The Daily Caller

The Daily Caller

Should Edwards Really Be Indicted?

Here is the problem I have with indicting John Edwards:  Apparently the prosecutors’ idea is that if Edwards used money from “Bunny” Mellon and others to keep his mistress stashed away and quiet, this was really a campaign expense and should have been paid for out of campaign funds. But suppose Edwards had paid for it with campaign funds. Don’t you think prosecutors would now be thinking of indicting him for an improper use of campaign funds?  (You can’t pay for most meals using campaign funds. You can’t buy mittens with campaign funds. Are mistresses going to be OK?) …

P.S.: That’s one of the problems with campaign finance laws: the categories are inherently slippery. Everything John Edwards did–every breath he took–for four years was designed to get him elected president, after all. His antipoverty work was designed to make him look good. The payoffs to Rielle Hunter were designed to make him look good (by preventing him from looking bad). If the latter is a campaign expense, and has to be paid for with funds subject to individual limits, why not the former? And don’t say it’s because the former is a good thing and the latter is a bad thing. Criminal law isn’t supposed to be a blanket warrant to punish things we think are bad. 

If you’re going to enact a criminal law which requires such squirrelly distinctions–including an absurd attempt to figure out what part of a politician’s life isn’t related to getting him or her elected–the only way to save it, it seems to me, is to cut people a lot of slack when it comes to applying it.  That’s especially true when it comes to laws regulating the core democratic practice of running for office. Otherwise you wind up with what lawyers like to call a “chilling effect”–chilling in that it will prevent candidates from doing lots of things that should be legal, chilling in that it will deter non-insiders from running. …

Extra Credit Hypothetical: What if Rielle Hunter hadn’t been screwing Edwards, but instead had been denouncing him on MSNBC because his style of tort law was driving up medical malpractice costs? And suppose he’d shut her up by getting Bunny Mellon to lavishly fund a prestigious commission to investigate the effect of malpractice suits on health care costs–a commission that Rielle Hunter was then paid to chair. Campaign expense? Should Edwards go to jail? What if he’d gotten some other politicians to join him in setting up the commission with Mellon’s donation? Still a crime? They all go to jail? …

P.P.S.: I’m not saying Edwards has been punished enough! And the aides complicit in the cover-up certainly haven’t been punished enough. But there are other ways of punishing.

Update: Alert tweeter @scootran wonders if these same campaign finance laws were in effect when Bill Clinton was running for president in 1992 (and dealing with what his own aide called “bimbo eruptions.”) …

  • manatee

    The Supreme Court upheld the $2,000 limit on campaign contributions on the theory of preventing the appearance of impropriety — that large contributors were, in effect, buying politicians. That rationale is rendered ridiculous if, at the same time, Bunny can just give millions to Edwards personally. I agree with that what might cross the criminal line is murky, but either get rid of the law or let’s bring cases to define its limits.

    Take another example, a federal candidate who is self-financing her election. Wouldn’t any personal gift to that person simply be a fungible campaign contribution?

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