Monday, June 06, 2011

A Strong Case Against John Edwards

By Mike Dorf

Having followed some of the press coverage of the John Edwards indictment, I was under the impression that the government case against him was a stretch or at least likely to be difficult to prove. Then I read the indictment (here, if you scroll down a bit), and thought a little bit about the government's theory of the case.  It now strikes me that if the government proves the facts alleged, its case is pretty strong.

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.  Edwards does not appear to contest number 2), which is not, in and of itself, illegal.  Instead, his defense appears to be that, with respect to 1), the hundreds of thousands of dollars provided by Fred and "Bunny" Mellon were personal gifts, and that with respect to 3), the money spent to hide l'affaire Hunter was a personal expense rather than a campaign expenditure that needed to be disclosed.

Assuming the facts alleged can be proven, the government's argument with respect to 1) is very strong.  Last week, the Huffington Post and Paul Caron both suggested that Bunny Mellon's gift tax return could help Edwards. Apparently, she filed a return listing a $700,000 personal gift to Edwards. This supposedly shows that the money was intended as a gift rather than as an unlawful campaign contribution.  With due respect, it shows no such thing.  Unless Mellon gave Edwards the $700,000 in cash (perhaps fourteen $50,000 bills?), a transaction that large would have called attention to itself, and thus would have to be characterized in some way. If, as the government alleges, this was all a big conspiracy to evade campaign finance laws, then calling it a gift was part of the conspiracy, not a defense to it.

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 inluencing 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?  It's possible that Mellon, over 100 years old, was not aware of exactly how Edwards planned to spend the money but it's hard to believe that she just happened to give Edwards this enormous sum of money as a gift just when he happened, by sheer coincidence, to be running for President.

The federal statute linked above also defines campaign "expenditures."  Perhaps the Edwards argument will be that whatever the Mellons' intent in giving the money, some expenses are just inherently personal, rather than campaign-related.  I suppose that could be true, but there's nothing in the statute to support it.  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.

Perhaps the Edwards team plans to argue that from the perspective of Edwards, the purchase of chartered plane flights, hotel rooms, and other services for Rielle Hunter was solely for the purpose of concealing the affair from Elizabeth Edwards and the Edwards children, not for the purpose of concealing it from the press and the public.  If so, his argument would be that there was no campaign expenditure and therefore, whatever the subjective intent of the Mellons, there was also no contribution.  This strikes me as the best argument available to Edwards but still a hard line to sell to a jury, because an expenditure or a contribution need not be solely for the purpose of advancing the campaign.  E.g., donated campaign funds could be spent to buy the candidate attractive clothes so he looks good in a debate, and that would count as a campaign expenditure, even if the candidate also likes how he looks in the clothes, thus deriving some personal benefit from them.

So my bottom line, followed by three caveats, is that the developing meme of "overreaching prosecution" is wrong.  Now the caveats:

A) I don't consider myself an expert in election law, which is incredibly complex, so it's possible that I've missed something important either in the law itself or in conventions about what it means in practice.

B) My conclusion that the facts alleged, if proved, would make a strong case against Edwards does not necessarily mean that I agree with the decision to prosecute this case vigorously. Whether this is a wise use of prosecutorial discretion would depend on a range of factors including what sorts of cases are being foregone in order to bring this one.

C) 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. If Edwards had been running as a "ladies' man" (if the U.S. were more like Italy or France, say) then it would be somewhat more plausible for him to argue that the point of the money was simply to hide Hunter from Elizabeth Edwards (although, if the U.S. were more like Italy or France, presumably there would be no need to do that either).


Jon said...

The case would only be strong if the statute and this application of it were constitutional. It is not. That may not stop the prosecutors or the courts, but for those of us who care about the Constitution and our oath to it, that is all that matters.

SCOTUS Novice said...

This doesn't have much to do w/ the statute; statutes are written broadly and are aimed to bring in broad activities within their prosecutorial swath. This is a bad case of prosecutorial indiscretion. The man - Mr. Edwards - has been publicly pilloried, villified -- and lost his public face. To subject him to criminal prosecution is the classic case of prosecutors' "piling on" - if I may say, for purely partisan gain. John Edwards is not an upstanding citizen for myriad reasons. To threaten to take away his liberty is a cruel form of rote anger = and anger alone = against a former political hero is an act of political gamesmanship for a power hungry US ATTORNEY that is concomitantly an act of raw cowardice.

Michael C. Dorf said...

SCOTUS Novice: As I said in my concluding point B, I'm not taking a position on whether this is a wise use of prosecutorial resources, but I would note that the case in favor is not trivial: At its heart, this case is an effort to enforce the law that limits how much money gazillionaires can donate to political campaigns. We have here a campaign contribution that is roughly 200 times the legal maximum, which strikes me as a non-trivial offense.

As for Jon's comment, I'll just say that I rather strongly disagree with his tacit claim that the Roberts Court has been insufficiently protective of the supposed constitutional right of those with money to ensure that inequalities in the distribution of material resources are reflected by inequalities in the distribution of political power. Or perhaps Jon had in mind some wholly different supposed infirmity in the law?

Jon said...

My position that that there is indeed a public choice problem associated with the ways money unduly influences electoral campaigns, but there is no regulatory solution that will either work or is constitutional. None whatsoever. Any attempts to do so can only make the situation even worse.

As long as money can influence elections or other political decisions, it will. The only way anyone has found to avoid that is to abandon elections altogether, and go to a system of sortition, or random selection of the decisionmakers from the general public, who serve for short periods of time with no prospects for gain. That is the theory for juries. More on this at

John Q. Barrett said...

Mike, this is a very good post. And regarding the claim that this prosecution is somehow improper (including "political"), see the Blog of Legal Times (BLT) post describing the career prosecutors in DOJ's Public Integrity Section who are, with line AUSAs in North Carolina, handling this case--this is apolitical federal law enforcement. It is a sad thing to have to undertake this prosecution (including, I'm quite sure, to these prosecutors), but the accountability and general deterrence rationales for prosecuting a case that appears to be straightforward and based on strong evidence and involves important campaign finance laws, the financing of a major presidential candidacy, very significant amounts of money, admitted conspiracy, and the legal entitlement of every government actor and agency acting within jurisdiction to receive truthful information rather than false statements are powerful. I hope that Mr. Edwards, if guilty, will find his way back to negotiating with the government, that it will still offer him a reasonable deal, that a Judge will accept that plea and impose that sentence, and that Edwards will serve it and get on with his life. Among other things, and I mean this with zero snark, he has young children and can get much sooner to the post-case life that will be better for them if he pleads guilty rather than fights through trial... And of course if he's innocent, then I understand completely, and maybe even admire, the desire to fight on.

michael a. livingston said...

What I don't get is how you separate the political from the personal here. If the story came out it would obviously ruin his chances of becoming President along with much else besides. Given that the whole purpose of the legislative scheme here is to segregate political money from personal funds, and that this segregation is difficult or impossible in this case, I would have a hard time voting to convict. But I'm unlikely to be on the jury, so who knows?

Joe said...

"public image as a devoted family man" might be something he focused upon, but it is a standard part of a political campaign. Who runs saying that their family doesn't count? Who doesn't use their family somehow to promote their image?

The breadth of the rule here is suggested by this point. Edwards could have used the funds to hide his affair from his wife and general professional backers. That is, the affair could have hurt his public career even outside of politics.

But, since the money in some way ALSO helped his political career, it was a problem. This is pretty broad stuff. I wouldn't be surprised if the campaign law, which if applied strictly is troublingly broad, is covered. OTOH, if people in a common sense sort of way (or perhaps judges because they think the law is unconstitutional) think it is stretching, the literal application of the law might not win out.

The 6/3 BLT blog also cites experts doubting this application of the law.

cheapuggboots2u said...

As I said in my closing point B, I take no position on whether it is a wise use of resources of the prosecutor, but I will note that the case for the benefit n is not trivial: Basically, this case is an attempt to enforce the law limiting the amount of money Gazillionaire can donate to political campaigns. Here we have a contribution to the campaign, which is about 200 times the legal maximum, which strikes me as a non-trivial action.

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