How ‘overcriminalization’ makes it easier to target political enemies

Matt K. Lewis Senior Contributor
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When conservative commentator and author Dinesh D’Souza was indicted for violating federal campaign laws last week, some prominent conservatives cried foul.

“They are going after the Obama critics with indictments. VA Gov. Now Dinesh D’souza [sic]. Holder unleashing the dogs…,” tweeted Matt Drudge.

“Can you image the reaction if the Bush administration had went, gone and prosecuted Michael Moore and Alec Baldwin and Sean Penn?” asked an incredulous Sen. Ted Cruz.

And radio host Laura Ingraham crowed: “We are criminalizing political dissent in the United States of America. … Welcome to the brave new world of retribution justice.”

D’Souza’s indictment comes on the heels of the IRS scandal last spring, the targeting of conservative groups that backed Wisconsin Gov. Scott Walker, scandals involving Virginia Gov. Bob McDonnell and New Jersey Gov. Chris Christie, and a recent New York Times story about the apparent IRS targeting of the conservative Hollywood group, Friends of Abe, so one can understand if conservatives evince a hint of paranoia.

In this context, is it absurd to ponder the amazing coincidence whereby the very man who made the anti-Obama film (the second highest-grossing political documentary of all time) finds himself in trouble with the law?

Regardless of whether the Obama administration is targeting conservatives, or whether its political enemies just happen to be particularly corrupt and incompetent, we should be equally concerned about a growing trend that would aid any vengeful political regime: The rise of onerous laws and arbitrary regulations that criminalize the routine function of politics and business.

After all, overt political paybacks are far easier to spot (and punish) than a pervasive system whereby one must break the law in order to get ahead — and where punishment of the guilty can then be selectively enforced.

In this scenario, politicians can use the judicial system to seek retribution on enemies, and it’s impossible for the “victims” to claim innocence (or garner much public sympathy), since they (like nearly everyone else!) probably are guilty … of something.

Now, if D’Souza really did reimburse friends and associates as part of a scheme to violate election law, we shouldn’t overlook it. While this practice is probably more common than we’d care to admit, we still have the rule of law. It’s entirely possible that two things can be true — that D’Souza is, in fact, guilty and that he was selectively targeted for prosecution.

But assuming the former is true, nobody will care about the latter. And that’s a fundamental problem which transcends the D’Souza case. You don’t have to set someone up for a crime in a world where everyone is breaking the law.

To be sure, the mere fact that contribution levels are arbitrary — that individuals should probably be allowed to make unlimited (but utterly transparent) donations — doesn’t excuse the fact that he allegedly violated the law.

On the other hand, when so many of our laws on the books are malum prohibitum (as opposed to malum in se), we can expect more and more of these incidents.

Now, no serious person can believe that a man of D’Souza’s experience and intellect didn’t know about the contribution limits, or the prohibition against laundering funds to a candidate.

But there are plenty of less obvious — less egregious — ways to violate the law. Complex, unclear or arbitrary laws and regulations stifle the ability for the small guy to start a business, organize a political organization or campaign, etc., raising the barriers of entry. At the very least, everyone has to be able to afford to pay a lawyer for constant counsel.

Think this is absurd — or just an attempt to serve as an apologist for conservatives behaving badly? Harvey Silverglate, a criminal defense and civil liberties attorney, “estimates you and I are probably already committing three felonies a day.

Here’s just one hypothetical example Silverglate cites:

“You are a small business proprietor who supplies restaurants with fish and produce. One shipment of lobsters comes in unusual packaging—usually sent in cardboard boxes, these lobsters arrived in clear packaging. By purchasing this shipment, you have arguably committed a federal felony. The imported lobsters originated in a country that bans the shipping of lobsters in clear plastic bags, and the U.S. Lacey Act makes criminal an importer who violates ‘any foreign law’—regardless of whether you knew of the foreign regulations.”

As a boy, I used to think that the only way you could end up in jail is to essentially try. I mean, you’d have to get in your car and drive to a bank, pull out a gun, and demand some money, I figured. Anyone who does such a thing has surely thought it through, surely knows he is committing a crime, I reasoned, and ought to be punished.

Intent is a major component of the English common law we inherited, but that tradition has eroded in recent decades.

As former Attorney General Ed Meese has argued, “We are making and enforcing far too many criminal laws that create traps for the innocent but unwary — and threaten to turn otherwise respectable, law-abiding citizens into criminals.”

This matters for all of us, including journalists. Who knows what laws might come down the pike about blogging or journalism. If Fox News’James Rosen can be a “criminal co-conspirator” for the crime of developing sources who give him information (in other words, being a good reporter), that tells you much about how dangerous it is to do your job well.

Conservatives who worry about political intimidation shouldn’t limit themselves to investigating the Obama administration’s specific overreach. They should also worry about overcriminalization — and work to roll back onerous and arbitrary rules and laws, so the government can’t selectively decide whom to prosecute. This presidency will eventually end, but laws and regulations tend to stick around forever.

UPDATE: I never postured myself much of a Randian, but one of our astute commenters notes this appropriate excerpt comes from Atlas Shrugged:

“There’s no way to rule innocent men.
The only power government has is the power to crack down on criminals.
Well, when there aren’t enough criminals, one makes them.
One declares so many things to be a crime
that it becomes impossible for men to live without breaking laws.”