Popehat Nails Dershowitz For Misrepresenting The Law

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Bingo. Since Dershowitz, a renowned law professor who trades on his name and presumed expertise, must be presumed to know all of what Ken accurately references, he must be intentionally misrepresenting the law to his gullible audience. In other words, he’s lying. Ken’s devastating conclusion:

“Alan Dershowitz is brilliant and experienced. This is not a failure of knowledge. This is a failure of character”

41 thoughts on “Popehat Nails Dershowitz For Misrepresenting The Law

  1. The point about Dershowitz is well made.

    It is not clear to me the FBI has any recorded evidence of the lies Flynn has admitted to telling. It is clear they have an unmasked recording of him talking to foreign governments. Don’t they need to produce both?

    They did interview him. But I keep reading there is no record/transcript of the interview. And none of the interview is under oath or Miranda.

    Though Dershowitz may be a liar, this case smells more like coercion or extortion to me. Yesterday’s lack of a sentence reinforces this in my mind.

    • It is not clear to me the FBI has any recorded evidence of the lies Flynn has admitted to telling.

      The FBI doesn’t normally record interviews.

      And none of the interview is under oath or Miranda.

      Under oath matters for perjury. Lying to the FBI is a different crime. https://www.law.cornell.edu/uscode/text/18/1001

      Miranda doesn’t apply to non-custodial interviews. That is not to say that a person doesn’t have the same rights, only that a warning is not required.

      this case smells more like coercion or extortion to me. Yesterday’s lack of a sentence reinforces this in my mind.

      Your mind needs to take a peek at what actually happened rather than reinforcing your own prejudices because you were not paying attention yesterday. Take a peek outside your bubble or at least find a transcript.

      I know the people on Fox were saying that the judge was going to exonerate Flynn or something. Nope.

      The judge was pissed off. Read some of the quotes, he read Flynn the riot act and then strongly encouraged Flynn to go back and help the special council more if he wanted enough credit to avoid prison for his many misdeeds.

        • They write everything down after the interview. Not that it matters in this case as Flynn has confessed to the crime.

          Why didn’t you care before a Trump guy got charged?

          • Valkygrrl: the 302’s were not composed for 5 months. There is no transcript just notes. So they did not write everything down. You cannot distort this.

            The argument that he plead guilt to less serious crimes with the idea he will escape jail is specious. If the government has the goods on him for more serious offenses prosecute him for those first. The government has unlimited funds to prosecute, the government can suggest they will bankrupt you, the government can destroy you because they have no decision costs.

            As for not caring before, you have no idea what I cared about.

            Let me go on record. I care about equal treatment under the law. I care that Flynns business partners are indicted for foreign agent violations but Podesta’s brother is not. Anyone with open eyes can see the disparity when all those around HRC are given immunity and allowed to have Cheryl Mills advise others during interviews.

            • And all that is going on — all these (so-called ‘deep-state’ machinations — I use that term for want of a better word) — point to tremendous shifts and maybe intrigues there in the Halls of Power. But why? What is really going on?

              Why is there always conversations about the details of events, in all their drama, but no full analysis (as for example of a Brzezinski-like sort) of what is really going on, why, and what it means?

              Who has the larger analysis?

      • Thanks for the actual info. I really wanted to know what was right and wrong here.

        Depending on the memory and summary of interviewers without recording seems flaw ridden.

        Then you had to engage in your standard leftist scolding, so eff off.

      • Fun fact; way, way back, when I was considering a career in law enforcement and working for the Duval County Sheriff’s office, we were told (to my surprise) that you didn’t Mirand-ize a suspect/detainee until you were back at the station, processing him/her in. We were told that, up until that point, if this person started talking, and giving information that could be used against him, you didn’t interrupt. You waited until it was clear that they were finished talking, at which point, you said something to the effect of “I’ve got to warn you, sir, that I will probably have to document whatever you say to me”.

        Just the idle ramblings of a pre-senility old man.

        • The warning has 2 parts: *custodial* and *interrogation*. What is called ‘booking information’ (name, address, etc etc) is not information covered by Miranda.

          If the person, even in custody, spontaneously speaks the police are free to listen. I spent time in witness chairs where i was accused of interrogating by saying “Hmmmm..” and “really” to a person who was voluntarily spilling his guts.

          The custody part sometimes is tricky. That’s is why you see the detectives showing that the interview room door is unlocked… “you can leave any time you wish…”; they don’t mention the guy down the hall waiting to arrest you when you decide to leave.

          It must be “pre-senility old man” day at EA. 🙂

  2. Obviously, he should just tell students they should simply say “I do not recall” .

    For those of us layman out here the lesson learned is NEVER enter into an interview with an FBI agent because you do not know if it will come back to bite you in the ass when they want to get you or someone associated with you.

    My takeaway from all of this is that we are living in a federal police state. Perhaps we might see a discussion on Judge Sullivan’s treason statement’s. The bell cannot be unrung even with his walkback and apology.

  3. As someone with no training in lawyering or law enforcement, purely from an investigative point of view. I would believe that asking questions you already know the answer to is very material to in an interview of any nature. It goes directly to how much weight you can put into all of the information you obtain from the interview. You’re not going to believe much of anything someone tells you of the things you don’t know when they’re clearly lying about the information you already know the answers to.

    To me that is the very definition of obstruction of justice. It does seem that over time it has become a tool that Federal Authorities use to find charges to further an investigation. But that’s why you don’t talk to a law enforcement officer without council present period. Ever. No matter how smart you think you are.

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