The Spectacle Blog

Did John Edwards Commit a Crime?

By on 4.23.12 | 4:15PM

Now here's a role-reversal: The editors of National Review, never fans of John Edwards, examine the charges against him and conclude that "it is our obligation to come unenthusiastically to his defense." On the other hand, Walter Shapiro, who once was an admirer of Edwards, thinks that the prosecution's case is stronger than it looks at first blush. Here's NR:

Edwards’s mistress, Rielle Hunter, was paid off by his supporters. The financial chairman of Edwards’s presidential campaign, the late Frederick Baron, gave financial support to Hunter and to Andrew Young, the staffer who lied about being the child’s father. In a picturesque twist, another Edwards supporter, the heiress Bunny Mellon, is believed to have sent Hunter checks secreted in boxes of chocolate, though her lawyer denies that she knew her money was going to Hunter.

The prosecution’s case is built upon a note from Mellon, who described herself as “furious” about the way in which Edwards was lampooned for his infamous $400 haircuts. “From now on,” she wrote, “all haircuts, etc., that are necessary and important for his campaign — please send the bills to me. . . . It is a way to help our friend without government restrictions.” And she did indeed write some $725,000 in checks for sundry expenses — all of which went to Hunter, not to the Edwards campaign.

Because none of the money went to the campaign, and none of the money went for campaign expenses — inasmuch as maintaining a mistress is not a campaign expense — it is difficult to see why this should be prosecuted as a campaign-finance violation. At most, the evidence would seem to justify charging Mellon with conspiring to subvert campaign-finance laws, though in the event those laws were not subverted, since her money did not go toward financing the Edwards campaign.

Shapiro agrees that Count One of the indictment, the charge relating to Baron, is flimsy, but suggests that Count Two, the charge relating to Mellon, might be more damning:

[T]he trial will raise the strong possibility—and you will have to trust me on the sourcing for this—that the then-97-year-old socialite was as ignorant of the existence of Rielle Hunter (or any other Other Woman) as any Democratic voter besotted with John Edwards. When she was asked for the money, delivered in seven installments beginning in June 2007, she apparently thought that she was donating in some round-robin fashion to the Edwards campaign, not covering up an affair...

If the trial shows that Mellon believed her checks for $725,000 were intended for campaign purposes, Edwards’s defense under Count Two could be severely curtailed. Edwards’s most straightforward defense—that he sought Mellon’s money in order to hide the affair and pregnancy from his wife Elizabeth—would suddenly vanish. If Bunny Mellon did not know about the affair, how could her contributions be personal rather than political?

Election law expert Rick Hasen responds that he doesn't think that's the right question -- it's Edwards's intent, not Mellon's, that is legally relevant, and "under the murky law on what constitutes 'personal use' of funds received during the course of a campaign, Edwards has at least a plausible argument his intent was to save his marriage and not to help his campaign." Hasen adds a link to a guest-post on his Election Law Blog by Rick Pildes that goes further, arguing that Edwards didn't commit a crime regardless of anyone's intentions, on the theory that the legal definition of a campaign contribution must be objective rather than subjective. Hasen offers Pildes's argument as evidence that "even if the jury convicts, there’s a good chance the conviction won’t stand."

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