John Edwards's trial: a cad, or a cad and a felon?

The criminal trial of former presidential candidate John Edwards continues Tuesday in North Carolina. Key prosecution witness Andrew Young, a former aide to Mr. Edwards, resumes testifying as the government attempts to convince jurors that Edwards knew that nearly $1 million in secret cash from rich donors was meant to help hide his pregnant mistress during the 2008 election campaign.

Edwards's defense intends to counter that Mr. Young himself grabbed much of that money to fund his own dream home. It’s true that the former US senator from North Carolina and accomplished trial lawyer fathered a child with a campaign videographer and conspired to hide that fact from his ailing wife, conceded his own lawyers. That’s wrong, but it’s not a federal offense, they argued.

“John Edwards is a man who committed many sins, but no crime,” said defense attorney Allison Van Laningham.

Is Edwards a cad, or a cad and a felon? That’s the decision jurors will make in a trial that’s expected to last six weeks.

Perhaps the central question the 12 men and women will have to consider is this: Was the $1 million from heiress Bunny Mellon and another wealthy donor a campaign contribution? If so, it broke the law – there are strict limits on how much an individual can give a politician, and the amounts involved surpass those limits by several orders of magnitude.

Prosecutors argue that the money was meant to keep the Edwards campaign viable, because Edwards would have quickly been electoral toast if the truth were to come out. Thus the money was a campaign contribution, they say.

However, a number of legal analysts contend that’s overreaching. The definition of a campaign contribution is narrow, they say, and this doesn’t necessarily fit.

“Prosecutors seem to be relying on the vague language that the payments to [mistress Rielle] Hunter were intended to ‘influence’ a campaign. But almost anybody who cares about politics at all does all kinds of things intended to influence campaigns, and they are not subject to campaign finance laws,” writes former Federal Election Commissioner Bradley Smith Tuesday in Politico.

Mr. Smith, a law professor at Capital University Law School in Columbus, Ohio, says that under the Federal Election Campaign Act the usual test as to whether something is a campaign expenditure is whether the obligation would have existed but for the campaign.

In other words, if Edwards hadn’t been running for president, would he have still spent wads of dough to cover up his affair, given that his wife was diagnosed with cancer and that he had other children, plus a reputation to uphold?

A juror might well believe the answer to that would be “yes.” In this legal context even the motives of Edwards and the donors are not really that relevant, argued Richard Pildes, a professor of constitutional law at New York University, in a lengthy analysis of the issue posted on the Election Law Blog last June.

“The money spent here is almost certainly not a ‘contribution’ within the meaning of the election laws, at least for criminal-law purposes. I believe at least nine out of ten election-law experts would have been of that view before this prosecution was announced,” wrote Mr. Pildes.

On the stand on Tuesday, Young testified that Edwards's aides sought help from a number of people to help finance an effort to stash the pregnant Ms. Hunter far from the media-rich environment of the campaign. Young said Edwards had assured him that the contributions were legal.

Young was once the most devoted of Edwards's followers. At the behest of Edwards, Young had even claimed that he was the father of Hunter’s child.

If convicted, Edwards faces up to 30 years in prison and fines of more than $1 million.