Opinion

Alison Frankel

Dinesh D’Souza faces ‘surprisingly frequent’ campaign finance charges

By Alison Frankel
January 24, 2014

After news broke Thursday that federal prosecutors had charged conservative commentator, author, film-maker and professional Obama-basher Dinesh D’Souza with violating campaign finance laws, Walter Olson at the Overlawyered blog posted on the relatively mild civil sanction meted out to a “big-league trial lawyer” who’d done pretty much the same thing D’Souza is accused of. D’Souza has been indicted for allegedly paying $20,000 to reimburse straw donors to the campaign of Republican Senate candidate Wendy Long, who lost a 2012 contest against incumbent Kirsten Gillibrand. Arkansas trial lawyer Tab Turner, as Overlawyered recounted in 2006, reimbursed donors of $8,000 to John Edwards’ 2004 presidential campaign and just had to cough up a $9,500 civil fine. By highlighting the contrast in his post Thursday, Olson seemed to be suggesting that D’Souza has been selectively targeted for prosecution because he’s so critical of the Obama administration.

Former acting U.S. attorney general George Terwilliger of Morgan, Lewis & Bockius raised the same suggestion in an interview Friday. Terwilliger, who served in the administration of two Republican presidents and later defended noted Los Angeles lawyer Pierce O’Donnell against campaign finance charges similar to those leveled against D’Souza, told me there are “legitimate questions that could be asked about the political motivation for bringing the case.” Want more conspiracy theorism? Dominic Gentile of Gordon Silver, who represented Nevada campaign finance defendant Harvey Whittemore, conducted exhaustive research on so-called conduit payments of the sort D’Souza is accused of making. In Whittemore’s sentencing memo, he documented civil and criminal penalties in “straw donor” cases. “Twenty thousand dollars?” Gentile told me. “I’ve never heard of a $20,000 criminal case” for campaign finance violations.” And at D’Souza’s arraignment Friday in Manhattan federal court, his own lawyer, Benjamin Brafman, told U.S. District Judge Richard Berman that whatever D’Souza did, his conduct wasn’t criminal.

There’s certainly enough prosecutorial discretion in the enforcement of campaign finance laws to provoke suspicion about the D’Souza case, if you’re inclined to be suspicious of the Justice Department. As the Whittemore memo chronicles, most campaign finance cases are resolved civilly, through Federal Election Commission enforcement actions – and there’s sometimes no explanation for why one case ends up before the FEC and another with similar facts is prosecuted criminally. “It’s a purely political decision,” Gentile told me.

But if so, the politics are inscrutably Byzantine. Take Whittemore, for example. The Nevada lobbyist was accused and ultimately convicted of illegally funneling $150,000 to the re-election campaign of Senate majority leader Harry Reid. In addition to the mystery of why the Obama Justice Department would find it politically expedient to prosecute a Harry Reid supporter, there’s the twist that a Nevada developer who allegedly broke the same campaign finance laws as Whittemore by facilitating conduit payments to Reid’s campaign was never indicted and settled with the FEC. Why was one Reid supporter let off with a civil fine and the other prosecuted? Only the Justice Department knows for sure.

That very disparity, however, suggests that simple party-line retaliation doesn’t drive campaign finance enforcement decisions. In fact, if you look at the Whittemore sentencing memo, you’ll see that supporters of both Democratic and Republican candidates have been prosecuted over the last several years. And it’s not as though the Bush administration went after only Democratic boosters and the Obama Justice Department targets only Republicans. Former FEC chairman David Mason, who served on the commission from 1998 to 2008 and is now senior vice-president of compliance services at the political consulting firm Aristotle, tracks campaign finance cases closely. He told me they’re just not generally motivated by politics.

The decision to prosecute, according to Justin Shur of MoloLamken, who handled campaign finance cases in the Justice Department’s Public Integrity Section from 2008 to 2012, is usually a matter of the defendant’s intent and the magnitude of the supposed wrongdoing. “I brought cases against Democrats and Republicans alike,” Shur said.

What surprised me when I talked to Mason and Shur was hearing about the relatively high volume of campaign finance prosecutions. A Westlaw search turned up only a handful of reported cases since 2000, including high-profile charges against O’Donnell and onetime Michigan gubernatorial candidate (and lawyer) Geoffrey Fieger. But because campaign finance cases are often resolved quickly and don’t generate reported decisions, there are plenty of other prosecutions that don’t show up in legal research. Former FEC commissioner Mason told me that Justice files such cases “surprisingly frequently,” rattling off indictments brought in the last year in Connecticut, Florida, New Jersey and Louisiana. Election law specialist Robert Kelner of Covington & Burling said he defends a couple of illegal conduit campaign finance cases every year. (I asked a Justice Department representative for statistics on campaign finance prosecution, but he told me they’re not specifically tracked. The most recent report of the Public Integrity Section, from 2012, includes summaries of some successful election law prosecutions but no statistics on the number of campaign finance cases brought by the Department.)

So to return to the question that prompted this excursion: Is D’Souza being prosecuted because he is a highly visible opponent of the administration? Is the relative frequency of criminal charges from conduit payments more telling than the relative infrequency of prosecution for supposedly illegal payments of only $20,000? I asked a press representatives for Manhattan U.S. Attorney Preet Bharara, who (not surprisingly) declined to comment. By email, D’Souza counsel Brafman also declined to comment. My own gut feeling is that prosecutors like to make examples of notable alleged law-breakers, whatever their politics.

Full disclosure: I overlapped with D’Souza (and, for that matter, with his chosen candidate Wendy Long and her opponent Kirsten Gillibrand) in college at Dartmouth in the 1980s. I did not know him personally but he edited a conservative college newspaper whose tactics I considered objectionable.

For more of my posts, please go to WestlawNext Practitioner Insights

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