John Edwards’ Indictment: Understandable but Dangerous

It is hard to find a less sympathetic defendant than John Edwards. He has been blessed with wealth, intelligence and flair. He was blessed with an extraordinarily courageous wife. It is true that he endured the terrible tragedy of the premature death of his son, but that is no explanation of his indefensible conduct of cheating on his wife after she became ill with cancer. There is never an excuse for adultery that will wash with God Who created marriage in the first place. John Edwards deserted his wife emotionally when she needed him most. His heartless conduct has no moral defense. One can hope that John Edwards will repent and be forgiven at Judgment Day, but it is impossible to deny his moral guilt.

But justified indignation does not make John Edwards guilty before the law of the land. People who are concerned about government’s ingrained tendency to overreach should withhold their applause at his indictment. It is all too tempting to distort the law to punish a person who has done wrong, regardless of whether that wrong is a crime. John Edwards lied to the press and to the public. That is disgusting, but is that a legal crime punishable by prison? If it is, there would be very few political leaders who would not go to jail. Further, expanding the law to cover all political lies would increase enormously the power of law enforcement. There would be genuine danger that virtually every political leader would be subject to pressure over some lie which might form a basis for criminal prosecution. The risk of abuse of such power against any opposition party leader can easily chill dissent and opposition to the policies of the Executive Branch.

As for the payments to Ms. Hunter, there are at least two points to be made:

1) Mr. Edwards genuinely owed Ms. Hunter substantial child support because he had fathered her child. Payments from him to her are not illegal of themselves. I cannot speak to the law of palimony in any of the states that may have been involved, but I will assume that Ms. Hunter would not be entitled to any form of quasi-spousal support. If she had a legal claim under the law of a controlling state, that would be an additional reason for him to pay her money;

2) The usual prosecution of this type involves diversion of campaign funds without the donors’ knowledge from campaign purposes to personal expenses such as (in this case) child support. In this case the prosecution theory seems to be that the donors knew that their funds were to be directed to Ms. Hunter. They were not deceived and no fraud was committed. Further, the funds so far as we now know never entered Mr. Edwards’ campaign treasury. A trial might tell a different story. If the prosecution theory excludes fraud against the donors and also admits that the funds never entered Edwards’ campaign treasury, it seems that campaign finance law is being distorted to punish him because the public is angry. If a person voluntarily and knowingly paid money directly to Ms. Hunter on Mr. Edwards’ behalf, it is difficult to see that election laws should apply simply because politics is someone’s motive for the payments. Perhaps the payments should have been reportable on tax forms and perhaps other disclosure forms as personal gifts to Mr. Edwards because they discharged his debt, but that is a different issue from campaign law. Motive should not be enough to call something a contribution to a campaign when it is not paid to the campaign.

There is more to this case than John Edwards. Keeping government within the bounds of the written law is a cause more important than punishing a cad. Criminal law especially must be construed strictly in favor of an accused in order that every citizen can understand the line between permitted and forbidden conduct. Already specialists are stating that election law is unclear. It would not be fair to John Edwards (nor to Eliot Spitzer, John Ensign or to Mark Sanford, or to a future potential defendant) to stretch a law beyond its original scope to cover conduct that we may have every reason to dislike. Henry VIII had a bad habit of doing this, but our Constitution is designed to ensure that the abuses known to the Framers from English precedent never take root in American soil. In defending the rights of John Edwards we may wind up defending our own rights or the rights of another political leader whom we support.