In Alexander Hamilton’s view, “humanity and good policy” counseled that “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Why? Because all criminal-justice systems occasionally work injustice, whether because of some laws that are too draconian or some enforcement actions that are too zealous — or, worse, are politicized. As Hamilton elaborated in Federalist No. 74, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The selective, politicized prosecution of conservative author, producer, and activist Dinesh D’Souza was an exercise in gratuitous severity. President Trump’s pardon of D’Souza, announced today, is the remedy the Framers had in mind.
D’Souza was (and is) a strident anti-Obama critic. He committed a trivial campaign-finance violation. This is not to excuse the conduct; it is to reaffirm the principle that the punishment should fit the crime, and to observe that the conduct at issue is typically not treated as a crime at all. Routinely, misconduct of the kind engaged in by D’Souza is settled by payment of an administrative fine to the Federal Election Commission. In stark contrast, the Obama Justice Department not only selectively prosecuted D’Souza; prosecutors turned the case into a multiple felony indictment.