In the twilight of the ceaselessly dueling courtroom gods, legacies wobble and crack.
Once, they were unquestioned giants of the legal profession. David Boies, the slayer of Microsoft’s monopoly, the man Al Gore turned to in hopes of salvaging his bid for the presidency. Alan Dershowitz, one of the intellectual bulwarks of the O.J. Simpson defense team, the tactician immortalized on the big screen for reversing the murder conviction of socialite Claus von Bülow.
But now, as they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, the 78-year-old Boies and the 80-year-old Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case. Their link became even tighter and more complicated this past weekend when the disgraced multimillionaire was found dead of an apparent suicide at a federal detention center in New York where he was awaiting trial on new sex trafficking charges. Epstein’s death occurred the day after newly unsealed court documents claimed he had a voracious sexual appetite for underage girls and detailed the alleged methods he and his friends used to recruit them.
The clash between Dershowitz and Boies, and its offshoots, have spawned lawsuits, swarms of stinging court documents, ferocious accusations, angry television appearances, a secretly taped call and more. In this long-running melodrama, Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers, Virginia Roberts Giuffre — who was a teenage locker-room attendant at President Trump’s Mar-a-Lago resort when she met Epstein. Giuffre has alleged that Epstein demanded that she have sex with him repeatedly when she was underage and lent her for sex to his friends, including Dershowitz.
Dershowitz finds himself labeled as an alleged sex abuser in a personal affidavit by Boies, a claim he has volcanically denied. Dershowitz’s effort to counter the accusations has been made all the more nettlesome because his long-ago representation of Epstein has come under greater scrutiny following Epstein’s arrest last month. Dershowitz, an emeritus Harvard University law professor, is also fending off a defamation suit filed by Giuffre, set for key oral arguments next month, in which Boies has become a vital player.
Because Epstein’s death will end his criminal case, the Giuffre defamation action against Dershowitz could be one of the dwindling number of cases that would allow for the full public airing of numerous accusations against Epstein that his alleged victims have long sought.
As the Boies-Dershowitz conflict has dragged on, Boies, his partners and his allies have tarred Dershowitz in personal affidavits related to a bar complaint and a defamation lawsuit for allegedly bedding Giuffre when she was an underage teenager. In court filings, they portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer.
“After extensive consideration of everything Mr. Dershowitz told and showed me, I ultimately concluded that his denials were not credible,” Boies wrote in an affidavit included in Giuffre’s defamation suit against Dershowitz. (Giuffre sued Dershowitz because of numerous statements he made in media interviews, including calling her a “certified, complete, total liar” and saying that “she simply made up the entire story for money.”)
Meanwhile, Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.
“I believe the law firm of Boies Schiller is a RICO,” Dershowitz said in a recent interview at his New York apartment, citing the acronym used for Racketeer Influenced and Corrupt Organizations Act, a law frequently used against the mafia. “I believe they are the law firm of extortion, subornation of perjury and other crimes.”
Boies declined repeated interview requests and did not respond to written questions that specifically referenced the RICO allegation, as well as other assertions made by Dershowitz. Giuffre’s attorneys did not respond to requests for comment.
Named in a court filing
The mudslinging between two of America’s most famous and celebrated attorneys tracks to the wee hours of Jan. 22, 2015, when the men were casual acquaintances and occasional confidants. Dershowitz, a ubiquitous TV presence, awoke early that morning at his New York apartment and headed to Rockefeller Center, where he was scheduled to appear on NBC’s “Today” show to discuss the sex allegations made by Giuffre.
On the way, Dershowitz seethed.
Three weeks earlier, his name had surfaced in a court filing by Giuffre, who was then known only as Jane Doe No. 3, asking to join a lawsuit related to the Epstein case. The suit alleged that Epstein’s victims hadn’t been notified in advance of a non-prosecution agreement with federal prosecutors after the wealthy financier was arrested on suspicion of sex trafficking involving minors.
It wasn’t the substance of the complaint about victim notification that was most important to Dershowitz, though. Instead, he was incensed that the filing asserted that Giuffre had been lent to Britain’s Prince Andrew for sex and to Dershowitz, whom she alleged had sex with her at Epstein’s private island, his Palm Beach estate, his New Mexico ranch, his New York mansion and on his private plane.
Dershowitz and the prince adamantly denied the accusations at the time. Dershowitz and Buckingham Palace, speaking on behalf of Andrew, also issued strongly worded denials last week when the court documents were unsealed.
On “Today” that day in 2015, Dershowitz went nuclear. He accused Giuffre of filing “perjured” court papers and said, “She is categorically lying and making the whole thing up.”
Dershowitz has bolstered his contention that Giuffre cannot be trusted by referencing claims that she has made about having dinner with former president Bill Clinton on Epstein’s island. Dershowitz took it upon himself to investigate the Clinton allegation and to clear his name. He hired a security firm headed by former FBI director Louis Freeh to investigate.
Through Freedom of Information Act requests, the firm determined that Clinton could not have been on Epstein’s island during the time period when Giuffre said she had dinner with him. A summary of findings prepared by the Freeh firm states that the FOIA records “completely undermine [Giuffre’s] credibility.” The firm also said it found no evidence to support the sex allegations against Dershowitz.
Last week, Dershowitz also gained what might be a potent weapon in his quest to impeach Giuffre’s credibility in the newly unsealed court documents. The papers relate to a defamation suit filed against Ghislaine Maxwell, whom Giuffre and others have accused of procuring girls and women for Epstein. The suit was settled for an undisclosed amount in 2017. The records were unsealed at the request of several news organizations, including The Washington Post and the Miami Herald, which published a series of articles about Epstein’s alleged abuses prior to his recent arrest.
Among the documents was a 2011 email sent to Giuffre from Sharon Churcher, a journalist for the British tabloid the Mail on Sunday, that Dershowitz contends is proof that Giuffre was being encouraged to lie about him. The email appears to reference a book proposal Giuffre was compiling.
“Don’t forget Alan Dershowitz . . . JE’s buddy and lawyer,” Churcher writes to Giuffre in an apparent reference to Jeffrey Epstein’s initials. “Good name for your pitch as he repped Claus von Bulow and a movie was made about that case . . . title was Reversal of Fortune. We all suspect Alan is a pedo and tho no proof of that, you probably met him when he was hanging put [sic] w JE.”
Churcher did not respond to a request for an interview.
The famed law professor’s campaign to refute Giuffre’s allegations created a pile of legal trouble because of the words he chose. While defending himself, he also cast aspersions on the character and ethics of the two attorneys representing Giuffre in her attempt to join the lawsuit related to notifying Epstein’s victims.
Dershowitz had said in a television interview that the attorneys — Florida-based Brad Edwards and former federal judge Paul Cassell — were “prepared to lie, cheat and steal.” He had described Cassell as “essentially a crook.” (Cassell and Edwards did not respond to interview requests.)
Cassell and Edwards responded in the way lawyers might be expected to — they sued him for defamation.
Despite the lawsuit, Dershowitz continued to vociferously and publicly defend himself.
In Florida, an attorney in Boies’s firm named Carlos Sires was watching “Today” when Dershowitz appeared. He reached out via email to Dershowitz offering to help him with the dispute and later discussed the possibility of representing him. (Dershowitz has said he considered Sires his attorney at that point, a contention that Sires has disputed in an affidavit attached to a bar complaint Dershowitz later filed against Boies.)
Sires also said in the affidavit that he was not aware at the time of his initial contact with Dershowitz that other lawyers in his firm were representing Giuffre in a separate case. That digital note set in motion a cascading series of events that have put Dershowitz and Boies at odds for the past four years. (Sires could not be reached for comment.)
The dispute centered on Dershowitz’s claim that Sires reviewed confidential material about the defamation case filed against Dershowitz by Edwards and Cassell. About a week later, Boies determined that there was a conflict that Sires had not known about and the firm notified Dershowitz that it couldn’t represent him.
Dershowitz was angry, concluding that the firm sneakily got inside information about his defense in order to gain an advantage, according to interviews with Dershowitz. Boies has dismissed that suggestion, saying in a personal affidavit connected to the Florida bar complaint Dershowitz later filed against him that material Sires reviewed was nothing more than a recap of Dershowitz’s public statements.
What Dershowitz didn’t know at the time was that Boies, the man who would become his nemesis, had been in contact with Giuffre for nearly six months. Boies was contacted in June 2014 by Stanley Pottinger, an attorney who was the former head of the Justice Department’s civil rights division, about representing Giuffre, according to an affidavit by Boies included in Giuffre’s ongoing case against Dershowitz.
Although Giuffre had two attorneys, Pottinger thought she needed more legal help because he expected her to “become the target of vicious attacks” by people she accused of sex abuse, according to an affidavit Pottinger wrote that is included in Giuffre’s ongoing case against Dershowitz.
The next month, Boies met with Giuffre in New York, according to his affidavit, and he asked Pottinger to vet Giuffre’s claims. Satisfied that she was credible, Boies agreed that his firm would take her on as a client, although he says the firm did no work related to her until November. Boies said in the affidavit that partner Sigrid McCawley represented Giuffre while she was a witness in the defamation suit filed in January 2015 by Edwards and Cassell.
Eventually, Dershowitz came to allege even darker motives for Sires’s outreach after the “Today” interview. He developed a complicated extortion theory involving Boies after being contacted in April 2015 by one of Giuffre’s friends — a woman named Rebecca Boylan — who’d seen coverage of the scandal and agreed to speak with him in a tape-recorded conversation, Dershowitz said in an interview. He played the tape for The Post, but did not let the news organization have a copy,
Boylan, according to Dershowitz’s account of the conversation, told him that Giuffre had never mentioned having sex with him. She added that Giuffre had told her she had been urged by her lawyers to name Dershowitz.
“She felt pressure to do it, she didn’t want to go after you personally,” Boylan said, according to Dershowitz’s tape of the conversation. “She felt pressured by her lawyers.”
But that wasn’t all. Boylan also said that naming Dershowitz was a step in a plan to win an enormous settlement from the founder and CEO of the parent company of Victoria’s Secret, the lingerie giant. Dershowitz knew Boylan was referring to Leslie Wexner, a billionaire who was a close friend and mentor to Epstein.
“They wanted to sue him for at least half his money,” Boylan said, according to Dershowitz’s tape .
Dershowitz also claims that Boies and his firm were attempting to send a message to Wexner, whom Giuffre had not publicly accused at that point of having sex with her at the behest of Epstein, although she later would. The message, according to Dershowitz, was that Wexner would be publicly shamed, in the same way that Dershowitz had been, if he didn’t pay up.
Boies wrote in his response to Dershowitz’s Florida bar complaint that neither he nor McCawley had been involved in the decision to name Dershowitz and has denied attempting to extort Wexner. He also wrote that “no settlement demand was ever made, or even discussed with, Mr. Wexner or his counsel.”
(Wexner declined to be interviewed, and Boylan could not be reached for comment.)
A secretly taped call
Still, Dershowitz was eager to persuade Boies that he was innocent, according to interviews with Dershowitz and accounts of their interactions included in an affidavit by Boies. The two men began a series of meetings between May and July 2015, according to Boies’s affidavit.
Among the items Dershowitz showed Boies, according to Dershowitz, were detailed calendars that he cited as definitive proof that he could not have been at Epstein’s island, ranch, Palm Beach mansion or on his private plane during the time period when Giuffre said he was having sex with her. (Dershowitz keeps a massive spreadsheet handy at his New York apartment to show the reporters he’s courted to tell his version of events.)
The two lawyers have different memories of those meetings. Dershowitz has asserted in interviews with The Post that Boies told him during those meetings that Giuffre must have mistaken him for someone else. Boies wrote in his affidavit that Dershowitz’s account “is not true.” Among the data points Boies cites in his affidavit is a lie-detector test that he says Giuffre passed. (Results of such tests are seldom deemed admissible in court.)
Later in 2015, Dershowitz took the unusual step of secretly taping a call with Boies. Dershowitz played the tape, which is muffled and cuts off at points, for The Post, but did not allow the newspaper to have a copy. On the tape, Boies appears to say he and one of his partners are convinced Giuffre’s claim of having sex with Dershowitz is “wrong.” Boies said in his affidavit that he never told Dershowitz that Giuffre wasn’t telling the truth.
In Giuffre’s defamation case against Dershowitz, two of Boies’s partners assert that the taping was “a violation of the canons of ethics.” They also say Boies was merely discussing a hypothetical and that he believed all along that Giuffre was telling the truth. Dershowitz has said the taping was entirely legal because at the time he was in New York, which only requires the consent of one of the parties on the call for a legal taping.
Armed with what he thought was a plausible extortion theory and with his taped evidence, Dershowitz went to war.
In 2017, he filed the bar complaint against Boies in Florida. The document lays out his allegations about the Boies firm’s handling of the defamation case filed against him by Edwards and Cassell, and then goes on to read almost like a lengthy Wikipedia article about controversies during what he describes as the Boies firm’s “long and sordid history.” He cites a 2012 case in which a New York judge chided Boies’s firm, saying “a clearer conflict of interest cannot be imagined. A first-year law student on day one of an ethics course should be able to spot it.”
Dershowitz also summarized the controversy over a potential conflict spurred by Boies serving on the board of directors and as a lawyer for Theranos, the scandal-plagued blood-testing start-up.
The bar complaint, which was obtained by The Post, surfaced shortly after Boies was enmeshed in a major conflict-of-interest scandal in 2017 involving the famed movie producer Harvey Weinstein, who was being accused in a series of sexual abuse incidents. At the time, Boies was getting a torrent of bad publicity because of the revelation in media reports that he was representing the New York Times in legal matters without telling the newspaper that he was simultaneously representing Weinstein, who was being investigated by Times reporters. Boies also secretly oversaw an effort to undermine the paper’s reporting by hiring a firm that employed former agents of the Israeli intelligence service, Mossad, to collect information on Times reporters and Weinstein’s alleged victims.
The Times cut ties with Boies and issued a blistering statement.
“We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.” It added: “We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible.”
Boies had signed the contract with the spy group, but later tried to distance himself from its work.
“I regret having done this,” Boies said in an email sent to his staff that was published by New York magazine. “It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else. . . . That is not who I am.”
Dershowitz seized on the Times imbroglio to press his argument in public that Boies is an unethical lawyer.
“No lawyer in modern American history has ever been more credibly accused of more ethical violations than David Boies and his law firm,” Dershowitz said in a recent interview with The Post.
In 2017, Boies’s firm issued a statement in response to Dershowitz’s conflict-of-interest allegations, saying: “Over the years, there have been some bar complaints filed against Mr. Boies. Each of them was filed by an unhappy adverse party; none was filed by a client. No disciplinary action was ever taken.”
The dispute goes on
The feud between Dershowitz and Boies is well known in legal circles, where both men have earned stellar reputations over the years.
“People can have grudges and sometimes things get heated between lawyers, but based on headlines about two people I’ve worked with, who are talented, smart and committed to their clients, we just don’t have enough information to make a judgment,” said Lawrence Fox, a Yale Law professor and former chairman of the American Bar Association Standing Committee on Ethics and Professional Responsibility who has worked alongside both men.
As the months have passed, one by one, Dershowitz’s broadsides against Boies and his allies have cratered. He settled the defamation case filed by Cassell and Edwards, Giuffre’s attorneys, before Boies and his partners came on the scene.
Earlier this year, the Florida bar complaint against Boies got tossed out.
But their dispute continues, with the next field of battle in New York, where Giuffre’s defamation case against Dershowitz — with a potential star plaintiff’s witness named David Boies — trudges on. Boies is a potential witness because he could be called to testify about his interactions with Dershowitz and about Dershowitz’s extortion theory. That means that Dershowitz, the 80-year-old, and Boies, the 78-year-old, will tangle again as the elder party in the grudge match tries to get the younger one’s law firm barred from representing Giuffre in the defamation suit against Dershowitz.
And so it has gone for years, an endless cycle of enmity playing out on a continuous loop. This clash of the titans is so persistent and many-tentacled that one could imagine it outliving the legal giants it has consumed.
In a Democratic debate last week, Vermont Sen. Bernie Sanders argued that to deal with the migration crisis at the U.S. southern border, “we’ve got to ask ourselves, ‘Why are people walking 2,000 miles to a strange country where they don’t know the language?’ ”
It’s a sad day when a septuagenarian U.S. senator can’t grasp the reason for Central American poverty.
The migrants were born in countries that lack rule of law, respect for private property, and economic freedom. The nations of the Northern Triangle—El Salvador, Guatemala and Honduras—instead have pursued Sanders-style social justice as a path to prosperity. It’s hardly a surprise their citizens enjoy neither.
Environmental mobs close down mining projects and chase away investors. Activists block roads to shake down the government; they invade farms and steal electricity with impunity. Well aware that upward economic mobility is nearly impossible, Central Americans vote with their feet.
The prospects for change aren’t promising. Ideas matter, and for generations the global left—mostly from Europe and the U.S.—has treated the region as its sandbox, where it goes to play with policies that don’t sell at home. Central America is macerated in the collectivist bunk of this elite, who promise utopia and deliver special-interest mercantilism and corrupt statism.
This is one reason Guatemalans were freaked out Friday when their Prensa Libre newspaper reported that Speaker Nancy Pelosi would lead a congressional delegation to Guatemala City this week “to meet with civil society, businessmen and other sectors.” Her office declined to comment for security reasons. But if she is going, it is worth asking why she would visit in the week before the Aug. 11 presidential runoff election.
The election is an important milestone in Guatemalan politics, and the deciding factor may be urban turnout. Despite a solid lead in a recent poll, center-right Vamos Party candidate Alejandro Giammattei isn’t a shoo-in. If voters in the big cities stay home, social democrat Sandra Torres of the National Unity of Hope Party could prevail.
Ms. Torres was first lady during the presidency of Alvaro Colom (2008-12) but divorced him in 2011 in an attempt to circumvent a constitutional prohibition on consecutively following a spouse into the executive office. The high court didn’t buy it, but she did make an unsuccessful run in 2015.
Ms. Torres is a left-wing populist. Her party, which is known as UNE, dominates rural and small-town Guatemala. Pocketbook issues are a priority in these parts and machine politics are the name of the game. By promising things like child and elder subsidies and tin roofs, UNE maintains a solid base.
Mr. Giammattei is by no means the first choice of Guatemalan conservatives. That designation goes to Zury Ríos, daughter of the late Gen. Efraín Ríos Montt, who held the presidency for less than 17 months after a 1982 coup. Ms. Ríos is a popular politician and made her own run for the presidency in 2015. This time around, the constitutional court blocked her candidacy because of her father’s role as a military dictator.
Yet Mr. Giammattei ran the prison system and pledges a tough-on-crime agenda. He says he will bring investment to the country. With UNE controlling Congress and much of the judicial branch, voters may prefer an executive check on social-democrat power.
Both candidates oppose the immigration-cooperation framework agreement that President Jimmy Morales signed with President Trump in July. The accord is short on detail, but as protocols are added, the expectation is that it will oblige Salvadorans and Hondurans who try to move north to the U.S. to apply for asylum in Guatemala. Speculation was running wild last week that Mrs. Pelosi’s visit was partly aimed at derailing the agreement for domestic American political reasons.
Both candidates promise to fight corruption, but voter apathy implies a high degree of public skepticism. The United Nations International Commission Against Impunity in Guatemala—a k a CICIG—was supposed to bring about the rule of law. But somewhere along the way the left realized it could use CICIG, accountable to no one, to grab power without the fuss of elections. A judicial reign of terror, designed to silence opposition, ended only in January, when President Morales kicked CICIG out of the country.
The media ran news stories for nearly a decade that read like CICIG press releases. But in March the Guatemalan attorney general petitioned the court to arrest CICIG’s closet Guatemalan collaborator, former Attorney General Thelma Aldana, on corruption charges. As the country’s top prosecutor, she ought to have protected civil liberties. Instead she permitted the commission’s abuses while it refused calls to investigate her. Guatemalans are still trying to recover confidence in their justice system.
Ms. Aldana, who had presidential aspirations, says she is being politically persecuted. But she has fled the country rather than face trial. If voters are uninspired by their political class, and afraid of help from Democrats, who could blame them?
Looking for help on immigration, the Trump administration is silent in the face of Guatemala’s effort to seal its dirty war archive.
With the quiet acquiescence of the Trump administration, the Guatemalan government is threatening to bar access to a collection of national archives that have been at the core of various attempts to prosecute Guatemalan politicians and officers responsible for some of Latin America’s most heinous atrocities.
The move to suppress the archives is part of a larger campaign by Guatemalan President Jimmy Morales, who faces allegations of receiving illicit campaign funds, to undercut the rule of law through the purge of judges, police officials, and archivists who have been at the forefront of Guatemala’s effort to investigate corruption, narcotrafficking, and war crimes, according to foreign diplomats and independent experts.
But senior U.S. officials in Washington and Guatemala City have rebuffed appeals from working-level staffers and foreign diplomats to publicly challenge Guatemala’s action. And U.S. President Donald Trump’s administration, which is seeking Guatemala’s help in stemming the flow of asylum-seekers and refugees into the United States, has remained largely silent over these developments.
One U.S. official said that America’s reluctance to confront Guatemala is part of a crude unwritten bargain between Morales’s government and the Trump administration: “They promise not to let brown people into the country, and we let them get away with everything else,” the official said.
The “assault on the police archive [is part of a] broader attack against human rights, justice, and anti-corruption efforts,” said Kate Doyle, a researcher at the National Security Archive and an expert on the Guatemalan archives. “The U.S. is saying nothing. The U.S. Embassy has been incredibly absent on these issues. They are not doing anything.”
In the latest sign of U.S. reluctance to challenge Guatemala on human rights, Kimberly Breier, the U.S. assistant secretary of state for Western Hemisphere affairs, blocked the release of a public statement in early June that would have urged Guatemala to back down on its effort to restrict access to the archives.
“These archives are an essential source of information to clarify and understand critical historical truths from Guatemala’s history,” reads the statement obtained by Foreign Policy, which was suppressed in June. “Access to the archives by historians, victims of abuse recorded in these archives and their families, the public, and the international community, has furthered Guatemala’s progress towards accountability, justice, truth and reconciliation.”
Foreign Policy sought a response from the Trump administration last Wednesday. The State Department did not respond until nearly an hour and half after this article was published Tuesday.
“The United States strongly supports continued public access to the Historical Archive of the National Police,” according to a statement from a spokesperson from the State Department’s Bureau of Western Hemispheric Affairs. The Tuesday statement included the two sentence cited by Foreign Policy in the suppressed statement.
The initial decision to block the statement—which had been approved by the State Department press office, the U.S. Embassy in Guatemala, and several other key bureaus—came as the United States was engaged in sensitive negotiations on a so-called safe third country agreement, which would commit Guatemala to process political asylum claims from foreigners, particularly from El Salvador and Honduras, who cross its border in transit to the United States. “My understanding is Kim Breier killed this because she didn’t want to do anything that would piss off the Guatemalans,” said one congressional aide.
During the past two decades, the United States has invested in efforts to strengthen the rule of law in Guatemala,
- funding a United Nations commission that investigates corruption and illicit activities by armed groups,
- strengthening the judiciary, and
- training and equipping police units with expertise in counternarcotics and corruption.
- The United States has spent millions of dollars over the years to preserve the police archives, including through the provision of document scanners and the funding of a digitized archive maintained by scholars at the University of Texas at Austin.
Guatemala’s bloody 36-year-long civil war resulted in the deaths of about 200,000 people, mostly at the hands of the Guatemalan security forces. A 1996 U.N.-brokered peace agreement paved the way for the return of exiled rebels, established a new national police force, and pried open the door to the prospect of public reckoning for crimes committed during the war. The Guatemalan military and police resisted, denying that they had preserved detailed records of their activities during the conflict. But in 2005, more than 80 million documents and records, dating from 1882 to 1997, were discovered in seven rat-infested rooms at an unused hospital building in Guatemala City owned by Guatemala’s now-defunct National Police.
Since then, the Guatemalan National Police Historical Archive has helped convict more than 30 military officers, soldiers and paramilitaries, including a former presidential chief of staff, Manuel Callejas y Callejas, convicted of crimes against humanity, and Guatemala’s late dictator, Gen. Rios Montt—who was found guilty in 2013 of genocide for overseeing mass atrocities in the early 1980s — though his conviction was later overturned by Guatemala’s constitutional court.
The archive has proved a valuable resource for U.S. law enforcement. The Department of Justice and Immigration and Customs Enforcement have used the archive to identify Guatemalan rights abusers living in the United States.
But the management of the archives has long infuriated some of those in Guatemala’s most powerful business and security sectors, who believed that it has been used as a tool of the left to gain revenge against their former enemies. They have cited the role of the archive’s former director, Gustavo Meoño Brenner, a former guerrilla leader who has recruited staff from the country’s left wing to run the archives. In August 2018, the U.N. Development Program, which has helped administer the archive program since 2008, abruptly dismissed Meoño Brenner. He has since fled the country, following death threats.
The move to restrict archive access is only one element of a wider effort to defang justice institutions in Guatemala. In September, a landmark U.N. International Commission Against Impunity in Guatemala—known by its Spanish acronym, CICIG—whose corruption investigations landed a Guatemalan president and vice president in jail will shutter its office.
The demise of the commission, which had also exposed alleged illegal campaign contributions in Morales’s 2015 presidential campaign, came after a two-year-long effort by the president and his allies, including sympathetic Republican lawmakers and Trump administration officials in Washington, to undermine it. Pro-military lawmakers in the Guatemalan Congress, meanwhile, have been pressing to pass an amnesty law that would result in the release of dozens of military officers and death squad leaders from jail. That effort has been stalled by Guatemala’s Constitutional Court.
The effort to suppress the archives is being spearheaded by Guatemalan Interior Minister Enrique Degenhart, a popular figure in Washington, who has represented Guatemala in the safe third country negotiations.
In a May 27 press conference, Degenhart announced that his office and Guatemala’s National Civil Police would seek greater control of the archive. He also threatened to limit access to the archives by foreign institutions, an apparent reference to the University of Texas at Austin, which has assembled a massive digitized version of a large portion of the police archive. “You can’t allow foreign institutions to have the complete archives,” Degenhart told reporters.
In response, the U.N. and other foreign envoys invited the U.S. ambassador to Guatemala, Luis Arreaga, to join ambassadors from several other countries, including Canada, Germany, Switzerland, Sweden, and the United Kingdom, on a visit to the archive to voice opposition to granting police greater control over the archives. Arreaga declined. The spokesperson from the State Department Bureau of Western Hemispheric Affairs declined to comment on whether Arreaga declined the invitation.
In Washington, State Department officials sought support within the administration for a public statement that would place the United States squarely on the side of those seeking to preserve broad public access to the archives.
“The message [Guatemalan authorities] are getting is we don’t care what you do as long as you do everything in your power to prevent” foreigners from reaching the U.S. border, said Rep. Norma Torres, a California Democrat who was born in Guatemala. If that requires “supporting a corrupt government, that is what [the Trump administration] is going to do.”
Public messaging and statements from U.S. envoys and the State Department can have an outsized political impact in Central America, former diplomats say. “It’s astonishing how important the U.S. voice is in terms of journalists, human rights defenders, civil society … in this region,” said Roberta Jacobson, a former U.S. ambassador to Mexico and assistant secretary of state for Western Hemisphere affairs. “There are clearly things that governments would do, actions it would take, but for the U.S. watching and speaking out,” she said.
The lack of response, according to diplomats, emboldened Guatemala to ratchet up its campaign against the archives.
In early July, the Guatemalan Ministry of Culture and Sports informed the U.N. Development Program, which administers the archive budget on behalf of foreign donors, that it would take over full management of the archives, raising questions about its financial viability. The U.N., which pays staff salaries, was forced to lay off the archives researchers and archivists.
On July 10, Guatemala fired its chief national archivist, Anna Carla Ericastilla, on the grounds that she provided access to foreign institutions, including the University of Texas, and improperly raised funds from donors to pay salaries to archivists.
Degenhart, meanwhile, has overseen a massive purge of Guatemala’s reformed police force after being named interior minister in January 2018. The following month, he fired the director of the National Civil Police, Nery Ramos, along with three other top cops. All told, Degenhart fired some 25 ranking officers and more than 100 agents, including 20 of the 45 police agents assigned to work with the U.N. anti-corruption office.
Guatemalans “have observed a systematic process of dismantling the National Civil Police, ordered by the interior minister himself, who seems determined to destroy 20 years of progress,” according to an August 2018 study by the Forum of Civil Society Organizations Specializing in Security, or FOSS.
The fate of the archive has become inextricably linked to the White House immigration policy.
The threat to curtail access to the archives came on the same day that Degenhart had signed an agreement with Kevin McAleenan, the acting U.S. secretary of homeland security, for the deployment of 89 agents from U.S. Immigration and Customs Enforcement and Customs and Border Protection in Guatemala to help stem the flow of refugees through the country. It also coincided with the Trump administration’s negotiation of a safe third party agreement with Degenhart.
Trump in March ordered all U.S. aid to Guatemala, El Salvador, and Honduras to be cut until they drastically reduced the number of migrants traveling north through Mexico to attempt to enter the United States. Critics, including both Democratic and Republican lawmakers, said the move would only exacerbate the migration crisis, as U.S. assistance helped address root causes of instability that caused people to flee north.
In June, the State Department announced it would release $432 million of the $615 million in aid to Central America, but it warned that new funding would not be released until the Northern Triangle governments took more steps to address migration.
Last week, the Trump administration announced that it had reached agreement on the safe third country pact, which would commit Guatemala to processing political asylum claims from migrants who cross its border in transit to the United States. The U.S. has yet to publish a copy of the pact, leading to speculation about what the deal actually entails.
Still, the move has raised concern about the constitutionality of the agreement. Guatemala’s constitutional court has already asserted that such an agreement would require approval by the Guatemalan Congress. Democratic lawmakers and other activists have criticized the move and vowed to fight it in courts. Democratic Rep. Eliot Engel, the chairman of the House Foreign Affairs Committee, said it is “cruel and immoral. It is also illegal.”
“Simply put, Guatemala is not a safe country for refugees and asylum seekers, as the law requires,” Engel said in a statement released on July 26, after the Trump administration and Guatemalan government signed the agreement.
How not to repeat the mistakes of 2011.
In a couple of days I’m going to be participating in an Economic Policy Institute conference on “excessive wealth disorder” — the problems and dangers created by extreme concentration of income and wealth at the top. I’ve been asked to give a short talk at the beginning of the conference, focusing on the political and policy distortions high inequality creates, and I’ve been trying to put my thoughts in order. So I thought I might as well write up those thoughts for broader dissemination.
While popular discourse has concentrated on the “1 percent,” what’s really at issue here is the role of the 0.1 percent, or maybe the 0.01 percent — the truly wealthy, not the “$400,000 a year working Wall Street stiff” memorably ridiculed in the movie Wall Street. This is a really tiny group of people, but one that exerts huge influence over policy.
Where does this influence come from? People often talk about campaign contributions, but those are only one channel. In fact, I’d identify at least four ways in which the financial resources of the 0.1 percent distort policy priorities:
1. Raw corruption. We like to imagine that simple bribery of politicians isn’t an important factor in America, but it’s almost surely a much bigger deal than we like to think.
2. Soft corruption. What I mean by this are the various ways short of direct bribery politicians, government officials, and people with policy influence of any kind stand to gain financially by promoting policies that serve the interests or prejudices of the wealthy. This includes the revolving door between public service and private-sector employment, think-tank fellowships, fees on the lecture circuit, and so on.
3. Campaign contributions. Yes, these matter.
4. Defining the agenda: Through a variety of channels — media ownership, think tanks, and the simple tendency to assume that being rich also means being wise — the 0.1 percent has an extraordinary ability to set the agenda for policy discussion, in ways that can be sharply at odds with both a reasonable assessment of priorities and public opinion more generally.
Of these, I want to focus on item (4), not because it’s necessarily the most important — as I said, I suspect that raw corruption is a bigger deal than most of us can imagine — but because it’s something I think I know about. In particular, I want to focus on a particular example that for me and others was a kind of radicalizing moment, a demonstration that extreme wealth really has degraded the ability of our political system to deal with real problems.
The example I have in mind was the extraordinary shift in conventional wisdom and policy priorities that took place in 2010-2011, away from placing priority on reducing the huge suffering still taking place in the aftermath of the 2008 financial crisis, and toward action to avert the supposed risk of a debt crisis. This episode is receding into the past, but it was extraordinary and shocking at the time, and could all too easily be a precursor to politics in the near future.
Let’s talk first about the underlying economic circumstances. At the beginning of 2011, the U.S. unemployment rate was still 9 percent, and long-term unemployment in particular was at extraordinary levels, with more than 6 million Americans having been out of work for 6 months or more. It was an ugly economic situation, but its causes were no mystery. The bursting of the housing bubble, and the subsequent attempts of households to reduce their debt, had let to a severe shortfall of aggregate demand. Despite very low interest rates by historical standards, businesses weren’t willing to invest enough to take up the slack created by this household pullback.
Textbook economics offered very clear advice about what to do under these circumstances. This was exactly the kind of situation in which deficit spending helps the economy, by supplying the demand the private sector wasn’t. Unfortunately, the support provided by the American Recovery and Reinvestment Act — the Obama stimulus, which was inadequate but had at least cushioned the effects of the slump — peaked in mid-2010 and was in the process of falling off sharply. So the obvious, Economics 101 move would have been to implement another significant round of stimulus. After all, the federal government was still able to borrow long-term at near-zero real interest rates.
Somehow, however, over the course of 2010 a consensus emerged in the political and media worlds that in the face of 9 percent unemployment the two most important issues were … deficit reduction and “entitlement reform,” i.e. cuts in Social Security and Medicare. And I do mean consensus. As Ezra Klein noted, “the rules of reportorial neutrality don’t apply when it comes to the deficit.” He cited, for example, Mike Allen asking Alan Simpson and Erskine Bowles “whether they believed Obama would do ‘the right thing’ on entitlements — with ‘the right thing’ clearly meaning ‘cut entitlements.’”
So where did this consensus come from? To be fair, the general public has never bought into Keynesian economics; as far as I know, most voters, if asked, will always say that the budget deficit should be reduced. In November 1936, just after FDR’s reelection, Gallup asked voters whether the new administration should balance the budget; 65 percent said yes, only 28 percent no.
But voters tend to place a relatively low priority on deficits as compared with jobs and the economy. And they overwhelmingly favor spending more on health care and Social Security.
The rich, however, are different from you and me. In 2011 the political scientists Benjamin Page, Larry Bartels, and Jason Seawright managed to survey a group of wealthy individuals in the Chicago area. They found striking differences between this group’s policy priorities and those of the public at large. Budget deficits topped the list of problems they considered “very important,” with a third considering them the “most important” problem. While the respondents also expressed concern about unemployment and education, “they ranked a distant second and third among the concerns of wealthy Americans.”
And when it came to entitlements, the policy preferences of the wealthy were clearly at odds with those of the general public. By large margins, voters at large wanted to expand spending on health care and Social Security. By almost equally large margins, the wealthy wanted to reduce spending on those same programs.
So what was the origin of the conventional-wisdom consensus that emerged in 2010-2011 — a consensus so overwhelming that leading journalists abandoned the conventions of reportorial neutrality, and described austerity policies as the self-evident “right thing” for politicians to be doing? What happened, essentially, was that the political and media establishment internalized the preferences of the extremely wealthy.
Now, 2011 was an especially dramatic example of how this happens, but it wasn’t unique. In their recent book “Billionaires and Stealth Politics,” Page, Seawright, and Matthew Lacombe point out the enduring effects of plutocratic political influence on the Social Security debate: “Despite the strong support among most Americans for protecting and expanding Social Security benefits, for example, the intense, decades-long campaign to cut or privatize Social Security that was led by billionaire Pete Peterson and his wealthy allies appears to have played a part in thwarting any possibility of expanding Social Security benefits. Instead, the United States has repeatedly come close (even under Democratic Presidents Clinton and Obama) to actually cutting benefits as part of a bipartisan ‘grand bargain’ concerning the federal budget.”
And here’s the thing: While we don’t want to romanticize the wisdom of the common man, there’s absolutely no reason to believe that the policy preferences of the wealthy are based on any superior understanding of how the world works. On the contrary, the wealthy were obsessed with debt and uninterested in mass unemployment at a time when deficits weren’t a problem — were, indeed, part of the solution — while unemployment was.
And the widespread belief among the wealthy that we should raise the retirement age is based, literally, on failure to understand how the other half lives (or, actually, doesn’t). Yes, life expectancy at age 65 has gone up, but overwhelmingly for the upper part of the income distribution. Less affluent Americans, who are precisely the people who depend most on Social Security, have seen little rise in life expectancy, so there is no justification for forcing them to work longer.
Where do the preferences of the wealthy come from? You don’t have to be a vulgar Marxist to recognize a strong element of class interest. The push for austerity was clearly linked to a desire to shrink the tax-and-transfer state, which in all advanced countries, even America, is a significant force for redistribution away from the wealthy toward citizens with lower incomes.
You can see the true goals of austerity a couple of ways. First, by comparison with other advanced countries the U.S. has low taxes and low social spending, yet almost all the energy of self-proclaimed deficit hawks was expended on demands for reduced spending rather than increased taxes. Second, it’s striking how much less deficit hysteria we’re hearing now than we did seven years ago. The full-employment budget deficit now is about as large, as a share of GDP, as it was in early 2012, when unemployment was still above 8 percent. But this deficit, although far less justified by macroeconomic considerations, was created by tax cuts — and somehow the deficit hawks are fairly quiet.
No doubt many wealthy backers of tax cuts for themselves and benefit cuts for others manage to convince themselves that this is in everyone’s interest. People are in general good at that sort of self-delusion. The fact remains that the wealthy, on average, push for policies that benefit themselves even when they often hurt the economy as a whole. And the sheer wealth of the wealthy is what empowers them to get a lot of what they want.
So what does this imply going forward? First, in the near term, both during the 2020 election and after, it’s going to be really important to ride herd on both centrist politicians and the media, and not let them pull another 2011, treating the policy preferences of the 0.1 percent as the Right Thing as opposed to, well, what a certain small class of people want. There’s a fairly long list of things progressives have recently advocated that the usual suspects will try to convince everyone are crazy ideas nobody serious would support, e.g.
A 70 percent top tax rate
A wealth tax on very large fortunes
Universal child care
Deficit-financed spending on infrastructure
You don’t have to support any or all of these policy ideas to recognize that they are anything but crazy. They are, in fact, backed by research from some of the world’s leading economic experts. Any journalist or centrist politician who treats them as self-evidently irresponsible is doing a 2011, internalizing the prejudices of the wealthy and treating them as if they were facts.
But while vigilance can mitigate the extent to which the wealthy get to define the policy agenda, in the end big money will find a way — unless there’s less big money to begin with. So reducing the extreme concentration of income and wealth isn’t just a desirable thing on social and economic grounds. It’s also a necessary step toward a healthier political system.