democracy. The person who famously said that sunlight is the best disinfectant was none other than Justice Louis Brandeis.