“The ACLU Would Be Up in Arms”

Alan Dershowitz, fresh from a White House visit, tells Slate the president’s civil liberties have been violated during the Mueller investigation.

NEW YORK, NY - FEBRUARY 03:  Alan Dershowitz attends Hulu Presents 'Triumph's Election Special' produced by Funny Or Die at NEP Studios on February 3, 2016 in New York City.  (Photo by John Lamparski/Getty Images for Hulu)
Alan Dershowitz. John Lamparski/Getty Images

On Tuesday night, with reports circulating that he was furious about both the raid on the offices of his lawyer, Michael Cohen, and the gathering force of the Mueller investigation, President Donald Trump dined with famed law professor and pundit Alan Dershowitz. Though he still self-identifies as a Democrat, Dershowitz has emerged as one of the president’s highest profile defenders; he appears frequently on cable news programs the president watches, and just criticized the seizure of documents from Cohen’s office. (He recently referred to Mueller as a “zealot.”) Dershowitz also speaks frequently on Mideast politics and the Israeli-Palestinian conflict, the ostensible reasons for his visit to the White House on Tuesday.


Dershowitz and I have spoken once before, but this conversation took place after Dershowitz’s dinner with the president. Our chat, edited and condensed for clarity, is below.


Isaac Chotiner: Just to make sure: Did you have dinner with the president?

Alan Dershowitz: I spent much of the day in the White House today. This was a pre-scheduled meeting to talk to the White House staff members about ongoing efforts to come to an agreement on the Middle East. This is the third time I have met about the Middle East, and I hope to continue to have some input on the Middle East. This is the fourth president I have advised on the Middle East. And that’s the reason I came to the White House.


After this was all scheduled, the president then invited me to join him and others for dinner tonight, which I did, and we continued to discuss the Middle East and Syria and Iran and the Israel-Palestine conflict.

Did you discuss anything about the Mueller investigation or the raid on Michael Cohen’s office?

All I’m prepared to say on that is that I did not give the president legal advice. I don’t give anybody legal advice unless I am their lawyer. I am not his lawyer. I’m not in a lawyer-client relationship with him. I had no kind of legal conversation with anybody in the White House, or give legal advice to anybody in the White House, about the ongoing investigation.


Is there a distinction between giving someone legal advice and talking to them about their legal matters in a way they could find helpful?

Well, I talk to the president on television all the time. Apparently he listens. I get on television and I state what I think is going on. And anybody can listen, and I very purposely do it publicly so nobody mistakes it for legal advice. And I will continue to do that. I feel strongly about what’s going on and I share my views widely, publicly, and I know the president sometimes listens. He has said to me that sometimes he agrees with what I said and sometimes he disagrees.


Did you give any advice or talk about that tonight?


I can’t tell you what I talked about. I can just tell you I didn’t give any legal advice.

Do you think the president is going to fire Rod Rosenstein or going to try to fire Robert Mueller?

I have no idea, but I think it would be a mistake to do that.


Because I think that it would be perceived as political and I think a lot of Republicans would be concerned about that. I think it would be a political mistake to do that. I think his much better course is to proceed with the investigation, and tell the truth. He shouldn’t testify unless he has to. Nobody ever should. Nobody who is the subject of an investigation should ever testify. It never does you any good. They are not asking you to testify to help yourself; they are asking you to testify to help the prosecution. But he may have no choice because they can subpoena him.


But if you were advising him—pretend this is a television show—you would advise him not to fire them and cooperate?

I would say not to fire. I have already said it on television. My advice would be don’t fire, don’t pardon, don’t tweet, and don’t testify.

What was your sense of the president’s state of mind tonight?

I can’t judge that. He seemed upbeat about the Middle East when we talked about it.

Upbeat about the Middle East? Really?


He’s maybe the only one. But you are a smart guy.

I’m not a psychologist. I’m a lawyer.

You are smart enough to know that the best way to talk to him is via television.


It might not be the best way; it’s the way I want to do it. I want to maintain my independence. I want to be critical of him when it’s warranted, and supportive of him when it’s warranted. I’m a liberal Democrat who voted for Hillary Clinton and I praise him when he deserves praise—like when he recognized Jerusalem as the capital of Israel—and I criticize him when I think he deserves criticism, as when he had the travel ban, and other actions which I disagree with.


There are a lot of reports that the president is furious, he is seething—

I didn’t see that. I didn’t see fury, seething. But remember, I’m a stranger, he wouldn’t show that to me.


The president has been, in an unprecedented way, attacking the Justice Department, the FBI, law enforcement officials—

Sounds like me. I have been doing this for 53 years. The only thing that has changed is that now conservatives have become civil libertarians, and liberals have become strong supporters of law enforcement, the Justice Department, and the FBI. I have been consistently a critic of law enforcement and the FBI for 53 years.

Professor, we both know why conservatives are criticizing the FBI right now, and it’s not because they have become critical of law enforcement, and we both know liberals are not defending everything that has gone on with the law enforcement community.

Yes, they are.

They think the independence of the Mueller investigation should be upheld.


I don’t agree with that at all. I think everybody is taking sides. Let me put it this way: If President Hillary Clinton’s lawyers’ office and hotel room had been raided like President Trump’s was yesterday, the ACLU would be up in arms, the liberal bar would be up in arms, privacy advocates would be up in arms. The silence of the ACLU and others is deafening. I’m sorry, I don’t agree with you.


It’s just that it is Trump. What’s happened is that the world is now divided and you have to choose sides.

I’m excited to hear the president start to speak out against police shootings of unarmed African Americans now that he has become such a civil libertarian. Any day now.


Well I haven’t said that.

You said everyone has switched sides.

Everyone has become hypocritical when it serves their interests. They are fair-weather civil libertarians or fair-weather supporters of Justice and the FBI.

You say you have been criticizing aspects of the criminal justice system for 53 years. I think the president doing it when there is an investigation about him is different.

I agree with you, and I think there was a difference when Bill Clinton and Hillary Clinton did it when he was being investigated.


I am a neutral, non-political observer.

So, you are not at all worried about the ways that the president is attacking the Justice Department?

Of course I am. It bothers me and it bothered me when Bill Clinton and Hillary Clinton did it as well. I think selected, targeted, nuanced criticism of the Justice Department is very healthy. I think criticism of yesterday’s raid is a very healthy thing. It should not have been a first resort. It should have been a last resort. Many of the materials they could have obtained through other—


You don’t know all this.

Well I know quite a bit about it. I know they went after bank records, for example. Bank records could be gotten from banks. I am told they went after tax records. Tax records could be gotten from the tax authorities. And I know they went after conversations between a lawyer and a client, and if that had happened to anyone else but Trump, I think we would be seeing a lot of people concerned about that.


Why do you think that a Republican FBI director and a Republican deputy attorney general, if everyone has switched on this issue, would okay this given the high standards you need for such a warrant?

Because I think that prosecutors, particularly prosecutors to a special counsel, tend to become zealots. And I don’t believe that Mueller is partisan. I don’t believe that the deputy attorney general is partisan. I don’t believe that Comey was partisan. I believe they were zealous prosecutors. And zealous prosecutors often compromise civil liberties, and I think we should call them on it whether they are going after Republicans or Democrats.


Do you feel like we are at a dangerous moment for American democracy right now?


I do. We are. I wrote a book about it.

I mean involving the man in the White House and the decisions he might make.

I think we are generally in a dangerous place on all sides. I think we are seeing overzealous prosecution. Look, I didn’t vote for Donald Trump and he wouldn’t be my choice for president, but I’m a civil libertarian first, and my interest in politics comes second.

Does Trump ever ask you for advice?

He certainly has never asked me for legal advice. He has asked me for advice, obviously, about the Middle East.

He doesn’t think Jared can handle it on his own?

I mean, that’s really a snotty question. You think that if two people ask for advice about the Middle East—it’s like the old joke: A mother buys the son two ties and he wears one of them, and she says, “What’s the matter? You didn’t like the other one?”

I was making a joke.                               

Well that’s fine. But it’s better to seek advice from many people. And Jared also asked my advice. And Jason also asked my advice.

Jason Greenblatt, [the Middle East envoy]?

Yeah. And President Obama asked my advice. And Obama’s national security people asked my advice. And Bill Clinton asked my advice. And Bill Clinton’s national security people asked my advice. And President Bush asked my advice.

If President Trump moves this week to fire people in the Justice Department or end the Mueller investigation, are you planning to speak out against that as a mistake and say it is something that should not have happened?

Of course I will. Yeah.