The lethal injection room at San Quentin State Prison, completed in 2010 [public domain, Wikimedia Commons]

On April 1, The Supreme Court of the United States ruled against death row inmate Russell Bucklew’s appeal of his execution method. Nixing his claim that a rare medical condition would make the execution unconstitutionally “cruel and unusual” by virtue of being excruciatingly painful the Court (in an opinion written by Associate Justice Neil Gorsuch) held that the Eighth Amendment “does not guarantee a prisoner a painless death.”

SCOTUS has been the most prominent venue for opposition to the death penalty, but also the least effectual. Intermittent victories on procedural details produce false hopes that the Court will eventually find the death penalty as such an unconstitutionally cruel and unusual punishment. Then events like the retirement of Associate Justice Anthony “Swing Vote” Kennedy dash, or at least delay, those hopes.

The constitutionality of capital punishment has never really been in question. While some of the Constitution’s framers disliked the practice (“I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it” wrote James Madison, one of those framers and later President of the United States), it was common practice at the time of the Constitution’s ratification and has never in the round (as opposed to in particular details) been successfully challenged on constitutional grounds.

But it’s still wrong, and it still needs to go.

The claim of inherent jurisdiction over life and death — the claim of a “legitimate” power to kill disarmed prisoners, in cold blood and with impunity (as opposed to the currently violent, in defense of self or others, subject to requirement to justify the deed) — is the very definition of totalitarianism.  You can have limited government or you can have capital punishment. You can’t have both.

Over the last half-century, opponents of the death penalty in America have energetically chipped away at both its popularity and its political legitimacy.

Exonerations of death row inmates, and execution fiascoes resulting from Mengele-like experimentation with methods, have probably pushed us past the point of no return as state governments reconsider (and in some cases declare moratoriums on) capital punishment.

In 2016, two American political parties — first the Libertarian Party, then a few weeks later the Democratic Party —  enshrined opposition to capital punishment in their platforms.

In an era of ever-growing government power, this is one issue we seem to be moving in the opposite direction on. We should move faster.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

• “Capital Punishment Isn’t Unconstitutional. We Should End it Anyway,” by Thomas L. Knapp, River Cities’ Reader [Iowa], 04/26/19
• “Capital Punishment Isn’t Unconstitutional. We Should End it Anyway.” by Thomas L. Knapp, OpEdNews, 04/27/19
• “Death penalty constitutional, but cruel,” by Thomas L. Knapp, Wilson, North Carolina Times, 04/29/19
• “Capital punishment isn’t unconstitutional; we should end it anyway,” by Thomas L. Knapp, Richmond, North Carolina Observer, 05/01/19
• “Capital punishment isn’t unconstitutional, but we should end it anyway.” by Thomas L. Knapp, Palm Beach, Florida Post, 05/06/19
• “Capital Punishment Isn’t Unconstitutional, But We Should End The Practice Anyway,” by Thomas L. Knapp, Cordell, Oklahoma Beacon, 05/08/19

On April 18, US Attorney General William Barr released Special Counsel Robert Mueller’s report on the probe into “Russian meddling” in the 2016 presidential election. The report cleared President Donald Trump and his campaign team of allegations that they conspired with the Russian government in that meddling. But on the question of “obstruction of justice,” Mueller punted in an eerily familiar way.

Return with me briefly to those thrilling days of yesteryear. Specifically, July 5, 2016. As I wrote then:

“FBI director James Comey spoke 2,341 words explaining his decision not to recommend criminal charges over Hillary Clinton’s use of a private email server to transmit, receive and store classified information during her tenure as US Secretary of State. He could have named that tune in four words: ‘Because she’s Hillary Clinton.’ Comey left no doubt whatsoever that Clinton and her staff broke the law …”

Mueller’s report likewise cites evidence of multiple attempts by the president to obstruct his investigation. “[T]he President sought to use his official power outside of usual channels,” he writes. “These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”

But before the evidence, the punt: “[W]e determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.'”

Translation: Anyone else who did what Donald Trump did would find himself buried under obstruction of justice charges. But Donald Trump is the President of the United States.

The difference between Comey’s treatment of Clinton and Mueller’s treatment of Trump is that Clinton’s immunity to laws meant for mere mortals was unofficial — based on her prominence as a ranking member of the political class — while Trump’s similar immunity is a formal function of his holding a particular office.

Did Trump “obstruct justice?” I’m no lawyer, but Mueller’s report indicates that Trump abused his power to attempt to impede the investigation. That sounds like obstruction to me.

Does it matter that the investigators found no underlying crime after overcoming the obstructions? Some people think so. I don’t.

If you were accused of a “missing body” murder you didn’t commit, and asked someone to give you a false alibi (because you were actually in bed with someone other than your spouse and didn’t want THAT known), or gave a false tip to the police, you’d face charges independent of the underlying crime even if the supposed victim turned up alive.

Why? Because (in theory at least) a criminal investigation pursues the truth of the matter, not just a particular suspect or verdict.

Trump’s conduct was aimed at frustrating that pursuit of truth. Immune or not, that’s wrong.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, River Cities’ Reader [Iowa], 04/22/19
• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, OpEdNews, 04/24/19
• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, CounterPunch, 04/24/19
• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, Richmond, North Carolina Observer, 04/24/19
• “On obstruction, the Mueller report is Clintonesque,” by Thomas L. Knapp, Southgate, Michigan News-Herald, 04/26/19
• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, Ventura County, California Citizens Journal, 04/27/19
• “On Obstruction, the Mueller Report is Clintonesque,” by Thomas L. Knapp, Berlin, New Hampshire Sun, 04/29/19

I haven’t read the Mueller report yet. I’m writing this on the day of its release (with redactions) by US Attorney General William Barr.  I’ll read it later, but I didn’t have to read it, or even wait for its release, to reach one conclusion from it: It’s time to amend the Constitution to limit the President of the United States to one term.

No, not because I don’t like Donald Trump. I don’t, but I didn’t like his 2016 Democratic opponent either, nor do I expect to like his 2020 Democratic opponent. As long as American voters continue to limit themselves to voting for Republicans and Democrats, I don’t care too much which of the two parties they vote for.

Nor because I think term limits as such would usher in an era of “citizen legislators” and solve some of the systemic problems in American politics caused by political careerism (as my friend Paul Jacob, founder of US Term Limits, believes). It’s not that they’re a bad idea. It’s that they’re more of a distraction than a solution.

But the presidency is an office of singular weight.

We can afford, at least to some degree, to have members of Congress worrying about their own re-elections at the expense of doing the people’s business (however one defines that).

But can we afford to have both the president and Congress worrying about almost nothing BUT the president’s re-election prospects, 24/7, for four years out of every eight?

Let’s face it: That’s what the entire two-year (so far) “Russiagate” moral panic has mostly been about. Democrats want to either impeach Donald Trump and remove him from office or, failing that, destroy his prospects of re-election.

And yes, that’s what the last two years of Bill Clinton’s first term were all about too.  Republicans hoped they could find something, anything, that would make it possible to beat Clinton in 1996 (didn’t work).

It didn’t help the Republicans in 1996. It isn’t helping the Democrats now. And ignoring real public policy issues in favor of such antics certainly did not then, and does not now, serve any rational interest of the public, except perhaps the interest of entertainment. That’s what Game of Thrones and F is for Family are for.

This is a problem we can fix. Limit the president to one term.  No re-election campaign by the president. No de-election campaign by the president’s opponents.

One. And. Done.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

• “The Mueller Report Changed my Mind on Term Limits,” by Thomas L. Knapp, Ventura County, California Citizens Journal, 04/18/19
• “The Mueller Report Changed my Mind on Term Limits,” by Thomas L. Knapp, CounterPunch, 04/19/19
• “The Mueller Report Changed my Mind on Term Limits,” by Thomas L. Knapp, OpEdNews, 04/20/19
• “The Mueller Report changed my mind on term limits,” by Thomas L. Knapp, Montgomery, West Virginia Herald, 04/25/19
• “The Mueller Report changed my mind on term limits,” by Thomas L. Knapp, Fayette, West Virginia Tribune, 04/25/19