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| David Peters |
In the Constitution, he seems to have found the closest fulfillment of the Talmudic phrase that directs his approach to life and the law: “Justice, justice you shall pursue." Continually he has fought what to him have been battles to uphold equal justice for all, both the innocent and the guilty. Equal justice for the rich and the poor alike, even though the Constitutional protection of effective assistance of counsel allows for a wide spectrum of what constitutes effectiveness and the wealthy and powerful receive the best while others too often do not.
Dershowitz’s North Star leads him to take on very unpopular cases, including defending people and ideas he personally opposes, such as the right of communists to publicly present their views, the I am Curious (Yellow) case involving punishing obscene material, defence of the JDL bomber, the free speech rights of Nazis in Skokie, Ill., Jim and Tammy Bakker, and former president Donald Trump. In a statement vaguely reminiscent of the famous quote from philosopher Martin Niemoller, Dershowitz said, “If you don’t defend the S.O.B.s, then nobody’s there to defend you.” But as strong as his North Star was, and is, no one is infallible as becomes all too apparent from even a casual reading of historical figures, or an introspective observance of one’s own self. No one’s worldview is entirely consistent with all their beliefs, motives, statements and actions. We all have blind spots: those parts of ourselves hidden from ourselves, but often recognized by others, inconsistencies between our talk and our walk.
Some argue Dershowitz’s blind spots are a blend of personal motives and a wholesale commitment to the nation of Israel and its ideals.
It is evident he enjoys the spotlight and believes deeply he has important things to say about the law. To stand up for unpopular ideas and defend sometimes unsavoury clients, one must be a bit of a contrarian, a sort of iconoclast, someone who enjoys the discovery of truth that only argument can bring. Dershowitz’s study of the Talmud as a young man with its argumentative style of conveying legal and moral teachings was a defining moment in his life where he understood that education doesn’t have to consist of learning what to think, but can be, rather, a matter of learning how to think. This idea meshed well with his desire to stand out and question authority. Perhaps that is love of the spotlight or maybe just part of his fundamental personality. Either way, being contrarian inevitably puts one in the spotlight. How else would he draw attention to things he cares deeply about? Perhaps he craves the spotlight, but what about all his unsung low-profile pro bono cases? Being in the spotlight no doubt allows him to flourish in his pro bono work.
His blind spot, it is argued, would be his devotion to Israel as a nation and idea. More controversial than perhaps ever is his unequivocal advocacy of Israel and its right to exist and defend itself. This position places him directly at odds with the liberal establishment of which he has been a part and alongside which he fought throughout his life. What’s more, some believe, this devotion to Israel and the Jewish people led him to defend the client that made him a pariah among the liberal elite: Donald Trump. Whether one believes Dershowitz’s own argument that he was defending the ideals of the Constitution and that impeachment must only, for democracy enabled by that Constitution to continue, be used as a last resort in dire situations and not as a political weapon to depose an elected official, or that he feared Donald Trump’s opponents would not support Israel adequately enough, it is clear that he paid a heavy price in loss of friends and status as a champion of liberal causes in an era he characterizes as more dangerous to free speech rights than McCarthy’s.
Dershowitz’s North Star of defending the rights of all and upholding fiercely equal protection under the law, perhaps more than any desire for the spotlight or love of Israel, drove him to defend Donald Trump’s actions as offences not warranting impeachment, just as it did in leading him to prepare to defend Hillary Clinton if she had been elected and impeached instead.
Solomon Schmidt’s new biography, Legal Gladiator: The Life of Alan Dershowitz, captures well the nuances of this complex and, at the same time, simple man. It remains to be seen what his ultimate legacy will be, but if history is any indication, taking stands for what one believes to be right in the face of intense and powerful opposition is often a legacy that endures.
David Peters is counsel in the New York office of a global investment management firm. He has experience advising SEC-registered investment firms on compliance and legal issues affecting both private and registered investment vehicles. Previously, Peters was in private practice at two international law firms and was a senior compliance officer at JPMorgan Chase & Co. Before attending law school, he was an investment analyst.
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