Yes, I’d give the Devil benefit of law, for my own safety’s sake!

From Why the Senate Shouldn’t Hold a Late Impeachment Trial by Philip Bobbitt via Ann Althouse.

the Senate is making a mistake in holding a trial of the article of impeachment, which is scheduled to begin the week of Feb. 8, after the president leaves office. Doing so subverts the law in an effort to punish someone who subverted the law.

It has sometimes been thought that any definitive construction of the Constitution is hopeless in the absence of a Supreme Court opinion. As one commentator suggested, “ [N]o one knows for sure. … Which means that the Senate can try Trump if it so chooses; it can assert its own good-faith understanding of the Constitution and see if the Supreme Court interferes.” This sort of approach has waned in recent years, however, and it is now widely accepted that analysts outside the courts have the means to weigh constitutional questions whether or not the Supreme Court has spoken. These means are the application of six well-known modalities of constitutional argument: text, structure, ethos, history, precedent and prudence. With these forms of argument in mind, let us review the question of whether a former officer of the United States may be impeached and convicted if he is no longer serving at the time of his trial.

Article II, Section 4 provides the substantive standard of law that governs impeachment. It states that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” 

Article I, Section 2 provides the procedural authority for impeachments. Clause 5 states that “the House of Representatives … shall have the sole Power of Impeachment.” Clause 6 states that “[t]he Senate shall have the sole Power to try all Impeachments. … And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Clause 7 limits the penalties that can be levied as a consequence of conviction: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” and qualifies this limitation by adding, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

There is no authority granted to Congress to impeach and convict persons who are not “civil officers of the United States.” It’s as simple as that. But simplicity doesn’t mean unimportance. Limiting Congress to its specified powers is a crucial element in the central idea of the U.S. Constitution: putting the state under law.

I am no Constitutional lawyer, or any other kind of lawyer for that matter.  Applying reason and precedent are weak foundations given unknown precedent.  Thank goodness I see my interpretation of the situation articulated by an actual professor of law, Mr. Bobbitt.  

And thank goodness he mentions the fundamental issue.  We are a nation of laws, equal under those laws, and the law is in part about constraining the State itself.

We have, as a nation, fallen into a bad habit of applying one set of laws to the citizenry and a much more lenient set of laws to the Mandarin Class.  One of my concerns in 2016 with Trump's election, especially given the popular cheers at his rally "Lock her up," was the possibility that he might be tempted to bring charges against Hilary Clinton.  She and Bill had a long trail of pretty certain law breaking across a range of activities and had always managed the political process to escape consequences and avoid prosecution.  

That she was guilty of a range of crimes of which she likely would have been found guilty were she outside the Mandarin Class seemed reasonably certain.  On the other hand, we do not want election winners exacting vengeance through the court systems on defeated opponents.  A bad precedent.  Between the bad choices of letting the probably guilty go free versus creating the precedent of elections leading to prosecuted opponents,  I preferred the former.  As eventually became clear, did Trump.

Instead we got the less anticipated opposite.  The establishment politicians in league with the machinery of the Deep State then spent four years trying to prosecute pseudo-crimes against the election victor.  

And they are still doing so, eroding norms and creating bad precedents as they seek to destroyer any interlopers into the sweet rentier system of the Mandarin Class.  

Bobbitt then goes into deep detail justifying his position.  It is a nice touch that Bobbitt ends his essay with:

Although it will be familiar to most readers, I think it is appropriate to recall the famous passage in “A Man for All Seasons” in which Sir Thomas More confronts his future son-in-law about the pitfalls in cutting legal corners to pursue wickedness:

William Roper: So, now you give the Devil the benefit of law! 

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? 

William Roper: Yes, I’d cut down every law in England to do that! 

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!