CLAY: We are joined now by legendary — I think it’s fair to say legendary — lawyer Alan Dershowitz, who has talked about basically everything under the sun. He is professor emeritus at Harvard Law School, number one New York Times best-selling author, written 50 books. His latest, The Price of Principle: Why Integrity is Worth the Consequences is out now. Would encourage all of you to check it out.
Professor Dershowitz, I just want to dive in, big question here for you. And I’ve seen you discuss this a lot on Fox News. But based on everything that you have seen so far — and I know we’re waiting to see what’s gonna happen with the affidavit and whether it’s going to be released — did attorney general margin of error never make the rightly decision to sign the warrant leading to the warrant application that led to the raid at Mar-a-Lago?
DERSHOWITZ: Based on what I now know, he made the categorically wrong decision based on his own principles. He said at the statement that the Justice Department generally prefers less intrusive methods, uses them whenever possible. A subpoena had been issued, there had been negotiations, all the Justice Department had to do is enforce the subpoena, go to court and say, “Your Honor, we haven’t been able to reach a resolution. There’s a subpoena out there,” order them to bring the boxes in tomorrow, then you go through them, and you decide which documents classified, declassified, privileged. That’s the way it should have been done.
Now the affidavit, when it’s released may show, you know, that there are dead bodies lying around. And, you know, nuclear codes lying around. I don’t think so because if there were, there would have been much greater speed, even when they got the search warrant they waited a couple of days before they did it and before they implemented it.
BUCK: Professor Dershowitz, are you of the mind — I know right now there’s the hearing underway on on the Mar-a-Lago raid affidavit. Is your expectation that it will be released? What are the considerations that the court has to make here? And assuming it is released, what are we looking for? I mean, what are some of the things that you’re gonna be looking at in terms of the next steps?
DERSHOWITZ: Here’s what the judge ought to do. Whether he’ll do it or not, I don’t know. I don’t know the judge. He ought to call the government and say, look there’s a presumption in favor of transparency, in favor of public disclosure. If you think there are any things in the affidavit that require secrecy because of ongoing investigations, the burden of proof’s on you. Show me. Which sentence, which words, which paragraphs? And I’ll redact them and then we’ll produce the rest of the affidavit that’s unredacted. I don’t know whether the judge is gonna do that. He may just say no, I’m gonna keep it secret and then possibly there could be an appeal by the media. Remember, there’s a media that are involved as well as Trump.
Look. I have a policy that I’ve had for years. And I write it in my book The Price of Principle. If you have two sides to a dispute and one side says, “Produce everything, no secrets, produce everything,” the other side says “Hide everything, no production, hide everything,” I generally believe the side that wants everything out and I don’t believe the side that wants secrets. I’ve had a lot of experience with the government’s claiming secrecy and crying woke and it being false, starting with the Pentagon Papers case. I was one of the lawyers in the Pentagon Papers case, and the government represented to the Supreme Court that if the Pentagon Papers were revealed it would pose a great danger to American national security. They were revealed and nothing happened. And since that time I’ve been very skeptical of government claims of confidentiality and secrecy, and I think the burden of proof should always be on those who try to keep things secret.
CLAY: We’re talking to Alan Dershowitz. You’ve been very strong on this, and I appreciate it. I know it hasn’t necessarily endeared you to left-wing —
DERSHOWITZ: Oh, boy.
CLAY: — East Coast friends and family, I’m sure.
DERSHOWITZ: Yeah.
CLAY: But you stood on principle over — principle over, you know, the expediency of politics. And I just want you to expound upon this idea. If what Merrick Garland did — he is the head of the Department of Justice for the chief political rival of Donald Trump, and he is investigating Donald Trump, we never occasion I’m a lawyer too, Professor. We’ve never seen anything like this. I’m stunned. I think you’ve said it. I’ve said it on this show. I’m stunned that no one is asking, how is Merrick Garland even able to lead this investigation? Shouldn’t he have to recuse himself, in your mind? And if the precedent is you can investigate the chief political rivals of your president, aren’t we going to see this but go and spin in so many danger directions on a national perspective?
DERSHOWITZ: I completely agree. That’s why there has to be structural change in the Justice Department. Right now the attorney general has two conflicting jobs. They’re totally inconsistent. One job is to help the president get reelected, to be the legal adviser, basically, to the incumbent president, to be loyal to the president, loyal to the party he represents, the Democrats, and do everything he can to try to help the president get reelected. That’s one job. The second job is to be completely nonpolitical and make decisions involving prosecution that are based on the merits without any consideration of the political advantage to one side.
Now, you know, I know Merrick Garland, I supported him for the Supreme Court. I think he’s a decent guy. Nobody can perform that magic trick of, on the one hand being nonpolitical, on the other hand, being loyal as a cabinet member to this administration. You know, almost every other European country breaks up the two jobs. There’s one job, minister of justice, you’re the advisor to the prime minister, adviser to the king, adviser to the president. And the other job is director of public prosecutions, usually a civil service job, former judge, they decide matters of who gets the president or not, in a nonpolitical way. That’s the way it should be in the United States. Garland cannot perform this job. No attorney general can. And it’s a deal flaw in our system.
BUCK: Speaking with Professor Alan Dershowitz of Harvard Law School. He’s got a new book out, The Price of Principle: Why Integrity is Worth the Consequences. Go pick up a copy today. Professor, I’ve spoken some people including former attorney general who believe that it is likely, not certain, but likely that there will still be some charge brought, some criminal charge against former president Trump. Do you also view it as likely? And , one way or the other, if it did happen, what do you think that looks like? How does that go?
DERSHOWITZ: Based on the evidence we now have seen, I think it’s very unlikely. I think Garland would not want to divide the country even further by bringing a close case, a close case, case involving classification, any close case against the president. However, if he finds smoking guns, if he finds Nixon-type crimes, that’s another matter. In order to bring a charge, the criteria I would have is that basically it has to be so clear that Republicans would join him, as they did when Nixon got forced to resign. The Republicans were on the side of his resigning. That’s not the case today. Today there’s been division along partisan lines, and I don’t think that the attorney general will want to divide the country even further, even further by indicting the future nominee of the opposing party. You really have to have the strongest possible case for that.
Now, you know, people today are willing to do anything to get Trump. Take, for example, my former colleague, Laurence Tribe, professor at Harvard Law School, who said on CNN that he was urging his former student, the attorney general, to prosecute Donald Trump for attempting to murder, attempting to murder Vice President Pence. Now, that is the single stupidest thing I’ve ever heard a law professor say in the 60 years I’ve been practicing law. But he is adored by the left because he’s trying to get Trump. And if you try to get Trump, that trumps everything. Trump trumps the Constitution, Trump trumps civil rights, Trump trumps civil liberties, Trump trumps equal protection, due process. If you’re trying to get Trump, you’re excused.
I’ll give you another example. The daughter of the former president of the United States, John Kennedy’s daughter, Caroline Kennedy, was seated next to me at a dinner party. And she said to me, “If I knew you had been invited, I would never have come.” In other words, she’s saying she wouldn’t want to be in the same room with me. She’s the ambassador to Australia from the United States. She’s supposed to have sit in the same room with the heads of China and North Korea, and she can’t sit in the same room with a man who exercised his constitutional rights to defend the president. I wish she had read her father’s book the Profiles in Courage. Maybe she’d have a different view. It’s Trump Derangement Syndrome. You mention the word “Trump,” and people just go crazy. They lose their bearings. They become Donald Trump. They become Caroline Kennedy. And it’s very, very dangerous to civil liberties.
CLAY: We’re talking to Alan Dershowitz. You mentioned that you know Merrick Garland and found him to be a reasonable person.
DERSHOWITZ: That’s right.
CLAY: In fact you even supported his potential ascension to the Supreme Court. I don’t think he’s gonna charge. But the decision to even sign off on these warrants was a massive step from a president — precedent-setting perspective. What is going on with him? How would you psychoanalyze — you said he’s got an untenable position. I think that’s likely true. But if he’s supposed to be so moderate, reasoned, and rational, this decision to grant the warrants and sign off on this application seems to be the opposite of that. And once the train starts moving, Professor, and you’re saying, “Oh, we’re raiding Trump,” everyone out there is saying, “Well, you now have to charge him because you did the raid.” How does he stop this sort of crazy train that he has allowed to be unleashed and not charge him?
DERSHOWITZ: Well, I think he can. I think he can say the way Comey said with Hillary Clinton, I’ve done a thorough investigation, I’ve looked at everything, I’ve conducted a search, I’m not apologizing for that. But based on everything we’ve gotten and the search, I still criticize Trump for not disclosing and not providing the material to the Archives, but there’s not enough here to prosecute. That’s what he should do based on the current information.
CLAY: What do you think the time frame on that would be?
DERSHOWITZ: Huh?
CLAY: Yeah, what would be the time frame on making a statement like that, in your mind?
DERSHOWITZ: Months. Probably toward the end of the year is when he would —
CLAY: And what —
DERSHOWITZ: And that’s, you know, not too — you know, that’s after the midterm elections. I don’t know if you’d do it before or after the midterm elections because, just like Comey’s statement probably had an impact on the 2016 presidential election, anything he says could have an impact on the midterm elections.
So far I think that if they were trying to achieve a political goal, it’s backfired. I think this has helped Trump. I think it’s hurt the Democrats. I’m a liberal Democrat. I voted twice against Donald Trump. One of the reasons I don’t want him to be disqualified from running a third time is I want to exercise my fundamental constitutional right to vote against him. I am not a Trump supporter. I’m a supporter of the Constitution. The Constitution is on Trump’s side. And so I’m supporting Trump constitutionally. But, you know, the folks in Martha’s Vineyard and the East Coast don’t seem to understand that. They go back to the days of McCarthy where you associate a lawyer with the lawyer’s client, and that’s just —
BUCK: Just one or more for you, Professor Dershowitz. Should there be a special counsel appointed around Hunter Biden, not just ’cause of the hookers and the drugs and the illegal firearms — alleged illegal firearms possession issue, but the buying off access to his father who was then vice president and now, of course, president, the paintings that are going for hundreds of thousands of dollars; how can this DOJ in any capacity oversee a fair investigation of the sitting president’s son?
DERSHOWITZ: That’s a very good point. I generally don’t favor special prosecutors because they put a target on the back of the individual and then decide whether there’s enough evidence to get him. But I think in this case if you’re gonna have special prosecutors, this sounds like a good case for a former judge, highly respected, nonpartisan to be looking at the evidence.
Some of the evidence that you mentioned probably would support state prosecutions rather than federal prosecutions. But still there’s probably enough there to look into federal prosecutions. Look. I hope he’s not guilty. I don’t like to criminalize political differences. But the same rule has to apply for Democrats and Republicans, for a former president, future president, or the son of a president. We can’t have different rules for different people.
CLAY: That leads me to this one quick question for you. How do we get back to normalcy? You pointed out that it used to be that who you represented as a lawyer wasn’t a sign of your fit or awful opinions yourself. It was understood. John Adams represented the Boston Massacre defendants, right? Nobody was suggesting that he was on the side of the British. But to your point, everyone has gone insane, it feels like, in the legal profession over Trump.
DERSHOWITZ: Yeah.
CLAY: How does normalcy return?
DERSHOWITZ: Well, that’s the last chapter of my book, The Price of Principle. I think normalcy returns by having programs like yours, speaking out, letting the truth come out, letting things like the affidavit be made public so people can judge for themselves, and a sense of tolerance, people talking to each other.
You know, I used to debate William Buckley all the time on television, and I debated him in front of thousands of people at Harvard. And we fought like children but then we had a drink together. He called me his favorite liberal, and he was my favorite conservative. Today, I couldn’t have Lincoln-Douglas debates. Half the country would say we believe Lincoln, you don’t want to hear Douglas. And the other half would say we believe Douglas, we don’t want to hear Lincoln. And that’s the fault of universities. Universities don’t want to confront students with any point of view other than ones they already agree to.
Lawrence Summers, the former president of Harvard in an interview today said that the new McCarthyism has infected universities. They don’t allow contrary views to be presented. In fact, if you demand meritocracy today in a university, it’s called a micro, you know, sin, basically, aggression.
CLAY: Yes.
DERSHOWITZ: You can’t have meritocracy. Well, Martin Luther King talked about the day that his children will be judged by the quality of their character, not the color of their skin. And so that’s meritocracy. But you can’t say meritocracy on university campuses today without getting into trouble.
CLAY: I appreciate everything you’re saying, everything you’re doing. I think your voice is an important one. And I appreciate the fact that you’re willing sometimes to lose some friends and colleagues who may have loved your work for years to stand on principle over the passions of the moment. Thank you for coming on with us.
DERSHOWITZ: They take it out on my wife, they take it out on my children, just the way it happened during McCarthyism. And that’s unacceptable and intolerable in America.
CLAY: Amen. And you’re gonna be — they love to talk about the right and wrong side of histories. I’m very confident, Professor Dershowitz, that you are going to be on the right side of history in the decades to come. Thank you, sir.
DERSHOWITZ: Thank you.