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Cad example: Prosecuting Edwards may feel satisfying, but it's a worrying case of overreach

By Ted Frank

There is no question that former Democratic senator and presidential candidate John Edwards is a cad. After all, the man impregnated mistress Rielle Hunter while his loyal and popular wife, Elizabeth, was dying of cancer. He then repeatedly lied about it, to the point of orchestrating a scheme where a sycophantic aide -- the married Andrew Young -- agreed to represent himself as the father of the baby. Edwards' wealthiest supporters spent a million dollars engineering the cover-up.

All of this is getting hashed out in a federal trial in North Carolina as we speak. But does it make Edwards a criminal? Under prosecutors' theory of the case, Edwards broke the law because payments to Hunter and Young by his millionaire friends were "made for, among other purposes, the purpose of influencing any election for federal office" and thus should be considered a federal campaign contribution subject to $2,300 limits and disclosure requirements. Edwards' defense attorneys object: If that's the standard, what isn't a campaign contribution? (Could a campaign buy jewelry for a candidate's wife so she looks more presentable on the trail, influencing the election?)

One doesn't need to go very far down the slippery slope to think that prosecutors are acting arbitrarily. For example, journalist Edward Klein writes in a new book that the controversial Rev. Jeremiah Wright says he was offered $150,000 from one of President Barack Obama's "closest friends" to keep quiet during the 2008 presidential campaign. The Obama campaign was worried that Wright's anti-American sermons would alienate voters because of Obama's previous affiliation with Wright.

The government is prosecuting Edwards because campaign donors contributed money to Edwards' mistress to keep her quiet for the benefit of the campaign. Why is it not illegal for Obama's campaign donors to attempt to contribute money to Obama's reverend to keep him quiet? And Wright, it should be noted, did keep his mouth shut the last several months of the 2008 campaign.

Now perhaps the reverend is exaggerating or was misquoted; perhaps any offered payment to Wright was entirely independent of the Obama campaign (though the fact that Wright describes the process as going through multiple intermediaries suggests that someone wanted to hide the ball); if so, even under the Edwards prosecution's theory, there's nothing wrong there. But one would expect at least a grand jury investigation into the Obama-Wright relationship if the Edwards prosecution is legitimate.

Don't get me wrong. I disliked John Edwards before disliking John Edwards was cool. There is a certain poetic justice in seeing federal prosecutors dragging Edwards through the mud with salacious details -- a sex tape, a public-breast-baring tantrum by his scorned wife, Edwards' delusions of grandeur -- of questionable relevance to the criminal charges. After all, Edwards made his tens of millions through similar antics as a trial lawyer suing doctors and manufacturers with prejudicial appeals to juries' emotions.

But despite this, I am disturbed about the Department of Justice's prosecution of Edwards -- and you should be, too.

Part of the problem here is the very unworkability of campaign finance laws, which cannot possibly regulate every transaction related to an election without also trampling individual rights. Indeed, one of the reasons the Supreme Court decided as it did in the 5-4 Citizens United decision was because government attorneys were forced to admit that the over-broad campaign finance law gave the government the unconstitutional power to ban books and political pamphlets. The real controversy over the decision should be that four justices were all right with this.

But Edwards' case is also indicative of a larger problem: overcriminalization. There are thousands of highly technical criminal laws on the books, literally more than anyone has been able to accurately count. Making disputes over ambiguous regulations into federal criminal cases puts enormous and untrammeled power in the hands of public prosecutors. They can turn convictions of high-profile defendants into lucrative careers as millionaire lawyers in the private sector, creating a perverse incentive to run roughshod regardless of the merits.

What's happening to Edwards could happen to any of us -- and most of us can't afford to spend millions of dollars on lawyers to match the federal Leviathan's resources. Legislators should step in to ensure that federal criminal prosecutions do not happen in the absence of criminal intent. Otherwise, we risk ceding liberty entirely to the discretion and generosity of our friendly neighborhood prosecutor.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.