VOICES: The absurd prosecution of John Edwards

By Rob Schofield, NC Policy Watch

North Carolina is the scene of an embarrassing national spectacle these days. The trial of John Edwards is a sad and sordid matter that has to make any human being with an even a shred of compassion ache for the innocent bystanders like Edwards' daughter Cate, his younger children and other loved ones.

Ultimately, however, it is not the details of the Edwards' screwed-up personal life that constitute the chief embarrassment. That honor must go to the trial's existence in the first place.

For months now, federal prosecutors have gone to enormous lengths and spent millions of dollars to try and show that the former Senator and national candidate violated the letter of campaign finance laws by convincing wealthy benefactors to make payments to his mistress. According to the prosecutors, this action was unlawful because the contributions were, in effect, "campaign contributions." As such, they were allegedly in violation of the law -- both because they were never reported as such and because they exceed the caps on such expenditures that existed at the time.

Edwards argues, of course, that the payments were not contributions, but merely payments of the kind that a typical cad might arrange to salve a private indiscretion. We'll assuredly hear more when Edwards' lawyers put on his defense,

That's pretty much it. The might of the federal government and the Department of Justice's troubled “Public Integrity Section” -- the same group that completely (and, as it turned out, tragically and wrongfully) botched the prosecution of the late Senator Ted Stevens of Alaska a few years back -- is being brought to bear against a disgraced and has-been politician with absolutely no future and personal troubles innumerable.

And to what end?

To punish Edwards for having acted like a jerk? The instinct to want to do something like this is perhaps understandable. From the information available to the public, it's pretty clear that Edwards repeatedly engaged in stupid, dishonorable, and cringe-inducing personal behavior. That the whole mess went down while his wife was dying of cancer and in the long shadow of previous family tragedy only makes the whole thing that much more disturbing.

The only problem, of course, is that there's no criminal statute in the United States against behaving like a scoundrel in one's personal relationships. If there were, dozens of national political figures -- from Bill Clinton to Newt Gingrich to Elliot Spitzer to Mark Sanford -- and millions of other less well-known individuals would have served or be serving time right now.

Fortunately, however, this is not Saudi Arabia or 17^th century Massachusetts. Modern Americans may often be a holier-than-thou bunch, but we do not (and hopefully never will) send people to jail for adultery or lying to their spouses or getting their friends to help them conceal an affair.

So, if not to punish a scoundrel, what else? What other objective could the federal prosecutors have in targeting Edwards?

Is it to send a message of deterrence to current and future politicians that they can't evade campaign finance laws by having their friends make expenditures that will benefit them and their campaigns?

If so, it's hard to see how that will work. In 2010, the U.S. Supreme Court rendered such message-sending completely obsolete with its infamous decision in the Citizens United case. That decision, of course, opened the floodgates to unlimited expenditures from wealthy individuals and corporations to directly benefit political candidates. Had the court's decision been issued prior to Edwards' ill-fated cover-up of his affair with Rielle Hunter, it's hard to see how the issue would have ever even arisen as a possible violation of the law.

Today, gazillionaires like Newt Gingrich's sugar daddy Sheldon Adelson and Edwards' former sugar momma (Bunny Mellon) can spend as much as they want anytime they feel like it to benefit a candidate. After Citizens United, Edwards and his cohorts would have had to have been complete fools (admittedly, not an impossibility) to even give the impression of running afoul of the present-day truck-sized loopholes. As analyst Hampton Dellinger noted in an article in The Atlantic Monthly last month:

"…a central premise of the indictment of Edwards -- that 'in order to restrict the influence that any one person could have on the outcome' of a presidential primary election, 'the most an individual can contribute to any candidate for that primary election was $2,300' -- seems downright quaint."

Indeed, it's one of the great and under-reported ironies of the Edwards trial that the very man who indicted Edwards -- former U.S. Attorney turned wannabe congressman George Holding -- is himself a daily beneficiary of massive amounts of unreported super-PAC spending that is specifically designed to evade "caps" on campaign contributions and is in many essential ways indistinguishable from the money spent by Mellon on Edwards!

Think about that for a minute: How does a man in such circumstances look himself in the mirror every morning knowing that he has helped to inflict such intense agony upon so many already long-suffering humans? Seriously, what is the point? What principle is possibly being vindicated? What possible good would it do for anyone connected with this mess -- most notably Edwards' children -- if the former senator were to go to prison? What public figure is going to be deterred from future skullduggery?

Especially given the radical shift in campaign finance law, it's as if prosecutors had decided to prosecute someone for being an alcoholic during prohibition…two years after its repeal.

So, why are we being subjected to this? Readers are left to draw their own conclusions, but even George Holding's arch-conservative Republican primary opponent Paul Coble -- no admirer of John Edwards -- has complained mightily in recent days that Holding's actions in the case were "political."

Going forward

So, where do things go from here? With any luck, not much further.

If there's a smidgen of justice in the world, this time next year, John Edwards will be at home, raising his children, paying taxes and, hopefully, making some contribution to the world.

And George Holding? Whether he’s in Congress, back in North Carolina practicing law or at home in his rocking chair, let's hope that he and his fellow prosecutors will have thought long and hard about the needless pain his and their efforts have helped to inflict on the state of North Carolina and a lot of innocent people and whether it was worth it.

(Photo of John Edwards by Peter Smith via Flickr.)