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).