If you were flipping between CNN and Fox News following the cross-examination of Stormy Daniels in the New York criminal case against former President Donald Trump, you would have had the impression that the CNN commentator, who professed to be reporting what happened in the courtroom, described a completely different event from what the Fox News reporter, who was also in the courtroom, described. It was as if they had seen two different witnesses and two different lawyers.
The CNN commentator reported that Daniels had done a great job holding up against the incompetent cross-examination of Trump's lawyer. The Fox News commentator reported that the extraordinarily effective Trump lawyer had totally destroyed Daniels' credibility. Who were you to believe? The CNN commentator was an experienced lawyer who was purporting to describe accurately what had happened without bias or subjectivity. The Fox News commentator was a former judge and prosecutor with vast experience, who also claimed to be describing the cross-examination without bias. Neither of the commentators even pretended to paint a gray picture. One was starkly black, the other unambiguously white. No nuance in either account.
If the trial had been televised, the dominant color would have been gray. Perry Mason cross-examinations rarely occur in real life, and witnesses like Daniels rarely emerge unscathed from cross-examinations even by mediocre lawyers.
We, the American public, however, have been denied the right to judge for ourselves how the case against the once and possibly future president is going. We cannot judge the credibility of witnesses, the fairness of the judge or the effectiveness of the lawyers. We must depend on the subjective and generally biased accounts of often partisan "reporters."
Polls following the OJ Simpson case suggested that those who personally watched the trial on TV were less surprised by the not guilty verdict than those who only read about it in the media, which generally described it as an open and shut case and predicted a guilty verdict. They downplayed or omitted the gaps in the prosecution case and the mistakes made by prosecutors that may have led jurors to find reasonable doubt.
The same may be true of the Trump case, except that everyone is seeing the case through the prism of the reporters, rather than with their own eyes. Those who get their "news" from anti-Trump sources will be surprised and outraged if there is an acquittal or hung jury in this "strong" case. Those who get their "news" from pro-Trump sources will be surprised and outraged by a conviction in this "weak" case.
The result of making us rely on partisan secondary sources rather than our own direct observations is inevitable distrust in the justice system. If "Sunlight is the best disinfectant," lack of visibility is a major source of distrust.
Every important trial involving public figures should be televised. Now the trial of Senator Robert Menendez is starting. It, too, should be publicized so that the public can see how the judiciary deals with an important case involving a member of the legislative branch. Even the Supreme Court now permits live audio broadcasts of important appellate cases. Hopefully, they will soon allow telecasting since there is little difference between listening and seeing the justices and the lawyers.
The framers of the Constitution intended all judicial proceedings to be public – no secret trials. At the time of the framing, public meant open to print journalists. Today, public means audio and video publication.
The New York trial of Trump is a national scandal. There is no real crime. The judge has allowed testimony that is highly prejudicial and irrelevant. He has made numerous unfair rulings, of which the prosecution has taken advantage. The public has the right to see this abuse with their own eyes, so that we all can judge for ourselves and not allow possibly biased reporters to judge for us.
Now the government's star witness is testifying. Michael Cohen's credibility promises to be a key factor in the jury's deliberation. Every citizen should have a right to make his or her own assessment of his credibility or lack thereof. There is no good argument for allowing CNN to tell us whether he is believable, when we might come to a different conclusion based on direct observation with our own eyes.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of War Against the Jews: How to End Hamas Barbarism. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
Brad Dabs