Alan Dershowitz on the Impact of the ‘Get Trump’ Mentality

'If you are the president, or you’re running for president, the case against you better be very strong'

Alan Dershowitz, professor emeritus at Harvard Law School. (Mario Tama/Getty Images)

“Justice Thurgood Marshall said the First Amendment has two sides: the right to speak and the right to hear,” says Alan Dershowitz, professor emeritus at Harvard Law School, “and the right to hear is just as important as the right to speak.”

In a recent episode of “American Thought Leaders,” host Jan Jekielek and Dershowitz discuss the cases being litigated against former President Donald Trump, his legal vulnerabilities, and the broader assault on civil liberties. Dershowitz is the author of a new book, “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.”

Jan Jekielek: The erosion of civil liberties is one of the themes throughout your book. Where do you see this being most acute or problematic at the moment?

Alan Dershowitz: The title of my book “Get Trump” comes from the campaign promises of the attorney general and the district attorney of New York. They both campaigned on the promise to get Trump, regardless of the facts. “Show us the man, and we’ll find you the crime,” as Beria said to Stalin.

These two elected officials, both of whom I know and like personally, decided that the most important thing for their election, and now their reelection, is to assure the American public that Trump will not be allowed to run for president.

They investigated and investigated. The attorney general of New York found nothing criminal and didn’t go after him criminally. The district attorney of New York, Alvin Bragg, made up a crime never before used in American history, that is, failure to disclose an affair and paying hush money to cover up that affair, and then not listing it on corporate forms. The theory is, “He didn’t disclose it because he was trying to cheat on his taxes two years hence or because he was trying to cheat on electoral rules.” It’s all speculative. It’s the worst indictment I’ve seen in 60 years of practicing and teaching criminal law.

When a Democrat who is elected goes after the man who’s about to run against his boss—the head Democrat, Joe Biden, whom I intend to vote for—when you go after the man who’s running against him, you'd better have the strongest case in American history. Instead, they have the weakest case in American history. It’s weaponizing our criminal justice system for partisan and political ends.

Mr. Jekielek: James Comer, the head of the House Oversight Committee, said that he has subpoenaed the FBI director to turn over this unclassified document, which he believes, based on whistleblower information, will show a criminal scheme that perhaps President Biden or his family were involved in. The reason I’m asking about this right now: This also involves a sitting president. It involves potential political machinations and potential criminal behavior. At the same time, there’s the reality of someone being a sitting president, which you outlined in the book. How do we deal with things like this?

Mr. Dershowitz: The law should apply equally. No one is above, but no one is below the law. We shouldn’t have different rules. But in one sense, we do have different rules. If you are the president, or you’re running for president, the case against you better be very strong.

Let the public decide. Let’s have elections. Elections are unpredictable, but elections are the constitutional method of deciding who should be president—not some local DA sitting in his office rummaging through the statute books and trying to figure out if there’s any conceivable case against them—and if there isn’t, then making one up.

We’ve never seen anything like this in our history. It’s worse than McCarthyism, because McCarthyism looked to the past. It looked to find the people that had been communists in the 1930s.

This new McCarthyism is much worse, because it involves the future—young people who will be our next presidential candidates, who will be the editors in The New York Times, and who will be involved in the most critical positions of government. They are living at a time when free speech is being neglected, due process is being ignored, the Constitution is being stretched, and criminal law is being abused. That’s a heck of a way to send young people into positions of power and governance.

Mr. Jekielek: I can’t help but think how a very significant portion of the Trump presidency was spent dealing with impeachments and special counsel investigations into Russiagate. Some people argue that it ate up at least half of the time.

Mr. Dershowitz: It ate up some time, there’s no doubt. I can give you my own personal experience. In my case, I agreed to represent President Trump on the floor of the Senate on the condition that he not in any way interfere with my representation, that I’m going to plan my defense, and I’m not going to show it to him or his legal team before I do it. Either he has to trust me, or I won’t do it. He accepted that condition.

We had no contact in the days before I spoke for him on the floor of the Senate. The next day, he called and thanked me. But it did take time and energy. There were calls and meetings with his lawyers. In both cases, the impeachments were unconstitutional.

In the first case where I defended him, the impeachment simply was not for treason, bribery or other high crimes and misdemeanors. In the second case, it was for protected speech, speech that was protected under the First Amendment.

The Democrats in Congress acted unconstitutionally in going after Donald Trump, which is why I became involved in the first case. I didn’t become involved in the second case for two reasons. First, I don’t generally represent people a second time. I like to represent people only once.

Second, I did not want to be involved in any claims that the election was unfair. I think the election was perfectly reasonable. I think that Trump lost legitimately, and Biden won legitimately

Mr. Jekielek: I’m familiar with your position on the election. Let’s look at these indictments. The one that you focus on involves the Mar-a-Lago raid. You say that the fault was with the Justice Department for seeking the search warrant in the first place. Can you explain this whole picture to me?

Mr. Dershowitz: Normally in a situation like this one, the government just gets a subpoena. It’s easy to get a subpoena. You serve the subpoena, and then the president or whoever gets the subpoena is obliged to turn over the material.

Merrick Garland himself said that search warrants are a last resort, because they are lawless. Essentially, police go into the house, search for everything, and take everything. They take lawyer-client privileged material, spousal-privileged material, and they could take religiously privileged material. That’s why subpoenas are preferred over search warrants.

In this case, they claim that they were worried the president might destroy material. There’s now an ongoing investigation, which is the one investigation that I think poses some danger to Donald Trump. The investigation called for subpoenaing and giving immunity to employees of Mar-a-Lago to try to prove that he moved boxes, or ordered boxes to be moved.

If it were to be proved, that could pose a serious problem of criminal liability under obstruction of justice for President Trump. But when I was writing “Get Trump,” that investigation was not ongoing. All it was focused on was the failure to disclose the classified material in his possession. I don’t think that would result in a criminal prosecution, because President Biden and former Vice President Pence also had classified material in their possession. You can’t go after one without going after all three.

Mr. Jekielek: What would it look like if the shoe were on the other foot? This is the perfect example because we have disclosure from the Penn Biden Center about the mishandling of classified information. We have these two cases, and you juxtaposed those in your book.

Mr. Dershowitz: Yes, you have to do that. The shoe on the other foot test is a variation of a book written by the great philosopher John Rawls, who says that rules have to be applied equally and without regard to who they’re being applied to, demanding absolute equal justice for all regardless of race, gender, party or any other irrelevant factor.

Today, it matters more whether you’re a Democrat or Republican, or black or white, or a male or a female, as to whether or not you’ll be sued or indicted. We live in a post-equality world where equity has taken over equality.

I’m opposed to the way in which diversity, equity, and inclusion have been used to create a systemically racist country. We were a systemically racist country up through the 1950s, and maybe even into the early 1960s. Then, we became a systemically anti-racist country from the 1960s on, basically into this century. Now, we’re going back to being a country where everything is seen through the prism of race.

It means that people today are being judged by race. Dr. Martin Luther King Jr.’s dream has become a nightmare. Today, medical students are judged by their race, gender, and sexual orientation. Scientific papers are judged by the race of the people who wrote them, rather than [by] the quality of the science. Einstein’s theory of relativity would probably be rejected today because he’s a white, Jewish male in today’s hierarchy of identity politics. When you group people, when you say, “The blacks, the Jews, the gays,” you’re being a bigot.

Mr. Jekielek: In the process, we lose all semblance of nuance. You give the example of how you opposed many of the Trump administration policies, but you’ve supported their Middle East policy and Israel policy, including the moving of the embassy to Jerusalem.

Mr. Dershowitz: I would say every single candidate that I’ve ever voted for, I voted based on nuance. But today, nuance is out the window. You have to pick sides. If you’re a Democrat and you say Donald Trump did anything good, you’ve committed some kind of political treason. The same thing is true on the other side if you say anything good about Biden.

When I was teaching at Harvard, for 50 years, I taught nuance. I don’t know whether students would accept the teaching of nuance today, and the teaching of calibrated, compromised solutions to problems. We live in a world of deep division. It’s a poor world intellectually, and it’s a poor world in every other way.

Mr. Jekielek: We’ve seen many institutions captured by this way of viewing the world, with ideological young people who believe they’re doing the right thing with this radical transformation of society.

Mr. Dershowitz: It was Justice Brandeis, a great liberal, who once said, “The greatest danger to liberty lurks in people of zeal who are intending to do good, and think they’re doing good, but without understanding of the implications of what they’re doing.”

In “Get Trump,” I say that many of the people who are out to get Trump are good people who really think they’re doing the right thing. You can apply that, as well, to something like COVID. There have been mistakes made with COVID.

The ideal there is to balance health and civil liberties and never allow one to dominate, without considering the other. Did we get it right? That’s for historians to determine. You and I can continue to disagree about that.

But the point about our disagreement is that it’s rational. We can disagree, and then we’ll have a drink and shake hands. I’m not going to cancel you, and you’re not going to cancel me, unlike what’s happened to me on Martha’s Vineyard, where I’ve been going for 53 years. Now, I’m a persona non grata. The library has banned my books because I defended Donald Trump. People won’t talk to me. People have said to the restaurant I frequent, “If you serve Alan Dershowitz, we won’t come here again.”

It’s pure left-wing McCarthyism, whereas you and I can disagree without refusing to have dinner with each other.

Mr. Jekielek: On this point, Alan, we are in 100 percent agreement. Now, I want to go back to some of these indictments related to Trump. It’s a stunning number of cases running simultaneously.

Mr. Dershowitz: In “Get Trump,” I point to all of them and argue that if this man were not running for president, none of this would have happened. If he had stayed in the building business, he would have had a happy retirement with his family and never seen the inside of a courtroom.

Of two cases that he has to worry about, one is the Fulton County case. But there’s no way he can be successfully prosecuted there, because what he said on the recorded tape was, “I need to find 11,000 votes.” He didn’t say invent or concoct. He said find. Find means that they’re there, and you just have to look hard to see if you can find them. I think that’s a complete defense there.

There is also a complete defense to the January 6th investigation that’s occurring in Washington. In his speech, he explicitly said he wanted the people to go to the Capitol to protest peacefully and patriotically. That is constitutionally protected speech.

His only vulnerability is the trial in New York, because in New York, you can get a grand jury to indict a ham sandwich. He’s at risk there, but I think that case will be reversed on appeal if there is a conviction.

His greatest vulnerability now may lie in the Mar-a-Lago case in Florida, if they can prove that he obstructed justice after he received his subpoena and after he was aware that the government was interested. If there is proof that he ordered the moving or hiding of classified material, that would present a serious problem for him.

Mr. Jekielek: I want to jump back to the concept of free speech. You’re one of the biggest champions of free speech.

Mr. Dershowitz: I’m in favor of unfettered free speech. There have to be some limitations, of course, some exceptions. Direct incitement is one. If a crowd is surrounding somebody, and you yell, “Kill him, kill him, kill him,” and the crowd then kills him, one can easily see how that should not be protected.

For the most part, I’m in favor of unfettered free speech, but we live in an age where free speech is under attack. For the first time in my life, academics are writing against free speech, due process, and meritocracy.

Again, that represents the future, because the academics are writing for students, and the students will be our future. There will be less appreciation for free speech, due process, and meritocracy.

Mr. Jekielek: One of the things you mentioned in your book is that the effect of this whole “get Trump” mentality creates a situation where it’s very difficult to escape this partisanship to develop nuance again. Perhaps the purpose of some of these people is to create division, to shake the foundations of our society to the ground to rebuild something new, a beautiful new utopia afterwards. How do you deal with that?

Mr. Dershowitz: Most people are well-intentioned and just don’t understand the implications of what they’re doing. I’ll give you an example just from my own experience. “Get Trump” is a bestseller on Amazon, but you can’t buy it in a local bookstore. You can’t get it in many local libraries, because local libraries today, including my library in Chilmark, Massachusetts, censor books based on their political content.

I hope people will read my books, because I’m one of the few people today who is liberal and a Democrat, and who is speaking up against these dangers. Most of the people doing so are conservatives, because they’ve been the victims of cancellation and repression. One thing we can all get together on is that America is far better if we are an open society with free speech and due process.

Mr. Jekielek: One thing that you mentioned in the book is there’s a right to speak, but there’s also a right to hear speech. That’s the piece that we often don’t think about and that you actually explore quite a bit. Please leave us with how that other part works.

Mr. Dershowitz: When I defended Donald Trump, I was denied the right to speak in various venues to people who wanted to hear me speak. I can deal with it. I can write op-eds. But what about the people who want to hear me speak, or who want to hear you speak, or who want to hear other even more controversial speakers?

Justice Thurgood Marshall said the First Amendment has two sides: the right to speak and the right to hear, and the right to hear is just as important as the right to speak.

The vast majority of Americans today are denied the right to hear points of view that are disagreeable to the people in power. That’s true in universities and in the media. Ultimately, a majority of Americans can get together and can fight back. It shouldn’t just be the people who are actually censored.

So, thank you for allowing your listeners to hear my voice. You can disagree with me. We had some disagreements, and some agreements. I’m looking forward to coming back again and having another exchange with you.

This interview has been edited for clarity and brevity.