Felonious intent or conservative target?

NEW YORK—If federal prosecutors are right, conservative commentator and former Christian college president Dinesh D’Souza had his mistress and his personal assistant at The King’s College funnel donations on his behalf to a U.S. Senate candidate who was a college friend from Dartmouth.

The federal indictment against D’Souza contains scant details, but at his arraignment in New York federal court on Jan. 24, prosecutors said he had used an employee and “someone he was living with at the time” to make $20,000 in donations that he would reimburse.

“Each of the two individuals whom he directed to make the contributions were each married, so he directed them to make a $10,000 contribution, $5,000 for each spouse,” said U.S. Attorney Carrie Cohen in court. “They did so with the expressed promise by this defendant that he would reimburse them for that donation. He did so within a day or two of these donations being made.”

Prosecutors said they plan to call the straw donors as witnesses in the case. They charged D’Souza with violating campaign finance laws for the straw donations and lying to the Federal Election Commission about it. D’Souza pled not guilty and is out on $500,000 bail, though he had to surrender his passport and must inform the court about his travels outside of New York and California. He could face up to seven years in prison.

D’Souza resigned as president of The King’s College, a Christian liberal arts college in Manhattan, in the fall of 2012 after revelations that he had a fiancée while he was still married. The fiancée, Denise Odie Joseph II, also was married.

According to Federal Election Commission (FEC) filings, D’Souza and his wife Dixie D’Souza both gave the maximum-allowed individual amount to one candidate in 2012: Wendy Long, a Dartmouth classmate of his who unsuccessfully ran against Democratic Sen. Kirsten Gillibrand of New York.

FEC filings also show that Joseph, the fiancée, made a $10,000 donation to Long, her only campaign donation in the 2012 election cycle.

The same day Joseph donated to Long, Tyler Vawser, a personal assistant to D’Souza, made a $10,000 donation to Long. It was his only donation of the 2012 cycle. Vawser, who is now the director of marketing and communications at The King’s College, did not respond to an email seeking comment.

The gifts from Vawser and Joseph were apparently intended to be from the two individuals and their respective spouses, according to prosecutors. Since $5,000 is the individual contribution limit, donations totaling $20,000 from the two couples would be within the legal limits. In other words, prosecutors are saying that D’Souza used both his mistress and her husband as straw donors. Long, according to federal prosecutors, said D’Souza lied to her about the contributions. Prosecutors plan to call Long as a witness.

Supporters of political candidates can persuade others to donate to a campaign, but offering reimbursements for the donations is against the law. Federal prosecutors allege D’Souza reimbursed Joseph and Vawser, though they have not expressly named either of them.

Alice Hanley, a board member at The King’s College and a D’Souza ally, donated $3,000 to Long’s campaign, but Hanley donated thousands of dollars to GOP candidates across the country during the 2012 election cycle, so there’s no indication she was another straw donor on D’Souza’s behalf or did anything wrong. Prosecutors made no reference to Hanley in their charges.

D’Souza’s allies, and even one liberal lawyer, have said the charges appear politically motivated because of his bestselling book The Roots of Obama’s Rage and successful documentary 2016: Obama’s America, which was staunchly critical of President Barack Obama. They see it as of a piece with the Obama administration’s acknowledged harassment of conservative groups through the Internal Revenue Service.

Alan Dershowitz, a Harvard University law professor, is no conservative but said in an interview with The Wall Street Journal’s Law Blog that he thought federal prosecutors were targeting D’Souza. “The idea of charging him with a felony for this doesn’t sound like a proper exercise of prosecutorial discretion,” Dershowitz said. “I can’t help but think that [D’Souza’s] politics have something to do with it.”

A week after the indictment, D’Souza made a public appearance in a debate with Weather Underground founder Bill Ayers at Dartmouth College. When introduced, there was no mention of D’Souza’s tenure as president of The King’s College, and no one made mention of the campaign finance charges during the question and answer session.

D’Souza has only commented on the charges in an interview with Fox News’ Sean Hannity.

“I can’t really talk about the case but I will say that I’m determined to continue my work,” D’Souza said. “I’m undeterred and I’m marching full speed ahead.”

When Hannity asked whether D’Souza had been politically targeted, he responded, “I will say that the film 2016 was a film that does seem to have gotten under President Obama’s skin. … We know the film rattled him, we know the film upset him, and whether this is some kind of payback remains to be seen.”

D’Souza’s lawyer, Benjamin Brafman, has said, “I don’t think there’s much dispute about what happened,” but added there is dispute about whether what happened violated federal law because D’Souza had no criminal intent. At worst, he added, this was a case of “misguided friendship.” At the arraignment Brafman said, “I don’t want my silence on that as to accept every fact stated by Ms. Cohen, but I am not suggesting that she is misstating the record. I just don’t think it’s necessary for us to put in our defense here.”

The attorney raised a legitimate question about why D’Souza was charged with a felony when in the past such crimes were treated as misdemeanors and resolved through fines.

In 2006, the FEC fined an Arkansas law firm $50,000 for arranging straw donations for John Edwards’ 2004 presidential campaign. The Edwards campaign also paid a $9,500 fine for accepting the contributions. The lawyer responsible and the law firm faced no felony charges.

Rick Hasen, a professor at the University of California Irvine School of Law and an expert on campaign finance law, said the U.S. Department of Justice has recently been bringing more cases like D’Souza’s to prosecution.

In the post-Citizens United world (the January 2010 Supreme Court decision that recognized the right of corporations to fund political speech), the Justice Department has much less to prosecute. Now, someone can give unlimited money to a super PAC, which in turn funds a candidate—no straw donations needed. The donor wouldn’t have the control of giving directly to a candidate but could know if a super PAC was supporting that candidate. For example, billionaire Foster Friess donated hundreds of thousands of dollars to a super PAC that effectively kept Rick Santorum’s campaign afloat during the 2012 GOP presidential primaries.

D’Souza’s next court appearance is March 4, when the court will likely set a trial date. Prosecutors said if the case goes to trial, the trial would be short, no more than three days.