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IN THE ARENA

Prosecutors on Trial; No Leadership on Capitol Hill

Aired July 6, 2011 - 20:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ELIOT SPITZER, CNN HOST: Good evening. I'm Eliot Spitzer. Welcome to the program.

Tonight's top story, the intersection of two major criminal cases that have shaken the American sense of justice. The acquittal of Casey Anthony and the killing of her 2-year-old daughter, Caylee, and the crumbling case against former IMF chief Dominique Strauss-Kahn.

What do the two have in common? Here's what the critics say. Both are cases that were overcharged and under investigated. Both were grievous errors, committed by prosecutors saw, not justice, but political gain and public acclaim. Both are reality shows designed for sensational effect and high ratings.

Has our judicial system come to this? And can it be saved?

In a moment, one of America's great legal scholars gives us his critique. But first, a look at the other stories I'll be drilling down on tonight.

(BEGIN VIDEO CLIP)

SPITZER: Getting away with murder. Marcia Clark was the lead prosecutor in the O.J. Simpson case.

UNIDENTIFIED FEMALE: Not guilty of the crime of murder.

SPITZER: She says finding Casey Anthony not guilty is even worse.

And rewriting the sacred words of the founding fathers. How dare anyone try. Two great scholars say that's how the old boys would have wanted it. Getting the inside scoop on Madison and Jefferson.

Then, Dominique Strauss-Kahn isn't likely to face a jury in New York. One of the most prominent men in France weighs in on American justice.

(END OF VIDEO CLIP)

SPITZER: Not a good week for prosecutors. First, the Dominique Strauss-Kahn case unraveled, then Casey Anthony was acquitted of the most serious charges against her. A moment of soul searching perhaps for our judicial system. And it raises the question, do we need to rethink how high profile cases are initiated and how the media has its thumb on the scales of justice?

My guest, Alan Dershowitz is one of the most distinguished lawyers in the country, brilliant observer of the legal system, and a professor at Harvard Law School.

Alan, welcome. Thrilled to have you here on the set.

ALAN DERSHOWITZ, PROFESSOR, HARVARD LAW SCHOOL: Thank you, Eliot.

SPITZER: Are these two cases -- the confluence of these two cases, is it a coincidence or is it demonstrative of something deeper, a deeper malady in our judicial system?

DERSHOWITZ: Well, I think it reflects both. A deep malady and a deep functioning of the system. Our system really doesn't work at the beginning because we have elected prosecutors and we have elected judges. We tend to sensationalize cases at the beginning. We tend to rush to judgment. Both of these cases were that.

The media tends to create black and white portraits of good guys and bad guys. But then in the end, the system works because the jury sorts out the good evidence from the bad evidence as in the Caylee Anthony case. And a good prosecutor, well, like our prosecutor in New York --

SPITZER: Cy Vance.

DERSHOWITZ: Cy Vance -- ultimately does the right thing. Other prosecutors don't do the right thing. They bury evidence like this. He did the right thing.

SPITZER: OK. Now you're saying that Cy both rushed to judgment by initiating the case improperly but then upon investigation did what was ethically mandated and tough, not easy for him to declare to the world that case that he had stood behind had fallen apart?

DERSHOWITZ: Especially because he was so bad in the beginning, it was harder to be good at the end.

SPITZER: OK.

DERSHOWITZ: To do the right thing. It showed a lot of courage.

SPITZER: OK. Now let's separate out two pieces. One might expect the media, which plays to a larger audience to pander, to rush to judgment. First Amendment protections notwithstanding we may despair about it. Harder to control.

Prosecutors. How do you limit or infuse into what they do some greater sense of hesitancy or judgment before they bring these cases?

DERSHOWITZ: Well, first of all, institutionally we have a problem. We're the only country in the civilized world that elect prosecutors and makes them stand for reelection. You were an elected prosecutor. You know that. SPITZER: yes.

DERSHOWITZ: Good prosecutors can resist that temptation to always pander to the public. Weak prosecutors are always running for reelection. So there's an institutional problem, right, at the outset? The media, of course, we have the First Amendment. You can't control the media.

SPITZER: But wait, I want to push you a little more because one would almost say, yes, the election of prosecutors creates an enormous danger of pandering.

DERSHOWITZ: Right.

SPITZER: On the other hand, if you don't elect them, how are they chosen? And if you put this enormous, perhaps the greatest power anybody has in our governmental system, is to bring charges. And if you put power to choose the prosecutor into some centralized zone that is not subject to the public's control, isn't that worse?

DERSHOWITZ: No. It depends on how you pick prosecutors. In England and in Israel and in other countries, it's a civil service job. For example, in Israel, the state prosecutor, the attorney general is really like a quasi-judicial appointment. It goes through a committee of extremely distinguished judges and lawyers who pick professional prosecutors.

In some parts of the world, it's very political. Each has its benefit, each has its disadvantages.

SPITZER: OK. That sounds wonderful. I can see the PhD dissertation at Harvard saying, we have -- happen upon a great system. But doesn't that centralized power, doesn't that give a plutocracy the reigning elite who choose these great lawyers, who choose these great judges. They protect themselves.

DERSHOWITZ: No question.

SPITZER: Don't you then get some element -- take France where crimes such as what Dominique Strauss-Kahn has been accused of, one hears -- I don't want to malign our system. One hears that they are routinely suppressed because there's an elite.

DERSHOWITZ: That's right. And that's the disadvantage. And one of the benefits of having elected prosecutors is they're sensitive to the rights of children as in Caylee Anthony -- Casey Anthony case. And also sensitive to the rights of poor immigrant women.

And so I don't blame, in either case, the prosecutors for leaning over to make sure that in one case the wealthy and the powerful, in the other case an adult woman, doesn't get the benefit of the doubt. But then you still have to look hard and make sure that the evidence is valid that you have the kind of case and you don't overcharge. And you wait to charge until the evidence has been tested.

SPITZER: OK. Now the charging decision in European systems, it is not only a civil service, somewhat akin to what you described. But judges themselves --

DERSHOWITZ: Right.

SPITZER: -- in some cases run the investigation. Is that preferable to what we have?

DERSHOWITZ: Well, it's more complicated because they're magistrate judges. They both do investigations and they ultimate decide which charges to bring. If they are good, they're very good.

SPITZER: Right. Right.

DERSHOWITZ: But if they are subject to the thumb of the government, they are very bad. Take for example our military system. It's very professional. But if we have command control, if the generals tell the professional prosecutors what to do, it's terrible. The jury serves as a filtering function. The jury is just like democracy. The worst possible system except for all the others.

SPITZER: But I see an inconsistency in your argument. On the one hand you love the jury system because, as you can say it is -- I'm with you. I have been frustrated as a prosecutor with certain jury outcomes as I think many of us are in the Casey Anthony case and in my own life as a prosecutor. At other times, I say there's a wisdom there unmatched in any other structure.

Having said that, you love that sort of democratic process for fact finding, but you don't trust it to pick the prosecutors.

DERSHOWITZ: That's right.

SPITZER: Why is that?

DERSHOWITZ: That's why I think we need checks and balances. We need to have a mixed system. I would never abolish the jury system. The ultimate judge should be 12 people picked off the street.

I would prefer not to see prosecutors elected or if elected, not reelected. Maybe one six-year term.

SPITZER: Even if they're good?

DERSHOWITZ: Even if they're good.

SPITZER: All right.

DERSHOWITZ: Especially if they're good. Now you -- what you don't want is a prosecutor holding his finger up to the wind and worrying about reelection. It's bad enough that the day congressmen are elected they have to worry about reelection.

SPITZER: Right.

DERSHOWITZ: Prosecutors shouldn't have to do that.

SPITZER: Right. DERSHOWITZ: So I think a mixed system, professional prosecutors, amateur democratic jurors is probably the best balance.

SPITZER: OK. So we're not far off from what we would aspire to?

DERSHOWITZ: No. And in fact, the federal system is a little like that. We don't have elected prosecutors in the federal system, but we do have juries. We should separate out the political function in the Justice Department. The attorney general from the charging function. England has that. They have a minister of justice, political, and a director of public prosecution, non political. He decides who to prosecute.

SPITZER: OK. Let's talk about Dominique Strauss-Kahn for a moment.

DERSHOWITZ: Right.

SPITZER: And you've had some very particular critiques of what could have -- what could make the system work better in terms of subjecting the evidence to more scrutiny. And one issue has to do with releasing the name of the victim, why?

DERSHOWITZ: Absolutely. Because when we have the combination of the perp walk and withholding the name of the alleged victim, the message is he's guilty as hell and she's a real victim. That shifts the presumption of innocence away from the defendant.

Second, it denies the defense the opportunity to get evidence that might help undercut the credibility of the alleged victim.

SPITZER: Why?

DERSHOWITZ: Because her name isn't out there.

(CROSSTALK)

DERSHOWITZ: When we release --

SPITZER: But the defense knows her name.

DERSHOWITZ: Yes, yes, but he can't put it in the papers.

SPITZER: OK.

DERSHOWITZ: When we put the name out of the woman who was accusing Mike Tyson, within days we got reports that she had previously falsely accused somebody of rape.

SPITZER: Right.

DERSHOWITZ: That wasn't coming forward. The same thing happened in the William Kennedy Smith case.

SPITZER: You represent Mike Tyson.

DERSHOWITZ: On appeal.

SPITZER: That's right.

DERSHOWITZ: And in this case, had the name of this person -- especially now that you've seen the "New York Post," her name is still being withheld. Had the name been revealed on day one, probably by day three, all this information would have been known and the prosecutor would have stood back and said wait a minute, maybe we can't prosecutor.

SPITZER: OK. Now the rationale --

DERSHOWITZ: Now there's a downside to it.

(CROSSTALK)

DERSHOWITZ: Understand the downside of it. The downside of it is you don't want to discourage real rape victims from coming forward. But you also don't want to treat women the way we treat children. The only group whose names we withhold are children.

Rape is crime of violence just like murder and assault. We put their names forward of those people. Rape victims are adults and when they're adults, they have to have themselves treated, not like children. It's sexist to treat them like children, I believe, in this day and age.

SPITZER: These are fair arguments. And you state them as always exquisitely. But they have to be balanced because one thing you didn't state which is the second victimization of the victim.

DERSHOWITZ: If she's a real victim.

SPITZER: If she's a real victim which is --

(CROSSTALK)

DERSHOWITZ: And by the way, we should create an atmosphere around society where a person is not victimized when she comes forward as a rape victim. She should be regarded as a survivor, as a hero. What -- we're not people who come from those cultures in which we have honor killings. If you're raped, we're going to kill you.

If you're raped, we're honoring you and we're going to get justice. And we're going to vindicate you. People should not be ashamed to come forward and explain that they've been a victim of this crime of violence.

SPITZER: All right. Alan Dershowitz, always so much fun and fascinating to have you here. And also I should add, author of the "Trials of Zion," a great book.

DERSHOWITZ: Thank you.

SPITZER: Everybody should read it. Coming up, George Washington was first in the hearts of his countrymen. Lincoln freed the slaves. FDR ended the Great Depression. Today's politicians, they can barely keep us from going broke. When it comes to leadership, can the bar get any lower?

(COMMERCIAL BREAK)

SPITZER: The Casey Anthony trial was arguably the most watched trial since O.J. Simpson's. And yesterday's not guilty verdict sent similar shockwaves to viewers. After watching the facts of both cases play out, many people simply thought Anthony and Simpson were guilty.

But one woman says yesterday's acquittal was even worse than Simpson's. And she should know. She's the one who prosecuted Simpson 16 years ago. Marcia Clark was the head prosecutor in the O.J. Simpson murder case and recently wrote the book "Guilt by Association." She joins me now along with senior legal analyst Jeffrey Toobin.

Welcome to you both.

Marcia, let me start with you. First, thank you for joining us. Why was this worse?

MARCIA CLARK, HEAD PROSECUTOR IN O.J. SIMPSON MURDER CASE: It was worse in the sense that it was much more shocking, Eliot. In the Simpson case, there were many precursors met, a lot of foreshadowing to tell us that there were going to be problems here.

And in the -- long before actually we picked a jury, I would say within weeks after the preliminary hearing, Gil Garcetti, the district attorney, convened a meeting with the family of the victims and said, do not expect a conviction here. It may very well be that the best we can hope for is a hung jury.

So there was a lot of reason to understand that things may not turn out the way we expect them to, the way we think the evidence dictates that it should.

In this case, there was no such foreshadowing. In this case you don't have a national -- a nationally recognized football hero who appeared in commercials and in movies. You don't any of the racial aspect of it.

None of that extraneous stuff that doesn't have anything to do with the evidence but can very well skew a verdict was in evidence here. None of that happened here. This was a woman who was unknown. The case came out, the facts came out as they did. I mean it played out in a way that was much less incendiary until the opening statements when there were allegations of molestation.

But by that time, the jury was sequestered as they heard the allegations made by Jose Baez. But they didn't hear all the pundits punditing and speculating about the truth or not truth of those allegations. So there was much less in the way of a fair verdict. And I thought the evidence was very compelling. I understand a lot of people now starting to doubt the strength of the case. I don't doubt it. I heard it come out at the time. A lot of people agreed with me at the time that this was a compelling case that justified a guilty verdict. Maybe not first-degree murder but of some degree of homicide.

And so it was shocking to see that all homicide (INAUDIBLE) down as not guilty.

SPITZER: Marcia, you know, interesting that you as the prosecutor of the O.J. case almost suggesting that case had some flaws that you understood. This one not so much.

Jeff, do you buy this critique that in a way this is the more shocking, the less predictable of the verdict?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, no, I don't. And you know, I watched Marcia throughout that trial, and I thought she proved that case beyond a reasonable doubt. I still think the O.J. Simpson verdict was far more shocking and more wrong than the Casey Anthony verdict.

I mean I really did think that the Casey Anthony verdict was based on the evidence. Particularly the first-degree murder charge. I mean here you had -- there you had a case with no cause of death. No motive. No time of death. All of which were completely present and obvious in the Simpson case.

There was no doubt of how the two defendants -- the two victims died in the Simpson case. And there was abundant DNA evidence. There was clear motive evidence. I mean I don't have to persuade Marcia Clark that O.J. was guilty. But I do think that this case was a lot tougher.

SPITZER: Marcia --

TOOBIN: It was a lot more questionable.

SPITZER: Let me -- Marcia, let me come back to you because in some of the writing you've done since the Casey Anthony verdict has come out, you made an important distinction between reasonable doubt which is that sort of elusory, amorphous notion, easy even for those -- all three of us have been prosecutors, you kind of try to describe it to people. You kind of say, gosh, I don't know.

And you've said reasonable doubt is one thing, reason to doubt is something very different. Describe how you've created this distinction because I think it's a powerful one.

CLARK: Yes. What I've always seen the defense do and whether or not it succeeds has a lot to do with the juries' mindset. But a defense will always give the jury a reason to doubt. That means some other guy did it. Some other guy made me do it. Some other guy forced me to defend myself, whatever it might be. A reason to doubt. But that does not equate to reasonable doubt. A reason does not mean reasonable. But the distinction can get lost because reasonable doubt is a very elastic, almost elusive concept.

A jury that gets nervous about the importance of their verdict can easily translate one to another, and just take any reason because to be -- to mean a reasonable doubt. And I think that's what happened here.

SPITZER: Let me jump in here because unfortunately -- TV time is short. One of the jurors or alternate jurors today -- I forgot which -- in an interview made the statement, which is accurate, no doubt.

Look, we thought the prosecution had a powerful case, just not beyond a reasonable doubt. And reference has been made to alternative judicial system where the choice is presented to the jury, are guilty, not guilty or the third one, which is not proven.

In other words there's that --

TOOBIN: The Scottish --

SPITZER: The Scottish system, not proven.

TOOBIN: Right.

SPITZER: Sort of that intermediate space.

(CROSSTALK)

SPITZER: Jeff, does that make sense to you?

TOOBIN: No. Can I tell you something? All our prisons are overcrowded.

SPITZER: Right.

TOOBIN: And one thing every single prisoner has in common is that they were convicted under a standard of reasonable doubt or they pled guilty because they knew they'd be convicted. So the idea that this is some an insurmountable mountain is just silly.

I mean look, in certain cases the jury finds not guilty. Eighty to 90 percent of cases end in convictions. I don't think that suggest reasonable doubt is some standard that is just unfair to the prosecution. Look, sometimes the defense wins, that's just fine. I thought that's good for the system.

SPITZER: All right. You've been a journalist too long. Prosecutors, (INAUDIBLE) into prosecutors, and we're frustrated that you.

Marcia, do you think that there's utility to the not proven?

CLARK: I agree.

SPITZER: Did you think not proven would be a useful standard to have?

CLARK: Yes, I do. I don't think it's such a bad thing to give the jurors another alternative. But really does it change anything, Eliot? That's the bottom line. I mean I wrote about that in the article that I wrote in the "Daily Beast" that there -- the Scottish system gives you that alternative. But what difference does it make?

If a jury finds somebody in this country not proven, it will act the same as a not guilty. The only difference maybe is that tiny 100/1000 of a percent of cases where the defendant as who are finding a factual innocence, which then, of course, if you have a not proven versus a not guilty you could actually maybe attain that --

(CROSSTALK)

CLARK: But when does that happen?

TOOBIN: I have to say -- Marcia, I've never even heard of that finding of factual innocence. Have you ever seen that in a courtroom?

CLARK: You haven't? It always happens. Yes, I have. As a matter of fact it happened in the case of --

TOOBIN: Really?

CLARK: Yes, I have. And it's fascinating, Jeffrey. It happened in the case of Jeannie Adair who was accused of killing her husband. The jury acquitted her in a case that I thought was actually sufficient to prove guilt. It had its problems, no doubt. She went before the judge and asked for a finding of factual innocence. The judge gave it to her, he gave it to her.

He granted her the finding of factual innocence. The prosecution appealed that decision. And the court of appeal knocked it down and said no, there wasn't enough evidence to justify a conviction. She does not deserve the finding of factual innocence.

SPITZER: I got to say --

CLARK: It's a rare thing.

(CROSSTALK)

SPITZER: Marcia, I have never encountered it, but you know, but so be it. Another little factoid to store away.

Marcia, you have commented on these two cases that are certainly giving great discomfort to many people. Does any of this make you challenge the wisdom of the jury system?

CLARK: It doesn't. I mean the jury system is flawed, of course, because people are flawed. And so you have a system that involves people, it's going to be flawed. If you come up with a better one, I'll be glad to go with it. But as far as I can see at this point in time, flawed as it is, it's the best system we have.

SPITZER: Jeffrey, do you share that view?

TOOBIN: I completely agree.

SPITZER: And you have said the cardinal sin here in the Caylee case was overcharging?

TOOBIN: Overcharging.

SPITZER: How do you prevent it?

TOOBIN: Well, this is prosecutorial discretion. We have to have prosecutors who recognize that it's important not to get overly -- fall too much in love with your own cases. I mean that is a problem that anyone has in any business that you get too -- you identify too closely.

And I think in this case, asking for the death penalty, charging first-degree murder on these cases, not only was not justified by the facts, but hurt the whole case in front of the jury.

SPITZER: You know --

TOOBIN: So I thought that was a real big mistake.

SPITZER: A powerful and accurate critique. On the other hand, I've got to say distilling it all down, when one listens to all the shrill conversation, a definite sense that despite it all, the system has worked. Hard to say after this week but somehow the system worked.

All right, Marcia Clark, Jeffrey Toobin, thank you for joining us.

Up next, leadership in Washington. It's becoming as rare as intelligent conversation in cable television.

(COMMERCIAL BREAK)

SPITZER: We avoided total bankruptcy. Wow. That's now the pathetic goal that our elected officials on both sides seem ready to settle for. It's a new low for American politics.

In the early '90s, then Senator Daniel Patrick Moynihan declared that America had, quote, "defined deviancy down." In today's "Washington Post," my friend and columnist Matt Miller applies that concept to what politicians are doing to democracy. By setting such minimal goals, he's totally right.

Is there any way out?

I'm joined by senior political analyst David Gergen from Buffalo, New York.

David, as always, thanks for joining us.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Thanks, Eliot. It's good to be with you again.

SPITZER: So is Matt Miller right in invoking Moynihan's famous phrase, defining deviancy down? Are we defining democracy down by setting such minimal goals that somehow we have lost sight of grander objectives?

GERGEN: Eliot, Matt Miller is a friend of mine as well and a former colleague. And he's written a number of wise things. This is one of the columns I think is really one of his best. And that is, he's taken Daniel Patrick Moynihan whose argument that we had defined social behavior down and deviancy down, you know, some years ago.

It now applies to our politics and I think that Matt Miller has got a point. Certainly the American people believe that. You know polls have showed there's two-thirds of American people think that we're suffering from bad leadership. Three quarters in a poll last week said we're in decline as a nation.

SPITZER: Now is there an answer? In other words, is there a way out? How do you begin to ratchet the bar back up when we have -- you know, as Matt says in the column, a week from now, two weeks from now, if we're lucky, there'll be champagne bottles being opened up in Washington for a big celebration because they managed to raise the debt ceiling. This is hardly a manifesto for confronting the larger problems of our nation. So how do you begin to reset expectations so we demand more of government?

GERGEN: Well, it's an interesting question, Eliot. First of all, it is critical that we do overt a catastrophe on the debt ceiling. And that does mean we need an agreement. Now the parties are coming to the White House tomorrow, the congressional leaders. There's been a lot of talk today, a lot of little sort of things, and dodges, and things like that.

Both sides sort of saying they're more willing to compromise. But let's wait and see. You know, guys, prove it. You know, I think we can't look at rhetoric anymore. Let's wait and see what emerges from these conversations and see if we got a hard deal that really does lower the debt ceiling and convinces, as you know, the credit agencies like Standard and Poor's and Moody's, that we have a credible plan. Otherwise, they're going to downgrade our credit ratings. And that's going to have terrible consequences.

SPITZER: Well, look, I --

GERGEN: Maybe on the larger -- yes, please, go ahead.

SPITZER: No, no, I was going to say I'm with you on that. I'm in that camp that feel that those who have been trying to portray an image of apocalypse that occurs on August 2nd or 3rd or 4th, whatever the date may be if we don't do this, they're actually giving us an accurate image.

This really is a horrendously dangerous moment. But I'll tell you what, I want to hear your answer to how we address the structural issues in our political system that I think are the deeper, long term crisis.

GERGEN: I don't think we're going to restore confidence as quickly. It's taken us a long time to get into this hole and to have the kind of erosion of public support that we see. What it is going to require is a series of effort on the part of the White House and the Congress and our political leadership in the states to take one step at a time to climb out of the hole.

And that means we're going to need to do it on the debt ceiling, we're going to need to do it on energy, on housing, on immigration, on the whole series of things. And on the creation of jobs, because unless we get growth going in this economy, if we remain divided as we are right now, poisoned, paralyzed, polarized politics, I can just say -- I have just been into talks the last few days, you know, there are a lot of fine people come to (INAUDIBLE) for their summer in camp, and I can tell you, the people are aching for leadership. They are just yearning for someone who will step forward.

One of the things we discussed today at Chicago (ph) was when we were in early republic, as Warren Dennis is pointing out, we were -- we only had three million people in this country and yet we produced six world class leaders from three million people. Washington, Hamilton, Franklin, Jefferson, Adams, and Madison.

Here we are a nation of 300 million people and we struggle to find a world-class leader.

SPITZER: Right. You know, just so folks know, where you have been in (INAUDIBLE) is a wonderful gathering of a few thousand people come to hear (INAUDIBLE) folks like you who can explain to them what's going on in the world and where thing are likely to go.

But it is sort of a center for study and thoughtful conversation, which we don't have enough of unfortunately in this nation.

When I look at the structure that have bridled and that have handcuffed our decision making in Washington, I look at the filibuster. I look at the facts that we have every two years out of every four are dedicated to a new presidential election. We simply have not permitted the process of decision making to become thoughtful.

Can we remedy those process issues as well?

GERGEN: Well, I -- you know, you're a lawyer and litigant and -- you're very wise in the law. And of course there are structural issues and process issues that have to be overcome. I come out of a somewhat different place and say, you know, before you get there, you've got to restore a healthy political culture. You've got to rebuild a culture in which people are willing to say, look, I'm a strong Democrat or I'm a strong Republican but first of foremost I'm a strong American. I care about the country. And, you know, we are going to find ways to solve problems, not find ways to throw spitballs at each other or find ways to appeal to our basis going on in the debt reduction talks. We've got to find the -- create an environment that brings forward statesmen and stateswomen who are going to put the country before partisanship, before ideology. Until we get there, I think if you change the culture, you can change the processes. But it's really impossible to change the process until you change the culture.

SPITZER: You know, David, it's so interesting you say that because, it certainly is the case that early on in the history of this nation, when you had Hamilton and Jefferson and Washington and Madison and Monroe, all of them, Ben Franklin, they did manage to bridge chasms that were ideologically -- they were very ideologically different. But they managed to come together not only around documents but around policies that were so instrumental to our growing in this nation.

And, yet, you look at the litany of crisis we're facing, you began to go through that litany before, energy, housing, jobs, et cetera, et cetera, not one of them has had any meaningful set of policies to confront it over the last 10 years essentially. And, so, you begin to wonder if we are mired in something.

GERGEN: I agree with that. And if you look go back to the early days, you know, one of the most important compromises that was made was struck over dinner one night and -- because of state debts and whether the national government would be able to assume those state debts. And exchange for what Hamilton wanted, Hamilton agreed to have the capitol moved to the South. And that's how it became Washington, D.C., became our capital. That was the result of a compromise by people who were very hardheaded, had strong views, but they came together for the common good, for their republic.

And that's what we don't have a sense of right now. We have people taking ideological positions on the deficit, but how many people are standing up and say, you know, this is -- you know, for the sake of the country.

We have -- each side has to give here. I -- listen, I believe very strongly that we need to reduce spending. I believe spending has gotten out of control. But I also believe that people who are very privileged of being affluent in this country, I happen to be one of them, we -- I know a lot of affluent people who are now prepared to step up and pay more taxes as long as they think they are getting a straight deal from the government, that the government is going to be on the level and really will reduce spending and get rid of a lot of special interest and a lot of unnecessary subsidies. Then you're going to find a lot of people in this country say, OK, I'll do my share, I'll step up, I'll sacrifice.

SPITZER: David, I think you're exactly right about that. We only have 10 seconds. But let me ask you this question -- you refer the famous compromise that sent the capital to Washington. Frankly, wouldn't it have been better if the capital were in New York? Come on, tell the truth.

GERGEN: No, no. I'm from North Carolina, we like it where it is. SPITZER: All right. We'll send it to Charlotte, just not Washington, please. All right.

GERGEN: Yes, that's absolutely.

SPITZER: David Gergen, as always, thanks for being here.

GERGEN: And I want you know the people wanted to send their best to you.

SPITZER: David, thank you so much. Always a pleasure having you on the show.

Coming up, Mark Twain said everybody talks about the weather, but nobody ever does anything about it. Same could be said for the U.S. Constitution. Obviously, Mark Twain never had Fareed Zakaria and Simon Schama.

(COMMERCIAL BREAK)

SPITZER: Rarely has Constitution been at the heart of our politics as much as it is today, from the Tea Party invoking it daily, to the claim that the Health Care Reform Act violates its mandates.

But what the Constitution actually means, that question stirs all Americans.

Here to put it into context, two of the smartest minds out there and also two of my favorite guests, Fareed Zakaria, host of "FAREED ZAKARIA GPS" and Columbia University historian and a newly minted contributor for "Newsweek" and "The Daily Beast," Simon Schama.

Gentlemen, welcome. And thank you for being here.

Simon, let me start with you. Back to the days of Hamilton and Jefferson, what the Constitution meant in terms of government power has been at the vortex of our debate.

Tell us about it.

SIMON SCHAMA, COLUMBIA UNIV. HISTORY PROFESSOR: Absolutely. I mean, the miracle is that Hamilton, a magister, who represented Jefferson some minimalist fear of what government could do they ever collaborated enough on the Federalist Papers. Both of them, and it's a lesson for us, were prepared to sink their fundamental differences about what American government was to the extent to getting the Constitution ratified.

But that put on hold, the issue that is the hot button issue for us now -- is it actually in the best tradition of American politics to take a relatively expansive view of what government could do, or is government only entitled to do those things which were enumerated at that (INAUDIBLE) late 18th century?

SPITZER: Give us, in your best minimalist way, Hamilton's sense of what was required. SCHAMA: It's very important to hear from that oh genius rogue Alexander Hamilton right now, because he's not getting a hearing. And Hamilton's view was there are going to be circumstances. He had the true vision. He had the vision of America as an industrial and commercial power. Jefferson was a village slave owner of a mighty intellect.

Let's remember, Hamilton said, what we meant by the general welfare in the preamble and in Article I Section VIII and what we mean by proper and necessary clause of powers of government to make the enumeration things happen was that we cannot foresee what Congress, not what the executive will do, what Congress will need to legislate on.

SPITZER: OK. Now, Fareed what would happen to this nation if Hamilton's vision hadn't won?

FAREED ZAKARIA, "FAREED ZAKARIA GPS": Well, it's impossible to imagine, right? The Constitution was written, as Simon was saying, by people who were -- men in wigs who own property and slaves in a country that numbered 4 million, that did not even know the existence of the cotton gin, let alone manufacturing, let alone an army, navy and air force of the kind we have today, let alone all of modern technology.

So, Hamilton saw a modern, great industrial superpower. Jefferson's vision was essentially agricultural.

But I would add one more thing, though, in terms of what, you know, if the Constitution means anything, which is in some ways a very strange term because the founders all fought and disagreed often vehemently, but here was one thing they were all very impressed by, and that was the classical Republican virtues.

The Constitution was written because the Articles of Confederation produced a two-week central government. They were worried about the fact there was no space for civic virtue, for public virtue, and for the proper handling of government debt. So, that was why they brought together a stronger government and talked a great deal about civic virtue, about Republican virtue.

In other words, they were not so hard on individualism. They were more concerned about the common good.

But the most important thing they did was to write a short document. The reason the Constitution has endured and so many other constitutions haven't, is because it is short, which means that we fill it in with practice, with historical experience. It is a version of an English Constitution.

You know, people often point out famously that Britain has no constitution. Well, they have an accumulated set of practices. In that sense, these people who -- that was the genius of the Constitution -- they understood, don't overdo it.

SPITZER: OK. So, let me jump then to a question which is at the heart of so much of this debate, the word originalism. People say we must interpret the Constitution as it was understood by those who drafted it. A, does that make sense? And then, more suddenly, how do those who drafted it understand our ability -- and you maybe just answered this -- to add interpretations based upon new dynamics, new facts and new situations?

SCHAMA: Well, originalism cannot possibly be a monolithic concept. As Fareed said, and I think the three of us agree, the glory of that founding was the intensity of its dispute. Disputes were never allowed to be so ferocious that they called, as some in contemporary (INAUDIBLE) sphere, for a virtual obliteration of the other party.

Madison and Hamilton did not demonize each other and say, "I'm the real American. You are a some form of, you know, crummy European traitor." They could have done it to Hamilton, who is an unapologetic admirer of the British state.

What Hamilton wanted to do was improve exactly as Fareed says -- this is going to get us in trouble for this British accent -- improve the British state and make it free. The British state was a monied corrupt -- hello -- oligarchy. And that Hamilton had rebelled against that.

But he wanted to take the practical wisdom as a relationship between power, finance and political justice and make it better.

SPITZER: But bring that back to just the interpretation of the document itself, since that is --

SCHAMA: Well, I think, again, not to -- not to preempt, Fareed, but exactly as you pretty much said, the Founding Fathers in all their disputes and disagreements were children of the enlightenment. And the essence of the enlightenment was to understand how thinking about power and government, that pertains certain principles in the classical period, but a moved on from there and moved on from the renaissance. It was in their intellectual DNA, horrible cliche, sorry, to feel things would move on again.

So, their generosity -- their generosity was to sort of organically provide r for the Constitution -- exactly as you said, to flower and bloom and change and mutate as circumstances --

SPITZER: Do we see that in the writings of time so we can say, wait a minute, the Founders themselves understood that the wooden interpretation of the words just on the page themselves would not deal with the crises we would have to deal with?

ZAKARIA: I think what you can say is, I mean, Jefferson's views on slavery, for example, clearly, he felt this was a reckoning that had to come. And many people at the time recognized that there were major issues that were unfinished.

This was -- the nation was just being founded. You know, the United States is unusual that we became a state before we became a nation. And most countries, the German's, the French, the Italians, they were nations in a sense of blood and soil long before they became states.

In America, you first created a state. You first created a founding document, and then you got about creating Americans.

And so, nobody really knew how it would play out. I think there was a sense of uncertainty. And everyone accepted that. The idea that this was going to be some kind of biblical document is nowhere in the Founders conceptions.

I mean, people -- what's striking about it, by the way, is at the time to have written such a relentlessly secular document as the Constitution, it really -- there's not a word about religion at a time when everything was about religion.

SPITZER: Fareed, hold that thought. We're going to come back in just a moment for more on that very topic.

We'll be right back.

(COMMERCIAL BREAK)

SPITZER: Welcome back.

Still with us, Fareed Zakaria and Simon Schama.

So, the Tea Party's invocation of the Constitution -- is it historical? Does it misinterpret at its essence what this Constitution has been for the entirety of our nation's history?

ZAKARIA: Well, I think that they are right to recognize that America is unique and it has, at its core, not a blood and soil nationalism, but a document, a document about political ideas. And we should cherish them and we should debate them. But where they're wrong I think is in thinking it points in one simple monolithic direction.

It really is a brief document that allows you to fill in the blanks over the last 222 years, filled with disagreements from the Founding Fathers onwards. And so, the idea that you can magically say the Constitution says this, and it -- you know, people keep saying, well, what would Madison have said about modern drug policy, (INAUDIBLE) Washington -- I mean, who knows? The world they knew was so different.

SPITZER: Right.

ZAKARIA: But, of course, you have to -- you have to, you know, whether you call it modernize it or interpret it differently, of course you have to do that.

SCHAMA: There is one very good thing I think that could happen out of the Tea Party obsession with the Constitution. I agree with Fareed that when we're talking about what the framers had in mind, we are talking an extremely polarized debate amongst them.

The good thing that could happen would be, I think, since we are now faced with moments in American history when there's radical polarization, there are two halves of the country who have an utterly, incommensurably different views about what the federal government should be, let us have -- not literally a constitutional convention -- but let's just a great convention n of debates on that very subject -- because sure as hell, we will not get it in the election next year.

ZAKARIA: For example, I mean, I don't think Americans think about the fact that the Constitution has also left us with some very peculiar situation. We think we're the most dramatic country in the world, right? But we have an upper House now, the Senate, that is probably the most undemocratic, the most unrepresentative upper House in the world.

SPITZER: Because of the allocations. Each state gets two votes regardless of how many, 36 million people in California, half a million in Wyoming.

ZAKARIA: Right. So if I were to say to you that people who own property should have 72 votes for every one vote that people who don't, you'd say that crazy. But people in Wyoming have 72 votes for every vote that California has. It's in complete violation of one man, one vote.

(CROSSTALK)

SPITZER: Well, let me end this fascinating conversation by observing the debate about the Constitution and the education about the Constitution that we all need is precisely what, I hope, folks get by listening to you to understand the historical roots of what is a much more subtle, organic document than the wooden, monolithic and linear document that we hear about so often. I hope we get that.

All right. Folks, thank you so much. Fareed, Simon, always great to have you here.

Two of the most erudite people you can ever have a conversation with. What a joy to be with them.

Up next, Dominique Strauss-Kahn isn't home free. And even if he does go home, more charges could be waiting. But will that keep him from being France's next president? I'll ask our favorite outrage French philosopher, Bernard-Henri Levy.

(COMMERCIAL BREAK)

SPITZER: As we have reported, prosecutors in the Dominique Strauss-Kahn case say they are not ready to drop charges despite the fact the case seems to be crumbling before their eyes. And now, the former IMF faces new accusations of attempted rape in France.

Meantime, the legendary French intellectual Bernard-Henri Levy wants his long-time friend's honor restored by the American justice system. He's been a leading voice over the past several weeks in defending Dominique Strauss-Kahn. I spoke with him earlier from Paris in his first TV interview since questions surfaced about the hotel maid's accusations. (BEGIN VIDEOTAPE)

SPITZER: Bernard, as always, thank you so much for joining us.

You have, from the very beginning, been the most fervent, devout, vocal defender of Dominique Strauss-Kahn. So certainly must feel some vindication at this point. But just so it is clear, the district attorney here in New York County has not dropped the case and in fact is continuing to investigate. And even though they say there are flaws in the witness' background and credibility, they have not, at this point, concluded that anything she said about her relationship with Dominique Strauss-Kahn is false.

Do you believe that she fabricated that entire story, or do you merely that there are credibility issues that derive from her past?

BERNARD-HENRI LEVY, FRENCH PHILOSOPHER AND JOURNALIST: About the attorney, let's wait for a few days, you will see. All this will -- the balloon will explode in the next hours.

What I believe from the very first minute is that this story was impossible. Dominique Strauss-Kahn could absolutely not do that. I know him. He's my friend. And I know him since a long time.

I knew that it was made up. I suspected it very, very strongly. And what I defended -- I did not only defend my friend Strauss-Kahn, I defended also a principle, which is holy, sacred in the American requisites (ph), which is the presumption of innocence.

What happened and which is really a pity for American justice, too, is that the presumption of innocence was completely destroyed and mocked in this affair. Dominique Strauss-Kahn was guilty before an examination.

SPITZER: Look --

LEVY: And he was guilty because he was an oligarch, an individual. Since the very first minute, he was a symbol. And when you have a symbol, this is just an another symbol, this is no longer the American (INAUDIBLE) which Alexis De Tocqueville praised so heavily and so much.

SPITZER: Let me switch back to the French judicial system for a moment. New charges apparently have been filed, somewhat similar allegations in France.

How do you make sense of that? Is that a figment of somebody's imagination? Is it an effort to pile on? How are we here in the United States to make sense of this second charge that has been brought against Dominique Strauss-Kahn?

LEVY: As far as I am concerned, I have again a strong suspicion that it is made up, again. We will see. What I can tell you is that Dominique Strauss-Kahn will probably not have again when he will come in and Charles De Gaulle, the brasses, the jacket, falling of the shoulder, (INAUDIBLE), the isolated cell -- all this comedy, all this treatment which is reserved to a great terrorist -- the way the IMF acted.

The way the IMF asked him to dismiss, resign without knowing anything. The IMF was exactly as a battalion of maids who demonstrated in front of the cook. Shame on you. Shame on you. You have the maids and you have the bureaucracy of the IMF saying the same, shame on you.

SPITZER: Some of your most pointed and many people think legitimate criticisms have related to American media that spared no opportunity, no chance to pile on, to lacerate and destroy the reputation of Dominique Strauss-Kahn.

Now, as you well know, the First Amendment is virtually sacred, the First Amendment that permits the press to do that. And many people view it as the mechanism by which we control and restrain those who are too powerful in government or elsewhere.

So, how would you suggest? What's your answer to the problem if you begin to restrain the media and the press -- don't you end up with government that knows no boundaries?

LEVY: No. I don't believe in restrain. I believe in market. I hope that the readers of "New York Post" and "Daily News" will know from now that their newspapers are not reliable. I hope they will send a real warning to these newspapers who say black one day and white the other day.

This is not serious. There is a real necessity of self- examination. Same in France. We did exactly the same. We have the same press and we have the excesses.

We have now the need of a collective self-examination and the newspapers before anyone.

SPITZER: All right.

LEVY: It is raining in Paris, I'm sorry.

SPITZER: That's all right. Bernard-Henri Levy, it is always a joy to hear your passion and your intellect and the precision of your thought -- thank you so much for joining us. And I look forward to having you back.

LEVY: Passion for America. Passion for America.

SPITZER: We know that.

LEVY: Most of all.

SPITZER: Thank you sir.

LEVY: Bye-bye.

(END VIDEOTAPE)

SPITZER: BHL is always entertaining. And in this case, he's proven absolutely correct.

That's it for tonight. This is my last program. And I thought the best way to sign off is with a quotation from Theodore Roosevelt. It is, in fact, the passage from which we took the title of the program "IN THE ARENA."

Here it is: It is not the critic who counts, not the man who points out how the strong man stumbles or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena whose face is marred by dust and sweat and blood which strives valiantly, who errs, who comes up short again and again because there is no effort without error and shortcoming, who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victor nor defeat.

Thanks for watching. Good night from New York.

"PIERS MORGAN TONIGHT" starts right now.