The Federal Election Commission, which regulates campaign spending, does not get much paperwork on candidates’ mistresses. According to the federal prosecutors who indicted John Edwards on Friday, however, the former senator should have been sending his mistress’s hotel bills to the FEC.

That is the most peculiar idea in a very peculiar indictment. It appears on the second to last page, under the charge of making “false statements” to the government, one of six counts Edwards faces. 

The theory here is that gifts from Edwards’s supporters to his mistress were essentially donations to his campaign. And that they should have been counted by the campaign. Since they were not, prosecutors are accusing Edwards of filing false campaign reports with the FEC.

“Those reports failed to disclose hundreds of thousands of dollars in contributions from [donors to Edwards’s mistress],” reads the last line of the indictment.  All the other counts against Edwards rest on the same theory. (He is accused of conspiring to receive, and actually receiving, campaign contributions as personal gifts under the table.)

So the prosecution has to get from the evidence of spending cash to hide an affair (which happened and is generally legal), to proving that campaign donations were made to hide an affair (which did not happen, at least in the literal or traditional sense of the term). It’s a reach.

This is a “novel claim,” according to George Washington law professor Jonathan Turley, who voiced support for Bill Clinton’s impeachment and is not exactly known to be soft on political corruption. Turley could not find a single “actual federal case” supporting the prosecution’s theory. Election law expert Melanie Sloan, who runs the anti-corruption group Citizens for Ethics and Responsibility in Washington, agreed that “no court has ever interpreted the definition of campaign contribution this broadly.” Turley adds that the defense can argue “this was not an effort to hide money from the FEC but to hide an affair from Edwards’ wife—a classic motivation.”

In any event, without guidance from previous cases, the text of the Federal Election Campaign Act will likely be key.

The law essentially states that gifts for a candidate’s personal expenses do not count if they would have been made irrespective of the candidate’s running for office.

So if Edwards can show that the payments were made regardless of his choice to run—or maybe before or after he ran—then the gifts would not count towards the law’s contribution limits. That logic would undermine all the counts against him. But things get even weirder.

To make this “novel” case stick, the prosecution is proposing that hiding Edwards’s mistress was a core mission of his presidential campaign. “A centerpiece of Edwards’ candidacy was his public image as a devoted family man,” states the indictment’s first allegation. It continues, “the communication strategy developed by Edwards’ campaign stressed the importance of publicizing, among other things, ‘that [his] family comes first.’”

This line is not provided to embarrass the defendant, who disappointed many on this score but to convert the personal to political. If being a “family man” was a campaign “centerpiece,” then preserving that image could be, supposedly, a campaign activity.

“Edwards knew that public revelation of the affair and pregnancy would destroy his candidacy by [undermining his] presentation of himself as a family man,” the indictment alleges, “and by forcing his campaign to divert personnel and resources away from other campaign activities to respond to criticism and media scrutiny regarding the affair and pregnancy.”

Here is where there may be repercussions beyond the participants in U.S. v. Johnny Reid Edwards. This particular case may turn on whether the personal payments should have been categorized as campaign donations. For all federal candidates, however, the FEC already bars spending official campaign funds on personal expenses.

The FEC explains the rule in a recent document providing advice for federal candidates:

Using campaign funds for personal use is prohibited, even when a federal candidate or officeholder is no longer seeking election to federal office.

 

The FEC document continues to explain that its “regulations list some expenses that are automatically considered to be personal use,” such as the candidate’s personal rent and “salary payments to the candidate’s family.”  For other, closer calls on spending, the FEC uses a similar approach to its test for gifts. It’s worth quoting in full:

In determining whether expenses are for personal use or are legitimate campaign/officeholder expenses, the Commission uses the “Irrespective Test.” Personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder. 11 CFR 113.1(g). More simply put, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies [emphasis added].

It seems obvious that money for a candidate’s child is an expense that exists “even in the absence of the candidacy.” (Lots of non-candidates pay alimony.)

So Edwards’s lawyers may argue that not only was there no obligation to report the private gifts but the prosecutors actually have the law backwards. It would have been a violation of campaign finance law if Edwards did what the prosecution says he failed to do—file and spend the money for his family as official campaign expenditures.

Now, if Edwards were convicted under this theory, would that be a precedent for treating payments to mistresses as legitimate campaign expenses? Would a candidate who made his personal fiscal responsibility a centerpiece of his campaign be able to use campaign funds to pay off personal debt?

It feels like the right answer must be no. But stretching campaign bans this far could lead to some very unsettling outcomes.

The “ambiguity of where to draw the line between personal and campaign expenditures” is the biggest problem for the prosecution’s theory, argues Professor Turley. “Just because hiding the affair would be of benefit to Edwards as a candidate as well as a spouse,” he told The Nation, “does not necessarily mean the dual benefit converts a cover-up of an affair into a campaign violation.” He added, “The uncertainty over where to draw the lines makes me uncomfortable with the criminal charge.”

No matter how one feels about John Edwards’s conduct, based on what is currently known, these charges should make a lot of people very uncomfortable.

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Photo credit: Marc Nozell