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.
Elliott Abrams was once an innocent child. And then he decided to spend the rest of his life covering up brutal atrocities and defending right-wing dictatorships.
Elliott Abrams once said the animating force behind his and Ronald Reagan’s foreign policy was that the world is “an exceedingly dangerous place.” And this is true, largely because men like Elliott Abrams exist in it.Last month, Abrams was tapped by Trump to serve as his special envoy to Venezuela, to essentially help steer the Trump administration’s slow-burn effort to topple that country’s government — or as Mike Pompeo put it, “restore democracy” in the country.
It should go without saying that the idea the Trump administration is pursuing regime change in Venezuela for the sake of democracy and human rights is as laughable as calling Jamal Khashoggi’s murder a surprise party gone wrong. But in case you need to explain this to politically confused friends and relatives, here are eight good reasons why the appointment of Abrams, in particular, makes a mockery of any such high-minded rhetoric.
1. He was knee-deep in human rights atrocities
Let’s start with the most obvious point, which is that Abrams’ chief claim to fame is his role in Ronald Reagan’s blood-soaked foreign policy in Central America in the 1980s, for which he earned the nickname, “contra commander-in-chief.” The contras were the brutal right-wing paramilitary groups in Nicaragua who terrorized civilians throughout the decade, cutting a swath of torture, rape, and murder aimed at everyone from the elderly to children. Their methods were similar to those of right-wing paramilitaries in the other countries of the region, including El Salvador and Guatemala, all of which were supported by the Reagan administration. If you have the stomach to read about them, there’s no shortage of sources that outline their barbarity.
To Abrams, however, they were “freedom fighters,” their work in El Salvador was a “fabulous achievement,” and he mocked critics of Reagan as people forced to “run the risk” of arguing that such groups were “doing something wrong and ought to stop it.” He himself had no illusions about what it is that the contras were doing. “The purpose of our aid is to permit people who are fighting on our side to use more violence,” he said in 1985.
This “micromanagement” at one point also involved Abrams secretly delivering military equipment to the contras under the guise of humanitarian aid. As commentators have noted, this is particularly relevant now, when the Trump administration attacks Maduro for refusing to let humanitarian aid from the US into Venezuela.
2. He covered up brutal acts of terror
Key to Abrams’ role under Reagan was playing down and denying the copious human rights abuses being committed by the forces and governments he and the administration supported.
As Minnesota Rep. Ilhan Omar pointed out in her grilling of Abrams earlier this week, part of the Reagan administration’s “fabulous achievement” in El Salvador was the horrific El Mozote massacre, which took place shortly before Abrams took up his post. In his attempt to convince the Senate to certify that El Salvador’s government was improving its human rights record — a precondition for receiving US aid — Abrams testified that the massacre had been “publicized when the certification comes forward to the committee,” and was “being significantly misused, at the very best, by the guerrillas.” He claimed he had sent military officers to investigate the reports, and that the massacre couldn’t be confirmed.
Another incident was the 1980 assassination of Archbishop Oscar Romero, killed on the orders of Major Roberto D’Aubuisson, one of the administration’s partners in the country. “Anybody who thinks you’re going to find a cable that says that Roberto d’Aubuisson murdered the archbishop is a fool,” said Abrams. In fact, two such cables existed. Abrams would later insist that any criticism of the Reagan administration’s activities in El Salvador were simply “a post-Cold War effort to rewrite history.”
Meanwhile, as Guatemalan dictator Ríos Montt embarked on a campaign of genocide in the country, Abrams said he had “brought considerable progress” on human rights. He defended Reagan’s lifting of a military aid embargo on Montt’s government, claiming the slaughter of civilians was “being reduced step by step” and that it was “progress” that had to be “rewarded and encouraged.”
3. He’s an unrepentant liar
Abrams told Omar that it is “always the position of the United States” to protect human rights, including in Venezuela, and he stressed the US didn’t want to arm anti-Maduro forces. Besides his well-documented record of doing exactly the opposite, Abrams’ words are even less relevant when you consider his history of outright lying.
We’ve already seen how Abrams regularly lied to cover up or play down abuses by the right-wing forces he supported. This practice would ultimately land him in trouble when he misled Congress about the Iran-Contra affair with statements that ranged from outright lies (“we’re not in the fund-raising business”), to lawyerly parsing of the truth (“I said no foreign government was helping the contras, because we had not yet received a dime from Brunei,” he would write later).
Abrams would forever maintain he did nothing wrong, later writing a sanctimonious book that painted himself as the victim of an unjust, vindictive system that had criminalized “political differences.” “This kind of prosecution is something new in America, and it is wrong,” he wrote, before bleating about the “bloodsuckers” and “filthy bastards” who wanted to do him in.
Abrams rained ire upon Lawrence Walsh, the special prosecutor tasked with investigating the Iran-Contra scandal: “You, Walsh, eighty years old, and nothing else to do but stay in this job till the grim reaper gets you. Is this your idea of America?” Abrams insisted the independent counsel law under which Walsh (along with Watergate prosecutor Archibold Cox) served was unconstitutional, despite the fact that the Supreme Court had upheld it 7-1, with even the conservative chief justice Rehnquist affirming (Scalia dissented). It didn’t matter anyway, because the late George H. W. Bush pardoned him.
Abrams managed the trifecta of showing contempt for the truth, the constitution’s separation of powers, and the concept of checks and balances, all in one fell swoop. There’s no reason to believe any of his assurances now.
4. He hates democracy
Abrams has also shown a lifelong contempt for the very thing he’s now meant to be advancing: democracy.
When the Uruguayan military government imprisoned Wilson Ferreira, the country’s most popular politician and a fierce liberal opponent of its rule, Abrams defended the Reagan administration’s meek response, which the New York Times had called “stunning.” Abrams explained that “the transition [to elected government] itself is more important than the immediate situation of any individual politician.” Abrams had earlier insisted there was no evidence the Uruguyan military was stifling political freedom, even as it
- closed newspapers,
- arrested its opposition, and
- continued to ban political leaders, among other things.
Around this same time, Abrams was one of a number of Reagan officials who supported Oliver North’s call to pardon Honduran general Jose Bueso Rosa, despite his having received a relatively lenient sentence. Rosa had been convicted after being caught in Florida plotting to overthrow the Honduran government.
In 2002, Abrams reportedly “gave a nod” to the military coup that attempted, ultimately unsuccessfully, to remove the democratically elected Hugo Chavez from power. The Observer, which broke the story, called Abrams “the crucial figure around the coup.” Abrams has had his eye on toppling Venezuela’s government for some time.
When Hamas defeated Fatah in the 2006 Palestinian election, Abrams, then the point man for George W. Bush’s Middle East policy, helped implement a scheme to nullify the results by fomenting a Palestinian civil war which, they hoped, would remove Hamas from power. When the plan backfired, with Hamas emerging victorious and in full control of Gaza, Abrams accused Hamas of staging a “coup.”
5. His only political principle was anticommunism
Abrams’ disregard for democracy is part and parcel of his general philosophy, which views left-wing governments uniformly as threats to be stamped out.
Abrams, who once told a reporter that he’s “been a counterrevolutionary for a long time,” cut his teeth opposing student protesters at Harvard in the 1960s. He believes the idea that human rights extend past the political and into the economic realm to be “nonsense” and “old Soviet bromides.” As such, he viewed defeating the Soviet Union as the greatest US priority, telling one interviewer that “the greatest threat to human rights is the Soviet Union, not Guatemala or the Philippines.”
In 1984, Abrams quite candidly explained to Policy Review that his human rights policy was one of double standards: fierce opposition to communist rights abusers, and coddling of oppressors friendly to the US.
“Liberalization for purposes of letting out steam always involves line drawing,” he said. “How much steam should you let out? At what point do you risk anarchy and destabilizing the regime?” He went on to explain that “the line drawn varies from country to country,” and that “even a highly imperfect regime may well give a much better prospect of democratization than would the Communist regime that might follow.”
In other words, no matter how brutal or outright fascist a government, it was by default preferable to a communist one, a philosophy he applied in obvious ways to his work in the Americas. It was also evident in his treatment of Cuba, whose prisons he denounced in 1984 as “barbaric” and whose leader, Fidel Castro, he labeled “oppressive” and accused of “betrayal.” He attacked human rights groups, politicians, reporters, and church groups who praised Cuba as “apologists” who “will never take off their rose-colored glasses” and had spent “years defending tyrants” and “years obfuscating the truth.”
At literally the same time he was doing this, Abrams publicly defended Turkey, a key regional ally, from criticism of its human rights record. Abrams praised Turkey, which had recently been pilloried in an Amnesty International report for widespread torture of its people, for “extraordinary progress,” charging that “some who criticize Turkey’s human rights situation have no interest in human rights in Turkey or anywhere else,” but “simply use this issue as a weapon with which to attack a vital member of the Western alliance.” He dismissed Amnesty’s claims as “false history,” criticized human rights groups for “an appalling shallowness of analysis” that ignored social, political, and historical context, and charged that the Turkish people “resent the activists’ shrill and uninformed criticisms of their country.”
As Abrams had earlier said, “the line drawn varies from country to country.” If you played nice with the Reagan administration, your human rights record was tempered by nuance and context, and it was getting better anyway. And if you didn’t, you were beyond redemption.
6. He dislikes journalists and accountability
Abrams no doubt sympathized with Turkey’s rulers because he himself had first-hand experience dealing with pesky journalists and human rights groups.
He said critics of Reagan’s support of the contras would have “blood on their hands,” and accused human rights groups of having communist sympathies. He hopped aboard the Reagan administration’s McCarthyite attempt to shame congressional critics into giving him a blank check in Latin America, claiming that there was an “elaborate and skillful” campaign by Nicaragua’s Sandinista government to “manipulate Congress and the press.” When the GAO released a report alleging contra corruption that was inconvenient for the administration’s attempts to secure aid, Abrams dismissed it as a “smear campaign” cooked up by Democrats.
While Abrams didn’t have a police state at his disposal, that didn’t prevent him from lobbing heavy-handed broadsides against reporters he didn’t like. He refused to be questioned by or debate certain journalists he perceived as critical. Most infamously, from 1986 to 1987, Abrams accused left-wing Colombian journalist Patricia Lara of being a “Cuban agent” and “an active liaison” between Colombian terrorist organization M-19 and “the Cuban secret police.” In October 1986, Lara was stopped by New York immigration officials and imprisoned, before being sent back home, without explanation.
Abrams claimed to have “concrete evidence” that Lara was “heavily engaged” with M-19, but when challenged to reveal evidence, claimed it was based on “intelligence information” that he couldn’t reveal. The Colombian Defense Ministry, then battling M-19, categorically denied they had any such information, and assigned her a bodyguard because Abrams’ accusation had put her in danger. The country’s foreign minister said “we don’t know where the US government obtained” such information.
Abrams also granted a “meritorious honor” award on the Office of Public Diplomacy, a government body responsible for waging an illegal domestic propaganda campaign, in which Iran-Contra architect Oliver North was closely involved, that disseminated Abrams’ preferred narrative about the region. Abrams praised it for “setting out the parameters and defining the terms of the public discussion on Central America policy” and countering the “formidable and well established Soviet/Cuban/Nicaraguan propaganda apparatus.”
7. He’s a fan of regime change
Like any neoconservative worth his salt, Abrams has an abiding faith in the US government’s ability to simply remove world leaders it dislikes at will. (He’s also continued the neocon tradition of never personally fighting in any war, avoiding Vietnam thanks to a hurt back that happened to clear up once the war was over.)
When Abrams wanted to remove former ally Manuel Noriega from power in Panama, the former chairman of the Joint Chiefs of Staff under Reagan wrote, he threatened sanctions, then actually imposed sanctions, then established a Panamanian government-in-exile on a US military base. Abrams finally called outright for the US military to topple Noriega, in an op-ed titled “Noriega Respects Power. Use It,” which is what George H. W. Bush ultimately did. It was a chilling preview of where US policy on Venezuela may now be heading if Maduro stays in power.
Reflecting on the mistakes of Reagan’s Latin American policy in 1989, Abrams’ regret was that it hadn’t been more forceful. “You can make a very good argument that after the successful rescue mission in Grenada the president should simply have said, ‘Look, we have to enforce the Monroe Doctrine, we cannot have a Communist government in Nicaragua,’ and done whatever we needed to do to get rid of it, including a naval blockade or possibly even an invasion,” he said.
In 2007, Abrams blessed Bush’s plan to launch a covert operation to destabilize Iran’s government. Two years later, he mused about what should happen if Iran develops a nuclear weapon. “Responsible leadership cannot allow this to happen,” he said. “Preventing it through military action perhaps is the second worst decision we could make. The only worse one being to say it’s all right now, it’s acceptable, we will not act.” But this wouldn’t involve regime change or the killing of civilians, he stressed; just a strike on nuclear facilities. Iran, Abrams warned, was one to three years away from developing a nuclear weapon.
In 2013, Abrams told a House Armed Services Committee hearing that the US had to get militarily involved in Syria. Why? Because “a display of American lack of will power in Syria will persuade many Iranian officials that while we may say ‘all options are on the table,’ in reality they are not — so Iran can proceed happily and safely toward a nuclear weapon.” Two years later, he said at a Council of Foreign Relations event that Netanyahu had two options: either strike Iran right then, or wait two years and see if an administration willing to take a tougher line, or sanction an Israeli strike, would be elected. Abrams, it seems, got his wish.
8. He’s beloved by the Right
In case anyone still believes the fiction that “anti-Trump” conservatives actually oppose Trump, Abrams is a living reminder that there’s no daylight between Trump and the establishment Right that pretends to dislike him.
Abrams was once an “anti-Trump” Republican who signed a letter opposing his candidacy in 2016. He tutored Paul Ryan in foreign policy when he was Mitt Romney’s 2012 running mate, and served on Marco Rubio’s so-called National Security Advisory Council in 2016. It’s no surprise the Florida senator, long viewed as an establishment-friendly, “sensible” conservative alternative to Trump, is now all but directing Trump’s Latin American policy, sounding virtually indistinguishable from Abrams.
Abrams has now served in every Republican administration since he first entered government bar one. In between, he’s worked at the Heritage Foundation (whose head of Latin American policy just called him “a patriot and dedicated voice for repressed communities”), helped found “anti-Trump” Bill Kristol’s Project for the New American Century, was a fellow for the Council on Foreign Relations, and was a board member of the National Endowment for Democracy, the US government’s arm for foreign political meddling.
Meanwhile, just look at who came to Abrams’ defense after his grilling by Rep. Omar. The National Review — which not long ago put out a much-celebrated “Against Trump” issue whose purpose, according to its editor, was to say, “He’s not one of us. He’s not a conservative, and he’s not what conservatism is” — just published an editorial calling Abrams “one of the wisest, most experienced foreign-policy heads in this country,” and “a steadfast advocate of freedom, democracy, and human rights.”
A former Bush administration official and current Harvard professor defended Abrams as “a devoted public servant who has contributed much of his professional life to our country.” The newly rebranded neocon Max Boot, who very publicly proclaims he’s seen the error of his ways and broken with the ugliness he now sees in the GOP, deemed him “a leading advocate of human rights and democracy.” Unfortunately, it’s not just the Right; the Center for American Progress’ vice president of National Security and International Policy called him “a fierce advocate for human rights and democracy” who simply “made serious professional mistakes.”
That someone like Abrams, who’s now leading Trump’s regime change efforts in Venezuela, is warmly embraced by the coterie of establishment and “never-Trump” conservatives should tell you everything you need to know about these groups.
Over the last few weeks, this picture has been circulating on the Internet. According to RationalWiki, that sentence must be attributed to Alberto Brandolini, an Italian independent software development consultant . I’ve checked with Alberto and, unless someone else claims paternity of this absolutely brilliant statement, it seems that he actually is the original author. Here is what seems to be the very first appearance of what must, from now on, be known as the Brandolini’s law (or, as Alberto suggests, the Bullshit Asymmetry Principle):
The bullshit asimmetry: the amount of energy needed to refute bullshit is an order of magnitude bigger than to produce it.
— Alberto Brandolini (@ziobrando) January 11, 2013
To be sure, a number of people have made similar statements. Ironically, it seems that the “a lie can travel halfway around the world while the truth is still putting on its shoes” quote isn’t from Mark Twain but a slightly modified version of Charles Spurgeon’s “a lie will go round the world while truth is pulling its boots on” (1859) which, in turn, might be inspired by Jonathan Swift’s “falsehood flies, and the truth comes limping after it” (1710). Always according to RationalWiki, the concept may also refer to the teoria della montagna di merda (“the Bullshit Mountain Theory”) as postulated by Uriel Fanelli, another Italian.
Anyway, there are a number of reasons to credit Brandolini and, apart from the overwhelmingly elegant formulation, the fact it’s not that much about the speed of dissemination of bullshit but rather about the inherent difficulty to refute bullshit. There are plenty of examples ranging from the “Friedman was Pinochet’s mentor” story to the infamous “loi de 1973” in France .
The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.