On Monday night on Fox, Tucker Carlson and I mulled the Stormy Daniels storm, in the course of which I mentioned the philandering John Edwards' prosecution for breaches of campaign-finance law. Here's what I wrote on that subject for my Happy Warrior column in the May 14th 2012 issue of National Review. It bears re-reading, I think, for several reasons. The pithiest summation of what's at issue is from my late compatriot George Jonas. When the Royal Canadian Mounted Police were discovered to be punitively burning down the barns of Quebec separatists, the then Prime Minister Pierre Trudeau sneered that, if people were so upset about illegal barn-burning, maybe he'd make barn-burning legal. As George remarked, Trudeau didn't seem to grasp that barn-burning isn't wrong because it's illegal, it's illegal because it's wrong. To extend the thought, knocking up your mistress isn't wrong because it's a campaign-finance infraction - and it isn't a campaign-finance infraction even though it's wrong. Law is not merely downstream from morality; they compete for the same space. And, if you have too much law, you shrink the moral sphere. In contemporary America, where everything is a crime, it's hardly surprising that the moral space is so put upon. At any rate, here's what I wrote six years ago:
To get the obvious out of the way: I loathe John Edwards. I loathe him as a slick ambulance-chasing trial lawyer, as a preening poseur of a presidential candidate, as a multi-bazillionaire "advocate" for "the poor," as a third-rate sob sister peddling faux-Dickensian guff about entirely mythical "coatless girls" lying in their beds shivering at night because their father was laid off at the mill. I loathe everything about him except his angled nape, which I must concede, having been pressed up against it in a campaign crush in New Hampshire, is a thing of beauty, and well worth every penny of whatever Rachel Mellon paid for it.
And that's before we get to the affair, and the denial, followed by the admission of adultery but only while his wife's cancer was in remission, and then the admission of non-remission adultery but certainly not leading to any love child, and finally the admission of a non-remission adulterous love child, and the realization that the sainted, stricken Elizabeth was less the victim than a co-strategist in the massive Edwardsian fraud that was his 2008 presidential campaign, and a full participating partner in an even creepier political marriage than the Clintons'.
Oh, and while we're at it, I loathe the American media, whose peculiarly contemptible combination of partisanship, snobbery, and self-neutering of any basic journalistic instinct might easily have led (were it not for the candidacy of Barack Obama) to this preening metrosexual slug becoming president of the United States.
All that said, his trial is a disgrace.
It should be a national scandal, except that no one this side of the old Politburo is as ruthless as the Democrats at airbrushing former eminences out of the group shot. So, in a critical election season, the Edwards prosecution will be buried at the foot of page 43, and never make the network news.
What's wrong with it? 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 431â€“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.
When they do, the prosecution has too many advantages. With corporate fraud, the tradition is that, in order to skewer the CEO, the government buys the CFO. Having deemed a politician's "family image" to be in effect a business venture, the feds identified Andrew Young as Edwards's CFO.
Young is a confessed liar whose loyalty to his boss was such that he claimed to be the father of Edwards's baby. But it's remarkable how the offer of federal immunity can wither the devotion of even the most stout-hearted of retainers. Having bought its witnesses, the Justice Department files multiple counts, generally ensuring that jurors wishing to appear sophisticated can dismiss the majority of them while convicting on enough to send the accused to jail for longer than the average European serial killer, and for a crime no one can explain to anybody who isn't a federal prosecutor.
John Edwards lives with the two youngest children of his official government-regulated "family image." Emma Claire is thirteen and Jack is eleven. They have no mother. For some reason the United States regards it as a priority to see that they be more comprehensively orphaned.
The great English jurist Lord Moulton considered the most important space in society to be the "middle land" between law and absolute freedom, in which the individual has to be "trusted to obey self-imposed law." That is, a gentleman should not lie for political advantage about the paternity of his child. When he does so, it is a poor reflection on him and on those who colluded with him â€” the Democratic party and the media. What it is not is a crime. As bad as Edwards's behavior is, the Justice Department's is worse. The urge to ensnare in legalisms every aspect of human existence â€” including John Edwards's rutting â€” will consume American liberty.
~from my Happy Warrior column, May 14th 2012
Edwards was tried on six counts. He was acquitted on one, and on the other five the jury deadlocked, resulting in a mistrial. If we are to take the Department of Justice's reasoning seriously - 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 431â€“455 of the U.S. Code - Trump the much-married p*ssy-grabber cannot by definition fall under their purview.
~I'll be on the radio tomorrow, Wednesday, with the great John Oakley, live on Toronto's AM640 at 5pm Eastern - and back here to answer more questions from Mark Steyn Club members later in the week. For more on The Mark Steyn Club, please click here - and don't forget our limited-time Gift Membership.