Alan Dershowitz On Trump And Grand Juries

Celebrated Harvard law professor Alan Dershowitz made headlines on Friday in an interview with WABC radio, when he said that a new Washington, D.C.-based grand jury impaneled by special counsel Robert Mueller could give prosecutors a "tremendous tactical advantage" if they want to bring a case against anybody in the Trump administration.

"The case now can be brought not in northern Virginia, which is a swing area, sometimes Democrats and sometimes Republicans, but the District of Columbia, which is always solidly Democratic and has an ethnic and racial composition that might be very unfavorable to the Trump administration," Dershowitz said.

On Monday, Dershowitz furthered his thinking in an opinion piece for the Hill. He wrote, "Prosecutors, who have wide discretion in choosing where a case will be tried, often consider the racial composition of the jury pool, along with other factors, in deciding the venue of a trial. That is simply a fact of life that few will dispute."

Alan Dershowitz, legal scholar and professor of law emeritus at Harvard Law School. He tweets @AlanDersh.

Nancy Gertner, retired federal judge and WBUR legal analyst. She tweets @ngertner.

This transcript has been lightly edited and condensed for clarity.

Alan Dershowitz: People are arguing with me, but I haven't heard a single experienced, honest lawyer actually get on the radio or television and say, "Dershowitz is wrong. It doesn't give any kind of tactical advantage to the prosecutor to have the trial in the District of Columbia rather than in Virginia." Every experienced lawyer knows that that's true. Every experienced lawyer knows that prosecutors and defense attorneys venue-shop. They try very hard to get their cases in places where they think they will have an advantage. There's nothing wrong with it. I'm not saying that jurors in District of Columbia are less fair than jurors in Virginia. I'm just saying that life experiences, political affiliation, ethnicity, race, wealth, poverty — all of these things — educational level — all impact jury selection. And every lawyer knows that. The Supreme Court knows that.

Meghna Chakrabarti: First of all, let's just get to the the race part. Just for clarity, are you saying at all that you think that African-Americans cannot faithfully and impartially do their jobs on a Mueller grand jury or any subsequent trial jury that might involve members of the Trump campaign?

Alan Dershowitz: Of course not. Of course not. African-Americans are as fair as any other group, but they bring their life experiences to bear as just as whites bring their experiences to bear.

Meghna Chakrabarti: But this is an investigation about Russia — about possible collusion, about maybe even espionage. I mean, if we were talking about police shootings it might matter.

Alan Dershowitz: And I have a bridge to sell you in Brooklyn if you believe that. This is an investigation of Donald Trump, one of the most unpopular people in the District of Columbia. Yes, it involves Russia and yes, it involves other things. But when you have a trial, you're talking about the person who's on trial. I've had prosecutors look me in the eye and tell me, "Your client can't plead not guilty in this case. Look at the ethnicity of the jury. He's going to walk in there, and they're going to think he's guilty." Prosecutors use that as a tactic all the time in eliciting plea bargains. Every lawyer in a civil suit picks the venue based on these facts. It doesn't matter whether the trial is involving Russia or whether it involves something else.

Meghna Chakrabarti: I want to get to the venue picking in detail in a second, but I can't quite let the issue of race go because as you know it's one of the things that it is--

Alan Dershowtiz: It's the third rail.

Meghna Chakrabarti: It is. But how far does your logic extend? As you recall, during the campaign, then-candidate Trump very openly and aggressively criticized a federal judge, Gonzalo Curiel, for his Mexican heritage, saying that he couldn't be an impartial judge because of his heritage in the Trump University case. He called that common sense.

Alan Dershowtiz: It's not common sense. He was wrong about that.

Meghna Chakrabarti: So then how does it differ with with a jury?

Alan Dershowtiz: I didn't say that anybody would be unfair. I just said that people bring their life experiences to bear.

Meghna Chakrabarti: That's exactly what Donald Trump said as a candidate about Judge Curiel.

Alan Dershowitz: But he's wrong. There's no experiences. The guy was born in Indiana. Let me give you an example. When the prosecutor in the O.J. Simpson case, which I was involved in, decided to bring the case in central Los Angeles rather than in Brentwood, he did it because he understood the difference in the racial composition in the two areas. When Marcia Clark picked a jury that had nine black women, she did it because she understood that it would, in her view, give her a certain advantage. The Supreme Court recognized that ... and that's why they said, you have to make sure that juries are diverse, representing people who have different life experiences. It's not that juries will be unfair or that they will be consciously discriminatory. It's that juries are not computers. They analyze the evidence based on their life experiences. You talked about a police shooting. One of the reasons we, the O.J. Simpson defense team, wanted a predominantly black jury is because we understood that black jurors in Los Angeles probably have more experience with police abuse personally and through relatives, and would be more open to accepting an argument that the police may have tampered with the evidence.

Meghna Chakrabarti: But what experiences of members of a possible jury pool from Washington, D.C. who are African-American would pertain to allegations and possible indictments regarding Russia and the Trump campaign?

Alan Dershowitz: It has nothing to do with what the allegations are. It has everything to do with who the defendants are. It's the defendant who's on trial. And jurors look at the defendant.

Meghna Chakrabarti: But then how could a Republican-based jury pool be any more objective?

Alan Dershowitz: I'm not suggesting they would be more objective ... All these juries could be fair and impartial. In their own mind they are. But certain jurors, certain juries, certain venues, give advantages to one side rather than the other. Every lawyer in the world who's honest knows that. That's why many people oppose the jury system and would prefer to go to the European system, where we have trained professional judges. But we opted for a jury system, which is hopefully diverse, representing a wide range of views and a wide range of life experiences that jurors can bring to bear. This is an observation that is utterly uncontroversial. And if Donald Trump were not involved in this, nobody would have even mentioned it or picked it up. Everybody would have said, ho hum. Of course that's true. Read the [Batson v. Kentucky] case. Read NAACP briefs. Read what Johnnie Cochran argued. You know, Maxine Waters, who called me a racist, proposed Johnnie Cochran for a Medal of Honor basically after he died. And it was Johnnie Cochran who probably taught me more than any other of my mentors about how salient race, ethnicity and educational levels are in jury selection. Every honest lawyer will tell you that. But they might not tell you on the air. That's the difference. I say publicly what other lawyers whisper privately.  And I'm still waiting for a lawyer to come on the air and say that what I said is not accurate. They may say I shouldn't have said it, but I challenge you to get a lawyer to come on the air and to say the following words: "I do not believe that the prosecutor has obtained any advantage in jury selection of a petit jury involving associates of Donald Trump by having the case in the District of Columbia rather than in Virginia." You're not going to get anybody to say that.

Meghna Chakrabarti: So you are implying political intent, though.

Alan Dershowtiz: I am not. I am not. I'm talking about effect.

Meghna Chakrabarti: But I want to explore whether or not Robert Mueller even had a choice regarding this D.C. grand jury.

Alan Dershowitz: Of course he did.

Meghna Chakrabarti: Well, hang on here for just a second, Professor if you could. We talked to a bunch of folks today. And what I'm hearing from several people is that he may not have had a choice. That the grand jury that was impaneled in Alexandria in Virginia may have been a regular grand jury with a fixed period of time. He may have been running out of time with that grand jury.

Alan Dershowitz: Whoever told you that doesn't know what they're talking about.

Meghna Chakrabarti: It was a former U.S. attorney.

Alan Dershowitz: It doesn't matter. Then he's not telling you the truth.

Meghna Chakrabarti: It does matter. And then also, the main U.S. attorney's manual itself says a case should not be presented to a grand jury in a district unless the venue for the offense lies in that district. Implying that Robert Mueller's investigation may now include offenses potentially or allegedly occurring in the District of Columbia, and therefore he has to impanel the grand jury there.

Alan Dershowitz: Wrong. Wrong. Let's start with the first one, running out of time. Very simple. You file a one page statement ex-parte to the judge seeking an extension of the grand jury. Always granted. Never denied. That's number one. Number two. You want to impanel a second grand jury? You impanel a second grand jury. Grand juries don't matter. A grand jury will indict a ham sandwich if the prosecutor wants him to. A grand jury consists of 23 puppets sitting on 23 pieces of furniture that are moved around by the grand puppeteer, called the prosecutor. So it's not the grand jury that matters, it's the petit jury. So now let's turn to your venue. [That] could lie almost anywhere in the United States because the investigation involves whether or not Russia influenced the election ... It could have been in New York, it could have been in New Jersey, it could have been in Pennsylvania, it could have been in Virginia. It could have stayed in Virginia because once you have the venue over the core elements, then you can have the grand jury investigate other issues as well. Venue is very easy to establish in a federal case. So you're not getting, really, the correct responses. If this didn't involve Donald Trump, the same former U.S. attorneys would be giving you different answers. For me the test is always the shoe on the other foot. People say I'm standing up for Donald Trump — I would be doing exactly the same thing if Hillary Clinton had been indicted. If she had been elected president, the Republicans who control Congress and the Senate would be saying, "Lock her up, lock her up."

Meghna Chakrabarti: And Professor, honestly, I would have been asking you the same questions.

Alan Dershowitz: No, you wouldn't have.

Meghna Chakrabarti: Actually, sir, I would have. A hundred percent.

Alan Dershowitz: I don't believe that, but let's get off your personality for one second and let's get to general people. So I would have been talking very hard about how we're expanding the criminal law, and how we shouldn't be going after Hillary Clinton, and all the people who today hate me would love me, and all the people who today love me would hate me. Because when it comes to partisan politics, everyone is a hypocrite. And all they care about is whether it hurts or helps them ... Is it good or bad for the Democrats? Is it good or bad for the Republicans? Is it good or bad for Jews, or good or bad for blacks, or is it good or bad for women? Is it good or bad for men? Is it good or bad for gays? That's the way people think about issues today. There is very little discussion of enduring principles.

Meghna Chakrabarti: There is a deeper issue I do want to ask you about. And you're pointing to it right now. These are not normal times. We are still in a period where the current president of the United States ... spent much of his campaign maligning the justice system. He has brought with him a chief adviser in Steve Bannon who has explicitly said part of his mission is to deconstruct the administrative state, to undermine what I consider fundamental aspects of our democratic system. Here we have, in you, one of the most prominent legal scholars in the country, assigning or impugning the special counsel and saying that there's politics going on here. And in a sense you are giving cover to theories that are now being peddled by Sean Hannity and Newt Gingrich, who also seek to politicize the justice system. Can you understand why people are concerned and outraged about this? Are you not concerned about the strength and fundamental integrity of the justice system?

Alan Dershowitz: No, I am a man of principle. I will stick by my principles. I will tell the truth no matter where the chips fall. I can't stand Sean Hannity. I refuse to be on his show. He has personally insulted me and attacked me. He has made anti-Semitic comments about me. I can't stand the guy. The fact that he quotes me, I can't help that. The fact that Newt Gingrich quotes me, I can't help that. I have stood by the same positions for 30 years ... I have made a career out of arguing that we shouldn't be criminalizing political differences. I've made a career out of arguing that the grand jury is an abusive institution. I have made a career out of arguing that we shouldn't stretch and expand the criminal law. I'm not going to change it because you think these are abnormal times. When Thomas Jefferson told the Justice Department that they had to prosecute Aaron Burr, and that he was going to have the chief justice impeached unless he found Aaron Burr guilty, those were special times too. When the Kennedy administration went after their political enemies ... Those were special times too. Every time seemed special, and that's when civil liberty suffers — when we think special times justify the diminution of civil liberties. And I'm not going to accept that. I may be overruled. I may be outvoted. I'm making a lot of political enemies. Look, I'm spending the summer in Martha's Vineyard and I'm not getting invited to dinner parties because people think somehow I'm on Trump's side. I am not on Trump's side. I am on the side of civil liberties. And for me it's always the shoe on the other foot test. I made the same test when it was Bush versus Gore. I went after the Supreme Court with a vengeance. I accused five justices of the Supreme Court of violating their oath of office. Liberals loved me when I did that. But now when I criticize the judicial system or the independent counsel system, suddenly the same liberals who loved me during Bush versus Gore hate me now. Well, that's the cost of being a principled person. So I'm sorry, I'm going to stick to my principles.

Meghna Chakrabarti:  No one should ever apologize for sticking to their principles. But you are also speaking with someone who feels very fiercely about her own principles and one of them is, it's hard for me to back down from a challenge.

So I have a question for you. Earlier in this conversation, you issued a challenge. You said, can we find a lawyer to disagree with you ... Well, actually we have Judge Nancy Gertner, retired federal judge and WBUR legal analyst, on the line.

Alan Dershowitz: Nancy, say the following words: "I do not believe that prosecutor will get any tactical advantage by having..."

Meghna Chakrabarti: Well, maybe you should let her say her own words.

Nancy Gertner: In the article that you wrote, you said that Mueller brought a grand jury in Washington in order to obtain a tactical advantage. As someone who has presided over grand juries, and somebody who has defended people who have been indicted, and now as someone who writes about grand juries, that's simply wrong. Mueller impaneled a grand jury to D.C. because he's investigating White House crimes. And just like Andrew Johnson, Bill Clinton, and Richard Nixon, who were investigated in the venue where those crimes took place, so will Trump be investigated. The eastern District of Virginia is a narrowly focused investigation. In fact, it pertains to the time after Michael Flynn left the Obama administration and before he entered the Trump administration, and it is focused on Virginia-venued crimes. In addition, it is not at all clear to me that one can extend the grand jury in Virginia, both because of venue, and because it's a regular grand jury, which can only sit for 18 months. We have every reason to believe that Mueller wants time and needs a different setting. The only venue here that makes sense would have been Washington, D.C., or possibly New York. It could not have been anywhere in the country, and had he chosen anywhere in the country, that's the moment that we would have said, "Aha. Tactical." But Washington, where Clinton and Andrew Johnson, and Trump is now being investigated, is par for the course.

Alan Dershowitz: So you have two issues. And on one you're refusing to disagree with me because you know I'm right. And on the other you're disagreeing, and that's reasonable. The two issues are very, very distinct. One is an empirical issue. A factual issue. And that is, has Mueller obtained a tactical advantage?

Nancy Gertner: What you said in your article and on the radio was that he did this for the purpose of securing a tactical advantage.

Alan Dershowitz: There are two points. One is an empirical effect point. And I've made it very clear. The effect is to give Mueller a tactical advantage. Nancy, I challenge you to disagree with that.

Nancy Gertner: I do disagree with it in this respect. This notion that African-Americans would stand differently with respect to allegations of espionage is troubling. If this were a police abuse case, it would have been one thing. But the notion that there's any meaningful difference between the races with regard to a foreign power's intervention in the American election is really extraordinary.

Alan Dershowtiz: But you and I, Nancy, have talked about cases over and over again where you have a person, whether it's a Hasidic Jew with a long beard, whether it's a black person — you get a black person in front of an all-white jury in Mississippi, it doesn't matter what the crime is. There's going to be a different view there.

Nancy Gertner: But the fallacy of what you're saying is the eastern district of Virginia voted for Hillary Clinton in substantial numbers. The choice to move this case to Washington, D.C., was where venue, records and presidents get investigated. There's nothing tactical about it.

Alan Dershowitz: You're talking about the second point now. I want to distinguish the two points. The main point I made, and the reason why Maxine Waters called me a racist, and Dahlia Lithwick called me a racist, and Richard Painter called me a racist, was not the point on which we may have some disagreement. And that is Mueller's motive. What we're talking about is the effect. And Nancy, I don't think honestly you can look in your heart and deny — even though you're right, Northern Virginia went for the Democrats this time — it's split. It's always a swing area. You cannot deny that there is some tactical advantage in having your case in an area which is 95 percent Democrat when you're putting the president's associates on trial. You just cannot persuade me or yourself that that isn't at least a potentially correct view.

Nancy Gertner: The other side of the coin here, by the way, is that the special counsel is subject to the regulations of the Department of Justice. It's entirely possible that the decision to impanel a Washington grand jury would have been approved at the highest levels of the DOJ. And it's entirely possible that it wouldn't have even crossed anyone's mind to even get an approval precisely because this was such an ordinary choice.

Meghna Chakrabarti: Professor Dershowitz and Judge Gertner, if I may jump in here, this has been a truly riveting conversation, and I was sitting back and being a listener here, but I'm also looking at the clock and reminding myself that I have the rest of my program to attend to.

Alan Dershowitz: You know, we argue about so many things over time. It's so interesting, because Nancy is usually to the left of me and tougher on prosecutors. And I'm usually more to the center. But when it comes to Trump everything changes.

Meghna Chakrabarti: Well, what I would like to say to both of you is to express my extreme gratitude that we had this conversation with you, because there have been extraordinary times in American history, but this is the one we're living in. So I am grateful.

Alan Dershowitz: Can I ask Nancy one question?

Meghna Chakrabarti: Only if it's very quick.

Alan Dershowtiz: Nancy, do you think I'm a racist?

Nancy Gertner: I refuse to answer on the grounds that it may tend to incriminate me.

Alan Dershowitz: I don't like that answer. You know me well enough to know that I was not motivated in any way by any thoughts of racism, any more than anyone would be in picking juries and trying to get more blacks on a jury.