The Federal Election Commission, which regulates campaign spending, does not get much paperwork on candidates’ mistresses. According to the federal prosecutors who indicted John Edwards on Friday, however, the former senator should have been sending his mistress’s hotel bills to the FEC.
That is the most peculiar idea in a very peculiar indictment. It appears on the second to last page, under the charge of making “false statements” to the government, one of six counts Edwards faces.
The theory here is that gifts from Edwards’s supporters to his mistress were essentially donations to his campaign. And that they should have been counted by the campaign. Since they were not, prosecutors are accusing Edwards of filing false campaign reports with the FEC.
“Those reports failed to disclose hundreds of thousands of dollars in contributions from [donors to Edwards’s mistress],” reads the last line of the indictment. All the other counts against Edwards rest on the same theory. (He is accused of conspiring to receive, and actually receiving, campaign contributions as personal gifts under the table.)
So the prosecution has to get from the evidence of spending cash to hide an affair (which happened and is generally legal), to proving that campaign donations were made to hide an affair (which did not happen, at least in the literal or traditional sense of the term). It’s a reach.
This is a “novel claim,” according to George Washington law professor Jonathan Turley, who voiced support for Bill Clinton’s impeachment and is not exactly known to be soft on political corruption. Turley could not find a single “actual federal case” supporting the prosecution’s theory. Election law expert Melanie Sloan, who runs the anti-corruption group Citizens for Ethics and Responsibility in Washington, agreed that “no court has ever interpreted the definition of campaign contribution this broadly.” Turley adds that the defense can argue “this was not an effort to hide money from the FEC but to hide an affair from Edwards’ wife—a classic motivation.”
In any event, without guidance from previous cases, the text of the Federal Election Campaign Act will likely be key.
The law essentially states that gifts for a candidate’s personal expenses do not count if they would have been made irrespective of the candidate’s running for office.
So if Edwards can show that the payments were made regardless of his choice to run—or maybe before or after he ran—then the gifts would not count towards the law’s contribution limits. That logic would undermine all the counts against him. But things get even weirder.
To make this “novel” case stick, the prosecution is proposing that hiding Edwards’s mistress was a core mission of his presidential campaign. “A centerpiece of Edwards’ candidacy was his public image as a devoted family man,” states the indictment’s first allegation. It continues, “the communication strategy developed by Edwards’ campaign stressed the importance of publicizing, among other things, ‘that [his] family comes first.’”