In debating the details of the Dinesh D’Souza case with those who claim, with no evidence whatsoever, that he is a victim of selective prosecution, I went through and read the transcript of the pretrial hearing on several motions by his attorney. What those transcripts showed was an incredibly incoherent defense strategy that can be summed up thusly:
1. He committed the crime and knew that he was doing so when he did it.
2. But he had no criminal intent.
3. And he’s really, really sorry. Ashamed, in fact, and terribly contrite.
4. But the entire case is nothing but a political witchhunt by the Obama administration to destroy one of its prominent critics, so he shouldn’t be punished for the thing he’s incredibly sorry for and ashamed of.
Did they really think that was going to be a viable defense? One other thing that should be pointed out is that the judge considered the question of selective prosecution during that hearing and both sides had a chance to brief the matter. After reading those briefs and hearing oral argument, the judge pointed out that the DOJ, the US Attorney’s Office for the Southern District of New York and the Eastern District as well had prosecuted both Democrats and Republicans for exactly the same type of conduit contributions since Obama took office. He cited four separate cases that had been filed in similar situations, three of them involving contributions to Democrats and one involving Republicans. He also notes that D’Souza was flagged in a routine audit of contributions made in the 2012 campaigns in New York by the FBI.
The judge then concluded that “the defense, respectfully, has presented no evidence that he was selectively prosecuted. The burden, at this motion stage, is some evidence. I determine that there is no evidence. There is no evidence of discriminatory effect nor of discriminatory purpose. The defendant is, for example, unable to say what classification he is in and whom, if anyone, is similarly situated in a different classification that has not been prosecuted. That the case is interesting or high profile is insufficient to constitute some evidence of selective prosecution.” Here’s that full transcript: