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MADELEINE BRAND, host:

Joining me now is Harvard law professor Alan Dershowitz. Eliot Spitzer was his student back when Spitzer was a law school student.

Welcome to the program.

Professor ALAN DERSHOWITZ (Harvard law School): Thank you very much. He was not only my student; he was my research assistant in the Von Bulow case. And so I really got to know him quite well.

BRAND: So what do you think he should do? A lot of people say he should resign.

Prof. DERSHOWITZ: Oh, no. I don't think he should resign. This is a uniquely American story. You know, 50 years ago, nobody would think that anybody should resign over private sexual conduct. Remember that 50 years ago, masturbation was a crime. Homosexuality, adultery, fornication - 20 years from now, we will be looking back and saying, my God, people had to resign over prostitution? This is being blown way, way out of proportion. He ought to stick to it, he ought to remain governor, be a good governor, and this will pass.

BRAND: Well, a lot of people are saying he can't govern effectively now because he has entirely lost his moral authority.

Prof. DERSHOWITZ: Well, if President Kennedy was able to solve the Cuban missile crisis during the day while he was behaving as adolescent in the swimming pool at the White House at night; Bill Clinton was able to govern while he was doing what he was doing with Monica Lewinsky; and Thomas Jefferson was able to govern when he was, you know, fooling around with slaves on his plantation.

History has simply proved that what people do in their spare time has nothing to do with the moral authority they have in their public performance in office. It's just an American form of hypocrisy to assume otherwise.

BRAND: Well, speaking of hypocrisy, a lot of people are saying that the governor has waged a hypocritical campaign. He did prosecute prostitution rings, after all, and he had this image as a crusader against corruption, as a Mr. Clean.

Prof. DERSHOWITZ: Mm-hmm. Well, people have the right to hold that against him when he runs for office again. If every act of hypocrisy disqualified, we wouldn't have anybody in any governorships or state legislatures. You judge a person on - based on their total public performance. Hypocrisy is part of it, but a relatively small part of it.

Hypocrisy is so common in American government. By the way, I took the same position with Larry Craig. So this is not a Democrat-Republican issue. I don't think that public figures should be judged on their private sexual conduct. Period.

BRAND: Well, even if he made his career, his public name, prosecuting...

Prof. DERSHOWITZ: He didn't make his career prosecuting prostitution. He made his name prosecuting Wall Street, where there are victims. This is a completely and totally victimless crime. Crimes he prosecuted were crimes of exploitation, crimes of financial predation. So I think even the argument of hypocrisy is a little overstated.

BRAND: Well, a lot of people would say that prostitution is a form of exploitation.

Prof. DERSHOWITZ: Well, it's not. Not when you're dealing with a 35-year-old woman making $5,000 an hour. That's just total nonsense, and I'll debate any feminist on the country on that issue.

You know, the hypocrisy about this is so rampant. Open up the back pages of New York Magazine or the Village Voice and you see ads for this kind of service all the time. Millions of men use prostitutes. And you know, it's easy to posture about this, but the reality is that in the minds of most people, going to a prostitute's just not a crime.

BRAND: Have you heard any talk that he might be indicted himself by federal authorities?

Prof. DERSHOWITZ: If he were indicted by federal authorities, it would be the first time in modern history that any john has been indicted under the Mann Act. This is an anachronistic statute.

BRAND: And the Mann Act...

Prof. DERSHOWITZ: Crossing states lines for immoral purposes.

BRAND: Right.

Prof. DERSHOWITZ: And you know, the danger is that it can be used by political opponents. Here we have the Republican prosecutors who might try to make a deal with this Democratic governor to leave office in exchange for not being prosecuted. That's why crimes like this should be taken off the books.

BRAND: Alan Dershowitz, Harvard law professor. Thanks for joining us.

Prof. DERSHOWITZ: Thank you very much.

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