UPDATE: NBCUniversal argued that a federal rule does not impose an “an impregnable ban” on audio and video coverage of former President Donald Trump’s upcoming criminal trial on election conspiracy charges.
In a filing today, NBCU’s legal team, led by Theodore Boutrous, wrote, “Although the government argues that settled law forecloses this kind of coverage, that is incorrect. There is no valid reason for such a categorical ban of video and audio here—especially given that former President Trump has now himself urged this Court to allow video and audio, obviating any concern about his due process rights to a fair trial.”
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The filing was in response to opposition from Special Counsel Jack Smith, who said that prosecutors opposed televised proceedings and contended that Trump would try to exploit the video coverage.
“The government argues that the court should deny such coverage because Mr. Trump could try to exploit such coverage for a ‘public relations campaign’ or turn the trial into a ‘carnival,” The NBCU filing stated. “But the risk of misbehavior by the defendant cannot possibly be grounds for barring all video and audio coverage. This Court possesses ample power and discretion to ensure both decorum and fairness.”
The NBCU attorneys write that U.S. District Judge Tanya Chutkan had the authority to allow video coverage. The federal rule prohibits “the taking of photographs in the courtroom during judicial proceedings or the broadcast of judicial proceedings from the courtroom.” But NBCU argued that such a rule does not prohibit video or audio recordings, just broadcasts that occur from the courtroom. That would not foreclose the judge from allowing “in-courtroom video recording for out-of-courtroom broadcasts or, alternatively, allow for a publicly accessible audio feed,” the legal team wrote.
Earlier today, a media coalition that included CNN, C-SPAN and The New York Times argued that the court’s rule raises First Amendment constitutional concerns, despite what has been longstanding policy in the federal courts.
PREVIOUSLY: A coalition of media organizations, including CNN, C-SPAN and The New York Times, says that the Constitution requires televised access to Donald Trump’s upcoming criminal trial on federal conspiracy charges.
Responding to special counsel Jack Smith’s opposition to televised proceedings, the coalition’s attorneys wrote in a filing today that “well-established that constitutional speech rights include the act of making audiovisual recordings,” citing past court precedent.
Smith had argued that the longstanding federal court Rule 53 clear prohibits “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
The media coalition’s legal team wrote, “Of all trials conducted throughout American history, this one needs the public trust that only a televised proceeding can foster. Because the Constitution allows—indeed requires—such access here, the Federal Rules cannot prohibit it.”
The coalition cited the court’s decision to allow audio-visual access to federal court proceedings during Covid as an example where such access was deemed necessary.
“In this case affecting the national electorate, meaningful access for the public to the upcoming
criminal trial cannot be accomplished through in-person attendance alone,” the coalition’s attorneys wrote, arguing that Rule 53 “must yield” to a constitutional challenge in this instance.
The coalition attorneys wrote, “Because Trump is not only a former president but also a current candidate campaigning to return to the White House, the public’s ability to monitor his trial is a basic matter of democratic self-governance. Moreover, in supporting audiovisual access, Trump has characterized this action as bearing ‘all the unfortunate badges of a trial in an authoritarian regime, lacking legitimacy or due process.’ This rhetoric, and its challenge to the very legitimacy of this proceeding, only underscores the crucial need for the public to be able to see this trial firsthand.”
Trump’s legal team argued for camera access, but Smith objected to it. He wrote in a recent filing that Trump’s support for televised proceedings was a “transparent effort to demand special treatment, try his case in the courtroom of public opinion, and turn his trial into a media event.”
NBCUniversal is making a slightly different legal argument as it seeks video access to the proceedings. Their legal team argued that the Federal Rule prohibits “broadcasting only ‘from the courtroom.’” They noted that it does not prohibit media outlets from using a pool camera, with the feed relayed to studios and then transmitted “outside the courtroom.” The rule also does not restrict Judge Tanya Chutkan from using its own equipment to capture the proceedings that networks can then use, they wrote.
The media coalition’s filing also backed NBCU’s argument, but said that they were addressing “the constitutional question that arises if the court instead takes the view that Criminal Rule 53 forecloses audiovisual access in this case.”
Trump’s trial is scheduled to start on March 4. Reporters who have covered pre-trial proceedings have been prohibited from using electronic devices within the D.C. federal courtroom. But they have been allowed to do so in two overflow rooms with access to a video feed. Members of the public also are allocated a certain number of seats in the courtroom, along with an overflow courtroom with video access.
Given the longtime aversion of the federal courts to allowing camera access, it’s still unlikely that Chutkan will allow televised access or that the Judicial Conference will change or make an exception to longtime rules.
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