Benjamin Brafman, Celebrities, Election Law, Media and Journalism, Politics, S.D.N.Y., White-Collar Crime

Selective Prosecution Or Equal Justice: What Kind Of Example Does Dinesh D’Souza Set?

Dinesh D’Souza pleaded guilty to a charge related to illegal campaign contributions in Manhattan federal court on Tuesday. D’Souza, a conservative commentator, Reagan White House policy adviser, and Christian apologist, is widely known for his documentary film 2016: Obama’s America. D’Souza faces up to sixteen months in prison. Sentencing is scheduled for September 23.

The case involved D’Souza’s use of “straw donors” when his own campaign contributions reached their legal limit. He encouraged two people close to him to each donate to the 2012 U.S. Senate campaign of his friend, Wendy Long. D’Souza promised to reimburse them for the donations. According to a press release by the Department of Justice, “Later that same day or the next day, D’SOUZA, as promised, reimbursed the Straw Donors $10,000 each in cash for the contributions.”

D’Souza’s defenders and critics can apparently agree on several points:

(1) D’Souza committed the crime.
(2) D’Souza committed the crime in an astonishingly ham-fisted way. (There’s nothing sly about handing over cash the day after a conversation like that. D’Souza might as well have delivered the money in a box marked “Campaign Finance Law Violation.”)
(3) The government is making an example of him.

What each side means by “making an example of him” is what makes this case more interesting . . . .

Of course, prosecutors would probably argue that this case makes an example of D’Souza by demonstrating that the Department of Justice will vigorously enforce campaign finance laws, even when the accused is a political celebrity. D’Souza is an example that no one is above the law.

D’Souza’s supporters, on the other hand, think that the Obama administration is making an example of D’Souza by showing that it will punish its political foes.

When prosecutors indicted D’Souza in January of this year, his defenders rallied. In a letter to FBI Director James Comey, Republican senators called for more information. They questioned prosecutors’ claim that D’Souza’s wrongdoing was uncovered by a routine FBI review of FEC filings, not malicious targeting of one of the Obama administration’s outspoken conservative critics. The Republican senators quoted Harvard Law School Professor Alan Dershowitz as saying, “I can’t help but think that [D’Souza’s] politics have something to do with it . . . . It smacks of selective prosecution.”

Wendy Long supported her friend, while denying she knew of the illegal contributions at the time. Immediately after D’Souza’s plea, Long issued a statement maintaining her defense of her pal:

“I am heartbroken about this. [ . . . ] The statute that the government has used to target him is unconstitutional. When our government criminalizes the very free speech that the First Amendment was written to protect, sends people to prison for simply exercising their constitutional rights, and when government power is wielded like weapon against political enemies, we are all in trouble. There is no corruption here, and this entire episode is a shameful government overreach and a violation of the U.S. Constitution.”

Dinesh D’Souza

A Washington Times editorial earlier this week argued, “Whether guilty or not, the fact that Mr. D’Souza has been singled out for prosecution while others skate past freely reveals President Obama’s thumb on [Lady Justice’s] scale.” It points out that Obama’s own campaign was fined $375,000 in 2013 for violating campaign finance laws, yet “no one was threatened with prison for that.”

Despite these rumblings and D’Souza’s own motion to dismiss the indictment for selective prosecution, brought by his prominent defense lawyers, Benjamin Brafman and Alex Spiro, U.S. District Judge Richard Berman rejected D’Souza’s motion. Judge Berman concluded that there was no evidence to support D’Souza’s allegations.

What’s the difference between malicious “selective prosecution” and benign “prosecutorial discretion”? A prima facie case for selective prosecution requires that a defendant show both (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e., discriminatory purpose or intent. Courts demand a high degree of similarity with the comparators and nearly-express discriminatory intent. These arguments rarely succeed.

No doubt the Obama administration was giddy with delight to uncover wrongdoing by one of its high-profile enemies. However, the straw donor prohibition D’Souza violated is not some antiquated statute lingering on the books through neglect, like a blue law unenforced for years until someone the government doesn’t like violates it. Others who have violated similar campaign finance laws have been prosecuted, though, indeed, not all have. A better analogy may be assault: the crime happens often, but for good reason is not prosecuted quite as often as it happens. Skepticism of the administration’s motives is wise; highlighting D’Souza’s case as an instance of selective prosecution is not.

Opponents of the administration can pick a better poster boy for overreach and political targeting than D’Souza. There are victims of targeting that are not actually guilty of crimes. Conservatives are wise to focus on them.

D’Souza appears here to be some combination of reckless, stupid, or corrupt — not noble. Even his staunch supporters can’t avoid this. Wendy Long does not suggest that D’Souza committed an act of purposeful civil disobedience. She insists that the law is unconstitutional, but she doesn’t claim that D’Souza flouted it to willingly martyr himself for the cause.

D’Souza is an open critic of campaign finance laws such as the one he pleaded guilty to. (I’m inclined to agree.) So, perhaps he felt no moral qualms about the conduct here. Perhaps his choice to stay within the law or not was simply a weighing of (a) the good he believed he would accomplish by giving his friend more money, versus (b) the bad of getting caught doing so, with some squiggles thrown in about (c) the likelihood that he could accomplish similar ends through the many technically legal alternatives, and (d) the likelihood that the additional money would make a lick of difference for Wendy Long’s presumptively doomed campaign. An application of a purely utilitarian calculus? If so, lousy tallying of the hedons, Dinesh. The devil’s in those squiggles. D’Souza looks reckless or stupid here, even if not blatantly morally corrupt.

I respect Dinesh D’Souza’s intellect, though he has a history suggesting that he lacks sound personal judgment. Volunteering otherwise private information to an unreceptive audience may be foolish, but it’s not criminal. Unfortunately, using straw donors is. Who knows? Perhaps D’Souza is willing to go to prison for a few months if the surrounding press will boost popularity of his new film that releases this summer.

In the end, there is a fourth point both detractors and supporters of Dinesh D’Souza should agree upon: the best way to avoid being the subject of selective prosecution is not to commit a crime in the first place. As for political martyrdom under the Obama administration, conservatives can find better examples.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

8 comments
(hidden for your protection)

comments sponsored by

Show all comments

Our Sites

  • Above the Law
  • How Appealing
  • ATL Redline
  • Breaking Defense
  • Breaking Energy
  • Breaking Gov
  • Dealbreaker
  • Fashonista
  •