John Edwards: Poster boy for over-criminalization

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The first week of testimony in the federal criminal trial of former U.S. senator and presidential candidate John Edwards has confirmed two things about contemporary American life. First, despite all efforts over the decades to raise the standards of political activity, the basest of human drives still can easily overpower the desire to do good and act decently.

More importantly, however, is what the Edwards prosecution reveals about our federal judicial system: that it is out of control. The case clearly illustrates the extent to which over-criminalization threatens the very basis of the federalist system of shared powers between the two sovereigns — state and federal authority — in which the latter was supposed to be, but no longer is, limited and secondary to the former.

To be sure, John Edwards behaved dishonorably as a husband, father, public figure and candidate for the highest and most important political office on the face of the earth. Andrew Young, his former “close friend” and political confidant — who spent a good part of the first week of the trial squirming under cross-examination by Edwards’ top-notch lead counsel, Abbe Lowell — is the sort of man who makes even someone as flawed as Edwards appear to be a good and decent person.

The sordid affair between Edwards and his former mistress, Rielle Hunter, and its far-reaching repercussions are by now well-known to all observers. The affair led directly to the implosion of Edwards’ once-lofty political dreams, and precipitated the tragic dissolution of his marriage to his now-deceased wife.

That Edwards wanted to keep the affair hushed up for as long as he could — despite probably knowing in his heart that such things can rarely if ever be kept secret in the long term — is understandable. That the charismatic and handsome former North Carolina senator was surrounded by many friends and wealthy supporters who would share in these goals is likewise not surprising. That some reached out to assist with financial resources is hardly newsworthy.

And finally, it is not altogether surprising that the middle man between those supporters and Edwards — Andrew Young — employed his position of “trust” (to use the term loosely) to benefit himself financially. Young benefitted directly by simply siphoning much of the more than $1 million that was supposed to be for the benefit of Ms. Hunter and her love child. He benefitted indirectly by then further betraying the trust mistakenly placed in him by his former boss to pen a salacious expose of the affair.

Yet it is not Andrew Young, the liar and traitor, who stands on trial facing decades in a federal prison, but Edwards. And the Justice Department is not prosecuting Edwards for stealing from taxpayers or perpetrating an act of grievous harm on a person or institution within the defined realm of federal authority. Instead it is prosecuting him because he sought to hide an affair from his family and voters, and in so doing might have run afoul of the massive and intricate regulations that have come to define elections to federal office — campaign finance laws.

It is those laws, which now fill many thousands of pages of detailed regulations and court decisions, that have become the tail wagging the election dog. It is this arm of the federal government, created in the aftermath of the Nixon-era Watergate scandal, that costs even those candidates endeavoring mightily to conduct decent and above-board campaigns to employ legions of lawyers and waste countless donor dollars under fear of federal regulators or prosecutors finding a technical violation.

This has created the “perfect prosecutorial storm” — a byzantine labyrinth through which zealous government lawyers can target a fallen candidate like John Edwards, and in which they inevitably can find a disgruntled and disloyal operative like Andrew Young to flesh out an indictment and pursue a trial that will enthrall the public.

Supreme Court Justice Louis Brandeis observed in 1928 that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” In the modern regulatory leviathan that has become our federal government, those words are truer — and their repercussions more frightening — today than when penned 84 years ago.

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.