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Oct. 14, 2020 - The Megyn Kelly Show
01:07:15
20201014_alan-dershowitz-on-scotus-epstein-and-oj-ep-10
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Protect Your Home Title 00:02:33
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Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.
Hey everyone, I'm Megyn Kelly.
Welcome to The Megyn Kelly Show.
Today, Alan Dershowitz, American attorney, a legal scholar.
The guy was really the most respected professor at Harvard Law School for 50 years.
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Court Packing and Religion 00:15:28
And now, Alan Dershowitz.
Professor Alan Dershowitz, so great to have you here.
What a pleasure to be on with you.
I've been a longtime admirer of your great work.
So thanks for having me.
Thank you.
Well, it's funny because I was in law school.
From 1992 to 1995.
And not long before that, you had tried, well, handled the appeal for Klaus von Bülow, which wound up becoming a movie, Reversal of Fortune.
And I always admired you, and the OJ thing was going on at the time.
So for me, it's like a little bit of being starstruck when I talk to, when I meet a Supreme Court justice, when I meet a lawyer like you or Bob Shapiro, I just, it takes me back to having stars in my eyes about the law, which were good days.
Well, it makes me starstruck to talk to you because my alternate career was going to be as a journalist.
I never was smart enough to be a journalist, so I had to become a lawyer, but you've been one of my heroes.
Thank you.
All right, so let's talk, first of all, what's in the news this week, which is the Supreme Court confirmation hearings for Amy Coney Barrett.
And, you know, what I've seen so far is the Democrats are, you know, being very good about staying on message Obamacare, Obamacare.
They're not going after her religion, although some of their surrogates outside the Senate confirmation hearing room.
Are.
But in that hearing room, it's a very disciplined message don't screw anything up for Joe Biden, who is.
Winning this race.
Your thoughts on what we've seen so far?
I think we're seeing a group of inept senators who don't know how to ask a question on cross examination and who aren't serving the interests of the American public.
Look, this is a woman who's highly qualified.
She's brilliant.
She will be the next Justice Scalia and she will serve for probably 40 years on the United States Supreme Court.
And we, the public, are entitled to know what we're getting.
And these senators just don't know how to ask a question or a follow up question.
Mostly their statements are written by their staff.
They anticipate the answers and then they just move on.
So, we're not learning a lot.
You're right.
I think they learned the lesson of Senator Feinstein when she made a fool of herself in the previous confirmation hearing of Judge Barrett for the Seventh Circuit when she said, The dogma lives loudly within you, and that's of great concern to us.
That was an attack on her Catholic faith, and it was not proper under the Constitution, which says that no religious test shall ever be required.
So, as usual, in America, the pendulum swings very widely.
As the result of that backfiring, in fact, Judge Barrett is probably sitting in the seat she's sitting in largely because of Dianne Feinstein, who made her into a hero.
T shirts were made out of the dogma lives loudly within you.
As a result of that backfiring, they're now staying completely away from anything that deals with religion, where it's appropriate to ask her about questions of recusal.
She wrote a brilliant Law Review article in, I think, 1998, in which she said that as a deeply religious, observant Catholic, She might have to recuse herself in cases where the law conflicts with the obligation she has to her religion, namely in the areas of capital punishment and abortion.
So that's a perfectly appropriate area to ask her about.
It deals with religion a little bit, but she opened the door to it.
But I think the Democrats are walking on eggshells because appropriately, they don't want to in any way demean her faith or the way she brings up her children or how many children she has.
All of those are very positive factors.
Look, she's highly qualified.
There are only two questions.
One, should the Republicans have gotten to make this nomination in light of the way they handled the Merrick Garland matter?
And two, the issues of recusal based on her religious faith.
And I think she'll win on both of those.
Well, that's the thing.
I think they're not doing it because they're assuming that she's going to be a justice similar to Scalia, her hero, and for whom she clerked.
And that it's not worth it to cost themselves the political points in the presidential race for the Republicans to be able to make an ad.
That makes it even sound like they're going after religion.
Because while it might be interesting to hear her answers to those questions, they know this is a done deal.
This is done.
She's going to get confirmed, barring some massive gaffe on her part over the next week.
So I think it's all a political calculation.
And I think both sides are playing it right.
The Democrats are not trying to make too many waves, and the Republicans are speeding it along as fast as humanly possible.
Let me just ask you about Roe, though, because they are, as they always do in these hearings, trying to get the would be justice to say how they would rule on Roe.
And they always dodge.
No one's ever going to answer that.
But let me just play Dianne Feinstein's attempt and Judge Barrett's answer.
A major cause with major effect on over half of the population of this country who are women, after all.
It's distressing not to get a straight answer.
So let me try again.
Do you agree with Justice Scalia's view that Roe was wrongly decided?
Senator, I completely understand why you are asking the question, but again, I can't pre-commit or say, yes, I'm going in with some agenda because I'm not.
I don't have any agenda.
I have no agenda to try to over Rule Casey.
I have an agenda to stick to the rule of law and decide cases as they come.
And they're not going to do much better than that, I think.
But do you think, assume she gets on, do you think that the conservatives have the votes to overturn Roe and the case that upheld it in large part, Casey, which was decided in 1992?
I have no doubt that if Roe came to the current court, it would not be decided the way it was in 1973.
That's easy.
And she would vote against it, as would probably even Chief Justice.
John Roberts voted against it.
That's not the issue now.
The issue is whether you overrule a nearly 50 year old precedent, reaffirmed over and over again, cut away, but really reaffirmed.
And of course, she thinks Roe versus Wade was wrongly decided.
I'm sure she's told that to her friends in private conversation and probably to her students.
But the question is what role does precedent play?
Now, Justice Scalia made it very clear.
He said, I do not take an oath to my fellow justices to follow their precedent, I take an oath to the Constitution.
I suspect that she will not overtly overrule Roe versus Wade, but she would take every opportunity to cut back at it and to limit its application.
Right.
If I had to predict the Supreme Court's future on the issue of abortion, I would say it's going to be more approvals of limitations around the edges, more parental notification laws, shorter upholding state laws that may shorten the amount of time that it's legal, and so on.
But I don't know if, I don't think, just looking at this court now, assuming she gets on, they've got.
Five votes to overturn Roe because I don't think Roberts will be on that train.
I think you got Alito, you got Thomas.
I believe you would have Amy Coney Barrett.
And the question would be about Gorsuch and Kavanaugh.
There's just not enough evidence, I think, in the case of those two guys.
So time will tell.
And even if, and as you say, even if they're personally anti abortion, that doesn't mean that they're going to vote to strike down pro abortion laws or strike down Roe.
We saw that with Justice Kennedy.
He was anti abortion, but he voted to uphold Roe.
Okay.
So moving on to Justice Thomas is now one of the older justices on the Supreme Court.
We don't know how long he'll stay on the court.
And he might be very well replaced by a more liberal Democrat if the election moves in the direction that it looks like it's moving in.
I predict if Biden wins, Thomas will do everything in his power not to get sick and not to leave the high court during that tenure.
So, on the subject of Supreme Court, for weeks now, Everyone, the media, Republicans, I guess everyone but Democrats, have been trying to get Joe Biden to say whether he's in favor of, quote, packing the court if he's elected, because the Dems are mad.
Amy Coney Barrett's going to get on, even though the Republicans wouldn't give Merrick Garland a hearing in the last year of Obama's term.
And the payback they're talking about is adding, adding, getting rid of the filibuster in the U.S. Senate and then adding a couple of justices to the U.S. Supreme Court so it leans more left, which is extremely controversial.
It's basically.
I think it's wrecking the top court of the third branch of government.
No one will have faith in the opinions.
No one will respect it.
And I don't think people will listen to it.
So it's controversial.
But just to tee it up for you, Joe Biden actually spoke to it yesterday for the first time in a passing manner.
A local reporter at WKRC, Kyle Inskeep, that's out in Cincinnati and Ohio, took a shot at trying to get him to answer the question.
And here's what he said The court packing is going on now.
Never before, when an election has already begun and millions of votes already cast, Has it ever been that a Supreme Court nominee was put forward?
Had never happened before.
I've already spoken on it.
I'm not a fan of court packing, but I don't want to get off on that whole issue.
I'm not a fan of court packing, which is the most he said about it crazily because he hasn't really been pinned down.
But you tell me whether that is sufficient on this issue.
Well, it's not sufficient for those of us who would be strongly opposed to court packing, but it's the best we're going to get.
Look, he's winning the election.
There's no reason for him to put his foot in his mouth and to lose the support of the squad and their backers.
By saying what he really believes, and that is, I think he's opposed to court packing, but he doesn't want to lose the hard left.
If he were to come out in favor of court packing, he may lose some centrists.
So it's the smart thing for him to do to avoid answering the question.
I don't think it's the right thing.
I think a person running for president has an obligation to tell the public what his or her views are on important and controversial subjects, and court packing is one of them.
But I'm comfortable.
That he would not be in favor of court packing.
Would he actually veto a law that expanded the number of justices to 11?
I don't know the answer to that question.
I suspect he might very well veto such a law.
I know, because if you look at Biden's history, I mean, he was chair of the Senate Judicial Committee, and he knows how it works and he knows how important that body is.
And it is hard to believe that a guy who's been that moderate, really, for a lot of his history.
Would do something so radical.
It would be hugely radical.
And right now, you know, FDR tried to do this and his own party said no, hell no.
And the support for court packing right now, according to the polls, is 20% lower than it was when FDR tried it.
So it really would be reckless.
But let's move on.
But there are Democrats that are reckless and they're angry.
And I don't blame them for being angry.
They were deprived of a seat that should have gone, obviously, to Merrick Garland.
And the Republicans behaved improperly in that regard.
And I understand the anger of the Democrats, but they shouldn't take it out on the Supreme Court as an institution.
Yeah.
I know their explanation now is well, we didn't give him a hearing because it was Republicans who controlled the Senate at that point.
We had a Democratic president.
And under those circumstances, you should let the people decide, unlike this time.
But I agree with you.
I agree with you that they should have given Merrick Garland a hearing.
Maybe they would have voted him down, but the guy deserved a hearing.
And they're all hypocritical.
Both sides have a lot of explaining on justices and judges to do.
Absolutely.
Coming up with the professor.
What has life been like for him since he defended Trump at his impeachment trial?
What's happening on our college campuses right now with snowflakes everywhere?
And what does he think of cancel culture and how we stop it?
That's in a minute.
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And now back to Alan.
You made your name as a professor at Harvard Law School, but meanwhile had an incredible legal career as a practicing attorney as well.
And correct me if I'm wrong, but for most of your career, You were a Democrat.
I've never voted Republican for a presidential candidate since I voted for John F. Kennedy in 1960.
I voted once for a Republican for governor, Bill Weld, but I have been a loyal, straight down the line Democrat from the day I could vote when I was 21.
Couldn't vote when I was 18.
And on top of that, have taken many, many cases pro bono, meaning for free, representing minorities who had been convicted, trying to keep them off of death row, and so on.
You've devoted a lot of your career to doing things that.
most humans would support, but certainly most Democrats, most liberals would support.
Okay, so the problem as I see it for you and the left, because there's been a problem, they've turned on you in my view, is you had the temerity to defend some of Trump's positions.
In particular, you defended him on quote, Russiagate, which we now know had no basis.
But even before that, I thought you were fair.
You were fair to him.
You weren't in the tank for him, but you wouldn't have a knee-jerk reaction against him.
And to me, that was the beginning of the end for you and the left.
What do you think?
Oh, no, you're 100% right.
Look, the only other times I've ever been involved in political cases, I represented Alan Cranston, the liberal senator from California, on the floor of the United States Senate.
And I was part of the legal team for Bill Clinton when he was impeached.
And I would have been part of the legal team for Hillary Clinton had she been elected and had the Republicans impeached her.
Universities Feel Unsafe 00:14:39
But I put the Constitution above politics.
And so for me, bipartisanism means that you support positions of the person you voted against when they're right, and you oppose positions of the person you voted for when they're wrong.
And I've taken that.
Do all my life, but when it came to Trump, it was like Red Sox, Yankees.
You had to pick sides.
You couldn't be, well, I'll tell you, I really liked the way so and so pitched and the way so and so fielded.
No, you got to pick the Yankees or the Red Sox.
If you're in any way in support of any position that President Trump took, you're a renegade and you're a traitor.
And it ended many of my friendships and relationships that have been long term.
Give you an example of one famous celebrity, I'm not going to mention his name, but his daughter couldn't get into college.
So he pleaded with me to try to help his daughter get into college.
And I called a friend of mine who was the president of the university.
And I got her an interview.
And I got the president to use one of his slots to admit her to the college of her choice.
And she went to the college of her choice.
And she was really thrilled.
And her father was really thrilled.
And he no longer talks to me because he thinks that I now am a Trump supporter.
Of course, I'm not a Trump supporter, I'm a supporter of the Constitution.
And when the Constitution is on the side of President Trump, as it was, For the impeachment, I'm going to be on the side of the Constitution.
But there are many instances like this where I've woken up at three o'clock in the morning and bailed a kid out of prison for drunken driving.
And now the family isn't talking to me or associating with me.
And they regard me as a pariah.
That's the country we live in today, unfortunately.
You know, I used to have debates with Bill Buckley on television.
We disagreed about everything.
And then we went out and had a drink and we're friends.
Exactly.
Just exactly.
It's like Reagan and Tip O'Neill and the six o'clock rule where they've.
They fight like hell during the day, but at six o'clock, they go have a beer.
And we've completely.
I mean, I'll tell you sort of a similar, but kind of the reverse during my own life.
My mother threw a small dinner party for me and my husband when we came home to visit her up in Albany one time.
This is, I don't know, years ago, maybe five or six years ago.
And she had a bunch of friends of hers, and they were all very cordial.
We're in my mom's house.
And one of them came up to me and said, This is while I was at Fox, how do you sleep at night?
You know, working for that organization.
And I said something to the effect of, Just fine.
The checks cash, and I think we're providing the nation a service.
And it all worked out in the end.
You know, she was like stunned.
She hated Fox.
She thought I was doing the devil's work there.
And then a couple years later, would you believe they called?
They wanted me to help their son get an internship at Fox.
Of course.
Of course.
I had a woman who walked out of a cocktail party because she said she saw me at the cocktail party.
And if she saw a knife, On the table, she would have picked it up and stabbed me in the heart.
So, in order to avoid a murder charge, she had to leave the party so as not to confront me.
This is also a woman who I helped in a number of ways.
Was there one moment?
Do you feel like it was because it definitely preceded your representing Trump and defending him during the impeachment?
I feel like they turned prior to that.
So, was there one moment?
Yeah, I think the moment was when I said that although I disapprove of the Muslim ban, as it was called, I believe it was probably constitutional.
And the court would uphold it.
I think that may have been the turning point.
Of course, I turned out to be right on every single prediction I made about how the courts would decide all of these cases involving what President Trump was doing.
I disagreed with most of his policies, but I found them not to be unconstitutional.
And because I didn't pull a Larry Tribe, you know, my friend and colleague Larry Tribe, the Constitution always comes out consistent with his political views.
In my case, that doesn't always come out consistent with my political views, and I always support the Constitution.
I agree with you.
When you look at some of these police involved shootings, I feel like I run into this all the time because people just want to condemn the police, a knee jerk reaction of condemning the police.
And I always, as a lawyer, think, well, let's just wait and see what the evidence is.
Let's find out what you're doing.
The Breonna Taylor case is a perfect example.
The prosecutor got it right in that case, not prosecuting the policeman who shot her and killed her for murder.
He was responding to a shot fired at him that almost killed his colleague.
Do I think it requires better police training?
Yes.
Should he have fired?
Maybe not, but it wasn't murder.
I've been teaching criminal law for 50 years.
I know what murder is.
And they didn't get it right.
The protesters didn't get it right on that one, saying that he should be prosecuted for murder.
So, yeah, but then you have all these celebrities coming out saying how ashamed they are of the DA down there, the AG, who is a black man, you know, accusing him of being an Uncle Tom, of being, it was like skin folk, but not kin folk.
That guy, I mean, he took so much.
Incoming just because he followed the law.
And you may not like it, but that's his job.
So let me ask you about what's happening in universities.
You're now emeritus at Harvard, right?
You're not actively teaching there.
And this is an institution that you've done a lot for over the years.
I mean, half the people have heard about Harvard Law through the cases you've taken on because they mention Harvard Law's Ellen Dershowitz.
What's happening on university campuses right now is scaring me.
And it's been scaring me for a while, but it's getting worse than ever.
The ideological intolerance, the Absolute refusal to allow any view other than a far left view, not just in the students who are on campus and forget the professors, but to those.
Applying to the school.
There was just a study that came out at Harvard that said only 7% of the incoming students are conservative.
Only seven.
So that means one of two things because it's about 50 50 in the country.
Either a lot of students are lying and covering up whatever clubs they were part of in their applications to Harvard, or this is true only 7% are being admitted, and that's by design by Harvard because it simply doesn't want them.
The last thing Harvard wants is intellectual diversity.
What it wants is superficial diversity.
People look different, but they want them to think the same.
And it's a great challenge.
And I do think universities today feel it's their obligation to teach the students what to think.
In 50 years at Harvard, I never told a student what to think, I tried to teach them how to think.
I always played the devil's advocate in class.
Different from what the majority view in the classroom was, because the job of a lawyer is to be able to argue all sides of an issue.
And I wanted to make sure the students were adept at thinking through different kinds of considerations.
But, you know, the idea, the way the university treated Ron Sullivan, my friend and colleague, who's a great lawyer and was the dean of one of the houses and a very popular dean, but he made, quote, the mistake of joining the legal team for Harvey Weinstein for a brief period of time and the snowflakes in his house.
Said they were afraid of him.
They were afraid of him.
This is the nicest guy in the world.
He and his wife felt unsafe.
Which, by the way, in any other circle would have led to charges of racism because he and his wife were the first black faculty deans in Harvard's history.
So if you say the black man's making you feel unsafe in any other context, you're a racist.
But here, because he had the temerity to represent an accused criminal, even one as abhorrent as Harvey Weinstein, made him awful.
But also an accused white criminal.
Remember, he had previously represented a football player on the New England Patriots.
Who had been convicted of murdering two people, murdering two people.
And the same students didn't feel unsafe in the presence of a lawyer who had represented somebody who had murdered two people.
But when he represented Harvey Weinstein, that made them feel unsafe.
First of all, it's a lie.
The students didn't feel unsafe.
They just know that's a formulaic way of imposing censorship today on universities.
If you say you feel unsafe, that gives you the right to censor opposing points of view.
Nobody has the right to have ideas safe on a university campus.
I would start my classes.
I teach a freshman seminar, 15 brilliant students, 18 years old, just coming in.
And I would say, you know, if you want to be comfortable, you know, go do something that makes you comfortable.
But in this class, every idea you've ever had is going to be challenged.
You're going to be challenging what your parents taught you, what your rabbi, what your priest, what your minister taught you, what your friends taught you.
Every idea is going to be challenged.
And if that makes you uncomfortable, You know, take a different course, but that's what universities are for to make you uncomfortable about your ideas.
And the idea that you can feel unsafe because somebody has a different view from you is so antagonistic to what a university should be doing.
And to what should be happening in the United States of America, we used to pride ourselves on being able to answer speech you do not like with not less speech, but more speech.
That's the bedrock of the First Amendment.
And we've gotten I realize it's not state action when a university tries to create a safe space and shut one side up, but just the principle underlying the First Amendment and free speech has been completely smothered.
I agree.
I have a new book coming out in a couple of months called Cancel Culture, the newest attack on free speech and due process, in which I go through what's going on at universities and how terrified, particularly young assistant professors, are.
To express views even outside the classroom that are regarded as politically incorrect.
They just won't get tenure.
And so you're getting a homogenous view on many university campuses, and the students aren't being educated, they're being propagandized.
So, what's the answer to that?
I think about it from a personal standpoint because my oldest is 11 and in fifth grade.
And I do not want to send him to one of these colleges.
I don't want some college that's, Doug and I are not particularly ideological, but I really don't want someone trying to indoctrinate him into far left liberal ideas.
Ideology, victimhood, all that comes with this crazy woke scold identity theory.
So, what would you do if you were me?
A, do you think we can solve it before, you know, in the next seven years?
And B, is there a university out there that is still the way they used to be, a little bit maybe left leaning, but a little bit less interfering?
Well, I do think there are some universities in which at least the view is expressed that all ideas are welcome.
University of Chicago.
Was among the leaders in that regard until very recently.
They were in the English department, but the English department said it's now the philosophy of the English department to support Black Lives Matter and to only admit students this coming year who are supportive of Black values and Black Lives Matter.
Black studies, yeah.
They have to have a focus in Black studies.
Yeah, but that's not the way universities should operate.
The Harvard Business School just had a statement not so different from that.
But, you know, the way to deal with this is to make sure your children are prepared to fight for their.
Values and let them go into the belly of the beast.
Let them go to the best college or university they can get into, but let them be prepared.
There are always going to be clubs and groups that are fighting political correctness on the college campus.
And as long as your children know that there are opportunities to respond.
And remember, two universities are not just the current faculty and student body, they are the alumni.
If they're state universities, they are governed often by the First Amendment and state law.
So, there are ways of fighting back.
I wouldn't give up.
I think your son or daughter should try to get into the best college they can get into, the one that most suits them, not necessarily the one that's ranked highest by U.S. News and World Report, but the one that best suits their personality, their skills, their approach to learning, and then fight for their freedoms.
That's probably a good part of their education.
Well, and to your point, I mean, one of the things I've been saying is that people who are not buying into this safe space nonsense.
And want the free and full exchange of ideas and arguments and discussions, and happen to be on the right half of the country, happen to be more conservative or center, center right, even center left, need to fight.
It's not enough anymore to sit back and just read the newspaper about it.
You have to take a stand, engage in this kind of discussion, stand up for principles of exchange, just exchange.
Right now, it's just shut up.
There'll be no exchange.
No, you're going to pay a price.
No, you're going to pay a price.
You know, I have always fought for my principles.
I've always fought back.
I've never.
Remain silent.
And I've paid a heavy price for that.
Fortunately, I have a thick skin, but it's taken a toll on my family.
You know, my wife had somebody walk out of a gym saying, Oh, that's Alan Dershowitz's wife.
We can't be in the same gym she's in.
I mean, it's gotten to that extreme where my wife, who doesn't agree with me on some of my views, or my children or grandchildren who don't agree with me, have to pay a price for my speaking out about these issues.
I can take it.
But the idea that my grandchildren are discriminated against, or my children, or my wife, because of my views, that's new to America.
That reminds me of what was going on in some European countries in bad old days.
Absolutely.
But I think the only way forward is to do more of that and for people like you, people like me, to take it, take it.
You know, those who've already developed a thick skin because we've been in the arena.
You're, I think, center right.
I'm center left.
But we can talk to each other.
We have in common a love of the First Amendment, of freedom of speech, of due process.
You know, I'll win some.
You'll win some when it comes to ideological or political issues.
But that's what democracy is about.
Yeah.
We'll learn.
The Harvard professor, Ron Sullivan, who you mentioned, who's now no longer a faculty dean because he represented Harvey for a short time, that case really concerned me.
Remembering McCarthyism 00:02:34
And as a lawyer, I looked at that and said, Does anyone understand what defense lawyers do?
It reminded me of when I got blowback for interviewing Alex Jones.
It was like, We don't only get to interview the good guys.
And criminal defense lawyers, by nature, nine times out of 10, you tell me, are representing someone who is.
Guilty.
I feel like the whole notion has been spun on its head.
Thank God for that.
We want to live in a country where the majority of people who are charged with crime are innocent.
That's Iran.
That's China.
That's not America.
We live in a country where the vast majority of people charged with crime are guilty, and we want to keep it that way.
And the way to keep it that way is to make sure you vigorously and zealously defend everybody who's charged with crime.
That's the key to being an effective defense lawyer.
And that's what's required of us.
Under the Constitution, but people just don't understand it.
They say if you've defended somebody who's bad, you must be bad.
The Alaska Bar Association invited me to speak this year, and it led to a tremendous amount of complaint by some lawyers saying, We don't want Dershowitz.
He has defended A, B, C, D.
Then they listed all the bad guys I've defended.
And that's a reason for not inviting me to speak at a bar association.
That's how bad it's become.
I'm old enough, you're not, but I'm old enough to remember McCarthyism.
I remember McCarthyism because I went to Brooklyn College, which was called the Little Red Schoolhouse.
And there was a campaign led by a very interesting professor named Eugene Scalia, Justice Scalia's father, who was a professor.
And he was leading a campaign to try to rid the English department of people who had taken the Fifth Amendment and were thought to be Fifth Amendment communists.
And as a young student, I was president of the student body, I fought against Professor Scalia.
And, you know, I remember McCarthyism so vividly that lawyers who defended people who were accused of being communists.
Were criticized.
I was not a lawyer, but as president of the student body, I stood up for the professors.
I hated communism.
I grew up in a home that just despised Stalin, despised communism, but I stood up for the rights of professors to speak their views.
And I was, as a result of that, the president of the college, the academic president of the college, wouldn't recommend me to law school, wouldn't write a recommendation for me to law school, even though I was the number one student in the school and president of the student body and head of the debate team.
I got into law school, but by the skin of my teeth, Because I stood up for the rights of people who I disagreed with.
That doesn't happen anymore.
Negotiating Plea Deals 00:17:08
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And did Jeffrey Epstein kill himself?
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And back to Alan in one sec.
But first, we want to bring you this feature that we call Asked and answered here on the Megan Kelly Show.
Steve Krakow is my executive producer, and this is a segment where we answer some viewer questions, right, Steve?
That's right.
Yeah, we've gotten a ton of questions.
And again, if you want to ask questions, go to questions at devilmaycaremedia.com.
Keep them coming.
We'll do this on a regular basis.
So, Megan, this question today is from PL, who wanted to know: he said, Was the movie Bombshell accurate?
I know you've commented, but would you like to elaborate?
Also, what did you think of Charlize's performance?
So, handing it over to you on Bombshell.
You know, you should really have my husband here to respond to that second point because he's got a lot to say about the Charlize performance.
He just thought that she played me very, very serious all the time.
You know, like I was on the air at Cable News, like I'm going to kick everyone's ass everywhere I go.
And as most of my viewers and my listeners know, I have a softer side.
I'm not all sharp elbows.
You know, I can be quite joyous if given the chance.
But the movie itself, you know, it was.
It was complicated for me.
It brought back a very painful time in my history at Fox and one that would change my professional life at Fox profoundly.
I definitely lost some close friends there and mentors who just have never forgiven me for not backing Ailes.
And, you know, I understand because everybody loved him and even I loved him.
And it was just the most complicated situation because I knew that he had harassed me when I was a very young.
Reporter at the company, and that we had gotten past it, and that he never retaliated against me.
I did not know him as a retaliator.
Years later, I became best friends with Janice Dean.
She also had a story about when she was interviewing for her job right at the same time around when it happened to me.
So we just chalked it up to the guy's having a rough go in his marriage, which is what my supervisor had told me, and to just move on, and that if I moved on, he would drop it.
And that's what happened.
So anyway, when it ultimately came up, Is he a harasser, which is what Gretchen was alleging?
You know, I felt like I had one answer, but I didn't know.
That's the truth.
I didn't know of any other woman besides Janice, and I didn't know what I thought about Gretchen.
There was no real love loss between the two of us.
I was much closer to Roger than I was to her.
Anyway, long and the short of it is, they did decide, they managed to get the investigation limited to just a small team that worked with Gretchen Carlson, and I knew that that would not include.
Talent wouldn't include me, wouldn't include Janice.
And I didn't know whether he was or he wasn't, but I knew they needed to do a full and fair investigation, that we needed to know the truth one way or the other.
And they did.
And that's portrayed in the movie accurately.
So I objected to some of the caricatures of folks at Fox there, in particular what they did to Brian Kilmeade, who's a great guy, and they showed some of his body and fun exchanges with Gretchen on the set.
Fox and Friends is a playful show, and she was playful too with him at times, and they just made him out to be this bore, which he isn't.
He's a great, great guy.
Things like that bothered me, but not unexpected with a Hollywood film.
They're not big fans of Fox News.
Having said all that, I appreciate.
The attempt to shine a light on a difficult subject.
And I've heard enough from young women that it gave them a bit of a roadmap for their own situations.
My story, Gretchen's story, Janice's, and the women of Fox News.
So I'm glad it got some attention.
And now that it's over, I'm happy to move on from both the events and the movie.
Thank you for asking.
And now back to Professor Dershowitz.
Klaus von Bülow, so people know this happened.
I guess it was Reversal of Fortune, the movie came out in 1990.
So it happened in the late.
I think that she.
Did she go into a coma in 79?
Something like that.
79.
So what happened basically was these very rich people who had this amazing mansion in Rhode Island, but not a very healthy marriage.
The woman, Sonny Von Buehler, went into a coma and survived.
And then two years later, she's a young woman, healthy.
Two years later, she went into another coma that appeared to be insulin induced, an overdose of insulin.
That's how it appeared.
And never recovered.
She stayed in a coma, and her husband Klaus was charged with her murder and he was convicted.
And then Alan Dershowitz got involved.
That's what this movie is about.
It's based on Alan's book.
And Alan and a team of lawyers and law students got the conviction overturned and got Klaus a new trial.
And ultimately, at that new trial, he was acquitted and went on his merry way.
So keep going.
I just wanted them to know what you're talking about.
Yeah, and I assumed he was guilty and I took the case because there were some serious constitutional issues they had.
Excluded evidence, they had not permitted him to get access to certain documents.
And then the more deeply I got into the case with my students and medical students, and we went into the whole insulin theory, we concluded that there was no crime, that she had gone into a coma as a result of reactive hypoglycemia and taking off medicine prescriptions and doing a lot of terrible things to herself.
And in the end, I came away fairly well convinced that he was innocent.
And it surprised me.
I've had the opposite too.
I've had cases where I thought the person was probably innocent.
And then the more I learned about the case, the more I learned they were guilty.
Look, we're not the judges.
The judges, the jurors decide.
We're the advocates.
We present one point of view.
Even on the terrible Jeffrey Epstein case, when I first took the case, he had been accused only of having sexual contact with a very small number of people who he said were over the age of consent, but turned out to be under the age of consent.
And then it turned out, of course, there was much more overwhelming evidence that none of us were aware of that made it clear.
That he was something very different from what he appeared to be when I first agreed to represent him.
Let me ask you that one.
Let me ask you that one.
Does that one give you pause when you learn that?
Let's say he had come to you when he'd been accused, as we now know, of let's call the number 80 underaged girls.
Would you have taken that case?
Here's my rule on taking cases I don't represent people who are in the business of committing crime.
So I don't represent mafia members knowingly.
I don't represent terrorists.
And I would not represent somebody who, Had as his basic preoccupation abusing young women.
I defend people once for one crime.
So if I knew he was still doing it, then I would not have taken his case.
You get one.
I want to talk to you about Epstein in one second because.
It's just the whole thing is fascinating.
But can we talk about OJ for one minute?
So, you came in as the appellate lawyer on the OJ case and sort of the big brained man who was going to help with the legal issues.
And, can you, are you, I've never asked you this before, but do you think that OJ committed those murders?
You know, I can't.
One day when Bibi Netanyahu was elected prime minister, I was in Israel, and he called me and my wife to come see him because I had known him when he was a student at MIT.
And he takes me aside and he says, Alan, I have to ask you a question I've been dying to ask you.
I thought it would be about Iran or the Palestinians.
He said, Did OJ do it?
And I said, Mr. Prime Minister, there's a question I've been dying to ask you Does Israel have nuclear weapons?
He said, Alan, you know I can't answer that.
I said, Bibi, you know I can't answer that.
So, you know, you can't answer certain questions about whether your client is guilty or innocent.
I have to tell you that I did think that if he had taken the witness stand, as F. Lee Bailey and others wanted him to do, He probably would have been convicted as he was found liable in the civil suit because we didn't really assert his innocence at the trial as much as we did the fact that the government didn't prove the case scientifically beyond a reasonable doubt.
So there are various tactics that you engage in depending on what you think the quality of the evidence is.
What about so, if you're representing O.J. Simpson and he's accused of double murder of his wife, she was his ex wife at the time, Nicole Brown Simpson, and her friend Ron Goldman.
What's it like when you're sitting across from them in a jail cell, elsewhere?
Are you thinking, this could be a double murderer?
What's behind those eyes?
Like, what's that?
The worst thing is when you're sitting in the courtroom and you have OJ sitting on one side of you and you have the Goldman sitting on the other side of you looking at you.
And you say to yourself, I may be representing the man who murdered their son.
It is a horrible, horrible feeling.
Look, I sat across from Radovan Karadic.
The man who was thought to be responsible for the murder of thousands of people in the former Yugoslavia.
I sat next to him in his jail cell in The Hague, and he served me tea, and he was an educated psychiatrist, and we were talking about Hegel and Kant.
And here he was, a man who may have been responsible for killing thousands of people.
It's a horrible, horrible experience, but it's not so different from a doctor or a priest.
Doctors sit across from people.
Who have done terrible, terrible things, and you're trying to cure them and allow them to go back and do even worse things, or priests or rabbis who are asked to give forgiveness to people who have done terrible things.
We have a role to play, and it's an important role to play.
And it's very hard to know that you may be responsible.
I don't go to victory parties for that reason.
When I win cases, and I've won a lot of cases, I've won like 23 out of my 28 murder, homicide related cases.
I think I have probably the best record.
Of any private appellate lawyer in these kinds of cases.
I have never gone to a victory party when I've won the case because somebody's dead, somebody's suffering greatly.
And this is not a victory for morality necessarily, it's a victory for the law.
Yeah, for the system.
Alan, there's a great line at the end of Reversal of Fortune where you look at Klaus von Bulow and you remind him the quote is, morally, you're on your own.
Have you ever had to worry about repeat crimes?
You know, I mean, I think, I don't know, especially in the case of a guy like Epstein, by the time the initial plea deal was struck, the one that became so controversial and wound up causing our then Department of Labor to have to step down because he was the DA who agreed to this plea deal.
But you were on the other side negotiating for him.
Do you ever have the feeling of, oh God, what did I just reach him to?
Yeah, of course.
Especially since, according at least to the prosecution, Epstein did it again and continued to do it.
I would not have represented him a second time if he had called me.
I terminated my relationship with him completely once I helped negotiate the deal.
I was never, ever his friend or acquaintance once I knew what he had done or even what he was accused of doing.
So you make a very sharp distinction between professionally representing somebody.
Once he was accused, every minute he spent with me, he paid.
He paid not only for His case, but for the pro bono cases that I do 50% of my cases on.
And so it was a completely professional relationship, but I would never.
And what people don't realize is that Epstein, he wormed his way into several very esteemed institutions from MIT to Harvard by trying to cozy up to people like Alan.
And he donated a lot of money, and he wasn't wearing a shirt that read, I molest very young girls.
No, it took a while for people.
The people in these institutions to get it, but of course, there's a question about when they got it and when they should have gotten it.
And sure, I want to ask you about that.
So, because they say, let me just start with that plea deal because I read all about the case now.
And the most number one, you ultimately got accused by one of his victims, which we'll get to.
But the first thing that was very controversial for you was you and the other defense lawyers were very aggressive in going after the very first victims that came forward against him.
And cut a plea deal for Jeffrey that was a gift to him.
He pled guilty to one count of solicitation prostitution, one count of solicitation prostitution with a minor, and he had to register as a convicted sex offender.
But that was nothing given that it was at least six girls.
And by the time they actually signed the deal, there were at least 34 girls, including several minors, who had come forward.
He hated the deal.
He hated the deal.
He thought I had abandoned him.
He didn't want to pay the legal fee.
He said, Why am I having to register as a sex offender?
He actually fired me.
Because he thought he could get a better deal.
And he did get a better deal.
Initially, I had gotten him a deal in the state where he would plead to a felony, register as a sex offender.
He then fired me and said he could get a better deal.
And he did get a better deal from the state, which is when the FBI came in.
So I was part of the legal team.
Remember, they had a very strong state case against him because all the young girls lived in Palm Beach County.
But they had a very weak, perhaps non existent federal case because they had to prove for a federal case.
That he transported young women in interstate commerce with an intent to have sex with them.
They just didn't have that, which is why they made the deal they made plead to a state offense, and then we won't prosecute you for the federal offense.
If they had prosecuted him for the federal offense, we very likely would have won the case.
Okay, but what about the two things?
The two things that were very controversial about that deal that you guys struck were number one, it was specifically written into it that the victims not be notified.
And number two, the entire plea deal was kept under seal, meaning the victims and those representing them had no idea it had even happened.
And a court later ruled that that violated the law, because there is a victim notification requirement.
Right.
But then that was reversed by the 11th Circuit, and that's now on appeal to the entire end bank.
Look, defense attorneys try to get the best deal we can.
It's up to the prosecutor to say no.
And so you can be justly critical of the prosecutors for allowing the deal to be secret.
But every deal I ever make with anybody, we always try to keep it under wraps if possible.
That's what defense attorneys try to do.
Our job is to get the best deal for our clients.
The prosecution's job is to get the best deal for the public and for the government.
But don't ask us to try to get the best deal for the public or the victims.
That's not our job.
Yeah.
And the other thing is, I'm not disputing that.
Like, I, yeah, all along, I've looked at it saying, all right, that would not have been my favorite client.
Harvey Weinstein would not have been my favorite client, nor OJ, but I understand what defense lawyers do.
I mean, that there is a role for them in our system.
And most people hate their guts until they need them.
It's like people's attitudes towards guns, they don't like them.
A lot of people hate them.
They don't even think about them until they need one.
The Reality of Suing 00:13:19
I don't know.
Do you like, let me ask it this way when you talk to your wife about that, does she say, ah, Alan, what are you doing?
How could you have represented him?
Yeah, is she a moral conscience for you?
She understands, but just this week she has laid down a rule and told me I could not represent somebody who was calling me.
I listened to her.
Um, it only took 80 years.
Well, when it came to the President Trump's representation on the floor of the Senate, she initially said she didn't want me to do it, and uh, ultimately she agreed that it was important enough and that I really wanted to do it.
I think she regrets letting me do it.
I listened to my wife a lot.
Look, getting back to Epstein for a minute, I was introduced to him by the lady Rothschild, Lynn Rothschild, a very eminent woman.
And she told me that he was a great man, and the president of Harvard was a close friend of his, and he was coming to Martha's Vineyard for a day.
Could he stop by and say hello?
And he stopped by, he brought a bottle of champagne.
He met me, my wife, and my family and my children.
He was charming, nobody had any idea.
And then we met him with some youngish women in their late 20s.
And my wife was critical of that because he was in his 40s.
But not critical enough to say you don't have anything to do with him.
We had no idea that he was ever in connection or in proximity with anybody.
Well, that's the thing for me as an outsider.
As an outsider, I look at the case and I say, what is the evidence?
Because one of his accusers ultimately accused you, and it turned into this big back and forth.
And you asked for the FBI to investigate it.
You asked for the Southern District of New York federal attorney, U.S. attorney to investigate it.
You hired the former FBI director to look into it.
You, I mean, you went after that organization.
What more can anybody do?
I have nothing to hide.
Well, I'll ask you about that.
But I know, so that's where it spun.
But I think, you know, it just grew so quick and so it just snowballed into such a world case that you got swept up in it.
And I think, I don't know, is that one that you regret?
Would you, now knowing what you know, would you have turned it down?
Of course.
I would have never met Jeffrey Epstein.
It was the worst thing that ever happened to me in my life.
Meeting him, and I'll never forgive Lynn Rothschild for having introduced me and having basically presented him to me as this wonderful, wonderful person.
I wish I had never met him, but I had no idea he was doing anything wrong.
And the moment I learned about it, I terminated my relationship with him, any personal relationship I had with him.
As far as the woman who accused me, I never met her, never heard of her.
I have emails that she tried to suppress in which she acknowledges that she didn't know who I was and she never met me.
She then writes a manuscript about her sexual exploits.
In which she says she saw me once but never met me and certainly never had sex with me.
She told her best friend that she was pressured into falsely accusing me as the result of pressure from her lawyers to try to get a billion dollars from Leslie Wexner.
There's never been an open and shut case.
I will say in her manuscript, she doesn't say I never had sex with Alan Dershowitz, but she doesn't list you as one of the people which said she did.
She says, no, no, no, it's much more than that.
She lists all the people she had sex with.
And then she said she once saw me.
In the room with Jeffrey Epstein talking about business.
This is after she gets an email from a journalist saying, include Dershowitz in your book, he'll help sell.
Because he wrote Reversal of Fortune.
So she includes me in the book as somebody she did not have sex with, as someone she only saw once.
That really is an admission that she never had any contact with me, never even met me.
But here's the question I've been wanting to ask you.
Here's the question I've been wanting to ask you.
You dared her to sue you for defamation because you came out and said she's a liar.
And you said, if I'm the liar, go ahead and sue me for defamation.
And then she did.
And you wound up settling the case in response to this.
No, You didn't settle the case?
No, no, no.
I settled the case with her lawyers.
I would never settle a case with her under any circumstances.
What do you mean?
I guarantee you she will never.
The lawyers were the named plaintiffs?
Yeah, it was Edwards and Casal versus Dershowitz.
These were the two lawyers.
I had accused them of unethical conduct.
And they offered to settle the case in exchange for them acknowledging that they had made a mistake in accusing me.
They made a tactical mistake in attaching that accusation to another motion.
I wouldn't say tactical.
They said a mistake to accuse me and they withdrew the accusation.
And so I settled the case against them.
I did not settle the case against Virginia Roberts.
I never would and I never will.
Is that filed and ongoing?
It is.
She's suing me.
I'm suing her.
I'm suing her lawyer, David Boyes.
David Boyes is suing me.
I never sued anybody.
I was never sued until all this happened.
The first 75 years of my life, I never was sued.
I never expected to spend the last years of my life.
Litigating my reputation, but I have never done anything wrong in my personal life.
Period.
50 years of teaching at art, hundreds of women students, faculty, colleagues, research assistants, secretaries, never complained against me for inappropriate conduct.
And then suddenly this comes along and I'm going to litigate and fight.
I could have easily just denied it and let it go away, but I want to disprove it beyond any doubt.
And I want the people who falsely accuse me to pay a very heavy price for false accusations because.
When they falsely accuse somebody knowingly for money, they destroy the Me Too movement.
They destroy the credibility of people who are real victims.
And when I collect my money about this, I'm also suing Netflix, I'm going to contribute half of the money to people who are real victims of sexual abuse and who have been falsely accused.
Well, it's one of those things where I think the balance is important to be struck.
One of the reasons why the Jeffrey Epstein case went undiscovered for so long is that his.
He intentionally chose what the law might consider, quote, imperfect victims.
And by that, I just mean girls who could be discredited as having lied before, having a drug problem, or coming from broken homes and so on.
And that's no accident.
Most of these predators wind up doing that.
It's like they have a sixth sense, right, for who to target.
But the truth is, in the case of the woman accusing Alan, is that she has been caught in several untruths.
She lied about being with Alan.
Al and Tipper Gore.
She lied about having dinner with Bill Clinton on Epstein's Island.
She said she vividly remembered spending her 16th birthday with Epstein, later admitted she only met him later when she was 17.
So you could go down the list.
And so, what happens in these cases is so many of these Me Too cases is we've gotten to the point where it's enough for somebody to make an allegation.
And then the men don't get due process, it's trial by media.
And if you don't win the media war, you're done.
There's something else that you're leaving out.
Many of the men are also imperfect.
That is, this woman, Virginia Roberts, accused me.
She accused Prince Andrew.
She accused Edward Barack.
She accused Leslie Wexner.
She accused Will Richardson.
She accused a whole bunch of people.
Some of those people haven't responded.
Why?
Because they probably have something to hide.
The reason I fought back is my life is an open book.
I have never had sexual contact with any human being other than my wife during the relevant period of time.
Period.
I've never touched anybody.
I've never hugged anybody.
I don't do that.
They pick the wrong innocent victim in accusing me.
In accusing some of the others, they know they're not going to fight back because even if it's a false accusation in relation to Virginia Roberts, They have things to hide.
They don't want their sex life to become a matter of litigation.
I don't care because if every day of my life, from the day I met Jeffrey Epstein till today, became public, it would show that I have had sexual contact with one woman.
And by the way, I have all of my travel records that prove where I was every single day during the two and a half year period that Virginia Roberts knew Jeffrey Epstein.
I can tell you where I was every single day.
Don't you think, you know, for you, this came out, I guess, 2014 was when she first mentioned you.
But as soon as you were dismissed politically because of your defense of Trump and other things like that, this is a perfect excuse for them to say they don't believe you.
And I'm not taking a position on your case one way or the other.
I will say you've very, very aggressively defended yourself in a way that the others have not.
You're right.
They've been very silent.
But I do think there's a bit of desire to dance on the grave, the professional grave of somebody who's been very successful.
Who might not hate Trump, who they perceive as having money.
You're at Harvard, where most of us cannot go.
I don't know.
What do you think?
To what extent has that played into the shunning that you've received?
And Martha's been here this year.
There's no question about that.
There's no grave to dance on.
I'm 82.
I'm still very active.
I walk my seven miles a day.
I write my 3,000 words every day.
I've written five books in the last 11 months, and I'm working on a sixth.
And, you know, I'm very active.
So there's no grave to dance on because I'm fighting back.
But you're absolutely right.
Because of my defense of President Trump on the floor of the Senate, people wish, hope that I was guilty of the Epstein thing so that it all fits together as one.
Oh, he's a bad guy.
He defends Trump and he had improper relations with a woman who was 17 or 18 years old.
The first is true.
I did defend President Trump on the floor of the Senate.
I also defended Jeffrey Epstein.
You can criticize me for that, but I had nothing to do with Virginia Roberts.
Period.
And anybody who combines those and accuses me in public is going to be on the wrong side of a lawsuit.
I am suing Netflix.
I had a lawsuit against another network that falsely accused me.
I had a lawsuit against an Israeli journalist.
I am fighting back.
I am not going to allow myself to be made into a pinata or allow people to dance on my premature grave because I have nothing to hide.
I am proud of everything I've done in my life.
And I will continue to do it.
I'm not going to let it influence the way I live the rest of my life.
I got to ask you the $64,000 question.
Speaking of graves, did Jeffrey Epstein kill himself?
What do you think?
I think he probably did, but I think that he probably paid off some guards to turn off the cameras and facilitate.
I don't think he saw that he wanted to spend the rest of his life, having lived in all these mansions, in a rat infested prison.
And I think he said to himself, this is just surmise, because I didn't know him well and I didn't have any contact with him the last decade of his life or so.
I suspect he said to himself, Look, I've lived my 60 something years.
I've done my things.
It's over.
I don't want to spend the next 20 years in prison, so I'm going to end it.
So I think he probably did kill himself, but I suspect that he was helped in the process by some people who might have facilitated his ability to commit suicide.
Because I've been in that jail many, many times.
It's not easy to do anything there.
For him to have been able to bring about his own death, With cameras and with a cellmate, it would have been impossible.
So the cellmate was taken out and the cameras were off.
I suspect there were some improprieties that contributed to his death.
That's just my surmise.
Alan Dershowitz, still going strong at 82 years old.
Pleasure to have you here.
My pleasure to be on with you.
Thank you.
Keep doing great things.
Our thanks to Professor Alan Dershowitz for his time in the thoughtful interview.
And in the meantime, we'd love for you to make sure that you subscribe to the show.
That you go, you download it as well and then give us a five-star rating.
If you're feeling generous, maybe leave me a comment.
I do go back.
I read them all.
It's super fun for me, and some make me laugh, some make me cry, some make me feel connected to the audience.
Some I just skip right by because they're mean, but very rarely, very rarely.
So I appreciate that um, and I love having you guys back in my life.
Thank you for being here.
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