PragerU Live: Alan Dershowitz (6/28/17)

good morning everyone I'm Elicia Krauss live from prer uhq here in Los Angeles and on the east coast today we are joined by by a very special guest and a numerous time presenter Alan dtz Alan good morning and thank you for being with us today hi appreciate you being here so there have been a lot of decisions this week and a lot of things happening on Capitol Hill that people are talking about and I'd love to get into your legal mind specifically Ryan Anderson over at the Heritage Foundation has said that it's been a good week for religious liberty at the Supreme Court he's referencing the decision of uh the state of Missouri versus the Christian School there and of course the Supreme Court is going to be also reviewing a case in a baker that was told and then find for not baking a gay wedding cake let me let me get to that one first that is the dumbest case ever it is not about religious liberty if a Baker wants to exercise religious liberty they ought to stop selling cakes to Christians who have been divorced and want to be remarried that's right in the New Testament it says if you've been divorced you cannot be remarried how dare any cake baker say that it's okay to sell my take to a divorced person but it's not okay to sell it to a gay person who's getting married there's nothing in the New Testament about gays getting married this is the worst form of hypocrisy it is homophobic bigotry disguised under the pretense of religious liberty and it's no different than as if an afroamerican person and a white person wanted to get married and a cake baker said I'm not baking a cake for them because my interpretation of the Bible is that a black person can't marry a white person it is a phony argument the Supreme Court should have just thrown it out immediately it hurts religious liberty because it uses religious liberty as a pretext for utter and absolute bigotry so then are you're okay with States and lower courts finding people for refusing service to anyone well uh if there is a genuine religious basis that would be one thing I mean I think it would be a hard case if a person said I will not bake a cake for somebody who is divorced the New Testament says divorce is an impermissible basis for remarriage but if they bake cakes for divorce couples who won't bake it for gay couples that's not religious that's so you're okay with the court determining then someone's perspective or their view of of what the Bible says about a specific topic then I'm okay when it's a totally phony argument uh this argument is as phony as or a black and white person let me throw the question back at you do you think the court would take the case if a baker refused to bake for a black and a white person or a hotel refused to accept patronage from a couple one of whom was black and one of whom was white I should simply no difference between that and a gay couple but there is a difference between a divorc couple you know when hotels start checking and seeing oh you've been divorced and now you're remarried no no that's not a legitimate marriage we don't accept unmarried couples in our that's the phoniest argument we have to understand from a common sense point of view the difference between religious practice and utter and complete homophobic bigotry but I guess my followup would be is it the responsibility of any circuit court or any justices you know sitting on the Supreme Court to to then be able to dictate and determine how someone views the Biblical teaching well no uh you don't do that you just look to see if there's hypocrisy if they're really doing it on the basis of the Bible their views have to be authentic and genuine and they have to be religious and I think refusing to make a cake for a gay couple is simply a reflection of utter and complete a bigotry there's no possible religious justification for that if you're prepared to bake a cake for a person who was divorced then remarrying I challenge any Christian to come forward and show me a religious justification for that okay moving on another what some people have said is a win for religious liberty is this decision in the Supreme Court to review the case of this Missouri school which I believe they struck down uh because they said that Missouri violated the The Constitution's free exercise clause what are your thoughts on that well it's a close question that's a hard question how much the state can support non-religious aspects of religious schools a hard question on the one hand every penny it gives to a religious school to build a playground is a penny the religious school can then use to teach religion that's an argument against allowing it on the other hand people go to school they're compelled to go to school they ought to have safe playgrounds so this State ought to be able to give money to help build safe playgrounds I predict the Court's going to come out in favor of allowing the expenditure of money for playground areas um but I don't think they're going to come out in favor of the gay Baker the the baker who won't uh provide a cake for uh for for for gay marriage and the final case is the Supreme Court you know partially unblocked parts of President Trump's recent travel ban his executive order of course uh some people are saying that this is a good thing some people uh three of the Justice said that that they didn't think that the travel ban went far enough or the decision went far enough your thoughts well I think the Supreme Court in the end is going to decide this case not on the basis of what but on the basis of who who has the right to challenge this uh order and I think the court will hold and I think Justice Roberts chief justice Roberts will write the decision because he is the expert on standing will say that a family from Yemen who's never been to the United States and has no connections to the United States has no standing to challenge the order but that people who have close connections to the United States do have standing and then the court will have to reach the issue of whether or not uh the ban based on six religious six mus Muslim majority countries selected of course by the Obama Administration initially um uh is constitutional or unconstitutional I think in the end careful analysis will uphold most of the ban but might strike down on due process grounds some of the ban the problem is not going to be the Constitution it may be the statute there's a statute that prohibits um discrimination based on national origin and the court May focus on that statute but Congress could overrule that if they choose to okay so if everyone wants to stay tuned after this PR live we will be streaming all of Allen's videos that he has done for prageru in addition to that we'll be streaming a video that talks about the Supreme Court and the decisions that they've made in the past why we're losing Liberty it was presented by Robert George so stay tuned for that Allan I'd love to get your thoughts on on uh now we've there's a couple of FBI investigations that have been in the news this week of course some people over at CNN resigned over a Russia investigation story where they had an anonymous for source that was then totally debunked and uh has led into the hashtag fake news narrative in addition to that we now know that Carter page during the campaign was interviewed by the FBI uh some people are for Mohler in continuing the investigation others feel like he shouldn't be trusted what are your overall viewpoints and where do you think this is going to end up well I think there should have been an independent commission much like the 911 Commission established by Congress bipartisan nonpartisan looking into the entire issue of Russia involving itself in American elections it ought to be looking forward not backward it ought to be thinking about passing new laws making uh American complicity in that a crime but an FBI investigation is the wrong place to go because I don't think any crimes were committed it wouldn't have been a crime hypothetically this didn't happen but hypothetically if Donald Trump running for president called Vladimir Putin and said I'd really appreciate if you could help me become president and if you do by lawful means I will stop the sanctions that would be wrong it would of course resulted in him not being elected but I can't find any criminal statute that that would have violated so I don't think an FBI investigation is the right way to go it's also behind closed doors it's grand jury we'll never know what really was found out an open public inquiry would have been a far better way of addressing the very serious problem of Russia being involved in any American or any foreign election it would have been more transparent for sure do you think thate the President Obama or the Obama Administration is culpable in any way of of the alleged hacking that occurred between Russia and the United States considering he apparently knew last summer I I'm very surprised that uh that didn't come out particularly when Comey announced that there was an investigation of Hillary Clinton's emails it surprises me me that it wasn't leaked somehow that there was also an investigation of possible collaboration between people on the Trump team and the Russians but selective leaks have that problem uh you know they're leaked selectively for political purposes and it's wrong and I think that uh uh Comey really disgraced himself when he leaked material through a law professor at Columbia instead of having the courage to stand in front of the camera and say I want there to be a special counsel and I'm going to tell you what the president said to me and how he said it he didn't do that he leaked it the head of the FBI whose job it is to prevent leaks should not be leaking do you think that he should be charged for those leaks I don't think it's crime uh there was no national security issue there was no grand jury issue it was just wrong we have to make sure that we always distinguish between what we don't approve of and what is criminal there's a great deal that both the Obama Administration and the Trump Administration have done that I think is wrong but I have to know what the criminal statute is and why you think there's evidence Beyond under reasonable doubt that somebody violated that statute I think we conflate sin and crime political sin and crime in this country far too much we're doing it now with Sanders Jill Sanders and and and and Bernie Sanders we're investigating them for something that sounds like it's civil rather than uh criminal both sides use the criminal justice system as weapons in their hyperparasites when that happens you mentioned Bernie and Jill Sanders of course this has been a Twitter upheaval and and some in the media are talking about it but others aren't some people are comparing the media coverage to when Marco Rubio's wife was discovered to have multiple speeding tickets that that got way more news from the mainstream media than this story of Jill Sanders being investigated by the FBI for what you just said is is more of a civil issue you wrote a piece today for foxnews.com in which you say that you think that the Sanders FBI bank loan investigation is dangerous T territory can you explain that yeah I think it's part of the same issue of the Trump inv investigation um people should not be using the criminal justice system to make political attacks on their enemies um I said that uh when Nixon was named as an unict coconspirator I said it when Clinton was uh subject to impeachment I said it when Tom DeLay when uh Rick Perry uh when Senator Stevens when Bob Menendez all of these are political uh attempts to use the criminal justice system to criminalize political differences and they're wrong what whether it's done by Republicans against Democrats Or democrats against Republicans the Republican National Committee is now having a ball sending out tweets and messages about how terrible Sanders is and they ought to be prosecuted the Democrats are doing the same thing with Trump neither should be doing it so even though it's it's the independent or the allegedly independent FBI looking into this we don't have any proof that it was spurred on by a Republican senator to look into Jill Sanders you still think that these are being used as political games oh no we do have proof we have proof it was done by the the chairman of the Trump campaign in Vermont and in my article I name him and I quote what he said and no question it was stimulated by a republican operative and that's why my civil liberties antenna goes up whenever a political operative commences a criminal investigation against the political opponent I have to look very hard to see whether there is a Justified basis for it now I don't see any Justified basis either in the Trump or the Sanders investigations so final question for you sir I'd love to know your legal thoughts and and maybe political opinion when Comey did testify one of the tidbits of course that people on the right grabbed on to is that he had been asked by then attorney general Loretta Lynch to refer to the Hillary Clinton FBI investigation as a matter when he appeared before Congress that was wrong it shouldn't have been done but again it's not a crime it's just wrong and we should be critical of that of the U attorney general not to be uh using political talking points in talking to the FBI director and telling him how to categorize a case look it shouldn't have been referred to at all that's the big mistake nobody should have known about this the FBI like the classic child should be seen but not heard we shouldn't have heard from the FBI director until a decision was made to indict or not to indict that's equally true of the Hillary Clinton matter and of the Russian probe but of course selective leaking brought one of them to the attention of the public and not the other one Alan thank you so much for your time today we really appreciate it and thanks for being a member of the prageru family I'm Elicia Krauss from the prageru HQ reminding you that our prageru video are able to be kept free because of generous donations from people like you so you can click on the link in this Facebook live and make sure to donate even $5 makes a big difference heck I spent $8 on coffee for Noah and I our Tech Guy this morning so8 goes a long way to to make sure that Millennials like myself people that are 35 and under are impacted by the importance of our videos we'll be streaming some of those starting right now including about a video specifically talking about past decisions of the Supreme Court and Alam all of Alan dershowitz's videos that he's done here for us at prayer you thanks so much everyone be sure to tune in tomorrow because we have a new presenter and an inperson sitdown prer you live just special for our audience thanks how did the framers of the Constitution of the United States seek to preserve Liberty and prevent tyranny pretty basic question here's the answer I usually get from my students well Professor to protect the individual and minorities against the tyranny of the majority they added the Bill of Rights and they gave the power to enforce those rights to the Supreme Court are my students correct the editorial Boards of the New York Times or the Washington Post and many members of the US Congress would say yes unfortunately the answer is wrong I say unfortunately because it reflects a common misunderstanding of the Constitution and that misunderstanding has led to a serious erosion of our freedom let me explain both Bill of Rights and judicial review the idea that the courts can decide if a law is constitutional or not were hotly debated items when the Constitution was being drafted in 1789 the Federalists the group led by Alexander Hamilton that wanted a national Constitution opposed including a Bill of Rights they feared it would actually undermine what the Federalists regarded as the main protections against tyranny in the document The Limited nature of the national government itself the Constitution did not Envision a national government of General jurisdiction meaning a government that could do whatever it wanted but rather a government of enumerated and delegated powers a government that had authority over only specific areas of American life all other powers were to be beyond the scope of the national government and reserved to the states or to the American people themselves that's why when political necessity forced the Federalists to yield to demands for a Bill of Rights they took care to add two important amendments the ninth and 10th the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people and the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people these amendments reinforce the idea that the national government couldn't just assume Powers it had not been specifically granted by the Constitution unfortunately these Amendments have not styed the expansion of the National Authority the power grab the Federalists feared the national government taking more and more control over more and more areas of American Life took place not immediately but over time and especially beginning in the second half of the 20th century that same time frame has seen a similar concentration of power in the Judiciary especially in the Supreme Court so that now most Americans think of the Supreme Court as the ultimate Arbiter of almost every social and political dispute the founders never envisioned the court in this role how has the court fared in playing it well there have been moments of Glory to be sure such as in the racial desegregation case of brown against the Board of Education in the 1950s but it has also handed down decision after decision from dreads Scott against San in the 1850s which facilitated the expansion of Slavery to row against Wade in the 1970s which legalized abortion throughout the United States in which the justices have plainly overstepped the bounds of their Authority by creating law From the Bench thereby further expanding their own power and that of the national government moreover the Supreme Court has done little to stop the executive and legislative branches of the national government from unconstitutionally overreaching Recently the court found a Way by a bare majority to uphold an obvious case of constitutional overreach by the national government the imposition of a law or individual mandate as it is known requiring every citizen to purchase health insurance coverage as part of President Obama's signature Affordable Care Act the government defended this mandate as a legitimate exercise of its expressly delegated power to regulate commerce among the states the trouble is that the Mandate does not regulate commerce at all rather it forces people into Commerce on pain of a financial penalty but why did the issue get to The Courts at all Congress and the President should have recognized and honored the fact that the constitution simply does not empower the national government to impose a mandate on the people to purchase products whether health insurance or anything else we've drifted a long way from the original vision of the founders the further we've drifted the more powerful the national government has grown and the less free Americans have become Freedom can be taken away but it can also be given away out of sheer ignorance if we Americans we the people want to get some of that freedom back we need to read America's founding documents all the freedom we ever wanted is there I'm Robert George professor of Juris Prudence at Princeton University for Prager University is Israel's policy of building civilian communities in the area known as the West Bank the reason there is no permanent peace between Israel and the Palestinians the answer to that question despite all the Sound and Fury regarding the so-called settlement issue is no the Israeli settlements in the West Bank are not the major barrier to a peace agreement a little historical context will make this clear for two decades before June of 1967 the West Bank including much of Jerusalem was controlled by Jordan during that time a time when Israel did not have a single settlement there were numerous Palestinian Terror attacks against the nation state of the Jewish people in other words Palestinians committed Terror attacks against Israel when there were no settlements and they committed Terror attacks against Israel when there were settlements if Israel were to pull out of every single settlement in the West Bank tomorrow it's unlikely that anything much would change in fact if history is any indicator Israel could be worse off in 2005 Israel abandoned every single Community every house every Farm every structure it had built in the Gaza Strip how did the Palestinians of Gaza react they launched thousands of rockets and numerous other Terror attacks against the nation state of the Jewish people the attacks continue to this very day and every year the range of these Rockets get longer and their payloads more lethal only a very sophisticated Israeli anti-missile defense keeps the country secure can you blame Israel for not wanting to risk a twoof front rocket War but Israel has no right to be in the West Bank at all many say so permit me a law professor at Harvard to say that on the basis of international law this position is incorrect military occupations are clearly permitted under international law following an aggressive attack by a neighboring state Jordan Israel's neighbor to the east attacked Israel in 1967 despite Israel's repeated efforts to keep Jordan out of the Six Day War in defending itself against Jordan Israel captured the West Bank in the eastern part of Jerusalem under international law until a meaningful peace is achieved and all terrorism against its ceases Israel has every right to retain military control over this area since no peace treaty has been reached and the terrorism continues with new attacks threatened almost daily Israel is under no lead legal obligation to leave given the danger that Israel would be putting itself in if it did leave the West Bank exposing its major cities and International Airport to Rocket attacks it would be irresponsible to do so which is why Israel is still there nevertheless I fully acknowledge that a military occupation is significantly different both as a matter of Law and politics from building civilian settlements even in a territory that is legitimately subject to a military occupation that's why I have long opposed the building of settlements in the West Bank I believe it has caused resentment and has given enemies of Israel an excuse to attack the legitimacy of the occupation in general it is also why I have always supported Israel's efforts to exchange land for peace as it is done on multiple occasions over the last few decades so while the settlements may have contributed to the difficulty of making peace it has not been the major barrier that Israel's enemies claim it to be it is not the reason there has been been no peace agreement between Israel and the Palestinians the reason has always been and Remains the unwillingness of Palestinian leaders and according to Palestinian polls much of the Palestinian population to recognize Israel's right to exist as the nation state of the Jewish people until and unless the Palestinian leadership and the Palestinian people acknowledge that the state of Israel has a right to be free from military assault from terrorism from rocket attacks and from diplomatic Warfare there will be no resolution to the Middle East dispute if these conditions which must be the basis of any two-state solution meaning a nation state for the Jewish people and a Palestinian state are met the occupation will end the settlement issue will be resolved and the blessings of a mutual peace will finally be achieved I'm Alan dershwitz professor of law at Harvard University for Prager University of all the countries that have come come into existence in the last century No country's birth certificate is more legitimate than that of Israel one reason is that many of the men who founded the country Theodore Herzel Zeb jabotinsky David benan manak Bean Yak Shamir were either lawyers or had legal training they were obsessed with making it legal unlike almost every other country lawyers not generals were the midwives of Israel's birth or more accurately rebirth since it had existed as an independent country twice before in history step by legal step Israel moved legally toward nationhood from the bow for declaration in 1917 to the Sano agreement in 1920 to the League of Nations resolution in 1922 to the anglo-american convention on Palestine in 1924 to the partition of land ordained by the United Nations in 1947 into a nation state for the Jewish people and an Arab state yet immediately upon its lawful establishment in 1948 as the nation state of the Jewish People Israel was illegally attacked by all the surrounding Arab states as well as by elements of the local Arab population in defending its right to exist during that war Israel lost 1% of its population including many civilians and Holocaust Survivors it also lost some of the land assigned to it by the United Nations it captured other Land from the aggressors that was originally assigned to the Arab State the end result of that war against Israel was an armis line that prevailed until 1967 when Israel was once again attacked by Jordan during Israel's war with Egypt and Syria between 1948 and 1967 despite the Armistice Arab terrorists continue to infiltrate Israeli borders and to injure and kill Israeli citizens that was part of an official policy by the surrounding governments and by leaders of local Palestinian groups all of it was in violation obvious violation of international law following the establish lishment of Israel a transfer of populations occurred several 100,000 Arabs who fled from Israel during the war of independence were not allowed to return some had chosen to leave assured by their Arab leaders that the fledgling country would not last a week others were forced to leave at that time approximately the same number of Jews were forced to leave Arab countries another violation of international law where they had lived for thousands of years the difference was that Arab country kept the Arabs who left Israel in refugee camps where many of them still live more than half a century after leaving Israel and Israel on the other hand fully integrated all the Jewish refugees from Arab countries into Israeli Society where many of their descendants now serve in the highest positions of Israeli life Israel's establishment as the nation state of the Jewish people by entirely lawful means is quite remarkable for several reasons first there is no country in the world that is as surrounded by hostile enemies as is Israel it's been that way since 1948 yet Israel sought the way of the pen rather than of the sword it has needed the sword to survive but its preference has always been for the pen that is for peaceful negotiations its peace treaty with Egypt in 1978 its peaceful abandonment of Gaza in 2005 and its many attempts to reach a peace agreement with the Palestinians are examples yet despite its entirely lawful Origins Israel is the only country in the world today whose Origins and therefore its very legitimacy have been questioned by the general assembly of the United Nations by numerous member nations and by many organizations that claim the mantle of Human Rights and the rule of law ironically current attacks on Israel's legitimacy have taken the form of lawfare the use of international law as a weapon any Fair tribunal that judged Israel by Universal standards would reject such attacks out of hand but alas International courts like the UN in itself have been packed by those bitterly antagonistic to the nation state of the Jewish people for example the misnamed international court of justice refuses to acknowledge that Israel a country that deals with Terror attacks and the threats of Terror attacks on a regular basis has any special security needs as I've demonstrated this phenomenon questioning the very right of Israel to exist as the nation state of the Jewish people cannot be explained on legal grounds or in any other rational basis for that matter so then how can this worldwide attack on Israel alone be explained in only one way it is pure bigotry and there's a word for this bigotry anti-Semitism if you have a better explanation for why the one country in the world whose right to exist is denied is also the one country that is the nation state of the Jewish people I ask you what is it I'm Alan dtz professor of La at Harvard University for Prager University