In Political-Corruption Cases, Legal Issues Not So Simple As They Appear

One of the wonderful things about the Internet is that it allows people to spout off half-baked ideas that don’t withstand serious scrutiny. It’s doubly wonderful when these half-baked ideas perpetuate common misunderstandings in the general public about criminal law.

A good recent example of an Undercooked Internet Dish came from Andrew McCarthy at National Review. Writing about conservative activist Dinesh D’Souza, who was indicted recently on charges that he funneled illegal campaign contributions through third parties, McCarthy opined:

Even more offensive, to my mind, is count two — the charge of making false statements to the government. To commit the species of campaign-finance violation alleged in count one, the defendant necessarily must cause the straw donor to file a false contribution report with the Federal Election Commission. That is, you cannot commit the donation offense without simultaneously committing the false-statement offense. For the government to charge both smacks of double jeopardy: being twice prosecuted for the same, single offense.

Why such a heavy-handed indictment? Because Congress deemed campaign-finance violations worth less than $25,000 to be so trivial that a maximum jail sentence of only two years is prescribed (see Title 2, U.S. Code, Sec. 437g(d)(1)(D)). You can also be certain the sentencing guidelines would prescribe no jail time at all. Yet, by gratuitously piling on another felony, Obama and Holder portray D’Souza as a serious crook and subject him to the onerous potential of seven years in prison — all for an episode that ordinarily would not be prosecuted at all.

OK, so where do we start? Because there’s a lot to work with here.

First off, charging someone with two separate crimes stemming from the same general conduct does not run afoul of the Double Jeopardy Clause. The Supreme Court settled this about 80 years ago when it ruled in Blockburger v. United States that two crimes are considered separate when “each requires proof of an additional fact that the other does not.” The Court has consistently explained since then that the word “fact” refers to the statutory elements of the crimes, not to the underlying evidence used to prove that the defendant committed them.

Here, D’Souza is charged with two distinct crimes. One is making a donation to a campaign in someone else’s name. The other is causing the campaign committee for the candidate to whom he contributed to file a false report with the government. The government will have to prove different facts for each crime that are not necessary to win a conviction on the other. For example, it is necessary for Count Two, but not for Count One, to prove that a statement was made to the government. It is necessary for Count One, but not Count Two, for the government to prove that excess donations were made on D’Souza’s behalf.

Next comes McCarthy’s bold statement that “you can be certain the sentencing guidelines would prescribe no jail time at all.” That’s wrong, too. For one thing, it’s just not possible to tell on the basis of an indictment alone what the guidelines range will be. Among many other variables, the defendant’s choice whether to plead guilty has a direct impact on the guidelines range, and here we have no idea whether D’Souza plans to fight the charges.

But just for fun, let’s look at what the guidelines range might be if D’Souza had been charged with only the campaign-contribution violation. The base offense level—the starting point in determining a guidelines range—for the crime D’Souza committed is 8. Because the purportedly illegal donations totaled $20,000, we would add 4 more levels, for a total of 12

Assuming D’Souza has no criminal history, the guidelines would call for a sentence of 10-16 months’ imprisonment. Now, D’Souza could plead guilty, lowering his offense level by two or three levels. But even if we knock three levels off of D’Souza’s range, the guidelines still call for a sentence of 4-10 months. And while short sentences like that sometimes can be served as home confinement, a judge would not be straying from the guidelines if he imposed a prison term instead.

Finally, McCarthy implies that D’Souza’s sentence likely will be longer if he is convicted for two crimes rather than for one. That’s just not how it works. The sentencing guidelines contain a provision that require the sentencing judge to group together counts involving “substantially the same harm.” Once the offenses are grouped, the judge then looks to see which of the crimes would produce the harsher sentence and makes that the recommended sentence. If there’s only one “group” of crimes—as there almost certainly would be in D’Souza’s case—there’s no increase if he is convicted of two crimes instead of one.

Of course, the guidelines aren’t binding, but there’s no reason to think a judge would ratchet up punishment on a defendant simply because there happen to be two counts of conviction.

High-profile political-corruption prosecutions often lead to misunderstandings about how the legal process works. For D’Souza’s sake, hopefully his lawyers aren’t gathering their legal arguments from National Review.