David Frum

A Lawyer Dissents on Edwards

06.01.12 8:51 PM ET

A lawyer friend points a daunting legal problem with the Edwards prosecution:

Having done alot of election/campaign finance law, and from the perspective of having a clean disclosure law, I believe it would have been (and should have been) illegal for Edwards's campaign to pay hush-money to his mistress, because campaigns are only supposed to pay for "electioneering" kinds of expenses, not "personal" ones. This would appear to have been the view of the FEC, which accepted Edwards's financial reports despite knowing of the indictment. But if the campaign could not legally have made these payments, how can the government charge that the payments MUST have been imputed to the campaign?

Had Edwards been convicted on the theory that these expenses made him look better because they hid what a ____ he is and therefore made him more electable, where do we stop? Must every Senator's facelift be a campaign expense? What if Mrs. Mellon had given the money to a prestigious university and by some coincidence the university had given Edwards a prime time commencement speech?

If campaign finance disclosure is to work, you need capable and honest treasurers. But treasurers need to know what is and what is not a campaign expense. I would flat out advise any client not to touch being a treasurer with a ten foot pole had Edwards been convicted. What is the treasurer to do -- ask the candidate if he's done anything naughty every reporting period? Or tell the candidate to dress anything up as a consulting payment -- itself a fraud -- and look the other way?

The problem here is that when you're dealing with crimes based on technicalities, the technicalities have to be clear or you're giving prosecutors license to persecute. There may well have been a technical crime committed on the tax side, but unfortunately not by Edwards. For better of for worse, adultery isn't a criminal offense and never has been on the federal level.