Originally published in Official Artur Davis
I have a suspicion that the loathing toward John Edwards in Democratic circles is a kind of remorse toward a path that was almost taken. Another two days of campaigning in Iowa in 2004 and he might well have won there instead of coming in a close second; Iowa was in his reach again four years later and could have fallen his way had the late Obama surge been just a little weaker, or if the Jeremiah Wright tapes had more timely surfaced. Politics is made of those hair-length turns of fate; but there was more to it than some near misses with Edwards. For tantalizing moments in his career, he seemed unstoppable—a preternaturally smooth orator, but also a walking narrative of middle class aspiration who breathed passion into the old liberal idea that the powerful are lording over the powerless. The man who collapsed in a sex scandal came quite close to seducing a party to make him its savior.
Many Democrats know just how close, and in a complex way, they hate Edwards for it. The anger is compounded by the fact that part of his lie involved a marriage to a woman who died valiantly; and then there is the pathological depth of the lies, and the determined way he repeated them.
But the most legitimate disdain and righteous anger is not a calculus that should drive prosecutorial discretion. If it were, the investment banks who jiggered their books to disguise their leveraged, insecure portfolios, and who helped wreck an economy, would have long faced their day in the criminal dock. The lending institutions who subsidized loans with no documentation, and whose underlings fudged signatures, would have surely faced fraud charges. The executives who told Congress that Fannie and Freddie steered clear of subprime, the senior Goldman management team whose testimony about their securitization of risk has been so undercut by the facts, would all have been hauled off on perjury charges. The fact that the sordid trail just described has not generated one prosecution is defended, and excused, on the ground that the power of indictment is not for morally clear but gray legal areas.
It’s a rock-solid enough proposition, the notion that sin and egregious ethical dealing are not inevitably against the law; it is theocracies that run in the other direction. But what are we to make of the Edwards case? There is no claim that Edwards committed the typical offense of obstructing an investigation into his misconduct or that he led others to lie to a grand jury or even to the Federal Election Commission. The offense at issue is that his campaign kept excessive, above the legal limits contributions off the books—a serious sounding offense—but essentially what happens whenever a campaign disputes the nature of an expenditure. In this case, the defense contends that roughly $925,000 in funds from both a lawyer friend and a longtime Edwards donor to subsidize and silence his mistress don’t qualify as campaign expenses, and that the gaping hole that exists in federal election definitions makes it impossible to prove them wrong. The defense further reminds, accurately enough, that disputes over reportable expenditures are commonplace (although usually in the context of third party advertising expenses) and that the remedy is almost always a civil fine.
In an ordinary case about misuse of money, the sources of the money would be expected to be critical witnesses; that is impossible here, as the lawyer friend is deceased and the long time donor is 101 years old, infirm, and incapable of testifying. In most all criminal cases, the motivations and consistency of key witnesses is a threshold test of whether a case should proceed: in United States v. Edwards, the pivotal witness, a former Edwards staffer, has tainted his testimony with a movie deal and his published account of the episode seems fraught with errors and contradictions. It also seems that the same staffer received at least some of the cash in question himself. Finally, it is exceedingly rare that a witness knee deep in the charged conspiracy, and who was the conduit for the allegedly dirty money, would escape uncharged with an immunity deal as opposed to being made to plead guilty to some crime. Yet, that is precisely the fortuitous spot that Andrew Young, the star witness, finds himself in.
It is hard to escape the impression that corners were cut to get Edwards. It is hard to ignore the uncomfortable fact that much of the case, even its core question of whether Edwards knew the extra money was illegal, requires a choice to believe one discredited man over another, with precious little in the way of corroboration to settle the contest. It is also disconcerting that since the Edwards race, the Supreme Court has flung the door wide open to the kind of unlimited, outsized expenditures that the prosecution contends were illegal and excessive—a development that means that prosecutors are pursuing a crime that today would likely not be criminal.
There is no fault in a prosecutor calculating that a defendant is unsympathetic and will look outrageous to a jury. The trouble is when the outrage and the absence of sympathy seem starker than the contours of the crime and more dependable than the evidence.