05-21-25 *INTERVIEW* Professor of Law at Harvard Law School Alan Dershowitz on His New Book

Episode Transcript

Speaker 1 (00:00):
I am so pleased to welcome Alan Dershowitz back to
the show.

Speaker 2 (00:03):
I think I've only.

Speaker 1 (00:04):
Had dershawn one or two times in the past. And
he is not not only one of the pre eminent
attorneys in America, he's a he's a emeritus professor of
law at Harvard. But he's also a guy who has
taken some some real risk stepping out and standing up
for what he believes in. And we'll we'll talk about

(00:25):
all that a little bit.

Speaker 2 (00:26):
Uh.

Speaker 1 (00:27):
Also, I'm holding in my hand the professor's new book.
It's called The Preventive State. The subtitle is the Challenge
of Preventing serious harms while preserving essential liberties. Brand new
book from Professor Dershowitz. And I have, Yep, he's showing
it to me. Well, I can. I can show it
to you, Professor. Look, I can show it to you. Uh,

(00:48):
because because I've actually read almost all of it, I've
just got a few pages left to go.

Speaker 2 (00:54):
So thank you so much for being here. First of all,
appreciate it.

Speaker 3 (00:58):
Thanks. You haven't gotten and you haven't gotten to the
best part. You don't know if you did it, whether
he so this is my fifty seventh book one I'm
most proud and the one I think I'll be remembered
for by certainly by law professors and scholars, because it
talks about a problem that is very very deeply concerning

(01:22):
but almost nobody writes about, and that is that governments
are moving much more toward preventing harmful conduct, and that's
very risky in terms of civil liberties. I mean, it's
very important. If we could have prevented nine to eleven,
or we could have prevented Pearl Harbor, or if Israel
could have prevented October seventh, Wow, that would have been great.
But what it's the cost? What would we have to

(01:43):
do to prevent it? Would we have to torture people?
What do we have to arrest people without due process?
So these are the kinds of issues that I confront.
I talk also about, you know, issues obviously like deportation
and and what you do when you have a pandemic
do you require people to get and ooculated to prevent
the spread of the pandemic? All these contemporary issues. Should

(02:06):
Israel engage and preventive attack on on Uron's nuclear reactor,
what would Trump's reaction to that be? Those are you
know the kinds of questions that we're facing today, and
I write about all of them in the book The
Preventive State.

Speaker 2 (02:19):
Yeah, it is fascinating.

Speaker 1 (02:21):
And I was going to talk with you about other
things and then the book, but maybe I'll talk to
you about the book first and then some other things
since we're already going on this.

Speaker 2 (02:28):
By the way, the answer to.

Speaker 1 (02:29):
Your question, should Israel takeout Iran's nuclear weaponsites?

Speaker 2 (02:32):
The answer is yes, But I I think so.

Speaker 3 (02:36):
But I wonder if Trump thinks so. Yeah. I know
he was a good deal, and he doesn't want to
have that deal interfered with by by Natanyou. And so
I don't know what he's telling Natanyo. But you know,
everybody's learned the Zolensky lesson. You don't piss off President
Trump if you expect to get, you know, help in

(02:58):
protecting your country.

Speaker 1 (03:00):
Tell me a little bit about I guess i'd call
it a framework that very much underlies the discussions of
the Preventive State in every aspect in the Book of
True and False Positive and Negative.

Speaker 3 (03:16):
Yeah, I mean, take for example, what happened in nineteen
or didn't happen in nineteen thirty five? In Europe, Nazis
were building up in violation of the Versaides Treaty. They
were threatening to take over Poland and Czechoslovakia, and the
British and the French had a decision to make. Should
we go in and kill Hitler and Gerring and Gerbels

(03:38):
maybe they wouldn't have done anything, maybe they were just bluffing,
or should we allow them to continue to build? And
they made a terrible false negative mistake. They thought Hitler
didn't mean it, and he ended up killing fifty million
people as the result of that mistake. On the other hand,
in Iraq, we made the opposite mistake. We went in

(03:58):
thinking they had nuclear weapons and they didn't. So Iraq
was a false positive mistake. Failure to go into Nazi
Germany was a false negative mistake. Israel made a false
negative mistake by not going in on October seventh and
trying to preempt You know, these are the kinds of
hard decisions that governments make. The one thing that's constant

(04:22):
is we will always make mistakes, will never be one
hundred percent right, and so you need a framework for
evaluating which kinds of mistakes are worse right.

Speaker 1 (04:30):
And you go through this quite a bit, and it
does seem fairly obvious, But obvious doesn't always mean anything
when it.

Speaker 2 (04:37):
Comes to law.

Speaker 1 (04:39):
That the decision on which way to go as far
as the preventive states should have something to do with the.

Speaker 2 (04:48):
With how bad the harm might be if you get
it wrong.

Speaker 3 (04:53):
Now, but how bad the harm might be if you
get it wrong either way. Take, for example, a policeman
having to use legal four against somebody who might be
using legal force against him. If the policeman doesn't shoot,
maybe the policeman dies. If the policeman does shoot, maybe
it was overreaction, maybe there was too much. And so

(05:13):
there are always going to be mistakes, and the question
is which mistake is worse. And every one of these
preventive decisions is a cost benefit analysis of what kind
of mistakes we prefer. You know, it's easy when somebody's
committed a crime, we say, better ten guilty go free
than one innocent be wrongly confined. That ratio is pretty

(05:34):
well established ten to one. We don't have a ratio
for the preventive state. Is it better for ten terrorist
acts to go forward rather than one person be improperly deported? No?
Probably not, But we don't know what the ratios are.
We're going through that right now with deportation. We know
we're making mistakes, but we know our heart's in the

(05:56):
right place. We want to make sure we prevent illegal
immigrants from committing horrible, horrible crimes, which many have done.
We also know that we sometimes make mistakes when we
pick up the wrong people.

Speaker 1 (06:10):
We're talking with Professor Alan Dershowitz from Harvard of his
new book The Preventive State, which you heard him say
is the book he's most proud of and that he
thinks he'll be remembered for. And the subtitle is the
challenge of preventing serious harms while preserving essential liberties. I
want to jump in fairly far into the book here
because you write about something that I'm not an attorney,

(06:33):
but I love reading Supreme Court opinions, Circuit Courts of
appeal opinions, and I really enjoy thinking about constitutional law and.

Speaker 3 (06:46):
A lawyer. It's not too late. We've had lawyers. I
don't know how old you are, but we've had law students,
probably your age. So come become a lawyer if you
love reading Supreme Court.

Speaker 2 (06:54):
Decision, I really do.

Speaker 1 (06:55):
I would if I were a lawyer, I would probably
go work for the Institute for Justice and spend my
time suing the government over violations of individual rights, because
that's where that.

Speaker 2 (07:05):
Yeah, I know you have.

Speaker 1 (07:08):
So you write a fascinating segment about this overly used
and constantly misused thing about yelling fire in a crowded
movie theater. And I love this part of your book,
and I wonder if you could just tell my listeners
a bit about it.

Speaker 3 (07:26):
Yeah, it's the dumbest thing a smart man ever said
all Voindelhome is one of the smartest people having to
serve on the screen court. And by using the analogy,
oh you can't shout fire wrongly in a crowded theater,
you really hurt free speech enormously. The case itself involves
somebody handing out a leaflet telling people who are being

(07:46):
drafted that they had the right to claim conscientious objective status.
That isn't quite shouting fire. H Shouting fire in a
crowded theater is not speech at all. It's like setting
off an alarm. It's a clang sound. It's not designed
to make you think about anything. It's not an invitation
to debate. It's a message to your legs and you're
a general. You're adrenaline, and get the hell out of there.

(08:07):
Don't think about it, don't ask anything. And to use
that as an analogy for free speech is to diminish
the importance of free speech. So I've always hated that term,
and yet it's quoted all over the place. People tell
me all that, Oh my god, that's my shouting fire
in the crowdit theater. No it's not.

Speaker 1 (08:26):
I have never heard anybody until reading you in this
book analogize shouting fire to being an alarm.

Speaker 2 (08:36):
Sound like it doesn't.

Speaker 1 (08:38):
It isn't even really speech versus just a you know,
a form of speech that a judge said is not protected.
I think that's did you come up with that? And
that's a that's a brilliant.

Speaker 2 (08:49):
Thing I did.

Speaker 3 (08:50):
I actually wrote an essay on it that won an award,
and then I included it in my book. Remember recently,
a congressman, a former congressman, thankfully he was defeated, a horrible,
horrible congressman. The thing his name was Bowman, and he
set off an alarm in Congress because he didn't like
what Congress was doing. So he pulled the alarm nobody
would ever suggest that was free his speech. And if

(09:13):
instead of pulling the alarm, he had stood in front
of it and yelled fire, fire, fire, it would be
exactly the same thing. So yeah, An, it's an argument
I came up with, and you know, it's something I'm
proud of. Look, this book is my fifty seventh book.
My wife calls it my Heinz book because Heinz fifty
seven flavors, uh huh. And so it's the one that

(09:33):
I think we'll have the biggest, hopefully have the biggest
impact on changing the way we think about at legislate
and decide cases involving prevention, because every single day we're
making preventive decisions and we're doing it without the benefit
of a jurisprudence. So I try to create a jurisprudence
for this, all right.

Speaker 1 (09:54):
I want to try to tie this to stuff that's
very much in the news right now, and I think
it's sort of on the edges of the preventive state.
It's not entirely the preventive state, but the deportation stuff
that's going on right now, and the controversies around just

(10:14):
how much due process and illegal alien is due and
then the next step just how much due process And
the illegal alien who's been convicted of a crime other
than the crime of crossing the border illegally, I'm not
counting that as a crime.

Speaker 2 (10:29):
What do processors they do?

Speaker 3 (10:31):
Yeah, it fits in perfectly to the prevented state, because
the vast majority of people who want to see gang
members supported want to see that in order to prevent
them from committing crime. So deportation is a major preventive mechanism.
By the way, goes back to the earliest times in
history when people were exiled, they were told they have

(10:55):
to leave the country. Exile was a very important form
of and I write about that in the book, And
so deportation fits perfectly. Now. Due process is the most
misunderstood term, after shouting fire, the most misunderstood term. People
think it means the same thing for everybody. What due
process means is the process that is do you based

(11:18):
on your stage, is who you are and what the
government is trying to do to you. So if you
get arrested in you're a citizen and they charge you
with a serious crime, you get all the due processes
in the world. You know, you get a right to counsel,
you get confrontation of witnesses, you get bail, you get
you name it, you get everything. On the other hand,
if you're hearing a student visa and you lied on

(11:41):
your visa or you're misusing your visa not to learn
but to make trouble, the due process that you're entitled
to is very minimal. They have to prove you're the
right person, that you did what they say you did,
made a speech, or do something like that, but not
very much. And for your example, if you just climb over,

(12:02):
if you just climb and just swim across the Rio
Grande and make it into Texas and they catch you,
they just take you back, there's no due process at all.
The process that's due you at that point is zero,
except if you're a Cuban, because there they had the
idea of a wet foot and a dry food. If
you made it onto land during the Castro period, then

(12:26):
you could stay in the United States. But in general,
if you illegally cross over and you're caught, they just
take you and put you back in. But if you're
here for a while and you're a student, et cetera,
you get a little bit of due process. But not
an awful lot.

Speaker 1 (12:40):
Yeah, and this temporary protected status thing, right, so I
think Biden maybe put in TPS for Venezuelans. The current
administration wants to take it off. I'm not an expert
on this law, but it seems to me the word
temporary is included in temporary protected status, and I'm I'm
guessing they're allowed to take it off.

Speaker 2 (12:59):
But this, all this stuff all ends up in court.

Speaker 1 (13:01):
But you know, I think some Americans are a little
bit uncomfortable with We're just going to round up these
people and send them wherever we're going to send them.
I think some people feel like there is some process do,
even if it's less than the process that would be.

Speaker 3 (13:15):
Due to you and me. Right, And they're right. And
one way of dealing with this, by the way, is
to say, if there's probable cause, probable cause, that's the
same thing you need to have a search. If there's
probable cause for believing that you're here illegally and that
you have no status. You don't have a green card,
you don't have a visa. If there's probable cause for that,
then they can deport you. Give you the phone number

(13:40):
of a call in, and you can then by zoom
have a hearing, but not in the United States. You
have the hearing from Salvador from Nicolwaga from Mexico, and
then if you win, you get taken back into the
United States. So you know due process can occur after
your deporter as well as before you're deporter. Remember that
much of the issue is about timing. For example, people

(14:02):
seek amnesty, but ninety percent of those who seek amnesty
don't get it, and their claims are frivolous. They claim
that they're going to be subject to torture in you know,
Argentina or Chile, and they're not, and the courts are
going to reject it. So why are they applying Because
they know they're going to get two three years out

(14:23):
of that because it takes that long to reject the claim.
So a lot of it is game playing by lawyers
for the immigrants who are just seeking to allow them
to stay in the country for a longer period of time,
knowing eventually that they'll lose the case. And on the
other side, they want to expedite it. So we have

(14:43):
a constitutional conflicts, not a crisis. It's a conflict. Then
ultimately it'll be resolved.

Speaker 1 (14:48):
All right, I've got about four or five minutes left,
and I want to get to a couple other things
with you. So you may or may not recall that
I went to Columbia. My dad went to Columbia after
I might. He's not rich, but he likes, liked past
tense giving.

Speaker 2 (15:03):
Columbia some money.

Speaker 1 (15:05):
Almost since I graduated, I was telling my dad that Columbia,
which I think has probably the highest percentage of Jewish
students in the Ivy League, and I'm Jewish. I told
them this is a haven for anti Semitism and you
should not give this place any money. I've been telling
him that since at least since at least the nineties.

Speaker 2 (15:22):
Now you're at Harvard.

Speaker 1 (15:23):
Harvard has its own struggles going on right now, its
own its own fight with the Trump administration. First question,
do you think Harvard deserves the attention that Trump administration
and many other people are giving it.

Speaker 3 (15:37):
Yes, because it's a leading institution and it's failed in
its mission. I have a new book that I'm working
on now, my fifty eighth, and it's called Trump to Harvard,
Go fund Yourself, big title, but it is about the
fact that the government is entitled to put pressure on
universities not to violate Title six and other parts of

(16:02):
the civil rights law. Look think about if this were
the nineteen fifties when I was in college, and you
had Southern schools that were allowing the plan to come
on campus with masks and attimiday black students and teachers
teach Wroite supremacy. We would be all in favor of
the government stepping in and do something about it. And
I think it's okay for the government to step in

(16:22):
and do something about Columbia Harvard as long as it
doesn't interfere with basic scientific research, medical research, cancer research
that ought to be out of bounds. But anything political
and ideological cutting off funding is a good idea, So good.

Speaker 2 (16:38):
Okay, you went where I was going to go there.

Speaker 1 (16:40):
So that the science question is interesting because you can
say you did say that the value of that research
is so much that government should leave that out of
the conversation. But do you, as a matter of law,
other than perhaps if there is a signed contract with
the government, and I've even that might be the terminable

(17:01):
based on violations of civil rights law, do these universities
have any legitimate claim on taxpayer money?

Speaker 3 (17:08):
Well, you would have been a great lawyer, because that's
the question, and the answer is no, they don't. If
you discriminate against the school based on race or gender
or religion. Yeah, But if you discriminate because they're not
following the law, no, they have no right. They have
no right to a tax exemption either. And therefore the

(17:30):
government is going to win these cases. Now, Harvard is
getting very bad advice from its very bad lawyers, and
the president of Harvard is not a lawyer. Doctor has
been told that they're gonna win. They're not gonna win,
They're gonna lose. They may win a couple of rounds
on due process issues, but in the end, the government
is entitled to withhold funding from universities that are violating

(17:53):
Title six of the Civil Rights Law.

Speaker 1 (17:55):
Last question for you, professor, last time you and I
just a few years back, you had you had made
some statements about law and process and fairness that weren't
exactly you standing up for Donald Trump, but rather you
standing against.

Speaker 2 (18:18):
Misuse of the.

Speaker 1 (18:19):
System and other things to attack Donald Trump. And when
we talked you and you were very public about all this.
You lost a bunch of friends, and maybe they weren't
really that good friends to begin with, but you go ahead.

Speaker 3 (18:35):
Some of them were close friends, at least long term friends.
I still lost them. Larry David's a perfect example. We
were good friends. We had dinner, you know, several times
a month. He would come to my house, we would
cruse over lunch. And he now won't talk to me.
He calls me disgusting and despicable, just because I had
defended Donald Trump on the floor of the Senate against

(18:56):
an unconstitutional pachiment. I didn't vote for him in those
two times when I defended him, but I defended him
and I would continue to defend him because I believe
strongly in the Constitution. But there are a lot of
people who don't believe in the Constitution and attack you
for who you defend. You know, I've been attacked with
defending Jeffrey Epstein for defending O. J. Simpson, for defending

(19:19):
Klaus from DULO. I also defended Bill Clinton, and you know,
you don't attack lawyers for who they defended. Otherwise you
would have to attack John Adams, who defended the people
accused of the boss and massacre, and he was criticized
for that as well. So I have in his footsteps.

Speaker 2 (19:37):
I have just a few seconds left. So the what I.

Speaker 1 (19:40):
Wanted to ask you now is, you know, we've seen
in the world. We've seen a pushback against cancel culture,
and a pushback against DEI, and a pushback against wokeism.
And I wonder if any of the friends and I
almost feel like I want to put friends in air quotes,
but I wonder if any of these friends who abandoned
you have come back to you.

Speaker 2 (20:01):
I know you said Larry David didn't, but.

Speaker 3 (20:03):
Have doubled down. They're embarrassed, they're a shamed, but they've
doubled down. And you know, guy comes up to me
on the porch of the Chilmark store in Massachusetts and
he starts screaming at me. I said, wait a minute,
all right, you can yell at me, but is it Trump?
Is it Epstein? Is it Israel? What are you attacking

(20:23):
me for? Everything? You know? And so yeah, No, people
are unforgiving. I've been canceled by many major institutions, schools, colleges,
and lecture circuits. And even though they admit privately that
they were wrong, they won't admit it publicly, and they
don't come back. They double down.

Speaker 1 (20:43):
They should be ashamed of themselves. Alan Dershowitz, fantastic new book.
I will I will read the rest of it. I
only have a few pages left. Is called the prevented right.

Speaker 3 (20:51):
That's a surprise ending.

Speaker 1 (20:53):
Right as a surprise ending, it's a cliffhanger. It leaves
you waiting for the sequel. The preventive state, the challenge
of preventing serious harms while preserving essential liberty is always
an honor to talk with you, professor, Thanks for being here.

Speaker 3 (21:06):
My honor. Thank you.