Alan Dershowitz on Unrest in LA, Trump-Harvard Clash, and New Book ‘The Preventive State’

[RUSH TRANSCRIPT BELOW] Say we had credible intelligence about an impending terrorist attack or major acts of violence, what actions are justifiable to prevent these crimes from occurring? How do we balance the urgency of preventing harm, with the importance of safeguarding civil liberties?

“We have to make trade-offs all the time, and there’s no jurisprudence to that trade-off. We live in the preventive state,” says Alan Dershowitz, professor emeritus at Harvard Law School. “We are moving more and more toward replacing deterrence and reaction with prevention.”

He is the author of the new book, “The Preventive State: The Challenge of Preventing Serious Harms While Preserving Essential Liberties.”

Should someone charged—but not convicted—with a serious crime be denied bail to potentially prevent further crimes? Should governments be able to compel inoculations in a scenario where that could actually prevent deadly contagion? And notably, a few days after this interview was filmed, Israel launched preemptive strikes on Iran’s nuclear facilities. When is such preventive military action warranted?

In this episode, we dive into the legal framework laid out in his new book—which he describes as the most important work he’s ever written—and get his insights into the debate around deploying the National Guard in Los Angeles, the Trump administration’s clash with Harvard University, the dilemma of tackling Chinese espionage on college campuses, and the growing erosion of free speech protections in Europe.

Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of The Epoch Times.

RUSH TRANSCRIPT

Jan Jekielek:
Alan Dershowitz, so good to have you back on American Thought Leaders.

Alan Dershowitz:
My pleasure to be on. Thank you.

Mr. Jekielek:
As I was reading your book, The Preventative State, I found myself thinking back to the premiere of the Eastman Dilemma back in January at Mar-a-Lago, where you were also speaking on a panel. And what struck me was that a lot of the people that were engaged in the various kinds of lawfare that we’ve seen are kind of in the, let’s say, in the mentality of this preventative state. They’re trying to stop something that they believe is a terrible evil, right? Your book is actually trying to address this sort of question. So why don’t we start there? What is the preventative state that’s rising up and why would people be trying to do this and why would they be willing to run roughshod over the law to do it?

Mr. Dershowitz:
Almost everything bad that has ever been done in our world has been done in the name of prevention. Hitler said he was trying to prevent the spread of Bolshevism. The Japanese were trying to prevent the United States from attacking Japan when they bombed Pearl Harbor. Prevention has become the cover for many, many bad things.

On the other hand, prevention is absolutely crucial. If we could have prevented 9/11, if we could have prevented Pearl Harbor, if Israel could have prevented October 7th, oh my God, what a better world we would have if we could have prevented the spread of COVID, if we could have prevented so many horrible things that have happened in this world without diminishing the civil liberties and civil rights of people. It’s perfect. It’s utopia.

But we don’t live in utopia and we have to make trade-offs all the time. And there’s no jurisprudence for that trade-off. We live in a preventive state. We are moving more and more toward replacing deterrence and reaction with prevention. Why? First, the dangers are greater than they’ve ever been before; nuclear proliferation, diseases, and terrorism. So many things are horrible, yet our ability through artificial intelligence and other means to predict and prevent these horrors from occurring is greater than it’s ever been. So it’s a clash.

It goes back to Benjamin Franklin. Those who would give up substantial liberties in exchange for a little bit of security deserve neither. But sometimes you have to give up a little bit of inessential liberty to gain an enormous amount of security. And that’s what my book, The Preventive State, is all about.

Mr. Jekielek:
Here’s what I keep thinking about. The law can and is being contorted. I mean, I think you coined the term guerrilla lawfare, if I recall correctly. And you know, there’s one case in my mind right now, this case against Trump, which is dubbed the Trump hush money case. And so I think you described it as the worst case you’ve seen in 60 years. Please explain to me what happened in this case, first of all.

Mr. Dershowitz:
What happened in the Trump hush money case is exactly what happened, not in degree, not in kind, but in a parallel manner, to the conversation between Lavrentiy Beria, the head of the KGB, and Stalin. Beria said to Stalin, show me the man and I’ll find you the crime. And that’s what the Attorney General of New York and the District Attorney of Manhattan decided to do. They campaigned on the issue of getting Trump.

I wrote a book called Get Trump. I didn’t invent that title. That was invented by Letitia James and it was used by Alvin Bragg. Alvin Bragg went through the case books, went through every statute. Got to find something to prosecute Trump. I promised I would.

He couldn’t find it. And so he made it up. He created a new crime out of whole cloth. No reasonable criminal lawyer could have told you that failure to disclose that the hush money was paid to keep her quiet rather than as a legal fee to settle the case. Nobody could have told you that that would result in a criminal prosecution of the kind that was directed against Donald Trump. He made up the crime in order to get the man. That’s un-American, that’s unconstitutional, and it’s just plain wrong.

Mr. Jekielek:
There’s this other dimension, and I think this is actually highly relevant to, I think, the case you’re making in The Preventative State, is that there’s this media involvement. I mean, there were articles upon articles. There’s a whole team at the Wall Street Journal that was kind of creating the sense that this is a huge problem and needs to be prosecuted and almost to be used as a pretext for prosecution.

Mr. Dershowitz:
The Democrats, even some Republicans, were determined to get Trump. They couldn’t figure out how to do it. So they tried everything. They tried going after his real estate. They tried claiming that Mar-a-Lago was worth $18 million. I would have bought it in a minute for $18 million with a group of friends. We would have sold it for a billion dollars. They went after him in every possible way and they couldn’t find the criminal case and so they made one up and I’m hoping that the appellate courts in New York will see through this but the appellate courts in New York are elected mostly by Democratic majorities so I’m not completely confident that the appellate courts in New York will reverse the conviction. I am completely confident that if the Supreme Court were to take the case, it would reverse it probably nine to nothing.

Mr. Jekielek:
You describe the preventative state as a kind of minority report scenario or the rise of it. And, of course, Minority Report is actually one of my favorite films. Very, very familiar with it. The idea that you can predict crime ahead of time and solve it ahead of time, creates again this perfect, I suppose, utopian vision. Explain to me why it’s actually a Minority Report scenario
that you’re describing.

Mr. Dershowitz:
I coined the term preventive state and I taught about it for years before the film, Minority Report. In fact, when Minority Report came out, I showed the film in my class because I was saying these things for years. People have tried to predict crime from the beginning of history. I had two colleagues at Harvard, Sheldon and Eleanor Glueck, who had become famous around the world for creating a mechanism for predicting criminal behavior by young juveniles based on their activities and attitudes when they were three, five, seven years old. It proved not to be accurate.

Yes, they could predict some people that would commit crimes, but they had many, many what I call false positives. That is, there were many people they pointed to and said, you’re going to be a criminal when you grow up. And they turned out to be perfectly reasonable people. In fact, what the Gluecks were predicting was activism and energy. And for certain people in certain backgrounds, when you’re active and energetic, you’ll grow up to be a criminal. In other backgrounds, you grow up to be a hedge fund guy.

Mr. Jekielek:
Let me jump in here for a moment. We’re watching these, what appear to be incredibly violent riots happening in LA right now. And there’s a lot of debate whether or not it’s appropriate to use the military, the National Guard to deal with them in the context of, I guess, police being limited in terms of what they can do by the people that are kind of governing them.
How do you view this whole scenario?

Mr. Dershowitz:
Obviously, those who advocate the sending in of the federal troops are doing it on preventive grounds and they’re going to say it’s self-proving. They’re going to say, see, as soon as we sent in the troops, there wasn’t a lot of rioting and violence. And the opponents are going to say, see, there was never any violence. You shouldn’t have sent in the troops. Nobody will ever know the answer to the question, did the sending in of federal troops prevent or did it exacerbate the situation? That’s the kind of dilemma we face often when we engage in preventive activities that do involve the taking of rights.

Mr. Jekielek:
Except that there was quite a bit of violence and it’s kind of documented.

Mr. Dershowitz:
But did it get worse or did it get better? That’s the question.

Mr. Jekielek:
But I think the problem is, again, I’m going back to the media here, right, is that a great number of media minimize that, right?

Mr. Dershowitz:
Look, we don’t have media in this country. We have Pravda on both sides. So the anti-Trump people in the media all said everything was hunky-dory, everything was fine. There were a few nonviolent protesters, and then the federal troops came in and it all went bad. The other side is saying exactly the opposite. There was horrible violence, there were breaking of windows, there was smashing of cars, there were burning of this and that and the other thing, and if the troops hadn’t come in it would get worse. So you’re gonna get the media presenting their narrative, and tragically in America there is no Walter Cronkite.

Walter Cronkite could not get a job today in the American media. He was too balanced. He was too fair. Today, you want to hear what you want to hear on the channel you pick. You want your news. You want your narrative. And so we can’t get at the truth through the media.

Mr. Jekielek:
We’re trying our best to fit that role, I have to say. But I think there was more truth to the fact that there was violence. I mean we had people on the ground watching what was happening. I mean, like considerable, you see, you know, there’s many flaming vehicles, you know, and so on, and so forth, so it’s not it’s not completely both. I guess I’m worried both sides get a little bit too much here.

Mr. Dershowitz:
The question really is not was there violence of course there was violence.
The question is was the violence prevented from spreading or was it exacerbated by the sending in of federal troops rather than the belated use of state and city police?

Mr. Jekielek:
Relevant to your book here, you describe a kind of balance that you’re trying to strike in jurisprudence. In a fair society with the rule of law, you really don’t want to basically incarcerate or punish the wrong people, which of course will happen sometimes. But you can also, your balance can go way off on the end to one side there, and you can kind of release all sorts of people which are more likely guilty just to avoid incarcerating even one person, right? And it’s sort of, when I look at what’s happening in cities like L.A. and so forth, it’s like we’re way over on that side of things.

Mr. Dershowitz:
Let’s be very clear. We have a motto in the law, better 10 guilty go free than one innocent be wrongly confined. We don’t believe it. We don’t believe it. We’re full of it. Nobody believes that it’s better for 10 murderers to go free than for one innocent person to be wrongly convicted. In fact, many people believe the opposite. Better for 10 innocent people to be confined than for one guilty person to go free. But clearly we have some sense of a ratio, some sense of if we’re going to make a mistake, it’s better to make the mistake of freeing an innocent person who was wrongly convicted than of convicting a guilty person who was innocent.

We don’t even have that kind of primitive jurisprudence for prevention. Would it have been better to confine 100 people, 50 of them wrongly, in order to prevent 9/11? If we could have prevented 9/11, the killing of 2,000 wonderful Americans, by incarcerating 100 people, 50 of them wrongly, virtually every American would say, let’s do it.

Mr. Jekielek:
Just going back to the LA situation, I feel like this is an example of something we’ve seen repeatedly over recent years, this type of scenario, right? If you have this, and you have, you know, famously, you have the, your shoe is on the other foot test, right? And there’s a sort of, you know, I mean, I think we’ve been able to document this at the Epoch Times, unequal application of justice, including examples which you gave. If you’re trying to govern, right, how do you deal with this sort of situation?

Mr. Dershowitz:
Here’s the problem. When you fail to anticipate, predict, and prevent a horrible event, you’re going to overreact. After Pearl Harbor, we should have prevented it. We could have prevented it. What did we do? We locked up 110,000 Americans of Japanese descent. Way overreaction. What did we do after 9/11? We passed the Patriot Act that resulted in torture and improper behavior toward people. Some people argue, I don’t happen
to agree with this, but some people argue that when we fail to prevent, we overreact in response.

Mr. Jekielek:
I’m just thinking of a really great example of this right now. We’re thinking about the Chinese Communist Party’s Thousand Talents Program and its ability, essentially its strategy, to be able to weaponize any Chinese national and American soil for its own benefit, either through coercion, either carrots or sticks. And that’s just the reality. Students, everyone, right? So how do we respond to that, right? This is a serious question, right?
Because it has been abused in enormous ways up to now.

Mr. Dershowitz:
No question that attempts to restrict the visa on students is preventive. We’re trying to prevent terrible things from happening, including the Chinese Communist Party benefiting from sending students to places like Harvard. Are we overreacting? You know, that’s a question that in a democracy the people should decide.

Mr. Jekielek:
There’s this general trend, and this is what you describe very well. The threats are certainly not decreasing. I think that’s how you describe it. But the ability to use technology to deal with them, you know, actually or theoretically is also increasing. So you know, the logical conclusion of that is that there’s a lot more of these attempts to impose these kinds of methodologies which are inherently restrictive. Okay, so here we are and this is just, this is progress. I mean, I say that in quotes.

Mr. Dershowitz:
Whatever there is progress, you must have jurisprudence to cabin the progress. You must have a framework, a legal framework. So artificial intelligence is a great thing. It can help cure diseases and it can help predict horrible things in our environment, in our economy, all that.
But it also poses great dangers of intrusions into privacy.

And we can’t let the artificial intelligence companies make the balance. We know what side they’ll balance on. And we can’t allow the American Civil Liberties Union to strike the balance. We know what side they’ll strike the balance on. So what we need to do is have a jurisprudential framework agreed upon.

In my book, The Preventive State, I created that framework for the first time, which is remarkable when you think about how much we’ve used prevention over the years that we don’t have a jurisprudence for. I tried to create a jurisprudence for it for over 50 years. I really wasn’t ready for it until I turned 65 years old, when I started really working on it seriously. And finally at age 86, I published The Preventive State which lays out the first jurisprudential framework ever for the preventive state.

Mr. Jekielek:
It’s really interesting that you mentioned AI because I just recently had Max Tegmark on the show, and we were talking about what kind of regulatory or legal frameworks exist for AI. From his perspective, if you want it right now,
completely legally, one of these companies could deploy an artificial general intelligence into the system, and there would be no legal restriction on that, which is kind of astonishing. He’s talking about ways that you can develop AI to prevent this sort of AGI setup, which would probably end
up looking badly for us humans. But this is kind of the opposite side, right? There are simply no guardrails.

Mr. Dershowitz:
No guardrails. Right. The struggle for liberty never stays one. It’s not static. It’s always going to be ongoing because the framers of our Constitution couldn’t have anticipated AI. They couldn’t have anticipated genetic changes, they couldn’t have anticipated much of what we take for granted today. And so we need a constitutional framework that takes into account these new developments and asks the question, what would the framers who had a philosophy of how to balance, what would they say if they knew about this new attempt to achieve security.

What would Benjamin Franklin have said about it? What would Thomas Jefferson have said about it? We have some clues in their writing. I collect the writings of Thomas Jefferson. I own one of the most important letters he wrote about freedom of speech and why we have to err on the side of allowing more freedom, even if it may cause some crimes. I have letters from Benjamin Franklin which elaborate on his theory that you should not diminish substantial liberties to gain a little bit of security.

We know what George Washington thought about inoculating the troops against smallpox during the Revolutionary War. We have hints, we have ideas, we get ideas from the Bible too. In the book of Ruth it starts with an interesting and provocative statement, when the judges ruled, there was famine in the land, a kind of warning against having too much power in judges to make policy decisions. So we have a lot of historical background, but we have to make the decision for today and tomorrow.

Mr. Jekielek:
Can you give us just a general picture and then we’ll use a few examples, right? But what is the general idea? Is it just balancing the trade-offs between security and liberty, or is there something else?

Mr. Dershowitz:
My first contribution, and I think it’s a major contribution, and President Larry Summers of Harvard agreed it was a major contribution, I was the first academic ever to bring together all these preventive issues. So in the same volume, in the same jurisprudence, I deal with preventing the spread of illnesses and preventing the spread of nuclear weapons, denying people bail before they’re convicted of any crime, and preventing terrorism. I bring them all together. Medical issues, political issues, legal issues create a general framework for how we balance our need to prevent horrible occurrences against the need to also prevent intrusions by government and now by big corporations on our privacy and other important rights.

Mr. Jekielek:
There were very, very severe restrictions imposed on most countries, in fact, right? And especially in the US and certain states much more so than others in the US. And it turns out, and even looking at the scientific literature before, I didn’t know about any of this. This is me doing research after the fact, right? It turns out that it was never really expected that such measures would actually give the desired effect based on the science that was available at the time. The decision was made in a different way.

It’s very interesting that you mentioned George Washington, because George Washington, that was a very specific military scenario that he was, you know, deciding to inoculate people for smallpox around, right? Or making that call, whereas it’s a very, it’s a different dimension when you’re dealing with a civilian population than a military population.

Mr. Dershowitz:
You should never generalize from military orders to civilian orders. We make the mistake of calling the President of the United States our Commander-in-Chief. He is not our Commander-in-Chief. President Trump could come in today and say, Alan, I order you to do this. And I say, no, and he can’t do anything about that. He is the Commander-in-Chief only of the armed forces.

So he could say to a young recruit, get a haircut. He can’t tell me to get a haircut. He could say to a young recruit, you got to get an inoculation. He can’t make me do that. Only the legislature approved by the Supreme Court could make me get an inoculation against my wishes.

Mr. Jekielek:
Let’s not talk about inoculations. Let’s just talk about these shelter-in-place policies. It’s an example, a huge restriction on individual liberty, you know, totally stalled the economy. I mean, like a massive, massive intervention, right? The question that I think we struggle with is, and it turns out, and there’s been quite a bit of literature written on this and now that it wasn’t particularly helpful given the realities on the ground.

But we were kind of told that we need to and I believed this at the beginning myself because we were told that we need to do this for the best of society, to make things best as possible for society. So, we want to prevent something horrible from happening. But is this kind of something that’s going to be repeating again and again, given this rise of the preventative state?

Mr. Dershowitz:
It will happen again and again and again. It may not happen in the context of contagious diseases. It may happen in the context of terrorism, nuclear proliferation, or of a COVID pandemic. We learned, for example, some scientific lessons that inoculation may only have an indirect impact on the spread of the disease, but it may have a major impact on making initial illness not lethal and fatal. Look, I have a philosophical view on this, which is very strong. It’s the John Stuart Mill view.

I summarize it very simply by saying you have a constitutional right to inhale a deadly cigarette you have no constitutional right to exhale it at me I am not required to ingest your smoke even though you want to so if they were to come up with a 100% cure for cancer 100% without any side effects I would not require people to take it because it’s not contagious. On the other hand, if you have a contagious disease that will kill many people quickly, and you have an inoculation that may present 1% side effects on people, that’s a reasonable balance to strike.

Ultimately, in the end, what we need is truth from the scientific community, and we didn’t get that completely in the COVID area. We got a lot of propaganda because we wanted people to do the right thing. Second, what we need is a jurisprudence that says we’re going to make you do it only if it prevents the spread of illness to other people we’re not going to make you do it for your own good.

Mr. Jekielek:
This example, right, it turned out there were all sorts of doctors that had figured out really good ways of treating this without these without the side effects that might come with a you you know, genetic vaccine product or something like that.

Mr. Dershowitz:
There’s no perfect solution. There are better and worse.

Mr. Jekielek:
No, but my point is that those things were hidden, again, by some people believing it was for the greater good.

Mr. Dershowitz:
The government hid things from us in the interests of our doing the right thing. That’s always wrong. That’s always wrong. Transparency by the government is absolutely essential. And we didn’t get that in the beginning of COVID.

Mr. Jekielek:
What about over-reliance on experts?

Mr. Dershowitz:
I’m very concerned about over-reliance on experts. Generally, it was experts who claimed that they could predict who was going to commit crimes. And they were all just wrong because they failed to take into account over-prediction, false positives. So I’m very skeptical of experts. Look, my job as a criminal lawyer for 60 years has been to challenge experts. That’s what I do best.

When I go into court and there’s an expert witness for the prosecution, my job is to prove that they don’t meet the standards of scientific acceptability. So I’m very skeptical about experts, but I’m equally skeptical about people who are just not experts and express political opinions and try to pretend that those opinions are somehow backed by the evidence.

Mr. Jekielek:
We have to talk about Jacobson because you very prominently mentioned Jacobson in the book. I’ve been thinking about Jacobson recently. Maybe very briefly explain to me what that case was and then also how you show a really great way in which it was horribly misapplied.

Mr. Dershowitz:
Jacobson is really two cases. Jacobson itself, a person in Cambridge, Massachusetts who refused to be inoculated against smallpox because he had had a bad reaction early on to something else. And the issue is whether you could make him get an inoculation. He got, I think, a small fine and no prison term. And the Supreme Court, in a very thoughtful, balanced decision by one of the great justices, said, yes, under those circumstances, you could compel inoculation.

I’m not sure whether that was right or wrong on the merits of the facts of the case, but it set out an important principle that when there is a danger of contagion, the state has a role to play and can compel you to do things you would otherwise not want to do. They then took that case, Oliver Wendell Holmes, one of the great smartest justices, and wrote perhaps the worst decision in Supreme Court history, a case called Buck v. Bell, in which they allowed mandatory sterilization. You could never have a baby in your life, again, based on the worst scientific evidence, that if they do have a baby, the baby will be mentally ill and mentally sick.

Holmes ridiculously stated three generations of imbeciles are enough. I would have thought he was referring to his colleagues on the Supreme Court for setting precedents like that but no he is referring to the defendant in Buck v. Bell, which it turned out later on was not mentally retarded, but there was an environmental reason for her mental illness which would not have been transmitted to her children. That decision was then used as a justification by Nazi doctors at some of the Nuremberg trials, saying, see, in America you could sterilize. Well, the next step to sterilization is therapeutic execution. We’re doing that. So the abuse of Jacobson, the abuse of Buck v. Bell is one of the worst instances of judicial overreach in American history.

Mr. Jekielek:
What about how Jacobson was used during the pandemic?

Mr. Dershowitz:
The principle of Jacobson is, I think, a correct one. The question is how does it apply to particular facts. If you had a situation where there was the likelihood of a spread of a lethal disease that would kill hundreds of thousands or millions of people and you could stop it by compelled inoculation, that would be the right thing to do. At least, let me put it this way, it would be right enough so that the Supreme Court shouldn’t stop a legislature from passing statutes deciding on that. Now, we had to act very quickly in the face of COVID.

Look, I’ll tell you an anecdotal story about that. My wife and I are in Israel. We’re having dinner with our old friend Benjamin Netanyahu and his wife, Sarah. And I say to both Benjamin and Sarah, Bibi and Sarah, oh, you have to congratulate us. Our daughter is coming to Israel in a few days to get engaged. Bibi looks at me and says, Alan, she’s not coming to Israel to get engaged. I said, what are you talking about? And he said, we’re closing the country. And they completely closed down the country. We had to get on a plane, go to Turkey and meet our daughter there. And she got engaged there.

So did Israel overreact? I don’t know. Did New Zealand overreact? We now have a lot of data from a lot of countries. And as Justice Brandeis once said, the states are laboratories of experimentation. And so we’ve seen experimentation. Some states shut down, some states didn’t. There wasn’t differential real contagion. We learned a lesson. I think if we had, God forbid, another COVID, and I hope we can prevent it, I think we would act differently.

The point of my book, though, The Preventive State, is that all of these goods and evils are done in the name of prevention. Prevention has become kind of the cover for everything we do, good and bad, and we don’t have the mechanism yet for distinguishing the good from the bad and balancing the inevitable bad that we know we’re going to get from some of these things against the hope for good.

Mr. Jekielek:
The current Assistant Attorney General for Civil Rights, Harmeet Dhillon, with her law firm, fought a number of these cases during COVID successfully. In a recent interview I did with her, she views getting rid of Jacobson to use, and that’s pretty close to what she said, is kind of one of the best things that could be done to improve jurisprudence in America. Your thoughts? It sounds like you wouldn’t agree with that.

Mr. Dershowitz:
I would agree on limiting Jacobson and I would agree on requiring a higher level of proof before you can do compelled inoculation. So in some respects I do agree, but I wouldn’t agree on abolishing the principle that the state, not federal, the state has the right to compel inoculation in circumstances where failure to inoculate might heavily risk the lives of lots and lots and lots of people who get inoculated. We have this happening now with measles where some parents are saying, oh, yes, there’s so much inoculation against measles that nobody’s going to get it, so we don’t have to make our children have it. That seems unfair.

It seems to me if you’re going to have group immunity, if you’re going to have herd immunity, if you’re going to have what we’ve done with measles really prevent it from recurring except in small instances and small places, everybody has to share that equally. You can’t allow some parents to opt out, this is on important religious principles, etc., on selfish grounds just by saying, since there’s so much there, since other people have risked their own children, we’re not going to risk our children. No, that’s not fair and a state needn’t accept that.

Mr. Jekielek:
I actually think measles is a really interesting example because there’s ways to treat measles quite effectively now. Much like with COVID, it adds another layer of limiting Jacobson to extreme cases, right, where there aren’t other sorts of treatments available. That’s something I think that would be very, very important.

Mr. Dershowitz:
I agree with you. I think this should all be done based on balancing the science against the liberty interests. And in every illness and every circumstance the outcome might be different.

Mr. Jekielek:
The big issue that I see in all of this is, that this is, our society’s kind of a bit wired for safety in a way. I don’t know if you agree with that. I view it that way. I mean you compare even 50 years ago it’s like it’s a whole different thing, so it’s kind of seems like it’s easier to scare people into doing things then you would have been even 50 years ago.

Mr. Dershowitz:
I agree, because of the internet. I think that fear spreads more quickly than liberty spreads. Given a choice between liberty, which is an abstract concept, and fear of dying, which is a concrete concept, I think most people around the world would opt for the fear over liberty. And that’s what Benjamin Franklin was concerned about. And that’s why I wrote my book, The Preventive State, because I understand the fear factor. And I understand that most states would do almost anything to prevent cataclysmic events from occurring. And that’s where we get the risk of totalitarianism.

Mr. Jekielek:
I’m amazed kind of at your thinking around this. Obviously, you’ve been thinking about this for a very long time around coming up with a legal structure for dealing with these things. being aware of how John Eastman was treated, how you’ve been treated, and how the president has been treated.

Mr. Dershowitz:
Let me tell you how I’ve been treated. Look, I have written 57 books. This is the most important book I have ever written. I’m going to be very categorical about this. This is the most important book about law and policy
written by any lawyer in the 21st century. I’m going to be categorical. I’m going to brag about it. It’s the truth.

Yet, the New York Times will refuse to review this book. The Harvard Law School has refused to invite me to speak about this book to the faculty. This book has been canceled. This important book, which lays out a framework for jurisprudence, has been canceled for one reason, because I defended Donald Trump in front of the United States Senate against an unconstitutional impeachment. As a result of that, I was canceled, and my books were canceled.

The New York Times reviewed every single, virtually every single one of my books before I defended Trump, and they haven’t reviewed a single book since I defended Trump. It’s pure censorship and McCarthyism. That’s why I thank you for allowing me to appear on your show, because I have to get people to read this book over the objection of The New York Times and Harvard University. Harvard University canceled my speech about this book at the Harvard Club of New York. It was all scheduled. It was going to be the breakout of the book.

I picked the Harvard Club because of my connections to Harvard. But because of some protests, we’re not sure the sources of the protests, whether they came from the top or from other people, the Harvard Club canceled my book speech. And that’s what’s going on in this country under a canceled culture. And I’m not the victim of it. You know who the victim is? The people who would otherwise want to read my books and they don’t get access to it.

Mr. Jekielek:
For members of the legal profession who might be watching this interview, could you summarize the case? What is it that they’ll understand? What is the case that you’re going to make in this book for them?

Mr. Dershowitz:
Every lawyer should understand that we are moving toward much more prevention and away from our typical legal response that we wait for the crime to be committed. Then we would punish the perpetrator in the hope that that would prevent others. Oliver Wendell Holmes of 150 years ago talked about that as being preventive. But what we’re doing is moving much more to explicit prevention, explicit intervention before the cataclysmic acts occur.

Mr. Jekielek:
Pre-crime.

Mr. Dershowitz:
Yes, and we’re not ready for that. We don’t have a jurisprudence for it, and every lawyer should be concerned about that. And the Harvard Law School faculty are writing books. Many of them are very good. I read them. But they’re not dealing with this current problem, which is probably the most important problem our society is facing today—how to balance the need to prevent horrible things from happening against the evils of denying people’s civil liberties. That cannot be ignored. Even if they want to ignore the person who wrote the book, they can’t ignore the concepts in the book.

Mr. Jekielek:
Do you want to perhaps use an example to explain to me how this framework might be used?

Mr. Dershowitz:
The United States and Israel are facing a very, very difficult decision whether to bomb Iran’s nuclear facilities. And they should learn from what we failed to do in 1935. In 1935, Britain and France could have prevented the rise, the spread of Nazism and World War II, the Holocaust and the killing of 50 million people, including 6 million Jews, could have
prevented it. That’s not me speaking, that’s Goebbels speaking.

Goebbels, in his diary, said if France and England had invaded, declared preventive war and said look you’re violating the Versailles Treaty, we have to come in and destroy your military, Nazi Germany would have been defeated. It would have cost maybe 10,000 lives. And whoever did it, whether Winston Churchill would have been the prime minister at the time, whether he would have done it, would be regarded as a warmonger, just the way Netanyahu would be regarded as a warmonger if he now attacked Iran’s nuclear reactor. But he would have saved 50 million lives.

Nobody would ever know that because history is blind to the future. You have to ask the question, what are the potential dangers of Iran getting a nuclear bomb? How likely is it that they will get the nuclear bomb? How likely is it that they will get it if there’s a deal that isn’t perfect, but a little better than the current deal? What would be the costs of an attack on the nuclear reactor?

After all, Israel succeeded in destroying Iraq’s nuclear reactor and Syria’s nuclear reactor with one death, one death total, and who knows how many lives they would have saved. If American troops had gone into Iraq and been greeted by nuclear weapons, the deaths could have been catastrophic. So it’s a question of how to strike that balance. Now, international law doesn’t give us very much on that. It gives us a concept called proportionality, which I write about in The Preventive State.

Proportionality just says, if you’re taking a military action that you know may kill civilians, you have to analyze the number of potential civilian casualties to be balanced against the value of the military target. Now, giving you an example that just happened, Israel bombed a hospital in Gaza and16 people apparently were killed. Innocent people were killed. But 10 terrorists, including two heads of Hamas, were also killed. The only way of killing the ten terrorists including the leader of Hamas was to bomb the hospital.

Was that an appropriate trade-off? Was that proportional? If you had international law, the answer is yes. It was proportional. If you had to kill 200 people that would be different. If you were killing ten people to get one terrorist that would be different. These concepts of proportionality are very
subjective. They’re very hard to put into a jurisprudence, but they’re essential. So I don’t know enough about the military calculations to give an answer. All I can do is help provide a framework.

But let’s apply it to a simple case. You get somebody who’s arrested for a crime, armed robbery, and we have to decide what to do with that person in the meantime. You know, the history of the world takes place in the meantime. The meantime is the time between the arrest and the time that he could have a trial. That could be six months.

So you have to decide what to do with him during the six months. He’s presumed innocent. He may not have done it, but he’s probably guilty because in democratic countries, we generally arrest people who are guilty. We have a 90% conviction rate.

So the question is, do you err on the side of releasing him? He may commit another crime. He may flee. Or do you err on the side of holding him? You may not commit any crimes, you may be innocent. These are the kinds of decisions we make every day in every courtroom in America.

Mr. Jekielek:
How would applying your framework change that decision-making, or how does it change that decision?

Mr. Dershowitz:
First, it eliminates monetary bail completely, because monetary bail has nothing to do with preventing harm. Monetary bail produces too many poor, innocent people staying in jail, and at the same time, too many rich, guilty people getting out of jail. So monetary bail should have nothing to do with who we hold and who we don’t hold. We should have an explicit system whereby the government has to prove, by clear and convincing evidence, that the person is likely to flee or is likely to commit new crimes.

If not, then alternatives should be considered. You should have electronic monitoring. You should have home arrest. You should allow people to create a situation where they could remain home with alarm systems, cutting off phones and computers, maybe even having armed guards at the door. We should have a continuum of confinement. And last resort should be locking people up on Rikers Island, which is a hellhole for something they may not have done.

Mr. Jekielek:
You know, one thing I noticed in your book is your secular theory of the origins of rights. Because, you know, of course, many people believe they come from God.

Mr. Dershowitz:
And they have a right to believe that. But in a secular society, there has to be an alternative theory for those who don’t believe that rights come from God.

Mr. Jekielek:
Well, and reading it, I realized it’s not obvious. But I’m going to get you to tell me.

Mr. Dershowitz:
Well, for me, rights come from wrongs. That is, if you look at almost every fundamental right that we have in our society today, it’s a reaction to what we recognize as something horrible. We’ve done the 13th, 14th, and 15th Amendments, which are the basic core of our civil liberties, grew out of the wrongs of slavery and the Civil War. The constitutional amendments that provide for women’s rights grew out of the wrongs we did to women. The human rights programs after the Second World War grew out of the Holocaust. So human beings are capable of doing something animals are not capable of doing. We’re capable of honestly assessing our mistakes and changing them. And so rights come from a recognition of wrongs.

Mr. Jekielek:
To your point, I think the First Amendment came from religious persecution.

Mr. Dershowitz:
Religious persecutions, but also persecutions by the king. For example, there was a law in England that said a person is guilty of treason if he compasses the death of the king. You know what compasses means? Thinks about. If he thinks about the death of the king, he could be hanged. And obviously that overdid it, but kings always overdo it. They are much more inclined for their safety.

Stalin overdid it. Everybody who he thought was an enemy of his, he shot. Hitler overdid it. You know, there have been times when American presidents have overdone it. Roosevelt overdid it by confining 110,000 Americans in camps. Maybe Lincoln did it when he suspended the writ of habeas corpus. So we’re inclined to overreact when we underreact.

Mr. Jekielek:
Something else I noticed here, you had a really interesting quote from Justice Felix Frankfurter. The history of liberty has largely been the history of the observance of procedural safeguard.

Mr. Dershowitz:
That’s right.

Mr. Jekielek:
Please explain that to me and I’ll give you my comment after.

Mr. Dershowitz:
Two most important words of the Constitution may very well be due process, but what does due process mean? Due process means the process that’s due to you. So if you’re an American citizen and you’re charged with a crime, due process is everything. Your right to counsel,
right to confront witnesses, right to cross-examine, you know, everything. If you’re trying to get into the country, you have no due process rights.

It’s a gift. If we want to let you in, we let you in. If we don’t want to let you in, we don’t let you in. It could be immoral, as happened when we excluded Asians, many Asians, during the late 19th century and excluded Jews during the Holocaust. It could be immoral. But legally, a country has the right to determine who it lets in.

Now, the intermediate area is, what if you let somebody in on a limited basis, a student visa, a travel visa, and they do things that if they were a citizen, they’d have the right to do, you know, camp out on college campuses, etc. What is the law there? And that’s one of the most difficult issues because it’s all, again, part of prevention. What we are trying to do in limiting immigration into the country is preventing crimes by illegal immigrants or by people who would come into the country and abuse that privilege by hurting Americans. And so these are preventive decisions that we have to balance as well.

Mr. Jekielek:
Or the government would argue, you know, obstruction, for example, of their requirement to deport illegal aliens via ICE, for example, in LA, as we were talking about earlier, right?

Mr. Dershowitz:
I’ve just finished writing an article on that today, in fact, about how courts are obstructing the policies of the Trump administration by invoking procedural violations. But they’re looking for the procedural violations because they don’t like the substantive policies, so there’s a lot of hypocrisy.

Mr. Jekielek:
It’s this contortion. We’re going back to this contortion of the law. I’m not, like I’m not entirely convinced that, let’s say we come up with a really great legal framework like yours, and I’m somewhat convinced it’s a good one, right, as not being an expert, of course. What prevents that from being contorted, as it’s indeed being contorted? Like, my point is, there’s a sort of, there’s a famous quote, right, that this democratic republic only works for a moral people. I don’t even remember who said that, but it’s something of this nature, right?

Mr. Dershowitz:
It was said that the Constitution survives not because of what’s written in it, but because of what’s in the heart and souls of people. When democracy dies in the hearts of men and women it will die and no law can save it. There’s a lot of truth to that, but having a legal framework does provide some safety.

Look, Germany had a legal framework during the Weimar Republic and it was just ignored by Hitler. In fact Germany had a very good legal framework generally and it was ignored. That’s always the risk and nothing can be done to stop that. But having a jurisprudential framework makes it more difficult, particularly in a democracy where there are elections every two years. Americans generally believe in the rule of law. If a president were to absolutely flout a clear Supreme Court decision, I think that president would be hurt politically and I think they know that.

Mr. Jekielek:
I think there is something that could be done. This is just, and let me throw something out there, you know, it’s what C.S. Lewis would call educating around what he called natural law, right? Like the things that, you know, since time immemorial, many societies have agreed upon as a form of morality, as an effective morality for, you know, societal governance, successful societies. You know, perhaps that might help.

Mr. Dershowitz:
No, I think it hurts. Let me tell you why. I’m not a C.S. Lewis fan. Part of the culture of the world for 2,000 years was subordination of women, subordination of blacks, double standards depending on who you are. I don’t think there is a natural law case that would support the kind of liberty that we want. Now you can argue that, oh, well, people who own slaves violated natural law, but look who owns slaves. Jefferson, Calhoun, and people in New York own slaves.

That was regarded as okay in the natural law. Catholics own slaves. Jews own slaves. Protestants own slaves. Atheists own slaves. So you might say that’s just an exception that proves the rule. But for me, natural law, I don’t believe God speaks to human beings in a singular voice. If he did, we wouldn’t have so many religions, and so much religious conflict.

Mr. Jekielek:
I think you make a strong point here. I don’t think I’m saying that you do that instead of proper jurisprudence. I’m saying that if you have that, it would be very helpful.

Mr. Dershowitz:
I agree with you. Look, I think religious people generally, generally have a higher level of compliance with the rule of law, but remember too that many religious people in the South, ministers, pastors, rabbis, supported slavery.

Mr. Jekielek:
But also the same people were the ones that actually abolished it as well, right?

Mr. Dershowitz:
In the name of religion. Here’s a Trivial Pursuit question, which school at Harvard, Harvard has law schools, medical schools, public health schools, divinity schools, which of the Harvard school has had the highest rate of anti-Semitism and anti-Jewish bigotry? Which school?

Mr. Jekielek:
You’re going to tell me the school of divinity, right? Yes.

Mr. Dershowitz:
Yes, it’s the divinity school.

Mr. Jekielek:
Okay. I didn’t know that.

Mr. Dershowitz:
And it’s in a Harvard report. This is not me talking. It’s two schools, the divinity school and the School of Public Health. And the highest levels of anti-Semitism have existed among gay organizations, among black
organizations, and among organizations that call themselves human rights organizations. So having a label, you know, religion is not a protection. And the Lutheran Church didn’t protect against Nazism.

And the Catholic Church, the Pope refused to issue an order saying any German soldier who kills an innocent Jew is going to spend the rest of his life in hell. He refused to issue that order, saying that would create a conflict of conscience between Germans who believe in their country and Germans who believe in their church. If the role of the church is not to create a conflict of conscience, I don’t know what it is.

Mr. Jekielek:
It’s fascinating that it would be the school of divinity at Harvard, but I would also kind of imagine based on the general ideological orientation of what many departments in Harvard appeal to be, I would expect it to be a highly secularized and radicalized version that maybe doesn’t have much to do with divinity.

Mr. Dershowitz:
The Harvard School of Divinity is radicalized, secularized, and has all of those attributes as well. It’s called the Divinity School, but it’s no longer really a divinity school. It’s a school about religion, not a school of religion.

Mr. Jekielek:
Right. And just out of curiosity, any thoughts on the public health school might be the one that is so high in this area?

Mr. Dershowitz:
The public health school attracts people who are very hard-Left globalists and who see human rights in a very politicized way. And so it’s been, along with the Divinity School, the hotbed of anti-Semitism.

Mr. Jekielek:
So there’s been a very significant action taken from this administration against Harvard. I remember reading Secretary Kristi Noem’s statement on this, being a very strong action. How do you respond to that?

Mr. Dershowitz:
I don’t like non-targeted sanctions against universities. And the Trump administration’s sanctions have been too broad. You can’t just cut back all funding for research. Cancer research has to go forward. Alzheimer’s research has to go forward. So the defunding should be targeted toward the public health school, toward the divinity school, and toward the Carr Center for Human Rights, which has become a cesspool of anti-Semitism.

The same thing is true with visas. You shouldn’t be denying Harvard the right to have students from any country. You should try to create a preventive mechanism for trying to anticipate which students are going to come here in order to prevent other students from going to class. So you can prevent those students from registering at Harvard.

Mr. Jekielek:
Let’s talk about students at Harvard actually because Harvard has had a lot of Chinese students and especially in the Harvard School government there’s a lot of Chinese money that’s been funding the university and of, we have this problem that we mentioned earlier in the interview that essentially, even if you have the best intentions coming, you’re not interested in, you know, I’ll call it quote unquote spying, which that just means collecting little bits of intelligence and sending them back, which the government absolutely is interested in you doing, right? You could be leveraged to do that if you’re in a position because your family’s there. And that happens again and again and again.

This is just the rule, not the exception, actually. But so how, you know, in a free society, this is something that we’re going to be dealing with head on. In a free society, how do we deal with that reality? You have students working in very sensitive areas that can easily be leveraged by a regime which doesn’t view America as a friend and to steal IP or worse. And that’s just the reality. How do we deal with that as a free society?

Mr. Dershowitz:
The preventive state would know how to deal with that easily. They would just cut off all student visas from China, and that would be an overreaction. What’s needed is a targeted response, and also too much foreign money is coming in. I also think Harvard admits too many foreign students. I think having the high percentage that it has that denies the ability of American students to attend Harvard is a mistake, unless it’s done on a pure meritocracy. If it’s done on a blind meritocracy, then let every student be Asian. I don’t care if it’s done on a pure meritocracy. But the end of meritocracy, coupled with an advantage to foreign students who come from countries that pay a lot of money to the university, is a potential for disaster.

Mr. Jekielek:
They just have such a complicated system because of course, you know, they famously lost this case of anti-Asian discrimination, which from what I’ve heard is, you know, there are various approaches which they may be trying to get around those restrictions.

Mr. Dershowitz:
They’re cheating. Let’s be very clear. They’re cheating. And Professor Laurence Tribe of the Harvard Law School told them to cheat, and told them how to cheat. And they’re doing precisely what Southern schools did in the 1950s to get around desegregation orders. They’re cheating and they can’t be allowed to do that. And the federal government under the Civil Rights Act has absolutely the appropriate power to tell them, if we catch you, we’re going to punish you.

There has to be pure meritocracy, and there has to be the end of any kind of quotas. And we’ve had racial quotas at Harvard. In fact, there’s almost never been a time when we haven’t had racial and other kinds of quotas at Harvard. Sometimes they’re vague in general, sometimes they’re fairly specific.

Mr. Jekielek:
Let’s talk about free speech. Free speech is something that suffered greatly during the pandemic. There was active censorship. There was active propaganda being pushed out into the population. And even people,
there was something called malinformation, which was actually true information that didn’t fit with agendas, basically, which was censored. Typically, people will censor with the idea that it’s misinformation or false information.

Mr. Dershowitz:
Dangerous to health.

Mr. Jekielek:
But here’s the thing, right? This malinformation, it’s true information, but of course the people that are flagging this and saying it should be censored, and it was, were saying, well, this is going to be dangerous. If people know this true information, it’s going to be dangerous for them. Where do you stand on that?

Mr. Dershowitz:
I don’t think there should be any governmental censorship at all of things like that. I think the area that we’re going to see a real problem in over the next 10 or 20 years is the concept of incitement. Now, the Supreme Court in the Brandenburg case went very far on the side of free speech, and I applaud that and support it. They said in order for free speech to be punished, it has to incite immediate violence, and there has to be likelihood of immediate violence. In other words, you stand in front of a crowd and you scream, lynch that guy, kill that guy, hit that guy, and they do it. That’s not protected speech.

But if you say, I think it would be a good idea if Jews were all sent back to the gas chambers, that’s protected speech. It’s not speech that would be accepted on college campuses any more than if you say, let’s lynch all blacks, let’s castrate gay males That wouldn’t be permitted on campuses.
But under the Supreme Court Brandenburg decision, that all would be permitted free speech. I predict, and here I’m very hesitant about predicting, that over the next 20 years, the Supreme Court’s going to reconsider Brandenburg on the issue of incitement and talk about the requirement of immediacy and maybe limit it a little bit based on what we’ve seen today on college campuses and around the world.

Now, globalize the intifada. It obviously has multiple meanings, but one meaning to some people would be to do in America what the Intifada did in Israel, killing 4,000 people. Many or most of them are innocent. So the question also is, which interpretation prevails?

In England, there was a case where a mentally ill person was holding a gun at a policeman, shaking, holding a gun, and there’s a crowd. And somebody in the crowd yelled out, give it to him! Give it to him!
And the person shot and killed the policeman. And the question is, the person who yelled, give it to him, claimed that he was saying, give him the gun, give the police the gun, don’t hurt anybody. But others in the crowd interpreted it as, shoot him, shoot him, shoot him. And so you often have that problem.

One of my first cases ever, I represented Bruce Franklin, a Maoist, Stalinist professor at Stanford University. I represented him on First Amendment ground through the American Civil Liberties Union on a pro bono basis. He had gotten up in front of an anti-war crowd of students and said, I think it would be a good idea for you now to take over the computation center and trash it, etc. They did and he was up for denial of tenure based on that.

We claimed free speech that he was entitled to say that. The private University ruled that it was not bound by the First Amendment, and they did fire him. He then went to Rutgers where he continued to teach his ridiculous Maoism and Stalinism, In fact, he taught a course on Hawthorne and Melville, and the students entitled it Hawthorne and Maoville. But, you know, he was who he was.

Mr. Jekielek:
What do you make of the increasing restrictions on speech, you know, actionable with people literally being in jail and like, I understand more than a thousand people in the UK, some other places in Europe right now, and the response that the, I guess, the American administration is towards that?

Mr. Dershowitz:
I think what’s going on in England and other countries is a very strong case for why the American approach of erring on the side of allowing more free speech, even if it’s dangerous, is the right approach. But I think we’re seeing a trend throughout the world toward a diminution of certain kinds of Free speech and I think that trend will ultimately catch up to the United States.

Mr. Jekielek:
Should the United States be weighing in on these types of decisions in other countries?

Mr. Dershowitz:
No, I think we have enough problems in this country with our own free speech that we shouldn’t be trying to lecture other countries, but we’re always inclined to do that.

Mr. Jekielek:
But it will affect us.

Mr. Dershowitz:
It could affect us. I would err more on the side, though, of sticking to our own concerns and requiring that there be pretty good evidence that it’s going to affect us. Look, we live in a world with one media. Anything said in the United States is seen in Britain. Anything said in Britain is seen in the United States. The national borders don’t respect free speech.

Mr. Jekielek:
That’s what I mean. So now you’ll have, you know, Americans, you know, saying things that I guess they can never travel to the UK again. I guess that’s the UK’s prerogative in your view. I don’t know.

Mr. Dershowitz:
I had experience with that. I was invited to speak at one of the commemorations of the Holocaust in Poland, and I was told that I could not say that any Polish people were complicit in the Holocaust because there was a statute making it a crime to claim that any Polish people, as distinguished from German people, were complicit in all the death camps that existed in Poland. So I got up at the major university in Krakow and I held my hands out and I said, Polish authorities please come and arrest me because I am now announcing that there were many Polish people including priests, the most prominent priests in Poland, who were complicit in the Holocaust.

There were also many brave people who were heroes, righteous Gentiles, etc. I named some of them. But there were those who were complicit, and that in fact 50-something Jews were murdered after the Nazis left in a place called Kielce. And I said, come arrest me, come arrest me. Let’s have a show trial. They didn’t. So I missed my opportunity to defend free speech in Poland.

Mr. Jekielek:
This is actually a very interesting point, something I’ve heard quite a bit about, because the Poles are very sensitive to having, for example, the concentration camps, which of course were German, being called Polish.

Mr. Dershowitz:
Yes, of course.

Mr. Jekielek:
Because they weren’t something the Poles did. So I think there’s an overt sensitivity of being blamed for the Holocaust.

Mr. Dershowitz:
And there’s a point to that. They were victims as well. But Polish anti-Semitism was rampant even before the Nazis invaded and continued. The same is true of Ukrainian. In fact, many of the worst guards at death camps were Ukrainians, individuals of Ukrainian background. Now, of course, Ukraine has a Jewish president, and things change. And Poland has a pro-Israel government. So things change very quickly.

Who could have imagined 50 years ago that Israel’s two best friends in the Middle East, Iran, which is not an Arab country, and Turkey, which is not an Arab country, both Muslim countries, who could have imagined that the two of them have become Israel’s worst enemies now and Israel’s previous worst enemies, Muslim Arabs, Saudi Arabia, Jordan and others have become Egypt more peaceful?

So the world changes on a dime and that’s why you need a jurisprudence to come back to the preventive state because the world changes so quickly and because threats change quickly and because our ability to predict threats change quickly, we have to have an enduring jurisprudence. We’re blessed with a Constitution that’s now been in existence for, it’s getting close to 250 years. And what a great and enduring monumental liberty that’s been, as imperfect as it is as a document.

Mr. Jekielek:
I believe we’re supposed to be celebrating that greatly in the year to come, 2026. Alan Dershowitz, it’s such a pleasure to have you on the show.

Mr. Dershowitz:
My pleasure. Thank you for your excellent questions. I really appreciate intelligent and thoughtful questions, so thank you.