Free John Edwards?

Assuming his guilt of all the criminal charges leveled at Edwards, he is indeed an even more unsavory person than I always believed. Since I never liked him at all, this is no faint condemnation. Nevertheless, I find it horrendous that he faces up to 30 years in prison for these dirty deeds.

Consider the charges: Conspiracy, four counts of receiving illegal campaign contributions, and one count of making false statements and secretly spending nearly a million dollars to cover up his extramarital affair and preserve a facade as a family man.

He does not face punishment for the affair in and of itself. Violating a marital vow, while in many cases a contract violation, is not a criminal offense. But covering it up with campaign money is considered criminal.

Indeed, this would seem to be the charge most closely approximating an actual crime. The reasoning might be that he is defrauding the public, or, more to the point, scamming the campaign donors by using the money in an illicit manner.

But this is not the government’s reasoning. Instead, ultimately he is in trouble for transgressions against the government’s regulations concerning campaign finance, and all of these regulations are, as far as I’m concerned, devoid of all constitutional or moral legitimacy. There should be no restrictions on how candidates raise money, putting aside violence (indeed, campaign donations are never as morally tainted as tax-financed subsidies, which some folks want to see replace election financing altogether).

Do candidates use campaign money immorally? Of course. Almost all candidates for federal office probably use almost all of it immorally—to make promises that are not theirs to make, promises to spend other people’s money once they have power; to lie and cover up their records; to slander their opponents. The whole political process is a moral wasteland. A million dollars spent covering up Edwards’s infidelity is only a particularly obvious example of this degeneracy.

Indeed, incumbents use not just campaign money but tax money to defend their reputations all the time, covering up crimes even worse than an affair—war crimes, for example. When they do it simply to preserve their image, it seems odd that they be prosecuted. When Bill Clinton used his political influence as President of the United States to obscure his sexual misbehavior, some wanted to see him thrown out of office; few thought he should go to prison for that offense alone.

Even if someone is being victimized here—and it seems the donors and Mrs. Edwards would be the clearest direct victims—the wrongdoing is between him and them. It cannot possibly warrant forcing him to spend many years in a prison cell.

Then there are these other offenses: Making false statements and conspiracy. These are derivative offenses and should not exist in a free society. Conspiracy is generally a nonsense criminal justice tool to rack up charges and imprison people when an actual criminal violation cannot be demonstrated. If “X” is not legitimately a crime, neither should “Conspiracy to Commit X” be a crime.

For national politicians, campaign lies and extramarital affairs are hardly unusual acts. If Edwards is imprisoned it will give people the false sense that our federal campaign laws effectively root out corruption and stem illicit behavior. Yet the whole enterprise is saturated with filth and prevarication, and no campaign laws, especially ones as constitutionally dubious as the ones that have ensnared Edwards, can ever fix that. Few will defend this scapegoat of the federal regulatory state, and he is indeed one we might not want in our personal lives, much less in power. But he doesn’t belong in a jail cell. At least not for this.

Anthony Gregory is a former Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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