It was a curious case from the beginning, and so it’s fittingly coming to an end with a curious conclusion. Donald Trump announced that his fifth full pardon will go to Dinesh D’Souza, who pled guilty to a campaign-finance charge in 2014. Trump announced the move on Twitter, explaining that the harsh critic of Barack Obama was “treated very unfairly” by the previous administration:
That certainly was a common theme on the Right, but not exclusively so. There were a number of non-conservatives wondering why the Department of Justice prosecuted the case as a criminal rather than civil matter, especially at the level of a felony. Alan Dershowitz — long before his career as a Trump-era contrarian — said at the time that the case “smacks of selective prosecution,” even though Dershowitz pronounced himself a big fan of prosecutor Preet Bharara:
Weighing in on the case Friday in an interview with Law Blog, Mr. Dershowitz was withering in his opinion of the Manhattan U.S. attorney office’s prosecution of Mr. D’Souza, who pleaded not guilty last week to making illegal campaign contributions to a Republican U.S. Senate candidate in 2012.
“The idea of charging him with a felony for this doesn’t sound like a proper exercise of prosecutorial discretion,” Mr. Dershowitz said. “I can’t help but think that [D’Souza’s] politics have something to do with it. . . . It smacks of selective prosecution.” …
Mr. Dershowitz said the world of politics is rife with the sort of campaign abuses alleged. They’re so common, in fact, he said he himself been called upon to participate in similar arrangements. Mr. Dershowitz said he’s spoken with Mr. D’Souza since the indictment was announced.
“I know I myself have been solicited by lawyers who wanted me to make a contribution to their candidate,” he said. He said that when he told the lawyers he wasn’t familiar enough with the candidates to make a donation, they assured him that they would “make it right.”
Granted, “everyone does it” is not a bulletproof legal defense for teenagers with their parents, let alone with federal prosecutors. However, D’Souza’s felony prosecution on these grounds seemed to be singular at the time, and still seems to be so to this day. Perhaps his career as a social-conservative activist and harsh Barack Obama critic had nothing to do with that, but it seemed difficult to believe at the time, and the apparent lack of felony prosecutions for similar crimes afterward doesn’t make a “coincidence” theory any more believable.
Likewise, Trump’s use of the pardon power seems pretty political, too. Trump has issued four other pardons besides the one D’Souza will get today. One went to Joe Arpaio, another passionate supporter of Trump; another more defensible clemency action went to Kristian Saucier, whose prosecution was unnecessary and unprecedented but who also became a political argument for Trump during the presidential campaign. Jack Johnson’s posthumous pardon was long overdue but also a good media opportunity for Trump, and Scooter Libby’s pardon no doubt played well with hawks newly appointed within his administration.
Those who decry the politics of D’Souza’s pardon should decry the politics of his prosecution — and vice versa.
The pardon comes at an awkward time for Trump, however. Conservatives are pressing Trump to pardon Matthew Charles, who will otherwise have to go back to prison after spending two years of release thanks to a bureaucratic “error.” That seems more acute an issue than D’Souza’s status. While D’Souza’s pardon can be justified, perhaps the White House might want to consider prioritizing people who don’t come from within the president’s political circles in the future.
Addendum: Just to clarify, D’Souza fits the profile of a pardon seeker — someone who expressed remorse for his actions, and who fulfilled the terms of his sentence properly. It’s a good choice in that sense, and D’Souza was right to seek a pardon with a president who would willingly consider it, and it’s overall good that Trump granted this one. But let’s not kid ourselves about the direction in which both prosecutions and pardons have trended in the last two administrations, either.