A Few Thoughts on Law and Justice By Alan M. Dershowitz - 6 Av 5780 – July 26, 2020 What I want to talk about today is the age of extremism in which we are currently living. I just published a new book, The Case for Liberalism in an Age of Extremism: or, Why I Left the Left But Can't Join the Right. It is a political memoir about the homelessness that I and many of my friends and colleagues feel. We feel that the Democratic Party has turned too far left for us in many respects. We cannot support "the squad," those who would get rid of the framework of our free market economy, those who are opposed to dissent. Yet we would feel uncomfortable supporting a party that disapproves of a woman's right to choose, gay marriage, concerns for the environment, reasonable gun control. Many of us feel homeless. The book is a memoir that could have been written by either a centrist conservative or a centrist liberal. I am a centrist liberal, but I spend a lot of time talking to colleagues and friends on the conservative center side. For me, the real enemies of America are the extremists on both sides: the hard left that would bring America down, the hard-right white supremacists and neo‑Nazis. It is too bad that the right and the left do not have real conversations. The conversations tend to take the form now of bumper stickers, protests, and screaming. The recent protests are understandable. There is far too much killing of unarmed African-American men. Protests against that are entirely protected by our constitution. When these protests are hijacked by people on the hard left who care much more about undoing America than about what happens in the African-American community, or people on the hard right who exploit racial tension and try to bring about their own revolution, we are in great danger. The greatest danger does not even come from those on the streets who are burning buildings, or those on the streets who are running people down, or those on the streets who are yelling slogans that have nothing to do with African-Americans, but rather with Israel, Palestine, Jews, capitalism, you name it. The real problem I see is with The New York Times, which no longer tolerates dissent. The most remarkable episode in the past couple of weeks was the firing of the op‑ed editor of The New York Times and the demotion of his deputy. I have written dozens of op‑eds for The New York Times. Today, The New York Times is unlikely to publish an op‑ed by me. Many mainstream media will not publish any dissenting views that disagree with the mainstream left. The idea that the editor of The New York Times would be fired for publishing a column by a distinguished United States senator, Senator Tom Cotton, a former student at Harvard Law School, is shocking. I do not agree with a lot of what Senator Cotton said. But the idea that The Times publisher would give in to the mob in his own newsroom and eliminate the distinction between news and opinion by allowing others to tell him whose opinions are to be published on the op‑ed page of The New York Times. I am a skeptic. I read. I want to see data analyzed. I want to see an opposing point. That is what op‑ed pages are for, to present opposing points of view. The Times has taken the "op" out of "op-ed." I think the last thing The New York Times wants is for people to come to their own conclusion because The New York Times bars dissenting points of view. It is so anti‑newspapers, so anti‑media, so anti‑First Amendment spirit. The cancel culture is moving from the extreme to the mainstream. I too have been victimized by the cancel culture. The 92nd Street Y where I spoke for 25 years — I am the second-most-frequent speaker after Elie Wiesel — has canceled me even though they have acknowledged that the accusation against me was made by a woman I never met, never heard of. I have emails from her own lawyers who say this. For the 92nd Street Y, a false accusation is enough to cancel me. I was not allowed to speak in defense of Israel from the 92nd Street Y, because they do not want their viewers and their listeners to hear from people who are victims of the cancel culture. I see this as so dangerous whether you are a liberal or a conservative. On college campuses today, I cannot speak without having efforts made to try to silence me, sometimes by violence. When I spoke at Berkeley, Antifa came out and tried to prevent my speech from going forward. The same has happened in other places. When I spoke at John Hopkins University, a Hitler mustache was painted on my face, and swastikas were put on the program announcing my speech. People from the hard left do not even want to hear from people on the center-left. We are the enemies of the hard left, which is why I wrote my book, The Case for Liberalism in an Age of Extremism: or, Why I Left the Left But Can't Join the Right. I think I speak for many people about the frustration we experience, the homelessness we experience in today's political world. America has thrived at the center — the conservative center, the liberal center, but the center. Our competitive advantage has been historically that we have not been seduced by the extremes. Compare us to France, Germany, Spain, or many South American countries where the arguments were not between centrist liberals and centrist conservatives, but the arguments between communists and fascists. In the 1930s, we saw the death of center parties in Europe, in France, in Italy and in Spain. It was, again, the fascists versus the communists, and the fascists won. Who knows who would win in the United States if we ever saw a situation between fascism and communism? America would not benefit from either of those extreme "isms." I am afraid we are moving in that direction. I worry about what the platforms of both parties will say in the upcoming election ‑‑ how far left the Democrats will move, how far right the Republicans may move. Both want to attract their base and want to broaden the base as much as possible. You do not broaden your base when you stay at the center, at least that is what is thought. I do not agree with that. I think the party that is seen as the centrist party will win future elections. The party that seems the party of stability, the party that opposes extremism on both sides, is likely the party that will win. I think America craves today a kind of moderation, a kind of stability and centrism. We shall see in November what happens. I also worry about the November election. What if the virus comes back and it is hard to have people come to the polls? Can we really have an election online or by mail? What if the virus becomes so serious that mail deliverers have to stay at home? We are facing a potential crisis in democracy. Hopefully, the virus will have abated by that point and we can all go to the polls and vote for whom we choose. I am not here to place blame. There is blame on all sides. I place the blame squarely at the foot of the extremists, the people who are taking advantage of tragedies such as the death in Minneapolis and other places to promote their own brand of extremism. I think we live in very troubled, dangerous times. Nobody can ever anticipate unpredictable events — such as those of the past several months, a pandemic that nobody could have anticipated with economic consequences that nobody could have anticipated. The death in Minneapolis, which provoked worldwide demonstrations, which in part have been hijacked by extremists on both sides. These are events that could provoke very serious problems in the democratic process in America. It could also have impacts on the legal system, on our courts. Will the courts be able to function effectively in the face of crowds? Take, for example, what happened in Minneapolis. After the man who was on the videotape putting his knee on the neck of the African-American man, George Floyd, after he was initially arrested and charged with third-degree murder, which seemed, on its face of it, to fit the videotape — reckless disregard for human life — the crowds pressured the prosecutor to up the charge to second-degree murder. Which, as a scholar of criminal law, does not seem, at least on the face of it, to fit the facts or the law. Prosecutors and political agendas tend to follow the crowd. We are the only country, the only Western democracy, the only one that elects prosecutors. It is an outrage that we have elected prosecutors in this country. No other democracy makes its justice system so politicized. In every other Western democracy, prosecutors are civil servants who are appointed based on experience and expertise. Their politically neutral job is to simply do justice fairly, not to respond to the passions of the voters. It is not helpful if we have prosecutors who put their finger up to the wind and say, "What will better help me get re‑elected? Should I overcharge or undercharge an alleged offense?" The combination of elected prosecutors and elected judges has made our legal system far too political. Too many decisions are made by people, crowds, and pressure groups. When you combine four aspects of our system — prosecutors are elected, judges are elected, and juries are ordinary, lay people, and the judges who control the juries are often subject to re‑election — the risks of our justice system being turned over to the masses, to the mobs, to the crowds, to the chanters becomes all too real, and our system of checks and balances becomes weaker. Remember that when America was founded at the end of the 18th century, the greatest fear was of the mob. We were experiencing a little later on in France with the revolution, and with the killing of so many innocent people in the name of the revolution. The framers created a system of checks and balances that were supposed to check, not only each branch of the government, but also the public, the voters. There were no direct elections of senators. There was no direct election of the President. The Senate was to be appointed by state legislatures and senators would be of equal number in the largest state and the smallest state as a way of checking the power of the larger states. Many of those checks and balances have over time been eliminated, mostly for the good. We now have a much broader electoral base, many more people vote. At the time of the framing, women did not vote, blacks did not vote. In some states Jews did not vote. You had to be a white, Christian landowner. Now we have broadened the basis for election, but we have failed to check, in our justice system, the role of the mob. In China, some years ago, I was invited to go to the trial of a man who was accused of stealing some items. After the evidence came in — you had evidence from the prosecution, the defendant testified — and then the judge ordered the doors opened. Hundreds of people poured in from the streets. The judge said, "Now we'll hear from the masses." The masses started yelling, "Convict! Convict! Convict!" Of course, the judge convicted, because the masses were the ones in a communist country who had control over the justice system. I never want to see that happen in the United States of America. We are living in difficult times. We are living under difficult pressures. It is very hard to be a dissenter today. If you are a dissenter today, you risk being canceled. If you are an editor who is willing to publish dissenting material, you risk being fired. If you are a dissenter today in a crowd, you risk being beaten up. Look at the mayor of Minneapolis who said he was willing to defund the police. A stupid idea that would harm mostly disadvantaged, poor people. If there were no police, if the police were defunded, wealthy people would hire private security guards, but the people who cannot afford private guards need to have a well‑funded police force. I am in favor of extra funding for the police. Give them better training. Teach them how to subdue people without using lethal force. All of those are good things, but the idea of defunding the police, of abolishing the police force in cities in America, is an invitation to violence and is the first step toward some kind of anarchy, which none of us wants to see happen. Question and Answer Q: George Floyd's family appealed to the UN to intervene. What are the chances of UN troops invading US soil? And can the USA defund the UN? They seem to hate the US and Israel. Professor Dershowitz: It is a good question. I was a big supporter of the United Nations when it was first established. I had worked for Arthur Goldberg when he was a justice to the Supreme Court. I was his law clerk. When he became the United States Ambassador to the UN, he asked for my help in helping to draft Resolution 242, which was basically the peace treaty that ended the 1967 Six‑Day War. I was a big supporter of the UN, I belong to the United Nations Association. Obviously, since the 1970s, it has turned viciously against Israel and against the United States. The UN, of course, would have absolutely no jurisdiction over a domestic matter in the United States. It could not send troops, it could not even legitimately pass a resolution. The problem with the UN is not that it passes too many resolutions, but too few. It never attacks its favorite countries. It applies a double standard of injustice. It has devoted more time to condemning Israel than all the other countries of the world combined. Let us see what it says about recent reports concerning murders in Iran of gay people, for instance the recent murder of a 14‑year‑old by her father as an honor killing. Let us see what it says about so many of the violations of human rights around the world. Well, do not hold your breath. It will say nothing. It will focus only on Israel and the United States. There is a case to be made for the United States withdrawing and defunding. I think the current Secretary‑General of the United Nations is trying very hard. He has done a much better job of trying to create some kind of equity and equality in resolutions, but he has not yet succeeded. We have withdrawn from the UN Human Rights Council, which is really a Council on Human Wrongs, dominated by some of the worst abusers of human rights. In fact, a few years ago I attended a UN meeting in Switzerland when the guest of honor at the United Nations Human Rights Council was Iranian President Mahmoud Ahmadinejad, a Holocaust denier and a vicious opponent of human rights. By the way, he is running for president of Iran again. Do not expect condemnation from the United Nations. I think the United States should carefully review its commitment to the UN. We have a very good ambassador to the UN. We had a previously very good ambassador to the UN who speaks the truth to power. Let us keep a careful eye on what is going on at the United Nations and not allow it to exceed its jurisdiction. Q: 1968 was a period thought of as revolutionary. The 1930s had a substantial communist and fascist movement in the US. The country survived those periods as a strong, prosperous democracy. Do you see the current movement as revolutionary? Will it dissipate or deepen into broader civil strife? Is it the moment that America's luck and special features run out and it devolves into a weak and hopelessly divided country? Professor Dershowitz: What a great question. We did have fascist parties in the United States. I live on the east side of New York, and my neighborhood was right close to what was called Germantown, which had a very large Bund contingency, and they filled Madison Square Garden with Nazis doing "Heil Hitler" salutes and wearing Nazi regalia as late as the late 1930s. Even up until Pearl Harbor. Of course, we had a significant but never large communist presence in the United States in those days, too. I think we were always blessed because the Depression could have easily led to the same kind of fight between fascism and communism as we saw in France and Spain, and even in England to a lesser degree. President Franklin Delano Roosevelt, the deeply flawed president, made lots of mistakes. But his New Deal pushed America to the center. It pulled the rug out from under a nascent communist movement because it gave Americans social security and protections of other kinds. We survived the small amount of fascism and communism. I think Pearl Harbor obviously ended the fascist movement in America and those Germans who supported it. By the way, not only some German Americans, some, supported fascism, but some Italian Americans, some, again, a small number, supported Mussolini. We are a free country and people are free to support whomever they choose to support. I was never in favor of making it illegal to be a member of the Communist Party or to be a member of the Fascist party. I lived through McCarthyism. I remember what happened in the '50s as a result of that. I do not think we are at that moment. I think we are closer than we were, in many respects, to the 1930s. I have to tell you if we were to sink into a deep, enduring depression, and if we were not able to lick the coronavirus and develop a vaccine, and if the virus were to spread even more lethally around the country and require the continuous closing down of our economy, there is no predicting what could happen. I hope we are not there, but if we were to experience a worse pandemic, worse economic situation, worse racial tensions, all of those could lead to a crisis for democracy, which is always very fragile. Indeed, I think the extremists on the hard left are hoping that happens so that they can try to attract other people to their extremist anti‑American agenda. The people on the extreme hard right ‑‑ I'm not talking about conservatives, not at all — I am talking about the survivalists, the militia people, the virulent white supremacists, anti‑Semites. They would love to see a revolution and they, of course, have the guns. The people on the hard left have the Molotov cocktails. Both are wrong, both are bad. The idea that two young lawyers, it was shocking to me, one of them at a big firm, would throw a Molotov cocktail into a police car, even if it was an uninhabited police car. We know that in other instances, there were policemen in the car and in the vicinity when people threw potentially explosive devices. Look, I'm a liberal criminal defense attorney. I cross‑examine policemen on the stand all the time. I am an admirer of the police and the FBI. I have had my differences with individual FBI agents, certainly, and with individual policemen, and with individual prosecutors, but it is folks at the front line of law enforcement that keep us civil and keep us peaceful. If you defund the police, you increase the power of the lawless. You increase the power of the extremes on the hard right and the hard left. We have to support the police. Our system of checks and balances is very fragile and was endangered this year, I believe, by the Democratic effort to impeach a president against whom I voted in the 2016 election. I think that endangered our system of checks and balances by trivializing the impeachment power of the Constitution, which the framers wanted to limit to cases of treason, bribery, or other high crimes and misdemeanors — not allegations of political abuse of power or political obstruction of Congress. That was never the intent. That effort weakened our checks and balances. The New York Times' failure as an institution weakens our external checks and balances. We used to have the media serving as checks and balances on the excesses of government. Today, The New York Times follows the crowd rather than allows dissenting views to be express. My disappointment with The New York Times, with National Public Radio, with CNN, which censors the news horribly, and with many other mainstream media, is that they are failing to serve as checks and balances. I also think the church is failing. There was an op‑ed in The New York Times yesterday by a woman placing all the blame for our problems on white Christians, and she quotes one of the great paragons of Christianity, The Reverend Daniel J. Berrigan. Do you remember The Reverend Berrigan? A virulent anti‑Semite, who called Israel a criminal Jewish community? Blamed the Vietnam War on the Jews, fomented anti‑Semitism, and The New York Times publishes a piece praising The Reverend Berrigan. Now I want them to publish that piece because I do not believe in censorship, but that piece was 10 times more provocative, 10 times worse, 10 times more inaccurate than anything published by Senator Cotton. Q: You have been a principled contrarian. Is there any hope for our country to find its middle ground again when ordinary people are terrified now even to approach the topic of race for fear of being labeled, sidelined as you yourself have been in many fora? Professor Dershowitz: Good question. Unfortunately, today it takes courage to speak out on divisive issues in America. To speak out on issues of race. To speak out on issues of sex and due process and free speech — you endanger your career if you do it. You endanger your standing and your status. Being principled today is very difficult to do. Throughout my life, people praised me for being principled. I did not deserve the praise because earlier in my life, it took no courage to stand up for Israel, to stand up for democracy, to stand up against suppression of free speech, to stand up against excesses of race‑specific affirmative action programs. It did not take any courage to do that. Unfortunately, today, it not only takes courage, I think you have to be somewhat foolhardy. I have to tell you, there are members of my family and my friends who urge me to be quiet. Who say, "Look, you are too provocative. Look what has happened to you. The 92nd Street Y will not allow you to speak. The New York Times will not publish your op‑ed. CNN has banned you. All because you maintain a principled willingness to speak on behalf of the Constitution without necessarily taking partisan political sides." I worry for our country. In a way, I am a perfect example of the cancel culture, of how my reputation has been tarnished by people on the hard left, and by some on the hard right. People on the hard right always hated me, but because of my stands on principle the hard left has also turned against me. I have been accused of all kinds of terrible things and as a result of speaking on forums that others disagree with. My point is, you have to get your views out there for all to hear. Because the basic saving grace of democracy is the people. As long as we can get our message out to the people, hopefully, the people will come down in the center and understand that their interests are best served by going back to the days when the debates were between liberals and conservatives at the center, rather than extremists. I worry that our voices are being cut off and that we cannot get access to the media anymore. Q: Do you think there will be a shift from the center‑left's being appalled at the current situation, such as defunding the police, so that they would considering leaving the party and voting for Trump? Professor Dershowitz: It's a complicated question. I think there are many Democrats who are very upset. If the platform of the Democratic Party were ever to include defunding the police, which I believe it will not, but Bernie Sanders might push in that direction. It also depends on who Biden nominates to be the vice president. If he nominates Elizabeth Warren and she tries to move the party further to the left, I think we will see significant defections. President Trump is a very divisive president. For better or worse, I am not commenting at this point on the politics of it, but he is divisive. There are people, you saw it in the papers the other day, many Republicans said they would not vote for President Trump, but they could not vote for Biden either. I think we are going to see people voting for the Libertarian candidate, people staying at home. I do not think you can stay at home in an election. You have to come and vote. A lot of people will feel the same way I feel: homeless, not comfortable in the current Democratic Party, not comfortable in the Republican Party. In the last election, 2016, a great many Americans did not vote for a president; they voted against a president. They voted against Hillary Clinton, thereby casting a vote for President Trump, or they voted against President Trump, thereby casting a vote for Hillary Clinton. The number of people who enthusiastically cast the vote for Trump or for Clinton was less than in previous elections. I think we are going to see something similar to that in the 2020 election, but look, first, we have to have a 2020 election. It has to be fair. It has to be open to everybody. We have to have massive voting, and let the people decide. Q: Professor Dershowitz, as a lifelong liberal in the truest sense of the word, do you not feel that the Democratic Party has left you and all others similarly situated; would you consider moving over to the Republican Party, the party of Lincoln? Professor Dershowitz: Look, if the Republican Party were like the Conservative Party in Great Britain, I would join it in a minute. The Conservative Party in Great Britain supports a woman's right to choose, supports gay marriage, supports environmental controls, supports reasonable gun control, opposes the death penalty, and supports many aspects of what are the traditional, non‑political, liberal agenda. They are obviously to the right on economic issues and foreign policy issues, but were I living in Great Britain, I would vote Conservative. Obviously, I would not have voted for a Jeremy Corbyn. I would have voted for Boris Johnson. Today's Republicans are hard for liberals to join, because of their views on abortion and gay rights. I write about this in my book, The Case for Liberalism. My brother‑in‑law is a brilliant person who votes Republican, even though he supports all the liberal elements. What he says is: "Look, we have won gay rights. We have won equal rights for blacks. We have won many of the other issues. The issues that are now more important are the fight against terrorism, the fight against extremism." He believes the Republicans do a better job on that. I understand that argument, and that is why I never criticize friends of mine who vote Republican or who vote Democrat. I am on Martha's Vineyard now where it is easy for me to socially distance because nobody wants to see me or talk to me — for the fact that I defended President Trump in front of the United States Senate. By the way, I was told I was the oldest person ever to argue an impeachment case of a president. It is nice to have been the youngest professor in Harvard's history and the oldest person ever to argue against the impeachment of a president. As the result of taking that on — I thought it was patriotic and based on the Constitution — old friends of mine, people whose kids I recommended to college, people whose kids I helped bail out of jail at 3:00 in the morning, people whose fathers and mothers I helped represent pro bono [free of cost] when they were in trouble, will not talk to me, will not have anything to do with me. They are socially distancing from me without regard to the coronavirus, but that is the price you pay for principle today. I am very happy living in my house with my family on Martha's Vineyard, taking my walks every day, writing three or four op‑eds a week, and I will continue to do that without regard to how I'm treated on Martha's Vineyard. The idea of making a transition from the Democrats to the Republicans, I am not there yet. When Keith Ellison, who is now the Attorney General of Minnesota, was running to become chairman of the Democratic Party, I issued a public statement saying I would leave the Democratic Party if he had been elected — because he is a Farrakhan supporter, has a history of association with anti‑Semitic causes. He lost the election, but he is now an Attorney General. It is an open question. Right now, as I sit here today, I am a liberal Democrat who is trying very hard to keep the Democratic Party bipartisan on the issue of Israel, and bipartisan on so many other issues of importance to all of Americans. If I fail, if the Democratic Party moves even further away from where I stand, obviously I have an open mind on these issues. Q: You mentioned the impeachment and not following the Constitution, etc., but we now know that Adam Schiff, his cohorts, and others actually lied, and slandered and libeled the President of the United States in the allegations they made regarding the testimony they gave in committee. Is there really no recourse under the law, other than the ballot box? Professor Dershowitz: Great question. There is no recourse for senators and congressmen who lie in the course of their work. The Constitution provides for immunity, but there is recourse against the media for lying. Take, for example, CNN. I answered a question put to me by Senator Cruz, whether or not a quid pro quo [a deal, "this for that"] is enough to impeach a president. I said, "It depends on the quid pro quo." If there was anything illegal about the quid pro quo, of course a president can be impeached. But just because a president does something legal to get himself re‑elected in what he believes is the national interest, however, that is not impeachable. I clearly made the distinction between legal and illegal. CNN doctored the tape. They edited the tape to take out "illegal" and had me saying that a president, even if he does anything illegal, cannot be impeached, that a president is free to do anything he wants, legal or illegal. That was clearly defamatory and I am trying to put together a legal team to consider suing CNN for defaming me and trying deliberately and willfully to destroy my reputation by doctoring a tape, by changing a tape and making me say exactly the opposite of what I said. CNN — unlike Adam Schiff and others who do have immunity for lies they told on the floor of the Senate — does not have immunity. I am seriously considering, if I can put together a legal team and fund a legal team, to sue CNN to try to hold them accountable for doctoring tapes. Can you imagine? What could be worse for a journalist or a station than to doctor a tape to make you say the opposite of what you said? Then you had many of the commentators saying explicitly, "Alan Dershowitz has said that even if a president does something illegal, he can't be impeached." I said exactly the opposite. If a president does something illegal, he can be impeached. But that is CNN. How do we hold the media accountable? I never expected I would be spending the last years of my life and career bringing lawsuits, but I am now contemplating a lawsuit against Netflix for falsely accusing me of having sex with a woman I never met, never heard of — we have audio tapes and emails and manuscripts in which she admits, her lawyers admit, that she never met me and could never have met me; and yet Netflix runs this and does not publish what I gave them, all the material showing that I could never have met this person. I am going to be spending quite a bit of time in court these days, defending my reputation. Hopefully courts remain an institution open to people who have been victimized by false accusation. The framers of our Constitution intended that, the First Amendment permits it. When the false accusation is done with malice, and of course, both CNN and Netflix did it with malice. I think it is important for the First Amendment to hold irresponsible media — powerful, irresponsible media — accountable. Checks and balances also include using the courts to check the power of the media. (*From a briefing to Gatestone Institute on June 9, 2020) | 
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