As I write this, the Edwards jury is, hopefully, relaxing and enjoying the holiday before resuming its deliberations on Tuesday. Judging from the number of times they’ve asked for certain exhibits, they seem to be a serious and deliberate body of citizens.
One of the nagging questions about the trial, however, is just what constituted the criminal acts that Edwards is charged with. Although I am only going by news and TV summaries, and a quick reading of the indictment, I wonder if some members of the jury are stymied by one of its crucial defining elements: did Edwards’ cover-up of the deal — specifically, using “campaign” funds to pay off his mistress in order to keep the affair secret — amount to a breach of the election laws?
My problem is this. Was the money really used as part of his campaign? The government’s theory is that he could never be elected president if the story came out, so the use of secret “hush money” was an unlawful evasion of the limits for campaign contributions. But this only holds water if you accept outright that the payoff was a legitimate campaign expense. Since he never declared it to the FEC, we don’t know what that agency would have said about it.
Or do we? Can we really imagine the FEC would count it as a valid campaign expense? Of course we can’t, which is why the prosecution stakes the whole bet on conspiracy. Conspiracy, as we’ve so often seen, makes it a separate crime when a citizen does not inform a particular regulatory agency about certain conduct even when that conduct is never found to be criminal.
In that case, a guilty verdict on conspiracy only would sidestep the crucial question of whether the American people have any legitimate purpose in examining the use of campaign funds at all. And before you simply laugh off the question, think about this trial in a larger context. What would we have lost if none of what he did was considered a crime? After all, the story came out through the media, and it sparked public out rage that ended his campaign. So it was the media that did that, not campaign laws. Moreover, the three women involved — the late Mrs. Edwards, Rielle Hunter, the mistress and Rachel Mellon, the campaign contributor — all have possibly valid claims against Edwards, which could still result in legal action. But that would be up to them, wouldn’t it? (although that is no longer possible in the case of Mrs. Edwards).
Whatever the verdict, it cannot be denied that the people who clearly benefit from this trial are prosecutors who will use it to self-promote themselves for political advantage. I see that as a greater loss to democracy than anything John Edwards is accused of.