12 The first story appeared in Josh Gerstein, Woman Who Sued Convicted Billionaire Over Sex Abuse Levels Claims at His Friends, Politico, Dec. 31, 2014.
13 Sharon Churcher, Teenage Girl Recruited by Paedophile Jeffrey Epstein Reveals How She Twice Met Bill Clinton, Daily Mail, March 5, 2011.
14 According to the Restatement (Second) of Torts, each party to private litigation is “absolutely privileged to publish defamatory matter concerning another preliminary to a proposed judicial proceeding, or in the institution of or during the course and as part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.” Restatement (Second) of Torts §588. As one scholar put it, “The rationale supporting the litigation privilege is that the integrity of the adversary system outweighs any monetary interest of a party injured by her adversary. The privilege has been noted to be “the backbone to an affective and smoothly operating judicial system.” Eradicating the privilege “would dissuade attorneys from zealously representing their clients and might reduce access to courts.” Louise Hark Hill, The Litigation Privilege: Its Place in Contemporary Jurisprudence, 44 Hofstra Law Review, 401-402 (2015) (internal citations omitted), The fair reporting privilege is a qualified privilege which immunizes a party from libel suits “for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding…” New York Civil Rights Section 74.
15 Alan M. Dershowitz, A Nightmare of False Accusation That Could Happen to You, Wall Street Journal, Jan. 14, 2015
16 This acknowledgement was part of a settlement between me and Giuffre’s lawyer, ending defamation suits we brought against each other. They subsequently claimed they meant it was a “tactical” mistake, but that’s not what the document says. See Chapter 6.
17 Jacob Gershman, James Patterson on Delving Into a Financier’s Scandal in ‘Filthy Rich,’ Wall Street Journal, Oct. 8, 2016.
CHAPTER 3
David Boies and His Firm Create a Conflict of Interest
When I was first accused, one of David Boies’s partners offered to represent me in my efforts to defend myself against the false charges leveled by Giuffre. I was not aware at the time that Boies had been representing Giuffre for several months before her accusation. It is a strange story, indeed, and one that raises important issues of legal ethics.
It began for me on January 22, 2015, when I appeared on the Today Show on NBC—ironically, interviewed by Matt Lauer, who three years later was fired by NBC for “inappropriate sexual behavior in the workplace”—and said the following:
I’ve never seen her, I’ve never met her. . . . She is categorically lying and making the whole thing up. . . . I am afraid of nothing. I am hiding nothing. She is afraid of revealing this in public. She is afraid of giving dates or specifics. . . . I have been absolutely upfront in answering every question.
Later that day I received an email from one of Boies’s partners, Carlos Sires, with whom I had worked on a case several years previously, along with another partner at the Boies Schiller & Flexner office in Fort Lauderdale, Sigrid McCawley. Sires said, “If there is anything I can do for you, please let me know.” Obviously, I didn’t know that his firm was already representing the woman who had falsely accused me. Indeed, the partner who, along with Boies, was the key lawyer for Giuffre, was Sigrid McCawley herself. I have no idea whether Sires knew that his partner and friend was representing Giuffre when he offered to represent me. I doubt it, since he told me on the phone call that he “didn’t believe” the accusations against me and he thought the lawyers who had leveled them had “acted improperly.” One of those lawyers, it turns out, was David Boies, his senior partner.18
Sires told me that he would have to check with the managing partner of the law firm before he could agree to represent me. That is common, because lawyers always have to check to see that there is no conflict of interest between clients they or their firm are representing. No conflict could be clearer than representing both the accuser and the accused, without informing the accused. Later that evening Sires sent me an email saying that he had checked with the managing partner, Stuart Singer, that “Stuart and I think we can provide help,” and that “Stuart and I look forward to working with you on this.” Sires also encouraged me to send written materials relevant to the lawsuit that had been filed against me by Giuffre’s lawyers. Based on my reasonable assumption that they had done a conflict check and that there was no conflict of interest in representing me, I responded to Sires’s request and had sent him material that would be necessary to familiarize him with the case. Among the documents he received was my detailed and highly confidential lawyer-client memorandum which described the strategy I intended to pursue, including a tactical step calculated to cause my opponents to fall into a legal trap. Sires received, read, and commented on this highly confidential memorandum and sent me some additional material that he said might bolster my position.
As far as I was concerned, Sires and the Boies law firm were my lawyers, with whom I could share important information that would be kept secret from my legal opponents. If I had known that the Boies firm was my opponent—that they were representing the very woman who had falsely accused me—I would certainly not have trusted them with my legal secrets.
* * *
Imagine my shock when I learned the truth. At first a member of the law firm told me that because Jonathan Schiller, one of the firm’s name partners, was serving as chair of the Board of Columbia University, the firm was precluded from representing academics. That phony cover story didn’t even pass the giggle test. I knew that wasn’t the real reason, but had no idea what it was. When I found out the real reason—that they had long been representing my false accuser—I was furious at Boies, who was the responsible name partner. David and I had always been on good terms and I still find it hard to believe that two senior partners in his firm, including the managing partner of the Fort Lauderdale office, were offering to represent a well-known lawyer with whom Boies had a friendly relationship without being aware of the fact that he was representing my accuser. In fact, when Sires told me he had to check before agreeing to represent me, I told him that Boies and I were friends and offered to call him. Sires said that was unnecessary and that he would check with the managing partner in Florida. It is even more suspicious that McCawley, who was a partner in the same office as Sires, wouldn’t know of his offer to represent me. She must have known that Boies was representing my accuser.
I have since learned that the Boies Schiller & Flexner firm (BSF) has been sanctioned many times for conflicts of interest. In 2013, for example, a judge for the United States District Court for the Southern District of New York ordered the Boies law firm to pay their opponent’s legal fees on the grounds that “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. BSF, which holds itself out as one of the country’s preeminent law firms, did not.”19 David Boies himself has also been involved in a number of conflict of interest situations. In 2005, Boies failed to disclose personal ties to three document companies to whom he had referred several clients.20 More recently, the media reported that Boies was at the center of a conflict of interest involving his ethically incompatible roles as both a board member and lawyer for the fraudulent blood-testing company Theranos.21 Also recently, Boies was representing The New York Times at the same time he was representing Harvey Weinstein and was involved in hiring investigators who were targeting the Times reporter in an effort to kill the story they were writing about Weinstein. The Times publicly fired Boies, calling his conflict of interest a “grave betrayal.” Had I known BSF’s sordid history—more of which is documented in Appendix A—when they offered to represent me, I would have been more suspicious and cautious.22
When I complained about this conflict of interest, Boies suggested that we talk. When we met in early 2015, he told me that he didn’t know that Giuffre would be accusing me
of sexual misconduct when he agreed to represent her. He said that he would never have agreed to represent her if he had had any idea that she would be accusing me. He also said that the lawyers who had included her allegations against me in the federal court filing “were wrong” to do so and had “a problem.” He agreed to review my travel records, and if they supported my claim, he promised to try to persuade Giuffre that she had made a mistake in identifying me as one of the men with whom she had sex.
During 2015, Boies and I met several times in person in New York for many hours, reviewing the evidence. We spoke on the phone more than a dozen times. After reviewing my travel and other records, he acknowledged that it would have been “impossible” for me to have been at the various locations in which his client claimed to have had sex with me during the entire two-year time period during which Giuffre knew Epstein. Giuffre refused to be specific about times within that period, especially after she learned that I had detailed records of my whereabouts. The records proved conclusively that I had never set foot on Epstein’s island, ranch, Palm Beach estate or airplane during the two years Giuffre claimed to have been having sex with me in those places. I had, of course, been in New York, but Boies assured me this was irrelevant, since “everyone passed through New York” and since it was clear that I could not have been in the other locations in which Giuffre had accused me with great specificity. Boies and his partner, McCawley, spent hours with me and my paralegal, Nicholas Maisel, on two separate occasions reviewing the records. I memorialized what he told me in contemporaneous notes, quoting his exact language. (Appendix B) In the presence of several other lawyers, Boies repeatedly stated that he was convinced that I could not have been in the locations during the relevant time period. Here is what he said: “It looks to me like this set of dates would make it impossible for you to have been on the island or at the ranch during the relevant time.” He promised that unless Giuffre acknowledged that she was mistaken about me, and withdrew the accusations she had made in the court papers, he would have no choice but to terminate his representation of her. He promised to arrange a meeting with Giuffre and get back to me. But he kept making excuses for not meeting with her.
Once I realized Boies would not keep his word, I recorded several conversations with him. (Recording is legal in New York if one party consents.)23 Here are his and my exact words, as recorded (and confirmed by law enforcement officials):
. . .
Dershowitz: You’re as persuaded as we are that it was not possible for me to be on the island to have sex with her in New Mexico on the airplane and Palm Beach. But New York as you say, is a little bit up in the air. What is the next step at this point?
Boies: I think the next step would be for me and Sigrid, both of us together, to sit down with our client and say explicitly: 1) “We know you believe that you had relations with Professor Dershowitz. We have taken steps to share some of the [unclear] You understand to get an honest opinion. However, we have now reviewed the documentary evidence and we are convinced that your belief is wrong and we would like to explore with you how you could have come to this conclusion [unclear]. We have some ideas [unclear]. It is not surprising to me, how you could have, at your age and under the circumstances that you were under at the time, have misidentified somebody or perhaps had somebody intentionally misidentify him for you. The former is more likely than the latter. But there are certainly a number of possible explanations and I’d like to review that with you and help you try to explore how you could have come to that conclusion [unclear] One thing is clear—your conclusion is simply wrong.
In subsequent phone calls, he repeated his acknowledgment that Giuffre was “wrong” and that her claim is “unsustainable.”
I filed a sworn affidavit quoting those words, but without saying I had them on tape. The New York Times reported my account and asked Boies for his response. Here is what he said: “I never said to him that I concluded that my client’s assertions were incorrect. . . . I didn’t say that. I didn’t say anything like that.”24 (Emphasis added.) Of course this wasn’t true: he had said precisely that in our recorded conversations, and lied to The New York Times. I challenged him to repeat his false denial under oath, warning him that he would be committing perjury if he did. He subsequently filed a declaration in which he said: “Much of what Mr. Dershowitz asserts in his Affidavit is misleading, taken out of context, or flatly untrue”—a weaselly formulation apparently calculated to avoid a perjury charge. Boies definitely did tell me that his client was “wrong” when she identified me as someone with whom she had had sex, and the evidence that Giuffre was wrong about me has only gotten stronger since Boies made that admission.
If Boies had any doubts about the credibility of his client, he could have easily resolved them with one phone call. Giuffre had told the media that she had met former vice president Al Gore and his wife Tipper on Epstein’s notorious island. She described the meeting in considerable detail as early as 2011, in her $160,000 Daily Mail interview:
Virginia disclosed that Mr. Clinton’s vice-president Al Gore and his wife, Tipper, were also guests of Epstein on his island. . . . “The Gores seemed like a beautiful couple when I met them. All I knew was that Mr. Gore was a friend of Jeffrey’s and Ghislaine’s. Jeffrey didn’t ask me to give them a massage. There might have been a couple of other girls there on that trip but I could never have imagined this guy would do anything wrong. I was planning to vote for him when I turned 18. I thought he was awesome.”25
She also wrote the following in the manuscript for the book she was planning to publish:
I met Al Gore and his lovely wife during one of those many weekends away in the Caribbean. I was blown away by the amount of attention Al doted on his wife, it was so sweet to watch. They sat next to each other at the dinner table gazing into one another’s eyes having an intimate conversation between them. Among the many guests visiting that night and many of them young beautiful women, not once did Al’s eye’s stray elsewhere, to them they were the only ones there. He was up for a presidential election that year and he definitely had my vote. Anyone that could show that much devotion and passion towards his loved ones could have the same devotion towards running a country, or at least I thought so. He only left his wife’s side to have a walk down to the beach with the host of the weekend, Jeffrey.26
The problem is that neither Gore nor his wife had ever been on Jeffrey Epstein’s island. They didn’t know Jeffrey Epstein. They had never even met him. Giuffre had made up the entire detailed and vivid account in order to sell newspapers and a book.
* * *
David Boies had represented Al Gore in the 2000 election case. Boies could easily have picked up the phone and called Gore. If he had, Gore would have told him categorically that Giuffre was not telling the truth when she described her fictional encounter with him. I specifically asked Boies to call Gore, but he said it wasn’t necessary because he was already convinced she was mistaken about me, and her general credibility was not at issue. But, of course, it was. If she deliberately lied about Gore to sell her story, she would certainly not hesitate to lie about me to obtain even more money.
Having been caught lying about meeting the Gores on Epstein’s island, Giuffre has compounded and updated her lie by now admitting she may be wrong about where she met them, but not about having met them somewhere with Epstein, perhaps in New York. But the Gores were never with Epstein anywhere. Moreover, Giuffre described in detail seeing Al Gore “walk down the beach” with Epstein on his Caribbean island. Pure fantasy!
Giuffre had also invented a story about having dinner with President Bill Clinton on Epstein’s Island. Here is her vivid, but completely invented account:
“I’d have been about 17 at the time. [Giuffre turned 17 in August of 2000, while Clinton still had nearly half a year left in his Presidency.] I flew to the Caribbean with Jeffrey and then Ghislaine Maxwell went to pick up Bill [Clinton] in a huge black helicopter that Jeffrey had bought for her.
&nbs
p; She’s always wanted to fly and Jeffrey paid for her to take lessons, and I remember she was very excited because she got her license around the first year we met.
I used to get frightened flying with her but Bill had the Secret Service with him and I remember him [Clinton] talking about what a good job she did.
We all dined together that night. Jeffrey was at the head of the table. Bill was at his left, and I sat across from him. Emmy Tayler, Ghislaine’s blonde British assistant, sat at my right. Ghislaine was at Bill’s left and at the left of Ghislaine there were two olive-skinned brunettes who’d flown in with us from New York.
I’d never met them before. I’d say they were no older than 17, very innocent-looking.”27 (emphasis added)
Secret Service and other records prove that Clinton was never on the island. Moreover, it’s hard to imagine Secret Service agents flying with Clinton on a helicopter piloted by a woman who had just gotten her license. Giuffre invented these false accounts, just as she invented the false accounts of meeting me.
Recently, after this preposterous account was debunked, Giuffre invented a new account: she claimed that she didn’t tell the reporter that she “remembered” Clinton telling her what a good job Maxwell did (despite these words being quoted, not paraphrased); she now says that Sharon Churcher misquoted her and that it was Maxwell, not Clinton, who told her that, and Maxwell may have been lying to her. She did not correct the alleged “error” at the time it was published. Yet another lie to add to her long list of fabrications.
Guilt by Accusation Page 4