While interviewing Harvard Law Professor Emeritus Alan Dershowitz on Wednesday's edition of CNN's New Day, co-host Chris Cuomo repeatedly tried to bait the lawyer into criticizing President Trump. Dershowitz, a civil libertarian who often defends the President from the far left's attacks, also got into a back and forth with CNN Legal Analyst Jeffrey Toobin, a former student of his.
While Dershowitz did have dinner with the President on Tuesday night, he maintains that he did not share any legal advice with Trump; the pre-arranged dinner focused on Middle East policy.
However, Dershowitz did share his legal advice with the viewers of New Day. While he pointed out that Presidents Jefferson, Lincoln, and Roosevelt “have all directed which investigations should be conducted and which not,” he also said that “there’s a long tradition of Presidents not doing that and I think it would be a serious mistake that would cost him support among many of his Republican...”
Cuomo then interrupted, “Have you ever seen this President respect any tradition of that nature since he’s been President?” Rather than take Cuomo’s invitation to bash Trump, Dershowitz responded: “Well, I think that he should respect this tradition. I think it would be a mistake to do any firing.”
Eventually, Dershowitz called out Cuomo, the media, and the left for their hypocrisy: “If Hillary Clinton had been elected President and they were investigating her e-mails...and they went after her lawyers’ files, you would be up in arms, the ACLU would be up in arms.” Dershowitz made the exact same argument during Monday Night’s edition of Fox News’s Hannity.
While Dershowitz voted for Hillary Clinton and finds himself generally sympathetic to left-wing political positions, he has established himself as a staunch defender of civil liberties for all individuals, regardless of party. He has recently published a book titled Trumped Up: How Criminalization of Political Differences Endangers Democracy, arguing that the "criminalization of political differences" has reached a breaking point in the age of Trump.
Following a back and forth between Dershowitz and his former student Jeffrey Toobin, Cuomo delivered an op-ed: “Here’s what I don’t like. The President comes out and says this is an attack on our country, this is a raid, this is wrong. He keeps attacking the institutions that he sees as oppositional to him. He is the President of the United States. Do you endorse that kind of attack on the institutions of our democracy when they don’t serve his personal purpose?”
Dershowitz pushed back, arguing that the institutions of our democracy are not without reproach: “For 53 years, I’ve been criticizing the institutions of democracy, overzealous prosecutors, overzealous FBI agents and now finally we have some support from the right.” Dershowitz argued that he would not have used the same words and rhetoric that President Trump used, Cuomo interrupted him again: “But the words matter, Professor.”
While Dershowitz agreed with the idea that “words matter,” Cuomo continued his rant: “You’re a master of language and this man says this was an attack on our country. You can’t agree with that?”
Dershowitz then reminded the audience that he is “not here speaking on behalf of the President. I’m speaking on behalf of what I believe are lawyer/client privilege, Constitutional rights, the rule of law. I did the same thing with Hillary Clinton, I did the same thing with Bill Clinton. I’m going to continue to do it, whoever is the President because nobody else is speaking up on behalf of the Constitution and civil liberties today.”
At one point during the interview, Cuomo railed against the partisanship that plagues the United States: “If it’s helping your party, you’re okay with it. The hypocrisy is staggering.” There’s quite a bit of hypocrisy on Cuomo’s part as it would come as quite a surprise if he covered any scandals involving a President Hillary Clinton with the same excitement that he has covered the Trump scandals. Anyone aware of Cuomo's Trump Derangement Syndrome would surely categorize any suggestion otherwise as "B.S."
CNN New Day
CHRIS CUOMO: Joining us now is Alan Dershowitz, Professor Emeritus at Harvard Law School. He had dinner with the President last night at the White House. Good to see you, sir, as always.
ALAN DERSHOWITZ: Thank you, you know, this was a prearranged, prescheduled visit to the White House.
CUOMO: Supposed to be about the Middle East, right, supposed to be about the peace process.
DERSHOWITZ: It was about the Middle East. I spent the whole morning with staffers in the Middle East. I’ll be back in the White House talking more about the Middle East. This is the fifth President that I’ve advised on the Middle East. You know, I’ve written half a dozen books on it. I’m very passionate about the subject and I’m honored that any President will listen to my views on the Middle East and I’ll continue to offer them to any President who will listen.
CUOMO: Good and wisely served right now, with what’s happening in Gaza, there’s certainly plenty to talk about on that issue and where there is any progress forward, however, there are other exigencies, which I’m sure demanded your attention at this dinner. Do you believe the President of the United States can directly fire a Special Counsel?
DERSHOWITZ: It’s a very complicated issue. There are Supreme Court cases that look in both directions. He can certainly effectuate the firing of the Special Counsel, whether he does it...
CUOMO: Explain what that word means to the lay men and women who are listening right now. Effectuate.
DERSHOWITZ: Well, he can order, he can order, he can order his cabinet member to do it and then fire the cabinet member or replace the cabinet member. I think it’s a moot issue. I do not believe the President’s going to fire Mueller and the case for firing him has gotten weaker now, with part of the case being moved to the Southern District. Because even if the President were to fire Mueller, the Southern District investigation would continue and then it might move to the Eastern District.
CUOMO: But you have said, Professor, that given the, you know, the unified executive theory that the President can stop any investigation he wants, even if he is a part of one unless you can show corrupt intent for an obstruction charge. So by your own theory, couldn’t he stop the Southern District case? Couldn’t he stop any case one way or another?
DERSHOWITZ: Look, President Jefferson, President Lincoln, and President Roosevelt have all directed which investigations should be conducted and which not. Historically, Presidents do under the executive authority, have the right to determine who should be investigated and who not? But there’s a long tradition of Presidents not doing that and I think it would be a serious mistake and a mistake that would lose him support among many of his Republican...
CUOMO: Have you seen this President respect any tradition of that nature since he’s been President?
DERSHOWITZ: Well, I think that he should respect this tradition. I think it would be a mistake to do any firing. On the issue of Rosenstein, there’s a very different issue, though. And that is Rosenstein should be recused from any participation in any obstruction of justice investigation involving Comey because he’s a core prime witness. I mean, any President’s lawyer would be calling Comey, I’m sorry, would be calling Rosenstein as the primary first witness. Didn’t you tell the President in writing that he had the authority to do it and they should do it?
CUOMO: Did you give the President that talking point because he said exactly that because he said exactly that, maybe within the time frame of your own time with him?
DERSHOWITZ: The only advice I give the President is on television, which he has the right to watch or not to watch. I don’t give him legal advice.
CUOMO: You spent a whole dinner with him and President Trump sat across from one of the most esteemed lawyers in the country and didn’t ask you for any advice on these legal issues?
DERSHOWITZ: I only give legal advice to people with whom I’m in a lawyer/client relationship.
CUOMO: So what did you say when he looked at you and said what should I do here, Alan? Do you think I should get rid of this guy and how would I do it? You said, “This is a beautiful piece of chicken.” What did you say?
DERSHOWITZ: No, I don’t give advice to the President about legal issues and I don’t...I’m not asked for advice about legal issues. Remember that I’m not in a lawyer/client relationship with him. My conversations with him are not protected by lawyer/client privilege unlike his conversations with Michael Cohen.
CUOMO: But there are exceptions.
DERSHOWITZ: There are exceptions. Well obviously, none of the exceptions would apply in a situation like the one we’re talking about here.
CUOMO: Why not?
DERSHOWITZ: But I just want you to imagine if instead of raiding his lawyers’ files...
DERSHOWITZ: They went after doctors’ files or they went after spousal files or confessions to a priest or rabbi...
CUOMO: In what context?
DERSHOWITZ: If this were an investigation of Hillary...
CUOMO: An investigation of what?
DERSHOWITZ: If Hillary Clinton had been elected President and they were investigating her e-mails.
CUOMO: They did.
DERSHOWITZ: And they went after her lawyers’, and they went after her lawyers’ files, you would be up in arms, the ACLU would be up in arms.
CUOMO: It depends on the context.
DERSHOWITZ: Of course it does and the first thing you should do is try to get the material through other sources. If you’re interested in bank records, subpoena the bank records.
CUOMO: How do you know they didn’t?
DERSHOWITZ: Well, we know that they went after the lawyer and we know...
CUOMO: But how do you know that they didn’t try to get it before?
DERSHOWITZ: We know, well, they could have gotten it before. We know they set up a taint team. Think of what a taint team is. It’s other FBI agents and other government officials looking into the most confidential privileged material and saying, oh, this is too privileged.
CUOMO: It’s a protective mechanism.
DERSHOWITZ: It’s not a protected mechanism. It doesn’t work. It might work on the Fifth Amendment. It doesn’t work on the Fourth or Sixth Amendment.
CUOMO: Hold on. Hold on. Professor, you’re going too fast for me.
DERSHOWITZ: Well, you’re going pretty fast too...
CUOMO: No, I’m trying to actually slow you down. You know I have tremendous respect for what you have to say.
DERSHOWITZ: Likewise, me too.
CUOMO: I have no problem admitting that to the entire audience. I look to Dershowitz all the time for good counsel and he has never failed me but you’re out-thinking me right now so let’s just slow down for a second.
CUOMO: The context matters.
DERSHOWITZ: Of course it does.
CUOMO: There are exceptions to the privilege if and when investigators can make a case to a judge that we need to search this attorney even though there is a privileged involved with somebody else that is a subject of the investigation because we believe there is probable cause that they are involved in potential criminal opportunities, with activity with the client. So that’s the context. It’s not just breaching a priest, you know, in the confessional. There has to be context. The priest and the person who is the confessor that they are both involved in a nefarious act that we want to look at. Context matters.
DERSHOWITZ: I’m waiting with baited breath to actually read the affidavit that justified the search to see if they make the argument that this might be beyond the...
CUOMO: Right but why do we assume that a federal judge gave them wrongful authority when we haven’t even seen the proof of it yet?
DERSHOWITZ: I just don’t know whether the federal judge was aware that they were going to be searching for lawyer/client protected material. Remember the way that you guys...
CUOMO: You think they asked for a warrant to go into Michael Cohen’s offices and didn’t explain to the judge who he is and what they’d be looking for?
DERSHOWITZ: Let me explain, let me explain to you what they do. They get a warrant to get everything including lawyer/client privilege and information. A warrant does give them the authority to seize lawyer/client information. Then they give it to a taint team and the taint team, which consists of FBI agents reads it all and if they, and if they read something that’s lawyer/client privilege, they say that can’t go to the prosecutor to use. Imagine if what they were reading was not lawyer/client privilege but medical privilege or confessional privilege or spousal privilege, none of us would accept the fact that FBI agents should be reading our most intimate conversations and that’s what happens here. Taint teams are not appropriate in the Fourth and Sixth Amendment context. They’re only appropriate in the Fifth Amendment context.
CUOMO: So you’re being, you’re being general in your criticism. You’re not saying in the instant case, you’re saying overall, you have a concern about this. Let’s bring in one of your...
DERSHOWITZ: And every civil libertarian should have a concern about it.
CUOMO: I hear you. I hear you.
DERSHOWITZ: I’m appalled at the silence of the ACLU and other Civil Liberties groups, who would be up in arms if this was Hillary Clinton’s lawyers being searched.
CUOMO: I hear the criticism. I hear the criticism. And as we all know, these, the sense of outrage right now is almost always by definition partisan. Okay?
DERSHOWITZ: And it shouldn’t be.
CUOMO: Whether it’s leaks or these prosecutions or these investigations...
DERSHOWITZ: I agree.
CUOMO: If it’s helping your party, you’re okay with it. The hypocrisy is staggering.
DERSHOWITZ: Look, the only good thing that has resulted, the only good thing that has resulted is finally conservatives are becoming civil libertarians as liberals are becoming much more supportive of law enforcement.
CUOMO: We’ll see. We’ll see. We’ll see. Politicians act out of consequence not conscience. So we’ll see where they go on that. But let’s bring in a better mind than mine and one of your former students, Jeffrey Toobin...
DERSHOWITZ: Hi, Jeffrey.
CUOMO: Our CNN Senior Legal Analyst, so what we’re trying to parce out here and the Professor often gets misunderstood on this and you know this, Jeffrey, as well as I do. He’s talking in general. I don’t like taint teams. Not that this taint team did anything wrong, not that this search necessarily is wrong because we haven’t seen the affidavit but in general. But specific to this, my point back to him was, one, if they believe there’s probable cause that the attorney and the client are involved in criminal activity, well that’s different than just saying we want to look at lawyer private communications with their client, isn’t it?
JEFFREY TOOBIN: Well, that’s right. And just as a general matter, you know, lawyers, doctors, priests, all of whom have privileges that are protected by the law, none of them are exempt from having search warrants executed against them. They are not above the law and there are systems in place for searching doctors’ offices, for searching lawyers’ offices, and for searching religious institutions. There are, and that’s what is going on here. It’s, it’s relatively unusual but it’s not unprecedented and there are systems in place designed to protect the privileges.
DERSHOWITZ: And the systems aren’t good enough is my point because the privilege under the Fourth and Sixth Amendment is not like the privilege under the Fifth. The Fifth Amendment only says it can’t be used in a criminal case, that’s what taint teams are for. But you should not have government officials reading the potentially protected confidential material and that’s what happens under taint teams and we think it’s enough if the FBI agents reads and said, oh, this is confidential but I’m not going to tell anybody else about it. That’s already a violation of the Fourth and Sixth Amendment. It’s just not good enough. I have an article this morning in Gatestone making the point, distinguishing between the Fifth Amendment protection and taint teams and the Fourth and Sixth Amendment where taint teams just aren’t good enough.
TOOBIN: Okay but remember, you know, Michael Cohen, let’s, you know, anchor this in the specific as well. You know, he was negotiating business deals for Donald Trump, he was negotiating, you know, the hush agreement with Stormy Daniels. They’re not, none of those conversations are covered by the privilege, none of those financial transactions are covered by the privilege. Lots of what Michael Cohen did for a living had nothing to do with the attorney/client privilege.
DERSHOWITZ: But all of that material could be subpoenaed from the people he negotiated with from the banks, from the IRS. You don’t search a law office as a first recourse, you search it as a last recourse...
TOOBIN: Well but you don’t know that this was the first recourse?
DERSHOWITZ: Well, it came very early after they were assigned to do the case and I have enough experience with the Southern District, you do too, to know that they will sometimes overstep their bounds. What I would like to see is all the material turned over to a judge. Let a judge do the filtering rather than some FBI agent or some U.S. Attorney.
CUOMO: Professor, here’s my concern. Here’s my concern. A little bit of it is optic but much of it is deeper than that. All right, so you went to dinner with the President. You’ve been making general arguments that are seen as playing in his favor and then you wind up getting painted as a partisan, that you’re in favor of the President. That’s optics.
ALAN DERSHOWITZ: Wrong.
CUOMO: You can deal with that on your own time.
CUOMO: Here’s what I don’t like. The President comes out and says this is an attack on our country, this is a raid, this is wrong. He keeps attacking the institutions that he sees as oppositional to him. He is the President of the United States. Do you endorse that kind of attack on the institutions of our democracy when they don’t serve his personal purpose?
DERSHOWITZ: For 53 years, I’ve been criticizing the institutions of democracy, overzealous prosecutors, overzealous FBI agents and now finally we have some support from the right. I wouldn’t have used the same words that he used, the same tone...
CUOMO: But the words matter, Professor.
DERSHOWITZ: Of course they do!
CUOMO: You’re a master of language and this man says this was an attack on our country. You can’t agree with that?
DERSHOWITZ: Look, I’ve been critical of many things the President said, including what he said and didn’t say at Charlottesville, what he said and didn’t say about immigration, I’m critical of many of the President’s policies. I’m not here speaking on behalf of the President. I’m speaking of behalf of what I believe are lawyer/client privilege, Constitutional rights, the rule of law. I did the same thing with Hillary Clinton, I did the same thing with Bill Clinton. I’m going to continue to do it, whoever is the President because nobody else is speaking up on behalf of the Constitution and civil liberties today.