John Edwards and Scooter Libby
Those who bemoan the Edwards prosecution should look back to the Bush administration.


Fred Thompson

The “I may be an SOB, but that does not mean I am a criminal” defense is getting worn out lately. First it was Blago in Chicago, and now John Edwards is giving it a try. The problem for them is that often, the jury concludes that the defendant is both.

However, I am sure that Edwards feels that if anybody can pull this off before a jury, he can. It might well work for him, in part because he does not seem to suffer the debilitating effects of embarrassment or shame that would hamper most people under similar circumstances. He admits what he has to, when he has to, and moves on.

We served together in the U.S. Senate, and we met again in July of 2008. We had been invited by a Canadian business group to spend an evening in Nova Scotia and present a point-counterpoint on politics and current events. A few days earlier, the National Enquirer had caught him in the Beverly Hilton Hotel with his mistress and their child. I wondered if John would show up for the event. He not only showed, he strolled in as if he’d spent a relaxing day on the golf course, immaculate as always, with no obvious loss of sleep or care in the world. It caused me to think that there was probably nothing to the Enquirer story.

I thought about this as I watched him stand before the press last week after he was indicted. He looked somber, but hardly any older or stressed than he did that last time I saw him. There he was, unbroken and still confident in his own ability to sway. But they say that your greatest strength often turns out to be your greatest weakness. So he is going to have to work on that remorse thing before he tries it on that North Carolina jury.

However, some analysts think that the case may be dismissed before it gets to a jury. And both Ruth Marcus of the Washington Post and the Post’s editorial page say that the prosecution is overreaching in the Edwards case: that the fact that he is “a cad” does not justify such a prosecution. (Others point out that the U.S. Attorney in charge of the case locally is a Bush-administration holdover.)

The government’s case is built on the theory that the more than $900,000 that two of Edwards’s friends and supporters used to pay his mistress during the 2008 campaign were, in effect, unreported contributions to the Edwards campaign. I can see how one could make that case. Revealing the affair and his mistress’s pregnancy would surely have destroyed his candidacy. But I can also see how one could make the defendant’s case, too. There very well may have been non-political reasons for Edwards and his friends to cover up this mess. Not everything done for a candidate by a friend constitutes a campaign contribution.

The Edwards case is what the law calls a case of first impression. There is no legal precedent as to whether the contributions in question were campaign-related. Often, in a legal situation such as this, the prosecution chooses not to go forward, or at least does not shoot for the maximum possible charge. So is the government justified in spending two years investigating and bringing a felony conspiracy charge instead of going for a Federal Election Commission violation, for example? We’ll see.

But for those who would lament that this indictment would not have happened had Edwards not been in such disfavor, I have two words for them: Scooter Libby.

Edwards earned his disfavor in all of the ugly ways we know too well. Libby’s sin was that he worked for Dick Cheney. At the outset, Libby’s prosecutor was not deterred by the fact that no crime had been committed. The politicians, the media, and the prosecutor all pressed on. Finally, the prosecutor was able to produce a “he said–she said” dispute, and that was enough for a Washington, D.C., jury to conclude that Libby was the one who was lying, even though he had no motive to do so. It was a case that never should have been brought, and would not have been, except for the disdain for the Bush administration that allowed a federal prosecutor to run amuck.

Perhaps the Edwards case is a reminder that when one side thinks it is benefiting from the blurring of the lines between law, politics, and public opinion, they should rest assured — it won’t be long before the shoe is on the other foot.

— Fred Thompson, who represented Tennessee in the U.S. Senate from 1994 to 2003, is an actor, lawyer, and political commentator.