In the best of times, the Department of Justice deleting anything along the lines of “free press” and “public trial” — both constitutional guarantees — from its manual for federal prosecutors would raise eyebrows. But these are not the best of times. As another volley in the multidecade war on press freedom that has been eagerly escalated by the Trump administration, it’s way more troubling.
The deletion of the section titled the “Need for Free Press and Public Trial,” from the DOJ’s guidelines for prosecutors was revealed by BuzzFeed News last week. The change is part of a broader review of those guidelines, and DOJ officials have said the review is a routine housekeeping exercise (the last front-to-back review was in 1997). But the choice to jettison guidance on the public trials section is more than spring cleaning.
Before the change, the manual cautioned that “careful weight must be given in each case to ... the right of the people in a constitutional democracy to have access to information about the conduct of law enforcement officers, prosecutors and courts.” Today, that language is nowhere to be found. In its place the DOJ installed a presumption of secrecy that instructs personnel to “presume” that “much” of the information they “obtain in connection with work is protected from disclosure.”
It’s still too early to understand what lasting effects this guidance will have. And the DOJ hasn’t yet swept away a more specific section of the manual that limits the power of federal prosecutors who want to exclude the press and the public from court proceedings. But the change pretty clearly raises the question: If “much” of what federal prosecutors touch can’t be disclosed publicly, when shouldn’t prosecutors try to block the free press from observing a public trial?
The Twitter backlash over the recent change was no doubt propelled by distrust of the Trump administration, whose war on the press is well-documented. But it is just the latest example of a decades-long slide toward secrecy that has been pushed along by Republican and Democratic administrations. (The Obama administration’s “most transparent administration in history” tagline is now used only as a punchline.)
Courts have been a major casualty of this downward slide.
Today, federal courts around the country — often at the request of the government — regularly conduct business in secret. (Some courts were even established to operate in secret.) There are no hard numbers on how bad the secrecy problem is. The best evidence we have is a review by the federal courts’ research office, which found that nearly two thousand criminal and civil matters were kept entirely secret in 2006. But that’s a drop in the bucket. The office couldn’t even get a handle on how many thousands of individual records were kept from the public in cases that weren’t entirely secret; they were too hard to count.
There are all sorts of reasons, the office found, why courts and parties kept lawsuits under wraps. The government, for example, has invoked the need for secrecy to protect against harm to national security, which courts readily accommodate in a post-9/11 world. Other reasons are more benign: Confidential business information can’t leak out, physicians’ reputations can’t be harmed, high-profile defendants shouldn’t be embarrassed. The list goes on. And some secrecy serves no purpose at all: Cases were sometimes kept secret by accident.
It’s unclear exactly how bad the problem has gotten since 2006, but it’s a safe bet that it has gotten much worse. “Too often, judges draw a curtain of secrecy around court proceedings,” three law students conducting a review of court secrecy told the Washington Post in 2017. “Courts have given special treatment to politicians, lawyers, celebrities, and other notables, sealing their cases to shield them from unwanted attention.”
It hasn’t always been this way. When the country was founded, attending public court proceedings was practically a national pastime. Baseball, after all, hadn't yet been invented. Fast forward to the 1940s: The Supreme Court declared that a trial “is a public event” and “What transpires in the court room is public property.” The idea had become so woven into the fabric of the United States that a year later, the court tried but was unable to find “a single instance” of a criminal trial being held in secret “during the history of the country.”
In fact, open courts are so central to our identity that they are protected by the Constitution. By and large, individuals know that the First Amendment protects their right to free speech, but what they might not know is that the same Amendment also protects their right of access to information about their government, especially the courts. “People in an open society do not demand infallibility from their institutions,” one justice said in the 1980 opinion recognizing a constitutional right to attend court proceedings. “But it is difficult for them to accept what they are prohibited from observing.”
The right doesn’t exist for its own sake. It's fundamental to how we govern ourselves. Government proceedings work better when people are watching. Witnesses called to testify are less likely to lie on the stand. Lawyers are less likely to slack off. Courts are more likely to observe procedure and act impartially. And the public is more likely to be informed about its government and have confidence in how that government exercises its power.
Some of these benefits were on display just last month when lawyers argued that mere embarrassment wasn’t reason enough to allow Michael Cohen, President Trump’s longtime lawyer, to keep the identity of a third client a secret. “I understand he doesn’t want his name out there, but that isn’t the law,” Judge Kimba Wood ruled. The disclosure of Sean Hannity as the mystery client was met with gasps in the courtroom and feverish public debate outside it. Access worked.
Restricting access, on the other hand, sucks the life out of the system. Imagine if Bill Cosby had been exonerated behind closed doors, or if the Parkland shooter were to walk free after a secret trial. Secrecy breeds distrust or, maybe worse, disinterest. Look no further than the ongoing terrorism prosecutions at Guantánamo Bay, where the level of secrecy makes it difficult to tell what’s even happening at times — and, from all appearances, the public has given up trying.
With courts often asleep at the wheel, the DOJ’s decision to delete the “Need for Free Press and Public Trial” section under the guise of housekeeping is cause for real alarm. It’s yet another important reminder that our government long ago forgot that sunlight is the best disinfectant. It’s time we started remembering before it’s too late.
Matthew Schafer is counsel at BuzzFeed News, where he focuses on media and First Amendment issues.