Alan Dershowitz is an American defense attorney, academic, and author who has represented clients in some of the most high-profile legal cases in the United States and abroad. Mr. Dershowitz has published over 1000 articles in journals, newspapers, and magazines, and has authored 40 books, including The New York Times No. 1 Bestseller “Chutzpah.” At age 28, he was the youngest professor ever to be granted full tenure at Harvard Law School, where he taught for 50 years until he retired in 2013.
This interview was conducted on June 18, 2020.
Harvard Political Review: Who or what has most influenced your view of the law?
Alan Dershowitz: I grew up in the shadow of the Holocaust, and many of the young people I knew were survivors from Europe, some of whom had been in displaced persons camps or ghettos. For me, as a young Jewish boy growing up in Brooklyn in the 1940s and 1950s, my goal was always to defend the underdog and to stand up for individual rights, so law was a natural fit.
I always knew I wanted to be a criminal defense lawyer, although the last thing that ever occurred to me was to be a law professor. That just came out of the blue. I was a very good student at Yale Law School, and I got an offer to teach at Harvard. As a kid from Brooklyn, you can’t turn down an offer to teach at Harvard. So, without thinking through what my career would look like, I accepted the offer and stayed at Harvard for 50 years, during which time I taught 10,000 undergraduate and postgraduate students.
HPR: In your book, “The Best Defense,” you state, “…the vast majority of criminal defendants are in fact guilty of the crimes with which they are charged. Almost all of my own clients have been guilty. A few, of course, have been innocent.” From this quote, it’s clear that a person’s innocence isn’t the determining factor in your decision to take a case. What factors determine the cases you take?
AD: [Innocence] is not even a factor; in fact, it’s irrelevant. The vast majority of people in the United States who are charged with a crime are of course guilty, but the only way to make sure people are in fact guilty is for criminal defense lawyers to be very aggressive in defending everybody, guilty or innocent.
My main criteria for taking a case is that nobody else will take it: The defendant is so hated, so maligned, so criticized, so despised, that they are a pariah. The worse they are regarded by people, the more likely it is that I will take their case. Some people have called me the lawyer of last resort, and for 50 years I’ve taught my students that everybody is entitled to a defense, so I certainly can’t live by a different standard. I guess if I was a brain surgeon or a heart surgeon, I would probably take the most hopeless cases. If you’re good at your job, you always want to take the hardest cases that people say nobody can possibly win, although I’ve won my share of them.
HPR: You have said in relation to the O.J. Simpson case, “The problem with this case is that the system worked, and it worked too well. … It showed what can happen if the defense has access to good lawyers and experts.” You’re describing a system where rich and influential people are less likely to be found guilty. What do you think can be done about that system?
AD: First of all, the inequity applies even less in the legal system than it does in the housing system, the education system, the health system, and many of the other systems. But in the legal system, it’s sometimes a knife that cuts both ways. If you’re rich and famous, you may be more likely to be acquitted but you’re also more likely to be charged and indicted. There are many cases where the defendant is targeted because they’re rich, and it makes good headlines and helps prosecutors advance.
But there’s no question that O.J. Simpson benefited from his influence. He had a good legal team, but he was also very lucky because the opposing legal team was abysmal, which was the fault of the prosecutor, who should have appointed more qualified people to litigate the case. The prosecution made mistake after mistake.
HPR: In your book, “Why Terrorism Works,” you argue from a utilitarian perspective that torture may be constitutional when a warrant has been issued and in the rarest case of a “ticking time bomb.” Given your experience of states’ corruption of due process, do you have any concern that in the case of torture, the “rarest case” might become the norm?
AD: Yes, I do. And if I could abolish torture, I’d do it. But I am convinced as a matter of fact that if we ever had a ticking time bomb situation or even if we came close to it, any president would authorize whatever means necessary to prevent a mass terrorist attack. And I want to make sure there is a process in place so that corrupt government officials don’t abuse torture. It should be approved by the Supreme Court, authorized by the legislature, and based on a warrant under oath by members of the executive branch. Otherwise every democracy would use torture, and we know it happens in the United States without a doubt. We know it’s happened in France, England, and Israel, and we know it’s happening in far less democratic countries.
HPR: In the 1980s, you advised the People’s Republic of China on reforming its criminal justice system. What are your views on the Chinese system today?
AD: I went to China a couple of times at the invitation of the government to lecture at universities and to observe the system. I believe that the introduction of a market economy, and the attempt by China to lure Western businesses to compete with the United States, which it’s done successfully, would inevitably result in a legal system that would give people greater individual rights than they once had. That reform happened a little bit, but that experiment seems to be in the process of ending.
HPR: So, what advice would you have for the leaders of liberal democracies that benefit from strong economic ties to China but want to see human rights abuses addressed and Hong Kong’s autonomy preserved?
AD: The Hong Kong situation is complicated because it was originally part of England and it had this unusual status. Every democracy faces that conflict. Governments want to do what’s best for their country, and they also want to see human rights upheld around the world, although virtually every country opts for the former rather than the latter. In the end, countries look to their own self-interest, and they’re prepared to close an eye to abuses as long as the abuses remain domestic. My prediction is that most countries will opt for their own economic self-interest over trying to protect the human rights of people living in China and even people living in Hong Kong.
HPR: You oppose the death penalty. As a law student, you even wrote a letter to the Prime Minister of Israel asking that Adolf Eichmann be spared from execution. Given public opinion at the moment, do you think pressure will mount on the U.S. Supreme Court to end the death penalty?
AD: I do. I would love to see every state abolish the death penalty, although many states have retained it and a handful of states in the “Death Belt” execute people routinely. We are out of sync with the rest of the world and we’re wrong. In the end, I think that the death penalty is unconstitutional because of the way it’s administered. Today, you don’t get the death penalty if you’ve committed the most heinous and serious crime; you get the death penalty based on the race, gender, and wealth of the victim and the perpetrator, the quality of the lawyers, and a range of other factors that have nothing to do with the merits of whether anybody should die for their crimes.
HPR: As counsel for President Trump, you told the U.S. Senate that “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” How far can an American president go in ensuring his re-election before his actions become impeachable?
AD: Well, I was very clear. I said on the Senate floor that if anything about the quid pro quo was in any way illegal, it could form the basis for impeachment. But CNN – and you’re going to find this hard to believe – doctored the recording. They took out the part where I said “if the quid pro quo is in any way illegal.” They originally had that excerpt in the quote that was put on the air, but then they wanted to have their anchors saying that Dershowitz believes a president can do anything if he wants to get elected as long as he believes his election is in the national interest, which is not true. And I am seriously considering suing CNN because there is Supreme Court precedent in my favor. So, let me be very clear: A president cannot do anything illegal to help himself get elected, no matter how strongly he feels that his selection is in the public interest.
HPR: Finally, what case has most affected you?
AD: Well I would say there are two cases – one that affected me positively and one that affected me negatively. The case that affected me positively was when Irwin Cotler and I helped free a Russian dissident named Natan Sharansky, who eventually went to Israel and became a politician. I felt a very close connection to him because if my grandparents and great grandparents who immigrated from Europe had turned right and gone to Russia, and Sharansky’s grandparents had gone left and come to America, then I might have been the dissident and he the lawyer. While I could never identify with the alleged clients of any of my other defendants because I’m obviously not going to do any of those things, Sharansky was one of the few clients who I really identified with because he didn’t commit any crimes. All he did was speak up against the Soviet regime.
And the case that affected me most negatively was the Geoffrey Epstein case. As a result of being his lawyer, a woman who I never met in my life falsely accused me of having sex with her. Fortunately, she left behind a bunch of emails that proved conclusively in her own words that she never heard of me and didn’t know who I was. Her own lawyer says that she was wrong to accuse me and that I couldn’t have been in the places where she said she met me. So, after all those years, this false accusation certainly damaged my reputation, and I’m fighting back by suing her and the lawyer. In the end, I’ll be vindicated, but I have never been in a lawsuit, and I never expected at age 81 to spend the rest of my years fighting for my reputation.
Image Credit: Martha Stewart