The definition of â€œoverreachingâ€ in the next edition of the Merriam-Webster Dictionary could be a single sentence â€” â€œOverâ€¢reaching: see June 3, 2011 indictment of former presidential candidate and United States Senator John Edwards for alleged campaign finance violations.â€
Every current and future candidate for federal office ought to file an amicus brief in behalf of Edwards. If the federal government succeeds in securing a conviction of Edwards in this case, the precedent will have been set for future administrations to employ federal campaign finance laws to reach and criminalize virtually any monies used by a candidateâ€™s supporter(s) that even indirectly have the effect of protecting the â€œimageâ€ of the candidate.
This action by the Obama Department of Justice is similar to what the President and the Democratic majority in the last Congress did, when they passed and enacted â€œObamaCare.â€ This massive law represents a gross expansion of the Constitutionâ€™s so-called â€œcommerce clause,â€ to reach activity never intended to be reached by federal legislation.
Without question Edwards, a lawyer, former United States Senator and Democratic Party nominee for vice president, has admitted to some reprehensible actions; including carrying on an affair and fathering a child while his now-deceased wife, Elizabeth, was suffering from terminal breast cancer.
No doubt many view his recent indictment for breaking campaign finance regulations, as poetic justice for his past behavior. But that is not the purpose of a criminal prosecution; and here, prosecutors are clearly misapplying the law by broadening the definition of a â€œcampaign contribution.â€
The Department of Justice alleges that Edwards â€œreceivedâ€ $925,000 from two donors â€” far more than the $2,300 from individual contributors allowed by federal law â€” in an effort to conceal his affair while he was casting himself to voters as a devoted husband and father. The money did not go to Edwards, but rather to his former mistress for living and child-rearing expenses. The funds were never disclosed on federal campaign finance forms because neither the two donors nor Edwards considered them to be â€œcampaign contributions.â€ In this presumption, they were absolutely correct; at least until now in the eyes of the Justice Department.
The government correctly alleges that because Edwards was a candidate, he was subject to the Federal Election Campaign Act of 1971 (as amended); and that donations to his campaign for the benefit of the campaign were subject to the strict reporting and amount limitations set forth in the massive federal election campaign laws and regulations. Beyond that, however, the government veers off in an extreme deviation from common sense and previous interpretation of the campaign finance laws.
If we are to believe the case presented by prosecutors, money given to conceal Edwardsâ€™ affair was a campaign contribution for no reason other than because it helped hide his inappropriate behavior from voters; which would, if revealed, have caused voters to question his â€œfamily manâ€ image. While this conclusion is undoubtedly accurate, the question from a federal criminal law standpoint is, â€œso what?â€ Having friends financially support a pregnant mistress so the wife and others will be less likely to discover the sordid affair, is not criminal.
There was no coercion or extortion involved on the girlfriendâ€™s part; and Edwardsâ€™ wealthy supporters willingly helped her out financially without any improper pressure from him. The money given by these two donors was a personal gift to hide the affair from his wife (since Edwards obviously could not pay the girlfriend directly without his wife discovering the affair). In fact, as reported by the Los Angeles Times, one of the donors even filed a gift tax return.
Edwards clearly no longer is someone with whom the public can sympathize; and prosecutors may be relying on this factor more than any other as a pressure point against Edwards, and as a card to play to the jury if the case proceeds to trial.
Most election law experts believe the government is making a mistake by going after Edwards. Richard Pildes, a constitutional law professor at New York University, explained in a recent blog post that â€œthe money involved here was not a substitute for money the campaign itself might otherwise have spent; indeed, if Edwards has used campaign money to support his mistress, that would itself have violated the criminal law.â€
Prosecutors may be grasping for straws here, but the potential payoff in terms of enhanced power to intimidate federal candidates and their supporters, is huge. If the feds either pressure Edwards to cop a plea, or if they win their long-shot case and a jury returns a guilty verdict, we can expect all manner of future prosecutions of candidates and their supporters for failing to report donations to third parties designed to â€œprotectâ€ or â€œenhanceâ€ a candidateâ€™s â€œimage.â€ Perhaps even haircuts.
In fact, one of the â€œovert actsâ€ recited in the governmentâ€™s indictment of Edwards refers to a donor wanting to pay for Edwardsâ€™ haircuts, because the media had made such a fuss about an expensive haircut paid for by the campaign. In the future, paying for a candidateâ€™s haircut could land you in federal prison. Such may be John Edwardsâ€™ lasting legacy.
By Bob Barr â€“ The Barr Code