Jeffrey Epstein, Billionaire Long Accused of Molesting Minors, Is Charged - The New York Times
Sun, 07 Jul 2019 04:01
New York | Jeffrey Epstein, Billionaire Long Accused of Molesting Minors, Is Charged Mr. Epstein, who was charged with sex trafficking, had avoided federal charges a decade ago in a widely criticized plea deal.
Image Jeffrey Epstein in custody in West Palm Beach, Fla., in 2008. Credit Credit Uma Sanghvi/Palm Beach Post, via Associated Press Jeffrey E. Epstein, a billionaire New York financier long accused of molesting dozens of girls, was arrested on Saturday and charged with sex trafficking by federal prosecutors, an extraordinary turn of events in a long and sordid criminal case.
Two people with knowledge of the charges said on Saturday night that Mr. Epstein had been arrested in the New York area and was in federal custody.
He is expected to appear before a federal magistrate on Monday, more than a decade after he first gained notoriety with lurid accusations that he had paid dozens of girls for sexual massages in Florida.
Mr. Epstein had avoided federal criminal charges in 2007 and 2008 in a widely criticized plea deal whose lenient terms continue to roil the Justice Department and are facing new scrutiny in the #MeToo era.
Before the plea deal, Mr. Epstein, a former hedge-fund manager, had been friendly with Donald J. Trump, former President Bill Clinton and Prince Andrew, the Duke of York.
He pleaded guilty to lesser state charges of soliciting prostitution, served 13 months in a county lockup and registered as a sex offender. His jail arrangement allowed him to get out of the Palm Beach County Stockade six days a week to work out of his office.
The United States attorney's office in Manhattan, which brought the charges against Mr. Epstein, declined to comment on Saturday night.
CBS Miami reported that Mr. Epstein was arrested late Saturday afternoon at Teterboro Airport in New Jersey after his private jet landed there from Paris. He was taken into custody by federal agents.
The television station said Mr. Epstein was arrested under a sealed federal indictment and charged with one count of sex trafficking and one count of conspiracy to commit sex trafficking.
Defense lawyers for Mr. Epstein could not immediately be reached for comment.
Women who said they were Mr. Epstein's victims have repeatedly assailed federal prosecutors for agreeing to a nonprosecution deal with him more than a decade ago.
Jack Scarola, a lawyer for two of the women, said he had not been informed of the arrest.
''But given his extensive pattern of past criminal conduct and the apparent addictive nature of his aberrant behavior, an arrest comes as no surprise,'' Mr. Scarola said on Saturday night.
The new charges against Mr. Epstein were first reported on Saturday night by The Daily Beast.
In the Florida investigation, the authorities found that Mr. Epstein paid cash to dozens of girls, some of them as young as 14 or 15, to give him nude massages that often ended in masturbation, oral sex or, in at least one case, rape.
Some of the girls were runaways or foster children; Mr. Epstein would ask some girls to recruit others to bring to his properties. The encounters took place from 1999 to 2005.
According to court records, in a 2007 interview with the F.B.I., one girl shared that at age 15 she began visiting Mr. Epstein and gave him massages '-- both in her underwear and then nude '-- for $200 each.
Over time, the encounters became increasingly sexual. Mr. Epstein also got the girl to bring other girls who worked with her at a local strip club.
The plea deal that protected Mr. Epstein from federal charges was signed by the top federal prosecutor in Miami at the time, Alexander Acosta, who is now President Trump's labor secretary.
In February, a judge in Florida ruled that the prosecutors led by Mr. Acosta violated federal law when they failed to disclose Mr. Epstein's nonprosecution agreement to his victims.
The agreement was negotiated in secret while victims were told prosecutors were still pursuing a possible federal criminal case.
Mr. Acosta has defended the handling of Mr. Epstein's case, saying the plea deal sent Mr. Epstein to jail and guaranteed that he would register as a sex offender.
But lawyers for his victims have fought for years against a punishment they saw as too lenient.
The case received new public scrutiny after an investigative report published by The Miami Herald in November quoted four of Mr. Epstein's victims, who are now adults, on the record for the first time.
One of the victims, Courtney Wild, now 31, was wearing braces when she first met Mr. Epstein. ''Jeffrey preyed on girls who were in a bad way, girls who were basically homeless,'' Ms. Wild told The Herald. ''He went after girls who he thought no one would listen to and he was right.''
Investigators had identified more than 30 victims. The Herald said it located about 60.
In February, the Justice Department said it had opened an investigation into the nonprosecution agreement. The inquiry is reviewing whether prosecutors committed professional misconduct in their handling of the Epstein case.
Derrick Bryson Taylor and Benjamin Weiser contributed reporting.
Patricia Mazzei is the Miami bureau chief, covering Florida and Puerto Rico. Before joining The Times, she was the political writer for The Miami Herald. She was born and raised in Venezuela, and is bilingual in Spanish. @ PatriciaMazzei ' Facebook
William K. Rashbaum is a senior writer on the Metro desk, where he covers political and municipal corruption, courts, terrorism and broader law enforcement topics. He was a part of the team awarded the 2009 Pulitzer Prize for breaking news. @ WRashbaum ' Facebook
Jeffrey Epstein Arrested For Sex Trafficking of Minors: Sources
Sun, 07 Jul 2019 00:29
Billionaire pedophile Jeffrey Epstein was arrested for allegedly sex trafficking dozens of minors in New York and Florida between 2002 and 2005, and will appear in court in New York on Monday, according to three law enforcement sources. The arrest comes about 12 years after the 66-year-old financier essentially got a slap on the wrist for allegedly molesting dozens of underage girls in Florida.
For more than a decade, Epstein's alleged abuse of minors has been the subject of lawsuits brought by victims, investigations by local and federal authorities, and expos(C)s in the press. But despite the attention cast on his alleged sex crimes, the hedge-funder has managed to avoid any meaningful jail time, let alone federal charges.
The new charges allege that Epstein sexually exploited dozens of underage girls in a now-familiar scheme: paying them cash for "massages" and then molesting or sexually abusing them in his Upper East Side mansion or his palatial residence in Palm Beach. Several employees and associates allegedly recruited the girls for Epstein's abuse, and some victims eventually became recruiters themselves, according to law enforcment. The girls were as young as 14, and Epstein knew they were underage, according to police.
Epstein's attorney, Martin Weinberg, declined to comment when reached by The Daily Beast on Saturday night.
In an era where #MeToo has toppled powerful men, Epstein's name was largely absent from the national conversation, until the Miami Herald published a three-part series on how his wealth, power and influence shielded him from federal prosecution. For years, The Daily Beast reported on Epstein's easy jail sentence and soft treatment by the U.S. Attorney's Office, which ultimately scrapped a 53-page indictment against Epstein. An earlier version of Epstein's plea deal included a 10-year federal sentence'--before his star-studded lawyers threatened to go to trial in a case prosecutors feared was unwinnable, in part because Epstein's team dredged up dirt on the victims, including social media posts indicating drug use.
Meanwhile, the financier has flitted among his homes in Palm Beach, New York City, and the Virgin Islands, as well as his secluded Zorro Ranch in Stanley, New Mexico, transporting young women on his private jet to facilitate the sexual abuse that's gone unchecked by authorities, his alleged victims say.
Yet, as early as 2003, Vicky Ward's Vanity Fair profile cracked into Epstein's enigmatic facade and, as Ward noted, revealed ''he was definitely not what he claimed to be.'' Back then, allegations of sexual abuse leveled by one accuser, Maria Farmer, and her family were excised from Ward's piece after Epstein pressured the magazine.
Epstein's bust comes mere months after a federal judge ruled his 2007 non-prosecution agreement'--secretly inked under former U.S. Attorney and current Labor Secretary Alexander Acosta'--violated federal law by keeping Epstein's victims in the dark. Under the sweetheart deal, Epstein dodged federal charges that might have sent him to prison for life. He instead pleaded guilty to minor state charges in Palm Beach, and served 13 months in a private wing of a county jail, mostly on work release.
The alleged victims, who sued the government for violating the Crime Victims' Rights Act, asked the court to rescind Epstein's non-prosecution agreement and called for the feds to hold him criminally liable. The NPA also granted immunity to Epstein's co-conspirators, identified in the document as ''including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova.''
Epstein reportedly supplied valuable intel to federal investigators in exchange for his lenient plea deal; it's been speculated this information may have been related to Bear Stearns executives' alleged crimes in the lead-up to the 2008 financial crisis.
Epstein's VictimsDuring his high-flying finance years, Epstein also allegedly harbored a dark secret: his widespread abuse of underage girls. But in 2005, Palm Beach police launched an investigation into Epstein after a 14-year-old girl told police an older man named ''Jeff'' had molested her at his residence, a two-story pink mansion on a dead-end street.
Authorities would discover a disturbing teen sex ring, where victims were allegedly paid to recruit other young girls to provide ''massages'' inside Epstein's lair. The victims would be led to Epstein's bedroom, and Epstein would enter and order them to remove their clothing, police said. The financier would then assault them'--sometimes forcing them into intercourse with him or a young woman he described as his ''sex slave'''--and pay them $200 to $1,000 per visit, according to court documents.
Police say Epstein's massages were booked with the help of his personal assistants, including Sarah Kellen, who kept a rolodex of underage girls.
But as The Daily Beast previously reported, the state attorney's office in Palm Beach declined to pursue serious charges against Epstein (filing only a single felony count of soliciting prostitution), claiming the girls weren't credible. The local police chief, Michael Reiter, accused prosecutors of giving Epstein special treatment and in 2006 referred the case to the FBI. By May 2007, the U.S. Attorney's Office in Miami drafted a 53-page indictment against Epstein, alongside an 82-page prosecution memorandum. That summer, however, Epstein's lawyers worked to unravel the case, claiming Epstein wasn't guilty of any federal crimes.
''The local police chief, Michael Reiter, accused prosecutors of giving Epstein special treatment and in 2006 referred the case to the FBI.''
Epstein and the feds drew up a non-prosecution agreement in September 2007. Without informing any of the victims, the two sides decided that Epstein would plead guilty to a pair of state charges (solicitation of prostitution and procurement of minors for prostitution) and waive his right to contest damages, if the victims decided to sue him over the abuse. He also agreed to pay for the girls' attorney's fees.
Indeed, the NPA stated that ''the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for [the victims], who shall be paid for by Epstein.''
The NPA also granted immunity to any ''potential co-conspirator'' of Epstein's and ensured the deal would ''not be made part of any public record.''
Epstein could have faced multiple federal charges, the NPA noted, including: sex trafficking of children or by force, fraud or coercion, 18 U.S.C. 1591; the use of a facility or means of interstate commerce to entice minors into prostitution, 18 U.S.C. 2422(b); and traveling for the purpose of engaging in illicit sexual conduct with minors, 18 U.S.C. 2423(b). The document states Epstein might have committed those crimes from around 2001 to September 2007.
Other women claim that Epstein's alleged abuse spanned many years and many locations, according to civil court filings.
''Epstein could have faced multiple federal charges, the NPA noted, including sex trafficking of children or by force, fraud or coercion.''
In an April 2019 affidavit, a woman named Maria Farmer said she met Epstein and Maxwell sometime in 1995, at one of Farmer's art shows in New York. In 1996, Epstein offered her a job to help him acquire art. But according to Farmer, she instead ended up manning the door at Epstein's Upper East Side mansion and keeping records of his visitors.
Some of those visitors, Farmer claimed, were underage girls in school uniforms who would be led to an upstairs bedroom for what Maxwell called interviews for ''modeling'' positions. Farmer witnessed Epstein's lawyer and friend, Harvard law professor Alan Dershowitz, head upstairs where the girls were present, the affidavit stated.
Dershowitz has denied Farmer's accusations. ''Maria Farmer stopped working for Epstein before I ever met Epstein,'' Dershowitz told The Daily Beast. ''It's a totally perjured affidavit. It's all totally made up. For her lawyers to submit these obviously perjured affidavits raises serious questions about their role in this case.''
In the summer of 1996, Epstein allegedly arranged for Farmer to work on a special art project at Leslie Wexner's mansion in New Albany, Ohio. Farmer and her two younger brothers stayed at the property at the time.
Farmer claims Maxwell and Epstein sexually assaulted her at the Ohio property, and Wexner's security team refused to let her leave. She said she tried calling the sheriff's office but didn't get a response. Her father had to drive from Kentucky to help her.
Once she returned to New York, Farmer visited the NYPD's sixth precinct to report the Ohio assault, but offers there told her to contact the FBI. Farmer called the feds, but they didn't appear to take any action, the affidavit states.
Meanwhile, Farmer claims Epstein and Maxwell preyed on her 15-year-old sister, molesting her at Epstein's ranch in New Mexico. Epstein also held her sibling's hand at a New York movie theater, where he ''was rubbing her in a sexual manner without my knowledge,'' Farmer added.
''I was terrified of Maxwell and Epstein and I moved a number of times to try to hide from them,'' Farmer stated of the powerful pair's alleged threats against her and their alleged efforts to sabotage her reputation in the art world.
Another accuser, Virginia Roberts Giuffre, has long claimed that Epstein and Maxwell abused minor girls across the country and abroad, and that Epstein loaned his victims out to his famous friends, including Dershowitz and Prince Andrew.
Giuffre filed a declaration in 2015 as part of the Crime Victims' Rights Act suit and detailed Epstein's alleged sex ring. She said she met Epstein in 1999 after Maxwell approached her during her summer job at Mar-a-Lago. She was 15 years old.
Dershowitz and Prince Andrew vehemently denied Giuffre's claims, and Buckingham Place quickly released a statement: ''It is emphatically denied that HRH The Duke of York had any form of sexual contact or relationship with Virginia Roberts. The allegations made are false and without any foundation.''
''The story is totally made up,'' Dershowitz told the BBC after Giuffre's court filing made international headlines. He added, ''My only feeling is if she's lied about me, which I know to an absolute certainty she has, she should not be believed about anyone else.''
''It wasn't just sexual training'--they wanted me to be able to cater to all the needs of the men they were going to send me to.''
Maxwell allegedly offered Giuffre professional training in massages. But when Giuffre arrived at Epstein's Palm Beach home, she was allegedly forced into sexual activity with the billionaire and would become trapped in his web.
She said that when she began ''working'' for Epstein, he flew her to New York on his private jet and molested her at his Manhattan mansion. ''I was trained to be 'everything a man wanted me to be,''' Giuffre said in the declaration. ''It wasn't just sexual training'--they wanted me to be able to cater to all the needs of the men they were going to send me to.''
Maxwell and Epstein allegedly ordered Giuffre to pay attention to what the men wanted, so she could report back to them. Giuffre said she traveled with Epstein from 1999 through the summer of 2002, to his homes in New York, New Mexico, the U.S. Virgin Islands, and Paris, France.
''I had sex with him often in these places and also with the various people he demanded that I have sex with,'' Giuffre stated. ''Epstein paid me for many of these sexual encounters. In fact, my only purpose for Epstein, Maxwell and their friends was to be used for sex.''
Giuffre added that ''Epstein had sex with underage girls on a daily basis'' and that his interest in minor girls was ''obvious'' to those in his orbit. His code word for this abuse was ''massage,'' and Maxwell would often have sex with the victims, too, Giuffre claimed.
Maxwell denied Giuffre's claims as early as 2011, after Giuffre gave an interview to the Daily Mail, releasing a statement that claimed ''the allegations made against me are abhorrent and entirely untrue and I ask that they stop.''
In 2015, Maxwell called Giuffre's allegations ''obvious lies,'' and Giuffre filed a defamation suit against the socialite. The Miami Herald and other news outlets have asked the U.S. Court of Appeals for the Second Circuit to unseal all pleadings in that case, which was settled in 2017. Paul Cassell, one of Giuffre's lawyers, told the court that if the records are made public, they ''will show that Epstein and Maxwell were trafficking girls to the benefit of his friends, including Mr. Dershowitz.''
Epstein allegedly forced Giuffre to have sex with Britain's Prince Andrew at least three times, including during an orgy. (The court filing includes a photo of ''Andy'' putting his arm around Giuffre's partially bare waist, while Maxwell smiles in the background.)
Giuffre said she was also forced to have sex with another Epstein confidant, Jean Luc Brunel, who runs the MC2 modeling agency.
Brunel supplied Epstein with girls as young as 12, luring aspiring models from poor countries or poor backgrounds to the United States, Giuffre alleged. ''Jeffrey Epstein has told me that he has slept with over 1,000 of Brunel's girls, and everything that I have seen confirms this claim,'' Giuffre stated. (Brunel, in a previous statement, denied being involved ''in the actions Mr. Jeffrey Epstein is being accused of'' and said ''I have exercised with the utmost ethical standard for almost 40 years.'')
Giuffre said she finally escaped Epstein's abuse after he sent her to Thailand to learn Thai massage and to recruit another young girl for his alleged sex ring. Instead, Giuffre met her future husband and relocated to Australia.
Years later, in 2011, two FBI agents from Florida visited Giuffre to discuss Epstein. In another declaration, Giuffre said the investigators ''seemed like they were being blocked from doing what they wanted to do'--which I thought was to arrest Epstein and his powerful friends for all their illegal sexual crimes.''
In 2014, Giuffre tried to contact the FBI again for an update on the Epstein investigation. ''I have never been able to figure out who was (and still is) stopping a prosecution,'' Giuffre stated in the declaration.
''Because nothing is being done,'' Giuffre added, ''it makes me think that Epstein was right when he told me he had so many people in his pocket. Maybe those people are still helping him escape being prosecuted for what he did against me.
''The justice system doesn't seem to respond to the victims in this case. It seems to favor those who have the most money and power and influence.''
'What Happened to Alan Dershowitz?' - POLITICO Magazine
Sun, 07 Jul 2019 10:57
NEW YORK '-- If you wanted to feel the full force of the intellectual whirlpool that is American politics in 2018, the place to go on April 2 was the Village Underground, a nightclub beneath West 3rdStreet, where Alan Dershowitz, the longtime Harvard Law professor and civil liberties lion, was debating the future of American democracy on the side of President Donald Trump.
Opposing him were a National Review writer and a former FBI agent, arguing that the special investigation into ties between Russia and Trump's presidential campaign is well within the bounds of American law. Dershowitz, along with a conservative columnist for the Washington Examiner, was making the case that the Mueller investigation is dangerous to our entire system. In the room, which is normally a comedy club, it was impossible to shake the feeling that something was off. Two years ago, it would've seemed far more natural for the quartet to swap partners and switch sides.
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On our way out, my wife and I were handed free copies of Dershowitz's newest book, ''Trumped Up: How Criminalization of Political Differences Endangers Democracy,'' in which Dershowitz writes that special prosecutor Robert Mueller is subjecting Trump to ''the legal equivalent of a colonoscopy.''
The woman behind us in line took her free book, turned to her husband and asked, ''What happened to Alan Dershowitz?''
In certain circles'--the legal academy, defense attorneys, Martha's Vineyard'--it is the question. Dershowitz, an iconic civil libertarian and criminal defense lawyer, who circulates between the liberal redoubts of Miami, New York and the Vineyard, has emerged in the past year as the most distinguished legal defender of Trump. He's met Trump at Mar-a-Lago, and he dined with him at the White House the day after the FBI raid on Michael Cohen's office. He's a regular presence on TV, especially Fox News, where he's a reliable voice on the president's side against the investigation. In April, following the Cohen raid, Dershowitz appeared on ''Hannity'' nine times'--including three days in a row. His message is clear: Mueller's investigation is a witch hunt, and although he doesn't think Trump should fire Mueller, the president would be within his rights to do it.
''People everywhere ask what happened to him,'' said Nancy Gertner, a former federal judge and lecturer at Harvard Law School who has known Dershowitz for years. ''I get that from everyone who knows I know him.''
Anyone under 30 could be forgiven for seeing Dershowitz as just another talking head on Trump TV, but to Gertner and her peers, that's not even remotely who Dershowitz is. Gen Xers may know him as a celebrity lawyer, a member of O.J. Simpson's defense team. Baby boomers know him for clearing the socialite Claus von Bulow of poisoning his wife in the 1980s. But Dershowitz had a 20-year career before that, during which he established himself as one of the most prominent and consistent defenders of civil liberties in America.
In 1963, as a law clerk, he drafted a crucial memo for Supreme Court Justice Arthur Goldberg that led to the death penalty being ruled unconstitutional. (The ruling was later reversed.) At Harvard, he sued the university's all-male social clubs, and though he didn't prevail, he was ahead of his time: Harvard recently severed its ties with the clubs. His legal scholarship articulates an expansive view of freedom of speech, freedom of religion and even animal rights.
Over this storied career, Dershowitz's public persona has remained more or less unchanged: loud, provocative, brilliant and principled, if also relentlessly self-promoting. And, until recently, his positions have been tolerated, if not always embraced, by the legal academy and universally acknowledged for their moral seriousness.
About a year ago, after Mueller's appointment on May 17, that started to change. Around then, Dershowitz'--never one to overlook a celebrity being railroaded'--started getting more TV airtime for his argument that a sitting president could not be guilty of obstruction of justice. The liberal intelligentsia recoiled. Dershowitz speaks openly of having been shunned by friends and condemned by relatives since then'--even, he told me, at his family's recent Passover Seder, where his grandson and nephew urged him to dial down his public defense of the president. He's been harshly critiqued by former Harvard colleagues and within the small, tightly entwined community of civil libertarians. In late March, when legal analyst Jeffrey Toobin confronted him directly on Anderson Cooper 360'--''I don't know what's going on with you '... this is not who you used to be'''--it felt like a moment of collective catharsis for liberals who see Trump as a threat to democracy.
Alan Dershowitz during a 2010 interview in Jerusalem. | Getty Images
But is Dershowitz really a turncoat? I spent two months interviewing leading civil libertarians and Dershowitz's former colleagues, reading through his life's work, and interviewing him twice. In one view, Dershowitz, at the end of his career, has finally crossed the line, defending a demagogue who rejects and threatens the very principles of liberty and fairness to which Dershowitz has dedicated his life. In another view, the people who've lost their way are the liberals and civil libertarians, blinded by their rage for Trump, who have dropped their principles in a moment of political threat and are taking out their anger on a man who has been their staunchest ally.
Maybe the question isn't what happened to Alan Dershowitz.
Maybe it's what happened to everyone else.
When Alan Dershowitz arrived at Yale Law School in the fall of 1959, there was no road map on how to be an American civil liberties lawyer, let alone an Alan Dershowitz. Even now it's difficult to name anyone comparable. There have been other prominent lawyers who have represented controversial political causes and unpopular defendants'--Clarence Darrow, William Kuntsler and Ramsey Clark are obvious candidates'--but none carried on their careers with the publicness with which Dershowitz has conducted his life. ''There isn't another lawyer like Dershowitz,'' civil rights attorney Ron Kuby told me. ''Alan is sui generis and he knows it.''
At his Sutton Place apartment, overlooking the East River, Dershowitz explained to me that he had no role model. ''I have no lawyer heroes,'' he said. ''Every lawyer I know has been deeply flawed in one way or another.'' The closest comparison he could come up with was to Edward Bennett Williams, the Washington trial attorney who defended Jimmy Hoffa and Mafia boss Frank Costello'--''except that Ed Bennett Williams is to the Catholic Church as Judaism is to me.''
Maybe the question isn't what happened to Alan Dershowitz. Maybe it's what happened to everyone else.
The decision to pursue his path in the law was organic. ''I never decided to be a civil libertarian,'' Dershowitz said. ''I was born a civil libertarian. I was brought up a civil libertarian.'' At 14, against the wishes of his parents, Dershowitz signed a communist-inspired petition opposing the death penalty for Ethel and Julius Rosenberg as a matter of principle, even though he personally detested communism. But he hadn't heard the term ''libertarian'' until he took an ethics course at Brooklyn College with John Hospers, later the 1972 presidential candidate of the Libertarian Party, and even then Hospers' libertarianism had an economic emphasis on free markets that didn't resonate with Dershowitz's left-leaning social politics.
Today, the idea of ''civil libertarianism'' still doesn't quite have a defined spot on the intellectual and political map. The right to bear arms, the school-choice movement, desegregation, abortion rights and fetal rights'--a set of issues wildly incompatible in the rest of public life'--have all been defended under the mantle of ''civil liberties.'' Dershowitz's conception of pure civil libertarianism resembles the ''original position'''--the thought experiment developed by the philosopher John Rawls, with whom Dershowitz was in a reading group at Harvard. Rawls, widely regarded as the most important political philosopher of the 20th century, suggested people should think about ethics as if they were operating behind a ''veil of ignorance'''--as if they were building a society without knowing what their race, gender and social standing would be, and were trying to develop rules that would work to everyone's benefit. It's an attempt to think about justice purely from the standpoint of fairness. In the contemporary context, the challenge might be to consider what you would think about, say, the Electoral College without knowing whether it would work to the benefit of your party or the opposition.
Rawls is ordinarily classified as a liberal philosopher, since ''justice as fairness'' requires equal rights, equal opportunity and, generally speaking, fair treatment of the powerless. But some of the neutral principles that would likely emerge from that approach'--say, ''every person should be entitled to the presumption of innocence and a vigorous legal defense'''--benefit not only the powerless but also the rich and powerful, like, say, Donald Trump.
''I call it the shoe-on-the-other-foot test,'' Dershowitz told me. Several days after our first talk, the FBI raided Michael Cohen's offices, and he appeared on Fox News to say much the same thing. ''You know, if this were the shoe on the other foot,'' Dershowitz told Hannity, ''if this were Hillary Clinton being investigated and they went into her lawyer's office'--the ACLU would be on every television station in America jumping up and down.''
Some of Alan Dershowitz's most prominent clients (clockwise, from upper left): New York hotel queen Leona Helmsley, who was defended by Dershowitz during her 1990 battle against charges of tax fraud; O.J. Simpson, shown here talking with Dershowitz and attorney F. Lee Bailey during Simpson's 1995 trial for the murders of ex-wife Nicole Brown Simpson and Ron Goldman; televangelist Tammy Faye Bakker, at a 1991 resentencing hearing for her husband, Rev. Jim Bakker, who was sentenced to 45 years in prison for a combination of fraud and conspiracy charges; Danish socialite Claus von Bulow, who, in 1985, was acquitted on two counts of attempting to murder his wife, Martha ''Sunny'' von Bulow. | AP; Getty Images
Dershowitz's supporters see his position on Trump as consistent with the rest of his career. ''If you look objectively at what he's doing, he's applying neutral civil liberties principles to Trump, as he would to anyone else,'' said Harvey Silverglate, a civil rights lawyer in Boston and a longtime friend of Dershowitz's. Harvard professor Jack Goldsmith told me, similarly, ''Alan has obviously throughout his entire career been a principled defender of civil liberties, especially for those under criminal investigation. His commentary in the last year is entirely consistent with that lifelong commitment.''
In this telling, Dershowitz is a still point in a turning world, a zealot for neutral civil liberties so dedicated to his principles that he's willing to defend even people whose politics could undermine or destroy them. To Dershowitz's detractors, this is precisely the problem. They say Dershowitz has failed to recognize that we're in a new moment, when for the first time in our lives a president is flirting with authoritarianism in a way that, if unchecked, could bring down the very system that Dershowitz has spent his life defending.
Dershowitz is careful to say, over and over, that he's not Trump's lawyer. He's not providing legal advice to the president, and he's had no conversations under the cloak of attorney-client privilege. But his public statements, argued everywhere from Fox News to the Village Underground, amount to a case with a clear legal shape, the kind of thing a lawyer might argue, if it ever came to court.
The first pillar of the argument is intellectual: special prosecutors like Mueller are a really bad idea. They have enormous power, and to justify their existence they're prone to dive down rabbit holes, often barely connected to the original charge. (Bill Clinton's impeachment in December 1998, for perjury regarding his relationship with Monica Lewinsky, stemmed from an investigation into a real estate deal begun by special prosecutor Robert Fiske in January 1994'--almost five years earlier.) Moreover, special prosecutors simply aren't as good at getting an answer to a factual question as a select congressional committee or an independent commission, which is how Dershowitz says Russian election interference should have been investigated.
He has been sounding this note for years. ''The subjects of such investigations are often hounded and bankrupted. The independent counsel have no accountability or continuity,'' he wrote in his 1998 book Sexual McCarthyism: Clinton, Starr and the Emerging Constitutional Crisis. And he has company. Special prosecutors are ''like dinosaurs roaming the Earth in search of prey,'' said NYU professor Burt Neuborne, former national legal director of the American Civil Liberties Union.
''The sad reality appears to be that most people care about perjury only when they disapprove of the substance of the lie or of the person who is lying,'' Dershowitz said in Dec. 1998 testimony before the House Judiciary Committee in regards to the looming impeachment of President Bill Clinton. | Getty Images
Every lawyer I spoke with for this story acknowledged the consistency and validity of Dershowitz's concern with special counsel overreach. ''This is a classic civil liberties position,'' Gertner said. In the case of Trump, some questioned whether Dershowitz has made clear that this is an institutional argument as opposed to a personal attack on Mueller. ''Any person who has listened to Alan on a regular basis would not think he only had a problem with the appointment of Mueller,'' Toobin told me.
Indeed, Dershowitz has critiqued several of Mueller's tactics specifically. Last August, he challenged Mueller's decision to empanel a second grand jury in the District of Columbia as a tactic to gain a more favorable jury pool in potential criminal trials; more recently, he's raised questions about Mueller's conduct as a U.S. attorney in Boston when four innocent people went to prison to protect an FBI informant named Whitey Bulger, and he has been harshly critical of the Cohen raid. It wasn't Mueller who sought the warrant, but it's the sort of rabbit-hole consequence that Dershowitz has been railing about.
The Cohen warrant has widened an already-existing rift in the civil liberties world. In normal times, the FBI raid is the kind of aggressive prosecutorial move that would drive civil libertarians crazy: it puts privileged communications at risk of being exposed. ''I see no adequate moral reason for invading one of the most sacred relationships in our constitutional democracy,'' Silverglate said. This seems like it should be a bread-and-butter type issue for the ACLU, but the organization has been nearly silent on the Cohen warrant. In an op-ed in The Hill, Dershowitz accused the organization of having ''abandoned its role as a neutral defender of civil liberties.'' He wrote, ''For the ACLU,'' he wrote, ''getting Trump, trumps civil liberties.''
This point is central to Dershowitz, who sees the ACLU as having turned ''away from traditional liberal values toward a 'progressive' politics.'' The ACLU declined my requests for an interview for this story; its national legal director, David Cole, emailed only to say, ''I think Alan Dershowitz is wildly overreacting'' and to refer me to a blog post on the ACLU website in which he writes: ''The ACLU is the nation's premier defender of privacy. But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one'--not even the president, let alone his lawyer'--is above the law.''
Dershowitz's argument isn't crazy. What's unclear is why he's making it at all.
Other civil libertarians acknowledged the legitimacy of Dershowitz's concern, but said it lacked important context. ''No-knock warrants are not unusual. Raiding a lawyer's office happens rarely but regularly. None of this is new,'' said civil rights attorney Ronald Kuby. ''It doesn't make it right. But it also doesn't make Donald J. Trump the victim of a rapacious criminal justice system.''
The second pillar of Dershowitz's argument is more technical, and more controversial: A president cannot be found guilty for exercising his constitutional authority, he argues, and his constitutional authority includes the right to fire anyone in the executive branch, even if that person is investigating him. In his view, President Richard Nixon did not obstruct justice by ordering the firing of special prosecutor Archibald Cox. Rather, Dershowitz says, Nixon obstructed justice by telling subordinates to lie to the FBI, by paying hush money to potential witnesses against him, and by destroying evidence. By this logic, Trump could fire Mueller or Rod Rosenstein for any reason without criminally obstructing justice.
Whether Dershowitz is right involves a complex legal argument that can't objectively be resolved. Those who disagree with him, including University of Chicago Law School professors Daniel Hemel and Eric Posner, argue that a president obstructs justice when he interferes with an investigation for a corrupt motive'--which, presumably, would include firing an investigator who might uncover something bad about him. Generally speaking, assessing motive is a dodgy business in the law'--and Gertner hastens to point out that firing Comey isn't the only basis for obstruction charges that could be levied against Trump'--but Dershowitz's argument isn't crazy.
What's unclear is why he's making it at all. Almost no legal experts think Trump will face criminal obstruction charges. A sitting president has never been indicted, and a pair of Justice Department legal opinions, from 1973 and 2000, hold that a sitting president cannot be tried or indicted. Former Solicitor General Walter Dellinger recently argued that there's more wiggle room regarding indictment, and of course the opinions could be revisited, but criminal charges against Trump seem highly unlikely.
So what is the argument about? When TV pundits talk about ''obstruction of justice,'' they're not really talking about the statutorily defined crime. They're using it as a kind of shorthand for attempting to rise above the law'--the kind of thing that might trigger Congress to launch an impeachment proceeding. Arguing that Trump couldn't be impeached for corrupt actions'--as Dershowitz says is also true under certain fact scenarios'--is a fundamentally different matter. ''This isn't a civil libertarian position,'' Gertner said. ''It's an authoritarian position. If anything, it purports to talk about constitutional power. It isn't Alan's usual bailiwick and in my opinion it is false.''
''If Alan is right,'' Neuborne concluded, ''then the president is above the law and we have a very different system than we think we have.''
In the West Village, Dershowitz went even further down that path, and argued that the statutory definition of ''obstruction of justice'' would still be relevant in an impeachment trial, over which the chief justice would preside. Dershowitz argued that the presence of the chief justice at an impeachment trial, and the inclusion of criteria for impeachment in the Constitution, proves that the process is not purely political and that legal standards should still be relevant. In such a proceeding, Dershowitz said the first thing he'd do is to file a motion to dismiss'--in other words, a motion that the alleged conduct did not meet the minimal legal threshold. It's the weakest part of Dershowitz's argument.
''It is inconceivable to me that Chief Justice [John] Roberts would accept an argument that the president is above the law'--more immune than King George was,'' Neuborne told me from Stanford, where he is teaching this semester. ''In the real world, the argument wouldn't last five minutes.'' Silverglate said, ''What Trump has done isn't appropriate for criminal charges, but much of what he has done would be grounds for impeachment.'' Silverglate rejected the notion that somehow the Supreme Court would swoop in and dismiss impeachment charges on legal grounds. ''I don't see how a decision to impeach would be subject to judicial review,'' he said.
''If Alan is right,'' Neuborne concluded, ''then the president is above the law and we have a very different system than we think we have.''
Most of these scenarios are solely fodder for late-night talk shows. Almost all experts agree it's extremely improbable that Trump will be criminally charged, and that if he is impeached, it's unlikely to be just for this small set of clearly noncriminal acts. If all this is true, what is Dershowitz trying to accomplish?
The most impassioned criticisms of Dershowitz concern ''tone and audience'''--a polite way of saying that Dershowitz shouldn't air his concerns on Fox News. One can detect in this critique some measure of resentment and jealousy. Dershowitz is a terrific TV guest. It's also clearly true that Dershowitz is drawn to celebrity and attention. His clients and advisees have included Barack Obama, Bill Clinton, Benjamin Netanyahu, Marlon Brando, Frank Sinatra, Yo-Yo Ma, Sheldon Adelson, Natalie Portman, Mark Rich, Saul Bellow, David Mamet and, as of last week, Harvey Weinstein, who he is aiding in an effort to recover personal emails from his former company. Dershowitz has recounted many times that when he had dinner at Mar-a-Lago in March 2017, he was visited at his table by Trump himself, who ''started schmoozing'' and courting his vote for 2020. One has the image of iridescent moths drawn to each other's glow. At the age of 79, a time when many of his counterparts have long since dialed back their public presence, the Trump story has given Dershowitz a vehicle back into the thick of it.
When I asked Dershowitz in early April why he appeared so often on Fox News, he said he was furious with CNN for not booking him more often and had asked the network whether he'd been blacklisted. Dershowitz is on CNN more often now, he says, but his beef with the network seems to presume that he needs to offer his views on TV, and that if Fox News is the outlet that wants to put him on, then so be it. Toobin, who's been sparring with Dershowitz more regularly on CNN, asks, ''Is Alan Dershowitz so important that he has to be on all the time?''
Dershowitz at a Feb. 2016 event for Hulu's ''Triumph the Insult Comic Dog's Election Special.'' | Getty Images
The problem, as many see it, is that in going on Fox News'--a network whose hosts tend to operate as attack dogs for Trump and a kind of security blanket for his supporters'--Dershowitz is retailing an argument in a place where it has an entirely different meaning. The shoe-is on-the-other-foot moral test is ''the first, basic exercise in critical thinking that America needs to engage in,'' Kuby said, ''But that's not a conversation you can have on the Fox News channel.'' Neuborne agreed. ''I want to try and separate the intrinsic merits of Alan's concerns from the propriety of the venue'--whether we should be debating or expressing them on Fox News,'' he said. ''Alan knows the difference between a serious intellectual investigation and a political propaganda barrage.''
Dershowitz also knows, as everyone does, that the president is an avid Fox News watcher, to the point where he personally called into Fox & Friends on a recent morning. ''I talk to the president on television all the time,'' he told Isaac Chotiner of Slate. ''Apparently he listens.'' In this way, Dershowitz has publicly laid out several legal arguments to Trump, including the idea that it would be unwise to voluntarily speak with Mueller and that Rod Rosenstein should be recused. And Trump isn't the only important audience his views are reaching. Dershowitz himself has said that Trump should not fire Mueller, but no one has done more than he has to give cover to Republicans in Congress who might choose to look the other way were Trump to do so.
Watching Dershowitz's recent appearances on Hannity, one has the feeling that he's allowing himself to be used. In the lead-in to one segment, Hannity said of Mueller's tactics, ''This is what we expect in Venezuela. This is not the United States or anything.'' It's a moment crying out for Dershowitz to point out Hannity's own inconsistencies'--the conversations he's entertained about ''Lock Her Up,'' and whether Hillary Clinton should be tried for treason and executed for the unsubstantiated allegations surrounding the Uranium One sale, all of which have the ring of Venezuela. Hannity's response to Mueller's first charges was to tweet, ''When will @HillaryClinton be indicted?'' But Dershowitz says none of this.
''There's no question that everybody uses everybody on television,'' Dershowitz told me, when I confronted him with the concerns about his Fox appearances. Dershowitz also pointed out that he chastised Hannity for not disclosing his relationship with Cohen, that he's tried to strike a better balance in his appearances, and that his microphone is often cut off during the introductions to his segments. But Dershowitz said he thought the appearances important. ''I think of myself as a public educator,'' he said, adding, ''I always prefer to speak with audiences that disagree with me.'' He says that he gets a positive response from Hannity's audience and that many thank him for educating them about civil libertarian concerns.
''I'm sort of half-sympathetic for Alan pointing out that the left has been inconsistent, but that's only one side of the story,'' Neuborne said. ''Conservatives are inconsistent, too.'' On that point, Dershowitz agrees. ''Almost everyone's a hypocrite,'' he says.
As he sees it, the best way to achieve his goal'--and to get it the attention it deserves'--is by defending the most odious clients in the most provocative possible way on the very principles liberals claim to love.
Talking to him, it's not hard to get the impression that exposing that truth'--the hypocrisy of both sides'--may be his ultimate project. As he sees it, the best way to achieve his goal'--and to get it the attention it deserves'--is by defending the most odious clients in the most provocative possible way on the very principles liberals claim to love. One of Dershowitz's favorite quotes is H.L. Mencken's observation that ''the trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches.''
Watching Dershowitz do his thing is supremely challenging. It feels in-your-face, almost obnoxious, which is probably part of the point. What makes it especially tough to take is it seems as if Dershowitz thinks he alone is immune from the curse of hypocrisy. But his core point is worth reflecting upon. Keeping one's bearings in the Trump era is hard. So many tectonic plates have shifted that it's often impossible even for experts to figure out how they ended up standing where they are. Have civil libertarians ever defended FISA courts and no-knock warrants? It's one thing for the ACLU not to take the lead questioning federal agents barging into the office of the president's former lawyer, and quite another to issue a statement praising the ''rule of law.'' Would liberals really feel the way they do if the shoe were on the other foot?
''I do believe there will be a reckoning,'' Gertner told me. ''And people who enabled this corruption will have to be held to account.'' The question is, when the judgment of history is rendered, who will be deemed corrupt'--Republicans for turning a blind eye to blatant election interference, Democrats for politicizing apolitical institutions like the ACLU, or civil libertarians for wavering in their commitment to foundational principles? Likely there's blame enough to go around. But it's surely unfair to brand Dershowitz a ''racist,'' as Rep. Maxine Waters did in the aftermath of the D.C. grand jury controversy, or a ''Trump apologist,'' as have Slate's Dahlia Lithwick and Salon's Jefferson Morley, among others.
Dershowitz proudly voted for Clinton, he opposed the Trump travel ban ''as a matter of policy'' and he called allegations that Trump had shared classified information with Russia's foreign minister about ISIS's plans to use laptops as airplane bombs ''the most serious charge ever made against a sitting president.'' When I asked him, he flatly told me ''collusion should be a crime'' and that it ''should be illegal to fire a special prosecutor.'' At one point during the Village Underground debate, Dershowitz threw up his hands and exclaimed, ''Who's defending anything Trump did?''
Calling him names feels reductionist, convenient'--as if we'd rather lounge in the comfort of our own echo chambers than deal with the vexing and even annoying challenges that he's made a career of raising. ''Alan Dershowitz is one of the good guys,'' Kuby says bluntly. What does it say about us if we cast him out?
One's bottom line on this ultimate question almost certainly turns on one's perception of the gravity of the current threat to democracy. Perhaps Alan Dershowitz has a greater capacity than the rest of us to separate the transient anxieties of this moment from the bigger risks, and perhaps history will look back upon the Trump presidency as the sort of challenge that demonstrates the resilience of a liberal democracy'--a seminal ethical moment like the Skokie marches or the Nuremberg trials, in which society protects procedural rights as it simultaneously expresses profound disagreement with those whose rights are being protected.
Or perhaps the democratic project is under existential threat'--and history, if it survives as an independent academic enterprise, will look back pityingly upon civil libertarians who coddled power with their concerns about prosecutorial overreach while a fundamentally corrupt president undermined the great American project.
For his part, Dershowitz is optimistic. ''I think the fear is not substantial,'' he said of the threat to democracy. ''The media is very strong. We're seeing some Republicans draw red lines. We're seeing the academy stand up to him.'' If anything, Silverglate sees our treatment of Trump as the threat, and thinks Dershowitz does too. ''I have no doubt Alan feels danger to this society if Trump is run roughshod over,'' he said.
Others take a darker view, as a raft of seriously argued recent books about Trump and democracy attest. In How Democracies Die, Harvard professors Steven Levitsky and Daniel Ziblatt identify four warning signs that a leader puts democracy at risk: a weak commitment to democratic rules, denial of the legitimacy of opponents, toleration of violence, and a willingness to curb civil liberties or the media. ''With the exception of Richard Nixon,'' they write, ''no major-party presidential candidate met even one of these four criteria over the last century.'' On the other hand, ''Donald Trump met them all.''
In this framework, empowering Trump'--even as a matter of dispassionate intellectual principle'--brings us one step closer to a regime that erases the very values that Dershowitz says he's defending. ''I fear Dershowitz has allowed his celebrity to stand as an apology for a great danger to the civil liberties he claims to cherish,'' said Northeastern Law School professor Michael Meltsner, former first assistant counsel to the NAACP Legal Defense Fund. ''Alan is fiddling while Washington burns.''
Kuby said grand concerns with democracy are part of the reason he recently left talk radio. ''Someday my grandchildren will ask, 'Grandpa, what did you do in those extraordinary times.' I didn't want my answer to be, 'I entertained many of his supporters on radio while I made a lot of money.'''
Neuborne said, ''I think we're in about as risky a place as we've been in my lifetime.'' Dershowitz, he says, has convinced himself that ''only he can be the arbiter of principle, which is a dangerous psychological place to be. I've been there myself.'' But Neuborne takes heart in the upsurge of interest in the democratic process. ''I think the country is going to heal itself, and that's why I'm so sad about Alan. He could be part of the healing process instead of making the festering wound even worse.''