WASHINGTON — In a pair of filings this month, news organizations have requested a federal judge in Washington to allow live television coverage of the trial of former President Donald Trump on charges related to undermining the 2020 election. However, this request faces significant obstacles.
Their request is hindered by a federal rule of criminal procedure, and the Supreme Court has traditionally been cautious about allowing cameras in courtrooms, even in its own proceedings.
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Yet, one of the applications, submitted by the corporate parent of NBC News, presents an interesting alternative argument based on Rule 53 of the Federal Rules of Criminal Procedure, which serves as a barrier to live television coverage. According to NBC’s application, Rule 53 permits the court to record the trial proceedings for historical purposes.
The rule specifically prohibits “the broadcasting of judicial proceedings from the courtroom.” NBC’s argument focuses on the last three words, contending that sharing audio and video of the trial through means other than broadcasting “from the courtroom” is not in violation of the rule. This argument relies on textualism, a method of statutory interpretation often favored by conservatives.
While some may view this argument as clever, it raises a more fundamental point. The presiding judge, Tanya Chutkan, could authorize the creation of audiovisual recordings of the trial to be released later, not bound by the news cycle but by the historical record. This would not qualify as broadcasting from the courtroom.
Rebecca Blumenstein, the president of editorial for NBC News, and a former deputy managing editor of The New York Times, emphasized the importance of preserving the trial’s video recording for historical posterity.
“At minimum, I urge this court to allow the video recording of proceedings for historical posterity,” stated Blumenstein in a sworn statement accompanying NBC’s application. “It would be a great loss if future generations of Americans were forever deprived of being able to access and view the events of this trial, even years after the verdict. This would significantly enhance the ability of future journalists and historians to retell and accurately analyze this unique chapter of American history.”
The second application, supported by a coalition of news organizations including the Times, highlights that Chutkan’s courtroom is already equipped for recording and broadcasting the trial.
“The district court courtrooms have cameras, which are used to stream proceedings to the overflow and media rooms,” the application states. “Indeed, for President Trump’s arraignment on Aug. 11, the court livestreamed proceedings to two separate media rooms for members of the media, as well as a public overflow room.”
This demonstrates two things: not all camera coverage qualifies as a broadcast from the courtroom, and creating a record of historical value would require minimal effort. The recorded video could then be released with a short delay, such as at the end of the day, week, or trial.
There are some loosely analogous precedents worth considering.
In 1990, after leaving office, President Ronald Reagan was questioned in the trial of a former aide through a videotaped deposition. Shortly after the jury viewed the tape, it was made publicly available.
In 1998, President Bill Clinton provided grand jury testimony via closed-circuit television about his relationship with a White House intern. A month later, Congress released a recording of the testimony.
“This time,” NBC’s application argues, “the former president himself is on trial for alleged conduct during his presidency, making the need for immediate public access to the proceedings paramount. Americans and history should not miss the chance to witness this watershed trial, which involves alleged conduct that strikes at the core of our democracy.”
In 2010, the Supreme Court blocked the streaming of a trial challenging California’s ban on same-sex marriages, known as Proposition 8, to courthouses nationwide. While the details of the case are irrelevant, it’s important to note that the court did not address First Amendment concerns, and a majority expressly reserved judgment on the wisdom of allowing cameras in the courtroom.
“The question of whether courtroom proceedings should be broadcast has sparked significant national debate,” stated the unsigned opinion. “Reasonable minds differ on the proper resolution of that debate and the restrictions, circumstances, and procedures under which such broadcasts should occur. We express no views on the propriety of broadcasting court proceedings generally.”
What is significant is that the trial was still recorded for historical purposes. After the Supreme Court declined to review the case in its final appeal last year, the recording was made available on a federal court’s YouTube channel for citizens and historians to study.
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