Originally posted at Breitbart.
Editor’s Note: The following is part 2 of 3 exclusive Breitbart News excerpts from bestselling author Dinesh D’Souza’s new book, Stealing America: What My Experience with Criminal Gangs Taught Me about Obama, Hillary, and the Democratic Party. Read part 1 here.
I walked back to my apartment. Two FBI agents were waiting for me. I had always had the image of FBI agents as tall, intimidating guys wearing sunglasses. These two were puny kids, both in their late twen- ties or early thirties. And no sunglasses! Of course, I didn’t speak to them. I told them I was going to get a lawyer. They gave me their busi- ness cards and left. They could not have been more polite.
I called a lawyer I knew in California. I told him about the FBI at my door. He said, “Wait. I’m not sure what you’ve done, but they are coming after you. So listen very carefully. Go out and rent a storage cabinet. Then collect your passport, your important files and papers, the books that you need for the next few months, and your laptop and other electronic devices. Get them out of your apartment and into the storage unit. You are likely to be arrested, probably soon, and when you do they may search your apartment and put everything they want into boxes, and you won’t get those boxes back for several months. So whatever you need to get your work done, take it out of there now.
“You are going to need a criminal lawyer. Get Ben Brafman—he’s one of the best criminal lawyers in the country. He’s represented Mi- chael Jackson, the rapper P. Diddy, bigwig CEOs and politicos. He just saved the head of the IMF, Dominique Strauss-Kahn. Do you know the case? The guy was staying in a New York hotel and the maid—Somali, I think—who cleaned his room accused him of raping her. Turns out the woman knew who he was, and was trying to get money out of him. It was an extortion deal, and Brafman exposed it. Yeah, Brafman’s your man. He’s a liberal Democrat—I feel I should tell you that—but don’t let that deter you. He’s the best you can get. I met him at a conference years ago, and when we hang up, I’m going to call him and tell him about you. So wait an hour and then contact his office for an appoint- ment, okay?”
A few hours later, I was in Brafman’s office, talking to the man him- self. Right away I liked Brafman’s straightforwardness. “Tell me what you did.” And after I did, he asked me, “Did Wendy know about this?”
I said, “No.” He said, “Good.” Then he summed up my predicament: “What you did is illegal. That is unfortunate. What is more unfortu- nate is that you are a smart fellow, and you have committed one of the stupidest crimes in the history of American jurisprudence.” What made it so stupid, Brafman explained, was that it was so unnecessary.
Brafman explained that there was a legal way for me to have given Wendy money. I could have given through a PAC, or political action committee—which is the way people give thousands, even millions, to benefit their favored candidates, Republican or Democrat. Heavy hitters like George Soros and the Koch brothers have figured out ways to contribute even larger sums, running into the tens of millions. And PACs are what liberal donors use when they sign up for those $25,000-a-plate fundraisers for Obama or Hillary. Brafman concluded that my problem wasn’t that I gave too much; it was that I gave in the wrong way. As he said, and I couldn’t help but agree, this was very dumb of me.
Brafman asked me how the U.S. government found out. I told him, “I have no idea. I don’t see how they could have.” At one point, Wendy confessed to me that she was having trouble with some of her campaign consultants. One in particular had become disgruntled and threatened to harm her and anyone close to her. I explained to Brafman how these things happen. Failed campaigns are often unable to settle their bills, and high-priced consultants who have been working for those cam- paigns don’t like this. Of course they should realize this is a risk of doing business with a campaign—every campaign has a winner and a loser. Even so, vindictiveness and recriminations are not unheard-of, because political operators are not known for their c’est la vie sensibil- ities. I suggested to Brafman that perhaps one such operator told the authorities, to get back at Wendy.
I alerted Brafman to a second, more likely, possibility: the govern- ment was spying on me. This possibility could not be discounted, be- cause the U.S. government was pretty much spying on everyone. What began as a surveillance of suspected terrorists had metastasized into a surveillance of American citizens who are not suspected of terrorism
or any other crime. I told him that the chances that I might have ap- peared on the surveillance roster, however, were increased because of my public criticism of one particular individual.
Shortly after my film 2016 played in theaters, a vituperative attack on me appeared on the website barackobama.com. The article, unsigned, was strident and incoherent, in keeping with Obama’s distinctive style. My film, it said, was a “deliberate distortion” produced by a guy with a “long history of attempting to add a veneer of intellectual respect- ability to fringe theories, conspiratorial fear-mongering and flat-out falsehoods.” Anyone reading this fulmination would have little doubt I had upset the thin-skinned narcissist.
Brafman’s eyebrows shot up. “Are you saying that you were person- ally attacked by the president of the United States?” I said, “Yes.” And opening up my computer, I showed him the article. “Amazing,” he said. “I have never heard of anything like this.” I told Brafman about how I had penetrated Obama’s world, showing up at his family homestead in Kenya, interviewing his brother George in the Huruma slum of Nai- robi. “One thing I found out about Obama since I began to study him,” I said, “is that he’s a petty, vindictive guy, cut from the same mold as his petty, vindictive father.”
I confessed I had infuriated the most powerful man in the world, the man at the head of a formidable empire, and I guess this might be a case of the empire striking back. I felt no pride in telling Brafman any of this; on the contrary, I felt like an idiot. Here I was, a conspicu- ous public critic of the Obama administration, giving Obama and his minions in the Justice Department just what they needed: a pretext to go after me.
Brafman then gave me the silver lining. “You have come to the right place,” he said. “I know those guys in the prosecution unit very well. Let me talk to them and help them to see the light.” Brafman said that there were several facts in my favor. First, this wasn’t a corruption case. I hadn’t given the money to get something out of it; I had given purely out of friendship. Second, I wasn’t even realistically trying to swing an election: as far as he could see, Wendy never had any chance to win, and lost by a landslide. Third, I was not a professional political fund- raiser or campaign bundler. Fourth, I had no prior criminal record. Bottom line, Brafman said, “I think I can convince those guys to let you off with a warning and a fine. That’s the normal solution for some- thing like this.”
I wanted Brafman so I asked him what his fee was. He told me, and I tried not to show my astonishment. There goes my retirement, I thought to myself. It was a bitter joke, one that I didn’t share with Brafman. He must have read my mind. “It’s a flat fee,” he said. “There will be no other costs.” I liked that part, the flat fee. “I’m good with it,” I said. This was not a time for me to negotiate. Brafman said he would send me a contract. I left his office feeling very lighthearted. Perhaps this was something I could quickly put behind me.
Wishful thinking. Brafman returned from his meeting with the prosecutors, and he was visibly puzzled. “I told them that you admit making the contributions. I told them you are willing to take respon- sibility for that. They are still determined to prosecute you to the full extent of the law,” he said. “They want a felony conviction. They may ask for prison time. I don’t get it.” I reminded Brafman that I was not on Obama’s Christmas card list. No, Brafman said, that can’t possibly be it. This had nothing to do with Obama. “This call was not made in Washington, it was made in New York. Preet Bharara is the one who made the call.”
I had heard of Bharara. He was a desi—a fellow Asian Indian. A former staffer for Democratic senator Chuck Schumer, Bharara was known to be smart, ambitious, cautious, and ruthless. Based on recent news reports he seemed to take a particular relish in going after Asian Indians. He had arrested an Indian diplomat for bringing in a domes- tic servant from India and then not paying her the minimum wage. The woman said that since she was a diplomat and the maid wasn’t a U.S. citizen, she was not covered by minimum wage laws. Bharara decided to show her who was boss. So he had her brought in and strip- searched. This wasn’t the ordinary pat-down but the more extensive, and degrading, “cavity search.” Even the Indian prime minister at the time, Manmohan Singh, spoke out against Bharara’s “deplorable con- duct.” But Bharara shamelessly defended this action as standard secu- rity practice.5
Now, any Indian knows what it does to a woman’s dignity to make her take off her clothes and to reach into the most private parts of her body. And what was Bharara’s purpose? This was not a terrorism case; surely the woman didn’t have weapons concealed in her private parts. This was about employing a maid. When I read this I understood Bharara. This is a man of a familiar Indian type, basically a thug who knows how to dress up his thuggery with the costume of bureaucratic routines and procedures. An Indian friend from New York summed up Bharara pretty succinctly: “This is a man with the soul of an East German border guard.” I told Brafman, “It might be Bharara, but I sus- pect that Bharara is getting his instructions from higher up.”
“I don’t think so,” Brafman responded. He speculated that maybe they were going after me because I was a “high-profile individual.” But I pointed out to him that over the past several decades many high- profile individuals had done things far worse, and gotten away with them. Bill Ayers, for example, was involved in up to twenty terrorist bombings and yet he didn’t get prison time. In fact, when I debated him, he joked with me that his slogan had become “Guilty as hell, free as a bird.” I continued to insist that I was being selectively prosecuted, but Brafman remained unconvinced.
I was indicted on two charges: exceeding the campaign finance limit, and causing the government to record a false document. The second charge basically arose out of the same action as the first. By reimbursing two friends, I caused them to fill out their names, rather than my name, on the form they submitted. Since I was the actual donor, I had caused them to file, and the government to record, a false document. “They are using the second charge,” Brafman said, “to pres- sure you to plead guilty to the first charge. But we have to take both of them seriously.” Brafman explained that while the first charge carried a maximum of two years in prison, the second one carried a maximum five-year prison term. I could hardly believe I was hearing this. Was my offense so heinous as to require locking me up in federal prison for that long?
By mutual agreement with the prosecution, I showed up at the Moynihan U.S. Courthouse for my arrest. The two FBI agents who had showed up at my apartment were there. They handcuffed me behind my back. Then they put me into a car and took me to another building. There I was photographed—the infamous mug shot—and my prints were taken. I also had to give a urine sample. The whole process is te- dious and humiliating. It is designed to demoralize you, to break your spirit. When I emerged from the building there were reporters barking questions and cameras flashing. My lawyers and I got into the car and drove away, just like I had seen in the movies. How unreal that this was now part of the script of my life.
Upon my arrest, a judge was assigned to my case: Richard Berman. He was a Clinton appointee to the bench, with a liberal Democratic background. “I haven’t tried a case before him,” Brafman said, “but I asked around. He has a reputation for being fair.” What, I asked, are his politics? “Liberal,” Brafman said. “But that’s hardly unusual. Most of the judges in the city are liberal. Don’t let that worry you.” Actually, it did worry me.
Shortly after my arrest, Brafman asked me, “What have you written on the subject of campaign finance law?” I said, “Nothing.” Brafman said, “Good. I hope your memory is good about this. The government has a whole bunch of FBI agents working on your case. They will read everything you’ve ever written. They would love to try and show that you broke the campaign finance law because you have contempt for such laws. Please let me know if you recall something you did write about the subject. I don’t want to go into the courtroom unprepared.
“The FBI is all over this case,” Brafman said, “and frankly I’m a little pissed.” From the files the government was required to turn over to him, Brafman had just learned that the FBI had tried to convince my assistant at the King’s College to wear a hidden wire. “Who do they think you are, John Gotti? We have admitted that you made the straw donations. This is totally over-the-top. Completely unprecedented, for a case like this.” I could tell that Brafman, who doesn’t normally live in the ideological arena, was beginning to entertain the idea that this case might have an ideological dimension. It reminded me of the moment in All the President’s Men when Woodward and Bernstein realize that the principal malefactor may actually be the president of the United States.
There was more to come. A few weeks into the case, an FBI offi- cial was quoted in the media saying my case emerged as a result of a “routine review.” Brafman admitted this was odd, because this rou- tine review had apparently yielded a single offender. Later, several Re- publican senators wrote the FBI director asking for information about this review.6 They never received a response. I contacted Harvard law professor Alan Dershowitz for his advice. “I know this territory ex- tremely well,” Dershowitz said. “What you did is very commonly done in politics, and on a much bigger scale. Have no doubt about it, they are targeting you for your views. I like Obama, and I respect Bharara, but I find what they are doing very troubling and detestable.” I told Dershowitz that Brafman was skeptical about the selective prosecution and he said, “I’ll talk to him.”
By the time Dershowitz talked to him, Brafman was learning some new things on his own. Through his legal research he found out that most election law violations are referred to the Federal Election Com- mission. The FEC has an equal number of Republican and Democratic commissioners, to ensure that its judgments are nonpartisan. Typi- cally, Brafman said, cases that do not involve corruption are handled as civil rather than criminal matters, and offenders are likely to face fines, not incarceration. “I don’t know why your case is being handled so differently,” Brafman confessed. “I’m not sure that the discovery of your violation was politically motivated, but I’m beginning to suspect that the decision to prosecute you may be.”
Brafman filed a motion with Judge Berman asking for the govern- ment’s files, so that we could look for evidence of selective prosecu- tion. The judge, however, refused. He said that in order for us to have the files we would have to show evidence of selective prosecution. Our point, of course, was that the evidence was likely to be in those files. The judge was unmoved. At this point I basically had a decision to make: go to trial and take my chances in front of a jury, or plead guilty and rely on the judge to give me a fair sentence.
On the eve of trial, Brafman told me, “I’ve been talking to the gov- ernment, and they have assured me that if you plead guilty to the first charge carrying a maximum of two years, they will drop the second charge carrying a maximum of five years.”
I recognized the game. This is how prosecutors are able to win cases that they might otherwise lose. They pressure people into giving up a couple of fingers, under the threat that they might otherwise lose an arm and a leg. I pointed this out to Brafman and he said, “How do you think the feds have a conviction rate higher than ninety-five percent?” I knew: that’s because they have stacked the odds in their favor.
Brafman said that because my case was so unusual, I had a chance that a jury would refuse to convict, but I should also remember that I was in liberal New York, and so my chances were fifty-fifty at best. Much would depend on the final instructions the judge gave to the jury. I realized that however decent his reputation, I could not risk placing five years of my life in the hands of a liberal Democratic judge. However crazy it may seem, he could imprison me for five years for doing what I did. In that case my supporters might scream, but I would still have to do the time. I decided to plead guilty to the first charge. This put me in the vulnerable position of risking two years in federal prison. But Brafman said that was an extremely remote possibility. “The government wants a conviction,” he said. “They aren’t trying to ruin your life.”
When the government filed its sentencing memo to the judge, how- ever, Brafman discovered that they were very much trying to ruin my life.
The government proposed a sentence of ten to sixteen months. In order to justify this, however, Bharara and his team had to show that other people who violated the law under conditions similar to mine had received comparable sentences. This was actually impossible to show since no person who had done what I did had even been prose- cuted, let alone sentenced. So the government pulled a series of cases, all of them involving corruption, and then submitted them in sum- mary form to the judge while leaving out all the facts that would have shown the corruption and thus distinguished those cases from mine.
In United States v. Jenny Hou and Oliver Pan, the government pointed out that Hou and Pan had used a straw-donor scheme to give $8,000; Hou got ten months and Pan three months. The government failed to mention that Hou was also convicted of wire fraud, obstruc- tion of justice, and making false statements. Pan too was found guilty of multiple felonies. In United States v. Joseph Bigica, the government noted that Bigica had used nineteen straw donors to make $98,600 in illegal contributions and got five years in prison; the government left out that Bigica’s contributions were part of an overall criminal scheme involving more than $2.5 million in tax fraud. In United States v. Marybeth Feiss, United States v. Christopher Tigani, and United States v. George Tirado & Benjamin Hogan, the government noted the amounts illegally given and the prison sentences handed down by the courts. The government, however, omitted to reveal that all these cases showed clear corruption: one involved trying to buy influence to secure government contracts, another sought legislative intervention to help a family liquor business, and a third pertained to tobacco com- pany employees giving money for the purpose of influencing cigarette tax legislation.
Obviously these cases and the corresponding penalties handed down in them reflect why the campaign finance laws were passed: to prevent systematic abuse of the election process, and to prevent the cor- rupt use of money to buy the favor of holders of political office. None of this was involved in my case. What amazed Brafman, however, was the government’s willingness to blatantly lie in court documents in order to secure a prison term.
I had my own theory about what was going on behind the scenes. The rumor was that Eric Holder planned to retire, and already there was speculation that Bharara was the leading candidate to succeed him. Pretty much every legal roster had Bharara on the short list. Now, I knew that Holder was Obama’s attack dog. I mean this as a job de- scription, not an insult; I suspect Holder would take it as a compliment. And Bharara is known to be unquenchable in his ambition, a man who will do anything to climb up the ladder. So how much ingenuity does it take to recognize the possibility of a deal between Holder and Bharara: get that Indian guy, D’Souza, and you can have my job when I’m out the door. Fail, and we’re going with someone else. Having served in the White House, I understand how government works. At the top level, you don’t even need to make explicit deals. There are implicit under- standings in politics that operate to produce the same results that a written contract might have produced, while avoiding the problems that a written contract might cause, if it got out.
Everything fit this picture. “They want this very badly,” Brafman told me, having no idea what nefarious schemes I had envisioned in my head. I didn’t need to go down this road with Brafman. By this time, however, neither did I have to convince him that I was being selectively treated. Brafman said, “They don’t just want to send you away, they want to put you out of business. They won’t be satisfied with anything less than a substantial prison term.” Brafman’s sources in the U.S. at- torney’s office for the Southern District of New York said that the pros- ecutors there even had a betting pool going on how much prison time I was going to get. The betting range was from ten months to two years.
This betting stuff is apparently customary among federal prosecu- tors. Brafman alerted me to a remarkable book, Three Felonies a Day, written by a civil libertarian attorney, Harvey Silverglate. In that book I found the following passage: “At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say Mother Teresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder or other crimes you’d see on Law & Order but rather the incredibly broad and yet obscure crimes that pop-ulate the U.S. Code like a kind of jurisprudential minefield: crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years) or ‘false pretenses on the high seas’ (also five years). The trick and the skill lay in finding the more obscure offenses that fit the char- acter of the celebrity and carried the toughest sentences. The result was inevitable: prison time, as one former prosecutor told me.”
I recognized right away how far this is from the ordinary American’s civics-book conception of justice, or from anything the American founders might have contemplated. Here these government officials were betting they could get pretty much anyone; in my case, they were betting how long they could put me away for. What does it mean in a country when the agencies of government operate like this? Who is the greater danger to society: me or them? Brafman had more practical concerns on his mind. “At this point,” he said, “my supreme challenge is to keep you out of prison.”
By this point Brafman and I knew that the prosecution could not be trusted to act fairly in this case. But what about the liberals? I was most familiar with the blogs and chatter on left-wing sites like Gawker, Wonkette, and Salon. These people seemed positively jubilant about the idea of me going away for a long time. Among the liberal intelli- gentsia, however, there was a more cautious tone, perhaps stemming from the recognition that this stuff works both ways; what they do to us today, we can do to them tomorrow. Blogger Timothy Noah gently suggested that a stiff fine instead of prison would be an appropriate sentence. When Sam Tanenhaus interviewed me for the New Republic, he privately expressed his incredulity. “I hope you beat the prison thing, Dinesh. That’s crazy.” Publicly, however, Tanenhaus said noth- ing of the kind; indeed, he said nothing at all.
And what about the judge? The man seemed on an interminable soapbox. In fact, by this point even his clerks seemed to have lost in- terest. I could see bored, superior looks on their faces; they wore the expressions of twenty-somethings who had seen it all. I guess I understood: for defendants, it’s our life; but for them, it’s just an apprenticeship. Brafman, however, did not take things so lightly. As he heard Judge Berman rail against me, as he listened to him go on and on and on, I could see his face darken. First he was troubled. Then he was dismayed. Then I saw him getting angry. His lip trembled slightly, and he wouldn’t look at me; he just stared at Berman with a look of outraged disbelief.
Finally the judge finished. There was dead silence in the courtroom. At this point, I was completely convinced that I was going to prison. Brafman, I knew, shared this belief. And so did everyone else in the room. Everyone expected me to be sent to the slammer. The only issue was: for how long?
Brafman rapidly shook his head, as if he could hardly believe what he had heard. Rising ashen-faced to his feet, he asked for a short break, and went to the restroom to splash cold water on his face. When he re- turned his lips were tightly pressed. He was determined, almost pugna- cious. He stood up and said, “I have been doing this for a long enough time to recognize that I am climbing a very steep hill, given the tenor of the court’s remarks. But I intend to climb as hard as I possibly can.”
Then he let the judge have it. He said Berman had it all wrong; he was misjudging the case and also my character. Brafman said that as a liberal Democrat, he too had initially viewed me to be some kind of political extremist. But in working with me over the period of a year, he had grown to see that I was a good and decent person, fighting for what I believed.
Brafman cited a letter from my assistant—the very person who had made the straw donation on my behalf—that informed the judge that, around the same time, I contributed $10,000 to an African American student whose family could not afford to pay for his last year of col- lege. Brafman said he found this unbelievable. “I’m trying to imag- ine a president of Columbia or president of another school seeing a young student with hardship and taking out his personal checkbook and writing him a check for ten thousand dollars.” More than any- thing else, Brafman said, this action showed that I was “basically a good person.”
Then Brafman exposed the government’s below-the-belt tactics.
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