The prosecution is said to rely in part on an FEC advisory opinion from 2000 that said an individual could not give money to a candidate for “personal use” if it was donated in “recognition and support of that person’s desire to run for office.” But two years later, the commissioners dismissed a case against a Representative who used a loan from a lobbyist to pay for a divorce attorney.
“There are a number of gray areas in campaign finance law that require the FEC to issue an advisory opinion,” said Rick Hasen, law professor at University of California, Irvine. “And it’s quite problematic to use a gray area for a criminal prosecution.”
Edwards’ legal team already has experts steeped in the intricacies of campaign finance law at the ready. In addition to Edwards’ trial lawyers in North Carolina and D.C., former FEC Chairman Scott Thomas and Pat Fiori, the commission’s former counsel for regulations and legislation, are acting as expert witness and campaign counsel.
Thomas has already told federal prosecutors that after 30 years at the FEC he does not believe there are any prior cases similar to Edwards’ that conclude the conduct violated campaign finance law. Thomas, as a commissioner, signed the advisory opinion on which the government has built its case and said its application to the Edwards matter is “novel and misguided.”
“I believe that the theory on which the government intends to base its prosecution is without precedent in federal election law, and that the Federal Election Commission would not support a finding that the conduct at issue constituted a civil violation much less warranted a criminal prosecution,” Thomas said in a statement released to the media.
Edwards likely made a tempting target for the Justice Department, given the nature of the allegations and the immobilization within the FEC, which often splits 3-3 on matters under its consideration. An investigation into civil wrongdoing cannot commence without the approval of the commissioners. Unlike a Justice Department investigation, which relies on interviews of key witnesses, an FEC inquiry typically relies on letters sent from lawyer to lawyer.
“The differences are night and day,” said Caplin & Drysdale attorney and former FEC Chairman Trevor Potter.
Though criminal prosecutors have more tools at their disposal, there are drawbacks to using criminal statutes to bring cases against Edwards or former Sen. John Ensign (R-Nev.), whose case — also involving payments to his mistress — was recently referred to the Justice Department by the Senate Ethics Committee, due in part to allegations of campaign finance violations.
“As a civil case, I think the case would be stronger against Edwards, in a criminal case, you need to meet the standard of proof, which is beyond a reasonable doubt,” Hasen said. “And the fact that they have to find FEC commissioners to testify as to what the law is means the law is murky.”