A consortium of media outlets – including the strange bedfellow coupling of The Washington Post and Fox News – are engaged in litigation in a California federal court seeking the release of a number of video depositions filed in the now infamous case against Trump University.
The case serves as an interesting tutorial on what it takes to shut down public access to court related materials.
The specific fight at issue here arose when the plaintiffs in the suit sought leave to file 32 video clips from a December 10, 2015 and January 21, 2016 deposition of the defendant Trump. The defendant in question –presumptive Republican presidential nominee Donald Trump -- doesn’t want the clips released. The plaintiffs wish to file the clips in conjunction with their opposition to a motion for summary judgment filed in the case by Trump. This is significant, because while “discovery materials” are typically not shared with the public, once they are filed in a proceeding, they become (or should become) publicly available. And once they are filed, the presumption that they are publicly available can be overcome only upon evidence that demonstrates an “overriding interest” requiring that they be kept private. In other words, to borrow a quote from Vice President Biden it’s a “big f*#*ing deal” to deny the public access to court records.
Trump’s argument was based on a blustery recitation of all the terrible things that would happen if he didn’t get his way. His litigation style evidently comes from the same playbook as his campaign strategy. Trump is apparently concerned that release of the video clips will deny his Sixth Amendment right to a fair trial. He of course presented no evidence supporting this concern, which in itself should doom his position.
But that’s not the only problem with his argument on this point. Courts have routinely rejected the notion that pretrial publicity – even substantial negative publicity – automatically means a defendant can’t get a fair trial. Juries that have decided cases arising from the Manson murders and Watergate provide compelling examples that they can get highly publicized trials right. Frankly, Trump’s argument displays an appalling lack of trust in the process and the citizens that serve. It’s no surprise to me that he can’t muster any evidence to prove his thesis.
Trump’s position as the presumptive nominee makes this case a matter of public interest. And given that this is the case presided over by the Indiana born “Mexican” judge, the interest is even greater thanks to Trump’s own comments.
Ultimately Trump is likely to learn that even he can’t dictate what the public learns about him. He called the judge’s integrity into question – the public has a right to decide for themselves if there is anything to those charges. And to do that, the public is entitled to see the evidence. All of it. Whether Mr. Trump likes it or not.