I sometimes get calls from lawyers out of the blue who get involved in an election law case for the first time. They ask me if I’d be interested in serving as an expert witness in a case, and usually they want me to testify as to what the law is. In those circumstances, I typically explain that a judge is not going to want to hear from me as an “expert” as to what the law is. It is the judge’s job to figure out the law. I sometimes end up helping out in these cases as co-counsel or a consultant, rather than as an election expert.
I was reflecting on that when I read the Politico piece noting that the prosecution in the Edwards case was shopping around for former FEC Commissioners to testify as experts in the Edwards prosecution that the money from Mellon and Baron to help Edwards hide his affair and child must have been treated under federal law as a campaign contribution.
That is, the ex-commissioners’ job would not be to testify as to what the law is. It would be to testify that the law obviously applied under the facts of the Edwards case. Presumably this testimony would go to show either that Edwards knew he was taking illegal campaign contributions or that he was making himself “willfully blind” to what was obvious to everyone. (An ELB reader pointed out to me that the Supreme Court’s decision last week in Global-Tech contains a strong endorsement of the idea of willful blindness as a substitute for specific intent on certain facts: “The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”)
As I noted in my Slate piece, it is quite damaging that former commissioner Sandstrom refused to sign on with the prosecution because the claim was too murky, and that former Commissioner Scott Thomas has signed on with the Edwards team to say that the law doesn’t cover this (and not only did not obviously cover these payments). This means it would be very hard for the prosecution to prove that Edwards had the requisite mental state (purpose, knowledge or willful blindness) to satisfy a criminal conviction. After all, if reasonable commissioners line up on the other side, how clear could the law be, and how could Edwards mental state be proven?
I take Rick Pildes to be arguing that we don’t even get to the question of subjective motivations because objectively speaking the law does not cover the Mellon/Barron payments as contributions. As I’ve thought about it more, I think the objective point is a really tough question.
Mike Dorf said the money from Baron and Mellon had to be a contribution, arguing from the statutory definition of contribution in part 8(a) of 2 U.S.C. s 431 “it is nearly inconceivable that the money for hiding the Hunter affair was not ‘for the purpose of influencing’ the 2008 Presidential primary.” Mike says he doesn’t see any exception to the definition of contribution that seems to apply here, but admits he’s not an election law specialist and could be missing something.
Rick reaches the opposite conclusion about the meaning of the statute because “the money involved here was not a substitute for money the campaign itself might otherwise have spent.” If the campaign could not have spent money on hiding his affair, Rick argues, then the money could not be a campaign contribution. Rick’s right that the campaign could not have paid the hush money because it would be a “personal use,” and as Ben Smith notes that did create something of a Catch-22 for Edwards. But on reflection I’m not sure Rick’s right on this point. If I give a $1 million to a Senator I want to curry favor with, and I know she’s going to use it to buy a yacht, probably that prosecution is going to go forward without a problem for making an excessive contribution even though the campaign could not use campaign funds to buy a yacht.
But I think there’s another aspect of the campaign finance law that supports Rick’s second point: that the law is too vague to be applied for the first time in this way in a criminal case without violating Edwards’ due process rights. The FEC regulation interpreting the personal use prohibition includes the following:
(6) Third party payments. Notwithstanding that the use of funds for a particular expense would be a personal use under this section, payment of that expense by any person other than the candidate or the campaign committee shall be a contribution under subpart B of part 100 to the candidate unless the payment would have been made irrespective of the candidacy.
This is the “irrespective of the candidacy” language the government alluded to in the indictment.
If the objective question is whether these payments would have been made irrespective of the candidacy, who knows the answer to that? Dorf doesn’t believe it, but it seems more plausible to me. Perhaps they were thinking of helping Edwards’ reputation generally, so that he could pursue his anti-poverty agenda.
But for the prosecution to succeed, it seems that answering the objective question is not enough. There remains the subjective question, which depends on Edwards state of mind. Did he think these funds were contributions, which would not have been given to him except for the fact that he was a candidate?
So we are back where we started: the law is murky and the facts are murky, and it is going to be very hard to prove in a criminal prosecution beyond a reasonable doubt that Edwards willfully violated clear law.