NRO: The Questionable Prosecution of John Edwards

I have not been following the John Edwards case closely, and do not have an expert opinion about the merits of his prosecution for violating campaign finance laws.  But this is not the first opinion piece I have read that questioned the legal merits of this case.   The fact that it was an editorial by the National Review Online may make it more interesting to Volokh readers:

John Edwards, the Dorian Gray of the Democratic party, is one of the most loathsome characters in American politics, corrupt himself and a source of corruption in others, a preening, moralizing fraud who went so far as to have a staffer claim paternity of the illegitimate child he fathered with a campaign contractor. Even after he was exposed, Edwards denied that he was the father of the child until a paternity test forced him to own up to the fact. But for the charms of John Kerry, he would have been vice president of these United States. But for the labors of the National Enquirer, he might have been president, Democrats having learned in the 1990s how to make their peace with such situations.

If being a louse were a crime, John Edwards would hang for it. But he is instead facing prison for alleged campaign-finance violations, and it is our obligation to come unenthusiastically to his defense. He may be guilty of bribery, and if he were a sitting senator he would likely be guilty of gross ethics violations, but the facts do not support prosecuting Edwards under campaign-finance laws.

Edwards’s mistress, Rielle Hunter, was paid off by his supporters. The financial chairman of Edwards’s presidential campaign, the late Frederick Baron, gave financial support to Hunter and to Andrew Young, the staffer who lied about being the child’s father. In a picturesque twist, another Edwards supporter, the heiress Bunny Mellon, is believed to have sent Hunter checks secreted in boxes of chocolate, though her lawyer denies that she knew her money was going to Hunter.

The prosecution’s case is built upon a note from Mellon, who described herself as “furious” about the way in which Edwards was lampooned for his infamous $400 haircuts. “From now on,” she wrote, “all haircuts, etc., that are necessary and important for his campaign — please send the bills to me. . . . It is a way to help our friend without government restrictions.” And she did indeed write some $725,000 in checks for sundry expenses — all of which went to Hunter, not to the Edwards campaign.

Because none of the money went to the campaign, and none of the money went for campaign expenses — inasmuch as maintaining a mistress is not a campaign expense — it is difficult to see why this should be prosecuted as a campaign-finance violation. At most, the evidence would seem to justify charging Mellon with conspiring to subvert campaign-finance laws, though in the event those laws were not subverted, since her money did not go toward financing the Edwards campaign.

If Edwards or his subordinates promised Mellon something in return for the money, then there might be a case for bribery charges. If Hunter demanded the money in return for her silence, then there might be grounds for blackmail charges. And depending on how the finances were handled, there might be a case for fraud.

Of particular concern is the fact that Edwards, famous for his “two Americas” rhetoric, also set up a nonprofit to bring attention to issues related to poverty, and Mellon gave more than $1 million to it. Taking the Borgia approach to humanitarianism, Edwards’s anti-poverty nonprofit paid Hunter $124,000, purportedly for her various cinematic labors. Again, this brings up a raft of offenses that Edwards, Hunter, Mellon, and the others may have committed, from fraud to money-laundering to tax violations. But the nonprofit is separate from the campaign, so campaign-finance laws do not apply.

Campaign-finance laws are a tricky business, because they put political incumbents in charge of setting the rules under which their positions and their power may be challenged. Such laws should be as transparent and straightforward as possible, and prosecutions under them should be undertaken with proper care. If Edwards et al. have committed other crimes, then they should be prosecuted, but to prosecute him under campaign-finance rules in a situation in which no campaign funds were used and no campaign expenses paid seems a stretch. We have had enough unseemliness associated with Edwards without adding a questionable prosecution to the catalog.