WASHINGTON — As far as I'm concerned, John Edwards is pond scum. Last I checked, that's not a crime.
We can stipulate, I think, to the pond scum part. The man cheated on his wife - and defended himself by noting that her cancer was in remission at the time. Even after the affair was disclosed, Edwards lied about whether he fathered a daughter with the woman. He had a loyal aide falsely claim paternity and turned to wealthy friends to support the woman.
I could go on, but, really, is there anyone left in America with a shred of respect for Edwards? Anyone?
Didn't think so.
But being a jerk, even on an Edwardsian scale, is not a felony, which is what federal prosecutors have been pursuing for more than two years. The original theory of the case was that Edwards misused campaign funds to support his mistress, Rielle Hunter. That would have been a serious matter, except the theory fizzled.
Some prosecutors would have stopped there. The U.S. attorney for the Eastern District of North Carolina, George Holding, did not.
The current case against Edwards, the one for which he is on the verge of being indicted, rests on a novel and expansive reading of what constitutes a campaign contribution.
The crux of the case is that during the 2008 campaign, Edwards, directly or indirectly, approached two of his biggest financial backers, the late trial lawyer Fred Baron and heiress Rachel "Bunny" Mellon, to solicit financial support for Hunter. Baron and Mellon, motivated at least in part by a desire to fuel Edwards' presidential ambitions, anted up, to the tune of more than $750,000.
Was that a contribution to the Edwards campaign, in which case it would be illegal because it was not reported as such and exceeded the allowable contribution limits? That's a stretch.
The campaign finance law defines a contribution as "any gift ... loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for federal office." But as the Supreme Court has noted, that expansive definition must have some limits. If I loan my daughter money so she can volunteer for a political campaign, that's not an illegal contribution to the campaign. If a friend of a candidate offers to underwrite her addict son's stay in rehab during the campaign, that is not an illegal contribution, even if it has the benefit of keeping the errant youth out of the public eye.
In a 2000 advisory opinion, the Federal Election Commission concluded that a Washington, D.C., business executive could not give $10,000 checks to favored candidates to compensate them for "forgoing opportunities in the private sector." The commissioners concluded that "payment by a third person of a candidate's personal expenses during the campaign would be considered a contribution by the third person ... to that candidate, unless the payment would be made irrespective of the candidacy." But in the Edwards situation, the money did not go to the candidate himself and it came from people with whom he had prior relationships.
Even if you were to conclude that the payments to Hunter constituted impermissible campaign contributions, there is the more serious question of whether criminal prosecution is the appropriate remedy. A single advisory opinion hardly seems like adequate notice that funneling money to Hunter could land Edwards in prison.
I am bipartisanly squeamish about the criminalization of politics; I have been as critical of a (Democratic) Texas district attorney's prosecution of former House Majority Leader Tom DeLay on money-laundering charges as I am about the threatened Edwards indictment.
I don't like questioning prosecutors' motives, but the interrelationships in the Edwards case are unsettling.
Unlike most U.S. attorneys in the Obama administration, Holding is a Republican holdover. Named to the job by George W. Bush, he was an aide to the late Republican Sen. Jesse Helms and a law clerk for federal Judge Terrence Boyle, another former Helms aide whose elevation to the appeals court was blocked by ... one John Edwards, back when he was a senator.
The larger campaign finance system is in shambles, with gushers of undisclosed money poised to pour into the 2012 campaign. Meanwhile, the Justice Department spends its energies - two years and counting - going after Edwards? This use of resources is, I am astonished to say, enough to make me feel some sympathy for him.