What Dinesh D'Souza Would Have To Prove To Establish Unconstitutional Selective Prosecution

Politics & Current Events

Conservative author and speaker Dinesh D'Souza has been indicted in federal court in New York for campaign finance violations. More specifically, the feds have charged D'Souza with what is frequently called donation laundering. They assert that he reimbursed other for their donations to his chosen United States Senate candidate, thereby exceeding the statutory limit on personal donations. They also assert that he caused a false statement to be submitted to the feds, in that as a result of the alleged donation laundering the candidate's Federal Elections Commission statement identifying donors was rendered inaccurate.

Some people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration, including his polemical documentary "2016: Obama's America." I hold no brief for D'Souza — I find him to be a crass, Coulteresque, unconvincing bomb-thrower. But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power. My view is absolutely not limited to the Department of Justice under this administration. Selection of anyone for prosecution based on their views — whether I like their views or not — is an abhorent abuse of power that could easily be turned upon me or upon people with views I like.

A federal defendant who feels targeted based on protected speech may file a motion to dismiss the case for "selective prosecution." But it's a very difficult motion to win.

Federal prosecutors have extraordinary broad discretion in deciding whom to prosecute. However, they can't target people for prosecution based on constitutionally prohibited factors:

As we have noted in a slightly different context, however, although prosecutorial discretion is broad, it is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is … subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (footnote omitted). In particular, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, supra, 457 U.S., at 372, 102 S.Ct., at 2488.

Even though prosecution based on impermissible factors like race or protected speech is prohibited, the standard for proving it is high. The Supreme Court has announced that prosecutorial decisions are cloaked with a "presumption of regularity," and that courts must "presume" they have acted rightly absent "clear" evidence of discriminatory targeting. The Supreme Court explains:

Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.

Sometimes, when you devote so much concern to the state's interest in unfettered prosecution, there's not much concern left for the defendant. Judges are only human, after all.

Under this regime, to show selective prosecution, a defendant must establish by "clear" evidence that "similarly situated individuals" without the prohibited characteristic were not prosecuted, and that the motive in this case was impermissibe. In a case alleging racial selective prosecution the defendant would have to show similarly situated people of a different race weren't prosecuted. In a case like Mr. D'Souza's the defendant would have to show both that (1) similarly situated people who didn't engage in the protected speech weren't prosecuted, and (2) the decision to prosecute was based on animus towards the protected speech. This is a tremendously difficult standard to meet. How is a defendant supposed to know whether other people have committed the same crime and been passed over by the government, particularly when the government's investigations are secret and when the conduct in question is difficult to detect?

A defendant can demand discovery from the government about whether it has passed over other people who committed the crime. But the Supreme Court has set a high bar for entitlement to such discovery. To force the government to produce statistics and other information about its prosecution decisions, the defendant must produce "some" evidence in support of both prongs of the selective prosecution test — that is, some evidence that others similarly situated are not being prosecuted, and some evidence of improper motive. In U.S. v. Armstrong in 1996, the Supreme Court held that it was not enough that defense lawyers in Los Angeles showed that the defendants in federal crack cocaine cases were almost all African-American; to get discovery they also had to supply some evidence that the feds were passing over white defendants.

In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D'Souza's attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.

Last 5 posts by Ken White

134 Comments

132 Comments

  1. Clark  •  Jan 24, 2014 @8:50 am

    Is the US just now turning into a banana republic, or has it been one since 1789, and it's only now becoming clear because of better media?

  2. Chris  •  Jan 24, 2014 @8:52 am

    After the first block quote I'm guessing you mean "protected speech" rather than "protect speech"?

  3. Clark  •  Jan 24, 2014 @8:52 am

    for the most part the system protects the system.

    Follow on question: is my Ken just now becoming deeply cynical-unto-despair about the system because of my malign influence, or has Ken always been this cynical and I am just now seeing it?

  4. Chris  •  Jan 24, 2014 @8:55 am

    Follow on question: is my Ken just now becoming deeply cynical-unto-despair about the system because of my malign influence, or has Ken always been this cynical and I am just now seeing it?

    I think Ken has always been pretty cynical about federal prosecutors.

  5. Josh C  •  Jan 24, 2014 @8:57 am

    Perhaps you are simply much, much more optimistic about what would come after, Clark.

  6. Clark  •  Jan 24, 2014 @9:03 am

    @Josh C

    Perhaps you are simply much, much more optimistic about what would come after, Clark.

    This is a valid point.

  7. ShelbyC  •  Jan 24, 2014 @9:08 am

    Maybe there's some sort of wired anti-Indian thing. Inst this the same guy who is prosecuting the good-looking gal?

  8. Joe Pullen  •  Jan 24, 2014 @9:09 am

    I think Ken has always been pretty cynical about federal prosecutors.

    Yes, but now he is also much more cynical about bananas.

  9. Dr. Nobel Dynamite  •  Jan 24, 2014 @9:09 am

    @Clark

    What, exactly, about the prosecution of D'Souza indicates that the U.S. is a "banana republic?"

  10. jb  •  Jan 24, 2014 @9:12 am

    The US has always been this kind of banana republic. In fact, for most of its history it has been worse. What has changed is (a) we have more opportunities to complain nowadays, and (b) in the past, "go west and start over" was an option if you got screwed.

    Now there is no frontier and no opportunity to escape one's past, but also the standards for obfuscation of governmental arbitrariness have substantially risen.

  11. Ken in NH  •  Jan 24, 2014 @9:13 am

    How narrowly or broadly similar must the situation(s) be for the defense to be considered? For example, the DOJ refused to prosecute or even indict (and I speculate that they may not have even investigated) the two New Black Panther men intimidating voters in Philadelphia in 2008. Clearly these are two different crimes, but both pertain to the same protected right.

  12. Clark  •  Jan 24, 2014 @9:16 am

    @Dr. Nobel Dynamite

    @Clark

    What, exactly, about the prosecution of D'Souza indicates that the U.S. is a "banana republic?"

    By itself, nothing. Perhaps it really is a random, not partisan-motivated, prosecution. But I see more and more rule-of-man-not-of-law when I look out my window: IRS Tea Party targeting, Obamacare waivers issued to political allies, executive fiat changes to laws, secret courts, secret laws, universal surveillance, militarization of police, a revolving door of political elites, etc.

  13. Cecil  •  Jan 24, 2014 @9:18 am

    Should be easy, after all
    Because Terrorism! And this isn't saving the children

  14. Chuckaluphagus  •  Jan 24, 2014 @9:20 am

    Clark said Is the US just now turning into a banana republic, or has it been one since 1789, and it's only now becoming clear because of better media?

    I think the latter is really the case. Well, not that we're a banana republic and always have been, but that behavior like this has always been present to a greater or lesser extent, it's just that we hear about it much more with modern media.

  15. Tom Z.  •  Jan 24, 2014 @9:22 am

    Is the US just now turning into a banana republic, or has it been one since 1789, and it's only now becoming clear because of better media?

    Better media? Hardly.
    I submit that the Obama administration has merely gotten lazy about hiding their dictatorial actions.

  16. Ken White  •  Jan 24, 2014 @9:24 am

    @Ken in NH: I didn't delve into exactly what "similarly situated" means, because it would make the post too long, even by my standards. Suffice it to say that the government will always argue that "similarly situated" should be read narrowly to mean the same type of violation of the same statute under the same circumstances.

  17. James  •  Jan 24, 2014 @9:25 am

    I think you're missing an important point. D'Souza Has already won. It doesn't matter whether he's guilty or not or whether he's the victim of selective prosecution or not. He's already become a conservative martyr and his stock is going to go through the roof. People who didn't buy his books before are going to do so now and his next book is going to be a huge hit. This is probably the best thing that could happen him (which is why I doubt itit's selective prosecution, for a crime that carries such a low penalty he has more to gain than lose from being indicted).

  18. Dr. Nobel Dynamite  •  Jan 24, 2014 @9:28 am

    @Clark

    I think that it's less than intellectually honest to hold out this prosecution as an exemplar of our descent in banana republic status (which is definitely what your post implied) when there just isn't any evidence that is an improper prosecution in any way.

    I am willing to bet the farm that D'Souza (and Coulter et al) will portray himself as a martyr and the victim of a vindictive administration, but that doesn't mean it's true.

  19. Peter H  •  Jan 24, 2014 @9:30 am

    I am not certain that it's wrong to have the standard for dismissal due to discrimination be extremely high. This is essentially because this sort of dismissal is essentially saying that the defendant is guilty of the crime, but should not be punished largely because of the actions of the government with respect to people other than the defendant. Unlike a 4th, 5th, or 6th amendment violation, there is not an accusation that the defendant's rights have been violated. Rather, there is an accusation that the law being enforced is so selectively enforced that it should essentially be unenforceable. That's a high bar, and it ought to be.

    In this case, there's an argument that the crime oughtn't to be a crime at all, which I think underlies much of the animus here. But the challenge that a crime ought not exist as a crime at all is a separate challenge.

    I would support giving more discovery than is currently given, but even with infinite discovery, I think this will be a hard case to prove.

  20. fsandow  •  Jan 24, 2014 @9:33 am

    Ken, can you give us an idea of how frequently these types of charges are laid? It seems like this type of thing would be difficult to detect.

  21. Dw  •  Jan 24, 2014 @9:38 am

    deleted

  22. Ken White  •  Jan 24, 2014 @9:43 am

    This is essentially because this sort of dismissal is essentially saying that the defendant is guilty of the crime, but should not be punished largely because of the actions of the government with respect to people other than the defendant.

    No, it's not saying that at all. Guilt or innocence is not a factor. It's saying that someone should not be subjected to prosecution, and forced to defend, if the selection criteria is unconstitutional.

  23. Craig  •  Jan 24, 2014 @9:45 am

    @ShelbyC: "Maybe there's some sort of wired anti-Indian thing. Inst this the same guy who is prosecuting the good-looking gal?"

    You're joking, right? You think Preet Bharara is biased against Indians? What country do you think he's from?

    Yes, he is the same guy who prosecuted the over-privileged bitch who treated her domestic servant like a slave and lied to the US government about how much the woman was being paid.

  24. Trent  •  Jan 24, 2014 @9:48 am

    You don't actually think it was different in the past do you? The US has always been like this, we make a little progress towards not doing this authoritarian BS every now and then but it's been going on since the republic was founded.

    Saying were turning into a banana republic ignores history and is hyperbolic hand waving. It's right up there with the paranoid delusions of claiming Obama is significantly different than any president in history. The political elite in this country have been successfully dividing the electorate over minor issues and claiming the other side is the devil incarnate while they are agents of heaven in human form since Washington was president. They then use the divided electorate to connect themselves and associates with power and money derived from the tax payer and there isn't any significant difference between blue and red in this regard and there never has been.

    But don't let me interfere with your hyperbole, carry on with the hand waving and claiming the US is changing and it'll be the doom of the country. After all there are certain segments of the population that get off on it and will be highly disappointed when the world doesn't end like some are claiming.

  25. Xenocles  •  Jan 24, 2014 @9:54 am

    @Tom Z.

    Better media? Hardly.

    You're thinking too narrowly. This blog, for example, must be considered as part of the media for this sort of assessment. The legacy media have certainly not improved, but they are no longer the only members of the media.

    @James:

    This is probably the best thing that could happen him (which is why I doubt itit's selective prosecution, for a crime that carries such a low penalty he has more to gain than lose from being indicted).

    I don't disagree with your evaluation of the benefits for D'Souza, but surely this would be far from the first unforced error of this sort in history.

    @Nobel:

    I am willing to bet the farm that D'Souza (and Coulter et al) will portray himself as a martyr and the victim of a vindictive administration, but that doesn't mean it's true.

    Of course he will; martyrdom is such a potent weapon in this sort of war that he would be a fool to pass it up when it might be attained so cheaply.

  26. lelnet  •  Jan 24, 2014 @9:54 am

    "the same type of violation of the same statute under the same circumstances"

    And if the court accepts any one of those requirements, let alone all three, he has much less chance of prevailing. (If the circumstances need only be "substantially similar" in the way a layman would use that phrase, prevailing wouldn't be all that difficult, considering the absolutely notorious cases of serious election fraud by _allies_ of the present administration which the Justice Department has categorically refused to prosecute. But since ballot-stuffing, registration fraud, identity fraud, and violent voter intimidation are all violations of different laws than the one he's accused of violating, I'm sure the court will insist that despite the obvious pattern, they aren't substantially similar after all.)

  27. Eric  •  Jan 24, 2014 @9:55 am

    If he can prove unconstitutional selection can the government simply prosecute him and the other "similarly situated" people to get around it? Or do federal prosecutors have to leave him alone on these charges until new charges are brought?

  28. I was Anonymous  •  Jan 24, 2014 @9:55 am

    @Clark, at least it's a banana republic, and not a pony republic.

  29. Clark  •  Jan 24, 2014 @10:03 am

    @Dr. Nobel Dynamite

    @Clark

    I think that it's less than intellectually honest to hold out this prosecution as an exemplar of our descent in banana republic status

    You seem to have either not read, or misread, what I wrote.

    First, it was posed as a question, not a statement, and second, I noted that I had no proof that the prosecution was improper when I wrote " Perhaps it really is a random, not partisan-motivated, prosecution."

    (which is definitely what your post implied)

    "Definitely", huh?

    I quite enjoy it when you and one or two others repeatedly tell me the one unambigous interpretation of what my words mean and how – under your interpretations of my words, how I fail to live up to your standards of intellectual honesty.

    I mean, not "enjoy" in the same sense in which I enjoy a bowl of ice cream, but in the sense of "putting up civility with this rudeness from ill mannered guests must surely be good for my character".

    Which, come to think of it it, really isn't what the word "enjoy" means after all.

    So never mind.

  30. Wilson H. Heydt  •  Jan 24, 2014 @10:08 am

    D'Souza is an interesting case to start with, and one, I'm afraid that generates a fair amount of shadenfreude. He's a long time woo and anti-science peddler who appears to think that he's smarter than anyone else. I suppose this case might actually be a result of such thinking in that he may have thought that he'd found a way to get away with what he is accused of for which he couldn't be caught, let alone prosecuted.

  31. ShelbyC  •  Jan 24, 2014 @10:13 am

    "You're joking, right? You think Preet Bharara is biased against Indians? What country do you think he's from?"

    Yes, I understand he's from India, that's one of the reasons I say "weird". But an Indian guy with two high-profile prosecutions of Indians seems like it might be worth a second look.

  32. Dr. Nobel Dynamite  •  Jan 24, 2014 @10:15 am

    @Clark

    I was referring to your original post, which definitely did imply that the prosecution of D'Souza was an exemplar of this country's status as a banana republic, with the only question being whether that status was recent or long standing. You know that is the reasonable reading of that comment, and it is disingenuous to pretend otherwise.

    Let's say, for the sake of argument, that someone left a comment on this story stating: "Has the U.S. always been this racist, or is this a recent development?" Would a reasonable interpretation of such comment be that the poster thought that the D'Souza prosecution was a good example of racism in practice? Of course. Should said poster also be considered somewhat disingenuous if he then took the position that he wasn't trying to imply that there was anything racist in the D'Souza prosecution itself, merely that there sure are a lot of *other* examples of racism in this country? I think the answer is also yes.

  33. Captain  •  Jan 24, 2014 @10:26 am

    @Clark
    Asking a question is not an idle, accidental act. While you did admit that you had no evidence that it was a politically motivated prosecution, you also immediately followed that with:

    "But I see more and more rule-of-man-not-of-law when I look out my window: IRS Tea Party targeting, Obamacare waivers issued to political allies, executive fiat changes to laws, secret courts, secret laws, universal surveillance, militarization of police, a revolving door of political elites, etc."

    Now, I'm not going to pretend to know exactly what your intention was in posting the first question or the comment you linked to. But I will link to your words on a similar subject.

    Seventy three trillion things happened yesterday. Salon covered five or ten of them.

    The very act of selection – with or with out commentary – is a huge editorial statement. …
    [1 line omitted for clarity/continuity]
    …The act of selection and juxtaposition is an art form. Perhaps not the highest art form, but an art form nonetheless."

    From the comments on this thread.

  34. Joe Schmoe  •  Jan 24, 2014 @10:37 am

    Hi Ken,

    Do you think you will be commenting on Mann vs. Steyn ever? I'd love to read your thoughts.

  35. James Pollock  •  Jan 24, 2014 @10:44 am

    When I was growing up, my Mom taught me that "but they do it, too!" is not an excuse for wrongdoing.

  36. rsteinmetz70112  •  Jan 24, 2014 @10:45 am

    @Craig

    You're joking, right? You think Preet Bharara is biased against Indians? What country do you think he's from?

    Often members of minority groups who do not confirm to the group norm are accused of discriminating against members of their own group in order to fit in or because of "self hate". See the terms "Oreo", "Acting White" or "Uncle Tom".

    In some cases it is probably true.

  37. tom  •  Jan 24, 2014 @10:49 am

    Easier to find, easier to catch. Outspoken critics will always get more prosecutorial attention because they draw attention to themselves. If you call in sick and post your beach vacation photos on the facebooks, you shouldn't cry about "getting singled out because of your tendency to be a party animal" when your idiot ass gets caught — you got caught because you're an idiot.

    Smart criminals hide their activities carefully. If a criminal, D'Souza is not a smart criminal. If you find a dozen outspoken liberal donation launderers and find that they aren't being prosecuted, then there's something to talk about. Otherwise, you're just railing against the injustice against a prima fascie underdog being brought to justice because he opened his fat mouth.

  38. Xenocles  •  Jan 24, 2014 @10:54 am

    "When I was growing up, my Mom taught me that "but they do it, too!" is not an excuse for wrongdoing."

    If it be truly wrong, this is correct. But enforcement of the law is a different matter.

  39. Waxing Nostalgic  •  Jan 24, 2014 @10:57 am

    I really think it's a tough argument to make that the SDNY USA's office is going after D'Souza because of his politics.

    The same office went after (and convicted) two John Liu aides for near-identical (but possibly even less-objectionable) conduct, and John Liu was by far the most progressive candidate for mayor. Look at the facts behind Jenny Hou's conviction: she never even reimbursed anyone, just said she might. It's tough to say that SDNY is going after someone because he is a right winger when it's already convicted two people for remarkably similar conduct that were left wingers.

    SDNY under Bharara has been aggressive in its prosecutions, but it has been pretty equal-opportunity aggressive.

  40. NS  •  Jan 24, 2014 @10:59 am

    @James Pollock

    When I was growing up, my Mom taught me that "but they do it, too!" is not an excuse for wrongdoing.

    So, is nanny statist a word yet?
    It may not be an excuse, but it certainly is a valid defense. If laws are not enforced equally, than in what way are we all equal before the law?

  41. James Pollock  •  Jan 24, 2014 @11:02 am

    But I see more and more rule-of-man-not-of-law when I look out my window: IRS Tea Party targeting

    Wait a minute. The "Tea Party" takes its name after a bunch of otherwise nice people who chose to commit crimes, including what would now be felonies, in protest of taxation. To complain that a group of people who chose to name their group after that group is now feeling uncomfortably examined by taxing authorities is somewhat ridiculous. If you name yourself after a bunch of people willing to commit crimes to protest taxation, you should expect to have your taxable affairs examined quite thoroughly. Particularly when what you're doing is trying to establish that your organization shouldn't be taxed. I would hope that such applications would be scrutinized closely whether the guy in the White House was -(D) or -(R).

    The "Donner Party School of Culinary Arts" might expect some scrutiny from the food safety board, as well (Try the kidney pie, it's wonderful),

  42. David Engh  •  Jan 24, 2014 @11:07 am

    A number of years ago I worked in a Superior Court in California. One of the supervisors there once told me "The law serves itself. Actual justice is an accidental byproduct".

    The more I read about how the system sets bars to challenging the system's actors, the more I realise he was right.

    Now, D'Souza is not his own best friend in some of the things he's done or said. But having a near-impossible bar to challenge means there is no viable defense against the system. If there's no viable defense, there is no defense. I'm coming around to Clark's position that it's time to burn it down.

  43. Mike  •  Jan 24, 2014 @11:20 am

    Are there any known examples of people not being prosecuted for donation laundering? If anything, I would suspect that any selective prosecution of this dude is based on his celebrity status and the government's undoubted interest in high-profile prosecutions to scare others from committing the same crime, which is not prosecution based on a prohibited characteristic.

    So is this just a random example to use to discuss the specific topic of selective prosecution, or is there a non-laughable argument that this is actually selective prosecution premised on his political views/speech? The post only offers that "[s]ome people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration," which is about as significant as "some Beliebers suspect that Justin would never ever do drugs or street race."

  44. Basil. Forthrightly  •  Jan 24, 2014 @11:21 am

    "First they came for the donation launderers…"

  45. NS  •  Jan 24, 2014 @11:23 am

    @James Pollock

    Re your post of 11:02 am:

    So, your answer to Clark's original question would be 1776?

    Do the Republicans get this kind of scrutiny for not calling themselves Democrats, in a purportedly democratic society? They could be stuffing ballot boxes! Committing voter registration fraud! Wait, they lost, so nobody cares. The Tea Party has never won, but they're new, and neither the Democrats nor the Republicans would miss a chance to work over the new guy. Like them or not, you really have to be trying not to see that.

    Also, you've made me openly side with Clark… I like Clark, but I do not like being put in a position where I find myself agreeing with him…

  46. James Pollock  •  Jan 24, 2014 @11:24 am

    It may not be an excuse, but it certainly is a valid defense.

    Consider the alternatives. If the defendant is guilty of the crime(s) charged, then, they have done wrong. (Yes, important assumption in play.) The best defense is that other people have ALSO done that wrong, but defendant was singled out.
    If the defendant is NOT guilty of the crime(s) charged, then the best defense is "I'm not guilty of the crime(s) charged." A complaint of selective prosecution would best be raised after innocence is firmly established.

    Which behavior was observed here?
    (granted, to a substantial subset of the population, Obama's wrongfulness is firmly established, regardless of what wrongful act he's being accused of, because he is a Nazi Communist Muslim who attends an anti-American Church, who thinks he's king and doesn't believe in the Constitution. Even worse, he's a known Democrat, and you know how they are.)

  47. Captain  •  Jan 24, 2014 @11:27 am

    Now, D'Souza is not his own best friend in some of the things he's done or said. But having a near-impossible bar to challenge means there is no viable defense against the system. If there's no viable defense, there is no defense. I'm coming around to Clark's position that it's time to burn it down.

    If he did in fact violate campaign finance laws, something I have yet to see anyone say is unlikely, then why shouldn't he face the consequences for those actions? Isn't he from the party of Personal Responsibility ™?

  48. Chris  •  Jan 24, 2014 @11:30 am

    Consider the alternatives. If the defendant is guilty of the crime(s) charged, then, they have done wrong.

    If the government widely leaves violations of a criminal statute unprosecuted and the populace does not object to this lack of enforcement, both of those are fairly powerful pieces of evidence that society does not view violating that statute as 'wrong' (or at least, not a particularly important wrong).

  49. Joel  •  Jan 24, 2014 @11:31 am

    @Clark: I'd say we're less a banana republic and more of an Abercrombie and Fitch. Once fairly high-end and respectable (at least on the surface), steadily degrading in popularity until finally selling out to a large corporation that abandoned our original premise wholesale so that it could instead sell us with an image of "Casual Luxury".

  50. Roscoe  •  Jan 24, 2014 @11:45 am

    Trent says:

    You don't actually think it was different in the past do you? The US has always been like this, we make a little progress towards not doing this authoritarian BS every now and then but it's been going on since the republic was founded.

    Actually, it was a lot different in the first century of so of this country's existence. For example, the reason why there was practically no interpretation of the 4th Amendment until the early 20th Century (with the exception of Boyd, which wasn't even a criminal case) is that there was almost no federal law enforcement in existence to violate it.

  51. Not Claude Akins  •  Jan 24, 2014 @11:46 am

    Last graf of this WaPo piece gives us one example, anyway, of lesser consequences (though not in NY):

    "Straw-donor cases have been brought against prominnent individuals from time to time. For example, in 2011, a prominent Los Angeles attorney, Pierce O’Donnell, pleaded guilty to misdemeanor chargest of making $20,000 in donations to the presidential campaign of former Sen. John Edwards and reimbursing straw donors."

    http://www.washingtonpost.com/politics/conservative-author-and-pundit-dinesh-dsouza-charged-in-campaign-finance-case/2014/01/23/69c67ee4-848a-11e3-bbe5-6a2a3141e3a9_story.html

  52. Dr. Nobel Dynamite  •  Jan 24, 2014 @11:53 am

    @Joel

    I understand the your post was meant to be lighthearted, but isn't this narrative of woe is us, everything is crumbling, our best days are behind us rather ahistorical as well as self-pitying?

    There is absolutely no doubt that our nation has serious problems and there are serious flaws in our system of laws. But you know what? We used to have slavery in this country, women weren't allowed to vote, clouds of smog used to blanket industrial cities, we had a Depression that created suffering we have a hard time understanding today, and killing a Chinese person was only punishable by a mailed in fine. We have always had problems because any human society does, but to pretend that *now* is the time we're really falling apart and the system needs to be burned to the ground is, in my opinion, just silly.

  53. James Pollock  •  Jan 24, 2014 @11:53 am

    Do the Republicans get this kind of scrutiny for not calling themselves Democrats, in a purportedly democratic society?

    The United States is a Republic, and the Constitution requires states to have a republican form of government, so, um… no.

    The "tea party" groups (note… not even vaguely a single entity) filed applications to be treated as exempt from taxation, and then those applications were looked at very closely. The horror! To have one's application to be treated as not having to pay taxes closely examined, just because you named your group after a bunch of criminal tax evaders!

    When the "Oklahoma City Explosives Club" files a permit to park a truck on the Capitol Mall, should the Secret Service just let that one slide? How about when the "Jihad for Islamic Truth Airlines" files an application for gate privileges at LaGuardia? Should anyone's ears prick up when someone files building plans for the "James Earl Ray Center for Diversity Studies"

    Sure, it would be colossally stupid to name your group the "Tombstone, Arizona we sure wish we could just shoot the people we disagree with club" and then apply for a federal automatic-weapons permit; it would be way smarter to call your group "Americans for Firearm Safety". But I think having the BATF take a look-see at that first group is entirely rational, even if it's based solely on their choice of name and there is no other evidence of wrongdoing, past, present, or future.

    If you choose to take a name based on a group of people who committed crimes because of their beliefs, proceeding to complain that people treated you as if you might consider committing crimes because of your beliefs is, and should be seen as, foolish. It doesn't have to be political at all… if you call your band the "Waco Branch Davidians", you might expect some problems getting your pyrotechnics show licensed, but ditto if you call the band the "flaming arsonists' death cult".

  54. Roscoe  •  Jan 24, 2014 @11:57 am

    Captain says:

    If he did in fact violate campaign finance laws, something I have yet to see anyone say is unlikely, then why shouldn't he face the consequences for those actions? Isn't he from the party of Personal Responsibility ™?

    Knowing nothing about you, assuming that you are over 28 (or so) and are not living with your parents, I can assure you that you have committed numerous felonies. For example, have you ever thrown away your neighbor's junk mail that was misdelivered to your mail box? Are you sure? Do you even check the address on every piece of junk mail you throw away?

    It's all about prosecutorial discretion, and if we can no longer trust that then we are in big trouble.

  55. James Pollock  •  Jan 24, 2014 @11:57 am
    Consider the alternatives. If the defendant is guilty of the crime(s) charged, then, they have done wrong.

    If the government widely leaves violations of a criminal statute unprosecuted and the populace does not object to this lack of enforcement, both of those are fairly powerful pieces of evidence that society does not view violating that statute as 'wrong' (or at least, not a particularly important wrong).

    Gee, it's almost as if you chose to cut away the disclaimer on purpose.

  56. Chris  •  Jan 24, 2014 @11:59 am

    Gee, it's almost as if you chose to cut away the disclaimer on purpose.

    If you're referring to your parenthetical that followed the passage I quoted, I assumed that you were referring to the defendant's guilt, not to the nature of the crimes charged.

  57. James Pollock  •  Jan 24, 2014 @12:17 pm

    Knowing nothing about you, assuming that you are over 28 (or so) and are not living with your parents, I can assure you that you have committed numerous felonies.

    But can you prove it? Whether or not you have enough evidence to prove a case is a big part of prosecutorial discretion.

    I would be much, much more troubled if the accusation was that prosecutors were charging them with offenses they probably didn't have anything to do with (say, charging tea party groups with funneling money to al qaeda) because that, to me, is the biggest abuse of discretion. After that is a complaint that they're choosing not to charge obvious cases of allies and friends (which is a variant of the present case). Least of all, a complaint that they aren't charging anyone under the statute. Yes, this is wrong in the sense that the proper way to kill a statute is to repeal it, not leave it unenforced, but lots of things (public opinion, budget realities) can cause that to happen, in such a way that it is not an abuse of discretion.

    Note the difference between "Hey! Don't charge me under that statute I violated if you aren't charging those other people who violated the exact same statute the same way I did!" and "Hey! Charge those other people for violating the statute if you're going to charge me for violating it the same way!".

    Also note that there may be more than animus behind the selection bias. Most motorists exceed the posted speed limits, yet only a small number of them get speeding tickets. Selective enforcement! The people who dart from lane to lane squeezing through traffic are more likely to get ticketed, because they're driving more dangerously. Ditto for the fact that you're more likely to be ticketed for 75 if you're on a residential street than if you're on a highway two blocks away. In either case, that "cops = pigs" bumper sticker probably isn't helping your likelihood of getting off with a warning, but it probably isn't why they stopped you.

  58. Mike  •  Jan 24, 2014 @12:21 pm

    @ Dr. Nobel Dynamite – Or as some would call it, the good old days.

    @ Roscoe – And had D'souza been charged with throwing away his neighbor's junk mail, then this whole discussion would make a lot more sense. But he is charged with violating campaign finance laws, an issue which has been the subject of considerable legislative activity (evidencing the perceived gravity of the offense) and (as with the Edwards-related prosecution mentioned above by Not Claude Akins) at least some demonstrable history of prior prosecutions.

  59. Ken White  •  Jan 24, 2014 @12:25 pm

    Roscoe,

    I advise you not to engage.

  60. Joel  •  Jan 24, 2014 @12:38 pm

    @Dr. Nobel Dynamite: Haha, yeah, it started out as a joke, but I think I might have stumbled over an actual metaphor in there.

  61. Dave Ruddell  •  Jan 24, 2014 @12:40 pm

    What I want to know is how did the investigation into D'Souza begin. Were they tipped off by someone, or did they start sua sponte?

  62. TM  •  Jan 24, 2014 @1:07 pm

    When I was growing up, my Mom taught me that "but they do it, too!" is not an excuse for wrongdoing.

    Although I strongly suspect that she wasn't teaching that lesson while punishing you for stealing a cookie while ignoring your brother stealing the candy bar.

  63. James Pollock  •  Jan 24, 2014 @1:33 pm

    Although I strongly suspect that she wasn't teaching that lesson while punishing you for stealing a cookie while ignoring your brother stealing the candy bar.

    Actually, what my sister got away with as relative to what I got punished for turns out to have been a recurring topic for discussion.

    Mom taught me this lesson, but it didn't take the first time. Or the second…

  64. David Engh  •  Jan 24, 2014 @1:47 pm

    @Captain

    What the the paragraph you quoted says is that if there is no meaningful way to challenge the how the system works there is no defense against wrong uses of the law. Otherwise the only thing that can be done is accept trial at the whim of the system's actors.

    To accept trial at the hand of actors you believe to be acting out of malice with no way to challenge that the charge itself is brought solely or mainly out of malice is to accept that the system is always right. I think that is a dangerously naive assumption.

  65. John Regan  •  Jan 24, 2014 @2:03 pm

    Re: that quote from US v. Armstrong

    How can the conduct of criminal prosecutions be a "core executive function" when criminal prosecutions by public prosecutors weren't common until about the middle to later part of the 19th century?

    At least that's what Rehberg v. Paulk said. This whole subject of the history of public prosecutors v. private prosecutions in the United States appears to be somewhat controversial, and I apologize if it seems a bit far afield of the main point here. Just interested in hearing other views about it.

  66. Patrick Maupin  •  Jan 24, 2014 @2:24 pm

    @Roscoe:

    "For example, have you ever thrown away your neighbor's junk mail that was misdelivered to your mail box? Are you sure? Do you even check the address on every piece of junk mail you throw away?"

    Actually, I've read the mail codes, and I don't think that's a crime. Interfering with the mail requires knowledge and willfulness.

  67. CJColucci  •  Jan 24, 2014 @2:29 pm

    But an Indian guy with two high-profile prosecutions of Indians seems like it might be worth a second look.

    Rudy Giuliani. Mafia.

  68. Basil. Forthrightly  •  Jan 24, 2014 @2:32 pm

    @Dave Ruddell

    http://talkingpointsmemo.com/livewire/dinesh-dsouza-campaign-finance-indictment

    The article says that according to publicly available donation records, D'Souza personally gave in excess the limit, by 2x, and that his straw donors were likely his then-wife and his concurrent girlfriend, the latter of which donated 3x the legal limit.

    So it seems pretty likely that this prosecution all but jumped in their lap, probably with the now-ex GF unwilling to be a patsy when the Feds inquired about her excess donations.

    I don't get how the donation made by the wife was considered a straw donation, unless they were already separated, or D'Souza donated in her name without her permission. The indictment merely gives a dollar amount of improper donations, so it's possible that donations were also funneled through some other party and the idea that the wife's donation is being treated as part of the scheme by prosecutors is mistaken.

  69. Xenocles  •  Jan 24, 2014 @3:01 pm

    This notion of "you're still wrong even if everyone else does it" led me to ponder what the purpose of the law is. I don't believe we charge the law with the adjudication of wrongdoing, or even the definition of wrongdoing. Rather, the law is the instrument by which state power is directed against certain people on behalf of the rest of the people. For that reason the law must satisfy more questions than simply "Is the prohibited act intrinsically wrong?" before its agents act. It must be clear enough that the accused violated the law, for instance, at each step of the process. A decent society limits punitive action to only a certain class of lawbreaker – one with mens rea, for instance, or someone who is sane, etc. Finally the law must be fairly applied, which is to say that cases that are similar in the important aspects are treated similarly.

    So the object of the law ought not be to punish wrongdoers whenever it sees them – that is more of a function of "The Law," so to speak, and its Lawgiver, such as it is. The object of the law is to restrain state power (if it were not so there would be no purpose for it; those in control of the state would rule as they pleased) and to direct its application benignly and fairly (both of which are very loose words that warrant almost endless discussions of their own), or in a close enough approximation to satisfy most.

    (In this case I question the idea that D'Souza even did anything wrong. I do not believe in limits on campaign funding per se, only on the manner in which it happens (explicit bribery, for instance, which may be hard to prove). Lying is generally wrong, but I do not believe the government had any right to the truth here so they certainly have no right to punish him for withholding it from them.)

    Finally, the law might be seen as a form of contract between society and the government. If the government fails to uphold its side of the bargain – a good-faith enforcement of the law as written – how can there be an expectation that society will uphold theirs – that is, that they will follow the law?

  70. En Passant  •  Jan 24, 2014 @3:34 pm

    I read the indictment, and it leaves me with a question about the law.

    According to the indictment:

    The Election.Act prohibits any person from making any contribution in the name of another, including reimbursing a third person, before or after that third person's contribution, as inducement to make that contribution.

    Hypothetical: Joe and Sally have a joint bank account on which each can make deposits and withdrawals without permission of the other. Joe has a legitimate source of income, his job. Sally has no source of income. She is Joe's wife who stays home rearing their children.

    Joe contributes money to candidate X's campaign by writing a check from the joint account. Joe says to Sally "Why don't you contribute also? I just got a raise, so we won't even miss the money." Sally contributes to candidate X by writing a check from the joint account.

    Joe deposits his next paycheck into the account, in an amount which exceeds both campaign contributions.

    Has Joe just induced Sally to contribute by offering reimbursement, and reimbursed Sally for her political campaign contribution?

    Note that D'Souza is accused of reimbursing his wife for her campaign contribution.

  71. Roscoe  •  Jan 24, 2014 @3:55 pm

    Patrick:

    You may be looking at a different statute. Here is what I was relying on:

    "Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both."

    18 U.S.C. § 1702. Your mailbox is an "authorized depository." If you take mail addressed to someone else (even if it is junk mail) out of your mail box and destroy it you are liable under this section.

  72. AlphaCentauri  •  Jan 24, 2014 @4:14 pm

    The thing about using his wife and his girlfriend even though their contributions exceeded the legal limit as a result is interesting. It's sloppy. I wonder if those women knew he was spending their money that way? Was there some retroactive activity carried out in an attempt to conceal something once he realized the feds were asking questions?

    He should think twice before he says he wants to be prosecuted the same way as people without political connections. Seems like Ordinary People might also be facing charges for mail fraud or obstruction of justice or something.

  73. James Pollock  •  Jan 24, 2014 @4:16 pm

    Your mailbox is an "authorized depository." If you take mail addressed to someone else (even if it is junk mail) out of your mail box and destroy it you are liable under this section.

    Let me give it the "law student" treatment:

    Is my mailbox an "authorized depository" for someone else's mail? (I mean, mail for whom I am neither the sender nor the receiver?)

    Can an argument be made that it has, in fact been "delivered", thus ending its legal status as "mail", when it lands in my mailbox? Sure, it's been "delivered" rather poorly, but that's not on me.

    If I take this hypothetical mail out of my mailbox, and decide not to take it down the street to the correct house until tomorrow, have I an intent to obstruct delivery?

  74. Xenocles  •  Jan 24, 2014 @4:29 pm

    Presumably the letter carrier put it in your mailbox, so you have arguably "tak[en]" the correspondence "from [the] letter carrier" in that sense.

  75. Patrick Maupin  •  Jan 24, 2014 @5:30 pm

    @Roscoe:

    Although the last part of the run-on sentence in the statute is somewhat ambiguous, I have not come across any court ruling that did not either state or infer that "with design" covers the entire statute.

    @James Pollock:

    I have come across court cases that say that, e.g. opening misdelivered mail and making use of it (forging checks, for example) will run afoul of 1702.

  76. David C  •  Jan 24, 2014 @5:34 pm

    But you can't forget the part that says "with design to obstruct the correspondence, or to pry into the business or secrets of another". There is no such intent with ordinary misdirected junk mail.

    Leaving the mail aside, we cannot allow selective prosecutions of laws, and campaign laws in particular, because it gives an almost insurmountable advantage to the party in power. Just prosecute your opponents and refuse to prosecute your allies.

    Note the difference between "Hey! Don't charge me under that statute I violated if you aren't charging those other people who violated the exact same statute the same way I did!" and "Hey! Charge those other people for violating the statute if you're going to charge me for violating it the same way!".

    But when you're in court you can't exactly ask the judge to issue an order requiring prosecution of people not involved in the immediate case. It's really along the same lines as a Fourth Amendment violation. You can't use evidence that was illegally obtained even if it proves your case 100%. Similarly, you can't prosecute your political enemies and let your friends walk free even if those enemies are 100% guilty. Since the court cannot actually force a prosecution of the friends, the only way to remedy this is to let him walk free. Without triggering jeopardy, preferably, so he could again be prosecuted if a more unbiased prosecutor wanted to take on the cases.

  77. 205guy  •  Jan 24, 2014 @6:01 pm

    Clark gets first post, and he writes "banana republic." Now I can't get that song out of my head:

    "I came in like a wrecking ball
    I never hit so hard in love
    All I wanted was to break your walls
    All you ever did was wreck me"

    So vapid, yet so fitting.

    And could FDR be blamed for being a fascist if the US was always a Banana Republic? I'm now expecting a thorough and nuanced essay post about this.

  78. Roscoe  •  Jan 24, 2014 @6:15 pm

    James – Just because the mail was delivered to the wrong "authorized depository" doesn't mean that it isn't sitting in an "authorized depository." Change the hypo a bit and imagine that it was your neighbor's social security check. The government certainly has an interest in preventing you from destroying it just because the mail carrier misdelivered it.

    Patrick – the statute seems pretty clear that "design" refers only to obstruct, given the placement of the many "ors." For example you can violate it by taking the mail with design to obstruct, or to pry into the recipient's secrets. If you open the letter and read it, and then deliver it to the right recipient you haven't acted with "design" to obstruct the mail but I think you have violated the statute.

    David – Same thing, the "ors" indicate there are three different ways to violate the statute. You can take mail from an "authorized depository" with the intent to obstruct, or to pry into secrets, or simply to destroy it.

    Try reading the statute like this:

    "Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter . . . [and] opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both."

  79. Patrick Maupin  •  Jan 24, 2014 @6:25 pm

    Roscoe:

    No, that's but one possible reading. As I said, it's a somewhat ambiguous run-on sentence, but all the case law I found requires intent.

    Courts seem to read it:

    "Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, [and] with design … opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both."

    Which is entirely reasonable and almost certainly what was meant.

  80. Roscoe  •  Jan 24, 2014 @7:01 pm

    Patrick – I agree the statute requires "intent" as it isn't a strict liability offense. However "intent" only means the guy had to know what he was doing (i.e. throwing mail away), not that he knew he was doing anything wrong or knew his conduct was illegal. "We likewise find no error in the trial court's instruction that the jury could infer the intent to obstruct correspondence from Porter's possession of a letter which had been recently mailed to, but not received by, the addressee or the addressee's agent." U.S. v. Porter 581 F.2d 1312, 1314 (C.A.Neb.,1978). Not a high burden.

  81. 205guy  •  Jan 24, 2014 @7:07 pm

    [still reading through comments, apologies if all this has been said before]

    Aha, here is a case where I find Ken's argument rather weak. The target engaged in protected speech and also in alleged campaign finance irregularities. Yes, his speech was critical of the party that nominated the people who are now prosecuting him–but was he the only one so critical? No, many others were critical of Obama and the Dems and they weren't prosecuted. Conversely, other people have probably been accused of campaign finance irregularities, were they only of one party? If so (and I do believe it's likely), you would have a moral argument, but Ken didn't bring that up.

    Also, Ken makes a big deal about his speech being protected (1st amendment and all, I suppose). But couldn't anyone (or rather anyone famous) getting a traffic ticket then claim that they were being unfairly targetted because of some protected speech–I mean, isn't all speech protected (except for libel, but that's not in question here).

    Then we learn that selective prosecution need to be proved based on "an unjustifiable standard such as race, religion, or other arbitrary classification." I see no discussion of whether or not political party affiliation and out-spokenness does or doesn't fall under one of these standards. I could see it both ways, so I was at least expecting an argument from Ken to show it going his way.

    In a way, I find this case (as presented here, which we must acknowlege may be limited) very similar to the controversial-film maker busted for using aliases on probation. Yeah, he brought himself to the top of someone's list for his protected speech, but then he screwed up criminally. What's a prosecutor to do?

    My opinion: of course it's selective prosecution, but really I'm fine with it at this level, and would be even if the parties were reversed. The executive branch is hand picked by the elected president, so how can we not expect politics to have a non-zero role in the process. I'm not saying it's necessarily fair, or that it should go further, but if people didn't want it, we'd have to make different rules.

    Ideally, whoever is charged with prosecuting election irregularities would have a list of crimes, from most to least serious, and a list of people being investigated, and the extent of the allegations, and prosecution would start with the case with the most extensive of the serious crimes and work down the list. But let's say a vocal political opponent ends up on the list of allegations (how he ends up there is also subject to debate), I'm certain there is always some internal fudging to make sure the case comes up with a higher priority.

    And I'm saying I'm OK with that, as long as the charges are regular (not made up), and the investigation proceeds legally (no harassment, etc.). Why? Because a) it is inevitable human nature. The rules can always be bent or tweaked to make this happen, and always will be. b) because of a), it will be difficult and tedious to prove otherwise. This is pretty much the SCOTUS precedent of wanting to avoid "undermin[ing] prosecutorial effectiveness."

    Clark: note that because of my a) argument ("rules can always be bent or tweaked to make this happen, and always will be"), it makes you essentially right: the US has always been a banana republic, as has every single other country under the sun. And that's because people are bananas (less metaphorically: those in power will always break rules to further their ends). Less hyperbolically, we could say people are fallible, and there will always be some abuse, but I think that between existing laws and a free press, the two dangers of made-up/trumped-up charges and using the case for harassment, are kept in check. Also, everything that Trent said.

    With what seems to be healthy and mostly-peaceful exchanges of power between the two parties in the US, I also think a little example-making of egregarious behavior keeps both parties in check. Because let's face it, the alleged election finance irregularities were also politically motivated. With both parties and both party apparatchiks (because let's face it, that's what these operatives are) aware that the pendulum swings both ways, there may be some deterrance to actually breaking the laws. In other words, election campaign finance irregularities may be minor in the grand scheme of justice, but they are major disturbances in the political sphere and so deserve to be corrected within the political realm. As long as it does not distort the grand scheme of justice (ie no made-up charges, and no harassment techniques), I can go along with that.

    In conclusion, I would be worried about this case only if someone can bring up credible anecdotes or evidence that the charges are made up or over-extended, or that the procedure was used to harass the defendant.

    Note, I also agree with several commenters that, within the political sphere, this accusation has political consequences, and they may backfire on the party in power doing the accusing.

  82. Nicolas  •  Jan 24, 2014 @7:11 pm

    I think he'd be better off contesting the constitutionality of the law itself.

  83. htom  •  Jan 24, 2014 @7:24 pm

    It's so much that we've become a banana republic — that was always a danger — but that our bananas are rotting.

  84. AlphaCentauri  •  Jan 24, 2014 @7:53 pm

    @Nicholas:

    I think he'd be better off contesting the constitutionality of the law itself.

    That was my thought. If he ignored the law because he believed it was unjust and that everyone else is ignoring it, than he is in much better position than most people to challenge it. Trying to weasel out of it claiming selective prosecution just sounds like he expects the rules to be different for himself than for other people.

  85. jdgalt  •  Jan 24, 2014 @8:05 pm

    Just getting this prosecution cancelled is way too small a goal. If, as I believe, the prosecution was selective, then the person bringing it needs to go to prison, for at least as long as the maximum sentence with which he's now threatening the victim. Any lesser result simply isn't justice.

    What standard do we need to meet to make THAT happen?

  86. Ken White  •  Jan 24, 2014 @8:07 pm

    Aha, here is a case where I find Ken's argument rather weak. The target engaged in protected speech and also in alleged campaign finance irregularities. Yes, his speech was critical of the party that nominated the people who are now prosecuting him–but was he the only one so critical? No, many others were critical of Obama and the Dems and they weren't prosecuted.

    It's not clear to me what argument you think I made that you think is weak. I didn't say that D'Souza could meet the standard I articulated. I articulated an opinion that it was not difficult to believe he'd be targeted, and that I thought targeting was wrong. You seem to be arguing with somebody else's post.

    Also, Ken makes a big deal about his speech being protected (1st amendment and all, I suppose).

    Good Lord.

    But couldn't anyone (or rather anyone famous) getting a traffic ticket then claim that they were being unfairly targetted because of some protected speech–I mean, isn't all speech protected (except for libel, but that's not in question here).

    Good Lord again. First, if you think "isn't all speech protected," then you don't read this blog, or understand it. But the answer is: those people wouldn't be able to satisfy the standard I articulated above. Or any standard.

    I see no discussion of whether or not political party affiliation and out-spokenness does or doesn't fall under one of these standards. I could see it both ways, so I was at least expecting an argument from Ken to show it going his way.

    So, you think free speech covers everything but libel, but it doesn't occur to you that it covers political outspokenness. And you didn't follow the link to the Supreme Court case about applying selective prosecution to free speech. Got it.

    In a way, I find this case (as presented here, which we must acknowlege may be limited) very similar to the controversial-film maker busted for using aliases on probation. Yeah, he brought himself to the top of someone's list for his protected speech, but then he screwed up criminally. What's a prosecutor to do?

    You're assuming D'Souza's argument, which is that his speech got him targeted (which I don't assume), and assuming the arguments in support of Nakoula, which may or may not be right. The difference is that the publicity about Nakoula carried within it the seeds of his prosecution, because the publicity made it clear he was violating his supervised release. D'Souza being a dick didn't carry the seeds of him violating campaign finance law.

    I'm not saying it's necessarily fair, or that it should go further, but if people didn't want it, we'd have to make different rules.

    Profound.

  87. Patrick Maupin  •  Jan 24, 2014 @8:10 pm

    @Roscoe:

    Your selective citation of the appeals decision completely mischaracterizes the decision. Eyewitness testimony showed that the letter was placed in the correct mailbox. The owner of that mailbox testified that she had not authorized the defendant to pick up the mail. In that particular context, the possession of the mail by the defendant was incriminating.

    While you're favorably citing that decision, you might cite the part where the appeals court finds "no error in the jury instructions," which instructions included that the government must prove "that the taking was with a design to obstruct correspondence."

    There's that darned design word again.

  88. Lagaya1  •  Jan 24, 2014 @8:13 pm

    I haven't read through all the comments, but I'll assume that I'm the first to wish you a Happy Chinese New Year…. year of the horse!!

  89. Lagaya1  •  Jan 24, 2014 @8:26 pm

    (I know it's not for a week. It gives you time to make doomsday preparations.)

  90. AlphaCentauri  •  Jan 24, 2014 @9:31 pm

    This is so Popehat that we're getting off track on law regarding misdelivered mail.

    My mail gets shoved through a hole in my door, or left between the storm door and the main door. (Outgoing mail has to be taken to the post office, or if we don't care what happens to it, dropped into the mailbox at the corner.) So what is the law regarding misdirected bulk mail then? And what about the mail for the people who used to live at this address but moved out 30 years ago? Or the mail that comes to the fake name created by one of the college students who used to rent the house?

  91. MCB  •  Jan 24, 2014 @10:07 pm

    I have to admit, a fairly ugly part of me, gets some joy out of the fact that Mr. D'Souza will face a pretty difficult test, in part, because of the "law and order" congress and judiciary his party has helped to put in place.

    Not that the Democrats are much better. People of all political stripes in my experience are generally very convinced that criminal defendants have too many rights, and constantly get off on technicalities. Until they actually experience the criminal justice system and begin whining about their imagined rights.

  92. Grifter  •  Jan 24, 2014 @10:26 pm

    @AlphaCentauri:

    I have always been under the impression that, technically, you're supposed to write they don't live there on the envelope and leave it in your outbox.

  93. Grifter  •  Jan 24, 2014 @10:36 pm

    @Ken:

    While I love your posts…I confess I love it when you respond to comments which are confrontational without being thoughtful even more.

  94. AlphaCentauri  •  Jan 24, 2014 @10:49 pm

    @Grifter — that's the thing. We don't have an outbox. We're in the city. It's delivery to the door, but no pickup.

  95. Grifter  •  Jan 24, 2014 @11:12 pm

    @AlphaCentauri:

    I think U.S. v Coleman would indicate that it's your obligation to get it back to the post office or you've "taken" it, but I'm no law-talkin'-guy…

    http://www.leagle.com/decision/1999279196F3d83_1271

    "…the language of § 1708 provides no basis for distinguishing between misdelivered and misaddressed mail. The courts that have drawn such a distinction have done so based on the view that the Postal Service's duty and authority over the mail ends once it has been delivered to the address indicated. Yet, if the unintended recipient simply writes "Return to Sender" on the envelope, the Postal Service has the duty to return the letter. ("An item does not cease to be mail within the custody of the postal system until it is delivered to the proper addressee."). Further, we agree with Palmer that there is no logical distinction between misdelivered and misaddressed mail. The sender desires the letter to reach its intended recipient, and the intended recipient would presumably desire to receive a letter addressed to her. The Postal Service will attempt to deliver the letter to the intended recipient. See Palmer, 864 F.2d at 527. Most importantly, the unintended recipient of misaddressed mail is in the same position as the unintended recipient of misdelivered mail. Once it is clear to the unintended recipient that the letter has been misdelivered or misaddressed, he knows that he has no business opening the mail and then possessing it. The proper course of action in either event is to return the wayward mail to the Postal Service. "

    (Granted, in that case, it was checks that were fraudulently used after they were opened, but I would presume that destroying mail not addressed to you wouldn't be substantially different…but again, not confident enough to assert it for realsies).

    [Edited to add:]

    It does help to read these things fully before posting them, because they also said:

    "At oral argument, there was also discussion of whether a person who receives letters sent to his home address, but carrying the name of someone else (as if that person lived at that address), and who gets tired of sending those letters back to the post office and, as a result, throws the letters away can be held to have violated § 1708. That case is not before us. In any event, we reject the suggestion that an unintended recipient of misaddressed mail could be held criminally liable under any paragraph of § 1708 if the recipient acted without criminal intent sufficient to establish that he or she kept possession of the mail with a bad purpose."

  96. Paul Levy  •  Jan 25, 2014 @7:59 am

    Although selective prosecution is very hard to establish as a defense to a prosecution, and as Ken notes it is very hard even to get permission to explore the issue through discovery in a criminal prosecution, a committee of the House or Senate could, I suppose, conduct an investigation of a specific case.

    Some folks in the House might like to make hay about this prosecution, but I suspect they will not try to employ their subpoena power unless they are confident about what they will find.

  97. Patrick Maupin  •  Jan 25, 2014 @9:27 am

    @Grifter, @AlphaCentauri:

    If it's standard mail, without an endorsement (endorsements say things like "xxx service requested", where "xxx" is something like "address", "forwarding", "electronic", "return", etc), then if you return it to the post office, they will destroy it, as per exhibit 1.5.3 of DMM 507. So I save them the trouble by destroying it myself. I'd love to see the jury that would convict me on that one — there is no ill intent; I'm simply saving everybody a lot of trouble, time, and expense.

    If the mail has an endorsement, or if it's first class mail, then theoretically writing "not at this address" and giving it back to the post office on it should stop it from recurring. I say "theoretically" because I researched this issue fairly thoroughly after one particular bill kept arriving for a company I had never heard of, that the previous owner of my domicile disavowed any knowledge of, and that I couldn't even find any record of on the intertubes.

    After tiring of returning these bills, I finally opened one and started an email correspondence with its sender. Relief at last.

    But during the long agonizing process of deciding whether I could, in fact, legally take this course of action, it was difficult to research the issue because of the sheer number of internet posters who, just like Roscoe, parrot the unsubstantiated received wisdom that even breathing on the mail that the post office misdelivers to us makes us all criminals.

    I came across several cases that seemed to place me on good footing by requiring evil intent for a conviction, but the one that clinched it for me was US v. Frank Grieco, 187 F.Supp. 597 (1960), where the investigators sent money to a fictional hotel guest, and arrested a bellhop for stealing the money. In dismissing the indictment, the district court favorably quoted from the 1855 case of US v Pond:

    "But the indictment charges an intent to obstruct the correspondence, and pry into the business and secrets of one Ebenezer H. Currier. This cannot be proved without showing that there is a real person in existence capable of having correspondence, and business, and secrets, affected by the letter in question, but also that his name is Ebenezer H. Currier."

    YMMV, but due to my life experiences, intent, and general outlook, I am not particularly afraid of the post office or the IRS. I agree, however, with Clark that, at least in aggregate, cops and prosecutors may be a different story.

  98. cvkvlv  •  Jan 25, 2014 @10:11 am

    With what seems to be healthy and mostly-peaceful exchanges of power between the two parties in the US, I also think a little example-making of egregarious(?) behavior keeps both parties in check.

    Hope it's not too off-the-rails to note that the above seems to casually accept as beneficial what Washington (the least Banana Republican President, one might say) warned the Nation to avoid: factionalism and political parties themselves.

  99. Patrick Maupin  •  Jan 25, 2014 @3:26 pm

    Back on-topic:

    Alison Frankel has an interesting article at Reuters on the D'Souza charges.

  100. Xennady  •  Jan 25, 2014 @4:36 pm

    "If you choose to take a name based on a group of people who committed crimes because of their beliefs, proceeding to complain that people treated you as if you might consider committing crimes because of your beliefs is, and should be seen as, foolish."

    It's just fascinating for me to see the original Tea Partiers described as criminals.

    Those folks- by the way- dumped that tea into Boston harbor because the British Crown was attempting to solve a revenue problem suffered by the British East India Company by forcing colonists at gunpoint to buy tea from that corporation, paying a tax enacted without their consent as they did so. This has long been regarded as a stirring demonstration of resistance against tyranny.

    You disagree, it appears.

    James Pollock, somehow I get the sense that you're a leftist.

    So I applaud your honesty in openly declaring yourself to be on the side of tyranny, as so often leftists attempt to hide it.

    But I suppose after Stalin, Pol Pot, etc, the cat's out of the bag, so to speak.

    No point in pretending now, is there?

  101. MoseszD  •  Jan 25, 2014 @5:29 pm

    But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power.

    You almost got it, but not quite. I used to work for the Feds. It's not political persuasion or views. It's NAME RECOGNITION.

    You don't waste resources in chasing this crap unless it is (a) huge (a lot more than 20K) OR (b) the name recognition will get a LOT OF TV TIME.

    This is why Barry Bonds was hounded and eventually, over one ambiguous (but technically truthful) statement, prosecuted for obstruction of justice. Had nothing to do with anything serious, material or particularly useful in dealing with the steroids plague in baseball or in general.

    If he was some nobody gym rat, nothing would have happened. BUT, he was a BIG NAME and chasing after him got lots of publicity.

  102. AlphaCentauri  •  Jan 25, 2014 @5:30 pm

    Leftists commit crimes in protest ("arrestable actions") all the time, and they get sent to prison for it. Who said "law abiding" and "ethical" are synonyms?

    But if I were a member of a famous musical group called The Draft Dodgers, and the male members of the group hadn't registered for selective service but had applied for federal student loans, it would be rather sloppy if no one in any federal agency caught them.

  103. Captain  •  Jan 25, 2014 @7:02 pm

    It's just fascinating for me to see the original Tea Partiers described as criminals.

    How exactly would you describe their actions? While the laws they were breaking were unjust, they did in fact break them, and I'm pretty sure that's the definition of a criminal, although I don't have much of that there lawyer schoolin'.

    So I applaud your honesty in openly declaring yourself to be on the side of tyranny, as so often leftists attempt to hide it.

    But I suppose after Stalin, Pol Pot, etc, the cat's out of the bag, so to speak.

    Ooooh, just missed Godwin on my bingo card there… Already got ad hom, straw man, red herring, and with my free space I would have got the prize.

  104. rsteinmetz70112  •  Jan 25, 2014 @9:25 pm

    First while "Tea Party" is certainly an allusion to the famous costume party held by a number of Bostonians to protest British tax policy, it is also an acronym for "Taxed Enough Already".

    Second would anyone care to wager this is setting up an appeal to SCOTUS that anonymous donation are an exercise of free speech and therefore the statute is unconstitutional?

  105. Xennady  •  Jan 26, 2014 @2:32 am

    "How exactly would you describe their actions?"

    I already described their actions. Resistance to tyranny. And, yes, there were consequences. Google "The American Revolution." You're welcome.

    "Ooooh, just missed Godwin on my bingo card there… Already got ad hom, straw man, red herring, and with my free space I would have got the prize."

    Sorry, but I don't feel duty-bound to list every leftist murderer who has soiled history by existing. Plus, I figure you guys already have them on a t-shirt or perhaps a poster, so you know who they are.

    But hey, thanks for the response.

  106. Captain  •  Jan 26, 2014 @10:10 am

    I already described their actions. Resistance to tyranny.

    And that nullifies the fact that they were committing criminal acts with respect to the laws at the time? MLK Jr., Nelson Mandela, and a whole host of other people achieved progress by breaking laws. Criminal may have a lot of negative connotations, but as a descriptor it's accurate.

    Google "The American Revolution." You're welcome.

    Wow, thanks, as an American citizen I had no idea how my country was founded until you told me. Guess that oath I swore to support and defend the Constitution was just a bunch of words to me.

    Sorry, but I don't feel duty-bound to list every leftist murderer who has soiled history by existing. Plus, I figure you guys already have them on a t-shirt or perhaps a poster, so you know who they are.

    Yup, let me just get out my evil dictators of the world T-shirt. Seriously, do you know how ridiculous that sounds? Accusing everyone that disagrees with you of loving mass murderers is factually incorrect, and also has the bonus effect of sounding like paranoid right wing all-caps birther conspiracy emails.

  107. Castaigne  •  Jan 26, 2014 @11:33 am

    @James:

    He's already become a conservative martyr and his stock is going to go through the roof.

    Normally, you'd probably be correct, but this is turning out simply to be the icing on the rock-hard cake that is sinking Dinesh D'Souza already. After his faux-documentary came out, it also came out that he was an adulterer and was caught red-handed at it – pretty heavy tunes for someone who caters to evangelistic crowd. It caused him to lose his funding, his college position…Dinesh has been heavily on the skids now.

    And that's the kicker when dealing with social conservatives; of course an adulterer would engage in this sort of behavior.

    @David Engh:

    I'm coming around to Clark's position that it's time to burn it down.

    Be careful what you wish for…

    @Dave Ruddell:

    What I want to know is how did the investigation into D'Souza begin. Were they tipped off by someone, or did they start sua sponte?

    Word over at Free Republic is that one of the peeps who strawed for him shopped him out. Currently, money is on the wife that he cheated on.

    @Xenocles:

    This notion of "you're still wrong even if everyone else does it" led me to ponder what the purpose of the law is.

    I have always held that the purpose of the law is to impose order on society. That's it. I tend towards Chinese Legalism. Law should not address "higher" questions like the meaning of life, or what is and is not just, or even what the purpose of the law is. The law provides order; it is there to support the state and keep society from chaos. Other than that, I have no expectations from the law.


    @Xennady:

    James Pollock, somehow I get the sense that you're a leftist.

    So I applaud your honesty in openly declaring yourself to be on the side of tyranny, as so often leftists attempt to hide it.

    But I suppose after Stalin, Pol Pot, etc, the cat's out of the bag, so to speak.

    No point in pretending now, is there?

    As a pre-Burkean conservative, it always amuses me when post-Burkean rightists assume that all leftists are tyrannical in nature.

    I already described their actions. Resistance to tyranny.

    Yes, the motivations of the Founders were just so pure, so angelic, a fight against Total Evil!

  108. Dave  •  Jan 26, 2014 @12:39 pm

    Those folks- by the way- dumped that tea into Boston harbor because the British Crown was attempting to solve a revenue problem suffered by the British East India Company by forcing colonists at gunpoint to buy tea from that corporation, paying a tax enacted without their consent as they did so. This has long been regarded as a stirring demonstration of resistance against tyranny.

    That's a rather ahistorical, if unfortunately common, interpretation of events. A few points:

    1) No one was being forced to buy tea from the East India Tea Company, or rather, no more so than they had been throughout the colonial period — The Company had a monopoly on trade between Britain and India pretty much since its inception in 1609.

    2) The Tea Act imposed no new duties or taxes. It in fact removed some of them.

    3) The revenue problem was in part due to the colonists prior "criminal" behavior, namely smuggling, although that certainly wasn't the only cause.

    What the Tea Act actually did was remove various import duties on Tea destined to the colonies and allowed the British East India Company to ship directly to the colonies, something they had previously been prohibited from doing. The goal was to reduce the price of tea in the colonies to make the, at the time quite rampant, smuggling unprofitable. By making it economically favorable to buy legal tea, Lord North hope to raise revenue through the then 7 year old tax on tea and legitimize that tax. Apparently, some of the patriots did not have sufficient faith that their fellow colonists would pay extra for their tea to stand on principle, particularly since the smuggled tea was often of a lower quality, and therefore chose to trespass and destroy private property, namely the cheap tea.

  109. MBI  •  Jan 26, 2014 @1:12 pm

    While the IRS targeting has been greatly overblown, and the mistakes that led to it completely understandable, it is still, in fact, a violation of federal law and an unfair use of government resources. And please, please, please, do not ever underestimate the power of extra paperwork to fuck you over.

  110. Basil. Forthrightly  •  Jan 26, 2014 @1:44 pm

    @Xennady the link Castaigne provided barely skims the criminality of some segments of the pro-Revolution population. In many areas, Loyalists were subject to attacks by pro-Revolution mobs, which in some cases committed beatings, tar-and-featherings, cutting off ears, robbery, or outright murder. It was also common for a man who joined a Loyalist militia unit to have his home attacked in his absence, either robbed or burnt and his family terrorized. There's some spotty evidence that rape of family members was a popular terror tactic in a few areas.

    And while not "criminal", Loyalists in many states became subject to double taxation. After the Declaration of Independence, most states adopted the tyrannical "Test Laws", which required citizens to prove their loyalty by oath. Those who refused to swear – and many Quakers at the time refused all oaths for religious reasons (some were allowed to affirm and some were not) – were subject to a number of legal persecutions, varying from jurisdiction to jurisdiction. In almost all, they lost the vote. In many, they couldn't file a lawsuit, act as a trustee or executor in any matter, or speak at public meetings. In many places professionals -lawyers, doctors, and clergyman – couldn't practice. During and after the Revolution, the property of a great many Loyalists was seized by the state. The oppression and tyranny was heavy and extensive enough that after the war, about 5% of the colonial population left.

    As part of the Teaty of Paris, the winners agreed to compensate dispossessed Loyalists; in practice that mostly didn't happen, though many Loyalists got some grants of land or cash payment from the British Crown.

  111. Xennady  •  Jan 26, 2014 @5:36 pm

    I don't know whether to apologize for dragging the thread off topic or to be proud for generating so many responses.

    Allow me to quote myself, as others already have.

    "It's just fascinating for me to see the original Tea Partiers described as criminals."

    Note I did not claim they did not break the laws of the English Crown. Note that I did not claim Patriots were pure as the driven snow, lacking self interest. Nor did I claim they treated Tories as honored guests, later.

    I simply noted that I was fascinated to see them described as criminals.

    Know why?

    Because I take it as a marker that someone has chosen a side against the general American interpretation of American history, which is that on the whole the Patriots were the good guys. Because, generally, that isn't how the Boston Tea Party has been described, by people who think the original Tea Partiers were doing good. For example, when I think of Martin Luther King my first thought isn't to note that he had been sent to jail. And if, when his name came up, someone described him as a criminal and a lawbreaker and listed him with an assortment of murderers and terrorists- gosh.

    I'd kinda back away, because it just doesn't occur to me- when I think of Martin Luther King- to consider his lawbreaking something I should remember and note when his name comes up.

    Yeah, it happened. But we remember him for other reasons. Most of us, anyway.

    So anyway we all got to see James Pollock equate the original Tea Partiers with an assortment of murderers and terrorists, with the obvious intent to suggest the regime is quite justified in harassing them.

    Gosh. I kinda backed away- but I also thought it worthy of comment.

  112. Wick Deer  •  Jan 26, 2014 @6:16 pm

    I think the real lesson of Dinesh's case is that, if you decide to commit a felony, using both your wife AND your girlfriend in the same scheme is asking for trouble.

  113. Xennady  •  Jan 26, 2014 @6:18 pm

    Castaigne,

    I love how you described yourself as a "pre-Burkean conservative", etc, etc- then provided a link to cracked magazine- whoops, cracked.com- to make your historical point.

    I love it!

    An intellectual using a mere humor website to back up his historical point- is that irony? Or idiocy?

    Whatevs.

    I consider all leftists tyrannical in nature because the leftist view of reality is nonsense and as a result of leftists taking power- inevitably, it seems- is the sudden appearance of mass graves and mass poverty.

  114. Xennady  •  Jan 26, 2014 @6:43 pm

    Basil. Forthrightly,

    Yep. You state facts. Thing is, you didn't mention why all that came about.

    The ugly is all the fault of the Patriots- like those who dumped that tea into Boston harbor- in your view.

    Banastre Tarleton- who dat?? Danial Morgan- the scars on his back because he dissed an officer of the Crown prior to the Revolution- wha?

    I know better.

    But I also think this is all off topic for the site, generally.

    Sorry, popehat popes.

  115. babaganusz  •  Jan 27, 2014 @7:21 am

    I love how you described yourself as a "pre-Burkean conservative", etc, etc- then provided a link to cracked magazine- whoops, cracked.com- to make your historical point.

    I love it!

    An intellectual using a mere humor website to back up his historical point- is that irony? Or idiocy?

    Whatevs.

    Or possibly "playing to one's audience".

    But, as you say, whatevs.

  116. Graham Shevlin  •  Jan 27, 2014 @10:03 am

    I think the real lesson of Dinesh's case is that, if you decide to commit a felony, using both your wife AND your girlfriend in the same scheme is asking for trouble.

    This leads me to conclude that the biggest challenge undermining Dinesh D'Souza is his own hubris.

  117. Trent  •  Jan 27, 2014 @1:08 pm

    Dave,

    Your description of the Boston Tea Party is at odds with the historical account. I suggest you start with Wikipedia and work you way through the scholarly linked references, if you don't take the article at face value. There were significant tax changes, attempts to conceal taxes and other issues that led to the Boston Tea Party that revolved around the Colonists contention that the British constitution barred Parliament from levying taxes on the colonies without the colonies being represented in Parliament. The tea party was in fact the symptom and reaction to the larger taxation issue that was driven to a head by the special taxes levied on colonial tea by Parliament (those taxes were used to pay colonial administrator salaries and were an attempt to ensure that colonial governors and others remained dependent, and beholden, to the British even when at odds with the colonists).

    I'd also like to point out that the smuggled tea was in fact East India tea that was re-imported from Denmark after being sold by the East India company to the Dutch. So claims of lesser quality by all accounts are nothing but propaganda, likely by the British government of the time.

    To paint this historic action against the backdrop of smuggling alone is a dishonest and inaccurate portrayal of an event that was some of the kindling for the revolution and an issues that revolved around much bigger issues. History is littered with small, almost insignificant events that become the trigger to protest against much larger issues. When parliament and the King reacted harshly to the tea party, rather than addressing the underlying representation issue, they laid the groundwork for the revolution.

  118. Xennady  •  Jan 27, 2014 @2:36 pm

    "When parliament and the King reacted harshly to the tea party, rather than addressing the underlying representation issue, they laid the groundwork for the revolution."

    Bingo. Thank you for expressing the underlying issue much better than I did, and more politely too.

    In my view another small, almost insignificant event of the same sort is the prosecution of Dinesh D'Souza.

    The controversy isn't really about him, anymore than the Boston Tea Party was about the plant leaves thrown into the water.

    Something much bigger is going on.

    I've been reading for many years about conservative and/or republican groups who get audited over and over again by the IRS, while various leftist groups never receive the same scrutiny. This has been a sort of background noise throughout my time paying attention to politics.

    If you're not breaking the law then an audit isn't really that terrible, I suppose. Especially if you are a professional political group able to afford experts to interact with the IRS.

    But at some point the background noise gets loud enough that you wonder just what the heck is going on, so to speak.

    So here we are, listening to the roar in the background, suspecting something ugly is heading our way. By "we" I mean conservatives, I should note. And then the regime indicts Dinesh D'Souza.

    Hmm. Not good, anymore than the original Tea Party was a good sign for the comity of British-ruled America.

  119. Dave  •  Jan 27, 2014 @4:38 pm

    Trent,

    Odd. I just reviewed the wikipedia page you suggest I start with, and all the claims I made were there. Are you sure that was the source you wanted to suggest?

  120. babaganusz  •  Jan 27, 2014 @9:03 pm

    I know better.

    If one feels the need to express that notion, one just might transcend any persuasion or persuasive quality.

    besides, I don't have a cookie to spare.

  121. Castaigne  •  Jan 28, 2014 @4:22 am

    @Xennady:

    An intellectual using a mere humor website to back up his historical point- is that irony? Or idiocy?

    1) I'm not an intellectual. Intellectuals are dreamy philosopher and artist types who smoke hash or pot and talk about how deep and meaningful everything is, maaaaaaaan.

    2) I provided information at the reading level I judged you at.

    I consider all leftists tyrannical in nature because the leftist view of reality is nonsense and as a result of leftists taking power- inevitably, it seems- is the sudden appearance of mass graves and mass poverty.

    And speaking AS a conservative, we know that's bullshit. The Founders were leftists of their day – don't argue, conservatism in the day of the Founders was pre-Burkean and involved divine right of kings, fealty, belief in the absolute monarchy, etc, and the Founders believed in liberal lefty ideas like voting and representation instead of obedience to God and obedience to their Godly king – and the American Revolution did not result in mass graves (at least, no non-Loyalist ones) or massive poverty. The United Kingdom in the late 19th Century and throughout the whole of the 20th is a leftist nation – where are the mass graves and mass poverty there (that was not caused by external forces)? How about the Scandinavian countries? The Federal Republic of Germany previous to reunification? Or even Switzerland?

    Your "thesis", if it can be deigned to be referred to as that, is wrong. It's simply not backed by historical fact. Yes, there have been leftist regimes that resulted in mass poverty and mass graves. There have also been rightist regimes that resulted in the same – see the Catholic Falangists of Spain, the Empire of Prussia, Peron's Argentina, etc.

    But I find it interesting that you think all Democrats – who are all leftists by dint of being liberal – and the Founders – who were classic liberals – are all devotees of Stalinist and Maoist techniques.

    Sure I don't know you from Free Republic? There's a lot of that there.

    I've been reading for many years about conservative and/or republican groups who get audited over and over again by the IRS, while various leftist groups never receive the same scrutiny. This has been a sort of background noise throughout my time paying attention to politics.

    And there have been independent investigations done into it by several conservative groups and they've found no evidence that conservatives are being favored over liberals. Nothing found that can be brought to court, nothing found that's even newsworthy. It's why the Issa investigations have fizzed out and why it's only a talk radio subject.

    So here we are, listening to the roar in the background, suspecting something ugly is heading our way. By "we" I mean conservatives, I should note. And then the regime indicts Dinesh D'Souza.

    Yes, they indicted an adulterer, who had to be chased out of his job as a Bible college president, and he's a solid Birther. And you're surprised he was indicted for financial skullduggery? When it's now appearing that his own wife shopped him?

    I'm suprised he hasn't gone on a murder/rape spree yet.

  122. CJK Fossman  •  Jan 28, 2014 @8:28 am

    So here we are, listening to the roar in the background, suspecting something ugly is heading our way. By "we" I mean conservatives …

    Isn't that the normal mode of operation for the particular branch of conservatism you seem to represent?

  123. Castaigne  •  Jan 28, 2014 @10:31 am

    @CJK Fossman:

    Isn't that the normal mode of operation for the particular branch of conservatism you seem to represent?

    Pretty much. His type are always slavering for the day when they are put in the FEMA concentration camps. They're just waiting for Obama to do it…as they waited for Clinton…as they waited for Carter…

  124. TMLutas  •  Jan 28, 2014 @1:01 pm

    I would think that when a prosecutor announces that criminal conduct was detected during a routine check as part of a zero tolerance policy, a few things would happen:
    1. We would find out what the routine check is
    2. Running that same check independently would uncover some numbers of others who failed the check
    3. Every single one of them would be prosecuted regardless of party affiliation.

    So what was the routine check? Who is investigating whether others were not prosecuted for failing the same check? Is the zero tolerance policy a sham and does it matter whether it is?

  125. Dion starfire  •  Jan 28, 2014 @4:20 pm

    A counter to the argument that D'souza made himself a target (by breaking the law while being a highly visible figure) I'd ask if it's okay to not prosecute somebody if they commit a crime while NOT making themselves a highly visible figure.

    Of course, if D'Souza is merely the FIRST person to be prosecuted and they're still looking for other violators then that outspokenness would a legitimate factor ('low hanging fruit', and all that)

  126. AlphaCentauri  •  Jan 28, 2014 @6:52 pm

    It's not like D'Souza hid his contributions and someone went digging to find it. He put his contributions in the name of someone else who already had made contributions of their own. In order to try to protect himself, he put someone else in trouble, and that was someone who shared his own political beliefs. This is D'Souza family dysfunction, not an issue of selective prosecution.

  127. Xennady  •  Jan 29, 2014 @4:56 am

    @Castaigne

    "I'm not an intellectual."

    We are in agreement on this question.

    "I provided information at the reading level I judged you at."

    Mm-hmm.

    "And speaking AS a conservative, we know that's bullshit."

    You give no indication of a being a conservative in modern sense in common usage in the United States today.

    "The Founders were leftists of their day"

    This is a delusional statement, based upon your idea that "things you like" are "leftist."

    "Founders believed in liberal lefty ideas like voting and representation"

    I suppose I have to point out that there were elections, voting, and representation in England at the time of the Revolution. Not as representative as after the reform act of 1832 but present nonetheless. But- again- you've noticed that the Founders were fans of voting and representation which are "things you like" so therefore they were leftists. Mm-hmm.

    "The United Kingdom in the late 19th Century and throughout the whole of the 20th is a leftist nation"

    If the UK was a leftist nation in the late 19th century then the word has no meaning at all. Except as a "thing you like." I'll add that I don't consider England or the various other places you mention as leftist regimes either. Any regime that will respect election results when it loses isn't a leftist regime in my book. But it's interesting that you list "the Empire of Prussia" as a rightist regime when Bismarck introduced the first quasi-modern sort of welfare state, after German unification. Sorry, I'm not going to search the cracked.com database for more detail.

    "But I find it interesting that you think all Democrats – who are all leftists by dint of being liberal – and the Founders – who were classic liberals – are all devotees of Stalinist and Maoist techniques."

    I made no such claim, nor do I believe so.

    "And there have been independent investigations done into it by several conservative groups and they've found no evidence that conservatives are being favored over liberals."

    Perhaps I should spend more time at freerepublic, as I've never heard of any conservative group concluding such. Perhaps you should name said groups, as I'd be interested in reading more about their conclusions. Yes, really.

    "Nothing found that can be brought to court, nothing found that's even newsworthy."

    I can't help but notice that somehow it has been extremely newsworthy that Chris Christie has been accused of closing a lane on a bridge somewhere, for some reason. Yeah, I don't care. But somehow it isn't newsworthy at all that Barack Obama 1) has illegally sold guns to Mexican drug cartels resulting in the deaths of many citizens of Mexico, as well as at least one US border patrol agent. 2) Has illegally used the IRS to harass and intimidate his political opponents. 3) Lied over and over again to get Obamacare passed into law. Yes, over and over again.

    Obviously, my definition of newsworthy differs from yours- and from that of the so-called press, which is really exercised about that bridge closure.

    "And you're surprised he was indicted for financial skullduggery?"

    Actually, we agree on two things. I count Dinesh D'Souza as the same sort of lowlife as Bill Clinton was, and surely still is.

    If anybody deserves to go to jail for a law that probably shouldn't exist in the first place, it's him.

  128. Devil's Advocate  •  Jan 29, 2014 @10:32 am

    I can't help but notice that somehow it has been extremely newsworthy that Chris Christie has been accused of closing a lane on a bridge somewhere, for some reason. Yeah, I don't care. But somehow it isn't newsworthy at all that Barack Obama 1) has illegally sold guns to Mexican drug cartels resulting in the deaths of many citizens of Mexico, as well as at least one US border patrol agent. 2) Has illegally used the IRS to harass and intimidate his political opponents. 3) Lied over and over again to get Obamacare passed into law. Yes, over and over again.

    Obviously, my definition of newsworthy differs from yours- and from that of the so-called press, which is really exercised about that bridge closure.

    Seriously? How did you somehow miss all the coverage of the stories you mentioned?

  129. max  •  Jan 31, 2014 @12:00 am

    1) In answer to your first question Clark, it is becoming one now but still probably won't not make the transition to banana republic, there is a lot of inertial keeping this from happening. The potential to become a banana republic was there 1789 and there have been a few occasions when it has been touch-and-go about whether or not the US became a banana republic, but so far the nation has managed to avoid that fate.

    The best explanation for how the US managed to avoid following Haiti that I've seen is that the weakness of the central government and the profusion of powerful state governments has kept the levers of power from falling into the hands of one cabal/faction which can exert control over a significant portion of the population. This situation would change if the federal government gained the power directly tax the citizens or became responsible for a major part of the economy like healthcare or welfare or unemployment compensation and there was only one set of levers at the federal level which could control the population of the several states, but it would be pretty foolish for citizens of the several states to let that happen.

  130. Careless  •  Jan 31, 2014 @1:57 pm

    So we have Pollock's odd understanding of the Boston Tea Party, where he seems to think they were avoiding taxes instead of protesting them (they weren't, as far as I know, drinking the harbor water after throwing the tea in it), and his suggestion that because of this, groups affiliated with a different Tea Party should be assumed to be tax dodgers.

    He's just trolling, right?

  131. Jon H  •  Feb 5, 2014 @5:11 am

    Wick Deer wrote: "I think the real lesson of Dinesh's case is that, if you decide to commit a felony, using both your wife AND your girlfriend in the same scheme is asking for trouble."

    AND the girlfriend's husband.

  132. Xenocles  •  Feb 5, 2014 @8:06 am

    @Careless-

    Perhaps, but there is a kernel of truth to what he says. A lot of wealthy people then got their money from smuggling – de facto tax evasion – so they would certainly be interested in getting rid of licit competition. Of course, it's usually bad history practice to point to one fact and say "That was their motivation." Ideology often lines up with self-interest nearly coincidentally. Further, it's impossible to know the motivation of the rank and file participant.

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