Guilt by Accusation

by Alan Dershowitz

  Let me be categorical: I never met my two accusers; I have never had sex with an underaged person; the accusations against me are totally false.66

  In the end, The New Yorker screed was largely a dud. Its bias—political, ideological and personal—was so evident to most readers that it lacked credibility. It did not silence me.67 Nor did Meghan McCain, though she tried hard to keep me off TV, because I’m “being accused” of Epstein-related improprieties.

  I had earlier been on The View, which featured McCain, and had described the evidence of my total innocence. But for McCain, evidence of innocence is apparently not enough to overcome accusations of guilt.

  I wrote an op-ed in response to McCain’s McCarthyite guilt by association in which I warned:

  Imagine what America would be like if McCain’s rule became the norm. Every accused person would be presumed guilty and shut down. Our traditional presumption of innocence would be reversed and a presumption of guilt would be substituted. That is the norm in today’s China, Iran, Venezuela and other totalitarian nations that do not operate under the rule of law.

  I am sure Meghan McCain would respond by saying that her rule should not apply to all cases, but only to allegations of sexual abuse made by women. But there is no such limiting principle. Once an accusation—even a demonstrably false one—becomes the basis for punitive actions including censorship, there will be no stopping the march toward abolishing the presumption of innocence.

  Accepting Meghan McCain’s rule would encourage false accusations against political enemies in an effort to censor them. One virulently anti-Israel website acknowledged this weaponization of accusations when it wrote the following: “We have picked up news about the sexual allegations against Dershowitz because Dershowitz is such an outspoken supporter of Israel and the matter has inevitably affected his influence in the foreign policy arena.” Others have told me that they are happy that I am being accused because it will silence my voice when it comes to defending the legal rights of President Trump. If an accusation becomes enough to silence a controversial speaker, the inevitable result will be the increased weaponization of false accusations. . . .

  As a young man I lived through an age in which accusations were deemed sufficient to keep someone off television and other media. That age was called McCarthyism. Meghan McCain’s rule would return us to a terrible time in our history.

  So let us maintain the presumption of innocence for all. Let’s not let accusations be equated with convictions. Let’s assure that every accused person is accorded the due process right to disprove the accusation.

  I hope Meghan McCain, who I admire, will reconsider her thoughtless demand that I be banned from television on the basis of an accusation that has been thoroughly disproved and discredited.68

  McCain apparently refused to reconsider and a tentative invitation for me to appear on The View to discuss my book Defending Israel was withdrawn.

  Even the Columbia Journalism Review—the self-proclaimed “voice of journalism”—was willing to violate core journalistic ethics in the service of the #MeToo movement. A reporter named Lyz Lenz called to interview me. She agreed our conversation was off the record. When I described myself as a “victim” of false accusations by Giuffre and her lawyers, she replied: “You’re a rich, white man—you can’t be a victim.” I responded that she wasn’t being an objective reporter. She then screamed at me and said that she was going to put that on the record despite her prior agreement that it was off the record: “You don’t get to insult me off the record.”

  She then published my off-the-record criticism of her—a clear violation of the ethical rules of journalism. She then went further and published the false claim that this book—which she had not read—will blame “the #MeToo movement for [my] trials.”

  Of course that is not the case. I am blaming those who abuse the #MeToo movement for the false accusations against me being credited by biased journalists like Lenz.

  Lenz then defamed me by falsely accusing me of “rhetorically advocating sex with minors,” despite my unambiguous statement that I was making a “constitutional (not moral) argument,” that the age of consent should be the same for sex as it is for abortion—an argument several prominent feminists have made.

  Some in the media have played a commendable role in starting the #MeToo movement by exposing predatory practices by many men. But the media, in general, has refused to engage in nuanced reporting about those few women and their lawyers who have tried to take advantage of a positive movement to turn it into a self-serving racket of leveling false accusations for profit and revenge. The time has come for the responsible media to investigate plausible claims by victims of false accusations. It will take courage to do so. The Wall Street Journal showed the way years ago when it exposed fraudulent accusations of child abuse that had resulted in the imprisonment of innocent owners of day care centers in Massachusetts, California, Washington and other states.69 This exposé did not hinder the prosecution of real abusers. But it forced prosecutors, parents and journalists to distinguish genuine cases of abuse from fraudulent accusations. It was a win-win. It will also be a win-win if the current media were to substitute investigation of actual innocence for presumption of guilt based on accusation alone. Thus far, the media, in general, has refused to play this important investigation and reportorial role.

  60 Alan M. Dershowitz, A Nightmare of False Accusation That Could Happen to You, Wall Street Journal, Jan. 14, 2015.

  61 See Cabranes opinion, Brown v. Maxwell, No. 18-2868 (2d Cir. 2019).

  62 Julie Brown, “When you are in, you can’t get out.” Women Describe How Jeffrey Epstein Controlled Them, Miami Herald, September 20, 2019.

  63 See, e.g., Tiffany Hsu, The Jeffrey Epstein Case Was Cold, Until a Miami Herald Reporter Got Accusers to Talk, New York Times, July 9, 2019.

  64 David Folfenflik, A Dead Cat, A Lawyer’s Call and A 5-Figure Donation: How Media Fell Short on Epstein, NPR, August 22, 2019.

  65 Connie Bruck, Alan Dershowitz: Devil’s Advocate, The New Yorker, August 5th & 12th

  66 I published the longer letter The New Yorker refused to publish on Twitter.

  67 After the New Yorker article first came out, I published a short reply in the Jerusalem Post. Alan Dershowitz, How The New Yorker Conducts Journalistic Assassinations, The Jerusalem Post, Aug. 1, 2019. After The New Yorker refused to publish my point-by-point rebuttal, I published it myself on Twitter. On Aug 23, 2019, I tweeted “The letter to the editor that The New Yorker refused to publish. I offered to shorten it but its editor didn’t want its readers to learn the truth about The New Yorker’s sloppy and biased journalism and fact checking.” Here’s the link to my response: https://static1.squarespace.com/static/5b9bc617b10598c88f97b47b/t/5d5fddcbba877b0001fe3852/1566563787545/The+New+Yorker+letter+8+3+2019.pdf

  68 Alan Dershowitz, Meghan McCain’s Dangerous Demand to Censor Me, Newsmax, July 12, 2019.

  69 Dorothy Rabinowitz, Darkness in Massachusetts, Wall Street Journal, Jan. 30, 1995. The Wall Street Journal also published two op-eds by me relating to the Giuffre accusations.

  CHAPTER 11

  I Demand to Be Investigated

  When it became clear that I would never be vindicated by the current media because of its insistence on uncritically presenting only the narrative of the alleged victims of sexual abuse, I decided to make a bold move—a move that only a completely innocent person with nothing to hide should ever consider making. I demanded an investigation of me by law enforcement.70

  This move came in several steps. First, I arranged to meet with prosecutors and investigators in the offices of the United States Attorney for the Southern District of New York and the District Attorney of Manhattan.

  I began my meeting with the federal prosecutors and FBI by stating that I am aware that lying, even not under oath, to law enforcement officials is a serious felony punishable by imprisonment.71 I then said that although I’m not required to deny my guilt, I want to state unequivo
cally that I never met my accusers and never had any sexual or other contact with them. I could see the FBI agents writing down every word I said. If it were to turn out—as I knew it wouldn’t—that I was lying, they would have all the evidence they needed to send me to prison. I then proceeded to lay out the case that Giuffre and her lawyers had tried to frame me as part of an extortion plot against Leslie Wexner. I presented the evidence—including recordings, calendars, testimony and chronology—that demonstrated how Giuffre and her lawyers had falsely accused me publicly while at the same time accusing Wexner secretly of nearly identical conduct. I told them that both Wexner’s wife and lawyer had used the word “shakedown” in describing the efforts by Boies to “resolve” the matter.

  The agents took extensive notes of everything I said. The prosecutors came into the room with several volumes of what appeared to be testimony or evidence. Both my lawyer and I surmised that these volumes related to other investigations of Boies the Feds may have been conducting. The media had pointed accusatory fingers at Boies for his role in the Theranos case, involving a fraudulent blood testing start-up on whose board Boies served, while simultaneously acting as the lawyer for the company—a clear conflict of interest. The founder and CEO of the sham company was indicted and there was speculation that she might be flipping on Boies and providing evidence against him.

  There was also speculation that Boies might be the subject of an investigation growing out of the misuse of private investigators hired by Boies in the Harvey Weinstein case. The media was also raising ethical and legal questions about Boies’s involvement with a corrupt Venezuelan politician and entrepreneur. No one was doubting Boies’s right to represent these people; it was the manner by which he was acting for them that apparently interested investigators.

  As usual, the federal prosecutors and agents did not tip their hand. They made it clear that they were there to listen, not to talk. They were cordial, but we left the meeting convinced they believed me, but uncertain about whether they would move forward against Giuffre and her lawyers.

  My meetings with prosecutors and agents from the Manhattan District Attorney’s office was very different. I presented essentially the same evidence to them as I had to the feds. The chief prosecutor—just below the District Attorney himself, Cyrus Vance—questioned me extensively and asked for more details, which I provided. I played the recordings for them and they agreed that our transcripts of the recorded conversations with Boies and Boylan were accurate.

  Then I received a shocking phone call from the Chief prosecutor. He told me that Cyrus Vance had decided to recuse himself and his entire office from the matter because he was too close a friend of David Boies, who had also made significant contributions to his election campaign. They would send the case to a different District attorney’s office—perhaps in Queens or Staten Island who would take over the investigation and be in touch with me.

  I began to prepare a packet of evidence to bring to whichever District Attorney’s office took over the case, when I received another, even more shocking call, from the Manhattan prosecutor. Cyrus Vance had changed his mind! He was un-recusing himself and his office and would decide whether to prosecute Boies and Giuffre for extortion and related crimes.

  Not surprisingly, Vance decided not to further investigate or prosecute Boies. The reason they gave was that Wexner refused to cooperate. I responded that victims of extortion rarely if ever want to cooperate, especially if the sins or crimes they paid hush money to hush up had not been exposed. This was the situation with Wexner. Following his meeting with Boies, Wexner’s name disappeared from the case. Why would he want the accusations against him to be made public, as they would inevitably be, if Boies and Giuffre were to be put on trial for extortion, attempted extortion, or conspiracy to extort?

  Finally, after not hearing anything from the Feds and being told that there would be no action by the Manhattan District Attorney’s office, I decided to go public. I published a provocative op-ed in the Wall Street Journal entitled: “I Want to Be Investigated by the FBI.”72

  My op-ed began as follows:

  “If you are accused of a crime, you are entitled to the presumption of innocence. But in the age of #MeToo, people accused of sexual misconduct are subjected, at least in the court of public opinion, to a presumption of guilt. Worse, a claim of innocence-even a provable one-is itself treated as an offense, an assault on the accuser and on “survivors” in general.”

  I then observed:

  “Yet there are some in the #MeToo movement for whom there is no such thing as innocence. Despite having proved I never even met my accuser, my appearances on college campuses have been greeted with protests accusing me of being part of a “rape culture.” People on Twitter have called me a child rapist and worse. There were calls on social media for Harvard to strip me of the emeritus status I earned after 50 years of teaching without a single complaint”.

  I concluded the op-ed with my challenge:

  “I’ve decided, therefore, to do something unusual: I’m asking federal prosecutors and the Federal Bureau of Investigation to open a criminal investigation of me. But not of me alone—of my accusers as well. [They] have filed sworn affidavits in federal court. These affidavits are in irreconcilable conflict: I have sworn that I never met either of them; they have both sworn that I engaged in sexual acts with them. Either I have committed perjury or they have.

  Someone has committed a serious felony, a crime against America’s justice system. I’m asking law-enforcement authorities to figure out who. I will cooperate, showing them my evidence, testifying before the grand jury, invoking no privileges. I will challenge my accusers to do the same. It’s no fun to be investigated for a felony by the FBI, but the current state of the law and public opinion gives me no alternative if I want to be vindicated.

  In more than half a century of litigating criminal cases, I have never seen one in which the evidence of innocence is so incontrovertible and the evidence of guilt nonexistent. If my evidence is “inconclusive,” then no falsely accused person can ever clear his name.”

  The sad reality is that some of my critics believe I am guilty despite this evidence. They conflate my representation of Epstein—and helping to get him what some regard as a sweetheart plea bargain—with the false accusation that I had sex with Epstein’s victims. But the two are completely different. I did what the law and legal ethics oblige me to do in my role as Epstein’s lawyer. I did what I’m accused of: namely, helping him get the best possible deal. All lawyers should seek that once they decide to represent a client. And in my opinion no good lawyer should refuse to represent a client because he is despised and accused of heinous crimes. In representing a client, the lawyer must, of course, play by the rules, both ethical and legal, which I have done.

  In contrast, I have never engaged in illegal sexual behavior, or improperly touched any female associated with Epstein (or anyone else). Of those false charges I am totally innocent and a victim of perjuriously false accusation.

  So the two accusations—that I represented Epstein, and that I had sex with anyone associated with him—should never be conflated or confused. The first was the right thing to do and I did it. The second would have been the wrong thing if I had done it. But I didn’t do it.

  For some thoughtless critics, the fact that I represented Epstein makes it more likely that I had sex with his victims. To the contrary, if I had engaged in improper sex with anyone associated with Epstein in 2001 or 2002—which I did not—I never would have agreed to represent him in 2005 and 2006 and be in the limelight as his lawyer. The fact that I successfully represented him does, however, make it far more likely that I would be subjected to a false accusation by one his victims, angry at me for helping Epstein get a “sweetheart” deal which denied her “justice.” Both of my false accusers have acknowledged that they despise me and wish me ill for having represented Epstein, thus providing a motive—in addition to the financial motive—for falsely accusing me. I, on th
e other hand, have no motive to attack them other than to clear my name of false accusations. I do not know them, have never met them and have nothing against them other than that they have falsely accused me, which is quite a lot.

  We live in such a polarized world today that there are even some who conflate my controversial support for President Trump’s constitutional rights with the accusations against me of sexual misconduct. As one person put it to me: “Anyone who does anything that helps Trump has no morals, so I can believe you’d do anything.” Another said: “I was hoping you were guilty of the sex stuff, because that would have shut you up about Trump, but damn it, the evidence proves you didn’t do it, so I guess you’ll keep blabbering about Trump.” An anti-Israel website expressly associated accusations of sexual misconduct with my defense of Israel: “We have picked up news about the sexual allegations against Dershowitz because Dershowitz is such an outspoken support of Israel and the matter has inevitably affected his influence in the foreign policy area.”73

  * * *

  I welcome a full and fair investigation. It may be the only way—in this #MeToo age of presumed guilt—to finally and fully prove that I am the totally innocent victim of false and perjurious accusations.

  70 Alan M. Dershowitz, I Want to Be Investigated by the FBI, Wall Street Journal, March 21, 2019.

  71 18 U.S. Code § 1001.

  72 Alan M. Dershowitz, I Want to Be Investigated by the FBI, Wall Street Journal, March 21, 2019.

  73 Philip Weiss, Dershowitz’s Comments Are ‘Shockingly Vicious and Sexist’ Says Harvard Law Record Article, MondoWeiss, Feb. 19, 2015.