Campaign Contribution or Gift: John Edwards Has the Better Hand
The charges in the John Edwards Indictment are all premised on the assumption that the monies from Fred Baron and Bunny Mellon that ended up financing Rielle Hunter and Andrew Young's excellent adventures were campaign contributions rather than gifts. If they weren't campaign contributions, there's no crime.
There's no case law on point. There are no prior federal prosecutions alleging a candidate mislabeled a campaign contribution as a gift, thereby violating federal election law.
What the Government told Edwards' attorneys and election law experts prior to the Indictment was that there was a FEC civil advisory opinion in 2000 (the Harvey opinion) that supported its position. Team Edwards responded that opinion was distinguishable from his situation, and pointed out another advisory opinion (the Moran opinion) in 2002, closer to his situation which concluded the donated money was not a campaign contribution. The Wall St. Journal has more here, and also check out election law expert Rick Hasen at Slate.
Neither opinion is directly on point in Edwards' case. Both are distinguishable. And newer FEC advisory opinions clearly state the opinions are not only advisory, but that they are not to be relied on in cases with distinguishable facts. [More...]
The FEC issued an opinion in another case (the Fleischman Opinion) just last week. At the end, it states:
This response constitutes an advisory opinion concerning the application of the Act and Commission regulations to the specific transaction or activity set forth in your request, See 2 U.S.C. 437f The Commission emphasizes that, if there is a change in any of the facts or assumptions presented, and such facts or assumptions are material to a conclusion presented in this advisory opinion, then the requestor may not rely on that conclusion as support for its proposed activity.
Any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which this advisory opinion is rendered may rely on this advisory opinion. See 2 U.S.C. 437f©(l)(B). Please note the analysis or
conclusions in this advisory opinion may be affected by subsequent developments in the law including, but not limited to, statutes, regulations, advisory opinions, and case law. (my emphasis)
DOJ is relying not on prior case law interpreting statutes pertaining to campaign contributions, but on an FEC opinion (Harvey) that is clearly not "indistinguishable in all its material aspects" from Edwards' case. According to the express language and caution included in recent FEC opinions, its opinions cannot be relied on when considering cases with distinguishing facts. I think a court would have a difficult time even relying on the Harvey opinion as guidance in Edwards' case -- let alone basing a jury instruction on it.
What's left in the Government's arsenal to convince a jury these were campaign contributions? Nothing that rises to proof beyond a reasonable doubt, especially when Edwards has two experts, Former FEC Chairman Scott Thomas and former FEC legal counsel Pat Fiori, in his corner and both say they are not. The Government might produce an expert with a contrary opinion, but in a criminal case, the test is not who the jury believes more, as it is in a civil case. It's proof beyond a reasonable doubt, and dueling experts in a criminal case (unless one side's experts are patently incredible) means reasonable doubt.
If Baron's and Mellon's funds weren't campaign contributions, the Government can't even win the false statement charge, which alleges Edwards concealed "hundreds of thousands of dollars in campaign contributions" received from Baron and Mellon from the John Edwards for President Committee, causing the Committee to file a false report.
Case over. The Government has not disputed Greg Craig's assertion that there is no case law supporting the Government's theory in any reported civil or criminal case. Since the facts in the FEC's Harvey opinion are distinguishable from those in Edwards' case, Harvey cannot be relied on to establish that Mellon and Baron's donations should have been treated as campaign contributions -- a necessary predicate to finding John Edwards is guilty of anything in this Indictment.
This case seems destined to be a colossal waste of two years of prosecutorial resources.
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