Guilt by Accusation

by Alan Dershowitz

  CHAPTER 12

  Being Sued for Telling the Truth: A Grave Danger to the First Amendment

  In March of 2019, Virginia Roberts Giuffre sued me for defaming her by denying her false accusations and calling her a liar and perjurer. Julie Brown, the so-called journalist, who was working hand in hand with David Boies and Giuffre’s other lawyers, knew about the law suit before I did. She was shown the complaint before it was filed and had a lengthy story ready to go. She also helped Giuffre’s lawyers gather information from me on the pretext that she was acting as a journalist, anxious to see my evidence, rather than as an investigator helping Giuffre’s lawyer in suing me.

  The lawsuit itself violated the spirit if not the letter of the First Amendment by asking the court to punish me for denying a false accusation. If every public figure were sued for denying accusations—false or true—and calling his accuser a liar, the courts would be so filled with defamation suits that they would have little time for anything else. Think about all the times current politicians, from the president on down, have called their political opponents liars or have accused them of making up stories about them. I remember when Adlai Stevenson promised that if his opponent stopped lying about him, he would stop telling the truth about his opponent.

  From the beginning of our history as a nation, the word liar has been bandied about by politicians, journalists, academicians and ordinary folks. Jefferson, Hamilton, Burr, Jackson, Lincoln, Roosevelt, Kennedy, Johnson, Carter, Reagan, Clinton, Obama and Trump have been called liars and some have responded in kind. J. Edgar Hoover called Martin Luther King the “most notorious liar in the country.”

  A simple check of Google will show that others who have been called “liars” include the following: Ralph Nader, Nancy Pelosi, Al Sharpton, George W. Bush, Jesse Jackson, Eric Holder, Adam Schiff, John Kerry, Ted Cruz, Al Gore, Elizabeth Warren, Loretta Lynch, Henry Kissinger, Barney Frank, Michelle Obama, Condoleezza Rice, Antonin Scalia, Brett Kavanaugh, Clarence Thomas, Phil Murray, John Lewis, and Michael Bloomberg. There are even websites that catalogue those who have been called liars.

  Rarely has the person called a liar responded by suing. The expected response is in the marketplace of ideas or in the development of a thicker skin, especially by those who initiated the exchange of verbal epithets by hurling the accusation in the first place. It was Sigmund Freud who declared that the beginning of civilization can be marked by the first person who hurled an insult instead of a spear. In the old days, a person falsely accused of a sex crime might challenge his accuser to a duel. Today, they should be free to call the accuser a liar, as I did. That’s how the marketplace of ideas—and epithets—works. The word liar has become so overused that it has lost its sting and its power to inflict damage on the person accused of lying.

  Giuffre’s lawyers know this, so it is unlikely that the real purpose of the defamation suit was actually to prevail in court or to obtain damages. There couldn’t possibly be any damages since I have been calling Virginia Roberts Giuffre a liar and perjurer since the beginning of 2015, when she first falsely accused me. The statute of limitations is one year, and so the damages would only be for what I have said during the past year, not before that. But I said nothing different during the past year than I said for the previous four years.

  Moreover, it is clear from Giuffre’s own words that I told the truth when I called her a liar, and truth is an absolute defense to defamation. Giuffre will have to admit that she lied when she made up stories about Tipper Gore, Al Gore and Bill Clinton; when she claimed that she was below the age of consent at the time she was allegedly trafficked by Epstein; when she said her manuscript, in which she names the real names with whom she claimed to have had sex, was intended to be fictional. She has told many other lies as well, so truthfully calling her a liar and a perjurer is not defamatory and could not have caused her any material damages.

  I will argue that Giuffre became a public figure when she sold her story for $160,000 and peddled her manuscript seeking a big advance. She also deliberately thrust herself into the limelight by accusing me and others of sexual misconduct and having these accusations leaked to the press. Her recent appearances in front of TV cameras on the courthouse steps and her network and newspaper interviews confirm her status as a public figure subject to the more daunting legal criteria for prevailing in a defamation suit. She didn’t become a public figure by being a victim. She became a public figure by exploiting her alleged victimization for profit, publicity and revenge. Public figures don’t win defamation suits based on being called a liar when they initiated the verbal exchange by falsely calling their accuser a pedophile.

  Giuffre’s lawyers have argued that I did not have the constitutional right to defend myself against an accusation that I was a “pedophile” by calling my false accuser a “liar.” Here are their exact words: “Dershowitz’s statements fall outside of any privilege because they are disproportionate to any statement he was responding to.” (Emphasis added.) I quote their exact words because no reasonable reader would actually believe that any rational lawyer would actually argue that calling a person a “liar” who accused you of being a “pedophile” is a disproportionate response. In any event, Giuffre also called me a “liar,” and so me calling her a liar cannot be deemed a “disproportionate” response. The courts are not the appropriate institution to rule on “liar, liar, pants on fire” exchanges.

  Giuffre’s lawyers have also argued that the mere denial of a sexual assault constitutes defamation. Here is what they said, quoting a prior opinion by a district court judge:

  “[T]o suggest an individual is not telling the truth about her history of being sexually assaulted as a minor constitutes more than a general denial, it alleged something deeply disturbing about the character of an individual willing to be publicly dishonest about such a reprehensible crime.”74

  If the courts were to rule that I had no First Amendment right to “suggest” that Giuffre is not telling the truth about me, such a ruling would establish a dangerous constitutional precedent. It would chill the exercise of free speech and incentivize politicians and others to clog the courts with defamation suits rather than responding to accusations of lying in the marketplace of ideas. It would also encourage lawyers to engineer defamation suits by employing the sleazy tactic used against me: namely, defaming me from behind the litigation privilege and then suing me for truthfully denying the false accusations in public.

  In my opinion, the real purpose of the law suit was threefold: first, to defame me and lie about me in the pleadings, on the assumption that these pleadings are protected from defamation lawsuits; second, to punish me economically by requiring me to spend money on legal fees and heightened insurance premiums and to take time from the other work I am doing; third, to try to get me to settle, in the way that Epstein settled his cases, giving the plaintiffs and their lawyers a windfall. Before those suits were settled, I had volunteered to testify against Giuffre and Ransome and prove they had lied about me and so their credibility was in question. But I had no control or influence over Epstein’s decisions and the cases were settled, presumably not for financial reasons, but out of concern for what might come out at a trial. I have no such concerns, because I have done nothing wrong and have nothing to hide.

  Notwithstanding the illegitimate purposes behind filing the defamation suit, if it were to go to trial, I would be able to subpoena material that is currently either sealed or hidden, and my lawyers would be able to cross-examine Giuffre about her numerous lies and about the emails and manuscript that prove that she never met me or had sex with me. I would also be able to introduce my detailed travel and other records that prove I could not have been on Epstein’s island, ranch and other places at which she falsely claims to have met me. Finally, if Giuffre claims under oath in front of a federal judge and jury in a federal courthouse that she ever had sex with me, she will be subjecting herself to criminal perjury charges. I will truthfully swear under oath that I never met
her. One if us will be committing perjury in a federal courtroom—an intolerable situation if not investigated and prosecuted. Accordingly, I have asked the FBI to attend the trial and to investigate which one of us is the criminal. The evidence will show it is her.

  Some of my critics have alleged that I am being inconsistent by raising First Amendment objections to the defamation action, since I invited a law suit in order to prove my innocence. But there is nothing inconsistent about seeking both goals: the right to defend myself under the First Amendment in the court of public opinion against false accusations; and the right to prove my innocence in the courts of law, if my First Amendment rights—and those of all Americans—are compromised in the name of the #MeToo movement.

  On October 16th, 2019, Judge Loretta Preska ruled that it was for the jury to determine whether my statements denying Giuffre’s accusations and calling her a liar and perjurer come within the First Amendment’s self-defense privilege. I am confident that a jury, hearing all the evidence, will conclude that I am telling the truth when I say I never met her. We raised the First Amendment issue in a motion to dismiss in order to preserve it for trial and possible appeal. I look forward to a resolution that both protects my First Amendment right to defend myself against false charges, and that totally exculpates me from any suspicion that I ever met this false accuser.

  74 Giuffre v. Maxwell, 165 F. Supp. 3d 147, 152 (S.D.N.Y. 2016).

  CONCLUSION

  It Could Happen to You!

  What have I learned from being falsely accused of heinous crimes by women I never even met? After more than half a century of representing hundreds of accused defendants—some of whom were guilty, others innocent—I finally learned what it actually feels like to be a totally innocent and falsely accused defendant. Although I haven’t been accused of any crime by a prosecutor and don’t face a criminal prosecution, in some ways it’s worse to be accused by an individual woman in the age of #MeToo. A criminal defendant has the opportunity prove that he is not guilty. A man falsely accused of sexual misconduct by a woman has far less opportunity.

  * * *

  I know I did absolutely nothing criminal or even wrong. I’m proud of the way I’ve conducted my private and professional life during my long career as a professor, lawyer and public intellectual. But many people, mostly strangers, actually believe—despite overwhelming evidence to the contrary—that I had sex with Virginia Roberts Giuffre when she was underage, and with Sarah Ransome when she was 22. The social media are replete with tweets and messages calling me a “pedophile,” a “baby-f..ker,” and a “pervert.” It’s a horrible feeling to know that people not only believe—they “know”—that I did something that I myself would regard as reprehensible.

  In the introduction to this book, I asked the reader “simply to assume”—before seeing the evidence—my innocence, in order to “imagine how you would feel” if falsely accused. Now that the reader has been presented with the indisputable evidence of my innocence and the total absence of any evidence of guilt, that assumption should become a certainty. Every reasonable reader should agree that I am the victim here—the victim of a perjurious frame-up by women with long and continuing histories of lying for money about prominent men. Readers should also agree that these women, Giuffre and Ransome, as well as their lawyers, should be investigated for the roles they played in these criminal activities.

  Yet, there will be some who will be unwilling or unable to disbelieve a false accusation by a woman, regardless of the evidence and lack thereof. There will be others—like the reporter from the Daily Beast—who know I have been falsely accused but lack the courage to take on the #MeToo movement even in a case as clear as mine. If my evidence is not enough, then no evidence will ever be enough to prove innocence. If this state of evidence is allowed to become the new basis for determining guilt, then we will surely have moved to an age of guilt by accusation, rather than by proof.

  The important lesson for all Americans is that if this can happen to me—if I can be falsely accused and have my reputation tarnished by a frame-up plot with no evidentiary support—it could happen to anyone: to you, to your son, to your father, and even to your daughter.

  I have the resources and the determination to fight back and to clear my name, though it has cost me a small fortune. David Boies has told people that even if he can’t defeat me in court, he can “bankrupt” me with legal fees. He and his giant law firm have the capacity to bankrupt individual opponents by filing frivolous or insubstantial lawsuits. They have a sordid history of bullying, of conflicts of interest and of other ethical violations.75 Boies will stop at nothing to even perceived scores, even if it hurts his law firm, as his vendetta against me has done, much to the chagrin of several of Boies’s partners, who are furious at him for what one has characterized as his “Ahab-like obsessions with killing the white whale”—namely me.

  They know that I will do everything legal and ethical to clear my name and prove his complicity with evil. If he and his clients are allowed to get away with their plot to falsely accuse me, it would open the door to more false accusations against innocent people who do not have the resources to fight back.

  The Federal court has now ruled that Boies and his law firm are disqualified from representing Giuffre against me. Boies will be a crucial witness in my trial. If he tells the truth, he will be a witness to my total innocence, and the falsity of the accusations against me.

  This is everyone’s battle, not just mine. It is a battle for justice for all. It is a struggle against those who bear false witness. The Bible commands, “Justice, justice shall you pursue.” The word justice is repeated, because there must be justice both for the victim of false accusations and for those who falsely accuse. I will not rest until “justice” comes to me, as well as to those who have borne false witness against me.

  75 See discussions of Emma Cline case in Chapter 9.

  Appendices

  APPENDIX A: BOIES’S HISTORY OF CONFLICTS OF INTEREST

  APPENDIX B: MEMO AFTER BOIES MEETING

  APPENDIX C: TRANSCRIPTS OF CONVERSATIONS WITH REBECCA BOYLAN

  APPENDIX D: FIGUEROA AFFIDAVIT

  APPENDIX E: ALESSI AFFIDAVIT

  APPENDIX F: FBI INTERVIEW OF GIUFFRE CLAIMS, 7/3/2013

  APPENDIX G: EXCERPTS FROM THE MEMOIRS OF VIRGINIA ROBERTS GIUFFRE

  APPENDIX H: MEMO AFTER CONVERSATION WITH NEW YORK POST REPORTER, WITH CONTEMPORANEOUS HANDWRITTEN CHANGES AND ADDITIONS

  APPENDIX I: PUBLIC STATEMENTS WITH SETTLEMENT, INCLUDING BY FORMER FBI DIRECTOR LOUIS FREEH AND DOCUMENTS RELATED TO FREEH INVESTIGATION

  APPENDIX J: EXCERPT FROM POTTINGER AFFIDAVIT

  APPENDIX K: CHURCHER EMAILS (IN REVERSE ORDER)

  APPENDIX L: TRAVEL DOCUMENT PAGES

  ***These are phone calls that identify numbers and locations. They have been redacted to protect privacy.

  APPENDIX M: DAILY MAIL ARTICLE EXCERPT [MARCH 5TH, 2011]

  APPENDIX N: MY EMAIL TO JULIE BROWN, 3/12/19