Alan Dershowitz: Liberal Democracy Dies When Illiberalism Wins
In this episode of American Thought Leaders, Harvard law professor emeritus Alan Dershowitz discusses his book, “The Price of Principle: Why Integrity is Worth the Consequences,” and argues that “unprincipled” partisanship has taken over America.
“How dare they call themselves progressives,” says Dershowitz. “They are regressive. They are reactionaries. They are repressors.”
One of the top constitutional lawyers in the country, and a self-described liberal Democrat, Dershowitz has been excoriated by both the right and the left for defending highly unpopular public figures.
“People love me when I defend people they like and they hate me when I defend people they don’t like,” says Dershowitz. “The more unpopular you are, the more likely I am to want to defend you.”
Dershowitz shares his thoughts on COVID-19 mandates and censorship, due process and civil liberties, as well as the rise of antisemitism in America.
“You see these protests against Zionism by people who have no idea what Zionism is,” claims Dershowitz. “I’ve been a Zionist from the time I was born. All it meant is that the Jewish people, like every other people, have a right to a homeland.”
Interview trailer:
Watch the full interview: https://www.theepochtimes.com/alan-dershowitz-unprincipled-partisanship-has-taken-over-america_4751972.html
FULL TRANSCRIPT
Jan Jekielek:
Alan Dershowitz, such a pleasure to have you back on American Thought Leaders.
Alan Dershowitz:
Thank you so much for having me.
Mr. Jekielek:
Your book, “The Price of Principle,” comes at the right time for me. These are exactly the kinds of questions I have been kind of struggling with. Has partisanship completely taken over? In a sense, has partisanship almost become principle?
Mr. Dershowitz:
I would say partisanship has taken over, but it’s an utterly unprincipled partisanship. If you ever dare to put principle before partisanship, you’re canceled. Your group won’t have anything to do with you. You have to be 100 per cent partisan no matter what the principles are. I’ll give you an example. Caroline Kennedy’s father wrote the famous book, “Profiles in Courage.” I showed a little bit of courage defending President Trump in his impeachment, even though I’m a liberal Democrat and voted against him twice. Caroline Kennedy said if she knew that I had been invited to this dinner party, she never would have come. The public library in Chilmark, Massachusetts, a bastion of liberalism, canceled my speeches and stopped circulating my books, all because they don’t like who I defended. Even though I vote the same way they vote, that’s not good enough. They say that I, “enabled President Trump by being one of his lawyers on behalf of the Constitution.” That’s how far we’ve gotten.
Mr. Jekielek:
You say in the book that principles have actually become a weapon for partisanship. What do you mean?
Mr. Dershowitz:
People claim principle, but they’re using it in a partisan way. It’s the opposite of principle. It’s doublespeak. Today, you cannot be a principled person. If you are a principled person, you’ll be punished for it. Nobody wants principle. Nobody wants consistency. The Republicans are perfectly happy to say, “Oh, we’re not going to allow Merrick Garland to get a hearing for the Supreme Court, because it’s eight months before the election.” And then a few weeks before the election when President Trump nominates Justice Barrett, they say, “Oh, that’s fine.” And you ask them, “What’s the principle?” And the principle is, “Because we can. We have the votes to do it.” The Democrats do the same thing. They silence people. They attack people, particularly in academia today.
I just learned something last night. I was having dinner with the president of one of the city universities in New York. She said that at the City College of New York, where I went to Brooklyn College, the law school faculty has now voted unanimously to boycott Israel, and only Israel. They had as their primary speaker at graduation a guy who advocates terrorism against Israel, and doesn’t believe it has a right to exist. I don’t want to debate Israel here today, but if a student at that university dares to dissent from the faculty’s unanimous vote, they’re not going to get recommended for a job on Wall Street or for a clerkship. That’s not education. That’s propaganda. In 50 years of teaching at Harvard, I never once expressed a personal point of view in class. I taught the students how to think, not what to think. Today, classrooms are propaganda mills, and they’re our future leaders.
Mr. Jekielek:
You have a chapter in the book talking about systemic racism. As an assessment, are we still systemically racist? It made me think about this whole woke movement. Essentially, it is partisanship masquerading as principle, isn’t it?
Mr. Dershowitz:
It is. Meritocracy is a dirty word. You can’t use meritocracy. That’s white supremacy. There has to be racial advantage. But when there’s racial advantage, there’s racial disadvantage. Look at the Harvard case. Who’s suing Harvard? It is Asian students, because they’re being discriminated against because of quotas for black students. That case is going up to the Supreme Court, which I think will decide it the right way. But you know what will happen? Universities will cheat. All the major universities will cheat. They will still have racial quotas, but they’ll describe them as something else. Is that different from what the south did when it totally avoided the Supreme Court’s decision on desegregation? The south cheated, too. They pretended that they weren’t segregating, when they were. Universities shouldn’t be cheating and shouldn’t be looking for ways to circumvent Supreme Court decisions, but I assure you they will.
Mr. Jekielek:
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Mr. Jekielek:
Do you see these Harvard student quotas as a form of racism?
Mr. Dershowitz:
No, it’s an attempt to eliminate racism. But it’s a very, very awkward attempt, and it introduces new elements of racism. It’s not going to work in the end. We are not a systemically racist country. We’re a systemically anti-racist country. When I grew up in the 1940s and 1950s, we were a systemically racist, anti-Semitic, anti-Catholic, anti-Latino country, and that changed dramatically in the 1960s and 1970s. When I graduated from Yale Law School, first in my class, editor-in-chief of the Law Review, and a potential Supreme Court law clerk, I didn’t even get an interview, except for one Wall Street firm. I applied to 32 Wall Street firms. They all turned me down. That was systemic racism. That doesn’t exist in America today.
Today, we have sporadic racism, which the government tries very hard to overcome and sometimes overreacts. Perhaps the most significant event in transforming America in the 21st century may well be the killing of George Floyd. That changed everything in corporations, in the media, and in universities. We were right to have a reckoning about race. The killing of George Floyd was inexcusable and horrible, but this event transformed us so dramatically. The transformation was already occurring. It was already on the way, but that one event changed it so quickly and so dramatically, and the result is not equality. The result is to introduce a new kind of inequality, and an anti-meritocratic approach.
Mr. Jekielek:
Many people have argued that this basically allowed this illiberal movement that you describe in multiple ways in the book to come out. It was an opportunity to codify it and make it official.
Mr. Dershowitz:
I think that’s right. Less radical people, from the communists in the 1930s and 1940s to today’s woke generation look for opportunities. They find events and use them to project their narrative and to project their agenda. The thing that’s so hard about it is they’re often right. Many of these are decent people, the ones who now want to impose censorship on universities. I tend to agree with a lot of their substantive points of view. I just don’t agree with the means. They don’t care about means. They think the ends justify the means. Their utopia is going to be achieved, and so we don’t need the barriers of equal protection, due process, and free speech. Why do you need free speech if you already know The Truth with a capital T? Why do you need due process? If you already know that a man who is accused by a woman is, of course, guilty, why do we need to have a trial?
You may have seen just the other day, in that case that was on the Serial podcast for many months, the prosecution agreed to release the guy who had been wrongly convicted, and had been in jail for so many years. The Left loves it when somebody they identify with is released, but they don’t want to apply the same due process standards to President Trump, or to a white person who was accused of oppressing blacks. I don’t like it when that happens, but I’ll defend anybody who the government is after. The more unpopular you are, the more likely I am to want to defend you.
Mr. Jekielek:
Are you familiar with Marcuse’s principle of repressive tolerance? As you’re speaking, this is what I’m thinking about.
Mr. Dershowitz:
Oh, very much so. I grew up with that. He was at Brandeis University when I started at Harvard University, and he was a neo-fascist of the Left. He was one of the first academics who justified censorship, and justified repression. He said over and over again, “There’s no reason to let them have their ideas expressed. We know we’re right.” This was part of the so-called Berlin School of whatever. It’s interesting, because although it grew out of anti-Nazism, it turned into its own form of fascism. So, Marcuse was kind of the godfather of the woke repressionist movement. How dare they call themselves progressives? They are regressives. They are reactionaries. They are repressors. They want to stop due process and free speech and equal protection.
Mr. Jekielek:
I think you meant the Frankfurt School, is that right?
Mr. Dershowitz:
Yes. That’s what I meant.
Mr. Jekielek:
There are three principles that have dominated your life. I’m going to read them, because I found this very valuable. Number one; freedom of expression and conscience. Number two; due process, fundamental fairness, and the adversary system of seeking justice. I want to get into that because it’s very underappreciated why this is so critical. Number three; basic equality and meritocracy. You argue that these three things are fundamental. The moment you dispense with any one of them, things fall apart.
Mr. Dershowitz:
Yes. The one that’s the most unpopular today is the adversary system. If you want to appreciate defense lawyers like me, go to Iran, go to the Soviet Union, go to Russia, go to China, or go to Cuba where people can’t get defense lawyers. Don’t wish for things that you don’t want. People say I’m such a horrible person because I defended O.J. Simpson. I defended Leona Helmsley. I defended so and so. Yes, and I’m going to continue to do that, just the way John Adams defended those who were accused of the Boston Massacre, and Abraham Lincoln defended unpopular people. Clarence Darrow did. Thurgood Marshall did. It’s the essence of our system, and yet it’s very unpopular.
People love me when I defend people they like, and they hate me when I defend people they don’t like. People walk up to me in the street and say, “We used to like you and respect you. Now we’re so disappointed.” I say to them, “You were wrong to ever respect me or like me. I was never on your side. I was on the side of due process and justice and civil liberties.” Back in the day, things came out on their side. But today, the victims of due process and civil liberties are often Republicans, conservatives, Christians, Jews, and people who are not popular with the woke generation.
Mr. Jekielek:
I’m also going to read something which I pulled from the book. It was a powerful quote from H.L. Mencken that I hadn’t been aware of, “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels, for it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning, if it is to be stopped at all.” Wow.
Mr. Dershowitz:
I think of that every day when I’m accused of defending Donald Trump. In many ways, Donald Trump is a scoundrel. I don’t agree with him. I voted against him. If he committed a crime, I would want to see him impeached or go to prison. I’m not rooting for him. But I don’t want to see the laws applied against him. And now, so many civil libertarians want to expand the criminal law. I’ll give you an example. There’s a statute called the Espionage Act of 1917, the most hated law by the liberals. They got Eugene V. Debs with it. They got Dr. Spock with it. They got Daniel Ellsberg. The liberals all said, “Oh my god, we have to abolish that statute.” Now, you have the New York Times and the liberals editorializing in favor of expanding that statute and applying it broadly to the Donald Trumps or the sedition statutes.
They were used against anarchists and communists in the 1910s and 20s. Now they want to use them against people who participated in January 6th. Now I’m opposed to what happened on January 6th, but I’m more opposed to using sedition laws to try to get them. This was a protest that got out of hand. A violent protest that shouldn’t have happened. But don’t overreact by keeping people in prison for months without a trial and charging them with sedition, as some people want to do. My former colleague, Laurence Tribe, has suggested that the Attorney General of the United States should prosecute Donald Trump for attempting to murder Vice President Pence. My God, what would that do to the rule of law? There is no law of attempts that would apply to that. Tribe is making it up, but he’s willing to make it up if it’s to get Trump. By the way, that’s the title of my next book, Get Trump. It will be about how the attempt to get Trump is destroying civil liberties and human rights in America.
Mr. Jekielek:
You have views on the election, views on free speech, and these things come together around Trump, so we’ll talk about that in a moment. Before we get there, I want to finish this piece. You said you’re on the side of justice, but you also make this really interesting distinction. You cite Judge Oliver Wendell Holmes who says, “No, I’m on the side of law. I’m not on the side of justice.” It isn’t necessarily obvious why these things are not the same.
Mr. Dershowitz:
I’ll give you an example. Today to convict somebody, you have to prove his guilt beyond a reasonable doubt. What if he is guilty, but there’s no evidence of reasonable doubt? And so you have a guilty person going free. That’s not justice. That’s the law. That’s a good law. It’s better that ten guilty go free, than one innocent be wrongly convicted. That’s a good law. It emanates from the Bible, from Abraham’s arguments with God over the sinners of Sodom. But it’s not justice, and I have produced injustice on some occasions. Yes, I have occasionally gotten guilty people off. I don’t lose any sleep when I do that. Let me tell you I lose sleep when I get an innocent person convicted. That’s only happened a very, very few times in my life, but it has destroyed me, because then I say it’s my fault. If a guilty person is set free, that’s part of our system. It’s better that ten go free. But if an innocent person is convicted, I can’t deal with that. It’s so hard. That’s why I fight so hard against that happening.
Mr. Jekielek:
It’s foundational that you follow the law, and you don’t make exceptions.
Mr. Dershowitz:
That’s right. Now look, you can have lawless law. If I were living in Nazi Germany, I wouldn’t follow the law. But we live in a country of law, and our legal system is a good one. It doesn’t always produce the right results. I’m not Socrates. I wouldn’t drink the hemlock. There isn’t room for civil disobedience. I’ll give you a wonderful example. My grandfather was poor as a church mouse. He had no resources, and lived in a small place. On the eve of the Nazi invasion, he found out that he had 28 relatives in Brno, Czechoslovakia. He went around to every neighbor and said, “You have a basement that’s now a synagogue. You need a rabbi. You need a cantor.” He had 28 false affidavits, and saved the lives of 28 people from Nazi Germany. It was the proudest moment in his life.
If you ask me what I admire most among the wonderful things done by my family, I say it’s my grandfather’s illegality in helping to bring in those 28 people. They are now among the most accomplished Americans. One of them was chairman of the Department of Engineering at Columbia. Another one is a major investor in medical technology. Another is a rabbi in Los Angeles. Another is a public relations person. These are great Americans, and they were brought out of the Holocaust by an illegal act. That is why I tend to be sympathetic to immigrants who will do anything to come to America to save themselves from prosecution.
Mr. Jekielek:
In the book, you mentioned the case of Jussie Smollett. If I recall correctly, his case was dismissed at one point. Presumably, it was dismissed on some kind of principle, even though the law definitely didn’t suggest that it should be dismissed. Subsequently, it got re-litigated. I’m thinking that the prosecutor dropping the charges imagined they were following some sort of principle that’s greater than the law.
Mr. Dershowitz:
Yes, but the principle there was one that they would be embarrassed to articulate, because it was completely based on improper considerations like race. The real villain there was Don Lemon, who just recently got fired by CNN, but didn’t get fired soon enough. He was a very close friend of Smollett and gave him legal advice about how to not give the phone to the police. He never disclosed it when they interviewed him on television, whereas Chris Cuomo was fired. I have a chapter in my book about CNN. CNN doctored a tape of mine, they doctored a tape. They made me say exactly the opposite of what I had said. I said that a president could be and should be impeached if he committed criminal behavior or criminal-like behavior. But they had me saying a president can’t be impeached, even if he commits criminal behavior, even murder. Therefore I’m like Hitler, Stalin, and Mussolini. That’s why I’m suing CNN for their unprincipled distortion of what I had to say. I strongly believe in the First Amendment, but the First Amendment doesn’t give the media the right to make up defamatory stories in order to serve their partisan interests.
Mr. Jekielek:
When you realized that tape was doctored, what was your reaction?
Mr. Dershowitz:
I couldn’t believe it, because I had been a guest on CNN many, many, many times. But as soon as I defended Trump, my status changed. I knew that, and that’s okay. They’re a network with an agenda. But they doctored a tape like this, and took my words out. I had used these words in my answer on the Senate floor; unlawful, illegal, corrupt, in order to define what would constitute an impeachable offense. They took out those three words, just as if they had taken scissors to snip them out, and then had commentators saying, “Dershowitz says a president can do anything that’s unlawful or legal or corrupt,” when I had said exactly the opposite. So, I sued them. I hate to sue. I had never sued anybody in my life until I was 75 years old, and now I’m involved in three lawsuits.
Mr. Jekielek:
You said there were three things you did that changed you from being seen as one of the top legal minds in the nation, to being some kind of pariah in certain social circles.
Mr. Dershowitz:
Okay. Representing Trump was number one, and that put me in the “margins of academia.” CNN contributed to that by distorting what I had to say. Number two was representing Jeffrey Epstein, which I did and got him a good deal. He didn’t like the deal, but most people think it was too good of a deal. And the third, as the result of representing Jeffrey Epstein, I was accused by a woman named Virginia Giuffre, who I never met and never heard of, having sex with her on seven occasions, including in front of my house in a limousine in Cambridge, Massachusetts, and in places that I never was during the relevant time period. Her own lawyer admitted on tape that she was, “Wrong, simply wrong.” Her other lawyer admitted that she was wrong. There were emails that we discovered that they tried to suppress which admitted she never knew me, and yet people believed it.
But it’s interesting, what these different people think. The people on the liberal Left don’t believe the sexual charges against me. They only attack me because of the Trump business. Others don’t attack me on the Trump business, but they attack me because if I’ve been accused, then I must be guilty. I wrote another book on that called Guilt by Accusation, where I clearly document how it’s impossible for me to have ever been in the same place where she was, under the circumstances she suggests, including, as I say, sex in a limousine in Cambridge, Massachusetts with two women. She just has a phenomenal imagination. But I’ve clearly proved her to be a serial liar, and I’m suing her now. She’s suing me, and it will be resolved in court.
Mr. Jekielek:
We live in this time where identity plays a role in ascribing guilt or innocence. In a sense, this has infected almost all areas of inquiry. Are you seeing this?
Mr. Dershowitz:
The ACLU is dead in the water now. They don’t defend people on college campuses from being denied free speech or due process. For the most part, they have become a partisan, political organization
Mr. Jekielek:
Alan, I want to switch gears and go into your book, “The Case for Vaccine Mandates.” This is something that I’ve been following very closely. It’s based on the idea that the vaccines need to reduce the spread of the virus for there to be a case for mandates. Right?
Mr. Dershowitz:
That’s absolutely right. If you invented a new vaccine that could immediately stop all heart attacks, all cancer, and all diabetes, I would be opposed to the government requiring you to take it. I would urge you to take it, but I would not allow the government to make you take it. According to John Stuart Mill principles, the only way the government can force you to do something is to prevent harm to others. However, if there is a vaccine, even if it doesn’t help you personally, if it helps to prevent the spread of a deadly disease, then as a last resort I would allow the government to compel you to take it. I own a letter written in the hand of Alexander Hamilton dictated by George Washington in which he urges his commanders to make every soldier in the American Revolutionary War get vaccinated against smallpox. Essentially, he says, “We’re not going to lose to the Brits, but we might lose to smallpox.” But I agree with you that the key point is that the vaccine has to prevent contagion, and that burden hasn’t yet been satisfied, at least with the earlier vaccines. The current new vaccine claims that it does prevent the spread. That’s a scientific fact. Now, we’ll have to wait and see whether it’s borne out by the research.
Mr. Jekielek:
Here’s a question. I can imagine the people that were very pro-mandate at the beginning would grab Alan Dershowitz’s book and say, “Look, Alan Dershowitz says that there is a case for mandates.” Whereas, as we know, these genetic vaccines certainly didn’t stop the spread, and in some cases, some of the research is now showing that they’re actually promoting viral replication, as opposed to the opposite. Here’s the thing I want to get at. Early on we were told by pundits and politicians that the vaccines would stop the spread, but there was a suppression of information and a quelling of voices of scientists who were seeing through serious research that it was just the opposite. How do we deal with this sort of thing in a legal framework?
Mr. Dershowitz:
It’s very hard, and I was completely against trying to censor. I was willing to debate Robert Kennedy, who I disagreed with. Nobody else was willing to debate him. We had a really good debate about these issues. Science is science and it should never be suppressed. I wrote a piece in March of 2020 saying, “Believe science, be skeptical of scientists.” Back then, in March, 2020, scientists were making two claims. Number one, they were saying that the virus is not spread by aerosol, it’s only spread by touching. Number two, they were saying, “Don’t buy masks. Masks are no good.” In the second one, they were making a deliberate lie. They knew that masks were good, because the doctors were using them. They just didn’t want us, the non-doctors, to hoard the masks, and so they were willing to mislead us.
As to the first point, I said, “You’re just demonstrably wrong. If the virus spread by touching, it would spread much more slowly. Touching is not something that induces quick spreading. Obviously, it has to be something that comes from aerosol.” I was proven correct in both instances, but I was so criticized when I wrote that article. Because they said, “How dare you challenge the medical establishment?” Well, I did, and you did, and others did. That’s a healthy way to go. I still promote vaccination for people who choose to have it. But until it’s proven that it really can prevent the spread of contagion, I would be reluctant to go to the ultimate step. Government force should always be used only as a last resort, and only after all other alternatives have been tried, and only if the justification is clear. There is Supreme Court precedent allowing it, probably, but that doesn’t mean it’s the right thing.
Mr. Jekielek:
We did a very thorough literature review around mask use. There are many papers now that have tried to address this both in vivo, and in vitro, so to speak. There’s a very marginal benefit for masks that aren’t fully sealed like the N95 versions. There are still places that enforce these kinds of mask mandates. But then on the other hand, you have Governor Ron DeSantis prohibiting municipalities from creating these vaccine or mask mandates. What are your thoughts?
Mr. Dershowitz:
I don’t like governors telling cities what to do. Governors should have limited power. They don’t make the law, they enforce the law. We’re in a period of relative uncertainty. I carry around my N95 mask every day. I wear it. I put it on right. I seal it. Thank God. I want to cross my fingers I haven’t gotten COVID. I’m 84 years old with some medical conditions, so I tried very hard to avoid that. I was at a scientific event the other night. There were about a hundred world famous scientists and I was the only one wearing a mask. So obviously, either scienti