Prosecutorial discretion, some have suggested, is an on-off switch. In other words, prosecutors choose whether or not to charge someone. But that’s not always how it works.
Prosecutors often are choosing what to charge someone with. Was a particular killing murder, or manslaughter? Was the defendant reckless or merely negligent? Is there enough evidence to prove a conspiracy, or merely an uncoordinated act? These technical questions are at the heart of prosecutorial discretion, which is, in part, about protecting the coherence and majesty of the law. At a minimum, it’s about not bringing the legal system into disrepute.
Which brings me to the ongoing prosecution of former Sen. John Edwards (D-N.C.) for alleged violations of campaign finance laws.
It’s customary to add an alleged to any sentence describing a not-yet-convicted defendant. Usually, it’s a not-very-convincing nod to the constitutional presumption of innocence. But here, there really is a doubt as to whether Edwards violated campaign finance laws.
Legal academics from across the spectrum – including those, like Richard Hasen at University of California, Irvine, who support more and stricter campaign finance regulations – have gone on the record opposing Edwards’ prosecution. Many of us without tenure agree that the government’s theory in the case either overreaches or is unconstitutional. Indeed, there is a strong chance that any conviction will be overturned on appeal.
I understand the desire to make an example of Edwards. The fact that a man with his capacity for deceit and betrayal was allowed anywhere near the presidency is a national failing.
But by prosecuting him for a supposed violation of campaign finance laws, the Department of Justice has further confused what is and is not campaign activity. The inevitable result, as both judges and practitioners will attest, is the chilling of legal political activity. And that poses grave First Amendment concerns.
Could this have been avoided?
My sense is yes. National Review, in an April 19 editorial, pointed to a number of alternative legal theories: bribery, blackmail, fraud, money laundering, tax evasion.
Had the Justice Department chosen any one of these theories, it could have punished Edwards without risking injury to the First Amendment and protected political activity. And I would argue that a conviction for bribery or money laundering would have carried a greater stigma, and been more of a deterrent, than a conviction under campaign finance laws that only a handful of Americans understand. But that would have required an exercise in prosecutorial discretion.
Allen Dickerson is Legal Director at the Center for Competitive Politics, a nonprofit organization that advocates for Americans' First Amendment rights of speech, assembly, and petition. He was previously a litigation associate with the New York office of a leading commercial law firm. Allen is a graduate of Yale College and New York University School of Law.