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Questionable Interpretation of the Federal law!

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Thursday, June 9th, 2011

New Orleans, Louisiana



He was once the fair haired boy of the Democratic Party, and a major contender for the presidential nomination.  In December of 2006, I was working in New Orleans hosting a daily radio program on Clear Channel’s WRNO, and stood in the crowd as he announced his candidacy for President.  In 2004, he was the democratic candidate for vice president on the Kerry ticket.  He formed and led the “One America Committee” that undertook a major effort to combat poverty in America.  And now, John Edwards just hopes to stay out of a federal prison.

The former US Senator is certainly no paragon of virtue.  During his presidential run, he fathered an illegitimate child by a campaign aid, lied about it and funneled some $900 thousand through friends to support and keep his paramour quiet.  Now he’s being charged with violating federal campaign laws by accepting donations beyond the allowable limits.  The question is this:  Is it a violation of federal law to accept and direct money to the mother of his child?  Did he do this to protect his candidacy, and therefore the money should be considered campaign funds?

A number of former prosecutors and legal scholars have sharply criticized the Justice Department saying that such an interpretation of the federal campaign finance law is a real stretch, and have accused the prosecutors in the Edwards case of proceeding under a convoluted interpretation of what the law actually means. Such charges have never been filed before, and for good reason. The money in question continued to be given to Edwards’ mistress long after he dropped out of the presidential race.

So if the money was supposed to be to help with the campaign, why was it still being given after the campaign ended? Former federal elections Commission Chairman Scott Thomas looked at the case and said the payments “would not be considered to be either campaign contributions or campaign expenditures within the meaning of the campaign laws”

The Citizens for Responsibility and Ethics in Washington regularly criticizes the Justice Department for not holding public officials more accountable, but they too think such a prosecution is a waste of taxpayer’s dollars. Executive Director Melanie Sloan said it is highly unlikely that prosecutors can prove that the money given was to aid Edwards’ candidacy.  “This is really a broad definition of a campaign contribution.  It has never been that broadly interpreted and the judge could and should toss the case before it goes to trial.  John Edwards is horrible, but it doesn’t mean they should be prosecuting him criminally,” she said, “and I’m usually all in favor of the prosecution.  I think this is a silly case.”

Then there is the prosecutor, George Holding,  a Bush appointee, who was not reappointed by President Obama, and is on his way out.  There is no love lost here, as Holding used to work for former Senator Jesse Helms, and Edwards blocked several key judgeships important to Holding.  Is it payback time?  Holding is being assisted by the same public integrity section of the Justice Department that bungled its last high profile case against the late Senator Ted Stevens, when the prosecutors admitted they withheld key evidence from the Senator’s legal team.  One of the prosecutors in the Stephens case then committed suicide.

“The Department of Justice as a whole, and the Public Integrity Section in particular, has a black eye,” says white collar defense attorney Bob Bittman.  He knows of what he speaks for Bittman was once the chief prosecutor in charge of the Monica Lewinsky investigation involving President Bill Clinton. “They just are not seen as fair,” he concludes. So there is plenty of sleaze to go around on both sides.

Here’s what the Edwards defense team should argue.  None of the money that was given to the mistress went through either Edwards or the campaign, so there is no requirement that it be disclosed and reported.  The money given was used to hide the mistress from Edwards’ wife, not from the public. The Federal Elections Commission rules refer to the “irrespective test.”Â  Does the expense exist even if no campaign were taking place?  Most people would agree that paying money for the child of a candidate is an expense that exists “even in the absence of the candidacy.”Â  Hey, lots of candidates pay alimony and child support.

In fact, Edwards’ lawyers could well argue that the prosecutors have it backwards. If Edwards had reported the private gifts, this in itself could be a violation of the campaign law for he was spending money for his personal use from his campaign fund.  If he ends up getting convicted, will this mean that in the future, paying money to one’s mistress can be considered a legitimate campaign expense?

Professor Jonathon Turley, a regular legal commentator on CNN, says “the ambiguity of where to draw the line between personal and campaign expenditures is the biggest problem for the prosecution’s theory. Just because hiding the affair would be of benefit to Edwards as a candidate as well as a spouse does not necessarily mean the dual benefit converts to a cover-up or an affair into a campaign violation,” he told The Nation.  “The uncertainty of where to draw the lines makes me uncomfortable with the criminal charge.”

John Edwards is a sleazy guy who has betrayed his family, his friends and his supporters.  He has certainly fallen from grace and will carry this albatross for the rest of his life.  But is he a criminal under federal law and should he go to jail?

Thomas Jefferson once said the criminal law has to be so clear that you can understand it if you read it while running.  Clarity should not be in the eye of the beholder.  In the Edwards case, prosecutors who seem to have questionable motives have way over reached.  John Edwards, the judicial system, and the American public deserve better.


It’s just an awful, awful story. It was one of those cases that, in a perfect world, one would think the prosecutorial arm of our government might exercise better discretion on how to handle.“

~ John Palmer

Peace and Justice.

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South.  You can read all his past columns and see continuing updates at www.jimbrownla.com.  You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownla.com.

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