Edwards Prosecution Reflects Gross Overreaching By Feds

The definition of “overreaching” in the next edition of the Merriam-Webster Dictionary could be a single sentence — “Over•reaching: see June 3, 2011 indictment of former presidential candidate and United States Senator John Edwards for alleged campaign finance violations.”

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 candidate’s supporter(s) that even indirectly have the effect of protecting the “image” 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 “ObamaCare.” This massive law represents a gross expansion of the Constitution’s so-called “commerce clause,” 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 “campaign contribution.”

The Department of Justice alleges that Edwards “received” $925,000 from two donors — far more than the $2,300 from individual contributors allowed by federal law — 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 “campaign contributions.” 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 Edwards’ 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 “family man” image. While this conclusion is undoubtedly accurate, the question from a federal criminal law standpoint is, “so what?” 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 girlfriend’s part; and Edwards’ 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 “the 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.”

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 “protect” or “enhance” a candidate’s “image.” Perhaps even haircuts.

In fact, one of the “overt acts” recited in the government’s indictment of Edwards refers to a donor wanting to pay for Edwards’ haircuts, because the media had made such a fuss about an expensive haircut paid for by the campaign. In the future, paying for a candidate’s haircut could land you in federal prison. Such may be John Edwards’ lasting legacy.

By Bob Barr – The Barr Code

37 comments Add your comment

[...] BARR ON EDWARDS INDICTMENT. Here.  “If we are to believe the case presented by prosecutors, money given to conceal Edwards’ [...]

Contrarian

June 8th, 2011
7:42 am

“If we are to believe the case presented by prosecutors, money given to conceal Edwards’ affair was a campaign contribution for no reason other than because it helped hide his inappropriate behavior from voters…”

…FOR NO REASON OTHER THAN BECAUSE…..

who taught barr how to express his ideas? other.than.because. who would not notice the awkwardness? who, but a schmednick wouldn’t have stopped right there and edit?

as for haircuts, i think bar should accept that he’s no bard, thus he deserves a heir cut.

bwa. Shickaboom, shickabah, dont ya just luv it.

The AJC Stinks

June 8th, 2011
8:30 am

I am no Edward fan, but I agree, he has not committed a Federal crime. So either prosecute the mother of his baby for extortion (almost 1 million dollars over three years, far more than she could have earned), or drop the charges against Edwards. On a brighter side, “Immigrants leaving Ga. behind” reads the ajc headline. I say good, take all your family and friends with you, and don’t let the door hit you in the behind! Don’t come back now, Ya’all.

the watch dog

June 8th, 2011
9:05 am

The federal prosecutor has more control over life, liberty and reputation than any other person in America. This emmense power has the force of government itself. There should be fair play and decency emmanating from a federal prosecutor. That being said, why would they want to get involved prosecuting John Edwards? His reputation is in tatters, his indiscretions have been exposed and he could not get elected to any office much less President. It seems like a colossal waste of time and the taxpayers money.
Also, two crucial witnesses are dead. Another is a 100 years old.
The stakes could not be higher for a justice department who botched a case against Sen. Ted Stevens. It appears to me, there is a lot for the justice department to lose and little to win.

the watch dog

June 8th, 2011
9:11 am

The federal prosecutor has more control over life, liberty and reputation than any other person in America. There immense power has the force of government itself. There should be fair play and decency emanating from a federal prosecutor.All of the above being said, why would they want to become involved in prosecuting John Edwards? His reputation is in tatters, family is in a very weakened condition and he could not get elected to anything. Also, two crucial witnesses are dead, another is 100 years old. The stakes could not be higher for a justice department who botched a case against Sen. ted Stevens. They should move on.

the watch dog

June 8th, 2011
9:52 am

I really do not see what there is to be gained by prosecuting John Edwards. He is a political opposite of what a politician should be, cheatin on his wife and her being terminally ill besides.
There should be fair play and decency emanating from a federal prosecutor. What is fair and decent about prosecuting someone who already lost his position as an honest, forth right man in the community and country over allegations that would be difficult to prove and go no where.
Is it ethical to prosecute when the likely out come would end in no prosecution?
The federal prosecutor has more control over life, liberty and reputation than any other person in America. Their immense power has the force of government itself. As for the case, two crucial witnesses are dead, another is 100 years old. The justice department already has botched a case against former Senator Ted Stevens. They will look worse botching this case.

the watch dog

June 8th, 2011
9:59 am

I have tried 3 times to get my comment on. I am slowing down posting it as was suggested.

WOW

June 8th, 2011
10:29 am

“he has not committed a Federal crime.”

So paying off a mistress with campaign cash, cash that isn’t his, isn’t a crime? Ok.

GA Voter

June 8th, 2011
11:22 am

Bob, is this kind of like when you were in Congress and hounded Bill Clinton for years on total BS rumors and the best you could come up with is that he had an affair and lied about it (whoop-ti-do). That to me was a total waste of time and money. Personally, I think Starr and his team should have been disbarred for prosecutorial misconduct because they threatened people with jail to try and to suborn perjury from them.

ByteMe

June 8th, 2011
11:25 am

WOW: the money didn’t come from the campaign. It was a payoff direct from past donor to mistress without flowing through the campaign. Think of it this way: if you’re a candidate and your buddy takes you to dinner, is that dinner a campaign contribution because you have to eat to campaign? Same tortured logic and there’s no case law to support the prosecution in this instance.

I don’t think much of him either and didn’t vote for him (I always thought he was a political lightweight), but this is a prosecution that is flawed.

Al Gore

June 8th, 2011
2:59 pm

On top of everything else, his private jet was contributing to global warming.

jamon

June 8th, 2011
3:43 pm

overreaching or reach around? you make the call…

WOW

June 8th, 2011
4:19 pm

“the money didn’t come from the campaign.”

Ok, I guess CBS, CNN etc are all lying about the money he used to pay off his mistress. LOL

“It was a payoff direct from past donor to mistress without flowing through the campaign.”

IE: Campaign cash. Donor = campaign money.

WOW

June 8th, 2011
4:21 pm

Every time I see a left wing loser in Little Five points driving around with a Kerry/Edwards sticker, I often want to walk up to them and laugh in their pasty skinned faces. Hmm, I think I’ll do that today.

Jefferson

June 8th, 2011
5:05 pm

Time will tell, stay tuned.

Congressman Weiner

June 8th, 2011
5:43 pm

I think Candidate Edwards was set up. I think he leaned too far to the left anyway.

Fred

June 8th, 2011
8:58 pm

No, I think you are wrong on this one, Mr. Barr, unless you know something not yet reported. My auditor’s instincts tell me those checks were not reported as gifts for the federal taxes purposes. Any time a decorator writes “furniture”, or “chairs” on a check, you can be pretty sure the CPA is not going to code the expenditure to “gifts”. It probably got coded to cost of goods sold. Who got immunity? Do you know?

Mike

June 9th, 2011
6:49 am

Fred, it doesn’t take my being a CPA to understand that “as reported by the Los Angeles Times, one of the donors even filed a gift tax return” strongly implies that one of the donors filed a gift tax return.

The people who gave money to the mistress were also donors. I’m sure most of the wealthy people Edwards knows have been donors to his campaign. The two things that, in my opinion, make this illegal would be if a) there were actual campaign funds transferred from campaign accounts to the mistress, or b) his relationship with the donors who gave money to the mistress was limited solely to his position as a candidate for office.

mike

June 9th, 2011
7:16 am

Yes a total waste of time and money. But they have to make an effort to get a high profile Dem. Besides they never went after any of those countless repubs for their sexual misconduct if you can call it that.

a reader

June 9th, 2011
7:52 am

ga voter – thanks for the memories….

Interested observer

June 9th, 2011
8:16 am

Good column. Edwards is a sleaze, but that alone is not against the law.

Lawrence

June 9th, 2011
8:19 am

Bob…With an attitude like yours, there is no wonder this country is in the moral shape it is in. And why I am glad you are not in Congress. It is morally corrupt already without you helping drag it down.

poison pen

June 9th, 2011
8:27 am

First of all, none of you have seen the W2 forms of the people who gave the money so how do you know if it wasn’t listed as a contribution?

I don’t think any of you are smarter then the prosecutors, including Mr Barr, and I don’t think you know all the facts in this case so how can you even make a judgement.

poison pen

June 9th, 2011
8:33 am

Lawrence

June 9th, 2011
8:19 am

Bob…With an attitude like yours, there is no wonder this country is in the moral shape it is in. And why I am glad you are not in Congress. It is morally corrupt already without you helping drag it down.

Lawrence, maybe he is afraid that someone will start looking into his campaign money.

Carlosgvv

June 9th, 2011
8:55 am

It has become increasingly clear over the years that the American Justice System is severely out of control. When a woman spills hot coffee on herself at a drive thru fast food place and then is allowed to sue, you know something is very wrong. I imagine increased legal fees for the lawyers is at the bottom of all of this.

GT

June 9th, 2011
9:24 am

Excellent column Bob. The voter should get involved more and the justice department less in this kind of thing. People are all over these “moral issues” that quiet frankly do not change the substantive issues that the politician votes on yet seem unable to rally behind keeping the corporate influence out of Washington. The JD should be used to go against the powerful, that really have a corrupt agenda for this country.

Maybe the voters of a district or this nation as a majority want a rolling stone. In the past we have wanted and elected bigots in this state , I think we still lean that direction. I was and may still be almost a requirement to be elected. What good is political correctness when it allows not only the politician to lie but the voters to be part of that lie. We don’t have over a 50% divorce rate by chance. There is a lot of real life going on out there just like in politics. It just may very well be that the public feels more comfortable with a sinner in office than someone not like themselves. It is what you call a free country.

Lawrence

June 9th, 2011
9:42 am

poison pen…

I agree with you.

GT

June 9th, 2011
10:07 am

The country is in the “moral shape it is in” because no one takes individual responsibility. The politician is our maid, we make the mess and we expect him or her to clean it up. If we are the minority and can’t effect the vote, we get the justice department to clean it up. If you buy a bad stock you want to sue someone for your stupidity. It amazes me reading the Madoff story how many had no idea where their money was being invested. Preventive action just like not smoking and not eating fatty foods is a individual responsibility. If you buy a stock, you know it is a corrupt company yet you make money do you return the money? If you have a job that pays you to play golf all day, or chase the opposite sex until late at night, your education and resume are under the level of your income do you quit because you feel guilty? But when reality catches up with you and you are fired or the company goes under because it was poorly managed then you claim you have been cheated. Always someone else in this country never the individual themselves. That is why this country is in the moral shape it is in, and it has nothing to do with Bob Barr’s attitude.

Lawrence

June 9th, 2011
10:46 am

I agree that Bob’s attitude has nothing to do with it. But, his attitude that condones it, only makes it worse.

gscott

June 9th, 2011
12:14 pm

So in the future ads from interest groups will be considered campaign contributions, if the government wins this case.

WOW

June 9th, 2011
3:47 pm

“When a woman spills hot coffee on herself at a drive thru fast food place and then is allowed to sue, you know something is very wrong.”

Couldn’t agree more, Carlos.

MarkV

June 9th, 2011
4:54 pm

Bob Barr: Excellent article.

Ragnar Danneskjöld

June 9th, 2011
8:14 pm

Well argued. Too many foolish laws, and too many prosecutors determined to prosecute people rather than laws.

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