Criminalizing Policy Differences, Begging the Question

I've been seeing this meme a lot recently, raised by GOP flaksters whenever the possibility of prosecutions of Bush administration officials or CIA officers for torture is discussed. "It's wrong to criminalize policy differences," is the refrain.

I find this rather confusing. The meme is clearly missing a clause, in that it should state "It's wrong to criminalize policy differences when the policy at question is not otherwise criminal." Because it's perfectly possible for a policy to be, at the same time, criminal. In which case, there would be nothing improper about criminalizing it. The meme, in short, begs the question of whether the policy was criminal.

Here's an example. Let's say that I'm a city manager, and it's my unwritten but uniformly enforced policy of only contracting with firms that pay me a consideration on the side. I don't call this a "bribe," and I have an elaborate rationale written up by the city attorney that says that, within limits, this program does not violate state or federal law. Besides, the city attorney argues, as a city official, I am part of the state and it is a violation of state sovereignty for federal law to tell me how to run the city. And so on. (It's very poor legal advice, but it was written by an attorney.)

Let's say that a new city council comes in and replaces me. And the new city manager discovers what I've been doing. Can I argue that he just has a different policy toward contracting? That he shouldn't "criminalize" our different ways of doing business? I can, but it is no defense.

There has been debate in the past over criminalizing policy differences, but it has usually been about politically motivated prosecutions for things tangential to policy itself. So one party might investigate the other's officeholders seeking out something to prosecute. This is the sort of argument that Blago makes, and it does happen. The Sigelman case in Alabama is another example, by most accounts.

But this may be the first time that I've seen the argument made the behavior being criminalized was the policy itself.