Tuesday, February 15, 2011

Criminalizing Shamelessness

This NBC report makes it sound like the only thing standing between John Edwards and a criminal indictment is a sign off from high-ranking officials in the Justice Department. His alleged offense? Soliciting funds from a couple of wealthy supporters to keep his mistress and illegitimate daughter under wraps during the 2008 presidential election campaign:

I noted before that they don’t make public figures any creepier than John Edwards. So, were I a betting man, I’d put my money on a criminal indictment—Eric Holder doesn’t strike me as the kind of guy who’d take any political heat for exercising his prosecutorial discretion in behalf of anyone as unpopular as John Edwards now is. But is that a wise application of the criminal law? Do we really want to turn our campaign finance laws into an instrument for criminalizing conduct that they weren’t intended to reach merely because we think it’s shameful?

Suppose Edwards had used his own money to keep his mistress and daughter out of the public eye? Most of us, I think, would have regarded that as more evidence of the shamefulness of his having a mistress while he was trafficking politically on his wife’s cancer diagnosis in the first place. But I doubt we’d have regarded his footing his mistress' and child’s bills as another immoral act in its own right--if anything, we’d have thought that Edwards was discharging an obligation. We often hold people’s sexual indiscretions against them while tolerating their efforts to keep them under wraps after they’ve occurred. (Think of how much trouble a lot of us had getting worked up over Bill Clinton’s lying about his relationship with Monica Lewinsky--and that was perjury.)

Edwards made himself into a candidate for criminal prosecution by using other people’s money to conceal his adultery when its disclosure would have done incalculable damage to his presidential campaign.  He may well have done it because he didn't want his wife to find out, without its ever occurring to him or his benefactors that he was soliciting, and that they were making, campaign contributions.  Granted, that’s not a legal defense—Edwards had surely been put on constructive notice about the illegality of his acts under election law. But if he gets prosecuted, we all know it will not be because it advances the social objectives behind our campaign finance laws.  It will be because he’s an unpopular sleazebag who has already been tried and convicted in the court of public opinion.

Am I the only one who finds that a little disturbing?


Lone Wolf said...

You're being way too easy on Edwards. His violation of the law was a lot more blatant than Tom DeLay's, who was found guilty under a utterly novel interpretation of existing statutes. If the allegations are true, Edwards couldn't have been unaware that he was soliciting illegal campaign contributions.

Anonymous said...

You state: "But if he gets prosecuted, we all know it will not be because it advances the social objectives behind our campaign finance laws. It will be because he’s an unpopular sleazebag who has already been tried and convicted in the court of public opinion."

I really, really hope that you are wrong about this. Please tell me there are laws and that justice is blind.

Ron Replogle said...

We live in a legal culture where countless crimes go unprosecuted. And that's a good thing because, as Harvey Silverglate argues, criminal law is so vague that the average person unwittingly commits three felonies a day. We need prosecutors to use their discretion to keep the criminal justice system from intruding unreasonably in our lives. The Edwards case, in my opinion, is a good occasion to forego prosecution because the social stigma he has already earned is more than sufficient to uphold the moral order. We don't need, and shouldn't want, all moral transressions to be crimes.

Dave said...

"Bunny" Mellon, a 98-year-old woman, gave John Edwards $700,000, via a campaign staffer, during a time in which he was running for president.

Never mind what it was used for. Do you believe this was a personal gift, unrelated to the campaign? Or was it a campaign contribution?

If campaign finance law is to have any legitimacy, then law enforcement had to pursue this case. Allowing a $700K contribution to a candidate to be counted as a "personal gift" would create a huge loophole that would totally undermine the law.

(By the way, for me, it's not the Rielle Hunter bit that gets my dander up. It's the scamming of a 98-year-old woman. What a creep.)

Ron Replogle said...


Maybe you're right. I've always presumed Bunny Mellon was a rich lady knowingly doing Edwards a favor without having any specific intent to buy political infludence. Is there any evidence that she was scammed? If there is, I guess I wouldn't object to using the campaign finance laws to exact a little retribution against Edwards. But I still don't think that prosecution has much to do with the social objectives behind the campaign laws because it seems pretty likely that Edwards would have asked Bunny for the money, and she would have given it to him, even if he wasn't running for president. The facts that criminalize Edward's conduct don't seem essentially related to the conduct itself. But I'll grant you that there's a vivid appearance of electoral impropriety that is arguably within the criminal law's purview.

Dave said...

And I'll grant you that the direct outcome of this case isn't even close to being worth the two years' investigation they've put into it. I just can't see how they could live with the optics if they had let it slide.

(I'll also admit that I've been unfairly presumptuous to just assume that Bunny Mellon was taken advantage of. I hear that she's 98, I jump to conclusions. Sorry, Bunny. :)

Mean Voter said...

I can only assume Bunny Mellon thought she was contributing money to a presidential campaign. Why on earth would a multimillionaire give money to another multimillionaire? Ron, it could not have been a favor. I think you're wrong.

I have to agree with Dave here, and probably the prosecutors. I didn't realize that the average person unwittingly commits crimes. I'll have to pay more attention and see how I do over the next few days. In any event, Edwards is a lawyer and was running for president, and he and his people knew what they were doing was likely a violation of law. I can't say prosecution is the best use of scarce resources, but it seems like he's heading for it.