The corruption trial of former presidential candidate John Edwards is entering its third week, and so far, there's no sign of his former mistress, Rielle Hunter. NBC's Lisa Myers reports.
As prosecutors head into the final week of their case, the issue of John Edwards’ mindset looms large.
During week two of the trial, Cheri Young, wife of former Edwards’ aide Andrew Young, along with former Edwards staffers, described a reckless, feckless Edwards who -- thanks to his extramarital affair with campaign videographer Rielle Hunter -- imperiled his campaign, destroyed his marriage and nearly ruined another, that of the Youngs. Time and again, the testimony brought to mind one phrase: What was he thinking?!
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.
But the key remaining question is not where Edwards’ head was from a political or marital perspective, but whether prosecutors can present the jury with evidence suggesting he “knowingly and willfully” violated the Federal Election Campaign Act (FECA). While many familiar criminal statutes are based on strict liability (drunken driving laws, for example), the U.S. Supreme Court has ruled that the concept that “ignorance of the law is no excuse” is a “legal cliché” which demands too little of prosecutors seeking to enforce statutes requiring proof of a “knowing” violation.
Laws such as FECA contain the additional element of a “willful” violation, requiring even more for a conviction as prosecutors acknowledged in their proposed jury instructions:
“’Willfully’ means to act with knowledge that one’s course of conduct is unlawful and with the intent to do something the law forbids, in other words, with the bad purpose to disobey or to disregard the law.” A 2008 letter from the Justice Department offers a similar understanding of the high bar set by Congress when lawmakers (cognizant of being a target group for FECA prosecutions) included the word “willful” in FECA’s criminal provisions: “Please be assured that we intend to vigorously pursue instances where individuals or organizations knowingly and intentionally violate the clear commands of this important statute.”
Of course the defense hopes that once the focus is on whether Edwards willfully violated the statute, the inquiry will be not just on the law’s wording (which is quite broad) but on how federal regulators have enforced the law (never criminally in a case factually similar to Edwards’). How presiding Judge Catherine Eagles resolves the question of “how FECA reads vs. how it’s been enforced” when confronted with it directly – either at the point the defense seeks to call former Federal Election Commissioners to the stand or during jury instructions – will be a critical moment in the case.
For now, it’s ironic that the two witnesses last week who seemed the least perturbed by the Edwards-Hunter affair (Rachel Mellon’s interior designer Bryan Huffman and her lawyer Alex Forger) offered the best possibility of evidence that the government could argue helps meet its “willfulness” burden. Huffman was prepared to testify that heiress Rachel “Bunny” Mellon’s support of Edwards, including the money ultimately benefitting Hunter (as well as the Youngs), stemmed from her desire to “make a president.” Judge Eagles ruled the statement to be inadmissible hearsay.
However, jurors did get to hear lawyer Forger repeat a statement from a former Edwards attorney: “John has said, yes, he acknowledges, now, that this (Mellon’s money) was for his benefit.” While this admission (like the one from Mellon via Huffman) may only get the government so far – it doesn’t suggest that Edwards (or Mellon) thought such a “benefit” ran afoul of FECA – it is a start for prosecutors as they seek to surmount their greatest hurdle: showing John Edwards didn’t just “lose his mind” but possessed a criminal one as well.