The presidential campaigns of Hillary Clinton and Donald Trump are both trying to prevent the public release of videos that are critical to legal cases involving the candidates.
Trump’s lawyers are intensifying efforts to stop the release of video of the presumptive Republican presidential nominee testifying under oath in a fraud lawsuit about the now-defunct Trump University. They told a federal judge in San Diego late Wednesday that the video could be used by the media and Trump’s opponents during the presidential campaign.
Lawyers for a top Clinton aide used similar arguments to persuade another judge to keep video depositions sealed in a lawsuit about the likely Democratic presidential nominee’s use of a private email server while she was the nation’s top diplomat.
While the arguments are similar, judges may treat them differently.
In the Clinton case, a federal judge in the District of Columbia ruled last month that transcripts of all depositions be made public but that audio and video be sealed.
In Trump’s case in San Diego, U.S. District Judge Gonzalo Curiel – a target of Trump’s intense, enduring scorn – hasn’t decided how much to release and whether it should include audio and video.
Late Wednesday, Trump lawyer Daniel Petrocelli expanded on why the videos should stay private, saying they could fuel a ‘media frenzy’ surrounding Trump’s campaign. His seven-page filing raises no objection to releasing transcripts.
“Owing to the danger that a video may create in eliciting bias on the part of its viewer, the Court has a duty to prevent their disclosure because they can taint the jury pool. Undoubtedly, these videos also will be used by the media and others in connection with the presidential campaign,” he wrote.
The outcome may shape attack ads on issues that have dogged both candidates. John Geer, a political science professor at Vanderbilt University who studies attack ads in presidential campaigns, said video is ‘great stuff” to tarnish opponents.
“It helps to make the case by having not only the words but the person actually saying them,” Geer said. “It’s not just the message, it’s the messenger. … Sometimes the transcripts will be sterile. You can’t detect sarcasm. The body language makes a difference.”
Partial transcripts have been released of Trump testifying at an all-day deposition Dec. 10 at his New York office and for three hours on Jan. 21 at a Las Vegas law office. Several news organizations are seeking full disclosure of those sessions (including video) and Curiel is expected to rule at a hearing June 30 or soon after.
Lawyers representing Trump University’s former customers in two class-action suits in San Diego argue they should be permitted to release video excerpts because they present a more complete picture than the transcripts.
Trump’s tone, facial expressions, gestures and body language show “complete and utter unfamiliarity” with Trump University’s instructors and instruction, despite the business mogul’s previous statements that he was extensively involved, the attorneys wrote in a filing last week. They said Trump also made “many spontaneous and ad hominem remarks that are not reflected in the paper transcript of his depositions.”
Clinton’s campaign needled Trump on Thursday with a news release titled ‘What’s Donald Trying to Hide?’ Yet a top Clinton aide took the same position in the lawsuit over Clinton’s emails.
US District Judge Emmet Sullivan sided with lawyers for Clinton aide Cheryl Mills, who objected to releasing video but not the transcript. Her lawyers argued that “snippets or soundbites of the deposition may be publicized in a way that exploits Ms. Mills’ image and voice in an unfair and misleading manner.”
Mills, who was Clinton’s chief of staff at the State Department, said during her five-hour deposition last month that she discussed Clinton’s private server with a technical aide who helped set up and run the system, according to a transcript released by Judicial Watch, the conservative advocacy group that sued for access to records. Mills is among a half-dozen current and former officials whom Judicial Watch plans to question.
In portions of Trump’s testimony that have been released, the presidential candidate acknowledged that he plays on people’s fantasies.
“Sure, you want to…life, you want to…you want to play to something that’s positive and beautiful. And you can use the word ‘fantasy’ if you want. Or I could use the word ‘fantasy,’ but, sure, you want to play to something that’s beautiful and good and successful,” he said.
Trump couldn’t recall names of his employees, undermining his advertising pitch that he hand-picked them. When confronted with a statement by Trump University’s former president that Trump never picked instructors, he said, “This is the longest deposition I’ve ever done in terms of no break. So I need breaks because I have to make some calls.”
Trump is pressed on his blog posts in 2008 that Bill Clinton was a great president and Hillary Clinton would make a great president or vice president. Of his praise for Hillary Clinton, he said, “I didn’t give it a lot of thought, because I was in business.”
Legal experts say judges generally have wide discretion on making depositions public.
Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, believes evidence – including video – should be released with rare exceptions, including to protect trade secrets or privacy.
“The fact that someone might use it in a bad way to embarrass isn’t a reason for secrecy,” he said.