NATIONAL REVIEW ONLINE
February 1, 2014 4:00 AM
Amnesty, but Not for D’Souza
For Obama’s Justice Department, campaign-finance law is a partisan club.
By Andrew C. McCarthy
How come no one’s worried about bringing Dinesh D’Souza “out of the shadows”? After all, the poor fellow didn’t do anything wrong — not really. He just wanted to participate fully in our national life, in our democratic process. He didn’t want to hide — he was forced to take cover by our draconian, inhumane campaign-finance laws.
Mr. D’Souza’s real crime, the only offense that really matters in Washington these days, is being an Obama critic. Oh, they say he borrowed a couple of people’s names, but his real mistake was doing it in the Wendy Long Senate campaign. For Obama 2008 donors, borrowing other people’s names seems to have been a requirement.
And look, it’s not like every moment of D’Souza’s presence in this country has been a violation of law — even if it does rub the regime the wrong way. Nor does his day-to-day life ooze identity theft, tax evasion, bank fraud, Social Security fraud, Medicaid fraud, Medicare fraud, food-stamps fraud, and the like. Those crimes, instead, fill out the résumés of our “undocumented” legions. So ubiquitous is illegal-alien crime that the benumbed Beltway ruling class — very much including its Republican-establishment division — now just shrugs and says, What difference, at this point, does it make?
Why no difference for them but a life-altering difference for D’Souza? Because he’s not among the favored outlaws of our law-unto-himself president.
If you’re on the team, “amnesty” does not begin to describe the immunity windfall. Sic the IRS on American citizens in order to frustrate their participation in election campaigns? No worries . . . and no prosecutions, not even for officials who take the Fifth in congressional testimony because they believe answering questions will confirm their criminality. Case closed: No need even to interview the victims, innocent people who were nonetheless intimidated by the prospect of audits, fines, civil lawsuits, criminal prosecution, and, above all, prohibitive legal fees — the wages of both compliance and resistance. After all, the victims opposed Obama. As they say at Alinsky, Inc.: “We won, get over it.”
Benghazi? Remember: The serial derelictions of the president’s duty to protect Americans under siege? Obama’s instigation of an unauthorized war with no vital American interests at stake — a war that empowered anti-American jihadists? The NATO campaign that abetted the Qaddafi murder — notwithstanding the ban on assassinations of heads of state and our government’s prior representation that Qaddafi was an important U.S. counterterrorism ally? Oh well . . . as so memorably put between chuckles by Secretary “What Difference” herself: “We came, we saw, he died!” On to the minimum wage.
Then there’s the gargantuan Obamacare con job: the sedulous administration lying, the willfully false lulling, the law’s unconstitutional enactment, the lawlessly imperial “waivers,” the shameful subsidies to buy off members of Congress and their staffs, the unlawful IRS enforcement in states that declined to participate, the transparent campaign to usher in a single-payer government takeover by breaking the health-care insurance system. It is the most massive fraud in American history, and there will be no investigations or prosecutions. Take heart, though: Republicans have a plan that is right on schedule to repeal Obamacare by, oh, around 2024, the same year Paul Ryan’s boffo budget plan brings Leviathan’s ledgers into balance. Oh wait, check that: It turns out the latest Ryan plan relies on Obamacare to balance the budget. Sounds as promising as his new “enforcement first . . . make that last” immigration plan.
We could go on about faithful execution of the laws, Obama-style: the non-recess recess appointments; the Justice Department’s racially discriminatory civil-rights enforcement; the Solyndra “green-energy” boondoggle, featuring Obama’s blatant misrepresentations of a publicly traded company’s financial health and his subsequent override of a federal law meant to protect taxpayers — the better to shield his cronies from losses when the company inevitably collapsed. (Now that’s Obamacare!) But such offenses are not the half of it. What is most breathtaking is the Obama administration’s vindictiveness.
In late September 2012, the president and his myrmidons tirelessly labored to deceive the nation into believing the Benghazi Massacre they’d recklessly bungled into was actually caused by an obscure, virtually unseen video — the trailer for an anti-Mohammed movie called Innocence of Muslims. Benghazi was not the only context for this duplicitous claim. For years, Obama and Secretary What Difference had colluded with Muslim-supremacist governments (the Organization of Islamic Cooperation) to “waive” First Amendment protections in deference to sharia blasphemy standards that ban all negative criticism of Islam. Remember Obama at the U.N., just two weeks after our ambassador was murdered, proclaiming to the world that “the future must not belong to those who slander the prophet of Islam.”
With his Benghazi story exploding, Obama needed a prop — someone to make an example of, someone to be sacrificed for the sake of the phony narrative. His minions dutifully set their sights on the hapless Nakoula Basseley Nakoula, the Innocence of Muslims producer.
A few years back, Nakoula had opened bank accounts using fake names and stolen Social Security numbers — again, crimes of the sort the Obama administration and the Republican establishment think we should overlook when committed by illegal aliens. The sentencing judge thought the crime so minimal that Nakoula spent only a year in jail before being sprung on “supervised release” — i.e., he was, like tens of thousands of former prisoners, free but under light monitoring by a probation officer.
After the Benghazi terrorist attack, it emerged that Nakoula had produced the scapegoat video. In theory, that activity was completely protected by constitutional free-speech principles; in practice, however, the administration was hell-bent on blaming the video and its maker for both the massacre and the violent proclivities of Islamic radicalism. Agents were thus dispatched to arrest Nakoula in the dead of night. He was grilled about making the film — meaning: He was interrogated about exercising his First Amendment rights. He was prosecuted for a “supervised-release violation” culled, in part, out of false statements about the production of the video. After being held without bail as a purported “danger to the community,” Nakoula was sentenced to another year in prison — as much time as he’d served for the underlying bank fraud.
Understand, in normal law enforcement this never happens. Agents and prosecutors are supposed to be too busy with real crimes to probe non-suspects over activity that is palpably not criminal. Furthermore, nonviolent criminals suspected of, at best, petty supervised-release violations are not arrested — they are given summonses to appear in court on their own recognizance. They are not detained without bail but left at liberty until the court date. And rarely, absent commission of a serious new crime, are they sent to jail on a first supervised-release violation. Instead, the judge gives them a tongue-lashing, warns them to honor the supervised-release terms from now on, and sends them on their way. With jails overcrowded, it often takes three or four violations before a court will finally re-incarcerate a convict.
But you don’t get normal law enforcement if you run afoul of Obama and if your torment would have just the right in terrorem effect. Nakoula was too useful to pass up: For Americans, the administration framed him as the villain in its “blame the video” charade; for Muslims, he became Exhibit A of Obama’s plan for people who dare “slander the prophet of Islam.”
Which brings us back to the unfortunate Dinesh D’Souza: not just a prominent conservative and Christian activist, not just a harsh critic of progressivism and the academy, but a highly visible Obama detractor. 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, where you’d be better off slandering the prophet of Islam than critiquing Obama.
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.
Persecuting the Left’s foes and foils may be “social justice,” but it is not justice. And a president who does not dispense justice is not fit to be president.