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Free John Edwards?

The trial of former Senator, Presidential, and Vice-Presidential candidate John Edwards began about a week ago in Raleigh, North Carolina and is still in the middle of a jury selection phase that seems likely to at least last into next week. As everyone is well aware, Edwards is on trial for alleged criminal violations of campaign finance laws related to his efforts to keep the identity of Rielle Hunter, his mistress and the mother of his child, secret during his 2008 Presidential campaign. As I noted at the time that Edwards was indicted, the government was proceeding on a theory that was rather unique in that none of the money that went to Hunter actually came from the Presidential campaign’s accounts. At the same time, though, the funds did come from friends of Edwards who had been long time contributors to his campaigns, including an extremely wealthy elderly woman in Virginia named Rachel “Bunny” Mellon which appears to be the primary basis upon which the government was basing its allegations that this fell within the bounds of campaign finance law. Nonetheless, as Edwards’s defense team has argued from the beginning, the indictment does present a uniquely broad interpretation of Federal criminal law that Courts usually frown upon.

Of course, there aren’t many people willing to cut Edwards all that much slack in this situation. Legalities aside, there seems to be little disagreement that his behavior throughout this entire episode was loathsome, self-serving, and hypocritical. If nothing else, we can all perhaps be happy that someone this consumed by ambition and lacking in even a basic moral character never made it to the White House. But the fact that Edwards is basically a jerk doesn’t mean he’s guilty and, today, the Editors of National Review raise some very valid questions about this prosecution:

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.

(….)

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.

It’s an argument worth considering. Had they wanted to, the Federal prosecutors could have charged Edwards and others under Federal bribery statutes and they might have had a pretty strong case. Of course, doing so would have also likely required indicting the other people involved in this scheme, including Mellon, who will turn 102 years old in August. But they chose to proceed directly against Edwards by only proceeding on campaign finance law violations using a rather unique theory.

As the NR Editorial notes, none of the money that went to Hunter ever passed through any campaign account, instead going from Mellon to a third party and then to Hunter. Calling this a campaign contribution rather than the personal gift that Mellon’s family says she considered it to be would seem to require a series of suppositions about what people were actually of thinking when there’s no real evidence of what the parties’ intentions were. There is, of course, the note that Mellon sent to Andrew Young saying that she wished to pay the costs of Edwards’s haircuts going forward so that “help our friend without government restrictions.” The one problem with that is that there’s no requirement that candidate’s haircuts be paid for via campaign funds to begin with, and one could argue that Mellon merely wished to remove haircuts as a political issue by assuring that Edwards wasn’t paying for them personally or out of campaign funds. More importantly, though, there’s not necessarily a nexus between that note and the payments that went to Hunter, which were far beyond the cost of a haircut.

The evidence will speak for itself once the trial actually starts, but it strikes me that the government has a huge burden to overcome here. In order to avoid having the case dismissed summarily by the Judge, they’re going to have to come up with facts that support their argument that Mellon was intending to aid Edwards’s campaign when she wrote checks totaling nearly three-quarters of a million dollars that ultimately went to Rielle Hunter. As it stands, there doesn’t even appears to be evidence that she knew who Hunter was or why the money was needed, only that someone that she’d developed a grandmotherly affection for was in trouble and needed help. The fact that she thought dropping down checks for $700,000 was no big deal would seem to suggest just how wealthy she actually is.

The danger in cases like this is that personal animus  toward the Defendant will impact the ultimate result in the case. Before we even get to that stage, though, we seem to be getting an object lesson in the potential dangers of overzealous prosecution.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    It does appear that Edwards is getting harshed here… I don’t know who he pissed off, but he’s definitely being treated differently than any politician at his level in recent memory.

    I do not, however, think that means his case should be backed off – rather, I think a whole lot more politicians should be treated exactly the same as Edwards. I’m talking about Gingrich, Corzine, Bush/Cheney, the lot of them. If any non-billionaire did half the shit they did, we’d be in jail forever. They should be explaining themselves in front of a jury.

    Like or Dislike: Thumb up 4 Thumb down 6

  2. dean says:

    From James Joyner’s June 3, 2011 article:

    According to the indictment, when Edwards found out the next month that his mistress Rielle Hunter was carrying his child and asked that long-time aide to help identifying donors who could offer their support, Young knew just the right person.”

    Seems to me that if Edwards asked his campaign team to reach out to campaign donors for personal expenses, it would be in violation of campaign finance rules. And, if it’s not a violation, that may be a loophole that Congress should close.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. Tsar Nicholas says:

    Good blog post. Separate but related topic: Do we really need regardless of legal technicalities to be spending federal taxpayer dollars going after John Edwards? Wouldn’t a state court prosecution under state law for fraud and related counts be more reasonable and more apropos?

    Like or Dislike: Thumb up 1 Thumb down 1

  4. J-Dub says:

    If nothing else, we can all perhaps be happy that someone this consumed by ambition and lacking in even a basic moral character never made it to the White House

    Uh-oh, let’s hear from the Obama haters…

    Like or Dislike: Thumb up 0 Thumb down 3

  5. Fiona says:

    If being a sleaze ball were an indictable offense, there’d be a lot more politicians in jail.

    Like or Dislike: Thumb up 8 Thumb down 0

  6. Moosebreath says:

    J-Dub,

    “If nothing else, we can all perhaps be happy that someone this consumed by ambition and lacking in even a basic moral character never made it to the White House

    Uh-oh, let’s hear from the Obama haters… ”

    Actually, I thought that was a pretty good description of Romney.

    Like or Dislike: Thumb up 2 Thumb down 4

  7. Jenos Idanian says:

    @J-Dub: Don’t look at me, chump. I will content myself in noting that Edwards was your party’s vice-presidential nominee in 2004, and has now officially taken on the mantle of “worst veep or veep nominee since Aaron Burr.”

    Like or Dislike: Thumb up 5 Thumb down 6

  8. legion says:

    @Tsar Nicholas:

    Wouldn’t a state court prosecution under state law for fraud and related counts be more reasonable and more apropos?

    Ummmm…no. What state laws was he in violation of? He was running for Pres/VP, not any state office. He violated federal election laws, so the feds are prosecuting. What’s so strange about that?

    Like or Dislike: Thumb up 0 Thumb down 0

  9. J-Dub says:

    @Jenos Idanian: I don’t know how you took my comment to mean that I was an Obama hater.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. J-Dub says:

    @Jenos Idanian: And not to take Edwards side, but you may be forgetting Spiro Agnew.

    “During his fifth year as Vice President, in the late summer of 1973, Agnew was under investigation by the United States Attorney’s office in Baltimore, Maryland, on charges of extortion, tax fraud, bribery and conspiracy.”

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Tsar Nicholas says:

    @legion: Criminal fraud and criminal conversion immediately come to mind. Conspiracy to commit criminal fraud and conversion. There probably are others. We don’t need to make a federal case out of everything. That costs federal tax dollars. Your tax dollars. We already spend enough of your federal tax dollars, and mine, and everyone else’s, on criminal cases. The Feds for decades have been overreaching on prosecutions. They’ve also stuck their noses in various areas of the law in which they really don’t need to be. In the trade that’s called “mission creep.” It’s high time we rein in the Feds. Edwards is a scumbag, granted, but this prosecution has every hallmark of an unnecessary federal case by an overreaching DOJ. That’s my underlying point.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Tsar Nicholas says:

    @Fiona:

    If being a sleaze ball were an indictable offense, there’d be a lot more politicians in jail.

    First we’d have to build more jails; otherwise we’d quickly run out of space.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. Jenos Idanian says:

    @J-Dub: OK, you have a point with Spiro Agnew (whose name, as Dave Barry loves to point out, is an anagram for “grow a penis.”)

    How’s this: I’ll put Edwards behind Agnew only as long as Edwards remains unconvicted — at which point I’ll consider them tied.

    That a fair enough compromise?

    And I’m usually tagged as an “Obama-hater,” so I thought I’d get ahead of the curve before someone invoked me by name.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. legion says:

    @Tsar Nicholas:

    That costs federal tax dollars. Your tax dollars. We already spend enough of your federal tax dollars, and mine, and everyone else’s, on criminal cases.

    Uh, how exactly do you think _state_ prosecutions are paid for? Why are state tax dollars different from federal tax dollars?

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Tsar Nicholas says:

    @legion:

    If you choose to live in North Carolina and to remain there then you’ve chosen to have your state tax dollars be used, among other things, for local prosecutions. If you don’t like how North Carolina does its business, and you live there, you can vote out its local politicos, including your county prosecutor. You also retain the ability to vote with your feet, by moving elsewhere.

    With federal tax dollars, however, it’s an entirely different ball of wax. You and I have no ability to vote out the U.S. Attorney prosecuting Edwards. You and I have no connection with North Carolina. Why should you and I pay for a prosecution in North Carolina of a North Carolina resident for crimes he committed in North Carolina which just as easily violated North Carolina own criminal laws? Money doesn’t grow on trees; is the Edwards case really a necessary use of our federal tax dollars? I say no, it’s not.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Edwards should take his lumps – but I also like the reminder of the basic narcissism in the political classes.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. michael reynolds says:

    The guy once kept me waiting for the better part of an hour. To hell with him: jail!

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Jenos Idanian says:

    @michael reynolds: Wow, the only thing greater than michael’s partisanship: his ego!

    In this case, I approve.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. OzarkHillbilly says:

    @Jenos Idanian:

    @michael reynolds: Wow, the only thing greater than michael’s partisanship: his ego!

    Hello Kettle, I’m Pot!

    Like or Dislike: Thumb up 1 Thumb down 0

  20. Jenos Idanian says:

    @OzarkHillbilly: Hello Kettle, I’m Pot!

    You’re a day late for the marijuana joke, but I’ll let it slide…

    Like or Dislike: Thumb up 1 Thumb down 0

  21. bingo says:

    @legion:

    He didn’t violate federal law either. No monies flowed thru the campaign and neither donor is complaining about the use of the funds. Clinton, Kennedy and Johnson all used federal funds and no complaints.

    It seems to me if Bunny Mellon paid for Elizabeth to have some experimental cancer treatment, there would be no complaints. But for the monies went to shutup some skank all of a sudden its a crime.

    Edwards lied for the same reason they all did. To hide from the wife and family. Major yawn.

    Surely, this DOJ can find better uses of tax payer dollars like prosecuting criminals and voter fraud than wasting it on trumped up charges against a guy who was stupid enough to get in bed with a skank and a tell-all wannabe, Andrew Young. Young seems to have been the guilty one, not Edwards.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. bingo says:

    @Fiona:

    perfect place for obama right about now. Now THERE is a fraud that deserves investigation, not some wannabe’s sex life!

    Like or Dislike: Thumb up 0 Thumb down 0