Slippery slope - when the state tries to turn legal acts into a crime if the acts are improperly motivated

I am not sure I have seen this important point much discussed. From Who won, who lost in Mueller report by Alan Dershowitz.

On the obstruction issue, the bad news for President Trump may exceed the good news. Although the report “does not conclude that the President committed a crime,” as it states, it also refuses to “exonerate him.” Already, Democrats are arguing that Congress can revisit the obstruction evidence and come to its own conclusions about whether President Trump’s conduct constituted obstruction of justice. The catalogue of ten instances of possible obstruction provide a roadmap for Congress to further investigate, even if in the end it decides not to impeach.

Attorney General William Barr and special counsel Robert Muller apparently have a fundamental disagreement over whether a president can be charged with obstruction of justice if he merely engaged in an act authorized by the Constitution but with an improper motive.

Barr takes the view — a view that I have argued for many months — that the act requirement of a crime (actus reus) cannot be satisfied by a constitutionally authorized action of the president, such as firing FBI Director James Comey. Mueller takes the view that a constitutionally authorized act can be turned into a crime if it is improperly motivated.

Mueller’s view is extreme and dangerous to civil liberties because it creates pure thought crimes. According to Mueller, the corrupt motive is the crime because surely the constitutionally authorized act cannot be criminal. The implications of this view for all Americans are frightening. They are especially frightening if applied to a president. Do we really want prosecutors or members of Congress to probe the motivations of presidents when they take constitutionally authorized actions?

I agree. I abhor "thought crimes" because they open the door to massive governmental abuse. All totalitarian regimes dress themselves up in free speech clothes and yet always devolve into punishing free people for their wrong think.

It is easy to create the idea that thought crimes should be punished. Don't call it a "thought crime" is the first step. Call it a "hate crime" or some such. George Orwell made clear jut how easy it is for totalitarian states to use language in order to try and control people.

The western tradition that you punish the actions and not the thoughts needs to be restored. In this instance, trying to create thought crimes always leads to bad outcomes.

Constricts thinking. - Life is not static. We always need to think outside the box. We need to consider what might, under different circumstances, to have been unconscionable. If there are hard guards on what we can think, we cannot adapt and evolve.

Leads to abuse and suppression - Almost one of those iron laws. If you give the state the power to police what is in your mind and heart, rather than your actual actions, then the state will use that power for its own ends.

Overburdens the legal system - We see this all the time with District Attorneys and hate crimes. If someone committed a murder that is easily proved, why waste the time and money of trying to prove the motivation. Indeed, if you go to motivation (the thought part of the crime), you can accidentally subvert your own easy prosecution. Rarely do we do things for a single reason. In order to show that the crime was committed for a hateful reason, I open the door to all the other reasons that could plausibly be considered; some of which might be admirable or might turn the attention to the actions of the victim. Consequently, DAs tend to be reluctant to invoke hate crime prosecutions because it is an additional burden of proof and prosecutorial risk with little additional benefit.

We have four bad turns in legal action over the past fifty years which we need to rethink. They all came into being for nominally good reasons but they represent a threat to our system of governance requiring rule of law and equality before the law.

Thought crimes - Trying to make motivation and thought the crux of the actual crime.

Process crimes - Making the investigation of the possible crime the actual punishment when the underlying crime itself cannot be proved.

Asset forfeiture - Creates the incentive for state institutions to fund itself without having to tax citizens. It usually ends up being an abuse of power as well as an abuse of those least able to protect themselves from the power of the state.

Over-charging - Throw enough mud on the wall and at least something might stick. Again, the process becomes the punishment. We want and need to punish actual crimes committed, not inflict injury on the accused simply because it is easier to go after a lot of small stuff instead of the actual crime itself.