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.
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?