Prosecuting Edwards

At first blush, the decision to indict former Sen. John Edwards (D-N.C.) for conspiracy to accept illegal campaign contributions, given the facts and circumstances, seems like a stretch, to say the least. 

The definition of “campaign contributions” has never to date been used to apply in this particular fact pattern — when donations were made to a third party, not to the campaign itself, for the purpose of keeping quiet an embarrassing affair of the presidential candidate as well as a child conceived out of wedlock, all of which, if made public at the time, would have “destroyed” his campaign, according to the indictment. But on second look, after reading the literal words of the definition of “campaign contribution,” and then the factual allegations of the government in the indictment, it does seem possible that the case could lead to a guilty verdict.

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Federal election law defines a “campaign contribution” as “anything of value provided for the purpose of influencing” the outcome of a federal election. The key words to focus on are “anything of value” and given “for the purpose of” influencing the outcome of Edwards’s presidential campaign.  It is entirely possible that the judge will rule as a matter of law that Congress never intended “campaign contribution” to be defined as covering such indirect contributions providing benefits to a candidate through hushing up a scandal. If so, then the case will be thrown out and never get to trial or presented to a jury. 

However, if you look at the indictment, there are two facts alleged that, if proven to a jury beyond a reasonable doubt, could result in Edwards being found guilty…that is, if the judge lets the case get to a jury.

First, in paragraph 26, the indictment quotes Edwards telling his senior aide, Andrew Young, that he needed to falsely state that he was the father of Ms. Rielle’s child, because “his efforts to win the presidency — and everything he fought for — depended on it.” Also, in paragraph 33, Edwards allegedly decided not to issue a public statement that he was aware of donor contributions intended “to support and hide” his relationship with Rielle from the media. However, significantly, the indictment then goes on to quote him as explaining the reason why he chose not to do so: for “legal and practical reasons.” 

If both of those alleged statements are believed by the jury to have been actually stated by Edwards, then it can reasonably infer that Edwards knew that the donations to Rielle were primarily to prevent damage to his campaign, and thus, under the law, could be deemed illegal campaign contributions due to exceeding limits.  So too is it utter nonsense to suggest that this case was brought due to a partisan motivation. 

The indictment is signed by the highly respected Jack Smith, the chief of the Justice Department’s Public Integrity Section. And the statement justifying the indictment made by Assistant Attorney General for the Criminal Division Lanny A. Breuer, a strong Democrat and a man of unquestioned integrity, balance and fairness, was most persuasive to me. Breuer stated: 

“We will not permit candidates for high office to abuse their special ability to access the coffers of their political supporters to circumvent our election laws. … Our campaign finance system is designed to preserve the integrity of democratic elections … and we will vigorously pursue abuses of the kind alleged today.” Given the source, these words should be taken very seriously even by those who are skeptics about the outcome of the case.

Davis, the principal in the Washington law firm of Lanny J. Davis & Associates, which also specializes in legal crisis management, served as President Clinton’s special counsel from 1996-98 and as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board. He is the author of the book Scandal: How ‘Gotcha’ Politics Is Destroying America.