Judge says D'Souza wasn't prosecuted for his politics

NEW YORK—A federal judge said conservative author and commentator Dinesh D’Souza had no evidence he was selectively prosecuted because of his politics, and said the criminal trial against D’Souza would move forward next week.

D’Souza faces charges of orchestrating straw campaign donations of $20,000 to Republican U.S. Senate candidate Wendy Long, who in 2012 challenged incumbent Sen. Kirsten Gillibrand of New York, a Democrat. D’Souza’s defense doesn’t dispute the facts in the case but argues that D’Souza had no criminal intent and thus should face a civil penalty instead of jail time.

A jury will now decide whether D’Souza willfully broke the law. The defense had hoped to get the case dismissed on Thursday, arguing that the Obama administration was retaliating against D’Souza for his strident positions against the president.

“A decision to submit [the case] to the Southern District for prosecution was because [of] what the defendant had said, not because of what he had done,” argued D’Souza’s lawyer, Benjamin Brafman, at the pre-trial hearing Thursday.

Judge Richard Berman of the Southern District of New York, who will oversee the trial, rejected the selective prosecution motion, citing the “rigorous standard” required for such a motion.

“The burden is ‘some evidence,’” said Berman. “I find no evidence.” He cited a handful of similar cases of relatively small amounts (between $10,000 and $20,000) where the U.S. attorney’s office in New York prosecuted both Democrats and Republicans. The defense had argued that the Federal Election Commission (FEC) typically doesn’t seek prosecution for amounts under $25,000. Berman on Thursday said the U.S. attorney for the Southern District of New York could prosecute regardless of how the FEC chooses to prosecute.

“That a case is interesting or high profile is insufficient to supply ‘some evidence’ of selective prosecution,” Berman added.

The trial will begin on Tuesday and should only last two or three days. D’Souza faces up to 16 months in prison. His new film, America,is due out on July 4.

“We’re disappointed but understand the court’s ruling,” said Brafman after the hearing. D’Souza declined to comment.