In this case, prosecutors are exploiting a vague, confusing law to criminalize conduct that has not been treated as a crime before. The only good news is that its prosecution is so ill-founded and over the top that it is likely to fail.
Federal prosecutors have a checkered record of late when it comes to high-profile public officials. Former Illinois Gov. Rod Blagojevich, who talked for hours on wiretaps about his sleazy schemes, was convicted on only one of 24 counts in his first trial. His brother was convicted on no counts.
After Alaska Sen. Ted Stevens was convicted in 2008 of taking gifts and lying about them, the judge cleared him because of outrageous prosecutorial misconduct.
In 2009, a former governor of Puerto Rico was acquitted on all nine corruption counts. Last year, the mayor of Ridgefield, N.J., won his case, and a former Jersey City assemblyman got his vindication soon after.
Edwards didn't have to go to trial. He turned down a plea bargain that would have let him keep his law license and serve no more than six months in prison. If convicted on all charges, however, he's likely to get upward of five years. Fighting the government, as usual in criminal cases, carries a huge downside -- which is a way to coerce the innocent to plead guilty.
Edwards, however, is not your usual criminal suspect. He is a first-class trial lawyer who knows a lot about how juries think. He can afford the best defense lawyers around. If he and they believe he can beat the rap, I suspect he will.
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It helps Edwards that the law he allegedly broke is a study in confusion. The Federal Election Commission, which normally handles violations of campaign laws, has given contradictory guidance in the past on cases like this, leaving ample doubt about what's allowed.
Former FEC Chairman Scott Thomas issued a statement saying, "A criminal prosecution of a candidate on these facts would be outside anything I would expect after decades of experience with the campaign finance laws." Karl Sandstrom, a former vice chairman, refused to testify for the prosecution, deeming its case "a stretch."
If the government is split about what the statute allows and prohibits, how is Edwards supposed to know what he may do? How is a jury supposed to send him to prison for guessing wrong?
The case against him is pretty simple. In 2007, while running for president, he solicited more than $900,000 in donations from two rich supporters. He used the money to secretly support his mistress, Rielle Hunter, who later gave birth to his child.
The government insists the funds were campaign contributions intended to "conceal from the public facts that he believed would harm his candidacy." Edwards' lawyers say they were personal gifts that he used for a private, and perfectly legal, purpose: to keep his wife in the dark.
To convict him, prosecutors have to prove that the payments "would have been made irrespective of the candidacy." But it's no reach to think Edwards would have gone to great expense to hide Hunter even if he were not running for president.
Demonstrating "reasonable doubt" about his motives seems eminently plausible.
Melanie Sloan, head of the watchdog group Citizens for Responsibility and Ethics in Washington, issued a statement calling the case against Edwards "strikingly flimsy." Not only that, she said, but "no court has ever interpreted the definition of campaign contribution this broadly."
New York University law professor Richard Pildes writes that "the government has never brought a criminal case involving an expansive notion of 'contribution,' let alone one as expansive as this case involves." Before this indictment, he estimates, 90 percent of election law experts would have assumed this sort of donation was not covered.
The Justice Department has no business trying to imprison someone for violating a law whose meaning is anyone's guess. Civilized government requires giving citizens clear advance notice of what constitutes a crime.
Edwards' conduct was so repellent that he enjoys little sympathy, making his prosecution politically safe. But the rule of law exists to protect sinners as well as saints. He may deserve to rot in hell. Just not in jail.
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