Raleigh, NC (CNN) - The John Edwards case as we know it may hinge on a single question: when and whether a gift to a candidate for federal office can be considered a political contribution.
A source with knowledge of the behind the scenes legal maneuvering in the case of former U.S. Senator and vice presidential candidate John Edwards has told CNN that the government is basing its investigation of alleged campaign finance law violations on an 11 year-old advisory opinion issued by the Federal Election Commission, which asserted that a gift to a candidate for federal office would be considered a campaign contribution.
The decision, dated June 14, 2000 is known as "Harvey" and is named after a man named Phillip Harvey who sought guidance from the FEC because he wanted to give a gift of money to an individual who was preparing to run for federal office, but didn't want the money to be used for campaign purposes.
The reason why this opinion is so important is because Edwards received hundreds of thousands of dollars –possibly in excess of one million dollars– from two contributors; 100 year old philanthropist Rachel “Bunny” Mellon of Virginia and the late attorney Fred Baron.
Edwards’ attorneys have asserted that the money was not and should not be considered political contributions. So if it wasn't a political contribution, what was it? The most widely reported theory - which the Edwards team has publicly neither confirmed nor denied - is that the money was given to keep Edwards' wife Elizabeth from finding out that her husband had been having an affair and even fathered a child with his mistress Rielle Hunter.
The source with knowledge of the inner workings of the case and other legal observers have noted that the advisory opinion is shaky ground to base a federal prosecution on because it is not a black letter federal statute, and apparently has not been cited in any important case law, or legal authority behind any important court decisions.
Federal prosecutors in Raleigh have declined to comment on the case because it is a matter relating to a grand jury.
Last week, sources said prosecutors in Raleigh have been given authority to seek an indictment in the case.
Since then the question has been whether Edwards and his legal team would work with prosecutors on a plea agreement, or if they were prepared to fight it out in court. The Edwards team has declined to comment.