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Ordered Liberty

by Andrew C. McCarthy

Edwards Verdict

June 1st, 2012 - 2:23 pm

Let’s just stipulate that I’ve offered the “John Edwards is a disgusting human being” intro that appears to be obligatory. Nonetheless, count me delighted with the mistrial in his trial for purported campaign finance violations.

After nine days’ deliberation, a federal jury in North Carolina declined to convict Edwards on all six felony charges, acquitting him outright on one and hanging on the rest. The result is a stinging defeat for the Justice Department, which has not decided whether to retry him on the latter five counts. Here’s hoping Attorney General Holder decides to leave well enough — or, better, overkill enough — alone. The case reminds us of two important things.

First, the American justice system is rightfully the envy of the world. It produces plenty of errors (most of which get corrected by the system itself) and it is surely guilty of sundry excesses. But it is unparalleled in accomplishing its main purpose: ensuring a fair trial even for loathsome characters. Edwards is rightfully held in low esteem in the court of public opinion. In a judicial court, however, this rarely matters. Jurors drawn from the community tend to be extraordinarily conscientious. They heed the judge’s legal instructions, particularly that cases must be decided based solely on evidence, not fear or favor.

Second, campaign finance law is of dubious constitutional validity. Its underlying premise is that the kind of speech that is most important to a functioning free society, political speech, should be limited — and limited at the whim of the last people who should be given that dangerous power, incumbent office holders who have the most to gain from suppressing commentary. We should not tolerate such laws at all. Those who champion them would not endorse, say, a limitation on pornographic expression based on the political class’s judgment about how much a citizen should be permitted to buy or sell.

A corollary to that is this: If such laws inhibiting speech are going to be permitted, that should only be done by the people’s accountable representatives in Congress, who must be crystal clear about what is being prohibited. Free speech is too critical a right to permit speech prohibitions to be expanded by the extravagant theories of government prosecutors or elastic rulings of politically insulated judges.

The money involved in the Edwards case was not related to traditional campaign expenditures. It was intended to hide an extramarital affair, not amplify the candidate’s political platform and positions. If Congress thinks the public wants such outliers captured in the law’s sweep, then it can amend the law to make that clear. Nothing less ought to be satisfactory in light of the obvious nexus between campaign contributions and speech, as well as our law’s principle of lenity, which dictates that criminal statutes be written plainly enough to put a person or ordinary intelligence on notice about what has been prohibited.

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