This month, jury selection began for John Edwards' trial in Greensboro, N.C. He's charged with accepting and concealing nearly $1 million in illegal campaign contributions during the 2008 Democratic presidential race.
It's an extraordinary moment. Usually, allegations of campaign-finance shenanigans are handled as civil matters by the bipartisan appointees on the Federal Election Commission. Unfortunately, the agency's most significant decisions have often loosened the bonds of campaign law.
But Edwards has been charged in a federal criminal proceeding with "knowingly and willfully" breaking the law. That means a jury of regular folks, not Beltway partisans and lawyers beholden to the system, will determine his guilt or innocence. "Regular folks" — a term Edwards used for those he would champion if he were president — may not be as lenient as the commission.
In legal briefs, prosecutors have contended that Edwards accepted funds well beyond the limit of $2,300 from two donors to hide his extramarital affair with Rielle Hunter "and thereby preserve the viability of his campaign to be president and prevent the diversion of campaign resources to the task of controlling the damage that public revelation of the affair would cause."
The defense has maintained that "there are obvious non-campaign-related reasons for friends of Mr. Edwards to want to shield the affair to protect his family and to assist Ms. Hunter during her pregnancy." Edwards did not view the payments as contributions because they were "not unambiguously campaign-related"; so he did not "willfully" violate the law.
According to two former Democratic FEC commissioners retained by the defense, that rationale would have passed muster with the commission. It's hardly surprising. When the FEC has confronted the fundamental issue of donations that have both electoral and non-electoral purposes, its tendency has been to downplay electoral purposes and open loopholes for more giving. This was long true for political party "soft money" and is so today for donations to "host committees" for party conventions.
Yet a jury is likely to think differently. Applying common sense to the facts of the case, it may conclude instead that a major purpose of the Hunter payments was to assist Edwards' candidacy and that Edwards knew he was breaking the law.
Most of the relevant information in the case is already on the public record or uncontested in the pretrial briefs.
Rachel "Bunny" Mellon and Fred Baron, who provided the money, were not simply Edwards' friends, but the financial kingpins of his presidential campaign. During the same period in 2007-08 when heiress Mellon supplied $725,000 that would go toward dealing with the Hunter affair, she was also Edwards' most generous political donor, sending $3.4 million to the Alliance for New America, a pro-Edwards predecessor of today's "super-PACs." The previous year, Mellon had provided $250,000 to a similar Edwards group, the One America Committee.
Stirred by an April 2007 scandal over Edwards' listing of a $400 haircut in his official campaign-finance report, Mellon wrote to campaign aide Andrew Young: "From now on, all haircuts etc., that are necessary and important for his campaign — please send the bills to me. ... It is a way to help our friend without government restrictions." After Hunter revealed her pregnancy to Edwards, Mellon indeed agreed to circuitously provide funds to Young, though she was unaware the money would go to Hunter's expenses.
The rest of the funds for Hunter — $200,000 — came from trial lawyer Baron. Baron was national finance chair — fund-raiser in chief — for Edwards' 2008 presidential campaign, as he had been in 2004. He also provided the campaign with a jet plane.
In December 2007, only two weeks before the Iowa caucuses, the National Enquirer revealed Hunter's pregnancy. Edwards persuaded Young to issue a public statement (drafted by a Baron-connected lawyer) falsely admitting paternity. Baron's jet then whisked Hunter and the Young family away to luxurious accommodations in Florida, California, and Colorado. (In 2008, Baron told a reporter that he had "independently" helped "two friends and former colleagues rebuild their lives when harassment by supermarket tabloids made it impossible for them to conduct a normal life.")
At the trial, Young is expected to tell jurors about Baron's and Edwards' election motives for assisting Hunter. Although the defense will attack Young's credibility, his central role in managing the attempted cover-up, unveiled in his pre-indictment tell-all, The Politician, should provide his account with a measure of authority. And others associated with the Edwards campaign are set to corroborate portions of his testimony.
The jurors may also factor in their real-world experience of other candidates defending themselves against sexual allegations during campaigns. Think Bill Clinton and Herman Cain. Had Cain's top donors spent lavishly to keep one of his female accusers quiet, and his veteran aide had delivered the money, would most people regard that as a personal or a campaign matter?
It is telling that, in one brief, Edwards' lawyers suggested that the court cannot allow "a conviction based on a jury's retrospective second-guessing" regarding the purpose of the payments. To prevent this, they have proposed instructing the jury that it cannot find Edwards guilty unless the payments were "susceptible of no reasonable interpretation other than to elect a candidate."
Whatever the verdict, the Edwards trial will highlight the need to remedy weak FEC campaign-law enforcement, which now only encourages campaigns to push the envelope. There are long-standing proposals by campaign-finance groups to revamp the commission. For these to move forward, however, leaders would have to lead. Sadly, no presidential candidate and no congressional heavyweight, Democratic or Republican, is even talking about this.
Stephen R. Weissman was associate director for policy at the Campaign Finance Institute from 2002 to 2009. This article originally appeared in the Los Angeles Times.