Why are we prosecuting John Edwards?

First, there is no crime, if that term is to have any agreed meaning. In Malaysia, the longtime prime minister Dr. Mahathir spent much of the last 15 years battering his political rival, Anwar Ibrahim, with one sodomy trial after another. We’re subtler about these things here. So the feds haven’t charged Edwards with having a mistress or a love child, but with funding his mistress and love child via illegal campaign contributions. In federal justice, they throw the bookkeeping at you, a time-honored American judicial tradition: If you can’t get Al Capone for the Valentine’s Day Massacre, get him for tax evasion. The average citizen seems to have a sneaky admiration for this artful sidestepping, notwithstanding that very few individuals gun down large numbers of people, while millions of us are vulnerable to ever-metastasizing definitions of “mail fraud,” “wire fraud,” and the other catch-alls of federal justice. It’s not the crime that gets you, it’s the cover letter.

Thus, the DoJ case rests on the novel legal theory that, as the “centerpiece of Edwards’s candidacy was his public image as a devoted family man,” his “family image” and the costs of maintaining it are a political matter regulated under Title 2, Sections 431–455 of the U.S. Code. At least Section 377B of the Malaysian penal code is about sodomy, and nothing but. If the Federal Election Campaign Act of 1971 now covers “family image,” what doesn’t it extend to? So John Edwards “broke” a “law” that neither he nor anyone else knew existed. Which it didn’t, until he came along.

Edwards now faces 30 years in jail, for the crime of getting a couple of pals to pay for his baby’s diapers. For purposes of comparison, Anders Breivik murdered 77 people and is looking at 21 years in jail, the maximum sentence permitted under Norwegian law. So Mr. Breivik could be out of jail a decade before Senator Edwards. Scandinavian law is certainly too lenient (I am in favor of hanging Breivik), but U.S. law is stark staring nuts. And there are very few Anders Breiviks, while there are untold numbers on whom the caprices of U.S. justice can and do descend.

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