The Ben Shapiro Show - Alan Dershowitz | The Ben Shapiro Show Sunday Special Ep. 85

00:00:00.000 The left knows the truth, with a capital T. The truth is if you're a white male, you're guilty.

00:00:06.000 If you're a woman of color, you're a victim. 1.00

00:00:10.000 Alan Dershowitz is one of the most famous legal minds of the last half century.

00:00:14.000 After graduating first in class from Yale Law School in 1962, Dershowitz clerked for Supreme Court Justice Arthur Goldberg.

00:00:20.000 Just a few years later, at 28, he became the youngest person at the time to ever become a tenured professor at Harvard.

00:00:26.000 He then went on to defend some of the most high-profile defendants in the history of the country.

00:00:30.000 Simpson and Jeffrey Epstein to Harvey Weinstein and Mike Tyson, Alan Dershowitz has played a significant role in crafting the defenses of major figures accused of a litany of heinous crimes.

00:00:30.000 From O.J.

00:00:39.000 But the one that has arguably drawn the most controversy is one in which his defendant was not accused of any actual crime.

00:00:46.000 In January 2020, during the impeachment trial of President Trump, Alan took the stage to present the case against impeachment.

00:00:52.000 Alan, being a lifelong liberal Democrat and a 2016 Hillary Clinton supporter, believes everyone has a right to defense in a court of law, even Donald Trump.

00:01:00.000 Alan and I will discuss his rules on deciding which clients to represent, how the media deeply misrepresented his case against impeachment, his new book, Guilt by Accusation, The Challenge of Proving Innocent in the Age of Me Too, as well as whether or not OJ did it.

00:01:12.000 And welcome to the show.

00:01:21.000 This is the Ben Shapiro Show Sunday special.

00:01:23.000 Today, we are joined by Professor Alan Dershowitz.

00:01:25.000 Just a reminder, we'll be doing some bonus questions with Professor Dershowitz.

00:01:28.000 The only way to get access to that part of the conversation is to pay us money and become a subscriber.

00:01:31.000 Go over to dailywire.com, become a subscriber.

00:01:33.000 You'll have access to all of the full conversations with every one of our awesome guests.

00:01:37.000 Professor Dershowitz, thanks so much for stopping by.

00:01:39.000 Thank you.

00:01:39.000 My pleasure.

00:01:40.000 Well, we start with the obvious question.

00:01:41.000 How did you, a defense attorney best known for being a lifelong Democrat and defending who a lot of people would consider on the Republican side to be criminals, how do you end up a hero of the right?

00:01:51.000 How did this happen?

00:01:52.000 I shouldn't be a hero of the right any more than I should have been a hero of the left when I defended many people who were left-wingers.

00:01:58.000 I've always been a neutral civil libertarian.

00:02:01.000 Sometimes my civil liberties lands on the side of the left, and then they love me.

00:02:06.000 And then sometimes my civil liberties lands on the side of the right, and they love me, and the other side hates me.

00:02:11.000 For example, I started writing my book about impeachment when Hillary Clinton looked like she was going to be elected.

00:02:17.000 And the name of the book was called, The Case Against Impeaching Hillary Clinton.

00:02:21.000 I would have written the same book had she been elected except they would have built a statue to me on Martha's Vineyard and I'd be the hero of the left today.

00:02:29.000 But I make the same argument.

00:02:30.000 Just change the name of the book from Clinton to Trump and now I'm hated by the hard left, loved by the right.

00:02:37.000 I deserve neither.

00:02:39.000 A civil libertarian shouldn't be loved or hated by anybody but people who deeply believe in civil liberties, due process, shoe on the other foot test, neutral principles.

00:02:48.000 So, do you think that something has happened within the Democratic Party that has changed?

00:02:52.000 Because, again, it wasn't just that you were a Democrat for most of your career.

00:02:57.000 You're still a Democrat, presumably.

00:02:59.000 The real question is, what has changed such that the hatred for you is so strong?

00:03:03.000 Is it just the association with Trump or did it start before that?

00:03:05.000 Because it feels like it started a little bit before that.

00:03:07.000 I think so.

00:03:07.000 I think that today the Democratic Party, if you want to be a full-on member, you have to buy everything they say and everything they do.

00:03:16.000 And I'm just not that kind of a person.

00:03:19.000 And I put politics way behind civil liberties, due process, the Constitution.

00:03:25.000 And so I think Within a few years, it became obvious I wasn't their guy, and I'm treated like a traitor.

00:03:33.000 You know, they don't hate Jay Sokolow or Pat Cipollone or Ken Starr.

00:03:39.000 But me?

00:03:39.000 It's expected.

00:03:40.000 I'm a liberal Democrat.

00:03:42.000 How dare I defend the president?

00:03:46.000 Bob Strum yesterday said it was disgraceful.

00:03:49.000 That I would defend the worst president in the history of the country, as if that fact, even if I believed it to be so, would influence my decision.

00:03:58.000 I defended the worst criminals, the worst people.

00:04:01.000 I defended the right of Nazis to march through Skokie. 0.94

00:04:04.000 I defended the rights of communists. 0.94

00:04:06.000 When I was in college, even though I hated communism, that's what a civil libertarian does.

00:04:11.000 Now Bernie's going to be elected.

00:04:11.000 I know.

00:04:12.000 I mean, that was a bad decision.

00:04:13.000 But in any case, I want to ask you in one second about the about sort of the future of the Democratic Party, considering that they're casting out people like you.

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00:05:22.000 So, let's talk about the fact that, since you're now an outcast, you've said before that you have a house in Martha's Vineyard, but no one will talk to you over at Martha's Vineyard.

00:05:29.000 Do you think that the Democratic Party has a future if they keep throwing out people who are middle-left or center?

00:05:37.000 Or is it possible that their theory, which seems to be a burgeoning demographic majority based on various victim groups that they can sort of agglomerate together, that that is actually a strategy for electoral success?

00:05:46.000 Well, that would be the worst.

00:05:48.000 The worst thing would be for the Democratic Party to succeed As a hard left identity politics, intersectionality, party, a combination of people with grievances, that would be the worst thing.

00:06:01.000 I would hope that the Democrats would recognize that the fate and the future of America lies with the center.

00:06:07.000 I'm writing a new book now called Why I Left the Left but Couldn't Join the Right, The Case for a Vibrant Center.

00:06:14.000 You know, in the old day, I would have conversations like I'm having with you with Bill Buckley.

00:06:18.000 And he called me his favorite liberal.

00:06:20.000 I was his favorite.

00:06:21.000 He was my favorite conservative.

00:06:23.000 We would have good, rational conversations.

00:06:25.000 We disagreed about fundamental issues, but we could talk to each other.

00:06:30.000 Can't do that today with Democrats.

00:06:33.000 When I did my argument in front of the Senate, nobody ever took it on on the merits.

00:06:38.000 Larry Tribe said it was bonkers.

00:06:41.000 People said I was getting senile.

00:06:43.000 People attacked me personally.

00:06:45.000 I wasn't a scholar in constitutional law, even though I taught constitutional criminal procedure for 50 years in constitutional litigation and wrote books on the subject.

00:06:54.000 If I had been on Hillary Clinton's side, if she had been impeached, I'd be the greatest scholar in the history of constitutional law, according to the left.

00:07:00.000 But they don't like where I came down in this case, so they attacked me personally.

00:07:04.000 The ad hominems are inexcusable.

00:07:06.000 So let's talk about the case that you made in front of the Senate, which of course brought the full weight of the Democrats in the press, but I repeat myself, to bear on you.

00:07:15.000 The case that you made in front of the Senate is not the case that CNN said you made in front of the Senate.

00:07:20.000 The case that CNN said that you made in front of the Senate was effectively that if a politician of any sort does something in pursuit of their own re-election, then this is not impeachable activity. 1.00

00:07:28.000 Now, I saw that clip of you, and I immediately knew it had been taken out of context, because first of all, it's an idiotic argument, and you're not an idiot. 0.92

00:07:34.000 And second of all, because CNN was saying it, and CNN has some problems with taking people out of context, what is the argument that you were actually making, and how did they twist that argument? 0.96

00:07:41.000 First of all, it wasn't taken out of context.

00:07:43.000 That happens all the time.

00:07:45.000 It was doctored.

00:07:48.000 It was as if I said the following, let me tell you now what I don't believe.

00:07:52.000 I don't believe a president seeking re-election can do anything.

00:07:56.000 And CNN ran, a president seeking re-election can do anything, excluding the fact that I said this is what I don't believe.

00:08:04.000 In the paragraph before, the quote that they used, I said, if a president engages in anything illegal, if the quid pro quo is illegal, that is impeachable.

00:08:14.000 I talked about corrupt motive.

00:08:16.000 I talked about kickbacks.

00:08:17.000 I said in my whole hour and ten minute speech to the Senate, if the president commits anything which is criminal-like, akin to treason or bribery, he can be impeached. 0.94

00:08:27.000 And so what CNN did is they took all of that out And they made it sound like I was saying, and then you had these idiots on CNN, people like Paul Begalia, who said, basically, what I said is a president can do anything illegal. 0.98

00:08:42.000 Some said, I said a president could shoot his opponent. 0.99

00:08:45.000 A president could lock up all the Democrats.

00:08:48.000 A president could tamper with voting machines.

00:08:50.000 It's exactly the opposite.

00:08:52.000 And then, Joe Lockhart, again, another A liar said what I said is like what Mussolini, Hitler and Stalin would say, and I supported genocide.

00:09:05.000 Look, either they didn't know what I said, I don't think that's the case. 0.94

00:09:09.000 I suspect that what happened is, and it's more than a suspicion, it's based on information that I have, Is that Zucker, the head of CNN, made a willful, deliberate decision to have me say something that sounded idiotic in order to hurt my credibility on the an hour and ten speech that I made in front of the Senate.

00:09:26.000 And they deliberately omitted what I had said about criminal conduct to make it sound like I was saying a president can do anything.

00:09:33.000 And then everybody followed suit.

00:09:35.000 Everybody on CNN said that's what Dershowitz said.

00:09:39.000 And they knew I didn't. 0.85

00:09:40.000 I mean, the point that I immediately knew that you were making, because it's a point that I've made myself, and it is an obvious point, because the counterpoint is completely idiotic, which is that if a president does a thing that is within his legal power to do, and that is tainted by his own self-interest, but it is in his legal power to do this thing, but he also has a self-interest as either a combined motive or a secondary motive, that's not impeachable, because that's just called politics, and every politician does that. 0.88

00:10:04.000 Every time Barack Obama did anything that was within his power to do, with an eye toward re-election, that was called his first term.

00:10:10.000 And to pretend that that's impeachable activity, which is what the Democrats effectively were doing, is not impeachable.

00:10:14.000 I gave that example.

00:10:15.000 I gave that example.

00:10:16.000 I said, let's assume the following.

00:10:17.000 President Obama promises he's going to bomb Syrian military if they use chemical weapons.

00:10:22.000 They use chemical weapons.

00:10:24.000 His advisor comes in and says, ooh, wait a minute, before you start bombing Think about what it will do to your election.

00:10:30.000 The left will turn against you, and Obama says, oh my God, really, I shouldn't bomb.

00:10:34.000 I'll break my promise.

00:10:36.000 Would that be impeachable?

00:10:37.000 Of course not.

00:10:38.000 And I don't limit it to presidents.

00:10:40.000 I said any elected official always has mixed motives.

00:10:43.000 They care about the national interest, but they always have an eye on their political future.

00:10:47.000 And all I said was, if a president has one eye on his re-electability, because he thinks his electability is in the national interest, that can turn innocent conduct within his power into an impeachable offense.

00:11:01.000 There is nobody who would disagree with that.

00:11:03.000 Yet Adam Schiff pretended to disagree with it.

00:11:05.000 Nadler pretended to disagree with it.

00:11:08.000 Schumer pretended to disagree with it.

00:11:10.000 All three of them were lying through their teeth.

00:11:13.000 And I wrote that in the Wall Street Journal.

00:11:14.000 I got a lot of criticism.

00:11:16.000 How dare you challenge the motives of people?

00:11:18.000 Well, I am challenging their motives.

00:11:20.000 And as soon as this thing broke, the first reaction that I had was that the question in the end was going to be about President Trump's motives.

00:11:28.000 If it came out that he had said to John Bolton, for example, that Bolton testified and then he had said openly, the reason that I did this specifically is because I want to knock Joe Biden out for purposes of the 2020 election, then that would have been impeachable conduct.

00:11:40.000 But if he had an eye back toward 2016 and he was saying, I want everything in 2016 looked at because it bothers me and annoys me and I think it's in the national interest.

00:11:47.000 And even if that was badly informed, as some of that stuff was, the crowd strike stuff and all the rest of it, then that is not impeachable.

00:11:53.000 That's just what we call bad judgment.

00:11:55.000 Then he's up for election.

00:11:55.000 And that's why we decided to vote for based on bad judgment.

00:11:59.000 But that's not impeachable conduct.

00:12:01.000 The other example I gave is Joe Biden says, unless you fire the prosecutor, I'm withholding a billion dollars.

00:12:09.000 Ninety percent of his mind was on the national interest, but what if in the back of his mind he said, you know, maybe it'll help my kid.

00:12:15.000 He works for Burisma, maybe it'll call off the investigation.

00:12:18.000 That wouldn't change his innocent conduct into culpable conduct.

00:12:23.000 Doesn't matter whether you're president, vice president, or anybody else.

00:12:26.000 Every politician always has mixed motives.

00:12:29.000 That's what I said.

00:12:30.000 Everybody understood it.

00:12:32.000 They looked me in the eye, they knew what I said, and then they deliberately lied about what I said.

00:12:36.000 So, moving forward, when it comes to impeachment, given the fact that the Democrats didn't receive a single Republican vote on impeachment, well, they got Mitt Romney on one charge, but they didn't receive any other votes on impeachment, do you think that impeachment is still a viable power under the Constitution?

00:12:50.000 What would a president really have to do and be caught doing in order to be impeached?

00:12:53.000 Richard Nixon.

00:12:54.000 He's the only case in American history where a president should have been impeached.

00:12:54.000 Very simple.

00:12:58.000 He committed repeated crimes.

00:13:00.000 Even when he was being impeached, and I favored his impeachment, I was on the National Board of the ACLU, and I asked the ACLU to oppose the way he was being treated.

00:13:08.000 They named him as an unindicted co-conspirator.

00:13:10.000 Unfair!

00:13:11.000 If you're named as an unindicted co-conspirator, you can't fight back.

00:13:14.000 You don't get a trial.

00:13:15.000 So as a civil libertarian who favored his impeachment, I oppose that back in the 1960s.

00:13:20.000 Look, 70s.

00:13:21.000 You can argue about anything about me, but one thing you can't argue about is my consistency.

00:13:26.000 I've been absolutely consistent since the day I started To be an adult, when I fought against censorship of communism at Brooklyn College, and I fought against censorship during the Vietnam War.

00:13:38.000 I never care which side it comes down on.

00:13:40.000 Right, left, center, Republican, Democrat.

00:13:44.000 I always care about civil liberties.

00:13:46.000 And people understand that, but they pretend that I've changed.

00:13:49.000 Suddenly I've become a reactionary right-winger instead of the liberal left-winger that I always was.

00:13:54.000 Well, that does feel like a difference in moral system that has happened in the United States.

00:13:58.000 I mean, it used to be, even when I was growing up, that people would say, it's a free country.

00:14:01.000 You can sort of do what you want.

00:14:02.000 And people don't tend to use that phrase too much anymore.

00:14:04.000 There's a lot of talk about things that you shouldn't say.

00:14:07.000 Maybe you should be pushed into saying them or things that you or the other factors that are supposed to attend to justice beyond your own individual case.

00:14:14.000 You talk about a lot of this in guilt by accusation, but this came out most famously during the Kavanaugh hearings when it seemed as though the evidentiary necessity to prove a case against Justice Kavanaugh was completely thrown by the wayside by the media.

00:14:26.000 The mere accusation was enough to slime him because obviously he was a white man in a position of privilege and power as opposed to a woman who apparently he who alleged that he had abused her without not only no evidence, But every single piece of evidence that she tried to stack up immediately fell apart, including people she said were at the party in which he somehow wronged her, saying that they weren't at that party and the party never took place.

00:14:48.000 And still we're told that Kavanaugh is some sort of racist.

00:14:50.000 Right.

00:14:51.000 Well, you know, when the Columbia School of Journalism had me interviewed for the Journal of Columbia Journalism, supposed to be the, you know, the paradigm, the interviewer said, well, you can't be a victim of a false accusation.

00:15:06.000 You're a white old male. 0.96

00:15:08.000 I mean, that's the way journalists now approach this problem.

00:15:12.000 It's all identity politics.

00:15:14.000 It doesn't matter what the evidence is.

00:15:16.000 It matters who you are, not who you are, what you are, what your identity is.

00:15:21.000 That determines whether you get free speech.

00:15:23.000 Whether you have trigger warnings, whether you are silenced, whether you're allowed to speak on campus, like the two of us have all kinds of difficulties speaking on campus.

00:15:33.000 It has nothing to do with our ideas.

00:15:35.000 They refuse to take us on based on our ideas.

00:15:38.000 It's all about who you are.

00:15:39.000 How dare you exercise your white privilege by coming on campus and telling us what you think.

00:15:45.000 So, what do you think the future is for, for due process?

00:15:48.000 I mean, that's the most basic right that we have, is this right to due process, the right to be treated according to the circumstance of our case, and be judged on the merits of the case, as opposed to what you think of me as a human being, or more importantly, what you think of my group identity as a human being.

00:16:00.000 That seems like it's going completely by the wayside.

00:16:03.000 As I say about Kavanaugh, there were full articles written about how because he was a powerful white male, he should not be given due process.

00:16:08.000 He didn't deserve due process.

00:16:09.000 And you've seen the definition of racism itself morph and change formally.

00:16:13.000 People who used to say racism was discrimination on the basis of race will now say that it's discriminatory intent on the basis of race combined with power, which, of course, immediately suggests that if you're a member of a victimized group, you can't be a racist.

00:16:25.000 Or a sexist or any otherist.

00:16:27.000 You can't be an anti-Semite, either, if you're a member of an oppressed group.

00:16:33.000 No, there's no question about that.

00:16:34.000 Look, deep down, not very many people care about due process.

00:16:38.000 People use due process and free speech for me, but not for thee.

00:16:42.000 They generally tend to support it when it helps their side.

00:16:45.000 When I was growing up, it was the liberals who wanted free speech because the conservatives, the right-wingers, were suppressing free speech on campus, particularly among communists.

00:16:54.000 Today, it's the conservatives who want free speech because their rights are being violated.

00:16:58.000 What we need are a core of people who support due process and free speech regardless of who benefits and who loses.

00:17:06.000 The number of those people are very small.

00:17:09.000 Now, I have to tell you, thank God for conservatives, because I think conservatives now have come to appreciate, more than in the past, the virtues of due process, fairness, free speech, dialogue, and all the rest of the catalog of liberties and civil liberties that I grew up taking for granted.

00:17:27.000 So in a second, I want to ask you about guilt by accusation and the extent of the pushing aside of due process, particularly in the Me Too movement.

00:17:34.000 Let's talk about that in one second.

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00:18:49.000 Okay, so let's talk about the Me Too movement.

00:18:50.000 It's been fascinating to watch the boundaries of the Me Too movement move.

00:18:53.000 So I am somebody who is obviously very social.

00:18:56.000 I'm a religious Jew.

00:18:57.000 I'm very socially conservative.

00:18:58.000 I've always been.

00:18:59.000 I'm the purest person I know when it comes to matters like this.

00:19:01.000 I was a virgin until I was married.

00:19:02.000 Like the whole deal.

00:19:03.000 Well, you're the only other one.

00:19:05.000 I grew up as an orthodox Jew.

00:19:07.000 That's true.

00:19:08.000 You know, we didn't have learner's permits for marriage license.

00:19:11.000 You had to learn the night you were married.

00:19:15.000 So, with that said, you know, the kind of general take of the MeToo movement, which is that women ought to be treated like human beings and not pieces of meat, is something for which I was, of course, very sympathetic.

00:19:24.000 But then, as I watched the standards of what MeToo constituted move radically, and the lines move radically, and the attempt to remove all gradations of misconduct.

00:19:32.000 So, making a sexist remark in the office was now considered akin to rape, or an accusation was considered pure evidence that this thing happened because, of course, women don't lie. 1.00

00:19:42.000 There's a genetic rule that women are born with a predisposition genetically always to tell the truth, and men, particularly white men, are born with a genetic predisposition to lie. 0.99

00:19:55.000 Yeah, I mean, the Believe All Women movement, it's like this is not just first-year criminal law, that Believe All Anybody is the stupidest thing in the world, but it's basic logic. 0.98

00:20:05.000 Of course you would never believe all anybody based on their group identity. 0.83

00:20:07.000 You wouldn't even believe all rabbis or believe all priests.

00:20:10.000 Why in the world would you believe all anybody?

00:20:11.000 But that has become the basis of the Me Too movement, and it's led to this idea, again, That based on your victim group status, in this case, the victims being women particularly, that you ought to be believed on the basis of an accusation alone.

00:20:23.000 And obviously, since you are the expert in criminal law, this is incredibly dangerous.

00:20:27.000 And when people suggest that there are no bad accusations of rape or evidence-free accusations of rape or sexual assault or sexual misconduct, that obviously is not true.

00:20:36.000 I never met the woman, ever, under any circumstances, who accused me.

00:20:36.000 Of course not.

00:20:40.000 We discovered hidden emails that she tried to hide with her lawyers, in which she admits she never met me.

00:20:47.000 A hidden manuscript, which was sealed, in which she said she saw me once, speaking to Jeffrey Epstein about business, but never met me.

00:20:55.000 Told the FBI she never had sex with me.

00:20:59.000 Told her best friends she never met me or knew me.

00:21:03.000 Her lawyer, on tape, Recorded, says, she's wrong, simply wrong.

00:21:08.000 She couldn't possibly have met you in the places she said she met you.

00:21:12.000 An FBI report concluded by the former director of the FBI, Louis Freeh, that the whole story was made up, and it all went away.

00:21:19.000 The judge struck it, the lawyers withdrew it, admitted they were wrong in filing it, and then along came the Me Too movement.

00:21:26.000 And suddenly, the false accusation, known to be false, is enough to get me cancelled speaking at the 92nd Street Y. The 92nd Street Y, where I've spoken at more than anybody but Elie Wiesel, suddenly said I can't speak about my book, Defending Israel, at the 92nd Street Y, because although they know I didn't do anything wrong, there's an accusation.

00:21:49.000 And the accusation is trouble.

00:21:51.000 And we don't want trouble, so you can't ever speak here again.

00:21:54.000 So what should we do about that in the social sphere?

00:21:55.000 Because that's really what we're talking about here.

00:21:57.000 In the criminal law sphere, obviously, you're not in the dock.

00:21:59.000 You haven't been accused formally of anything.

00:22:01.000 I wish I were.

00:22:02.000 You know, I wrote an op-ed for the Wall Street Journal saying to the FBI, please investigate me criminally.

00:22:08.000 Conduct a criminal investigation.

00:22:09.000 That's the only way I can possibly clear myself.

00:22:13.000 You know, the rule is so absurd now.

00:22:16.000 She can accuse me of anything. 0.87

00:22:17.000 She can accuse me of having sex with her when she is two years old. 0.99

00:22:20.000 She can accuse me of anything.

00:22:21.000 And as long as she does it in papers that are law papers, she is exempt from being sued for defamation.

00:22:29.000 But if I then deny it, she can sue me for defamation because by denying it, I have called her a liar.

00:22:36.000 So we now have a legal system that incentivizes false accusations for money.

00:22:43.000 The trick is easy.

00:22:44.000 Accus a prominent person.

00:22:45.000 He'll then deny it.

00:22:47.000 You sue him and he'll give you money.

00:22:48.000 And if I had anything to hide, I'd pay money.

00:22:51.000 I have nothing to hide.

00:22:52.000 Of course, I won't pay a penny.

00:22:53.000 So what do we do exactly about the kind of perversion of the system?

00:22:58.000 Because this is what is happening is that it seems like the social sanctions are being brought to bear in a non-legal sense.

00:23:04.000 And so you'll say, well, my rights are being violated or my speech is being violated.

00:23:07.000 And they'll say, well, but it's not.

00:23:08.000 I mean, you're free to say whatever you want.

00:23:09.000 You're free to do whatever you want.

00:23:11.000 Nobody's bothering you.

00:23:12.000 It's social sanctions, obviously.

00:23:13.000 Social sanctions are perfectly legal. 1.00

00:23:15.000 The cancel culture, which you're obviously talking about, 92nd Street, why deciding that you can't speak there?

00:23:19.000 Because there's an accusation out there that is unsubstantiated.

00:23:22.000 Not only insatiated, disproved.

00:23:23.000 - Right, that attitude, it doesn't have First Amendment consequences in the sense it's not a legal thing, but it obviously has widespread societal consequences.

00:23:32.000 The left wishes to ignore those because it of course likes cancel culture 'cause it can be applied to people it disagrees with, but what do we have to do about that as a society? - Well, first we have to stand up and fight.

00:23:41.000 Most people can't fight back 'cause most people have something to hide.

00:23:44.000 Even if you're falsely accused of this, if you have something that you are ashamed of, it will come out at a trial.

00:23:50.000 So the vast majority of people who are falsely accused can't fight back.

00:23:54.000 I was brought up Orthodox like you.

00:23:54.000 I'm lucky.

00:23:56.000 I've never improperly touched anybody in my life.

00:23:59.000 I don't hug.

00:24:00.000 I don't touch.

00:24:01.000 I don't do any of those things.

00:24:02.000 For 10 years, I was a professor at Harvard Law School as a single man.

00:24:06.000 Never went out, flirted, never had a complaint.

00:24:08.000 50 years, never a complaint.

00:24:10.000 So I can sue, because I'm not afraid of being deposed.

00:24:14.000 I'm not afraid of anybody coming up with yet another accuser.

00:24:17.000 If there's another accuser, it will be a false accuser.

00:24:19.000 Somebody came to me recently in an extortion attempt. 0.93

00:24:24.000 presumably by lawyers, offering to sell me pictures of myself having sex. 0.98

00:24:29.000 I laughed. 0.99

00:24:30.000 I said, there can't be a picture of me having sex with anybody but my wife.

00:24:34.000 And they produced the picture, or the New York Times produced the picture.

00:24:39.000 It was a joke.

00:24:40.000 It was some old guy that they got off the internet.

00:24:43.000 Did you look good?

00:24:44.000 No, no.

00:24:45.000 My wife looked at it, and she laughed hysterically. 0.97

00:24:50.000 My wife laughed when I was first accused.

00:24:53.000 She couldn't believe it.

00:24:55.000 And this woman who accused me, she's accused Al Gore Al Gore's wife of being on Epstein's Island. 0.97

00:25:04.000 They were never on the island.

00:25:05.000 She has accused Bill Richardson.

00:25:09.000 She has accused George Mitchell.

00:25:11.000 She's accused Leslie Wexner.

00:25:13.000 She has accused Marvin Minsky, the man who developed artificial intelligence.

00:25:18.000 She's accused everybody.

00:25:20.000 And she's lied through her teeth.

00:25:21.000 She said she was 14 when she met Jeffrey Epstein.

00:25:23.000 Her own work records show that she was 17.

00:25:26.000 And when he allegedly farmed her out to other people, she was almost 19.

00:25:29.000 So she's lied about everything, and yet people believe her because she's a woman. 0.99

00:25:35.000 And when I accused her of lying, I committed a social sin.

00:25:39.000 I accused a woman of lying. 1.00

00:25:41.000 How dare you?

00:25:41.000 She was victimized.

00:25:42.000 Maybe she was. 0.97

00:25:43.000 But she's victimized me, and I'm going to fight back.

00:25:45.000 So, I've asked already, sort of, what do we do about this?

00:25:48.000 But one of the things that seems so threatening is that, as I say, a lot of this is social sphere oriented.

00:25:53.000 It's pressure that de Tocqueville talked about back in Democracy in America, specifically talking about the idea that social pressure could be brought to bear to basically make a human being into a dead man walking, forbidden from all public company and all of this, going back to the 1830s.

00:26:05.000 So it's nothing new.

00:26:07.000 What is new is that there seems to be a push, and it's already happened in places like Britain and Canada, to actually change the laws to reflect this sort of societal attitude.

00:26:15.000 They should change the laws.

00:26:16.000 Number one, nobody should be allowed to defame other people behind litigation privilege, because they abuse it.

00:26:21.000 They use it all the time.

00:26:22.000 Judge Cabranes, the Chief Judge of the Second Circuit, has written about that, saying, don't believe what you read from court filings.

00:26:29.000 Court filings don't have the imprimatur of the court.

00:26:31.000 They're just put in in order to protect themselves from that kind of defamation.

00:26:37.000 So the law does have to be changed.

00:26:39.000 I think the First Amendment Law has to be modified as well.

00:26:43.000 Take what CNN did to me.

00:26:45.000 That's not protected by the First Amendment and it shouldn't be protected.

00:26:49.000 If Zucker, the head of CNN, sat down with his people and said, let's now try to destroy Dershowitz's credibility because he made a good speech in front of the Senate.

00:26:57.000 Let's wrench out of context.

00:26:59.000 Let's take out what he said about criminal conduct.

00:27:01.000 Let's make him say something he didn't say deliberately and willfully.

00:27:06.000 I don't think that's protected by the First Amendment.

00:27:08.000 And for that reason, as a First Amendment person who cares deeply about the First Amendment, I am seriously considering the possibility of taking legal action against CNN in order to try to level the playing field so that the media can't turn truth-tellers into liars in a willful and deliberate way.

00:27:28.000 So what exactly would the First Amendment standard then look like?

00:27:30.000 So under current law, obviously, the First Amendment standard, particularly public figures, is extraordinarily burdensome.

00:27:35.000 You have to prove willful and malicious.

00:27:37.000 You have to demonstrate that the person knew that they were saying something that was fully untrue.

00:27:41.000 That's true.

00:27:42.000 That's true of what happened with CNN.

00:27:44.000 They knew what they were doing.

00:27:44.000 Absolutely true.

00:27:45.000 So you're not talking about actually changing the standard of First Amendment law?

00:27:48.000 No, but here's the problem.

00:27:50.000 What they did is they showed me saying certain things, and I did say those things.

00:27:55.000 It's like I said, here's what I don't believe, and then they said what I said.

00:28:00.000 The leading case in the Supreme Court involves the New Yorker magazine, where somebody was accused of taking words out of a quote, and the Supreme Court said that isn't covered by the First Amendment, but we'd have to make new law By saying that, basically, if you use the words that were actually spoken, but you purposely, willfully, and with malice, leave out words just before and just after, that totally and completely changed the meaning, that's not protected by the First Amendment.

00:28:29.000 And I think that's right.

00:28:30.000 Okay, so that seems like a fairly minor change that has already basically been pre-approved by the Supreme Court.

00:28:36.000 You're not talking about widespread changes of the kind that President Trump has referred to on Twitter when he's talking about changing the full-on standards of defamation?

00:28:42.000 I think we start small by looking at people who willfully and deliberately abuse the First Amendment for partisan or personal or financial benefit.

00:28:42.000 No, no.

00:28:51.000 That's where you begin.

00:28:52.000 And I think we can do that.

00:28:54.000 Okay, so the other changes that I was talking about when it comes to sort of the pushing of social sanction into the matters of law are these moves that have been made in places like Canada and United Kingdom with regard to things like hate speech.

00:29:09.000 They're trying to actually criminalize forms of speech that supposedly victimize a protected class.

00:29:14.000 And that I'm deeply worried about happening in the United States.

00:29:16.000 It seems like a lot of the Democratic Party would do that.

00:29:20.000 Don't know how many justices on the Supreme Court would stand against that in its current iteration.

00:29:25.000 Obviously, I think that the ones who were appointed by Bush and Trump likely would stand against that.

00:29:30.000 I have no idea about Sonia Sotomayor.

00:29:32.000 I have no idea about Elena Kagan.

00:29:34.000 I have a fairly decent idea about Justice Ginsburg, and I think it may go the wrong way there, but I don't know where that stands.

00:29:39.000 Do you think that the Supreme Court would actually allow, without a constitutional amendment, hate speech regulations to be promulgated in the United States?

00:29:45.000 Depends on the regulation, but I think an outright banning of something called hate speech would not survive Supreme Court review.

00:29:54.000 But, you know, they chip away at it.

00:29:57.000 What about in a private university?

00:29:58.000 What about in a public university?

00:30:01.000 Banning hate speech in the classroom, that would probably be approved. 0.94

00:30:04.000 But in the open forum, I think it's going to be a matter of degree.

00:30:08.000 But I do think that the banning of hate speech has more legitimacy today on the left.

00:30:14.000 I don't think the left today would support the ACLU's position back many years ago.

00:30:21.000 The ACLU doesn't.

00:30:22.000 Defending the rights of, well the ACLU, forget about the ACLU on free speech.

00:30:27.000 The ACLU is free speech for the left but not for the right except once every ten years we'll defend the Nazi because that's easy and that gives us a little bit of credibility but due process on campus?

00:30:36.000 Forget about it.

00:30:38.000 The ACLU is now the problem, not the solution, to due process and free speech.

00:30:44.000 So I sort of want to shift topics here, and I want to ask you about your career before everything Trump-related and modern politics-related.

00:30:51.000 And I want to ask you about your criminal law career, because obviously before any of this happened, that's what you were famous for.

00:30:55.000 I mean, that was the thing that made you a household name, was the Von Buelow case, or the O.J.

00:31:01.000 Simpson case, things like that.

00:31:03.000 I've always wanted to ask you about sort of the criminal justice system, the adversarial nature of the criminal justice system.

00:31:08.000 So from the outside, to somebody like me, I look at it and it seems like, you know, the accusation was constantly made, whoever can find the best lawyers wins.

00:31:16.000 That if you're an impoverished defendant and you can't find a great lawyer, you're basically screwed.

00:31:21.000 But if you're a very wealthy defendant and you've committed egregious crimes and you can find a good lawyer, that person can squirrel you out of the charges.

00:31:27.000 How much truth is there to that?

00:31:29.000 And does that make the case for a sort of European inquisitorial system as opposed to the U.S.

00:31:33.000 justice system which is adversarial in nature?

00:31:35.000 The United States system is not adversarial at all.

00:31:37.000 Ninety-seven percent of cases in the federal courts end in guilty pleas because of what's called the trial penalty.

00:31:46.000 And the job of the criminal lawyer today is to explain the gun that's being held to the head of the defendant, saying if you don't plead guilty, you're going to get ten times the amount of jail time that you would have gotten if you plead guilty.

00:31:59.000 So what I have to do is now recommend to clients all the time, look, If you go to trial, you'll get 10 years if you lose.

00:32:06.000 If you plead guilty, I think I can get you a year.

00:32:10.000 Now, what's the chances of me winning?

00:32:11.000 Well, pretty good.

00:32:12.000 I mean, I think I've got a 25, 30% chance of winning.

00:32:16.000 Not good enough if there's a 10 to 1 ratio.

00:32:20.000 So, of course being wealthy gives you the advantage legally, medically, housing-wise, educationally, and every other way.

00:32:28.000 Why should it be different with the law?

00:32:31.000 And that's why I do half of my cases pro bono.

00:32:33.000 I represent half of my clients.

00:32:35.000 From the beginning, the day I started practicing law, I've done half of my cases pro bono, representing poor people, obscure people.

00:32:41.000 You don't read about those cases.

00:32:43.000 And those cases I've had actually more success, because you can have more success sometimes with low visibility cases, than with famous cases.

00:32:52.000 Famous cases, you have to win in court.

00:32:54.000 Now we did win Von Bulow, we did win O.J.

00:32:56.000 Simpson, we did win... I didn't win Michael Milken, who just got a pardon.

00:33:01.000 So, maybe we did win, ultimately, in the end.

00:33:04.000 But, you know, I've lost cases with rich people and I've won cases for poor people, but Having money is a knife that cuts both ways.

00:33:12.000 It makes it more likely that you'll be prosecuted if you're very rich and if you're a big prize, but it also makes it more likely you'll have a chance to win the case.

00:33:21.000 So, in one second I want to ask you, as a criminal defense attorney acting in that capacity, How do you sort of square that with your perspective on morality?

00:33:31.000 I want to ask you that in one second.

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00:34:34.000 So I'm old enough to remember when you were a bugaboo to the right, right?

00:34:37.000 I'm not quite that young, but I'm old enough to remember when the O.J.

00:34:40.000 trial happened.

00:34:40.000 I remember them wheeling the TV into my public school classroom for the reading of the verdict.

00:34:44.000 I think I was maybe 10 at the time.

00:34:46.000 And I remember in our household, your name was a bit of a dirty word because you were one of the attorneys defending O.J.

00:34:50.000 Simpson.

00:34:51.000 And of course, as everyone who was mainly sentient at the time thought, O.J.

00:34:54.000 Simpson was deeply guilty.

00:34:56.000 So yeah, I'm not going to ask you whether O.J.

00:34:58.000 Simpson was guilty because attorney-client privilege, but with that said, Yeah, you defend clients and criminal defense attorneys have defended clients knowing, presumably, or at least thinking that they're guilty.

00:35:08.000 How do you swear that, believing that your own client has done something deeply evil or immoral, and then going into defending them on it?

00:35:16.000 I think much the same way a Catholic priest defends not turning in A penitent who is admitted committing a terrible crime.

00:35:24.000 The big difference between a Catholic priest and a lawyer is if a lawyer, if a client tells me I've killed somebody and I'm going to go do it again or I've beaten my wife and I'm going to go back and beat her, I'm obligated to turn him in because it's a future crime.

00:35:35.000 A priest can't do that.

00:35:36.000 A priest says, no, I'm going to try to persuade you and talk you out of it.

00:35:40.000 Or a doctor.

00:35:42.000 My daughter-in-law is an emergency room doctor.

00:35:44.000 She has almost certainly saved the lives of people who have gone out and done terrible things in the future.

00:35:50.000 It's a very important part of our legal system that everybody get a defense.

00:35:55.000 I uniquely get the most difficult cases because I've had some success.

00:36:00.000 And also as a professor, I can take more of these cases.

00:36:03.000 Pro bono.

00:36:04.000 And so I've had a lot of people who I've strongly suspected were probably guilty.

00:36:08.000 In a couple of cases, I was pleasantly surprised at the end.

00:36:11.000 Klaus von Bülow, I was presently surprised.

00:36:14.000 But you know, you talk about not being able to ask me whether or not OJ did it.

00:36:18.000 When I first, when Bibi Netanyahu, who I've known since he's 22 years old, became prime minister, I was in Israel.

00:36:24.000 He invited me, my wife, and my daughter to come see him at his new digs.

00:36:27.000 And we went and we schmoozed and we took pictures.

00:36:30.000 Then he took me into the little private room and said, Alan, I have a question I've always wanted to ask you.

00:36:34.000 Did O.J.

00:36:35.000 And I said, Mr. Prime Minister, there's a question I've always wanted to ask you.

00:36:35.000 do it?

00:36:37.000 Does Israel have nuclear weapons?

00:36:39.000 And he said, you know I can't tell you that.

00:36:44.000 You know I can't tell you that.

00:36:45.000 Kavachomer, okay. 0.89

00:36:46.000 So yeah, you did grow up in a Jewish school.

00:36:47.000 So with regard to that sort of stuff, this is the reason I ask whether an inquisitorial system would be better, one where it doesn't seem to pit one person whose now job it is to defend the criminal conduct of somebody who they believe committed a criminal act.

00:37:01.000 Inquisitorial system, do you think that the U.S. is the best system or do you think that a different system would be better?

00:37:05.000 I think it's the best system for the United States.

00:37:07.000 I wouldn't ever try to impose our system on foreign countries.

00:37:11.000 By the way, many of the countries that have become free after the breakdown of the Soviet Union have had an option of going with the American system, with the European system, and many have gone with the American system.

00:37:23.000 You know, as Churchill said about democracy, I could say about the adversary system, the worst ever invented except for all the others that have been tried over time.

00:37:31.000 I think There is an adversarial relationship between a person accused of crime and the state.

00:37:37.000 And you can't bury that adversarial relationship in paternalism or any other kind of euphemism.

00:37:44.000 There really is a conflict.

00:37:46.000 Our job as criminal defense attorneys is to get the best deal.

00:37:48.000 Jeffrey Epstein, look at that.

00:37:50.000 I got him a very good deal and I hated for it.

00:37:52.000 That's my job.

00:37:53.000 If I had done anything less than get him the best deal I possibly could, I would have been doing something in violation of my oath of office.

00:38:01.000 It creates a moral conflict.

00:38:03.000 I don't sleep well at night when I defend somebody who I believe probably did it.

00:38:07.000 I've never had a client who's Gone out and done it again.

00:38:11.000 That is, committed a second murder or done something horrible, horrible.

00:38:15.000 O.J.

00:38:15.000 Simpson obviously was convicted of doing something, but it was fairly minimal.

00:38:19.000 And by the way, I don't take the case.

00:38:20.000 I don't represent a person twice.

00:38:22.000 I have a rule.

00:38:23.000 I have several rules.

00:38:24.000 I don't represent somebody who is in the business of crime.

00:38:26.000 I don't represent... I don't want to be the consigliere to a crime family.

00:38:30.000 I don't represent drug dealers.

00:38:31.000 I don't represent professional terrorists or people like that.

00:38:34.000 But I will represent Anybody wants, regardless of how serious the crime is, now obviously, would I represent a Nazi who killed members of my family?

00:38:42.000 No.

00:38:42.000 There'd be a conflict of interest there.

00:38:45.000 You know, I'd want so much to see him convicted, but if I have no personal emotional conflict of interest, I don't let the seriousness of the crime influence my decision whether to take it.

00:38:54.000 So another area where you've obviously become very well known, I mean there are a bunch of different areas because you're sort of a master of several different trades, is in the pro-Israel space.

00:39:03.000 Right.

00:39:03.000 I would suggest to you actually that your unpopularity on the left began with the intervention in the pro-Israel space long before.

00:39:09.000 Oh, I think that's right.

00:39:10.000 The President Trump stuff happened.

00:39:11.000 People don't know about that because people who don't follow the pro-Israel space don't actually follow the pro-Israel space.

00:39:15.000 But as soon as you wrote the case for Israel, it seemed like the left turned on you, or at least a segment of the left turned on you in fairly vicious fashion.

00:39:22.000 Right.

00:39:23.000 More the hard left.

00:39:25.000 Noam Chomsky commissioned Norman Finkelstein to try to find problems in the book, and he found a quote from Mark Twain, which I quoted and attributed to Mark Twain.

00:39:36.000 And he said, I didn't find it in Mark Twain, I found it in a book by a woman named... Joan Peters.

00:39:41.000 Joan Peters, whose book had been criticized.

00:39:45.000 Yeah.

00:39:46.000 I mean, first of all, we both found it in the same place.

00:39:48.000 We found it in a little pamphlet called Facts and Something or Other, which was put out by some pro-Israel organization, which you couldn't cite, obviously, because it's not in libraries.

00:39:58.000 But we both found it in the same place.

00:40:00.000 But, you know, he accused me of plagiarism.

00:40:02.000 I immediately went to Harvard University, the president, and said, So, why do you think it is that the hard left has turned so far against Israel?

00:40:09.000 Why do you think that's being mainstreamed into the Democratic Party?

00:40:10.000 He got in charge of plagiarism.

00:40:11.000 He said there was nothing to it.

00:40:13.000 But that was the first attempt to attack my integrity because I supported Israel.

00:40:17.000 So why do you think it is that the hard left has turned so far against Israel?

00:40:20.000 Why do you think that's being mainstreamed into the Democratic Party?

00:40:22.000 This scares the living hell out of me, frankly.

00:40:24.000 We start very easily there.

00:40:25.000 The hard left, the hard, hard left turn against Israel when the Communist Party turned against Israel.

00:40:31.000 It was as simple as that.

00:40:33.000 1967, Israel wins the war.

00:40:34.000 The Soviet Union breaks relationships with Israel.

00:40:37.000 The Communist Parties all over the world turn against Israel because they're taking orders from Stalin.

00:40:42.000 It's simple.

00:40:43.000 Not Stalin in those days, but the Stalinists in those days.

00:40:46.000 It was as simple as that back then.

00:40:48.000 Then Berrigan.

00:40:49.000 I write about this in my book called Defending Israel. 0.94

00:40:52.000 Berrigan, who is a Paragon of the left during the Vietnam War calls Israel a criminal community, a Jewish criminal community.

00:41:00.000 So you get Berrigan, Chomsky, Finkelstein, Gilad Atzmone, the hard, hard left turn against Israel, and then it creeps into the center left.

00:41:08.000 And you get people like Peter Beinhart who become enemies of Israel, though they proclaim that they're really Zionists.

00:41:17.000 J Street, which has never said anything positive about Israel in any of its press releases and and supported the Goldstone report.

00:41:25.000 And they've now made it possible for Democrats to say, we're not going to go to AIPAC.

00:41:31.000 Liz Warren says, I'm not going to AIPAC.

00:41:34.000 So I think the Democratic Party, we're in danger of seeing the bipartisan support for Israel weakened as the result of the left of the Democratic Party.

00:41:42.000 I think this is one of the things people are missing.

00:41:44.000 So I hear this a lot from Democrats who are Jews, which is the vast majority of Jews are Democrats, is that the reason that the Democrats are turning against Israel is because of Trump.

00:41:52.000 And that's completely neglecting the history of the Democratic Party, which was wildly pro-Israel throughout at least the early 1990s.

00:41:59.000 And then it began to move and shift.

00:42:00.000 You can see this in the opinion polls.

00:42:02.000 And by the time Barack Obama was president, it had moved fairly Fairly solidly into the Palestinian camp, at least in terms of being on parity with Israel in terms of popularity inside the Democratic Party.

00:42:13.000 This is particularly true among young Democrats, and Obama obviously facilitated that.

00:42:17.000 I mean, President Obama was not a fan of the state of Israel.

00:42:20.000 He hated Prime Minister Netanyahu, obviously.

00:42:23.000 The attempt to pin that on President Trump is pretty astonishing, again, considering that the mainstream Democratic Party had been moving in this direction for quite a while, labeling Israel an apartheid state.

00:42:33.000 No doubt about that.

00:42:34.000 And I think President Obama, for whom I voted twice, I now would reconsider my second vote for him.

00:42:42.000 He conned me.

00:42:43.000 He called me into the Oval Office and he said, I have Israel's back. 0.99

00:42:47.000 And I didn't realize what he meant is to put a target on it and stab them.

00:42:50.000 As he was leaving office, he ordered his Representative to the UN to not veto a resolution which declared the Kotel, the Western Wall, the holiest place of Judaism, to be occupied territory along with the access roads to Hebrew University and the Hadassah Hospital and the Jewish Quarter.

00:43:08.000 It was outrageous!

00:43:10.000 Outrageous!

00:43:11.000 And it just legitimated more and more people in the Democratic Party saying, well, we should have a balance of Palestinians who have turned down statehood since 38, 48, 67, 90, 2000, 2001, 2007, 2008.

00:43:25.000 So I think the Democratic Party now, there's a real danger of losing the bipartisan support.

00:43:32.000 I think there are some many centrist Democrats who still support Israel, but people on the left and younger people to a far, far lesser extent.

00:43:41.000 This is why it's driving me up a wall to watch Bernie Sanders try and play on the fact that he's ethnically Jewish, as though he's some sort of patriot on behalf of either Israel or Jews.

00:43:49.000 I mean, it's just, it's maddening to watch, considering, again, that the man campaigns openly with open anti-Semitic Linda Sarsour and Ilhan Omar and Rashida Tlaib.

00:43:57.000 Well, you left out one.

00:43:58.000 He went to England and campaigned for Jeremy Corbyn, who facilitated, turned the Labour Party into a party that welcomed anti-Semites, and Bernie Sanders went there and campaigned for him. 0.62

00:44:11.000 Let me take one oath here as a Democrat.

00:44:13.000 Under no circumstances will I ever vote for Bernie Sanders.

00:44:17.000 Period.

00:44:18.000 I will never vote for Bernie Sanders and I would hope that other Democrats would join me in that pledge because he would hurt America terribly and I think in the end he would foment some anti-semitism because he would hurt America so badly and for the first Jewish president to hurt our economy and hurt our standing in the world I think would be just a terrible terrible thing. 0.81

00:44:43.000 I'm not gonna vote against him because he's Jewish Obviously. 0.95

00:44:46.000 I am going to vote against him because his policies are so deleterious to what has made America great.

00:44:53.000 America thrives at the center. 0.92

00:44:56.000 We are a great country.

00:44:57.000 Franklin Roosevelt was one of our greatest presidents because he avoided what was going on in Europe.

00:45:01.000 In Europe you were either communist or fascist.

00:45:03.000 The center disappeared.

00:45:05.000 Roosevelt in the 30s created a kind of social capitalism which allowed for us to preserve centrist democracy, centrist democratic party, and I think we're seeing that hurt.

00:45:19.000 My new book that I'm working on, Why I Left the Left but Couldn't Join the Right, The Case for the Vibrant Center, I try to bring us back To centerist politics, centerist conservative, centerist liberal, and avoid, marginalize the extremes on both sides.

00:45:34.000 But Sanders is the extreme on the left side.

00:45:37.000 So because of my own personal politics, we spend a lot of time here sort of bashing the Democratic Party and the left.

00:45:41.000 But what do you think the right gets wrong?

00:45:42.000 Because obviously the title of the new book is that you're not joining the right.

00:45:44.000 So what do you think the right gets wrong?

00:45:46.000 Well, you know, we have differences.

00:45:47.000 You're an unorthodox religious person.

00:45:50.000 I support a woman's right to choose.

00:45:52.000 I support gay marriage and gay rights.

00:45:55.000 I'm a strong supporter of following the science on the environment, of reasonable gun control, of health care, as broad as possible, consistent with our economic welfare.

00:46:08.000 So I pretty much go down the liberal agenda when it comes to social issues.

00:46:14.000 On the other hand, when it comes to foreign policy, if I were in Britain, I'd be a conservative.

00:46:19.000 It'd be easy for me, because the Conservative Party in Britain follows many of the social policies that we talked about.

00:46:26.000 But I'm in a great conflict.

00:46:27.000 I love the evangelical Christians, because they're so supportive of Israel, and they're so respectful of me.

00:46:34.000 When I speak at Liberty University and I talk about a woman's right to choose, I get polite applause.

00:46:38.000 When I talk about gay marriage, I get polite applause.

00:46:40.000 When I mention Israel, I get a 15-minute standing ovation.

00:46:43.000 So, I feel politically homeless.

00:46:45.000 I feel thrust out from what Ronald Reagan said, I didn't leave the Democrats, the Democrats left me.

00:46:51.000 They are quickly leaving me.

00:46:52.000 I don't feel, I feel welcome in the conservative Republican Party, but I don't feel comfortable with the social conservatism of so many Republicans.

00:47:02.000 I'd love to see a return to kind of Eisenhower Republicanism, Rockefeller Republicanism, but we're not seeing it.

00:47:08.000 So I want to ask you about sort of your system of values.

00:47:11.000 So you grew up Orthodox, but obviously you're not Orthodox now.

00:47:13.000 So what is your sort of religious belief system?

00:47:15.000 Because obviously you're very, not only identifiably Jewish, but obviously you speak in terms of Judaism a lot.

00:47:20.000 So where do you hold on this?

00:47:21.000 Well, I love my Judaism.

00:47:22.000 I love going to synagogue.

00:47:23.000 I'm a traditional Jew, but I'm a skeptic. 0.98

00:47:25.000 I'm a skeptic about atheism.

00:47:26.000 I'm a skeptic about God.

00:47:28.000 The God I'm skeptical about is the Jewish God. 0.99

00:47:31.000 I'm skeptical about atheism.

00:47:33.000 I don't call myself anything agnostic atheist.

00:47:36.000 I'm not an atheist because I'm too skeptical.

00:47:38.000 I'm skeptical about science.

00:47:40.000 I'm skeptical.

00:47:41.000 You took my course with Steven Pinkery a long time ago at Harvard.

00:47:44.000 You know that I'm skeptical about everything.

00:47:46.000 I'm skeptical about evolution, explaining everything in biology.

00:47:51.000 I'm going to die a skeptic.

00:47:52.000 I'm going to die not knowing the answers to all these questions, but I hope I'm still healthy enough and wise enough to keep asking the questions.

00:48:00.000 So my religion is skepticism.

00:48:02.000 So how do you generate a moral system based on skepticism?

00:48:05.000 I remember asking this question.

00:48:06.000 I think I actually raised my hand in your class and asked you this question specifically.

00:48:09.000 So I wrote a book in answer to your question called Rights from Wrongs.

00:48:13.000 I know, I read it because it was for your class.

00:48:14.000 Right, right, right.

00:48:15.000 So it's a secular theory of the development of rights through experience and history.

00:48:20.000 My theory is that rights grow out of a recognition of the wrongs.

00:48:24.000 If you look historically, the civil rights movement goes out of slavery, the post-holocaust movement of human rights around the world.

00:48:32.000 I think that I'm an experientialist.

00:48:37.000 I'm a strong supporter, I didn't like him personally, but Oliver Wendell Holmes, the life of the law is not logic, it's experience.

00:48:45.000 And you learn from your mistakes.

00:48:48.000 And so I think my theory of rights grows out of my understanding of how to avoid wrongs in the world.

00:48:55.000 But I'm not an absolutist, so I got into a lot of trouble when I suggested That under certain circumstances, a torture warrant might be permissible if, for example, we had a terrorist who had planted a nuclear bomb in New York or Los Angeles that could kill 10 million people, and we had the terrorist, and we could, by use of extreme measures, prevent that from happening.

00:49:20.000 I suggested the possibility of a torture warrant, which got me into a lot of trouble with all my liberal friends.

00:49:25.000 Many of them said, we agree with you privately, but don't ever say that.

00:49:29.000 So I'm not an absolutist, but I have a strong presumption against torture, against censorship, against a range of other denials of civil liberties.

00:49:38.000 So in a second, I want to ask you about sort of that perspective on rights versus wrongs, especially because I want to know how you don't slip into a sort of historicism.

00:49:46.000 If the idea is that we're constantly developing and learning from our wrongs, does that mean inevitably we're going to get better?

00:49:51.000 Because human history seems to say, no, I want to ask you about that in one second.

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00:50:55.000 So I'm going to ask you about the basis of a positive morality because obviously in order to identify the wrong you do have to actually identify the wrong based on something.

00:51:02.000 We see bad things happen around the world and people justify them routinely.

00:51:05.000 I mean there's been thousands of years of bad things happening in most places on the globe and there were thousands more for, thousands more for virtually all places on the globe before that.

00:51:15.000 So what is the moral system based on other than, there have to be some fundamental precepts in other words that undergird how we decide when a thing is wrong.

00:51:23.000 So, Robert Nozick was one of my closest friends on the faculty, a great philosopher of libertarianism, and I gave him a draft, shortly before he died, of my book on rights from wrongs, and he pointed out, as you pointed out, can you really know what wrongs are without knowing what rights are?

00:51:39.000 And my answer is yes.

00:51:40.000 I think there is a human instinct that really teaches us when something is wrong, and everybody agrees that now, of course they didn't over time, slavery was wrong, the Holocaust was wrong, anti-gay bashing is wrong, but you'll never get agreement about what's right.

00:51:55.000 It's much easier to find agreement on what's a dystopia than a utopia.

00:52:00.000 Take, for example, a utopia from a labor and economic point of view.

00:52:04.000 You couldn't get 10 people sitting in a room deciding what the best system of economic regulation is, but I think most of us today would agree that socialism and communism has proved that it's the wrong approach.

00:52:17.000 So, So we get a much wider consensus on what's wrong than what's right.

00:52:21.000 But look, it's a work in progress.

00:52:23.000 I don't think it's a perfect solution.

00:52:25.000 When I once argued with Scalia, Justice Scalia, who I became friendly with, that his system of originalists isn't perfect.

00:52:32.000 It doesn't solve Brown versus Board of Education.

00:52:34.000 He said, look, it's not perfect, but it's better than the others.

00:52:37.000 And it's safer than the others.

00:52:39.000 And he had a point there.

00:52:41.000 And I think my system may be better than the others, but it's not perfect.

00:52:45.000 Well, what's interesting about your system is that it actually, when we're talking about rights versus wrongs, you're actually not talking about individual rights versus wrongs.

00:52:52.000 You're talking about morally correct versus morally wrong.

00:52:55.000 And it seems that the American system, the Enlightenment-based system, is based on not moral right versus moral wrong, it's based on individual rights.

00:53:03.000 So where does the regime of individual rights come in, and do you think that individuals have rights, or is it basically sort of a Burkean experientialism?

00:53:10.000 Well, you know, I think there are elements of both.

00:53:15.000 You know, you had my class with Steve Pinker.

00:53:17.000 Steve Pinker really believes that we are moving in the right direction.

00:53:21.000 He's written this brilliant book on how everything has gotten better.

00:53:24.000 Right, Better Angels, Our Nature.

00:53:25.000 Yeah, but, you know, having lived through the Holocaust, I was a child, but my family lived through it, many of them were killed.

00:53:31.000 I just don't see it as a direct line.

00:53:34.000 In fact, the Jewish experience has always been things get better, and then they get much worse, and then they get a little better, and then they get much worse. 1.00

00:53:41.000 You know, the Jewish definition of a pessimist is, oh, things are so bad they can't possibly get worse.

00:53:47.000 And an optimist says, yes, they can.

00:53:49.000 So I'm a Jewish optimist.

00:53:51.000 I think things could get worse, and we have control over our destiny.

00:53:56.000 We determine whether things get better or get worse.

00:53:59.000 So you're a religious person in the end.

00:54:00.000 I mean, that's pretty religious perspective.

00:54:01.000 You know, all my rabbis... I mean, Steven Pinker would say there's no such thing as free will and it's all in your head and all of that.

00:54:06.000 I don't buy that.

00:54:07.000 And I'm not religious in the sense of... I'm a skeptic about everything.

00:54:14.000 I'm going to get you keeping Shabbos by the end of this interview. 0.55

00:54:15.000 No, no, no.

00:54:16.000 I love Shabbos.

00:54:17.000 And one of my favorite books was Joe Lieberman's book about Shabbos, how the Jews haven't kept the Sabbath, but the Sabbath has kept the Jews. 0.80

00:54:25.000 I think the Sabbath is a fantastic invention. 0.76

00:54:27.000 I just was in the synagogue reading from the Ten Commandments.

00:54:31.000 And whoever heard of a commandment that says you have to rest one day a week?

00:54:34.000 It doesn't sound like a commandment.

00:54:35.000 It sounds like a labor organization, you know, platform program.

00:54:40.000 But it is a commandment, and it's a very wise commandment.

00:54:43.000 So you've taught at the law school for decades.

00:54:47.000 Have you seen a change in the nature of the students who are coming through?

00:54:51.000 Because one of the great questions is, I've been speaking on campuses now for probably 20 years at this point, somewhere in that neighborhood, 15, 20 years.

00:54:57.000 And even I in the last 15 years have seen a massive change in sort of how treatment on campus has been.

00:55:04.000 I used to be able to speak on campus, no security whatsoever, back in like 2010, 2011.

00:55:07.000 I remember I spoke at Berkeley in 2015 and it was fine.

00:55:14.000 I came back in 2016, we required 600 police officers and a $600,000 security expenditure by the city of Berkeley in order to prevent riots.

00:55:20.000 I remember.

00:55:21.000 I spoke on that issue.

00:55:23.000 It's one word, one word, truth.

00:55:26.000 The left knows the truth, with a capital T. And if you know the truth, why do you need dissent?

00:55:33.000 Why do you need opposing points of view?

00:55:35.000 If you know the truth, why do you need due process?

00:55:38.000 Why do you need to have a system of determining what happened?

00:55:42.000 We know the truth! 0.97

00:55:43.000 The truth is if you're a white male, you're guilty. 0.84

00:55:46.000 If you're a woman of color, You're a victim. 1.00

00:55:49.000 We know the truth.

00:55:51.000 That's what's happening on campuses today.

00:55:53.000 And universities are no longer places where teachers teach you how to think.

00:55:57.000 They teach you what to think.

00:55:59.000 Fifty years of teaching, I think you'll recognize from my class, nobody knew what my personal views were on almost anything.

00:56:06.000 I would raise question after question.

00:56:08.000 There was never a right answer in my class.

00:56:10.000 It was simply a method of challenging everything.

00:56:12.000 Skepticism about Everything.

00:56:15.000 Today you have teachers lecturing students what to believe.

00:56:19.000 And it's propaganda.

00:56:20.000 it.

00:56:21.000 It's not education.

00:56:21.000 And it seems to me that when it comes to what's happening on campus, so much of it is focused on undermining exactly the sort of rights that you've spent your life defending.

00:56:29.000 Those rights are now seen as a bulwark of a hierarchical system.

00:56:32.000 You see people arguing against freedom of speech on sort of a Marcusean principle, Herbert Marcuse, the famous Frankfurt School philosopher, arguing that free speech itself was a reinforcement of the hierarchy because the people who took best advantage of it were the privileged.

00:56:44.000 I remember Marcuse.

00:56:45.000 He taught at Brandeis when I started teaching at Harvard, and he was propagandizing the students back then against free speech and And now you have professors who are saying that free speech is a male, hierarchical, you know, all of the words.

00:57:02.000 You can just make them up as you go along because that's what they do.

00:57:05.000 But it's no good.

00:57:06.000 We don't need free speech.

00:57:07.000 We don't need due process.

00:57:09.000 I've never seen that before on university campuses.

00:57:12.000 Even during the McCarthy period, the people on the right would be apologetic about denying due process.

00:57:18.000 The people on the hard left aren't apologetic.

00:57:20.000 They think it's the right thing.

00:57:22.000 So what do you think is the future of higher education then?

00:57:24.000 Because I know that we're trying to shovel everybody into higher education, seemingly to less and less effect.

00:57:29.000 But do you think that eventually people are going to wake up and realize that this is largely a waste of time unless you're majoring in maths and sciences?

00:57:35.000 That's what they're doing.

00:57:36.000 That's what they're doing.

00:57:37.000 The good students are staying away from majoring in anything but computer sciences, math, economics in some universities.

00:57:46.000 Basically, universities are two universities now.

00:57:49.000 You have the serious students.

00:57:51.000 Who are really interested in learning, and it's mostly in the science side.

00:57:55.000 And then you have the students who know, in Harvard, you have to work so hard to get a B-.

00:58:02.000 I mean, it's almost impossible.

00:58:04.000 You could just walk through Harvard and get B's and B+, and A's, and everything, and then come out with your Harvard degree and learn absolutely nothing.

00:58:13.000 If you're a Jewish kid, you can major in Jewish studies and just repeat what you learned in elementary school and high school.

00:58:21.000 If you're a woman, you can major in women's studies and have all your professors say, wow, isn't that great? 1.00

00:58:27.000 No criticism.

00:58:28.000 And these kind of ethnic studies programs are so dangerous. 1.00

00:58:34.000 I mean, I would practically have a rule saying, all right, you can have ethnic studies, but if you're Jewish, you can't take Jewish studies. 1.00

00:58:41.000 If you're black, you can't take black studies. 0.88

00:58:43.000 If you're a woman, you can't take women's studies. 1.00

00:58:45.000 That's available for other people to learn about you.

00:58:48.000 Now, that's nonsense, of course, because obviously if you're an African-American, you have a right to learn about your culture and your history.

00:58:54.000 But you also have an obligation to learn about other things.

00:58:58.000 Well, you know, when-- When I was in UCLA, that's how you met the Jewish girls.

00:59:00.000 You went to Jewish studies class, right?

00:59:01.000 Well, you'll like this.

00:59:02.000 The reason I wrote my book, The Case for Israel, is a kid came over to me one day and he asked me to give him Chubah.

00:59:07.000 It was during the 10 days of repentance.

00:59:09.000 He said, because he never speaks out in class in support of Israel, though he knows a lot.

00:59:13.000 And I said, why not?

00:59:13.000 He said, because I won't ever get a date.

00:59:16.000 So I started a campaign.

00:59:17.000 I said, support Israel.

00:59:18.000 Date a Zionist tonight. 1.00

00:59:20.000 It helped a bunch of Zionists get dates, but it didn't really help the cause of Israel. 0.80

00:59:24.000 So you mentioned your sort of constitutional theory of interpretation and you mentioned Justice Scalia originalism or textualism.

00:59:32.000 I think, frankly, that Justice Thomas is more of an originalist than Scalia was.

00:59:37.000 So what is your theory of how the Constitution should be interpreted by the Supreme Court?

00:59:40.000 I think there are, you know, Scalise said the Constitution's dead, Tribe says it's alive.

00:59:46.000 They're both wrong.

00:59:47.000 Part of it's dead, part of it's alive.

00:59:49.000 The part about 35 years old being president, you couldn't be deader than that.

00:59:53.000 Of course it's dead.

00:59:54.000 You can't be 34 and 11 and take the oath of office.

00:59:57.000 Due process.

00:59:58.000 The process that is due is an invitation to change what due process means over the years.

01:00:05.000 For example, the framers of the 14th Amendment, none of them would have said that that means black and white children can go to school together.

01:00:11.000 And get married?

01:00:13.000 Oh my God, you wouldn't have gotten one vote for that.

01:00:15.000 So, of course, due process has to change over time.

01:00:19.000 Impeachment.

01:00:20.000 I think it's dead.

01:00:21.000 I think impeachment's dead.

01:00:22.000 It should never change over time.

01:00:24.000 The framers said treason?

01:00:26.000 Bribery or other high crimes and misdemeanors, meaning other crimes like treason and bribery.

01:00:34.000 It's dead.

01:00:35.000 It doesn't change.

01:00:37.000 In the 19th century, people thought it needed a crime.

01:00:40.000 The dean of the Columbia Law School said the weight of authority is in favor of you need a crime.

01:00:44.000 The former justice of the Supreme Court who defended Andrew Johnson, you need a crime.

01:00:49.000 Suddenly, we've gotten woke and all the professors, when Trump is impeached, say, Crime.

01:00:55.000 You don't even need a sin.

01:00:57.000 You can call it abuse of power.

01:01:00.000 Forty of our presidents have been accused of abusing their power.

01:01:03.000 They want to normalize impeachment, turn it into a partisan weapon to become part of our political system.

01:01:10.000 Exactly what Madison and Hamilton rejected.

01:01:14.000 They said, we don't want to turn into a British parliamentary system where a president serves at the pleasure of the legislature.

01:01:22.000 And yet that's exactly what the Democrats try to introduce.

01:01:25.000 I mean, I really was amazed by the weakness of the charges that they brought forth in the House, because I figured that if they were going to actually charge the president with, I mean, they kept saying bribery over and over.

01:01:33.000 I don't know why.

01:01:34.000 Just charge him with bribery, man.

01:01:35.000 Right.

01:01:35.000 Or extortion.

01:01:36.000 If they'd done that, my argument would have been completely different.

01:01:40.000 I don't know that I would have argued.

01:01:42.000 But once they charge them with abuse of power, my God, obstruction of Congress.

01:01:48.000 Every lawyer obstructs Congress whenever he demands a court order before allowing his client to fall into a perjury trap.

01:01:56.000 I know I do that all the time.

01:01:57.000 And so those were two vague General Madison Hamilton would be turning over in their graves.

01:02:03.000 Moreover, Hamilton said, the greatest danger is that impeachment will become partisan.

01:02:08.000 They both wanted, all of them wanted, impeachment to occur only when there was a bipartisan support, that's why you need two-thirds in the Senate, and overwhelming national support for impeachment.

01:02:18.000 The only case for impeachment that ever should have gone forward was Richard Nixon.

01:02:22.000 So, in the future, do you think that impeachment is going to happen every couple of years?

01:02:25.000 Not every couple of years, but every decade.

01:02:27.000 Whenever you get a president of one party, and a house of another party, and the president's controversial, there's going to be a move to impeach.

01:02:37.000 Remember, they were going to impeach Hillary Clinton. 0.98

01:02:39.000 On day one, the Republicans were yelling, lock her up. 1.00

01:02:42.000 This started, in some ways, with the impeachment of Clinton.

01:02:46.000 Now, Clinton was accused of a crime, perjury, but it wasn't a high crime.

01:02:49.000 It was a low crime.

01:02:51.000 It was perjury committed not in his official capacity, holding office, but in his personal capacity.

01:02:58.000 So with that said, and it seems like the country is getting more partisan, you're hoping for a center.

01:03:01.000 Do you see that emerging anytime soon?

01:03:03.000 Not in my lifetime, your lifetime.

01:03:05.000 I think we'll see the pendulum swing slowly in America.

01:03:09.000 And I think the rest of my life will be living in a divisive country.

01:03:14.000 Look, when I turned 75 six years ago, I thought I was going to have such a nice retirement.

01:03:19.000 And then I get accused falsely, and then Trump gets elected, and now my family doesn't talk to me, people on the vineyard don't talk to me, my wife was mad at me for taking the case.

01:03:34.000 You know, one of the chapters in my new book is the cost of trying to live a principled life, and it's very, very hard to do, but I'm too old to change.

01:03:43.000 Well, again, since apparently this episode is devoted to me trying to get to... I'm going to frum you up before the end.

01:03:48.000 You want to be popular.

01:03:49.000 All you have to do is go to a frum shul.

01:03:50.000 Well, I do.

01:03:52.000 The synagogue I go to is Park East in New York.

01:03:55.000 The cantor is this incredible cantor named Helfgott.

01:03:58.000 The rabbi is this incredible rabbi named Schneier.

01:04:01.000 And I go there and I like it.

01:04:03.000 I love the melodies.

01:04:04.000 I give the Devar Torah. 0.73

01:04:06.000 But I'm a skeptic.

01:04:08.000 But I'm told rabbis... That's okay. 0.99

01:04:10.000 That's all right.

01:04:11.000 You can do that.

01:04:11.000 That's all right.

01:04:12.000 Well, I do want to ask you one more question.

01:04:14.000 I want to ask you, since you have all of these various legacies in various areas, what do you want the chief legacy of Alan Dershowitz to be?

01:04:21.000 But if you want to hear Alan Dershowitz's answer, you have to be a Daily Wire member.

01:04:23.000 So to become a member, head on over to dailywire.com.

01:04:26.000 Click subscribe.

01:04:26.000 You can hear the end of our conversation there.

01:04:29.000 Well, Professor Dershowitz, thank you so much for your time.

01:04:31.000 And thank you so much for stopping by.

01:04:32.000 I really appreciate it.

01:04:32.000 Thank you.

01:04:45.000 Executive producer, Jeremy Boring.

01:04:47.000 Associate producer, Katie Swinnerton.

01:04:49.000 Our guests are booked by Caitlin Maynard.

01:04:50.000 Host production is supervised by Alex Zingaro.

01:04:53.000 Editing is by Jim Nickel.

01:04:54.000 Audio is mixed by Mike Coromino.

01:04:56.000 Hair and makeup is by Nika Geneva.

01:04:58.000 Title graphics are by Cynthia Angulo.

01:05:00.000 The Ben Shapiro Show Sunday Special is a Daily Wire production.

The Ben Shapiro Show - March 08, 2020

Alan Dershowitz | The Ben Shapiro Show Sunday Special Ep. 85

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