Saturday, May 28, 2011

Weekend Rerun: Criminalizing Shamelessness

The news that John Edwards is about to be indicted for a criminal violation of the campaign finance laws calls to mind this (slightly edited) post from 2/15/11:

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've  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 regard 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 probably perjury.)

Edwards subjected himself to criminal liability 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.  If Edwards had solicited the benefactor's money before he'd officially commenced his campaign because disclosure of his infidelity would doom a presidential campaign he'd already decided to wage in the future, his conduct would have been morally indistinguishable from what he actually did, but it wouldn't have made him a candidate for criminal prosecution.  

Granted, that’s probably not a viable legal defense.  Edwards had surely been put on constructive notice about the illegality of his acts under election law and it probably occurred to an accomplished lawyer somewhere along the way that he was using campaign contributions for an illegal purpose.  At best, the considerations I'm raising argue for prosecutors using their lawful discretion not to pursue a criminal case against Edwards.  But if he gets prosecuted, we all know it will not be because it advances the social objectives that inspired our campaign finance laws.  It will be because Edwards is an unpopular sleazebag who has already been tried and convicted in the court of public opinion.

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