Edwards affair is a test case for Justice's prosecutions of political figures

An indictment against former Sen. John Edwards (D-N.C.) could signal a phoenix-like revival of the Justice Department’s prosecution of political figures, or it could end up being another stumble for an agency that has had recent failures in political cases.

Watchdog groups are split by what the DOJ’s potential indictment against Edwards would mean for future investigations of political figures.

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The Campaign Legal Center says a criminal prosecution of the former 2004 vice-presidential nominee would signal that the DOJ is back in the saddle after years of lackadaisically pursuing criminal charges against politicians – stemming from the agency’s botched prosecution of the late Sen. Ted Stevens (R-Alaska) in 2009. 

“The office of public integrity has been asleep at the wheel,” said Campaign Legal Center’s communications director Dave Vance.

“They ended up throwing out what seemingly were a bunch of investigations with some pretty damning evidence that was unearthed by the media and then all of a sudden, after the Stevens conviction was overturned, they started handing out ‘thanks for playing’ letters to everybody.”

A successful prosecution against Edwards would begin to turn the tides for the DOJ, said Vance, who pointed to the dropped federal investigations of former House Majority Leader Tom Delay (R-Texas), former Rep. John Doolittle (R-Calif.), and Rep. Don Young (R-Alaska) within the past year. 

The DOJ has denied that it has become gun shy as a result of the Stevens case. 

But Melanie Sloan, the executive director for Citizens for Responsibility and Ethics in Washington (CREW), says the case against Edwards appears nearly impossible to prove and if brought to court, it could serve as another blow to the DOJ’s damaged reputation for successful prosecutions. 

“It makes DOJ look worse and worse,” said Sloan of a possible indictment of Edwards. “They look disorganized and they look incompetent. ”

“I think Edwards is unbelievably slimy. I have not a kind word for him. But I think that’s different than criminal. I’m not covering for the guy, they just have to have a real case, and I just don’t see this ever getting though a court.” 

Earlier this week, ABC News first reported that prosecutors with the DOJ had been given the go-ahead to indict Edwards for violating campaign finance laws if a plea deal could not be reached with his lawyers beforehand. 

The potential charges arise from money that two prominent campaign donors gave to videographer Rielle Hunter, after it was reported that she and Edwards had a love affair. It has since been revealed that Edwards fathered a child with her.   

The case against Edwards would have to prove that the donors intended to support Edwards’ bid for the 2008 presidential election and keep his campaign afloat by giving the money to Hunter, or that Edwards intentionally funneled the money to her knowing that it would benefit his campaign. 

If the DOJ could prove this level of intent, then the money may be considered an in-kind campaign contribution that was not reported, which would violate campaign finance laws. 

But Edwards’ lawyer, Gregory Craig, balked at these allegations, saying that the charges and line of logic was “novel and untested.”

“There is no civil or criminal precedent for such a prosecution,” said Craig, former counsel to Presidents Clinton and Obama, in a statement. 

“The government originally investigated allegations that Senator Edwards’ campaign’s funds were misused but continued its pursuit even after finding that not one penny from the Edwards campaign was involved. The Justice Department has wasted millions of dollars and thousands of hours on a matter more appropriately a topic for the Federal Election Commission to consider, not a criminal court.”

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The FEC cannot bring criminal charges against someone who has violated campaign finance laws and they do not have the investigative resources that DOJ has. 

Brett Kappel, a lawyer with Arent Fox who specializes on campaign finance law, said  that based on the evidence that has been reported in the media so far, the DOJ “will have a very hard time making a case.”

“Indeed, I don’t know that such an allegation in an indictment would survive a motion to quash the indictment,” said Kappel. “The Justice Department’s apparent theory is based on an extremely expansive interpretation of what constitutes a ‘contribution’ – one that the five conservative Justices on the Supreme Court would certainly not support.”

“Unless they have evidence showing that these funds passed through a campaign account I think they have a very, very hard case to make,” he added.

It remains unclear whether Edwards’ lawyers and the DOJ will strike a deal or roll the dice on a costly and high profile criminal trial. CBS News reported on Friday that a decision could come as soon as next Wednesday.