Dershowitz, Law Enforcement Experts Slam D'Souza Targeting
Wednesday, January 29, 2014 08:15 PM
By: Jennifer G. Hickey and John Gizzi
Even if allegations made against conservative filmmaker Dinesh D'Souza in a federal indictment on campaign finance violations prove to be true, legal experts and former federal regulatory authorities tell Newsmax that the government's handling of the case has been unusual.
"This is clearly a case of selective prosecution for one of the most common things done during elections, which is to get people to raise money for you," famed law professor Alan Dershowitz told Newsmax.
"If they went after everyone who did this, there would be no room in jails for murderers."
Federal prosecutors indicted D'Souza last week on two felony counts, charging that he promised to reimburse others if they would contribute to an unnamed Senate candidate, an offense that carries a maximum sentence of two years in prison, and causing false statements to be made to the FEC, which carries a maximum of five years.
Prosecutors allege that D'Souza illicitly directed a total of $20,000 in donations, with the money reportedly going to the New York Senate campaign of Republican Wendy Long, a long-time friend, who was handily defeated by Democrat Kirsten Gillibrand in last November's election.
The Justice Department's tactics remind Dershowitz of the words of Stalin's secret police chief, Lavrentiy Beria, who said, "Show me the man and I’ll find you the crime."
"This is an outrageous prosecution and is certainly a misuse of resources," charged Dershowitz. "It raises the question of why he is being selected for prosecution among the many, many people who commit similar crimes.
"This sounds to me like it is coming from higher places. It is hard for me to believe this did not come out of Washington or at least get the approval of those in Washington."
Others share Dershowitz's suspicions. Joseph diGenova, a former U.S. Attorney and partner at the law firm diGenova & Toensing, says it is not surprising that criminal charges were brought because the Justice Department has been actively prosecuting campaign finance violations.
"But what strikes me as unusual is that it involves a single donation made by an individual with no criminal record. It seems to me that a misdemeanor makes much more sense than a felony charge," diGenova told Newsmax.
The U.S. Justice Department's move against a popular conservative intellectual — D'Souza served as an adviser to President Ronald Reagan and most recently produced the box office blockbuster film "2016: Obama's America," which offered a harsh criticism of the president's world view as anti-American — has raised hackles on the right. D’Souza supporters claim the charges are politically motivated and that the Obama critic is being treated differently than the average defendant.
"What struck me first was that it is unusual in cases like these for the FBI to go out and actually arrest someone, simply because it is not necessary," David Mason, a former commissioner of the Federal Election Commission, told Newsmax.
"And even less so in this case because [D'Souza] has enough prominence that it is fairly obvious that he is not a flight risk. White collar indictments are made lots of times without an arrest being made," Mason said.
Law enforcement experts tell Newsmax that if the FBI or another federal agency received a tip about a fraudulent act involving just $20,000, the government would likely show little interest in investigating. Mason notes that a violation of $20,000 in contributions is trivial compared to most cases.
"The violation involves a pretty small amount for this type of case," said Mason, who was an FEC commissioner from 1998 to 2008. When small amounts of campaign financing regularities are uncovered the matter is usually resolved at a low level.
Mason believes the case against D'Souza will succeed or fail depending upon whether prosecutors can prove he was "knowing and willful" in making the improper contributions. "There are a lot of sophisticated people who are not aware of the nuances of campaign finance law," he pointed out.
The case most often compared to D'Souza's is that of Arkansas trial lawyer Tab Turner, for donations made to former South Carolina Sen. John Edwards' 2004 presidential campaign.
Turner directed four members of the staff at his law firm to make contributions totaling $8,000 to the Edwards campaign and reimbursed them for the donations. Turner also used the firm's credit card to contribute $2,000 to the Edwards campaign and made a $2,000 contribution attributed to his brother and sister-in-law.
But Turner's case — which was handled with a civil, not criminal, complaint — was more involved. He also made in-kind contributions by using law office staffers to help plan fundraisers for Edwards and charged more than $2,000 in hotel and rental car expenses to the firm for Edwards Committee staffers' travel to the events.
Turner eventually paid a $50,000 civil fine to the FEC. The Edwards for President Committee paid a $9,500 penalty for accepting the contributions.
Hans von Spakovsky, former FEC commissioner, said, "Most of the campaign finance violations handled by the FEC are inadvertent violations of the law. … The FEC usually gives way to DOJ to pursue the criminal side of the case. The FBI is used by DOJ to investigate these types of campaign finance violations."
Richard Hasen, a professor of law and political science at the University of California, Irvine, said raising the question of what motivated the Justice Department's tactics against D'Souza is legitimate.
"Any time you have a case that involves a person that is prominently known for their political views being prosecuted and you have a prosecutor who is equally prominent, it is natural to have questions raised about what is behind the charges," Hasen told Newsmax.
The prosecutor in the D'Souza case is U.S. Attorney Preet Bharara, a former staff member to Democratic Sen. Chuck Schumer of New York and an Obama appointee. Bharara has earned a reputation for his rigorous prosecution of white-collar crime on Wall Street and has been mentioned as a potential successor to Attorney General Eric Holder.
"My sense had been that in the past many of these, when they were smaller scale, were handled civilly or were pleaded out," Hasen said.
Hasen pointed to the cases involving then-Alaska Sen. Ted Stevens and then-House Speaker Tom DeLay of Texas, both Republicans, as examples of cases that were politically motivated. In both circumstances their convictions were overturned.
In a statement issued after the indictment, D'Souza's attorney Benjamin Brafman asserted that his client "did not act with any corrupt or criminal intent whatsoever. He and the candidate have been friends since their college days, and at worst, this was an act of misguided friendship by D'Souza."
In the context of the political targeting of tea party and conservative groups by the IRS, and recent reports that the IRS is investigating members of the Friends of Abe, a group of Hollywood conservatives, critics say something does not seem "ordinary" about D'Souza's prosecution.
Greg Molen, a co-producer on "2016: Obama's America," clearly believes the indictment was politically motivated.
"In light of recent events and the way the IRS has been used to stifle dissent, this arrest should send shivers down the spines of all freedom-loving Americans," Molen said in an interview with the Hollywood Reporter.