Alan Dershowitz at the National Constitution Center, March 27, 2014

the judge in this book hysterical Emma's stuff is very hi ladies and gentlemen welcome to the National Constitution Center I am Jeffrey Rossum the president of this wonderful institution as those of you who've been here before know the National Constitution Center is the only institution in America chartered by Congress to disseminate information about the US Constitution on a nonpartisan basis and as part of this inspiring Charter we have a mission that we call our aspiration to be America's townhall the one place in America where citizens can come and hear the best arguments on all sides of constitutional issues in the news and make up their own minds my favorite townhall debate of the past month or longer was one that Alan Dershowitz participated in about two weeks ago this was a debate that we co-hosted with the great group intelligence squared about whether the president has the constitutional power to target and kill American citizens abroad and the audience voted before the show and they narrowly voted no he didn't have that power and after Alan Dershowitz Gabe what I have to say was the most inspiring closing arguments I have ever heard the audience changed its mind and voted that the President did have the power to target and kill American citizens abroad and that was just one example of first of all professor Dershowitz his willingness to argue against his political instincts are against type and also his extraordinary persuasiveness as a constitutional advocate I won't bury the lead ladies and gentlemen Alan Dershowitz is one of my constitutional heroes when I was a high school kid in New York City long long ago in the mists of the 1980s I had on my right by my bed his great book the best defense and read it again and again and I don't know that it convinced me to be a lawyer but I wanted to be a civil libertarian who would defend the rights of people I disagreed with and now he's just written this really riveting book I stayed up all night and read it from cover to cover I couldn't put it down and it's a summary of an extraordinary career in the law the blurb is great at notes and he's been called the winningest appellate criminal fense lawyer in history and that his legal practice has been characterized as the most fascinating on the planet but even better ladies and gentlemen are the blurbs for this great book I don't read Dershowitz President Jimmy Carter Dershowitz is not very bright and he strongly opposed to civil liberties noam chomsky Dershowitz is evil like Adolf Eichmann offering Nazi moral judgments Norman Finkelstein and finally you're not as nasty a guy as my right-wing friends believe Justice Antonin Scalia so speaking of Justice Scalia professor Dershowitz yesterday I think was your fiftieth anniversary as a law clerk you were at the Supreme Court with seven of the justices or so tell us what that was like it was first of all thank you for inviting me to this wonderful place you know until I came here I had no idea how magnificent this building is we shook hands with all the framers of the Constitution people whose work I've been reading for years people whose books I own and and it was to me just a fantastic emotional experience that my wife and I both shared and enjoyed my wife's from Charleston South Carolina so she made sure to say hello to the Pinkney's and the Eldridge's the folks from South Carolina I said hello to Madison and a few others it's fantastic and you couldn't have a better better leader than Jeff he's fantastic extraordinarily well respected among constitutional scholars and has this rare ability to speak both to academics and to the general public certainly a talent I greatly admire so 50 years ago this kid from Brooklyn with a thick accent or walks into the United States Supreme Court to serve as a law clerk I was scared out of my wits and this is 1963 the cases on the docket included the civil rights laws reapportionment New York Times versus Sullivan I would say our year we had of the hundred most important cases of the 20th century we probably had 25 of them Escobedo just unbelievable and this kid from Brooklyn is being asked first thing that justice Goldberg said to me cuz he said what is this and he threw a certiorari petition at me I said it's a certiorari petition he said no this document marks the end of the death penalty in America I said what are you talking about he said I came to this court determined to abolish the death penalty and I purposely picked you as my law clerk because I knew you had a lifetime commitment against the death penalty and together we're gonna find the death penalty unconstitutional I said Mr Justice it's in the Constitution it says in the Fifth Amendment you could execute people it's a living Constitution he said we'll find a way and he said that summer I had to spend all summer finding every conceivable argument I could against the death penalty and sure enough five years later the Supreme Court declared the death penalty unconstitutional then it was declared constitutional but the process began it was such a thrill being there fifty years ago so one of our law clerks decided why not have a reunion so there were 19 of us today there are 45 or so clerks but in our day each justice had to Justice Douglas only had one and the chief had three so we had we had 18 I guess a to two or three have passed away and 14 of the 15 showed up from Hawaii from Texas from all over and I called Justice Breyer who's an old friend of mine and Justice Kagan who was my student and then my Dean and I asked them if they would come to the lunch and they did and they brought with them the Chief Justice Justice Alito Justice Kennedy and it was remarkable just sitting with these justices and just schmoozing with Justice Ginsburg all we talked about was opera with Justice Scalia I serenaded him with a song Scully Scully right and he it was just amazing and they you know treated us but we were older than they are for the most part and it was just an amazing experience to sit with these justices in the Supreme Court knowing how human they are as justice Jackson once said we are infallible we are not we are not final because we're infallible we're infallible only because we're final and it's you know when you get to see the justices and see them in action I had also watched two of the arguments the the Hobby Lobby case very important religious freedom case and a case involving whether the secret service could differentially clear out anti-bush demonstrators but keep pro-bush demonstrators - remarkable cases so it was a great day yesterday and today is going to be an even greater day here thank you it will indeed well I want to start with your childhood to move up but you mentioned Hobby Lobby and you were there yesterday right just give us a sense you know what were the arguments the best arguments on both sides and what was your sense of how that court well I was very disappointed with the Solicitor General of the United States I didn't think he did a good job I thought the lawyer for the Hobby Lobby who's no I'm much less sympathetic to hobby lobby's views political views they are opposed to many forms of contraception and they want religious exceptions for not insuring their female employees to use these four methods of contraception which they believe are abortion but the hobby lobby's lawyer a former Solicitor General in the United States Paul Clemente did a brilliant brilliant job and by the way Hobby Lobby there were two sets of plaintiffs in the case Hobby Lobby and another kind of wood company both had the same argument they said look you can't make us buy insurance against our religious principles to pay for medical procedures that we find religiously offensive that was their argument and fortunately both sides got together and had Paul Clemente make their argument fortunately for them so he had a full 45 minutes instead of breaking it in half and then verelli the Solicitor General argued for the United States government so the main argument that Hobby Lobby makes is in America the right of conscience Trump's the economic benefits or the social benefits of this kind of legislation the government of the United States said no you can't create exemptions for religious exceptions if you do what about vaccinations what about people who won't insure for other kinds of medical procedures what about seventh-day adventists or Jehovah's Witnesses or others who wouldn't insure for blood transfusions what's the limiting principle here and of course the history you have to understand the history a little bit about 25 years ago peyote Native American was arrested for smoking peyote and the Supreme Court decided Justice Scalia interesting who's a very religious man deeply religious man decided that if you have a law of neutral application of laws nobody can use peyote the Constitution doesn't require an exception I remember asking him once you weren't live during Prohibition but what if the statute didn't permit Catholics to use wine for sacramental purposes would that be unconstitutional and he said no it would not be we wouldn't be able to use wine for sacramental purposes of course Congress wrote an exception into those laws so after the peyote case was decided Congress with an unanimous vote in the house we imagine you managed to vote today at anything and 97 to 3 in the Senate voted for the religious Restoration Act that overruled the Supreme Court's decision checks and balances non constitutional decisions can be overruled and said that if there is a legitimate religious claim of conscience the government has to show very strong interests that overcome that religious claim of conscience so that's the issue the other issue is whether a corporation both of these companies were S corporations that has small family held corporations whether corporations can have religious rights can a corporation be religious or are corporations just neutral sibs for for bringing in money and those are the two basic issues ok that's beautifully and described in a balanced way I can't resist if you have done over 30 seconds to give the Dershowitz treatment to why corporations aren't persons what would our human being well I actually think in this case this kind of corporation probably should be regarded as a person it's a it's I think I would put the issue a little differently obviously if Hobby Lobby decided not to incorporate they could challenge this law so the fact that they saw it s corporate status which is a major financial advantage under the law should that change its status in other words should they suffer an economic penalty for their exercise of religious freedom you'd be a very different case of Exxon came in and said we have religious views publicly held corporations are different they're probably not allowed to have religious views because they have a fiduciary obligation to their stockholders but this is a family held corporation and I think it would be elevating form over substance to deny them their constitutional rights and Chief Justice Roberts seemed to be moving toward a narrow compromise along those lines suggesting that closely held corporations can bring the suits but other corporations might be a different matter you think you might get a majority for that I think for that view he's gonna get a majority I think the court will hold that corporations of this nature have the right to bring this but on the merits the case as usual for one side for the other and there's Justice Kennedy sitting in the middle and he asked two hard questions one on each side and nobody could tell how he was gonna come out my prediction Hobby Lobby will narrowly win on a very narrow ground great I mean great prediction I'm not expressing a view on whether or not it's a great thing on a nonpartisan basis by the way they will win is because the Supreme Court knows if they lose Congress will simply overrule them again and simply make S corporations subject to this exception so there's an always enough votes in Congress for religious freedom which is why we have a system of checks and balances because if Congress had its way we'd have prayer in the schools we'd have you know perhaps even a preempt you know as you probably know after the Civil War they try to write a preamble to the Constitution which included reference to Christianity and Jesus and Congress will almost always pass favoring religion which is why the first amendment took that issue out of the hands of the popularly elected representatives which has been a great theme of your career all right we have to start at the beginning of this great book with your 6th grade report card okay here we go unsatisfactory in deportment and getting along with others D in effort and achievement and comprehension D in respect the rights of others you did get an A and speaks clearly haha and your mother and the teacher told your mother his body is clean but his mind is dirty he refuses to show respect to his rabbis has anything changed I think early report cards a very predictive of how you're going to develop in life even at the end of high school I have a photograph I found my high school senior year report card and in the picture section I have a photograph of my senior semester report card 60 in physics with a red circle around it 60 in math with a red circle behind it 65 in Hebrew I went to a Jewish parochial school and two other pretty lousy grades okay flash-forward two months this is June a gray barely graduate June of 1955 September of 1955 I enter Brooklyn College eight plus in physics eight plus in math first in my class top of the class in everything what happened I could never figure it out in two months I turned from a terrible terrible student graduating with a 68 average from a mediocre high school to within five years being first in my class at Yale Law School which is probably one of the most selective law schools in the country did I have did I have different water I don't know what was going on and so I had to write a book to try to figure out what changed in my life over that short period of time and you you said summer camp had a lot to do with it it gave you confidence summer camp gave me confidence so when I went to summer camp people told me I was smart and and I took him seriously and when I went off to college I decided to pretend I was smart of course for the first three years I thought they were gonna catch me and figure out I was really this dumb guy who was pretending to be smart I had all these doubts at all the same dreams probably so many of you had you know being late for exams not being able to find my exam but you know after a while it was getting all these good grades I figured maybe you know maybe they were right Mike - Eva teaches Oh weren't right you know my Shiva teachers would tell me if I came up with a good idea it raised my hand come up with a good idea they would say if your idea is such a good one the rabbi's who was so much smarter than you would have thought of it first smarter than you need to think of it first it can't be such a good idea they persuaded me okay I want a little more singing do the whistle do the wood do the whistle while you work what are we saying we were a kid yeah whistle while you work Hitler is a jerk must Shalini is a meanie this this last but I hate to say and the Japs are worse but that's what we used to say I hear some of you know that song and what else did we have oh yeah we had so many of those little and we got paid a penny a day in Rockaway Beach to look for German submarines and so we took it so seriously I was like six years seven years old we would sit there we'd watch and every time we saw a bird a separate never caught a submarine that's like an L Brooks movie when he's going off looking for Hitler right yeah but of course there were submarine there were miss you missile submarine you could have stopped the war I problem or tragedy and then you but this is a sign of how teachers can influence people they were always telling you you're not you're not good enough you're a 75 student you couldn't even ask out the girl because because you'd been grouped as a C and she was a name right yeah I they for our prom they divided the class into a B and C I was in the C list so I couldn't ask out somebody from the a-list I could only ask out somebody from either the C list of the B list so I went with my cousin and since we're on it and you talk about sitting on the porch with your friend Harold Ramis on telling Jo and I'd love to be a fly on the wall but do the one about the or the Orthodox kid with the yarmulke who goes to the strip joint as well well this wasn't a joke this was a true well it was a funny business so we went to yeshiva and of course there's nothing more horny than yeshiva boys we were 16 17 years old we were told you know materna sure you can't touch you can't think you can't watch you can't do anything and one of us I don't remember who it was made the greatest discovery in history that if you took the bus from Port Authority terminal over to Union City New Jersey there was a strip joint and we could go to the strip joint and watch what we couldn't touch and so one day we all cut school and decided to get on the bus and we go to watch the strippers and our friend Irving comes with us Irving was more religious than we were and he refused to take off his key fob we of course took off our key fob pretended you know we were other kind of people but he was keep on of course he sat in the front row you get the best seats and the guy in the back the drunken guy in the back is yelling take it off take it off early 40 men is yarmulke he stood up and said I will not this is my religious practice to this day he's a lawyer in Washington every time I see him I say everything take it off all right this is scandalous we have to talk about serious constitutional issues here at the National Constitution religious liberty later on Yale Law School you have very kind words for Alexander Bickel who are the great influences on your constitutional thinking Alex Bickle was one of the great constitutional scholars of course he's on this long list I want to create a long list of faculty members that Harvard didn't hire it would be the greatest faculty in the history of the world Richard Posner Alex Bickle Bruce Ackerman I mean we've had such bad judgment and who we've hired present company included I don't know but but Alex Bickle was a genius and helped kind of reformulate a new way of looking at the Constitution Johnny Lee who was my classmate was a big influence on Telford Taylor was probably the major influence in my career choice general Telford Taylor was a young man in the intelligence agencies of Europe at the end of the Second World War out of Harvard Law School and Robert Jackson is appointed to become the chief prosecutor at earn burg and he hears about Telfer Taylor and he says get that kid I want him to be my deputy so next day lieutenant Telford Taylor is now general Belford Taylor Swift this promotion of the history of the army and he becomes the chief prosecutor in nürnberg and was my teacher at Yale and was also a constitutional litigator in the Supreme Court and I wanted to be him I just wanted to be like him I could never choose so I wanted to be a teacher I wanted to be a litigator I wanted to be a writer I always wanted to be everything and Telford was everything so he was a tremendous influence on my life and then you had these two great clerkships with Judge Bazelon and justice Goldberg what did you what did you take out of them well a lot of things my father worked 6 days a week he was not well educated he didn't graduate high school didn't read my hat my house was not a typical what you stereotypical Jewish house I had no books in the house I had no art no music and I love music art I'm going right from here to the barns Museum we go to the Opera all the time don't know where all that comes from because it didn't come from my house so my father was never home he worked six days a week he had a little store in the Lower East Side I did not have a close relationship with my father I think in a lot of Jewish homes the mother was really the person who dominated and the father was out there working very very hard working on Sundays and so when I met Judge David Bazelon and justice Arthur Goldberg both of whom were my father's age they became real father figures to me they were both Jewish liberals from from Chicago both serious intellectuals both you know taught me how to be kind of Jewish but activist and liberal and they were both incredibly important figures in my life they were very different Goldberg decided he knew exact leave what I should be in life he got me my first job without asking me it was a great job to be one of Robert Kennedy's assistants but I didn't want to do that I wanted to go and teach at Harvard so Bazelon said don't ever fit in anybody else's footsteps you know just make your own life Goldberg knew what I wanted to be he ultimately wanted me to be a justice of the Supreme Court like him now he was lucky because he had a clerk the year after me who did become a Justice of the Supreme Court Stephen Breyer but it was never my way to be a judge and I didn't want to be off the Goldbergs I wanted to be me so but he was I remained his law clerk till the day he died I remained a Bazelon law clerk till the day he died these are clerkships for life and I try to do the same thing with my research assistants I'm in touch with 50 or 60 of my research assistants all the time I maintain a very close connection with them they've gone on to great things John Sexton the president of NYU Joel Klein who was the Chancellor of the New York City school system Jamie Garelick I mean just a series of phenomenal Eliot Spitzer let me tell you it wasn't Elliott's fault it was all my fault he used to work so hard for me he would be in my office at 8:00 in the morning he'd be there until 10 o'clock I remember one day saying Elliot do something fun absolutely fine who know that 20 years later Oh your fault speaking of which I want to talk about you're one of your first important cases involving obscenity and that was I am curious yellow and it was this I guess softcore movie and the Supreme Court in the 60s is grappling with obscenity standards and there's this incredible oral argument where well let you tell the story to two judges with very different approaches right well I'm 30 years old and I'm asked to argue my first case in the United States Supreme Court on behalf of the movie I am curious yellow which today you could show on you know general television but in those days regarded as the most salacious movie in history and they sentenced my client to jail for a year for showing the movie this was the symphonie cinema theater right across the street from Symphony Hall in Boston the week before it showed the movie closely watched trains about the Czechoslovakian woman and the Holocaust this was an art movie theater and a poor guy named Kerr Alexis a Greek American immigrant gets sentenced to a year in jail for showing the film I am curious yellow so I get to argue the case we win it in the court below and we have to argue in front of the newly appointed Chief Justice Warren Berger who was an imbecile I mean just he had an IQ he was beautiful he had the most gorgeous white hair he was handsome but he just couldn't hold an idea in his head for more than I mean just was not at all bright so I get up to argue the case and you have some very smart justices there he dominates the argument he says well what if it was a bear-baiting contest now coming from Brooklyn I didn't know what this was but I assume something which the bear gets hurt and I said well your honor of course the Constitution permits the states to have laws protecting animals from cruelty sir all right if that's your answer well what if it was a film of a bear baiting contest so I said well obviously if you could prevent the bear baiting you could well what if there were five bears he had assumed that each of the questions I would answer no his law clerks had written had a series of questions based on a no answer to the previous questions but I had answered yes and so his questions were moronic ly irrelevant and the other justices were sitting there looking at this chief justice and he was just embarrassing them and he dominated the entire argument and of course the court decided the case on procedural grounds never mentioned bears they presented anything but it was my first experience arguing in the Supreme Court it was the dumbest argument I haven't participated and in my life I mean I had more intelligent arguments with the butcher in Borough Park in Brooklyn and I had for the chief justice in the United States since that time obviously the current chief justice is probably the best lawyer ever to serve on the United States Supreme Court in terms of his League qualifications as legal experience I mean he's just an absolutely brilliant constitutional litigator I agree with him about nothing but but but two things one he's the nicest man in the world just a sweet nice guy and second in terms of just lawyerly skills and lawyerly ability he's just unparalleled in his ability I think and here's a great picture of you with him in front of his fireplace and he was your former student what was he like a student well I didn't have him in my class I have he was just a student at Harvard Law School he knew me I knew him slightly but not well the guy who's really mad at me there's one guy who twice applied to my sent my course on legal ethics we have a course a mandatory course on legal ethics and only fifty students could be in it because we want discussion so every year I have four or five hundred applicants to my fifty class legal ethics and twice I turned this guy down I didn't do it was the computer and every time I try to go to the White House the guy says to me look why should I invite you to my house you didn't invite me into your class so I had the bad luck to exclude President Obama twice from from my class I don't know whether Roberts ever applied to my legal ethics class and I don't recall him as a student I just recall him knowing him as as a person and Elena Kagan was my student she sat right next to Jeffrey Toobin and they had their hands up all the time and Oh Ted Cruz was my student he walked into the class with his right hand got high and kept it up the entire semester so he was he was a very good student conservatives like your class and you respected them and you gave him as good as he took I loved having conservatives in my class because I hate preaching to the choir number one I don't like preach in class at all but I like having different points of view and the first I would say 10 years I taught at Harvard there were no conservative viewpoints expressed in class there were no radical left viewpoints either they were all kind of you know Liberal Democrat kind of fuzzy-wuzzy points but ultimately the Federalist Society gets warmed the Constitution society gets warmed there's much more of a clash between right left feminists come african-american students come to the class Muslim American students come to the class thus the classes become much more diverse and much more interesting speech has been a theme of your career and you surprised many people by defending narrow speech codes but then when you tried to write one no one could agree tell us about that so my life has been devoted to promoting free speech I got into such serious trouble with my mother when I defended the rights of Nazis to March and Skokie what did she say about it I said which side are you on the Jews of Nazis I was very simple I said my free speech that free speech free speech Nazis or Jews who are you gonna pick so I said look I'm not on the side of the Nazis I just don't think we should have censorship if people want to walk through a neighborhood with signs they should be allowed to do that so I've always been in favor of free speech but I am in favor of narrow speech codes on universities why because we already have speech codes can you imagine a professor at a law school or at a college pointing to a black student and saying hey and then using the n-word or calling on a woman student and saying oh by the way chick or Dame or something like that you know of course they'd be fired you can't do that in a school you can't demean students based on their race their ethnicity their sexual orientation so we already have a speech common law and I don't want the deans making these decisions or some administrative board I want to know in advance what you can't say and what you can't say I want to know for example whether I can use the n-word in a classroom in using an example about words that are prohibited or not one of my colleagues Randy Kennedy who's african-american wrote a book whose title is that's the title of the book and it's a word I never ever used in my life never used it in all of my life but when you're reading somebody's book title it's an appropriate word or when once when I was teaching early in my career I was talking about plea bargaining and a student very nice student I became friendly with later races Hannah said well if I hadn't been if I had been the defense attorney I would have tried to Jew him down a little bit more and then everybody class looked at him and I looked at him he had no idea he was saying anything offensive and of course how many of us have used the word gypped in our lives welched Indian giver you know all of these terms are ethnic slurs it's interesting that the word niggardly has nothing to do with the N word but the word denigrate does to denigrate is to reduce to the status of Negro and you know that's a word that probably we ought to be more sensitive about using but you know I want to know what I can say and what I can't say I want to know whether I can joke about things not joke about things you know whatever the school tells me I'll live by their code but I don't want to learn after the fact or have a student learn after the fact that these are things that are prohibited so I do favor narrow speech codes we couldn't draft it at Harvard because nobody could agree not the first time I'm sure right so I guess earlier this month was the 50th anniversary of New York Times versus Sullivan not a surprise because it was decided when you were a law clerk and you helped justice Goldberg write his concurrence we had a great debate a podcast debate last week between Richard Epstein and Jeff stone about whether New York Times versus Sullivan was a good thing and Epstein said it was just a terrible thing for free Express why am I not surprised look when we got a sign to do the concurring opinion in New York Times never saw it first the first the story you know of course always the story so one day I come out to Justice Goldberg chambers and there is a basket of fruit and I hadn't had breakfast that morning so I took a banana it was for justice Goldberg it was his birthday was and I took a banana and I ate the banana and Goldberg comes back from court that day and he says what's that I said oh it's a you know basket of fruit for you happy birthday mr. justice who's it from Katharine Graham the publisher of The Washington Post he said we have New York Times versus Elam in front of us you have to return that basket I said but Mr Justice I eat a banana he said you go down to the fruit store you buy a banana you put it back in that ask it and then you return he did not want to be influenced by a banana or have me influenced by a banana so when the case first came in Goldberg was very skeptical he loved free speech but he had been attacked a lot in his career as Secretary of Labor and some of the attacks had been pretty bitter and some of them had been ethnic you know with a name like Ober and and finally we sat around with the two clerks and my co quickly McTernan played a very very important role in this particular decision and Goldberg said look I'm gonna bite the bullet I'm gonna I'm gonna join the majority on this but I want to write a concurring opinion saying it's gonna be costly it's gonna have a real impact on whether people are gonna run for office you can attack them you can say things about them and I've been victimized by that over and over again you can go online and you can see that I murdered my first wife it's on it's on a Holocaust denial website from Melbourne Australia I can't find the guy my first wife died tragically but I did not murder her and and and you can also find on the website a cartoon of me done by another Holocaust denier in which I am sitting in front of a television set watching the Israelis murder Palestinian children in Lebanon and I am masturbating enjoy to watching these scenes and you can you can get those on online they're disgusting they're despicable and worse anybody who's a public figure can be maligned and attacked in the worst possible way without any recourse my children read this stuff my grandchildren read this stuff it's horrible that's the price of New York Times versus Sullivan and it's a price worth paying yes if you think of what the opposite would be everybody in politics is pretty thin-skinned and if you started having lawsuits against everybody who was in any way controversial it would really weaken the constitution considerably so it's a cost worth paying and if you don't like to eat out of the kitchen I mean if you want to be in public life there's still a lot of protection from people who stay out of public life but if you want to be in public life you have to understand particularly today with the internet that you're gonna get blasted all over the case my wife and I are now actively involved we have a condo in Miami Beach there's a law in Massachusetts if you're Jewish and you turn 75 you have to spend at least three months in a condo in Miami Beach so we don't break the law we've bought a condo in Miami Beach and it was designed by a beautiful architect named Michael Graves wonderful wonderful architect and some of the people in the building think it's not glitzy enough so they want to make it glitzier so my wife is kind of involved in the campaign to preserve Michael Graves aesthetic image of our building and you should read the blogs that are coming out about us they're just terrible and you know Carolyn is now a qualified public figure because she thrust herself into this painting and she now can be criticized and the people who are calling her name's have qualified immunity is the result of New York Times versus Sullivan welcome to the real world of the current Internet and yet in Europe it's the opposite and you were sued in Italy because criminally indicted criminally indicted he's criticized a judge and it was read and Turin or something what happened is in my office one day and I get a letter saying you're under indictment in Italy for having criminally defamed a judge on this and this date and this in this year check my calendar that date I did two things I told 150 students at Harvard Law School and I had lunch with a federal district court judge pretty good alibi I was not in Turin that day but I did have a phone call that day from an Italian editor in New York for a newspaper called La Stampa asking me if I would comment on a decision by an Italian magistrate judge who freed terrorists to terrorists on the ground that they were freedom fighters and I asked him to send me the opinion in English they did and I read the opinion carefully and I commented on it and I said it's a Magna Carta for terrorism and it reflects ignorant of international law she said she filed a criminal complaint against me the judge for criminal defamation and the prosecutor upheld it so for seven years I've been under indictment in Turin Italy every time we go to Italy I hold a press conference I say Here I am Here I am arrest me I'm ready I'm ready to stand trial you know obviously it's not gonna happen but technically under Italian live committed a crime my love-hate relationship with the Scalia's that's a great vignette so when I was in Brooklyn college I ran and became president of the student body and one of the things I ran on was as a liberal because any of you not any of you by any chance to go to Brooklyn College yeah hey how about that so you'll remember Brooklyn College in those days was called the little red schoolhouse and they had president Harry Gideon's who was brought in from the Midwest to get rid of the communist influence isn't all the city colleges they were thought to be to left and so I ran on a campaign of protecting the rights of faculty and students to express free speech and so I got elected and one of the professor's on the other side who was trying to get rid of another professor was a man named Eugene Scalia who was Justice Scalia's father he was that Eugene Scalia was chairman of the Romance language Department one of the people in his department was a guy named Harry slack our who refused to take a loyalty oath because he had and refused the name people who had been in some lefty organization in the 1930s and I supported slack our and got to meet this wonderful man Eugene Scalia who was the most charming nicest right wing guy and so when Justice Scalia was a student at Harvard Law School and then subsequently a professor at Chicago you know I got to know him a little bit and we knew each other mostly through talking about his his father and and just the other day you know we renewed we I wrote a book against him I wrote a book called supreme injustice where I really take him on for Bush vs. gore and we know we disagree about just about everything but we share a love of opera an admiration for his father we have common background he went to parochial school in New York at about the same time I did he went to Catholic broke the school and with Jewish parochial school we have very similar upbringings and different religions I have respect and admiration for his views and his ability to articulate them though I fundamentally disagree so we've had this love-hate relationship over the years and it's not surprising that you can do that his best friend on the Supreme Court is Ruth Bader Ginsburg and they disagree about virtually everything now there's one experience in this book that we actually shared this was the time we were both asked to testify about the history of lying during the Clinton right Pietschmann and I gave a very you know written piece in The New Yorker about the history of lying and gave a sort of scholarly presentation and then you had this incredible exchange with congressman Barr who said you weren't a real American and I have to say at this point I've never forgiven you for this you gestured very theatrically in denouncing congressman Barr and the next day in the Washington Post one in front of the Washington Post your hand is completely covering my face blocking me because of your great extreme our daughter is a professional actor off-broadway and so I have to tell her about the upstaging and not to do that okay so I start testifying and and my whole testimony was the hypocrisy of Congress in not caring about serious perjury and police perjury is rampant in the United States today policemen are constantly being told essentially to lie about the circumstances underlying illegal searches and seizures I don't believe the police deliberately lie to frame innocent people that's not America maybe Iran it may be China it's not America but I think when the policemen engage in a search that's illegal and find drugs or find a gun they are essentially taught to lie about those circumstances to say they saw a bulge they saw something suspicious and Congress never does anything about that so I pointed out the hypocrisy and then a congressman Varro whose since he's left Congress has turned out to be quite a civil libertarian anyways turned to me and said well I don't know about you but real Americans and I said whoa don't ever call me anything but a real American when my grandmother came over you know and I lectured him about how bad that term real American is and he said basically I didn't mean anything just Midway well you know there's no such thing people who speak with accents are real Americans my grandmother who came from Poland never never lost their accent July 4th she would make us go to the Statue of Liberty and sing not only the entire national anthem but the second verse that nobody knows my grandmother knew the second verse second national anthem I don't remember if my grandmother and and so you know I grew up in a family of tremendous patriotism tremendous love for America this is the country that rescued our family from the Holocaust and from the persecutions of Europe nobody could be more American than than our family and to have somebody suggest that I was anything other than a real American and he may have thought I was in academic therefore not a real American that's a possible interpretation but I don't I think it was a combination of those factors and then Judge Higginbotham who came right after me did the same thing and and said how dare you suggest that we're anything but real Americans were patriotic we love America and we want to see it maintain consistency in how it deals with lying it was an incredible day congressman Hyde asked her if you've been to Auschwitz it was just it was something you say in the book that Robert Bennett President Clinton's lawyer committed a serious blunder by allowing his client to fall into a perjury trap tell us about well I was still still amazed to me John Kennedy just before he was was killed was the editor of George magazine and he asked me to do a article for what turned out to have been I think the last issue of George magazine on the ten greatest legal blunders of the 20th century and number one and number two were Bennett the idea that a lawyer would allow Bill Clinton to testify about his sex life in a deposition depositions of the most open-ended kind of enquiries you cannot object on the ground of relevance at the time he knew that there were these kind of allegations floating around and so the only two three three alternatives were for the president to admit things that would be very dangerous for him to admit publicly to deny them which would be perjurious or to refuse to answer which would be a contempt and bennett never told the president about the fourth option the fourth option since the lawsuit was for a specific amount of money $750,000 was simply to walk over to the clerk of court with a certified check for $750,000 deposit it with the clerk of court and the case is over it's called a default it's done every day of the week if you have a lawsuit against you for even if it's a frivolous lawsuit one of your former employees Sue's you for $10,000 for false dismissal and you know he knows secrets about your company that you don't want reveal you paying the ten thousand dollars and and and Bennett never told the president that he had that option and how do I know that because President Clinton told me that and then I checked it with Bennett and Bennett acknowledged it he said it was stupid I didn't want to tell the president about that it would be a bad idea let the president make that decision and if he hadn't testified at that deposition he wouldn't have been impeached and it was awful for him awful for America and it was one of the worst legal judgments I have ever seen I still to this day don't understand it I think one of the reasons is when you're so when you're representing a celebrity you don't often want to tell them things they don't want to hear you confuse your role as lawyer and cheerleader and I tell my students if you ever represent important people celebrities you have to be prepared to walk into every meeting being ready to be fired you have to tell them what they don't want to hear an interesting story about that I had a very close friend and was also my cardiologist named Bernard lown who was one of the great cardiologists in Boston and he was so famous that he had a lot of very famous people including King Hussein was one of his patients and I can tell the story because it's in Bernie's book and so Bernie gets flown over by King Hussein's private jet to Amman to examine the king who's having some chest pains or something like that and he comes into the room and there's the King wearing his robes and there are about twenty five retainers standing around including about ten doctors and five nurses and Bernie says you know I only examine patients alone just with me and him in the room own over the king is not allowed to be alone with you and by the way he has to take off his robe I have to examine him naked oh no the King can't be naked in your presence and and Bernie said well then I I have to leave just take me to the plane I can't perform my medical services without doing it the way I think finally the king said okay and he examined him and said hey King you know you put on a few pounds here and there you're doing this you're doing that he was had to tell the King what the King didn't want to hear he had to be able to be direct with the King animated went south the king many in many ways when you're representing the president you have to be willing to put your finger in his face and say mr. president you can't testify about your sex life nobody will believe you you can't testify about who you've had sex with I wouldn't believe you nobody is gonna believe you you have to figure out a way of not testifying you have to be able to say that to the President or the CEO or Michael Jackson or whoever it is you are representing or providing medical care to if you're the doctor and Michael Jackson says I want this drug to put me to sleep you have to say no no you're not getting that drug that's against medical advice you can't give people what they want if you're gonna be a professional what's the toughest advice you've ever given a client the toughest advice is always plead guilty but I'm innocent doesn't matter whether you're innocent or guilty there's a 60 40 percent chance you're gonna get convicted and if you get convicted you get in ten years I got you a deal were you getting six months but I'm innocent but you can't take that chance but how can I get up and say I did it I'm innocent because that's the way the system works unfortunately it's a terrible system but you get ten times often the amount of punishment for pleading not guilty and going to trial we claim we don't have a penalty attached for invoking your constitutional right to trial by jury but we do and that's the reality and telling an innocent client that he has to plead guilty is the hardest thing you have to do and you have to persuade him to do it the other thing is to persuade your client not to take the witness stand but I'm innocent then I've persuaded everybody and I'm very articulate and I'm very able to that's not the way it works if you testify everybody's gonna forget about all the evidence that we put in previously they're just gonna look you in the eye and see whether they like you so it's very hard being a criminal defense lawyer and you often have to tell clients what they don't want to hear or what you don't want to tell them but you have to do it alright so many great questions from our wonderful audience and the first one is can or should a defense lawyer defend a defendant he knows is guilty yes and if you don't believe me listen to Abraham in the book of Genesis Abraham meets God in chapter 18 by chapter 19 already he's saying to God anybody understand Hebrew kalila kalila far be it from you God you will sweep away the innocent with the guilty what if there are 50 innocent people in the city of Saddam and there weren't 50 innocent people and Abraham argued forcefully for the for the guilty people of Saddam Moses when he came down from Sinai and he sees the the Hebrews dancing around the Golden Calf he defends them he says to God if you don't forgive them you can erase me from your book it's a long tradition of defending the guilty and and the important thing is think of the alternative the alternative is if you wouldn't represent somebody you think is guilty first of all you're not the judge in the jury and I've had many experiences where I've thought defendants are guilty and they turn out to be innocent the opposite to where I thought they're innocent they turned out to be guilty we're not judge jury and executioner we don't want to live in a system where only people the government regards as innocent get to be represented first of all the government wouldn't be prosecuting them if they were innocent look let's face the reality most defendants who are charged with crime of guilty thank God for that we wouldn't want to live in a country where most people charged with crime are innocent that might be China Iran it's not the United States of America so the job of the criminal defense attorney is to defend the guilty but to do it by ethical and lawful means you do not put a guilty defendant on the witness stand you do not allow a guilty client to testify mostly you don't allow an innocent client to testify either so that doesn't really indicate whether you think he's guilty or innocent but you don't do anything unethical or improper and you don't lie to the jury you don't lie to the judge but you make all the arguments you can that are ethical and proper when I did the OJ Simpson case everybody loved the fact that I was defending OJ Simpson Wow that guilty guy gets good lawyers he's gonna get convicted due process nobody hated me when I defended OJ Simpson until he won when he got acquitted people were appalled how could you do that we were counting on you to help him be found guilty we wanted you to be there to show the system works you you're a traitor you actually got him to be found not guilty and that's when people really hated it my mother called it the ivy oj part of my life well in the in the book you talked about the fact that you took the case because he was charged with a death penalty and then he ended up not being charged and it was a coincidence that you were in the courtroom when he put on the glove unbelievable I happened to be I was not in the courtroom most of the time I was the god forbid lawyer I was the guy I was going to do the appeal if and when he lost us we all thought he would lose and I happen to be flying to Australia to give a speech can't fly to Australia straight from Boston stopped in LA my son picked me up at the airport I said well let's stop off at the courthouse I'm not doing anything today but you know busman's holiday let's to the courthouse we turn the radio on as we left the airport it was the most boring day of testimony there was his glove manufacturer who was testifying about the glove well when we make gloves we do this kind of a stitch and that kind of stitch went on and on and on we're practically falling asleep in the car I said come on we'll just go going the court we'd go to the courtroom I'm sitting here Oh Jay is sitting literally right next to me and Darden the prosecutor says mr. Simpson will you get up I want you to try on the glove shock in the courtroom shocked by all of the lawyers because we knew that under California law you could ask a defendant to try on the glove outside the presence of the jury first to see if it fits before you asked him to do it in front of the jury Darden didn't do that he was so self-confident and arrogant he just had him do it in front of the jury Oh Jay puts on the glove and of course anybody can make a glove not fit you just make sure you stiffen your hands moreover the glove had shrunk obviously it had been in a refrigerator and to do that demonstration oj puts it on he says it's goes right in front of the jury and says it's it's too small at that point he had already testified he didn't have to testify it was one of the worst blunders that one was number three I think in my job a great of great blunders of the 21st of the 20th century you know lawyers get clients in trouble Martha Stewart went to jail not because of what she did but because of who she picked to be her lawyers she picked a bunch of lawyers who allowed her to tell her story in front of the SEC or in front of the US Attorney's Office and she got indicted for falsely telling her story she didn't get indicted for insider trading you know when you get indicted after you have a lawyer on the basis of your lawyer's advice or impeached you know there's something wrong with your lawyer and there are too many lawyers who get too many clients in too much trouble which of the many celebrated cases did you become most emotionally involved with and what I think maybe Sharansky was the most emotionally involved because there for the grace of God go I this was Anatoly Sharansky a great dissident in the Soviet Union his family came from the same part of Poland Ukraine my family came from his family made a right turn and went to Moscow my family made a left turn and came to New York had our families switched I'd have been the dissident in Moscow he'd have been the lawyer in America I'd never met him when I represented him but I had a tremendous emotional attachment to his case and his cause and when he helped get him out finally Irwin Cotler and I were his lawyers and when he came out and he threw his arms around me and he whispered in my ear borrow my tear a Sioux Rim blessed are those who help free the imprisoned from a blessing it was the biggest fee I ever got obviously he didn't have any money I did the case free but the gratification and that result I just I still when I think about it I still get emotional maybe it's a different version of the same question but which case you're proud are you proudest done well I'm I'm proud of that but he really is the guy who should I mean he's the hero of that case look I'm proudest of the cases where everybody told me I couldn't win when I got the Mon Bulow case there were articles all over saying oh why is he even bothering to appeal it's a slam dunk it's open and shut he'll never win then when we won the appeal they said oh but it'll be convicted on the second trial and you know he was acquitted and I'm convinced there was no crime committed there and I think that case also because my son I worked with my son on that case he's a movie maker and he made the film reversal of fortune and I think it brought the concept of an appeal to a broader general public and made it clear that you know when appeals just for technical reasons that an appellate process can help really vindicate the system and also vindicate potentially innocent defendants so I'm very proud of that case and are there any cases you regret yeah oh sure Leona Helmsley I've never met a more difficult person in my life I mean she was just unbelievable she was just so mean and cruel I can't tell you I can only tell you things that are matters public record but there are so many of them one day we were sitting and having tea together in one of her hotels breakfast I was giving her legal advice and but my tea came and it had a little bit of liquid in the saucer I didn't even notice it she saw it she took the tea cup and the saucer threw it on the marble floor and then said to the young Latino waiter now get on your hands and knees and beg me for your job back and at that point I said Delhi ona I will never be seen in public with you again except in court I don't want to be associated with your horrible conduct and you want me to be your lawyer that's fine I'll represent you in court but don't ever ever ask me to be with you again in another public place and I never saw her again in public I never saw her again outside the courtroom and that was just typical of her of her behavior she was just difficult impossible she she had a very important case and the reason she was convicted is because she was the queen of mean they indicted her on April 15th tax day for what was a relatively minor tax a violation but it made me think hard why would a woman who had in the bank the day she was indicted she could write a check for three billion B three billion dollars why would she cheat for ten thousand dollars I mean basically what what they accused her of doing she go into jewelry shops on Fifth Avenue Winston or Cartier and she would buy a bracelet or something or earrings and she had to have them immediately but she didn't to pay the tax the sales tax so she this is the accusation so she would wear the earrings out but have them send an empty box to her home in Florida so that she didn't have to pay the what was it six percent in those days seven percent sales tax so why would a billionaire risk a year of her life she had a relatively short life left why would she risk which he had a small amount of to get more of what she had unlimited amounts of I would say the same thing about Mike Tyson Mike Tyson had sex with more than ten women and the week before he was indicted for having sex with the 11th woman and she accused him of rape why would you put at risk your life your career your championship to get more of what you have unlimited amount of and put at risk what you have limited amount of it's the craziest thing and so many of my clients have done that and they just seem never to learn and I just don't understand it one last question unfortunately because I love to go on it's been so much fun I'm so delighted that you bought in the gift shop are extremely tasteful tying which is very understated actually and I'm just very glad to see it on you this is the question this beautiful place the National Constitution Center is devoted to the idea that citizenship is a high privilege that all citizens can participate in a conversation about what the Constitution means that's what your entire remarkable impressive career has been about what does citizenship patriotism the Constitution what does being an American mean to you well it's you know first of all this is an amazing Center this is just absolutely amazing and the fact that it's bipartisan I had lunch the other day with Jeb Bush who was busy now he's our chair chair and he was so proud of having given an award to Hillary Clinton because for him bipartisanship over the Constitution is crucial and I think for all of us I mean there are so few things that bring us together in a country that's so divided but commitment to our remarkable Constitution this document is just so unbelievable whether you're a scallion who believes in the original understanding or whether you believe in a more living Constitution I believe in both I believe parts of the Constitution have to be defined by their original meaning and other parts due process equal protection cruel and unusual punishment the broad things were given us under a principle of constitutional common law where we have not only the right but the obligation to construe and interpret them in terms of their meaning today so I think there are living parts of the Constitution and there are not so living parts of the Constitution but this document is just remarkable and for me I can't imagine any greater privilege then to have been born an American citizen or to be accepted by choice as an American citizen and you know my family came over during very very difficult times that's why I'm so sympathetic to people who were trying to become Americans and why I understand how some of them have to do it through means that maybe today we wouldn't find acceptable but we are a nation of immigrants the recency of our immigration is only a matter of degree the difference between somebody who came over on the Mayflower and somebody who most recently tried to swim from Cuba to come here immigrants have made this country in a builder's country and for me the privilege of citizenship should be earned and it has to be earned not by one's past but but one's commitment to America one's commitment to the Constitution my friend yo-yo ma he says the most important part of every year for him is not playing in Carnegie Hall but when he plays at the ceremony in Boston when he when his peers he was an immigrant from France became a citizen and when he plays for the new immigrants and and he welcomes them to America as new immigrants he says that's the highlight of his year and when I have an opportunity to meet new Americans I share the same perspective so you know congratulations to all of you who are active in this wonderful Santa congratulations to this Center the Constitution is now the oldest existing document of freedom that continues to operate in the history of the world may it go from strength to strength may it continue and endure forever thank you thank you

Channel: National Constitution Center

Views: 7,958

Rating: 4.2558141 out of 5

Keywords: Alan Dershowitz (Author), constitution

Id: rj6JPDHEUIA

Length: 66min 6sec (3966 seconds)

Published: Thu Mar 27 2014