“Independent voters will look at some of these charges and say, gee, where there’s smoke, there’s fire. But of course, where there’s smoke, sometimes there’s arson,” says Alan Dershowitz, professor emeritus of law at Harvard Law School.
“I think a lot of these fires have been set politically in order to get Trump,” Dershowitz says. He’s the author of the new book, “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.”
We discuss the many cases being litigated against former President Donald Trump, what his vulnerabilities actually are, and the broader assault on civil liberties.
“Justice Thurgood Marshall said the First Amendment has two sides: one, the right to speak, and two, the right to listen and the right to hear. And the right to hear is just as important as the right to speak. And so people who have been denied the right to hear have the power to bring lawsuits,” Dershowitz says.
Jan Jekielek: Alan Dershowitz, such a pleasure to have you back on American Thought Leaders.
Alan Dershowitz: Thank you. My pleasure.
Mr. Jekielek: Alan, in your new book, you make the case that the emergence of Trump onto the political scene somehow uniquely broke the system and threatens the very basics of civil liberties right now. Let’s start with this. What caused this break in the system?
Mr. Dershowitz: People who oppose Trump think that he poses a unique danger to American democracy. They are ahistorical. They don’t look back. Since the beginning of the American Revolution, there have been those who’ve tried to suspend the Constitution based on the fear that there is something unique happening.
Of course, the Constitution is designed for unique experiences. It’s designed to protect Japanese Americans from being put in camps during the Second World War. It’s designed to protect against McCarthyism. It’s designed to protect against President Wilson’s efforts to try to prevent immigrants from coming to the United States. It’s designed to protect against Jim Crow. It’s designed for crises. It’s supposed to be a constant that we don’t alter and change to deal with crises, except through constitutional amendment.
There’s nothing unique or special about Donald Trump. I voted against him twice. I’ll vote against him a third time. He was defeated in the presidential election. The system is working. We don’t need to suspend the Constitution. We don’t need to pretend that there are no more civil liberties in order to protect ourselves against the candidate that some of us don’t like. The answer is to vote against him.
Mr. Jekielek: We’ve seen this very significant erosion of civil liberties. This is one of the themes throughout your book. You trace different ways in which this has happened. Where do you see this being most acute or most problematic at the moment?
Mr. Dershowitz: The title of my book is, Get Trump. It’s not that I’m a creative title-maker. Get Trump comes from the campaign promises of both the Attorney General and the District Attorney of New York. They both campaigned on the promise to get Trump, regardless of the facts. “Show us the man and we’ll find you the crime,” is what Lavrentiy Beria said to Stalin.
These two elected officials, both of whom I know and like personally, decided that the most important thing for their election, and now their reelection, is to assure the American public that they will get Trump and Trump will not be allowed to run for president.
They investigated and investigated and investigated. The Attorney General of New York found nothing criminal and didn’t go after him criminally. The District Attorney of New York Alvin Bragg made up a crime never before used in American history, that is, failure to disclose an affair and paying hush money to cover up that affair, and then not listing it on corporate forms. This has never happened before.
We’ve had cover-ups and hush money since Alexander Hamilton paid the Reynolds family a fortune of money to prevent his adulterous affair from coming out. Can you imagine how history would have been changed if Hamilton was required to disclose that on his forms? He actually decided to disclose it in a pamphlet, but that was his decision. But never in history has anybody ever been indicted for a misdemeanor or a felony for failing to disclose an adulterous affair, and then have all kinds of criminal cases built around it. The theory is, “He didn’t disclose it because he was trying to cheat on his taxes two years hence, or he didn’t disclose it because he was trying to cheat on electoral rules.” It’s all speculative. It’s the worst indictment I have seen in 60 years of practicing and teaching criminal law.
When a Democrat who is elected goes after the man who’s about to run against his boss—the head Democrat, Joe Biden, who I intend to vote for—when you go after the man who’s running against him, you better have the strongest case in American history. Instead, they have the weakest case in American history. It is destroying the trust that Americans have in our criminal justice system. It’s weaponizing our criminal justice system for partisan and political ends.
Mr. Jekielek: James Comer, the head of the House Oversight Committee, said that he has subpoenaed the FBI director to turn over this unclassified document, which he believes, based on whistleblower information, will show a criminal scheme that perhaps President Biden or his family were involved in. The reason I’m asking about this right now, this also involves a sitting president. It involves potential political machinations, and also involves potential criminal behavior. How do we deal with things like this?
Mr. Dershowitz: First of all, I’m not in favor of targeting Hunter Biden or Joe Biden. Let the investigations continue and let the chips fall where they may. But Hunter Biden should not be prosecuted unless others have been prosecuted for similar conduct. This tit-for-tat, “We’ll go after you, you go after us,” is hurting our system. Today it helps the Democrats. Tomorrow it will help the Republicans. But everyday it hurts Americans.
Mr. Jekielek: This is a situation where there would be a credible allegation that involves criminal conduct. At the same time, there’s the reality of someone being a sitting president, which you outlined in the book. There’s a different reality for presidents or even presidential candidates that have to be considered, because of the gravity of what they’re doing in their office.
Mr. Dershowitz: Right. At the very least, you have to make sure this is not the first time these laws have been used. In the Hunter Biden case for example, it seems fairly clear that he made a mistake when he said he had no drug problems on his gun application, when in his book he admitted he had serious drug problems. Do people get prosecuted for that? Probably not. But if your name is Hunter Biden and you’re the son of the President, people are going to look extra carefully at your conduct.
But the law should apply equally. No one is above, but no one is below the law. We shouldn’t have different rules. But in one sense, we do have different rules. If you are the president, or you’re running for president, the case against you better be very strong. It has to pass what I called in my book, Get Trump, the Clinton test and the Nixon test.
The Nixon test is that the reason he was almost impeached, and would have been impeached, is because Republicans, people in his own party, were demanding that he leave office. It was so clear it was bipartisan. That isn’t the case here.
The Clinton test is that she was not indicted, even though what she did according to Comey was wrong, but it wasn’t criminal—her handling of classified material and her computer and her server and all of that. You have to demonstrate that what Trump did is considerably worse than what Clinton did. I don’t think either of those tests were surpassed.
In my book, Get Trump, I go through them in great detail and show why those criteria have not been met. I would like to see a disarmament on both sides, and an end to weaponizing the criminal justice system against Donald Trump, Hunter Biden, or Joe Biden.
Let the public decide. Let’s have elections. The public decided one way in 2016 for Trump, and another way in 2020 against Trump. I predict that if Trump runs against Biden again, Biden will win again this time. But no one knows. No one knows how the health situation will develop. No one knows how the China situation and the economic situation will develop. No one knows if there will be, God forbid, another pandemic.
Elections are unpredictable, but elections are the constitutional method of deciding who should be president, not some local DA sitting in his office in downtown New York rummaging through the statute books and trying to figure out if there’s any conceivable case against them, and if there isn’t, then making one up. That is such a distortion of the American criminal justice system, something I’ve been familiar with for more than 60 years.
I’ve taught criminal law to 10,000 students, including several who are now serving in the United States Senate, in the White House, and on the Trump campaign team. I know a little bit about criminal law historically. We’ve never seen anything like this in our history. It’s worse than McCarthyism, because McCarthyism looked to the past. It was an old phenomenon. It looked to find the people that had been communists in the 1930s.
This new McCarthyism is much worse, because it involves the future— young people who will be our next presidential candidates, who will be the editors in the New York Times, and who will be involved in the most critical positions of government. They are living at a time when free speech is being neglected, due process is being ignored, the Constitution is being stretched, and criminal law is being abused. That’s a heck of a way to send young people into positions of power and governance. That’s why I’m so concerned for my children and grandchildren’s eras.
I’m at the end of my era. I can fight back, but I’m worried about people today who are in their 40s, and 30s, and 20s, and even younger. The future that they face in academia, and the future they face today in science has become so distorted by politics that nothing today is not political, and nothing today is not partisan.
Mr. Jekielek: Alan, you prompted me to look at how many cases Trump is actually involved in at the moment. It’s an amazing number at multiple levels, both criminal and civil. I want to cover at least a few of them with you in a moment.
The thing that I wanted to touch on is not so much the Hunter Biden situation specifically, but what happens in a situation where there are credible criminal allegations toward a sitting president? There are political motivations involved, as well. This is something that had been done when they were vice president, or at an earlier time. How do we deal with that in this current environment?
Mr. Dershowitz: Nobody knows the answer to that question. The Constitution is not clear as to whether a president can be put on trial or indicted while he is the sitting president. There are some precedents. President Clinton was allowed to participate in depositions and civil proceedings for allegations of events that occurred before he was president. That was a 9-0 Supreme Court decision, and it was dead wrong. Every single one of the justices got it wrong.
I predicted that over the next 10 years, that 9-0 decision will be reversed, and a sitting president will not be subjected to lawsuits based on his sexual misconduct allegations from 10 or 20 years earlier. That was a serious mistake by the justices of the United States Supreme Court. As Justice Jackson once said, “We’re final, not because we’re always right. We’re always right, only because we’re final.” They were wrong. They just got it wrong.
The Justice Department has now said that you cannot prosecute a sitting president for conduct that occurred while he was president. The question is, can you indict a sitting president for conduct that occurred before he was president? Of course, that happened with Spiro Agnew. He left the vice presidency because he was threatened with prosecution for corrupt conduct that occurred while he was governor of Maryland.
The law is not completely clear, but it looks like there can be some legal actions taken against the sitting president. That’s a mistake. Everything should be put off, and they should wait until after he finishes working for the people, because the presidency is a 24/7 job.
I was one of Clinton’s advisors and lawyers when he was impeached. I could see what an impact it had on his ability to govern. He was thinking about his cases all the time. That shouldn’t be the way somebody who’s elected to work for the people has to spend their time.
Mr. Jekielek: I can’t help but think about the Trump presidency and how a very significant portion of it was spent dealing with impeachments and special counsel investigations into Russiagate. Some people argue that it ate up at least half of the time.
Mr. Dershowitz: It ate up some time, there’s no doubt. I can give you my own personal experience. In my case, I agreed to represent President Trump on the floor of the Senate on the one condition that he not in any way interfere with my representation; that I’m going to plan my defense, I’m going to make my talk and I’m not going to show it to him or his legal team before I do it. Either he has to trust me or I won’t do it. He accepted that condition.
We literally had no contact in the days before I spoke for him on the floor of the Senate. The next day, he called me and thanked me. Then, he asked me to thank him for making me famous, but that’s typical Donald Trump. But it did take time and energy. There were calls and meetings with his lawyers. In both cases, the impeachments were unconstitutional.
In the first case where I defended him, the impeachment simply was not for treason, bribery or other high crimes and misdemeanors. In the second case, it was for protected speech, speech that was protected under the First Amendment.
The Democrats in Congress acted unconstitutionally in going after Donald Trump, which is why I became involved in the first case. I didn’t become involved in the second case for two reasons. First, I don’t generally represent people a second time. I like to represent people only once.
Second, I did not want to be in any way involved in any claims that the election was unfair. I think the election was perfectly reasonable. I think that Trump lost legitimately, and Biden won legitimately. I didn’t want to be associated in any way with claims that Biden was not a legitimate president.
Mr. Jekielek: I’m very familiar with your position on the election. Let’s look at these indictments. The one that you focus on involves the Mar-a-Lago raid. You say that the fault was with the Justice Department for seeking the search warrant in the first place. I thought that was fascinating. Can you explain this whole picture to me?
Mr. Dershowitz: Yes. Normally in a situation like this one, the government just gets a subpoena. It’s easy to get a subpoena. You serve the subpoena and then the president or whoever gets the subpoena is obliged to turnover the material.
Merrick Garland himself said that search warrants are a last resort, because they are lawless. Essentially, police go into the house, search for everything and take everything. They take lawyer-client privileged material, spousal-privileged material, and they could take religiously-privileged material. That’s why subpoenas are preferred over search warrants.
In this case, they claim that they’re worried that the president might destroy material. There’s now an ongoing investigation, which is the one investigation that I think poses some danger to Donald Trump. The investigation called for subpoenaing and giving immunity to former employees or even current employees of Mar-a-Lago to try to prove that he moved boxes, or ordered boxes to be moved.
I don’t know whether any of that’s true or not. But if it were to be proved true, that could pose a serious problem of criminal liability under obstruction of justice for President Trump. But at the time when I was writing my book, Get Trump, that investigation was not ongoing. All the investigation was focused on was the failure to disclose the fact that he had classified material in his possession. I don’t think that would result in a criminal prosecution, because President Biden and former Vice President Pence also had classified material in their possession. You can’t go after one without going after all three.
Mr. Jekielek: What would it look like if the shoe were on the other foot? I find this to be an extremely useful question in many parts of life, not just in the legal context.
Mr. Dershowitz: Yes.
Mr. Jekielek: This is the perfect example because we have disclosure from the Penn Biden Center about the mishandling of classified information. We have these two cases, and you juxtaposed those in your book as well.
Mr. Dershowitz: Yes, you have to do that. The shoe on the other foot test is a variation of a book written by the great philosopher, John Rawls, who says that rules have to be applied absolutely equally and without regard to who they’re being applied to. The shoe on the other foot test is simply a colloquial way of demanding absolute equal justice for all, regardless of race, gender, party or any other irrelevant factor.
We live in a world today where those are the factors that matter. Today, it matters more whether you’re a Democrat or Republican or black or white or a male or a female as to whether or not you’ll be sued or indicted, then guilt or innocence sometimes. We live in a post-equality world today where equity has taken over equality.
I don’t even know what the word equity means. In practice, what I know it means is inequality. It means judging people based on the color of their skin or their gender or their religion or their political affiliation, rather than our neutral principles.
I’m opposed to the way in which diversity, equity, and inclusion have been used to create a systemically racist country. We were a systemically racist country up through the 1950s and maybe even into the early 1960s. Then, we became a systemically anti-racist country from the 1960s on, basically into this century. Now, we’re going back to being a systemically racist country where everything is seen through the prism of race.
You can call it reverse racism, but it’s racism. It means that people today are being judged by race. Martin Luther King’s dream has become a nightmare. Today, medical students are judged by their race and by their gender and by their sexual orientation. Scientific papers are being judged by the race of the people who wrote them, rather than the quality of the science. Einstein’s theory of relativity would probably be rejected today because he’s a white, Jewish male in today’s hierarchy of identity politics.
Mr. Jekielek: It is the politics that actually matter most, because you can look at how black conservatives are treated by the system.
Mr. Dershowitz: Yes, there’s no question about that. When you group people, when you say, “The blacks, the Jews, the gays,” you’re being a bigot. There’s no such thing. I’m a Jew and I don’t speak for other Jews and they don’t speak for me. We happen to share a common heritage and a common religion, but our politics, and our life experiences are quite different. Please don’t group me.
I’ve heard the same thing from many of my African American friends, “Don’t group us.” I’ve heard that from my feminist friends. Feminists can be very different in their orientation. I’ve heard it from my gay friends. One of the great problems in our new racism and our new identity politics is that we don’t treat individuals as individuals and as people, we treat them as members of a group that they can’t get out of, because we’re stereotyping them and putting them behind the prison walls of that group.
Mr. Jekielek: In the process, we lose all semblance of nuance. You give the example of how you opposed many of the Trump administration policies, but you’ve supported their Middle East policy and Israel policy, including the moving of the embassy to Jerusalem.
This is what one would expect. We would normally pick the things that we value and promote them, and not pick the things we don’t like and act to subordinate them.
Mr. Dershowitz: I voted for John Kennedy in 1960, so in the 63 years that I’ve been voting, I’ve never liked a candidate. I’ve never liked a political party. I’ve always picked the lesser of the two evils. I evaluate all the factors.
I liked a lot of things about John Kennedy. There are a lot of things about John Kennedy I didn’t like, particularly regarding his personal life. There were a lot of things about Lyndon Johnson I liked, and a lot of things I didn’t like. I would say every single candidate that I’ve ever voted for, I voted for based on nuance. But today, nuance is out the window. You have to pick sides.
I once said it’s like the Red Sox and the Yankees. You have to pick a team, the Red Sox or the Yankees. But even that’s not true. I was a Red Sox fan, but when Jeter or Mariano Rivera came out, I would give them a standing ovation. I understood what greatness was in players on the other team. Today, that couldn’t happen
Today, if you’re a Democrat and you say Donald Trump did anything good, you’ve committed some kind of political treason. The same thing is true on the other side if you say anything good about Biden. That puts me in a situation where I’m a man without a country. I have a country, but I’m a man without a political party, because I don’t agree with everything Biden has done. I don’t agree with everything Trump has done. On balance, I prefer the Democrats to the Republicans, but it’s oftentimes a close balance.
As I’ve often said, if I were living in Britain, I would be voting conservative. The Conservative Party in Britain is closer to my values than the Democratic Party in the United States. The Conservative Party in Britain opposes the death penalty, is in favor of climate control, is in favor of gay rights, and is in favor of choice. It’s in favor of separation of church and state. It’s in favor of all the things I favor, but it has a tougher economic and foreign policy.
That’s me. I’m a kind of Jacksonian Democrat—Scoop Jackson, not Andrew Jackson—but I have no party in the United States. The Conservative Party in England is closer to my views than probably any other political party in the world, closer than any of the French parties are, and even closer than some of the Israeli parties are.
That’s because of nuance, but I’m not allowed to be nuanced anymore. Back when I was teaching at Harvard, for 50 years, I taught nuance. I don’t know whether students would accept the teaching of nuance today, and the teaching of calibrated compromised solutions to problems. We live in a world of deep, deep, deep division. It’s a poor world intellectually, and it’s a poor world in every other way.
Mr. Jekielek: You mentioned John F. Kennedy. His nephew has thrown his hat in the presidential ring. Actually, from what I’ve heard, many of his policies echo what you were just describing.
Mr. Dershowitz: Except for issues regarding vaccines. He and I are friends, and we’ve known each other a long time. I knew his father and I met his uncle, but I didn’t know him. I don’t agree with him on issues regarding vaccination, and we debated that. You can get that debate. It was banned on YouTube. His part of the debate was banned on YouTube. Mine was allowed, but I refused to allow mine to be shown without his being shown too.
But you can get it on Rumble. We disagree, but we’re friends. I admire many of the things he does, particularly for the environment and in other areas. I don’t think he’ll win. But with Joe Biden being as old as he is, younger than me to be sure, but still old by political standards, no one can predict what the world will look like one year from now, which is really when the election begins.
Mr. Jekielek: One of the things you outlined in the book is the 65 Project, and I found this whole initiative incredibly disturbing. Could you outline that for me here?
Mr. Dershowitz: The 65 Project is McCarthyism on steroids. It’s a group of radical, Leftist, bigoted lawyers who have determined that they will go after and punish any lawyer who defended Donald Trump or anything relating to the Trump administration. It’s as close to McCarthyism as anything I’ve seen in the years since McCarthyism. Yet, people in the 65 Project think of themselves as God’s gift to the world and to civil liberties.
They’ve gone after every lawyer who has ever defended Donald Trump or anything related to Donald Trump, including me. They filed a bar complaint against me. I haven’t gotten any notice of it, so I don’t know if it was actually filed. I read about it in the newspapers, but I haven’t gotten notice from any bar association that a complaint has been filed against me, the first complaint ever filed against me in my 60-some years of practicing law.
The motivation behind it, which they’re very clear about, is because I defended Donald Trump on the floor of the Senate. They search and go through anything and everything that they can possibly use as a basis. It’s just like McCarthyism, but it’s worse. Because again, these are young lawyers, people who look to the future and people who think they’re doing the right thing.
It’s one of the most disgraceful episodes in American history. Lawyers ought to distance themselves from the 65 Project. Bar associations ought to look into the 65 Project, because it is hurting the right of individuals to be defended. Today, it’s Donald Trump. Tomorrow, they’ll draft the lawyers who defend people they don’t like, people who are conservatives. We must attack that, and we must attack on the basis of principle.
Mr. Jekielek: You say that the transformation of the ACLU [American Civil Liberties Union] away from its original mandate is another one of these foundational threats to democracy.
Mr. Dershowitz: It is. The ACLU was a wonderful organization. It was started by a socialist, but he didn’t allow his own socialism to interfere with the mission of the ACLU, which was to defend the rights of all; free speech and due process particularly.
I served on the national board of the ACLU. I was one of its youngest members and certainly one of its most vocal members. When I was on the board of the ACLU, I was one of those who supported defending the rights of Nazis to march through Skokie, Illinois, even though much of my family was murdered by the Nazis in Europe. I hate Nazis more than anything else in the world. But if Nazis aren’t allowed to march, then Martin Luther King would not be allowed to march.
I was an active member of the ACLU, an active supporter financially, politically, and in every way. The ACLU is now dead in the water. It has transformed itself into a Leftist organization that supports only Leftist causes, many of which I support; gay rights, abortion rights, and things of that kind. But it neglects freedom of speech and due process. It’s not present on college and university campuses today where the greatest threats to free speech and due process exist.
Fortunately, another organization called FIRE [Foundation for Individual Rights and Expression], founded by two friends of mine, Harvey Silverglate and Alan Kors, has been taking over, and has been doing a great job. I support them wholeheartedly, and I hope everybody will stop supporting the ACLU.
The ACLU doesn’t need your money. They are one of the wealthiest organizations in the world. They’ve sold their soul to the devil in order to make more and more and more and more money. They became more and more an anti-Trump organization which cares far less about the Constitution than it does about defeating Donald Trump. The American Civil Liberties Union is a disgrace. I don’t want to in any way be associated with its demise.
Mr. Jekielek: This is actually a very interesting question. We’ve seen many institutions captured by this way of viewing the world. Much of it is ideological young people being hired into positions, who believe they’re doing the right thing with this kind of radical transformation of society. Everyone has to believe in this one world view. If you believe otherwise, you’re out and you should be attacked. It’s actually something that has been financially beneficial, which is what you’re arguing to some extent regarding the ACLU.
Mr. Dershowitz: It’s both. It’s a combination. The leaders of the ACLU are more interested in the money than they are in the ideology. A lot of the young people are more interested in the ideology than the money. There ought to be an organization that supports women’s rights and gay rights, but it shouldn’t be the ACLU. The ACLU should support everybody’s rights to free speech and due process whether they agree with their politics or disagree with their politics.
When I was on the board, the first fight I had with the ACLU was when Nixon was being impeached. He was named as an unindicted co-conspirator. I was in favor of Nixon’s impeachment, because I believe he had committed high crimes and misdemeanors. But I was opposed to him being named as an unindicted co-conspirator, because that violated his civil liberties. That was a big fight.
I don’t even remember whether we won or we lost, but at least it was a debate. Today, there would be no debate about that. They would say, “Of course, Trump should be named as an unindicted co-conspirator,” as he actually was,