The federal court rules prohibiting cameras from televising a trial have become a flashpoint debate with former President Donald Trump set to stand trial for Espionage Act offenses in the coming months — and according to retired federal judge Nancy Gertner, these rules are archaic and should be done away with.
"Let me start with the classified information issue, because that actually is an enormous complication," Gertner told MSNBC's Ayman Mohyeldin on Friday. "Even if you are sitting in the courtroom as a member of the public physically there, you may not be entitled to see the evidence that is being presented in this case. There could be circumstances under which the only people who can see the evidence is the judge, lawyers, who have not got security clearance, and that would be it. It would be kept from the public, even the public sitting there. So you can't deny how complicated this is going to be in a physical setting to deal with classified information. Quite apart from cameras."
But this complication, Gertner added, distracts from a bigger issue.
"The Judicial Conference of the United States has been resisting cameras in the courtroom for over 30 years, and the explanation, the rationale, gets more and more ridiculous as time goes on," said Gertner. "And I think we are at a moment when it is at its most ridiculous. That is, during the pandemic, video was used to portray proceedings, to show proceedings ... and now you are talking in many courts around the country about dialing back on that. It's mostly civil proceedings, but we learned how to do it consistent with the dignity of the courtroom because we had to. The question is whether the Judicial Conference will back off on its opposition to cameras, whether or not the judge will be allowed to make an exception in this case, in any event, because of the public nature of it, and then how you navigate a camera when there is classified information. This is complicated. A lot has to be weighed. But the problem with the federal courts is that they haven't even been willing to engage in the discussion at all, ever."
Regarding Judge Aileen Cannon, the controversial Trump-appointed district judge who is set to preside over the trial, Gertner said it is doubtful she will recuse herself from the case, as many experts are calling for.
"I doubt very much if she will recuse herself," said Gertner. "The only ground for the government to seek her recusal is that what she did in the investigation was not just bad judgment but essentially carving out rules and procedures that did not ever apply to a criminal prosecution and curving out special treatment of a federal because he was the President of the United States. So her ruling demonstrated degree of bias which was extraordinary. Will she recuse herself? Doubtful. Will Jack Smith move to recuse her? I actually think that's doubtful as well."
