Ben Weingarten- fellow at the Claremont Institute and Senior Contributor to The Federalist.
Power corrupts, as Lord Acton’s saying goes, and absolute power corrupts absolutely. History teaches us that the desire to bring down the powerful can also corrupt, and the absolute desire to bring down the powerful can corrupt absolutely.
This reality was brought into stark relief during the gripping confirmation hearings of Justice Brett Kavanaugh. The cynical political desires of those who sought to scuttle his nomination to the Supreme Court on the basis of wholly uncorroborated allegations (almost assuredly as a cover for their disdain for his jurisprudence, judicial philosophy and the president who nominated him) did not, as was quickly exposed, actually have a case; they seemed, rather, to be trying to ride convenient cultural reckonings. Their manifestations in law, and American life more broadly, are the subject of Alan Dershowitz’s new book, Guilt by Accusation, on which more momentarily.
Justice Kavanaugh saw his character assassinated on the basis of (apparently false) claims of his having engaged in sexual assault. He was cast as the embodiment of white male privilege — that is, of power. His purported victims were cast as the embodiment of the powerless. To large swathes of society, Kavanaugh was inherently guilty, by reason of being white and powerful, and his accusers beyond reproach.
This case fit the paradigm of the #MeToo movement. To the extent that the movement’s aim was to bring to justice those who had abused their position by coercing the innocent to tolerate unwanted sexual assaults, judgments of guilt were laudable and overdue. Those who commit such crimes ought to be exposed and punished to the fullest extent of the law.
The movement’s excesses, however, became illuminated during the Kavanaugh “trial,” in the Senate Judiciary Committee’s chambers, and in the court of public opinion. In these realms, both the political class and the media violated all standards of justice and journalistic integrity. Blinded by emotion, the anti-Kavanaugh forces inverted the pillar of our legal system of the presumption of innocence, and refused to subject all manner of outlandish claims to even basic levels of scrutiny. Many members of the U.S. Senate and media alike proved irresponsible and vindictive.
Readers will recall that Senator Mazie Hirono (D-HI) said men — that is, an entire sex — should “shut up and step up” when it came to the allegations raised against Justice Kavanaugh, and that those like Kavanaugh accuser Dr. Christine Blasey-Ford “need[ed] to be believed.” Of course, would not someone striving for fairness and true equality have demanded that the claims of both sides be heard — that is that men and women be treated the same? Media members gleefully printed all manner of unfounded allegations, and continued to do so even months after Justice Kavanaugh was confirmed to the Supreme Court.
The narrative trumped truth.
In the end, Justice Kavanaugh was confirmed, but not without his reputation having been tarnished possibly beyond repair.
The Kavanaugh proceedings paralleled other notorious episodes of fabricated — or at a minimum, uncorroborated but scarring — accusations that implicated relations between the sexes, power, privilege and politics, such as the Rolling Stone rape hoax at the University of Virginia, the Duke lacrosse scandal and of course Justice Clarence Thomas’s confirmation battle.
Kavanaugh’s case in particular illustrated that when swept up in a movement, truth-seeking inquiries in pursuit of justice can easily morph into inquisitions that subvert the very justice they claim to seek.
According to Dershowitz, the #MeToo movement, of which the Kavanaugh saga was a part, has fundamentally changed something in our society — or perhaps reflects a society fundamentally changed — manifesting itself in the weaponization of the legal system that has swung the scales of justice out of balance.
Now Dershowitz, the former longtime Harvard Law professor, and defender of many high- profile clients, makes this case in the context of defending himself against charges an accuser first leveled at him in 2014.
He has been accused of sexual improprieties in a court filing, stemming from litigation against Jeffrey Epstein, whom Dershowitz had previously represented as defense counsel. Dershowitz has unequivocally denied the allegations against him in the media and in court, bolstered by his volunteering substantial evidence in his defense as well as citing an independent investigation that was undertaken by a former FBI director and that exonerated him. Consequently, the judge struck the accusation from the record. Professor Dershowitz argues that his life had returned to normal at that point, but:
“Then along came the #MeToo movement and everything changed. Although the evidence of my innocence only increased during this period—and the evidence of my accuser’s mendacity also became more evident—the atmosphere changed dramatically. Evidence was no longer important. It was the accusation that mattered, as well as the identities of the accuser and accused. The presumption shifted from innocence to guilt. For a man to call a false accuser a liar became a political sin, even if the accused had hard evidence of the accuser’s lies, as I did. Much of the media, especially but not exclusively the social media, bought into the narrative of guilty by accusation instead of by proof. They refused to report on evidence of innocence that contradicted the narrative of guilt. For some an accusation of sexual guilt is so horrible that it must be true, regardless of the evidence.”
Professor Dershowitz lays out a compelling defense refuting the charges against him. Readers can judge that for themselves. What is indisputable are the broader implications his book raises about injustices in our justice system. For example, as Dershowitz encountered in his own case:
“Currently, lawyers, clients, and witnesses can make defamatory statements in public court filings and depositions without fear of a civil suit or a perjury prosecution. As [U.S. Circuit Judge of the U.S. Court of Appeals for the Second Circuit] Judge [Jose] Cabranes put it in a recent decision: ‘It is in fact exceedingly rare for anyone to be prosecuted for perjury in a civil proceeding.’ It is these realities that incentivized [Dershowitz accuser Virginia Roberts] Giuffre and her lawyers to falsely accuse me of a crime with complete immunity: they believed that I could not sue them, because their allegations were contained in a court filing, and were thus immune from a defamation suit. Even more absurdly, by denying Giuffre’s allegations and saying they were lies, I subjected myself to a defamation suit.”
Professor Dershowitz notes that accusers can effectively “launder” defamatory accusations through the media while protecting themselves from being hit with defamation suits by planting such allegations in court filings, and leaking them to the press. Dershowitz suggests there is evidence he was accused by name in this fashion as part of a shakedown scheme. The idea was to leverage the fear engendered by seeing Dershowitz’s name dragged through the mud into eliciting a large cash settlement from an unnamed accused person of far greater means.
Regardless, as Professor Dershowitz notes — as with stories that initially draw millions of views, only to have later retractions ignored — once the claim in the filing was publicized, it was nearly impossible for Dershowitz to get his name and reputation back. Social media mobs formed and mercilessly attacked him. He was savaged on college campuses, and some publicly called for Harvard to strip his emeritus status. Finally, he claims to have received evidence that a lawyer for his accuser was seeking out another woman to raise additional related allegations against him — a ploy that ultimately unfolded.
As Professor Dershowitz argues, if he, with ample resources, a first-rate legal mind and impeccable liberal credentials — until he started defending President Donald Trump on the merits — finds himself unable to clear his name today and under continued attack, what does that imply for those lacking such advantages?
Independent of, and more broadly than, Professor Dershowitz’s own case — in which he asserts that the accused often has little recourse — Dershowitz highlights major deficiencies in our legal system. Namely, as Dershowitz quotes from a Wall Street Journal op-ed he previously published, there are no “consequences for those who file accusations with no offer to prove them and no legal responsibility if they are categorically—and disprovably—false.”
In Guilt by Accusation, Professor Dershowitz details some reforms of the legal system that will protect individuals from false accusation, as well as standards media professionals can follow to bring balance to their reporting.
The erosion of fundamental principles of justice — principles developed over many centuries that represent some of the crown jewels of our Judeo-Christian Western civilization — as well as a lack of any semblance of fairness in journalism, reflects an erosion of our culture.
These principles are evidently not being passed from one generation to the next. Absent a culture that values and fully appreciates the blessings it has, as well as the sacrifices required to ensure liberty and justice for all, there can be no liberty and justice for all.
For victim and victimizer alike, the American justice system, and those who report on it, needs to be fair and equal. A case must be judged on its merits, treating parties involved as unique individuals with agency rather than accumulations of identities whose every motive, belief and action can be assumed. The consequence otherwise is not only the ruined reputations, and possibly lives, of people eventually proven innocent, as well as discounting the claims of accusers who are credible, but also the acrimony between the sexes that has resulted. For example 60% of male managers indicate that “they are uncomfortable mentoring, socializing with or even working alone with women in the workplace,” according to a LeanIn.org poll.
Professor Dershowitz’s book is a plea for reforms in our justice system to treat both the accused and the accuser fairly, and for the court of public opinion to do the same. Recognizing that societies are often swayed by their passions, it is an argument that needs to be made.
