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Regardless of whether the legal theory is correct, the fact that it has previously been prosecuted demonstrates that it is not novel.
I bolded it and everything. That part is absolutely novel. Prosecution for using your own money to pay for this sort of thing is absolutely novel. In fact, can you find an example of criminal culpability for any politician using his own money to pay for any sort of thing (not restricted to the case of hush money) that is in the broad class of "very questionable concerning whether it could be considered a campaign expense"?
As it so happens, such a case exists! Lisa Wilson-Foley hired John Rowland as a campaign advisor in her congressional race, but because she wanted to hide the fact she had done so (due to Rowland's own scandals) she disguised it by having him be employed by her husband's business. So the couple paid him with their own money, but because they tried to disguise it as not being a campaign expenditure, they broke the law.
Now, I grant that hiring a political advisor is a much more central example of a campaign expense than paying for a NDA. But the Lisa-Foley case demonstrates that it is not unprecedented to charge a politician for spending their own money on their own election, and the Edwards case demonstrates that it is not unprecedented to prosecute a NDA payment as a campaign expense. So neither aspect constitutes a novel legal theory.
Nevermind that she used her husband's business, not her own, either. This case really doesn't hit the mark.
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