For the last year, I have been criticizing over-wrought and at times irresponsible legal analysis proclaiming “slam dunk” criminal cases and long-sought “smoking gun” discovery sealing the fate of President Donald Trump or his close associates. This includes months in which legal analysts referred to the crime of collusion despite there being no such crime. Unfortunately, this trend continues with the recent interview of Jill Wine-Banks, a former Watergate prosecutor, who told MSNBC that Trump’s recent tweets can constitute “obstruction of justice, witness intimidation, and it’s obstructing justice by saying to agents you better not dig too deep, you better not find anything because I will attack you.” I can see little support for such a position in the criminal code or past cases.
I have repeatedly criticized President Trump for his tweets on pending cases and investigations for both their content and their propriety. These tweets have been repeatedly used by courts to undermine Administration policies and programs. However, he is the President of the United States and can, like many politicians, criticize his opponents or attack allegations raised against him. It is unwise but it is neither unconstitutional nor unlawful.
Wine-Banks added “And this is the president of the United States, it is congressmen who have a national audience and can make people’s lives miserable.” I am not sure what that statement means beyond the fact that powerful people can yield consider pressure in attacking civil servants or others in the national media. I agree that it is not appropriate but criminal? If that were the case, any president could be charged with declaring allegations to be politically motivated or unfounded. The Clintons routinely rallied supporters against what Hillary Clinton called the “vast right-wing conspiracy.” I do not recall Democrats or others denouncing the Clintons for obstruction. It is certainly true that the Clintons showed considerably more restraint than Trump in such public comments but Wine-Banks gives no indication of where such a line would be drawn.
Wine-Banks added “I think it’s a serious threat to the investigation and to democracy.” Once again, those who are proclaiming our democracy at risk are doing so with no evidence to support such claims. Indeed, our system seems to be working quite well. While I have criticized some of the coverage of Trump as biased, journalists are doing well in their investigative work under the First Amendment in challenging this Administration. The courts have repeatedly countered policies and programs — and Trump has respected those rulings in seeking appeals while adhering to injunctions. The Congress (with both houses under GOP control) has declined to adopt many measures where they disagree with the White House. Where precisely is the evidence of a threat to our democratic system?
Despite her well-deserved reputation and accomplished background, Wine-Banks’ interview offered “more heat than light” in our national debate. We are in great need of more light from our leading legal minds.