John Edwards may face charges. How much trouble is he in?

Former presidential candidate John Edwards allegedly used campaign funds to hide an affair and an illegitimate child. Will politicians ever learn: It's not the crime but the coverup that can land you in jail?

Joshua Lott / Reuters / File
Then-presidential candidate and former Senator John Edwards speaks during a campaign stop at the College of Charleston in Charleston, S.C., on January 25, 2008.

The Justice Department is about to indict former presidential candidate John Edwards on charges that he illegally used campaign donations to cover up an extramarital affair, according to numerous news reports.

Not that long ago, Mr. Edwards was a fresh face of Democratic politics, a self-described son of a mill worker who seemed destined for big things. Now he might be destined for a prison cell. How much trouble is he in?

He’s in a big mess. While most campaign cash violations are dealt with via Federal Election Commission action, willful violations can be a federal crime. Defense lawyers will tell you that facing the prosecutorial might of the Department of Justice is a situation you should avoid at all costs. John Edwards was a famous trial attorney before he turned to politics, so he surely knows the extent of the storm into which he may be about to plunge.

The specifics are this: Edwards had an affair with videographer Rielle Hunter that largely occurred after she was hired to document his campaign. The couple has a daughter together.

Allegedly, Edwards went to extraordinary lengths to conceal his dalliance. He convinced campaign aide Andrew Young to claim that he was the father of Ms. Hunter’s child, according to Mr. Young. Prosecutors claim that he used millions of dollars from two wealthy donors, Rachel “Bunny” Mellon and Fred Baron, to pay for Hunter’s living expenses.

There are two obvious points to be made here.

IT’S NOT THE CRIME. How many times do politicians have to learn this lesson, epitomized by the fall of Richard Nixon? Watergate was a second-rate burglary. It was the cover-up of the Watergate burglary which morphed into a bungled conspiracy and led to Nixon’s resignation.

Edward’s presidential hopes would have ended if his dalliance became public at the time it occurred. That’s true. Wife Elizabeth Edwards, who died of cancer in 2010, surely would have been the source of well-deserved punishment. Both those results would have been embarrassing and painful. But neither would have taken place in the confines of a jail. By trying to conceal his actions Edwards may have made a legally fatal blunder.

That’s doubly true if the allegations concerning his cover-up are true. To convince someone else to claim paternity, while paying for their housing via a secret conduit and continuing to visit the paramour in question, is concealment so tenuous it almost seems Edwards secretly wished to be caught. If you want a cover-up to succeed over a period of time, it has to have as few moving parts as possible. (See “Arnold Schwarzenegger – love child”.)

BUT IT’S NOT OVER. That said, Edwards hasn't been convicted yet – and if he is indicted, his case may be difficult to prosecute. Campaign funding law is vague, and it is hard to track all the money that flows into and out of a politician’s accounts and tie them to particular actions and purposes.

Where does the law draw the line for a legitimate campaign expense? It may be morally wrong to pay hush money to a mistress, but it probably would enhance a candidate’s electoral chances, so why isn’t that a proper use of donor funds?

“That’s one of the problems with campaign finance laws: the categories are inherently slippery,” wrote liberal blogger Mickey Kaus in March.

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