TODAY's Savannah Guthrie and NBC's political director, Chuck Todd, debate the possibility of the Justice Department seeking a retrial in the John Edwards case and whether a political comeback is likely for the former presidential hopeful.
By Hampton Dellinger, Special to NBC News
ANALYSIS
By not losing on any of the six felony counts for which he was being tried, John Edwards won the biggest victory of his political and legal life on Thursday. A mistrial on five counts and an acquittal on one resulted in a clear -- if not complete -- legal vindication and a likely fatal setback for federal prosecutors seeking to convict the former U.S. senator and 2004 Democratic vice presidential nominee for allegedly violating the Federal Election Campaign Act.
Arguably the most famous American lawyer since Clarence Darrow to face a criminal trial, Edwards may well see the inside of a courtroom again, but as a still-licensed attorney rather than as a criminal defendant facing retrial.
Having followed the investigation and prosecution since its inception in 2008, having attended pre-trial hearings in 2011 and having witnessed the entire 2012 trial, I offer the following seven takeaways on what happened, why, and what’s coming:
The government’s case can only get worse. The trial that just ended represented prosecutors’ best opportunity to obtain a conviction. The U.S. Department of Justice’s failure to prevail on a single count had nothing to do with the quality of the lawyers involved. David V. Harbach, from DoJ’s Public Integrity Section in Washington, D.C., and Robert J. Higdon, with the U.S. Attorney’s office in Raleigh, N.C., both did a masterful job.
 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.
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Harbach and Higdon knew the law and the facts. They were prepared and skilled in their direct and cross examinations. Their closing arguments were powerful, indeed eloquent. They clearly earned the respect of presiding U.S. District Court Judge Catherine Eagles and virtually every important evidentiary ruling went in their favor. And yet they still came up short. Moreover, it is likely the government’s key witness -- former Edwards aide turned Edwards accuser Andrew Young -- would do even worse in a second trial where he could be cross-examined not only about statements in his sex scandal tell-all, “The Politician,” but also his days of first trial testimony.
Even if prosecutors could obtain a conviction, would it survive on appeal? What was easily overlooked in the daily theatrics of the trial -- and even without Edwards or his mistress, Rielle Hunter, taking the stand, there was courtroom drama by the barrelful – was how vulnerable any conviction of Edwards would be to reversal on appeal.
The U.S. Court of Appeals for the Fourth Circuit, and then likely the U.S. Supreme Court, could question whether there was sufficient evidence of Edwards’s criminal intent in a case where the government had to prove beyond a reasonable doubt a “knowing and willful” violation of FECA. Plus, the correctness of the trial judge’s ruling that “the government does not have to prove that the sole or only purpose of the money [to cover up the affair] was to influence the election” would be scrutinized on review.
TODAY: Rielle Hunter writes tell-all book
And, as the Citizens United decision epitomizes, federal judges and justices are now extremely skeptical of campaign-related spending restraints in the absence of actual or likely political corruption. The lack of any evidence of a quid pro quo in the Edwards’s case, would have brought the First Amendment implications of the prosecution into the foreground on appeal, along with a host of other credible grounds for a conviction reversal.
John Edwards may be many bad things, but he’s no Rod Blagojevich. Disconcertingly youthful hair aside, comparing Edwards to the former Illinois governor now in federal prison after being retried on political corruption charges in 2011 isn’t fair. First, Blagojevich’s initial trial resulted in a conviction on one count. Edwards of course was just acquitted on the sole count where the jury reached unanimity.
After more than four weeks of testimony and nine days of deliberations, jurors in the John Edwards trial were able to reach consensus on only one of six counts, finding him not guilty of receiving campaign contributions from a wealthy heiress. NBC's Lisa Myers reports.
More important, Blagojevich was accused of engaging in classic quid pro quo political corruption – essentially offering an incredibly valuable official act (appointment to a U.S. Senate seat) in exchange for support for his re-election campaign. As noted above, In Edwards’s case there was no allegation – none – of a quid pro quo. One of the affair cover-up funders was Rachel “Bunny” Mellon. A near centenarian at the time of her payments to Andrew Young and his wife, Cheri, (only a fraction of were passed along to Hunter), her ambassador appointment days were surely over. The other funder, Fred Baron, had no designs on Attorney General or other high office as far as we know. Neither sought an earmark or any other official act.
This would have been a very different case if it wasn’t the first of its kind. Having assisted with political corruption investigations and efforts to uphold campaign finance restrictions during my years in the North Carolina Attorney General’s office, I naturally side with “clean campaign” types, some (but not all) of whom supported the Edwards prosecution. But what supporters of the government’s case generally failed to acknowledge was the lack of any clear legal precedents in favor of indicting and trying Edwards, something I pointed out months ago.
Full trial coverage from NBC News and msnbc.com
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Former Democratic presidential candidate John Edwards has faced public and private challenges throughout his life and career.
Politicians – even deeply flawed ones like John Edwards – deserve to know what the rules are before they are indicted for breaking them. As one critic of the case told me recently: it’s one thing to ask jurors to throw the book at a defendant, it’s another to ask them to write it first.
Left hand (DoJ) meet right (FEC). While the prosecution was above reproach in terms of courtroom conduct, the absence of a finding by the Federal Election Commission of even a civil violation related to Edwards’ conduct was striking. As discussed in a prior post, DoJ’s typical practice has been to only bring criminal charges in situations where the FEC saw wrongdoing at some level; before a criminal case is brought, “There must be no doubt that the commission considers that the underlying conduct presents a FECA offense,” the Department wrote in 2009.
The Edwards jury got a glimpse into the FEC’s satisfaction with the Edwards campaign filings, and even that small view may well have been decisive. While the FEC is a very different agency than DoJ, the less aligned the two are on campaign finance probes the more likely Edwards-like trial losses will continue to occur.
Making an oft- maligned profession look good, part 1. Lawyers are often derided, but it wasn’t only the prosecutors who acquitted the profession well. The defense team – D.C.-based Abbe Lowell, aided by North Carolinians Allison Van Laningham and Alan Duncan -- was similarly stellar. Maybe even more important than the skillful advocacy was the degree of civility and professionalism displayed by attorneys on both sides, both to their co-counsel and to their adversaries. The stakes in this case were sky high for the defense and the prosecution: Edwards’ liberty on one side, the ability of the DoJ’s Public Integrity section to obtain a conviction in a high profile trial on the other. And yet the battling advocates were almost unfailingly courteous and respectful to each other. It’s the kind of courtroom decorum lawyers should exhibit every time but too often don’t.
Making an oft-maligned profession look good, part 2. Another frequently poked-fun-at group -- the mainstream media – also acquitted itself well at the Edwards trial, save for one unfortunate allegation (“the flirting juror”), which was later retracted. I was particularly struck by an effort to ensure an accurate record of the proceedings that began almost immediately. Despite all the competitive pressures to be the first media member to race out of the courtroom and proclaim the latest trial twist, reporters and producers (print, radio and TV) would immediately circle up at each break and compare notes with each other, all in effort to ensure that witness’ testimony, lawyers’ arguments, and the judge’s rulings were reported as close to verbatim and 100 percent correct as possible. Because the trial was not televised, it was only the assembled press that could provide a picture of what transpired. The picture of media competitors collaborating to make sure everyone got the story right is one I’ll never forget.
I’m a lawyer first but I enjoyed assisting with the reporting and analyzing of the Edwards trial. It was an honor to assist NBC, MSNBC and of course msnbc.com with coverage of the case. Above all, thanks to you the reader for taking the time to consider my take.
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