"As I noted in my Slate piece, it is quite damaging that former commissioner Sandstrom refused to sign on with the prosecution because the claim was too murky, and that former Commissioner Scott Thomas has signed on with the Edwards team to say that the law doesn’t cover this (and not only did not obviously cover these payments). This means it would be very hard for the prosecution to prove that Edwards had the requisite mental state (purpose, knowledge or willful blindness) to satisfy a criminal conviction. After all, if reasonable commissioners line up on the other side, how clear could the law be, and how could Edwards mental state be proven?
I take Rick Pildes to be arguing that we don’t even get to the question of subjective motivations because objectively speaking the law does not cover the Mellon/Barron payments as contributions. As I’ve thought about it more, I think the objective point is a really tough question."
More on the John Edwards Case: Experts, Objective Facts, Subjective Motivations, Dorf, Pildes, and “Willful Blindness”
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