Dershowitz Doctrine

Trump's main defences to the charges he faces, both before and after the start of the Impeachment trial, have so far consisted of the following...

1. There was no "quid pro quo".
2. This is a frame-up by the Democrats - a witch hunt. There is no truth to this whatsoever.
3. Trump intended to withhold the cash as he was concerned about corruption, and not as a "quid pro quo".
4. If there was a "quid pro quo", then what he did was not a crime, and because persons can only be impeached for committing crimes, Trump cannot be impeached.

And the latest which appears to have surfaced today from one Republican Senator... 

5. OK, there was a "quid pro quo", but we should let the American people decide Trump's fate in the next election rather than impeach him.

Of course, if the "let's let the American people decide in the next election" defence wins the day, then there is no reason to have an impeachment provision in the US Constitution, as there will always be another election.

Trump's defence lawyer, Alan Dershowitz, introduced a sixth defence this week.

He advised the United States Senate that the American President was within his rights to try to coerce Ukraine to investigate his political opponent, Joe Biden, in order to gain a political advantage that could see him re-elected, if Trump truly thought his re-election would benefit the American people. This is a "mens rea" type of defence - as long as the intent was to get re-elected in the belief that doing so would benefit Americans, anything goes.

On the issue of what would warrant impeachment, Dershowitz though that only if he committed an outright crime, like taking kickbacks from the building of a hotel, could Trump be impeached.

Given that every leader everywhere would assert that their leadership is for the benefit of the people, the Dershowitz Doctrine would leave the President of the United States largely beyond what we know as modern political ethics.  

Let's look at recent attempts at impeachment. 

Would Nixon have been impeachable if he could argue that Watergate was OK because he was trying to get re-elected and that his re-election would benefit the American people? It is at least debatable. The break-in was a crime, but no one has ever proven he knew about it. 

Clinton would have a hard time arguing against his impeachment by outlining how lying about getting fellacio from his staff in the White House was in aid of getting re-elected for the benefit of the American people. However, if he did actually try to explain it, no doubt millions of people would still believe the silver-tongued devil!

The Dershowitz Doctrine (DD) would really make its mark on those things for which the President has discretion.

Certainly, using the portion of the country's treasury that Congress has allowed the President to spend in his own discretion, in order to pay people who will help him get elected, and to punish those who will not is perfectly fine via the Dershowitz Doctrine. 

One is reminded here of Robert Mugabe who starved sections of the country that did not vote for his party by withholding food aid - that could be 100% OK under the DD, if he had simply said this was about getting re-elected for the benefit of the people.

As well, hiring only those who would vote for and support a president, and firing anyone in government employment who did not would also be OK.  

Could Trump arrest political opponents as long as he said it was in aid of his re-election which he truly believed as for the benefit of the American people? Well, he is the chief law enforcement officer in the country, now isn't he, and enforcement is a discretionary activity.

The list goes on...

The Dershowitz Doctrine has not been accepted, but if it were, it would represent a revolution in American public life. 

Unlike what some have written, I do not think that the DD would put the president above the law and effectively make Trump into a monarch. Dershowitz seemed pretty clear that presidents cannot actually break the law, and monarchs are - by definition - above the law, so the DD would not go that far. But in the murky world of "ethics", just about anything would be OK as long as Trump could say that he thought that his re-election was to the benefit of Americans.

Hmmm...do you think Donald Trump would say that his presidency has benefitted America, and that America needs four more years of him???

It is a distinct possibility.