All Episodes
Previous Next
March 8, 2020 - The Ben Shapiro Show
01:05:03
Alan Dershowitz | The Ben Shapiro Show Sunday Special Ep. 85
| Copy link to current segment

Time Text
The left knows the truth, with a capital T. The truth is if you're a white male, you're guilty.
If you're a woman of color, you're a victim.
Alan Dershowitz is one of the most famous legal minds of the last half century.
After graduating first in class from Yale Law School in 1962, Dershowitz clerked for Supreme Court Justice Arthur Goldberg.
Just a few years later, at 28, he became the youngest person at the time to ever become a tenured professor at Harvard.
He then went on to defend some of the most high-profile defendants in the history of the country.
From O.J.
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.
But the one that has arguably drawn the most controversy is one in which his defendant was not accused of any actual crime.
In January 2020, during the impeachment trial of President Trump, Alan took the stage to present the case against impeachment.
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.
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.
And welcome to the show.
This is the Ben Shapiro Show Sunday special.
Today, we are joined by Professor Alan Dershowitz.
Just a reminder, we'll be doing some bonus questions with Professor Dershowitz.
The only way to get access to that part of the conversation is to pay us money and become a subscriber.
Go over to dailywire.com, become a subscriber.
You'll have access to all of the full conversations with every one of our awesome guests.
Professor Dershowitz, thanks so much for stopping by.
My pleasure.
Thank you.
Well, we start with the obvious question.
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?
How did this happen?
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.
I've always been a neutral civil libertarian.
Sometimes my civil liberties lands on the side of the left, and then they love me.
And then sometimes my civil liberties lands on the side of the right, and they love me, and the other side hates me.
For example, I started writing my book about impeachment when Hillary Clinton looked like she was going to be elected.
And the name of the book was called, The Case Against Impeaching Hillary Clinton.
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.
But I make the same argument.
Just change the name of the book from Clinton to Trump and now I'm hated by the hard left, loved by the right.
I deserve neither.
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.
So, do you think that something has happened within the Democratic Party that has changed?
Because, again, it wasn't just that you were a Democrat for most of your career.
You're still a Democrat, presumably.
The real question is, what has changed such that the hatred for you is so strong?
Is it just the association with Trump or did it start before that?
Because it feels like it started a little bit before that.
I think so.
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.
And I'm just not that kind of a person.
And I put politics way behind civil liberties, due process, the Constitution.
And so I think Within a few years, it became obvious I wasn't their guy, and I'm treated like a traitor.
You know, they don't hate Jay Sokolow or Pat Cipollone or Ken Starr.
It's expected.
But me?
I'm a liberal Democrat.
How dare I defend the president?
Bob Strum yesterday said it was disgraceful.
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.
I defended the worst criminals, the worst people.
I defended the right of Nazis to march through Skokie.
I defended the rights of communists.
When I was in college, even though I hated communism, that's what a civil libertarian does.
I know.
Now Bernie's going to be elected.
I mean, that was a bad decision.
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.
But first, even though we're talking with Alan Dershowitz, let me be real about this.
There's lots of crime, lots of crime everywhere.
And this is particularly true in Los Angeles, where governance is terrible.
I know in my neighborhood, we've had a series of breaking, entering crimes.
It's really bad.
This is why I rely on Ring to keep my property safe.
Not only does the Ring app allow me to know when there's crime in my area, but also Ring gives you protection at every corner.
It helps you create custom, affordable security for your home.
Ring's video doorbells let you answer the door and check in on your home anytime, from anywhere.
So you can protect your family, pets, property.
With Ring's outdoor security cameras, you can check in on every part of your house, so you'll never miss a moment.
Ring helps you stay connected to your home anywhere in the world and detects motion when people come onto your property.
You get notifications on your phone, your tablet, your PC.
You can see, hear, and speak to visitors in real time from anywhere and get peace of mind knowing that your loved ones are safe.
Get a special offer on the Ring Welcome Kit when you go to ring.com slash ben.
The Welcome Kit includes the Ring Video Doorbell 2 and Chime Pro.
It's all you need to start building custom security for your home today.
Just head on over to ring.com slash ben.
That's ring.com slash ben.
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.
Do you think that the Democratic Party has a future if they keep throwing out people who are middle-left or center?
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?
Well, that would be the worst.
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.
I would hope that the Democrats would recognize that the fate and the future of America lies with the center.
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.
You know, in the old day, I would have conversations like I'm having with you with Bill Buckley.
And he called me his favorite liberal.
I was his favorite.
He was my favorite conservative.
We would have good, rational conversations.
We disagreed about fundamental issues, but we could talk to each other.
Can't do that today with Democrats.
When I did my argument in front of the Senate, nobody ever took it on on the merits.
Larry Tribe said it was bonkers.
People said I was getting senile.
People attacked me personally.
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.
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.
But they don't like where I came down in this case, so they attacked me personally.
The ad hominems are inexcusable.
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.
The case that you made in front of the Senate is not the case that CNN said you made in front of the Senate.
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.
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.
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?
First of all, it wasn't taken out of context.
That happens all the time.
It was doctored.
It was as if I said the following, let me tell you now what I don't believe.
I don't believe a president seeking re-election can do anything.
And CNN ran, a president seeking re-election can do anything, excluding the fact that I said this is what I don't believe.
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.
I talked about corrupt motive.
I talked about kickbacks.
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.
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.
Some said, I said a president could shoot his opponent.
A president could lock up all the Democrats.
A president could tamper with voting machines.
It's exactly the opposite.
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.
Look, either they didn't know what I said, I don't think that's the case.
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.
And they deliberately omitted what I had said about criminal conduct to make it sound like I was saying a president can do anything.
And then everybody followed suit.
Everybody on CNN said that's what Dershowitz said.
And they knew I didn't.
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.
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.
And to pretend that that's impeachable activity, which is what the Democrats effectively were doing, is not impeachable.
I gave that example.
I gave that example.
I said, let's assume the following.
President Obama promises he's going to bomb Syrian military if they use chemical weapons.
They use chemical weapons.
His advisor comes in and says, ooh, wait a minute, before you start bombing Think about what it will do to your election.
The left will turn against you, and Obama says, oh my God, really, I shouldn't bomb.
I'll break my promise.
Would that be impeachable?
Of course not.
And I don't limit it to presidents.
I said any elected official always has mixed motives.
They care about the national interest, but they always have an eye on their political future.
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.
There is nobody who would disagree with that.
Yet Adam Schiff pretended to disagree with it.
Nadler pretended to disagree with it.
Schumer pretended to disagree with it.
All three of them were lying through their teeth.
And I wrote that in the Wall Street Journal.
I got a lot of criticism.
How dare you challenge the motives of people?
Well, I am challenging their motives.
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.
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.
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.
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.
That's just what we call bad judgment.
Then he's up for election.
And that's why we decided to vote for based on bad judgment.
But that's not impeachable conduct.
The other example I gave is Joe Biden says, unless you fire the prosecutor, I'm withholding a billion dollars.
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.
He works for Burisma, maybe it'll call off the investigation.
That wouldn't change his innocent conduct into culpable conduct.
Doesn't matter whether you're president, vice president, or anybody else.
Every politician always has mixed motives.
That's what I said.
Everybody understood it.
They looked me in the eye, they knew what I said, and then they deliberately lied about what I said.
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?
What would a president really have to do and be caught doing in order to be impeached?
Richard Nixon.
Very simple.
He's the only case in American history where a president should have been impeached.
He committed repeated crimes.
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.
They named him as an unindicted co-conspirator.
Unfair!
If you're named as an unindicted co-conspirator, you can't fight back.
You don't get a trial.
So as a civil libertarian who favored his impeachment, I oppose that back in the 1960s.
Look, 70s.
You can argue about anything about me, but one thing you can't argue about is my consistency.
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.
I never care which side it comes down on.
Right, left, center, Republican, Democrat.
I always care about civil liberties.
And people understand that, but they pretend that I've changed.
Suddenly I've become a reactionary right-winger instead of the liberal left-winger that I always was.
Well, that does feel like a difference in moral system that has happened in the United States.
I mean, it used to be, even when I was growing up, that people would say, it's a free country.
You can sort of do what you want.
And people don't tend to use that phrase too much anymore.
There's a lot of talk about things that you shouldn't say.
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.
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.
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.
And still we're told that Kavanaugh is some sort of racist.
Right.
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.
You're a white old male.
I mean, that's the way journalists now approach this problem.
It's all identity politics.
It doesn't matter what the evidence is.
It matters who you are, not who you are, what you are, what your identity is.
That determines whether you get free speech.
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.
It has nothing to do with our ideas.
They refuse to take us on based on our ideas.
It's all about who you are.
How dare you exercise your white privilege by coming on campus and telling us what you think.
So, what do you think the future is for, for due process?
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.
That seems like it's going completely by the wayside.
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.
He didn't deserve due process.
And you've seen the definition of racism itself morph and change formally.
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.
Or a sexist or any otherist.
You can't be an anti-Semite, either, if you're a member of an oppressed group.
No, there's no question about that.
Look, deep down, not very many people care about due process.
People use due process and free speech for me, but not for thee.
They generally tend to support it when it helps their side.
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.
Today, it's the conservatives who want free speech because their rights are being violated.
What we need are a core of people who support due process and free speech regardless of who benefits and who loses.
The number of those people are very small.
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.
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.
Let's talk about that in one second.
First, let's talk about the importance of preserving your memories.
Without your memories, what are you?
Your memories are incredibly important to making you who you are as a person.
And here's the problem.
You can instantly lose those memories if they're out in your garage.
You got a bunch of old film reels.
What exactly are those doing out there?
You got a bunch of old VHS tapes.
You don't even have a VCR anymore.
You got old photos, but they're getting waterlogged.
Well, why not take all that stuff and get it digitized?
This is where Legacy Box comes in.
Legacy Box is a way for you to easily and affordably digitally preserve your past.
The process from start to finish, it's incredibly easy.
You just pack it up and send it over.
Their team digitizes everything by hand, and then you receive perfectly preserved digital copies on a thumb drive, DVD, or the cloud, ready to watch, share, and enjoy.
Plus, they keep you up to date with regular email updates throughout the digitizing process.
Legacy Box is the world's largest digitizer of home movies and photos, and they've helped over 750,000 families digitally preserve their past.
I've been using Legacy Box myself.
My parents had a bunch of old stuff out in their garage.
I took all of it.
I'm sending it in to Legacy Box.
I can't wait to see what it looks like once it's done.
I'm a religious Jew.
I'm very socially conservative.
I'm the purest person I know when it comes to matters like this.
Go to LegacyBox.com/Ben to get an incredible 40% off your first order.
Buy today to take advantage of this exclusive offer and then send in when you're ready.
Go to LegacyBox.com/Ben and save 40% while supplies last.
Okay, so let's talk about the Me Too movement.
It's been fascinating to watch the boundaries of the Me Too movement move.
So I am somebody who is obviously very social.
I'm a religious Jew.
I'm very socially conservative.
I've always been.
I'm the purest person I know when it comes to matters like this.
I was a virgin until I was married.
Like the whole deal.
Well, you're the only other one.
I grew up as an orthodox Jew.
That's true.
You know, we didn't have learner's permits for marriage license.
You had to learn the night you were married.
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.
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.
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.
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.
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.
Of course you would never believe all anybody based on their group identity.
You wouldn't even believe all rabbis or believe all priests.
Why in the world would you believe all anybody?
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.
And obviously, since you are the expert in criminal law, this is incredibly dangerous.
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.
Of course not.
I never met the woman, ever, under any circumstances, who accused me.
We discovered hidden emails that she tried to hide with her lawyers, in which she admits she never met me.
A hidden manuscript, which was sealed, in which she said she saw me once, speaking to Jeffrey Epstein about business, but never met me.
Told the FBI she never had sex with me.
Told her best friends she never met me or knew me.
Her lawyer, on tape, Recorded, says, she's wrong, simply wrong.
She couldn't possibly have met you in the places she said she met you.
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.
The judge struck it, the lawyers withdrew it, admitted they were wrong in filing it, and then along came the Me Too movement.
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.
And the accusation is trouble.
And we don't want trouble, so you can't ever speak here again.
So what should we do about that in the social sphere?
Because that's really what we're talking about here.
In the criminal law sphere, obviously, you're not in the dock.
You haven't been accused formally of anything.
I wish I were.
You know, I wrote an op-ed for the Wall Street Journal saying to the FBI, please investigate me criminally.
Conduct a criminal investigation.
That's the only way I can possibly clear myself.
You know, the rule is so absurd now.
She can accuse me of anything.
She can accuse me of having sex with her when she is two years old.
She can accuse me of anything.
And as long as she does it in papers that are law papers, she is exempt from being sued for defamation.
But if I then deny it, she can sue me for defamation because by denying it, I have called her a liar.
So we now have a legal system that incentivizes false accusations for money.
The trick is easy.
Accus a prominent person.
He'll then deny it.
You sue him and he'll give you money.
And if I had anything to hide, I'd pay money.
I have nothing to hide.
Of course, I won't pay a penny.
So what do we do exactly about the kind of perversion of the system?
Because this is what is happening is that it seems like the social sanctions are being brought to bear in a non-legal sense.
And so you'll say, well, my rights are being violated or my speech is being violated.
And they'll say, well, but it's not.
I mean, you're free to say whatever you want.
You're free to do whatever you want.
Nobody's bothering you.
It's social sanctions, obviously.
Social sanctions are perfectly legal.
The cancel culture, which you're obviously talking about, 92nd Street, why deciding that you can't speak there?
Because there's an accusation out there that is unsubstantiated.
Not only insatiated, disproved.
- 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.
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.
Most people can't fight back 'cause most people have something to hide.
Even if you're falsely accused of this, if you have something that you are ashamed of, it will come out at a trial.
So the vast majority of people who are falsely accused can't fight back.
I'm lucky.
I was brought up Orthodox like you.
I've never improperly touched anybody in my life.
I don't hug.
I don't touch.
I don't do any of those things.
For 10 years, I was a professor at Harvard Law School as a single man.
Never went out, flirted, never had a complaint.
50 years, never a complaint.
So I can sue, because I'm not afraid of being deposed.
I'm not afraid of anybody coming up with yet another accuser.
If there's another accuser, it will be a false accuser.
Somebody came to me recently in an extortion attempt.
presumably by lawyers, offering to sell me pictures of myself having sex.
I laughed.
I said, there can't be a picture of me having sex with anybody but my wife.
And they produced the picture, or the New York Times produced the picture.
It was a joke.
It was some old guy that they got off the internet.
Did you look good?
No, no.
My wife looked at it, and she laughed hysterically.
My wife laughed when I was first accused.
She couldn't believe it.
And this woman who accused me, she's accused Al Gore Al Gore's wife of being on Epstein's Island.
They were never on the island.
She has accused Bill Richardson.
She has accused George Mitchell.
She's accused Leslie Wexner.
She has accused Marvin Minsky, the man who developed artificial intelligence.
She's accused everybody.
And she's lied through her teeth.
She said she was 14 when she met Jeffrey Epstein.
Her own work records show that she was 17.
And when he allegedly farmed her out to other people, she was almost 19.
So she's lied about everything, and yet people believe her because she's a woman.
And when I accused her of lying, I committed a social sin.
I accused a woman of lying.
How dare you?
She was victimized.
Maybe she was.
But she's victimized me, and I'm going to fight back.
So, I've asked already, sort of, what do we do about this?
But one of the things that seems so threatening is that, as I say, a lot of this is social sphere oriented.
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.
So it's nothing new.
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.
They should change the laws.
Number one, nobody should be allowed to defame other people behind litigation privilege, because they abuse it.
They use it all the time.
Judge Cabranes, the Chief Judge of the Second Circuit, has written about that, saying, don't believe what you read from court filings.
Court filings don't have the imprimatur of the court.
They're just put in in order to protect themselves from that kind of defamation.
So the law does have to be changed.
I think the First Amendment Law has to be modified as well.
Take what CNN did to me.
That's not protected by the First Amendment and it shouldn't be protected.
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.
Let's wrench out of context.
Let's take out what he said about criminal conduct.
Let's make him say something he didn't say deliberately and willfully.
I don't think that's protected by the First Amendment.
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.
So what exactly would the First Amendment standard then look like?
So under current law, obviously, the First Amendment standard, particularly public figures, is extraordinarily burdensome.
You have to prove willful and malicious.
You have to demonstrate that the person knew that they were saying something that was fully untrue.
That's true.
That's true of what happened with CNN.
Absolutely true.
They knew what they were doing.
So you're not talking about actually changing the standard of First Amendment law?
No, but here's the problem.
What they did is they showed me saying certain things, and I did say those things.
It's like I said, here's what I don't believe, and then they said what I said.
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.
And I think that's right.
Okay, so that seems like a fairly minor change that has already basically been pre-approved by the Supreme Court.
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?
No, no.
I think we start small by looking at people who willfully and deliberately abuse the First Amendment for partisan or personal or financial benefit.
That's where you begin.
And I think we can do that.
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.
They're trying to actually criminalize forms of speech that supposedly victimize a protected class.
And that I'm deeply worried about happening in the United States.
It seems like a lot of the Democratic Party would do that.
Don't know how many justices on the Supreme Court would stand against that in its current iteration.
Obviously, I think that the ones who were appointed by Bush and Trump likely would stand against that.
I have no idea about Sonia Sotomayor.
I have no idea about Elena Kagan.
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.
Do you think that the Supreme Court would actually allow, without a constitutional amendment, hate speech regulations to be promulgated in the United States?
Depends on the regulation, but I think an outright banning of something called hate speech would not survive Supreme Court review.
But, you know, they chip away at it.
What about in a private university?
What about in a public university?
Banning hate speech in the classroom, that would probably be approved.
But in the open forum, I think it's going to be a matter of degree.
But I do think that the banning of hate speech has more legitimacy today on the left.
I don't think the left today would support the ACLU's position back many years ago.
The ACLU doesn't.
Defending the rights of, well the ACLU, forget about the ACLU on free speech.
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?
Forget about it.
The ACLU is now the problem, not the solution, to due process and free speech.
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.
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.
I mean, that was the thing that made you a household name, was the Von Buelow case, or the O.J.
Simpson case, things like that.
I've always wanted to ask you about sort of the criminal justice system, the adversarial nature of the criminal justice system.
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.
That if you're an impoverished defendant and you can't find a great lawyer, you're basically screwed.
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.
How much truth is there to that?
And does that make the case for a sort of European inquisitorial system as opposed to the U.S.
justice system which is adversarial in nature?
The United States system is not adversarial at all.
Ninety-seven percent of cases in the federal courts end in guilty pleas because of what's called the trial penalty.
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.
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.
If you plead guilty, I think I can get you a year.
Now, what's the chances of me winning?
Well, pretty good.
I mean, I think I've got a 25, 30% chance of winning.
Not good enough if there's a 10 to 1 ratio.
So, of course being wealthy gives you the advantage legally, medically, housing-wise, educationally, and every other way.
Why should it be different with the law?
And that's why I do half of my cases pro bono.
I represent half of my clients.
From the beginning, the day I started practicing law, I've done half of my cases pro bono, representing poor people, obscure people.
You don't read about those cases.
And those cases I've had actually more success, because you can have more success sometimes with low visibility cases, than with famous cases.
Famous cases, you have to win in court.
Now we did win Von Bulow, we did win O.J.
Simpson, we did win... I didn't win Michael Milken, who just got a pardon.
So, maybe we did win, ultimately, in the end.
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.
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.
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?
I want to ask you that in one second.
But first, let's talk about sleep quality.
I'm good at a lot of things.
Sleep is not one of these things.
And that's why I need a mattress that is made just for me.
I need the world's best mattress.
And that, of course, is a personalized mattress.
Personalized mattresses from Helix Mattress.
These are the best mattresses.
In fact, I got a Helix Sleep mattress for my sister as well for her wedding.
Helix Sleep has a quiz.
It takes just two minutes to complete and matches your body type and sleep preferences to the perfect mattress for you.
Whether you're a side sleeper or a hot sleeper, whether you like a plush or a firm bed, with Helix there is no more confusion and no more compromising.
Helix Sleep is rated the number one mattress by GQ and Wired Magazine and CNN called it the most comfortable mattress they've ever slept on.
Fact check, true.
That's the first time CNN has ever said anything true.
Just go to helixsleep.com slash Ben, take their two-minute sleep quiz, and they will match you to a customized mattress that will give you the best sleep of your life.
They've got a 10-year warranty.
You get to try it out for 100 nights, risk-free.
They'll even pick it up for you if you don't love it, but you definitely will.
Helix is offering up to 200 bucks off all mattress orders for our listeners right now.
Get up to $200 off at helixsleep.com slash Ben.
That's helixsleep.com slash Ben.
So I'm old enough to remember when you were a bugaboo to the right, right?
I'm not quite that young, but I'm old enough to remember when the O.J.
trial happened.
I remember them wheeling the TV into my public school classroom for the reading of the verdict.
I think I was maybe 10 at the time.
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.
Simpson.
And of course, as everyone who was mainly sentient at the time thought, O.J.
Simpson was deeply guilty.
So yeah, I'm not going to ask you whether O.J.
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.
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?
I think much the same way a Catholic priest defends not turning in A penitent who is admitted committing a terrible crime.
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.
A priest can't do that.
A priest says, no, I'm going to try to persuade you and talk you out of it.
Or a doctor.
My daughter-in-law is an emergency room doctor.
She has almost certainly saved the lives of people who have gone out and done terrible things in the future.
It's a very important part of our legal system that everybody get a defense.
I uniquely get the most difficult cases because I've had some success.
And also as a professor, I can take more of these cases.
Pro bono.
And so I've had a lot of people who I've strongly suspected were probably guilty.
In a couple of cases, I was pleasantly surprised at the end.
Klaus von Bülow, I was presently surprised.
But you know, you talk about not being able to ask me whether or not OJ did it.
When I first, when Bibi Netanyahu, who I've known since he's 22 years old, became prime minister, I was in Israel.
He invited me, my wife, and my daughter to come see him at his new digs.
And we went and we schmoozed and we took pictures.
Then he took me into the little private room and said, Alan, I have a question I've always wanted to ask you.
Did O.J.
do it?
And I said, Mr. Prime Minister, there's a question I've always wanted to ask you.
Does Israel have nuclear weapons?
And he said, you know I can't tell you that.
You know I can't tell you that.
Kavachomer, okay.
So yeah, you did grow up in a Jewish school.
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.
Inquisitorial system, do you think that the U.S. is the best system or do you think that a different system would be better?
I think it's the best system for the United States.
I wouldn't ever try to impose our system on foreign countries.
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.
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.
I think There is an adversarial relationship between a person accused of crime and the state.
And you can't bury that adversarial relationship in paternalism or any other kind of euphemism.
There really is a conflict.
Our job as criminal defense attorneys is to get the best deal.
Jeffrey Epstein, look at that.
I got him a very good deal and I hated for it.
That's my job.
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.
It creates a moral conflict.
I don't sleep well at night when I defend somebody who I believe probably did it.
I've never had a client who's Gone out and done it again.
That is, committed a second murder or done something horrible, horrible.
O.J.
Simpson obviously was convicted of doing something, but it was fairly minimal.
And by the way, I don't take the case.
I don't represent a person twice.
I have a rule.
I have several rules.
I don't represent somebody who is in the business of crime.
I don't represent... I don't want to be the consigliere to a crime family.
I don't represent drug dealers.
I don't represent professional terrorists or people like that.
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?
No.
There'd be a conflict of interest there.
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.
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.
Right.
I would suggest to you actually that your unpopularity on the left began with the intervention in the pro-Israel space long before.
Oh, I think that's right.
The President Trump stuff happened.
People don't know about that because people who don't follow the pro-Israel space don't actually follow the pro-Israel space.
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.
Right.
More the hard left.
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.
And he said, I didn't find it in Mark Twain, I found it in a book by a woman named... Joan Peters.
Joan Peters, whose book had been criticized.
Yeah.
I mean, first of all, we both found it in the same place.
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.
But we both found it in the same place.
But, you know, he accused me of plagiarism.
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?
Why do you think that's being mainstreamed into the Democratic Party?
He got in charge of plagiarism.
He said there was nothing to it.
But that was the first attempt to attack my integrity because I supported Israel.
So why do you think it is that the hard left has turned so far against Israel?
Why do you think that's being mainstreamed into the Democratic Party?
This scares the living hell out of me, frankly.
We start very easily there.
The hard left, the hard, hard left turn against Israel when the Communist Party turned against Israel.
It was as simple as that.
1967, Israel wins the war.
The Soviet Union breaks relationships with Israel.
The Communist Parties all over the world turn against Israel because they're taking orders from Stalin.
It's simple.
Not Stalin in those days, but the Stalinists in those days.
It was as simple as that back then.
Then Berrigan.
I write about this in my book called Defending Israel.
Berrigan, who is a Paragon of the left during the Vietnam War calls Israel a criminal community, a Jewish criminal community.
So you get Berrigan, Chomsky, Finkelstein, Gilad Atzmone, the hard, hard left turn against Israel, and then it creeps into the center left.
And you get people like Peter Beinhart who become enemies of Israel, though they proclaim that they're really Zionists.
J Street, which has never said anything positive about Israel in any of its press releases and and supported the Goldstone report.
And they've now made it possible for Democrats to say, we're not going to go to AIPAC.
Liz Warren says, I'm not going to AIPAC.
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.
I think this is one of the things people are missing.
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.
And that's completely neglecting the history of the Democratic Party, which was wildly pro-Israel throughout at least the early 1990s.
And then it began to move and shift.
You can see this in the opinion polls.
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.
This is particularly true among young Democrats, and Obama obviously facilitated that.
I mean, President Obama was not a fan of the state of Israel.
He hated Prime Minister Netanyahu, obviously.
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.
No doubt about that.
And I think President Obama, for whom I voted twice, I now would reconsider my second vote for him.
He conned me.
He called me into the Oval Office and he said, I have Israel's back.
And I didn't realize what he meant is to put a target on it and stab them.
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.
It was outrageous!
Outrageous!
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.
So I think the Democratic Party now, there's a real danger of losing the bipartisan support.
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.
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.
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.
Well, you left out one.
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.
Let me take one oath here as a Democrat.
Under no circumstances will I ever vote for Bernie Sanders.
Period.
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.
I'm not gonna vote against him because he's Jewish Obviously.
I am going to vote against him because his policies are so deleterious to what has made America great.
America thrives at the center.
We are a great country.
Franklin Roosevelt was one of our greatest presidents because he avoided what was going on in Europe.
In Europe you were either communist or fascist.
The center disappeared.
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.
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.
But Sanders is the extreme on the left side.
So because of my own personal politics, we spend a lot of time here sort of bashing the Democratic Party and the left.
But what do you think the right gets wrong?
Because obviously the title of the new book is that you're not joining the right.
So what do you think the right gets wrong?
Well, you know, we have differences.
You're an unorthodox religious person.
I support a woman's right to choose.
I support gay marriage and gay rights.
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.
So I pretty much go down the liberal agenda when it comes to social issues.
On the other hand, when it comes to foreign policy, if I were in Britain, I'd be a conservative.
It'd be easy for me, because the Conservative Party in Britain follows many of the social policies that we talked about.
But I'm in a great conflict.
I love the evangelical Christians, because they're so supportive of Israel, and they're so respectful of me.
When I speak at Liberty University and I talk about a woman's right to choose, I get polite applause.
When I talk about gay marriage, I get polite applause.
When I mention Israel, I get a 15-minute standing ovation.
So, I feel politically homeless.
I feel thrust out from what Ronald Reagan said, I didn't leave the Democrats, the Democrats left me.
They are quickly leaving me.
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.
I'd love to see a return to kind of Eisenhower Republicanism, Rockefeller Republicanism, but we're not seeing it.
So I want to ask you about sort of your system of values.
So you grew up Orthodox, but obviously you're not Orthodox now.
So what is your sort of religious belief system?
Because obviously you're very, not only identifiably Jewish, but obviously you speak in terms of Judaism a lot.
So where do you hold on this?
Well, I love my Judaism.
I love going to synagogue.
I'm a traditional Jew, but I'm a skeptic.
I'm a skeptic about atheism.
I'm a skeptic about God.
The God I'm skeptical about is the Jewish God.
I'm skeptical about atheism.
I don't call myself anything agnostic atheist.
I'm not an atheist because I'm too skeptical.
I'm skeptical about science.
I'm skeptical.
You took my course with Steven Pinkery a long time ago at Harvard.
You know that I'm skeptical about everything.
I'm skeptical about evolution, explaining everything in biology.
I'm going to die a skeptic.
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.
So my religion is skepticism.
So how do you generate a moral system based on skepticism?
I remember asking this question.
I think I actually raised my hand in your class and asked you this question specifically.
So I wrote a book in answer to your question called Rights from Wrongs.
I know, I read it because it was for your class.
Right, right, right.
So it's a secular theory of the development of rights through experience and history.
My theory is that rights grow out of a recognition of the wrongs.
If you look historically, the civil rights movement goes out of slavery, the post-holocaust movement of human rights around the world.
I think that I'm an experientialist.
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.
And you learn from your mistakes.
And so I think my theory of rights grows out of my understanding of how to avoid wrongs in the world.
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.
I suggested the possibility of a torture warrant, which got me into a lot of trouble with all my liberal friends.
Many of them said, we agree with you privately, but don't ever say that.
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.
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.
If the idea is that we're constantly developing and learning from our wrongs, does that mean inevitably we're going to get better?
Because human history seems to say, no, I want to ask you about that in one second.
First, let's talk about protecting your internet data.
So the reality is you wouldn't leave your front door unlocked at night because somebody might break in and you wouldn't leave your car unlocked on the street.
Somebody might break in.
Why would you leave your internet activity unprotected?
Did you know, for example, that your internet service provider logs every single website you visit?
They can sell that information to ad companies and tech giants who could use the data to target you.
ExpressVPN puts a stop to all of this.
It creates a secure encrypted tunnel between your device and the internet so that your online activity can't be seen by anyone else.
ExpressVPN works on all your devices.
Phones, laptops, routers.
So everyone who shares your Wi-Fi can still be protected even if they are not using ExpressVPN themselves.
The best part is using ExpressVPN is super simple.
You should go try it.
It really is easy.
I've been using it for years myself.
So if you're like me, And you believe that your online activity is your business.
Secure yourself by visiting expressvpn.com slash ben today.
Use my exclusive link expressvpn.com slash ben e-x-p-r-e-s-s vpn.com slash ben and you can get an extra three months for free right now.
That's expressvpn.com slash ben.
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.
We see bad things happen around the world and people justify them routinely.
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.
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.
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?
And my answer is yes.
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.
It's much easier to find agreement on what's a dystopia than a utopia.
Take, for example, a utopia from a labor and economic point of view.
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.
So, So we get a much wider consensus on what's wrong than what's right.
But look, it's a work in progress.
I don't think it's a perfect solution.
When I once argued with Scalia, Justice Scalia, who I became friendly with, that his system of originalists isn't perfect.
It doesn't solve Brown versus Board of Education.
He said, look, it's not perfect, but it's better than the others.
And it's safer than the others.
And he had a point there.
And I think my system may be better than the others, but it's not perfect.
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.
You're talking about morally correct versus morally wrong.
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.
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?
Well, you know, I think there are elements of both.
You know, you had my class with Steve Pinker.
Steve Pinker really believes that we are moving in the right direction.
He's written this brilliant book on how everything has gotten better.
Right, Better Angels, Our Nature.
Yeah, but, you know, having lived through the Holocaust, I was a child, but my family lived through it, many of them were killed.
I just don't see it as a direct line.
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.
You know, the Jewish definition of a pessimist is, oh, things are so bad they can't possibly get worse.
And an optimist says, yes, they can.
So I'm a Jewish optimist.
I think things could get worse, and we have control over our destiny.
We determine whether things get better or get worse.
So you're a religious person in the end.
I mean, that's pretty religious perspective.
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.
I don't buy that.
And I'm not religious in the sense of... I'm a skeptic about everything.
I'm going to get you keeping Shabbos by the end of this interview.
No, no, no.
I love Shabbos.
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.
I think the Sabbath is a fantastic invention.
I just was in the synagogue reading from the Ten Commandments.
And whoever heard of a commandment that says you have to rest one day a week?
It doesn't sound like a commandment.
It sounds like a labor organization, you know, platform program.
But it is a commandment, and it's a very wise commandment.
So you've taught at the law school for decades.
Have you seen a change in the nature of the students who are coming through?
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.
And even I in the last 15 years have seen a massive change in sort of how treatment on campus has been.
I used to be able to speak on campus, no security whatsoever, back in like 2010, 2011.
I remember I spoke at Berkeley in 2015 and it was fine.
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.
I remember.
I spoke on that issue.
It's one word, one word, truth.
The left knows the truth, with a capital T. And if you know the truth, why do you need dissent?
Why do you need opposing points of view?
If you know the truth, why do you need due process?
Why do you need to have a system of determining what happened?
We know the truth!
The truth is if you're a white male, you're guilty.
If you're a woman of color, You're a victim.
We know the truth.
That's what's happening on campuses today.
And universities are no longer places where teachers teach you how to think.
They teach you what to think.
Fifty years of teaching, I think you'll recognize from my class, nobody knew what my personal views were on almost anything.
I would raise question after question.
There was never a right answer in my class.
It was simply a method of challenging everything.
Skepticism about Everything.
Today you have teachers lecturing students what to believe.
And it's propaganda.
it.
It's not education.
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.
Those rights are now seen as a bulwark of a hierarchical system.
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.
I remember Marcuse.
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.
You can just make them up as you go along because that's what they do.
But it's no good.
We don't need free speech.
We don't need due process.
I've never seen that before on university campuses.
Even during the McCarthy period, the people on the right would be apologetic about denying due process.
The people on the hard left aren't apologetic.
They think it's the right thing.
So what do you think is the future of higher education then?
Because I know that we're trying to shovel everybody into higher education, seemingly to less and less effect.
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?
That's what they're doing.
That's what they're doing.
The good students are staying away from majoring in anything but computer sciences, math, economics in some universities.
Basically, universities are two universities now.
You have the serious students.
Who are really interested in learning, and it's mostly in the science side.
And then you have the students who know, in Harvard, you have to work so hard to get a B-.
I mean, it's almost impossible.
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.
If you're a Jewish kid, you can major in Jewish studies and just repeat what you learned in elementary school and high school.
If you're a woman, you can major in women's studies and have all your professors say, wow, isn't that great?
No criticism.
And these kind of ethnic studies programs are so dangerous.
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.
If you're black, you can't take black studies.
If you're a woman, you can't take women's studies.
That's available for other people to learn about you.
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.
But you also have an obligation to learn about other things.
Well, you know, when-- When I was in UCLA, that's how you met the Jewish girls.
You went to Jewish studies class, right?
Well, you'll like this.
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.
It was during the 10 days of repentance.
He said, because he never speaks out in class in support of Israel, though he knows a lot.
And I said, why not?
He said, because I won't ever get a date.
So I started a campaign.
I said, support Israel.
Date a Zionist tonight.
It helped a bunch of Zionists get dates, but it didn't really help the cause of Israel.
So you mentioned your sort of constitutional theory of interpretation and you mentioned Justice Scalia originalism or textualism.
I think, frankly, that Justice Thomas is more of an originalist than Scalia was.
So what is your theory of how the Constitution should be interpreted by the Supreme Court?
I think there are, you know, Scalise said the Constitution's dead, Tribe says it's alive.
They're both wrong.
Part of it's dead, part of it's alive.
The part about 35 years old being president, you couldn't be deader than that.
Of course it's dead.
You can't be 34 and 11 and take the oath of office.
Due process.
The process that is due is an invitation to change what due process means over the years.
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.
And get married?
Oh my God, you wouldn't have gotten one vote for that.
So, of course, due process has to change over time.
Impeachment.
I think it's dead.
I think impeachment's dead.
It should never change over time.
The framers said treason?
Bribery or other high crimes and misdemeanors, meaning other crimes like treason and bribery.
It's dead.
It doesn't change.
In the 19th century, people thought it needed a crime.
The dean of the Columbia Law School said the weight of authority is in favor of you need a crime.
The former justice of the Supreme Court who defended Andrew Johnson, you need a crime.
Suddenly, we've gotten woke and all the professors, when Trump is impeached, say, Crime.
You don't even need a sin.
You can call it abuse of power.
Forty of our presidents have been accused of abusing their power.
They want to normalize impeachment, turn it into a partisan weapon to become part of our political system.
Exactly what Madison and Hamilton rejected.
They said, we don't want to turn into a British parliamentary system where a president serves at the pleasure of the legislature.
And yet that's exactly what the Democrats try to introduce.
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.
I don't know why.
Just charge him with bribery, man.
Or extortion.
Right.
If they'd done that, my argument would have been completely different.
I don't know that I would have argued.
But once they charge them with abuse of power, my God, obstruction of Congress.
Every lawyer obstructs Congress whenever he demands a court order before allowing his client to fall into a perjury trap.
I know I do that all the time.
And so those were two vague General Madison Hamilton would be turning over in their graves.
Moreover, Hamilton said, the greatest danger is that impeachment will become partisan.
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.
The only case for impeachment that ever should have gone forward was Richard Nixon.
So, in the future, do you think that impeachment is going to happen every couple of years?
Not every couple of years, but every decade.
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.
Remember, they were going to impeach Hillary Clinton.
On day one, the Republicans were yelling, lock her up.
This started, in some ways, with the impeachment of Clinton.
Now, Clinton was accused of a crime, perjury, but it wasn't a high crime.
It was a low crime.
It was perjury committed not in his official capacity, holding office, but in his personal capacity.
So with that said, and it seems like the country is getting more partisan, you're hoping for a center.
Do you see that emerging anytime soon?
Not in my lifetime, your lifetime.
I think we'll see the pendulum swing slowly in America.
And I think the rest of my life will be living in a divisive country.
Look, when I turned 75 six years ago, I thought I was going to have such a nice retirement.
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.
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.
Well, again, since apparently this episode is devoted to me trying to get to... I'm going to frum you up before the end.
You want to be popular.
All you have to do is go to a frum shul.
Well, I do.
The synagogue I go to is Park East in New York.
The cantor is this incredible cantor named Helfgott.
The rabbi is this incredible rabbi named Schneier.
And I go there and I like it.
I love the melodies.
I give the Devar Torah.
But I'm a skeptic.
But I'm told rabbis... That's okay.
That's all right.
You can do that.
That's all right.
Well, I do want to ask you one more question.
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?
But if you want to hear Alan Dershowitz's answer, you have to be a Daily Wire member.
So to become a member, head on over to dailywire.com.
Click subscribe.
You can hear the end of our conversation there.
Well, Professor Dershowitz, thank you so much for your time.
And thank you so much for stopping by.
I really appreciate it.
Thank you.
Executive producer, Jeremy Boring.
Associate producer, Katie Swinnerton.
Our guests are booked by Caitlin Maynard.
Host production is supervised by Alex Zingaro.
Editing is by Jim Nickel.
Audio is mixed by Mike Coromino.
Hair and makeup is by Nika Geneva.
Title graphics are by Cynthia Angulo.
The Ben Shapiro Show Sunday Special is a Daily Wire production.
▲
Export Selection