Cornell law professor Michael Dorf makes my heart leap in admiration by bucking the popular trend—especially among Democrats and soft-hearted media types who 1) only like seeing Republicans and conservatives get in trouble for sex scandals and 2) think Edwards “has suffered enough” —of arguing that the prosecution of John Edwards for campaign fundraising violations is based on a weak legal case. On his blog, Prof. Dorf argues persuasively to the contrary:
“At its core, the indictment alleges that Edwards knowingly: 1) in violation of federal campaign finance law, accepted money well in excess of the individual campaign contribution limits; 2) spent that money to hide his extramarital affair with Rielle Hunter; and 3) in violation of federal campaign finance law, failed to disclose either the donations or the expenditures….
“…The real question with respect to the government’s point number 1) is whether the hundreds of thousands of dollars were given to Edwards ” for the purpose of influencing any election for Federal office.” Subject to a whole lot of irrelevant exceptions, that’s the statutory definition of a “campaign contribution.” It is nearly inconceivable that the money for hiding the Hunter affair was not “for the purpose of influencing” the 2008 Presidential primary. What other possible purpose could it have served?
Even if we assume that the Mellons and John Edwards were very close personal friends, what kind of human being gives a close personal friend over $700,000 to hide his affair from his wife? This is a criminal prosecution of Edwards, not Mellon, and so the relevant question will be whether he had the requisite state of mind. Unless he plans to plead imbecility, it is hard to figure out how he could have understood the “gift” as having nothing to do with his campaign…. it’s hard to believe that Edwards was unaware of the fact that his campaign was paying to keep Hunter out of sight (and in expensive accommodations)…. The statute defines a covered “expenditure” as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office,” subject to various exceptions not relevant here…”
“…The third sentence of the indictment states: “A centerpiece of EDWARDS’ candidacy was his public image as a devoted family man.” Some news accounts have described this language as an extraordinary personal attack on Edwards for his hypocrisy. That’s mistaken. Read in the context of the government’s case, the point of this language is to make clear that money given to Edwards to hide the Hunter affair was money aimed at purchasing something highly relevant to the campaign: preservation of his image…”
Dorf’s last point is especially astute. The gifts were spectacularly unethical, designed to assist Edwards in a lie and a fraudulent representation of his character to the American people. This isn’t “criminalizing politics,’ as many have argued. This is acknowledging the extent to which creating false images and expectations is core to the political campaign process, and money contributed to assist deception is correctly covered by campaign fundraising law.
You can read all of Prof. Dorf’s analysis here.