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Five big questions as the John Edwards trial starts

Hampton Dellinger, an election law expert reporting for msnbc.com, and Melanie Sloan, executive director of Citizens for Responsibility & Ethics in Washington, go over the details of the John Edwards trial.

ANALYSIS

Updated at 5:21 p.m. ET: After months of pretrial hearings and weeks of jury selection, the trial of John Edwards really started Monday. The jury pool was winnowed from 42 to 16 (12 jurors and four alternates); in the afternoon came the opening statements.


Hampton Dellinger

Hampton Dellinger, a litigation partner with Robinson Bradshaw & Hinson of Charlotte and Chapel Hill, N.C., is former deputy attorney general of North Carolina and has taught election law at Duke University Law School. In 2008, he sought the Democratic nomination for lieutenant governor of North Carolina.


I've tried to answer as many questions as possible in trial previews for The Atlantic and for msnbc.com. But here are five key questions that remain unresolved and that could determine the trial's outcome:

Who's in charge?
You've heard of "blended families"? This case features two "blended trial teams." Edwards has churned through nearly a dozen lawyers but has settled finally on the threesome of Washington-based Abbe Lowell and North Carolina lawyers Alan Duncan and Allison Van Laningham. The latter two joined Team Edwards just a month ago, but they know well the key fact witnesses (Edwards, his mistress, Rielle Hunter, and political aide-turned-legal nemesis Andrew Young), having represented Hunter in her civil lawsuit against Young over possession of the infamous "sex tape." Lowell has led Edwards' defense team since August. The eleventh-hour addition of Duncan and Van Laningham seems to have gone smoothly, but the test will come when the jury is in the box. How much of a role will Lowell (and Edwards) let the local lawyers play? (I predict a big one, particularly for Van Laningham.)

Trial of John Edwards over mistress funds is set to start

The prosecution trial team has been more stable, but it is also a Washington-North Carolina mix. Two lawyers are from the Public Integrity Section of the Justice Department in Washington, and the third, Robert Higdon, is with the U.S. attorney's office in Raleigh, N.C. Combining "Main Justice" and "Main Street" federal prosecutors proved disastrous in the Ted Stevens case. Public Integrity needs this prosecution to be scandal-free. (I predict it will be.)

Chris Keane/Reuters

John Edwards arrives with daughter Cate Edwards at the federal courthouse in Greensboro, N.C., on Monday morning.

Beyond the two legal teams, there is the larger issue of the extent to which U.S. District Judge Catherine Eagles will rein in or let loose the lawyers in terms of both the pace and the substance of their work.

Will the former Federal Election Commission members get to testify?
Two former FEC chairmen, Robert Lenhard and Scott E. Thomas, are prepared to testify that Edwards' conduct does not violate civil law, much less criminal. Eagles has so far denied prosecution efforts to bar their testimony but has instructed Edwards' counsel "not to address [FEC] expert testimony during opening statements." Whether the commissioners ultimately testify, and to what extent they are permitted to opine, may ultimately be more important than whether Hunter or Edwards take the stand.

Does the jury focus more on the facts or the law? On what this case is or what this case isn't?
There are many ways to view the Edwards case, but here are the two most salient to my mind:

The prosecution will want the jury to focus on the facts and what the case is about. The defense hopes the jury fixates on the law and what the case is not about.

Here's why. Edwards' personal conduct (cheating on his cancer-stricken wife and lying about it) is abhorrent. And hundreds of thousands of dollars in "off the books" activity in the orbit of a political candidate should be troubling to all but the most laissez faire observer. The more the jury focuses on the facts of what did happen, the more likely is a conviction. Conversely, the strength of Edwards' defense lies in the lack of legal precedent (i.e., law) for a criminal prosecution based on the pattern of facts present here and how his actions differ from the typical political corruption cases (i.e., quid pro quos, excessive and unreported donations that pay for TV ads, get-out-the-vote or other direct campaign support, or lobbyist-sponsored lining of a politician's pockets). The more Edwards is able to introduce evidence (through the former campaign regulators or otherwise) about the legal novelty of the charges against him, the better his chances.

Slideshow: John Edwards' public life

How well will the jury understand the case?
The Edwards case is no ordinary whodunit. When a death is ruled a murder, there's no doubt someone committed a crime. The jury's role is then limited to deciding whether or not the defendant is the perpetrator. In the Edwards trial, the jury must first decide whether key facts are established (What did Edwards do? What did he know?). Then it must determine whether those facts constitute criminal activity. I've worked on campaign finance lawsuits as an attorney, taught election law as a professor and followed the Edwards investigation and prosecution closely from the outset. Maybe I'm alone in finding the issues of law and fact implicated by this case complex (and at times confusing), but I doubt it.

What will the jury instructions and the verdict form consist of?
Because of the case's complexity and its likely duration of a month or longer, the jury instructions and the verdict form that will close the trial could be of paramount importance. So far, they have received little attention. But as the trial winds down, expect heated arguments (oral and in written, and outside the presence of the jury) between the prosecution and the defense over the precise wording of each.

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