In Alexander Hamilton’s view, “humanity and good policy” counseled that “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Why? Because all criminal-justice systems occasionally work injustice, whether because of some laws that are too draconian or some enforcement actions that are too zealous — or, worse, are politicized. As Hamilton elaborated in Federalist No. 74, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The selective, politicized prosecution of conservative author, producer, and activist Dinesh D’Souza was an exercise in gratuitous severity. President Trump’s pardon of D’Souza, announced today, is the remedy the Framers had in mind.
D’Souza was (and is) a strident anti-Obama critic. He committed a trivial campaign-finance violation. This is not to excuse the conduct; it is to reaffirm the principle that the punishment should fit the crime, and to observe that the conduct at issue is typically not treated as a crime at all. Routinely, misconduct of the kind engaged in by D’Souza is settled by payment of an administrative fine to the Federal Election Commission. In stark contrast, the Obama Justice Department not only selectively prosecuted D’Souza; prosecutors turned the case into a multiple felony indictment.
Here’s how I described it at the time:
D’Souza is author of the Roots of Obama’s Rage and co-producer of the equally controversial film 2016: Obama’s America. They purport to trace the president’s politics to the Communism and anti-colonialism of his father. While some commentators found the book insightful, it has also been panned, and not just from the left (see, e.g., Andrew Ferguson’s scathing review in The Weekly Standard). Still, it was a big bestseller and, in conjunction with the movie, drew the ire of the White House. . . .
So now the Obama administration has indicted D’Souza for not one but two felony charges, arising out of alleged campaign-finance irregularities. Specifically, he is accused of corruptly reimbursing straw donors to the campaign of Wendy Long, Republican candidate in the New York Senate race — contributions D’Souza could not lawfully make himself because he was already “maxed out” at the $5,000 ceiling.
I do not know D’Souza well. I have no idea whether he made reimbursements, much less did so willfully. I have no doubt, though, that this is a manifestly vindictive prosecution. The $20,000 amount of the offense alleged is puny — a negligible fraction of the Solyndra scam and a figure that would not even register in comparison to the billions lost by victims who were told that if they liked their health-care plans they could keep them. It is the kind of case on which the government routinely declines criminal prosecution, handling, instead, by an administrative fine.
D’Souza has no criminal record. Moreover, contrary to myriad voter-fraud violations that Attorney General Holder will not lift a finger to pursue, the transactions at issue posed no conceivable threat to the integrity of the election process: Ms. Long lost by 46 points. As observed by no less than Harvard’s Alan Dershowitz (an Obama supporter), “This is clearly a case of selective prosecution.” There would, the professor added, be “no room in jails for murderers” if the Justice Department made a practice of such prosecutions.
Even more offensive, to my mind, is count two — the charge of making false statements to the government. To commit the species of campaign-finance violation alleged in count one, the defendant necessarily must cause the straw donor to file a false contribution report with the Federal Election Commission. That is, you cannot commit the donation offense without simultaneously committing the false-statement offense. For the government to charge both smacks of double jeopardy: being twice prosecuted for the same, single offense.
Why such a heavy-handed indictment? Because Congress deemed campaign-finance violations worth less than $25,000 to be so trivial that a maximum jail sentence of only two years is prescribed (see Title 2, U.S. Code, Sec. 437g(d)(1)(D)). You can also be certain the sentencing guidelines would prescribe no jail time at all. Yet, by gratuitously piling on another felony, Obama and Holder portray D’Souza as a serious crook and subject him to the onerous potential of seven years in prison — all for an episode that ordinarily would not be prosecuted at all.
As Legal Insurrection’s Bill Jacobson notes, the 2008 Obama campaign was caught illegally hiding not $20,000 but nearly $2 million in irregular contributions (in addition to dragging its feet on the return of millions more in suspect donations). You probably don’t remember that because — I know this will shock you — the Obama Justice Department didn’t prosecute anyone. It was considered a mere hiccup: resolved by a fine considerably smaller than the $500,000 in bail D’Souza was forced to post lest he be detained pending trial on his multiple-felony indictment for conduct worth 25 times less that amount.
The Obama Justice Department’s extortionate tactic of turning a regulatory violation into a potential seven-year felony put enormous pressure on D’Souza to plead guilty. When he did, rather than just accept its pound of flesh, the Justice Department aggressively pushed for a prison sentence. A bravura performance at the sentencing proceeding by D’Souza’s lawyer, Ben Brafman, convinced the sentencing judge not to imprison him; but D’Souza was still confined to a halfway house for several months — a ridiculous imposition since a halfway house is supposed to be a way-station where incarcerated inmates are transferred for integration back into society. No matter what you think of D’Souza’s politics, his treatment was abusive.
President Trump’s pardon of Dinesh D’Souza is just.