Jill Wine-Banks, a native Chicagoan, is a former Watergate prosecutor, and since 2017, an MSNBC legal analyst. While at Southern Illinois University Carbondale to give a lecture Wednesday, she took time out to talk with reporter Maureen McKinney. This is an edited, excerpted version of that conversation.
Can you tell me about a few of the situations that you've commented on at MSNBC ? Maybe things that were particularly important or interesting?
Well, I mean, that's, that's a lot of years and a lot of issues. One thing I wrote an op-ed about recently in the Detroit News, and which I was asked about today at SIU, by one of the law students, was about cameras in the courtroom. And I think that's a really big issue is that federal courts and a lot of state courts, but some state courts do have cameras. And there's no reason why we don't have them. The George Floyd, murder trial of Derek Chauvin, shows how important cameras are, shows that they do not interfere in any way with the trial, or the jury, or the witnesses or the judge, or the trial lawyers, and why it's beneficial. So that's one of the things.
I've been able to talk about the Equal Rights Amendment; I've been able to talk about the 14th amendment and whether it should be used, as it is written, to prevent someone engaged in an insurrection from being on the ballot for federal office. And, you know, I've talked about everything from every indictment, the civil lawsuits, the (New Jersey Sen. Robert) Menendez indictment, you name it, I've been able to comment on it.
My undergraduate degree is journalism. And it just took me a long time to finally get a job in journalism. But I love it. And I love the feedback I get from people saying I'm helping to keep them sane, and that they feel like they're getting a law degree, that they're understanding the legal implications of things. So it's, it's been a remarkable thing.
Tell me about the 14th amendment, and whether it should be used that way.
Well, the 14th amendment is to me very clear, and doesn't raise an issue that's very different than when a Secretary of State certifies someone for the ballot, they have to be a natural born citizen, they have to be 35. And if you read the 14th Amendment, they have to have not engaged in an insurrection after taking the oath of office.
So, I don't see it as any different than someone looking at a birth certificate. I mean, if we go back to (former President Barack) Obama, there were those who challenged that he wasn't a natural born citizen. And so someone had to look at the birth certificate say, ‘Oh, yes, he is. He was born in Hawaii, and that was a state. And, so. he therefore is qualified as a natural born citizen.’
So I think it's something as a matter of constitutional law, that is enforceable as to whether as a political matter, it would lead to a disruption in our country and to violence is a different question. So that's a question of should discretion be used in enforcing the Constitution? And I guess I come out on the side of discretion in enforcing the law is not allowable in this situation, and that it should be utilized as it was intended.
So, that would be my bottom-line conclusion is that it is important, I mean, if, for example, people are saying, well, you can't keep (former President Donald) Trump off the ballot because his followers will cause a civil insurrection, as they did on January 6? Well, what's going to happen if he's on the ballot and loses? What do we face then? So do we face it …now or after he loses? And I'm not willing to put my money on whether he'll win. And. so we won't have civil insurrection, but he will be an unconstitutional president.
I wonder what your thinking is about broadcast television, as it exists now, how it's changed over the years?
First of all, you know, if we go back to the Watergate era, there were only three networks. And they all had the same facts. We had a bipartisan Congress, where Democrats and Republicans work together for a common good. And we don't have either of those things now. Now we have multiple outlets, we still have ABC, NBC and CBS, but we also have Fox and MSNBC and many other cable channels.
We also have social media, where unvetted information can't be posted by anybody. And can, you know, it's sort of like the game of telephone whatever one says to, by the time it gets to the 10th person, it's something different. And we have social media platforms that allow people to repeat often enough so that people start thinking they're hearing the truth because they've heard it loud and often. And that is one of the, I think, the really big differences. And it's not that, you know, the mainstream newspapers, radio and television, are doing the same kind of vetting that has always happened on television and in newspapers. It's that there are a lot of unvetted sources. And people accept that as true.
So, you know, for example, when I go on television, I don't read a news article, I read the underlying document. So, if I'm talking about, you know, any of the criminal cases or the civil cases against Donald Trump, or the criminal case against Senator Menendez, I don't read an article, I read the indictment. I look at all the supporting motions, and try to think about what the evidence is, what are the elements of the crime? And does the evidence support a conviction for those elements of the crime? And, so, I know what the facts are. And I also know when I read on other sources, that stuff just isn't true.
I'm curious about your service in the Department of Justice. How old were you?
Well, I joined the Department of Justice, just out of law school. So I was like, 25, when I joined justice, and it was a time when only 4% of all lawyers were women. And none of those people, or almost none of them, were litigators. So, I really was kind of unusual thing in a courtroom. Whereas nowadays, the judge, both lawyers. There may be many, many women litigants in the courtroom and plus the judge. Back then, that wasn't true.
And when Watergate happened, and partly because of sexism, I joined the Department of Justice as a trial lawyer, and all Trial Lawyers start by arguing appeals, and I took me a year to realize that the men I started with had moved to trials. And I was still doing appeals and, I had to confront my boss as to why? And he said, well, because (you are girl) and you'd be more vulnerable in a trial court than you are in an appellate court where there's only lawyers in the trial court.
You’re in organized crime, you'd be with made members of the mob. And I just said to him, well, what didn't you notice about me when you hired me as a trial lawyer? So by speaking up, I got my first trial. And then what the point is, that I had, like, less trial experience than other people, because it took me longer to see the discrimination and to confront it. So by the time I got to Watergate, I really only had like, three and a half years of trial experience, which actually, in retrospect, is pretty extraordinary that I was one of three on the trial team, who was, you know, opposing the top lawyers from the White House and who was cross examining top administration officials. It is kind of remarkable.
We did things so quickly, and I now hear well, none of these cases can be tried until after the election. We were appointed in May of '73. We indicted in March of ‘74. So 10 months later, we went to trial in September, and we had a verdict on January 1. And in that time, we had gone to the Supreme Court, we had gotten the tape recordings, the president had resigned. I mean, a lot happened in that brief period.
What did you learn? Most importantly, out of that experience?
Well, I learned the importance of the rule of law, and that we as a nation could survive criminal conduct in the Oval Office. But that was because the country accepted facts, and accepted the evidence. And I think we're in a very different place now where there's a significant number of millions of people who are misled by statements being made, that do not reflect accurately what the evidence is. And so that's a very big difference. And I think I learned the importance of facts, bipartisanship. Those may be two of the most important things. But we can survive this.
What's going to make the difference? The difference in whether we survive it.
Well, I think democracy is worth fighting for. And that we, which is not to say that we don't need to make changes in our laws, we have identified a lot of gaps, where we have relied on norms of behavior that aren't enforceable, I mean, things like the Emoluments Clause, it's clearly illegal to do certain things, but there's, or it's unconstitutional as set forth in the Constitution.
But there's no way to punish someone for violating the Emoluments Clause. So we may need that.
And there are many other things. I think that we've noticed that need to be improved. But I think that it's a question of sort of voter participation, we have to make sure there's a big enough turnout, so that you don't have 10% of the population deciding what happens. We've also seen a lot of things that are what I would call a majority rule, democracy…, where even now where, a handful of members of the Senate can bring it to a halt. And where senators representing, you know, like 20 or 30% of the population, you know, Team minority can rule the country.
And so, I think we need to protect democracy and we need to look at either changes that need to be made including passage of the Equal Rights Amendment because women are not protected by the Constitution. Women are mentioned only once. And that's in the 19th. Amendment from 1920, where we were granted the right to vote. But the Equal Rights Amendment has never been incorporated into the Constitution. And so women are not mentioned, it's you know, all men are created equal. Well, excuse me, what about the rest of us?
That makes me think about the question of breaking the glass ceiling in the law arena. What's that been like? What's changed and what still needs to change?
I’m wearing Lady Justice, a Lady Justice pin. I have a dancing-backwards-in-high-heels pin, because I think it represents the hurdles that women have had to overcome. And that was something that was said, about Ginger Rogers, who danced with Fred Astaire, but had to do everything he did only backwards and in high heels. So to me, that's to be considered half as good as he was, he was always a star, even though she did everything he did.
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So I have a couple of shards of glass that have been given to me as symbolic of breaking the glass ceiling. And I just won an award from the American Bar Association, that is a beautiful glass pyramid filled with glass shards because it's given to people who have broken glass ceilings. And I just think it's a beautiful symbol. And it's a beautiful award that I'm very proud of.
I did not set out to be a pioneer or a trailblazer. I just set out to do what I wanted to do, without realizing that there was a quota of women in my class 5% of my class was female. And I just did what I wanted to do. And in doing that ended up being a trailblazer, but not by plan, not by design. I just wouldn't give up when people said, “Well, women can't do that, or you're a girl and you'd be more vulnerable.” I just didn't let it stop me. I kept on doing what I wanted to do.
Well, a lot has changed. I mean, now 50% of most law classes are female. What hasn't changed is the discrimination and sexist behavior they are subjected to. It is now illegal. When I graduated, there was no EEOC. There was no protection of women's rights. There was no women's movement; there were no women peers that I could get strength from.
There is now, and the proportion has increased. But if you look at the top partners at law firms, the top CEOs and corporations, the top in any field, it's still heavily male. Women are not 50% at the top, but it's a lot bigger. When I graduated, women earned like 50 cents on the dollar for what a man earned. And I think that's it's now 70 Some percent, but that's still a long way from 100% parity.
I remember seeing a movie called Made in Dagenham, which is a Ford plant in England. And when we came out of the movie, my husband said I can't believe that was so recent in England that this was going on, that women were paid less than men. And I went, don't you remember the first act that Obama passed was the Lilly Ledbetter Equal Pay Act? That's because we're way behind England. And that was the first time that equal pay was mandated. So we have a long way to go.
As I said, I think the Equal Rights Amendment incorporation in the Constitution would be a very big help in getting us to equality. But it's going to take more than that. It really is, I think, having 50% of a law class, eventually that will filter into the profession. And that,, as I said, when I started, it was 4%. I'm not sure what it is. Now, I'm sure it's not 50%, because it takes a long time to integrate that. But we've come a long way.
So much has changed for the better. But we aren't as far as we need to be, we just aren't. And so I'm going to keep on fighting for the Equal Rights Amendment, I'm going to keep on fighting for true equality for women, paying attention to things like at associate evaluations are the same behavior tactics of a man and a woman judged differently? And the answer is, yes, men are seen as assertive women are seen negatively as being, I'm trying to think of a nice word as being bitches when they do the same thing. And I am sorry, I couldn't think of a better word. They're overly aggressive.
And we have to get to a point where everyone is evaluated the same: what are the results of your behavior? Did you win the case? Or did you lose the case? Did the client fire you? Or did the client hire you for a second case? Those are what we should be judged on. So I just don't think we're quite as far. I talk at a lot of law schools and colleges and business schools and to young professional organizations. And the same kind of gender bias I encountered. And I could spend hours giving you specific examples are happening today. And the fact that they are happening, I mean, I graduated law school in 1968. And the fact that we are this far along that it's still happening is obscene.
