Michael Gaynor
Will Dinesh D'Souza's sentence be influenced by his "America" documentary?
By Michael Gaynor
July 7, 2014

D'Souza should have resisted both the temptation to make excess contributions and the temptation to include his case the way he did in "America." "America" would have been a better documentary without it, and D'Souza's eventual sentence might have been shorter.

Last January, conservative author, filmmaker and commentator Dinesh D'Souza was indicted in the United States District Court for the Southern District of New York and charged with campaign finance law violations. He was charged with two counts: (1) making illegal campaign contributions, carrying a two-year maximum sentence, and (2) causing false statements to be made to the Federal Election Commission, carrying a five-year maximum sentence.

Then D'Souza was making "America: " a follow up to "2016: Obama's America," the second most successful politica; documentary in American history. Through his attorney, D'Souza argued that he had not acted with "any corrupt or criminal intent whatsoever" and insisted that his alleged crimes were "at most" the result of "misguided friendship." His co-producers characterized his prosecution as politically motivated retribution for the success of "2016," which compared D'Souza with President Barack Obama and treated President Obama unfavorably.

D'Souza unsuccessfully moved to dismiss the prosecution. In May, United States District Judge Richard M. Berman rejected the motion, ruling that D'Souza had "submitted no evidence he was selectively prosecuted."

The trial was set for May 20, 2014. Instead of proceeding to trial, D'Souza made a plea bargain. He pleaded guilty to the first count – making illegal contributions in the names of others – and the second count was dropped in return for the guilty plea.

D'Souza told Judge Berman in open court:



D'Souza, then free on bail, was allowed to remain free on bail, and sentencing was scheduled for September.

On the Fourth of July, shortly after it opened, my daughter and I saw "America."

When D'Souza rebutted the evil view of American history of radical Howard Zinn and tied both President Obama and former First Lady and presidential hopeful Hillary Rodham Clinton to community organizer Saul Alinsky, admirer of Lucifer and author of Rules for Radicals, he was at his best. He was factual, logical and compelling.

But D'Souza included his own prosecution in "America" in a way he may regret when he is sentenced.

It was suggested that D'Souza's case involved selective prosecution, even though Judge Berman, who will sentence him, ruled that he had not offered evidence of it, and D'Souza simply said that he had made "a mistake."

The contrition expected of a convicted felon hoping for a merciful sentence?

There was none.

Instead, D'Souza slipped in the reference to his prosecution for "a mistake" after highlighting the retention of records by federal government agencies and telling the story of the suicide of an idealistic young man who may have fancied himself a modern Prometheus bringing fire to mankind and shared copyrighted material with the public without permission is mind-boggling.

The juxtaposition did not make sense.

First, the troubled copyright violator was in his twenties when he committed suicide, while D'Souza was a mature man in his fifties when he made the illegal campaign contributions.

Second, the copyright violator put the copyrighted material online for all to access, he did not surreptitiously make illegal contributions, or cause the object of his generosity to file false reports.

Elsewhere in "America" D'Souza eloquently explained that the late Reverend Martin Luther King, Jr. openly violated laws that he believed to be unjust and accepted punishment for it.

That's what civil disobedience is about.

D'Souza ultimate acceptance of punishment was a last record just before trial, not part of a classic act of civil disobedience.

Henry David Thoreau wrote, "Under a government which imprisons any unjustly, the true place for a just man is also a prison." In 1846 he was arrested and imprisoned for a night for not paying his poll tax, in protest against slavery and the Mexican War (which was covered at length in "America").

Huge difference: Thoreau was openly defiant, not sneaky.

D'Souza believes that limits on campaign contributions are unconstitutional. I agree with him, but a majority of the justices of the United States Supreme Court did not.

The solution is the appointment of better Supreme Court Justice and a challenge to the law, not surreptitious contributions.

If D'Souza had somehow openly defied the campaign contributions limits law, he could argue that he acted in the tradition of Thoreau, Gandhi and King.

The Wendy Long campaign could not accept excess contributions, however, so D'Souza made excess contributions through others, jeopardizing them in the process and causing the filing of false reports by the campaign.

D'Souza told Judge Berman that he "deeply regretted [his] conduct," but no regret was evidence in "America."

Since the prosecution dropped the second count as part of the plea bargain that he accepted, Judge Berman cannot give D'Souza a sentence in excess of two years.

If D'Souza had been convicted on both counts, the maximum sentence could have been seven years.

Perhaps the federal government gave D'Souza a good plea deal. If he surreptitiously made excess contributions, it seems likely that the government could have proven that he caused false reports to be filed by making those excess contributions.

Finally, D'Souza included a discussion of Three Felonies A Day: How the Feds Target the Innocent, by Harvey Silverglate, a book for which the Amazon description (www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229) is as follows:

"The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to "white collar criminals," state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance."

D'Souza's message here appears to be that well-meaning people like himself commit federal crimes inadvertently and the federal government only prosecutes the people it doesn't like.

The obvious problems with it, insofar as D'Souza's juxtaposition suggests that his situation is covered and he just made "a mistake" that should not be treated as a crime, are that (1) the federal crime to which D'Souza finally pled guilty. to avoid trial, is in "the statute books,' not "the morass of the Code of Federal Regulations"; (2) the applicable statute is not "vague and exceedingly complex and technical"; and (3) D'Souza was sneaky about his excess contribution, not "innocent' or "hapless" or boldly standing up for "the integrity of our constitutional democracy" by being civilly disobedient.

D'Souza should have resisted both the temptation to make excess contributions and the temptation to include his case in "America." "America" would have been a better documentary, and D'Souza's eventual sentence might have been shorter.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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