The Edwards Affair: Creative License Versus Prosecutorial Discretion

I am not someone who knows a lot about federal election law, but the whole John Edwards thing seems to extend a theme of aggressive prosecution in the financial "crimes" area (as well the whole tawdry and unpleasant affair).  Here's what a few experts do have to say about the charges against Edwards (from Ari Melber at CBSnews.com, internal links in original): 

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."

It seems that at the DOJ and SEC, among others, there is a growing sense that high-profile convictions are the key, not getting the law right.  On the one hand, I support creative crime fighting and using existing laws to punish wrong-doers.  And, especially in the financial-crimes area, I'd rather see more focus on actually catching cheaters than on passing new laws that usually prove equally ineffective. But in exercising that focus, law enforcement should be using the laws for the intended purpose, not just to see if they can get a conviction. 

Simply, DOJ should not be pursuing Edwards on this.  As near as I can tell, he was covering up his affair, not using the money to run for office. (While this makes him unpleasant and unsavory, it doesn't mean he broke election laws.)  Yes, the funds had the incidental effect of helping to keep alive his campaign (or at least made it less dead), but he would have been covering up the affair either way, and the money does not appear to ever have been given to the campaign.  It was given to him.   

As my colleague Steve Bradford noted last month, insider trading cases are getting similar aggressive treatment, triggering some to speculate that the law law enforcement will "ramp up prosecutorial methods once reserved for mob and terrorism cases."  Foreign Corrupt Practices Act cases are similarly pushing forward aggressively.

I tend to be a rule follower, and I appreciate that some people often abuse their rights and privileges.  I just can't get past a sense that some prosecutors have decided that they are "closers" who need to find ways to win at all costs, which, to me, misses the point.  

The folks at Cliffsnotes.com explain "prosecutorial discretion" this way: 

As an elected or appointed official, the prosecutor is the most powerful official in the criminal justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. In jurisdictions where the death penalty is in force, the prosecutor literally decides who should live and who should die by virtue of the charging decision.  

In my mind, prosecutorial discretion should be exercised a little more carefully, especially on the "how to allocate prosecutorial resources" part.

--JPF