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Alan Dershowitz Hasn’t Changed One Bit

The celebrity attorney has spent much of his career defending the interests of scandal-plagued elites—and profiting from it.

Mark Wilson/Getty Images

Alan Dershowitz’s greatest impact on American law likely came at the beginning of his career. In 1963, Justice Arthur Goldberg tasked him to help build an argument against what had, until then, gone unquestioned: the constitutionality of capital punishment. Dershowitz—then a young Supreme Court clerk, now a Harvard University law professor emeritus—compiled some of the earliest statistics on racial disparities in the death penalty. Every case he found in which a rapist had been sentenced to death, for example, involved a black defendant and a white victim.

Goldberg’s eventual dissent in a death-penalty petition did not include this research. According to legal historian Evan Mandery, who wrote a 2013 book about the initial campaign to abolish the death penalty, the other justices pressured Goldberg to omit these findings from his dissent, partly because they would inflame the South. He assented but subsequently told Dershowitz that he was free to do whatever he wanted with his underlying research. He promptly sent copies of it to the ACLU, the NAACP Legal Defense Fund, and similar organizations. Death-penalty abolitionists have highlighted racial disparities in executions ever since.

Over the next few weeks, Dershowitz will likely make his second-greatest contribution to American law. The White House announced last week that he will be joining President Donald Trump’s legal team for his impeachment trial. Dershowitz said that he will address the Senate to discuss his constitutional theory on the matter. The imagery may be more important than the substance: Trump will have a famed liberal lawyer, one who voted for Hillary Clinton in 2016 and endorsed Joe Biden in 2020, telling senators that it would be unconstitutional to punish the president for his scheme to coerce a foreign power into falsely smearing one of his political rivals.

The American legal community has spent the Trump era wondering aloud what happened to Alan Dershowitz. He told me in 2018 that he hadn’t actually changed; it was everyone else who was different. There’s a certain truth to this. Dershowitz’s career is a testament to the effects that celebrity, affluence, and fame can have on even the most formidable legal minds. His client in the Senate trial won’t be Trump, or even the presidency as an institution, but power itself.

Dershowitz, like Trump, also has an ineluctable power to draw media attention. “I’ve discovered that the most dangerous place to be in the criminal justice system is not the Federal Penitentiary at Marion or the holding cell at the Tombs, but between Alan Dershowitz and a television camera,” Brian Wice, a Texas lawyer who worked alongside him in the Jim and Tammy Faye Bakker case, quipped in 1991. Dershowitz’s ubiquitous appearances on television made him perhaps the best-known living American lawyer in the 1980s and 1990s. One book reviewer, writing about O.J. Simpson lawyer Robert Shapiro’s account of the TV-driven case in 1996, wondered if Shapiro had hired Dershowitz “mainly to shut him up.”

This tendency has not diminished with age. In the summer of 2018, Dershowitz wrote a plaintive op-ed column in The Hill describing the McCarthy-like treatment he had received in Martha’s Vineyard for defending Trump. The New York Times quickly jumped into action. The paper of record’s all-inclusive series on Dershowitz’s travails included a two-byline story on the brouhaha, followed by an interview with the man himself by a Times reporter who also happened to be on vacation there. “His cellphone buzzes constantly, mostly with calls from reporters,” reporter Jeremy W. Peters wrote. “‘Inside Edition,’ the tabloid-style newsmagazine show, wants an interview. So does The New Yorker.” The debate continued online with letters to the editor from Martha’s Vineyard and from Dershowitz himself. No other law professor’s summer vacation had ever been so thoroughly covered in the history of the republic.

This is not to say that Dershowitz hasn’t taken part in genuine civil liberties cases throughout his storied career. He helped defend Harry Reems, the star of the pornographic film Deep Throat, on First Amendment grounds when federal prosecutors brought obscenity charges against him in the 1970s. In 1986, Dershowitz argued before the Supreme Court on behalf of two brothers sentenced to death in Arizona for their role in the murder of four people, even though neither of the brothers had committed the murders or intended to commit them. Other clients in the 1980s fit the profile one would expect for a civil liberties lawyer: the Nazis who marched through Skokie, Illinois; Soviet dissidents behind the Iron Curtain; and so on.

But Dershowitz is better known for his omnipresent work defending the rich and the powerful. He helped overturn the conviction of Claus von Bülow, a European socialite accused of killing his wife, Sonny, on appeal in 1984. The high-profile case resulted in a book deal for Dershowitz—he’d go on to publish more than 30 other works—and a TV movie, in which he was played by the late Ron Silver. From there, his clientele only grew more gilded: Leona Helmsley, a venomous New York City hotelier who didn’t pay taxes; football superstar O.J. Simpson, who was acquitted of murdering his ex-wife and another man; filmmaker Roman Polanski, who fled the country in 1978 after he was charged with raping a 13-year-old girl; and boxer Mike Tyson, who was convicted of raping an 18-year-old woman in 1993. He even briefly became embroiled in a custody dispute between Mia Farrow and Woody Allen.

Everyone is entitled to legal counsel. And there are plenty of lawyers who pay their mortgages and put their kids through college by defending wealthy people who (allegedly, of course) do bad things. But few of them wielded the imprimatur of Harvard University, or sought the public spotlight so relentlessly, or sprang into action to defend those who could readily find other lawyers to defend them. While the wealthiest Americans are as entitled to their civil liberties as everyone else, few legal minds are as eager as Dershowitz to place upon their shoulders a mantle usually reserved for the most downtrodden and disfavored among us.

Some of Dershowitz’s relationships with those well-heeled clients have brought him to troubled waters. In the 1990s, he became acquainted with Jeffrey Epstein, a well-connected billionaire financier. “By the time I got to know him, I had already represented a lot of very, very wealthy people,” Dershowitz told New York last year. “I was much more interested in his quirky mind.” Law enforcement agencies began investigating Epstein in 2005 for sex-trafficking underage women, and Dershowitz soon became part of his legal team. Their acquaintance ultimately survived the case and Epstein’s guilty plea to lesser charges. As a result, Dershowitz has spent a significant portion of his time in recent years vehemently disputing an allegation against him made by one of Epstein’s victims.

That recent brush with scandal may have deterred other high-profile figures from retaining Dershowitz. But the president does not have that luxury. Multiple top law firms have already turned down the opportunity to represent Trump during the Russia investigation, as have prominent D.C. litigators like Ted Olson. George Conway, a top conservative lawyer and a frequent Trump critic, attributed the refusals to Trump’s resistance to heeding legal advice and a reputation for not paying his bills. “Firms also understood that taking on Trump would kill their recruiting efforts,” he suggested. “Top law students of varying political stripes who might be willing, even eager, to join a firm that provides pro bono representation to murderers on death row, want nothing to do with Trump.”

Dershowitz has no such scruples. His 2018 book, The Case Against Impeaching Trump, which largely dwelled on the findings unearthed by former special counsel Robert Mueller, went to press only six weeks after he signed the book deal for it. In it, he offers an extraordinarily narrow interpretation of the House’s power to impeach officials and the Senate’s power to remove them from office. The Constitution prescribes that sanction for those who commit “bribery, treason, and other high crimes and misdemeanors”—and, Dershowitz argues, absolutely nothing else.

“Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea,” he wrote. “Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.” If you disagree, Dershowitz has a solution: “Such a dramatic event might appropriately result in a constitutional amendment broadening the criteria for impeachment, but it would not justify ignoring or defying the words of our current Constitution.”

Under Dershowitz’s reading of the Constitution, Congress would be legally powerless to stop a president from letting foreign powers carve up the United States without resistance, unless the states somehow manage to pass an amendment while some of them are under occupation. That interpretation likely would have baffled the framers, who also charged the president with defending the country from foreign invasion. It drew a bewildered response from the House managers conducting Trump’s trial in the Senate. “The absurdity of that argument demonstrates why every serious constitutional scholar to consider it—including the House Republicans’ own legal expert—has rejected it,” they wrote in a reply brief filed on Wednesday.

This wasn’t always Dershowitz’s stance on impeachable offenses. “It certainly doesn’t have to be a crime,” he said in a 1998 TV interview during the Clinton impeachment saga. “If you have somebody who completely corrupts the office of the president and abuses trust and who poses great danger to our liberty, you don’t need a technical crime.” In an MSNBC interview last week, however, he argued the opposite point. “Abuse of power, even if proved, is not an impeachable offense,” he claimed. When pressed on the change of heart by CNN’s Anderson Cooper on Sunday, Dershowitz explained that he now had “a more sophisticated basis for my argument.”

This is a far cry from the young law clerk who perceived the fundamental forces shaping American executions in the civil rights era. The result that flows from Dershowitz’s approach to impeachment is more than a blank check for an American monarchy. It is an argument for the sake of argument—cold, sterile, and bereft of any attachment to morality, honor, or other higher principles. It portends a world in which Dershowitz and his wealthy and powerful friends will thrive, and everyone else will suffer.