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:

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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.  

 

• Full trial coverage on msnbc.com
• Full transcripts of closing arguments (.pdf)
• Analysis by Hampton Dellinger

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.  

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

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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ANALYSIS

It’s official: Jurors in the John Edwards trial do not think they are deciding a simple case.

If all 12 of the North Carolinians judging the former U.S. senator thought it was clear Edwards broke the law when billionaire buddies Fred Baron and Rachel “Bunny” Mellon supported his mistress and his former political-aide-turned-faux-father of the Edwards-Rielle Hunter baby, they would not be starting a seventh day of deliberations. And it is not just the duration of deliberations that suggests uncertainty; during nearly every courtroom entrance for the past week, jurors have worn furrowed brows and grim visages. They have made specific requests for dozen of exhibits and readily accepted the presiding judge’s offer to have every exhibit – hundreds in all -- brought into the jury room. 

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Even if the final answer is “guilty,” the time and trouble the jurors are taking to render a verdict suggests that one or more of them will describe the decision of whether to find Edwards guilty of violating the Federal Election Campaign Act (FECA) as a close call.  Which raises the question: Should a jury be making such a call at all, given that the two arms of the federal government that are expert in campaign finance violations – the Federal Election Commission and the Justice Department’s Public Integrity Section – appear to disagree on whether Edwards’ conduct was unlawful?

 

 

• Full trial coverage on msnbc.com
• Full transcripts of closing arguments (.pdf)
• Analysis by Hampton Dellinger

The FEC-DoJ split was highlighted in motions filed just before testimony ended. The defense requested the opportunity to play for the jury a tape recording of the FEC’s July 2011 audit hearing where it closed the books on John Edwards for President, Inc. despite the DoJ’s pending indictment of the candidate. The six FEC Commissioners voted unanimously in favor of closing the books after Commissioner Donald McGahn stated that “I can say it. (The Mellon and Baron money) it’s  … my view it’s not reportable (as a campaign contribution).”

Edwards also sought to introduce a 2009 Justice Department letter stating that, as a general rule, DoJ would only bring criminal charges in limited situations: “The application of the law to the facts of a matter must at the very least be clear, and there must be no doubt that the (Federal Election) commission considers that the underlying conduct presents a FECA offense.”

Government attorneys opposed Edwards’ motions and Judge Catherine Eagles ruled in prosecutors’ favor.  Eagles also denied defense efforts to present two former FEC chairs prepared to testify that in their expert opinions, Edwards’s conduct did not rise to the level of a civil infraction, much less criminal wrongdoing.

Even without the former FEC chairs and the 2011 FEC audit hearing tape, the continuing deliberations are evidence that the “application of the law to the facts” of the Edwards matter is not as far as the jury is concerned.  And because the arguments over what evidence would be admitted took place outside the jury’s presence, jurors don’t know what they don’t know about the FEC’s and DoJ’s varying views. 

Full trial coverage from NBC News and msnbc.com

Meanwhile, critics of the prosecution continue to suggest that if the federal government is going to throw the book at someone, particularly when the criminal statute at issue requires a “knowing and willful” violation, it seems more fair to hit the person in the face rather than in the back of the head. 

Of course, the only view that matters is that of the jury. The verdict, and any descriptions jurors are willing to give on how they reached it, will offer a measure of finality (at least pending the outcome of an appeal if the decision is “guilty”) if not clarity.

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ANALYSIS: As the jurors in the federal criminal trial of John Edwards begin their second day of deliberations on Monday, we don't know whether the outcome of their work will be a conviction, an acquittal or a mistrial. But based on trial observation and the attorneys' closing arguments, the keys that might motivate any of the three most likely outcomes are surprising:

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If Edwards is convicted
If John Edwards goes to prison, credit could go to two unexpected sources: Cheri Young (the wife of former Edwards' political aide Andrew Young) and the quintessentially "old school" evidence of handwritten notes.

As I wrote at the end of week one, there can be little doubt that Andrew Young's credibility as a witness was in tatters by the end of defense questioning. Yet for all the success Edwards attorney Abbe Lowell had turning Young into the apparent culprit, Young's wife, Cheri, masterfully turned the tables — and the trial's attention — back on the defendant. By the end of her testimony it seemed that the hundreds of thousands of dollars the Youngs kept rather than pass along to Edwards' mistress, Rielle Hunter, was a pittance, and that no amount of money could make up for what the former Democratic senator put Cheri Young and her family through. Without her star turn, it is hard to imagine the government's case getting back on track after Andrew Young's evisceration on cross-examination.

The other key for the government if prosecutors prevail could be two handwritten notes, one each from the two funders of the Edwards-Hunter sex affair cover-up.

• Full trial coverage on msnbc.com
• Full transcripts of closing arguments (.pdf)
• Analysis by Hampton Dellinger

In April 2007, heiress Rachel "Bunny" Mellon wrote to Andrew Young on the occasion of news reports on John Edwards infamous $400 haircut: "(F)rom now on, all haircuts, etc., that are necessary and important for his campaign — please send the bills to me," she wrote. "….It is a way to help our friend (John Edwards) without government restrictions."

A few months later, wealthy trial lawyer Fred Baron included a barely legible cover note in an envelope with $1,000 in cash intended for the Youngs and Hunter: "Old Chinese saying: use cash, not credit cards!" it read.

Prosecutors highlighted the notes in the indictment, their case and closing arguments. And based on their requests for evidence during the initial day of deliberations, it appears jurors are focusing on the notes as well. If the jury convicts, these notes — rather than more modern communication modes such as email, texting or even video or phone recordings — may be the basis for the conclusion that Mellon, Baron and, above all, Edwards had the requisite criminal intent to sustain a conviction.

If Edwards is acquitted
If John Edwards walks out of the L. Richardson Preyer Federal Courthouse in Greensboro, N.C., a free man, the two witnesses he should thank most may be a surprise: his protégé-turned-nemesis Andrew Young and the 2008 financial officer for his campaign, Laura Haggard.

• Full list of prosecution exhibits
• Full list of defense exhibits

While Young identified Edwards as the orchestrator of the cover-up, he also testified that Edwards repeatedly assured him the arrangement (money from Mellon and Baron to the Youngs and Hunter) was perfectly legal. While many observers expected Young to claim that Edwards told him the cover-up was likely (or certainly) legally improper but an absolute political necessity, he said Edwards said the opposite.

Full trial coverage from NBC News and msnbc.com

Analysis by Hampton Dellinger

More than anything else, it was Young's testimony about Edwards's exculpatory statements that may have persuaded Edwards not to testify. And Young's words made it more difficult for the government to prove Edwards possessed the requisite criminal intent to "knowingly and willfully" violate the Federal Election Campaign Act. Lead prosecutor David Harbach confirmed how helpful Young's testimony about Edwards was to the defense in an aside in his closing argument:

"By the way," he said, "if all Mr. Young was doing was sticking to the government's story, as Mr. Lowell suggested that he was, … don't you think he could have done a lot better job of that? He said that Mr. Edwards told him that he had checked with lawyers and the checks were legal. That's what Mr. Young's sworn testimony was. That is a fascinating thing to say by someone who had just tricked the government to immunizing him by being willing to say anything that the government wants in order to sink the defendant. That doesn't fit."

Edwards' statements — presented by Young — professing a belief that support for a mistress could not constitute a campaign violation were buttressed by Haggard. The earnest staffer, who oversaw the filing of the campaign's finance reports, was given a small opening by presiding Judge Catherine Eagles to testify that she did not believe the Baron-Bunny monies were contributions.

In closing arguments, Lowell returned repeatedly to Haggard's opinion, as well as former FEC Chair Scott Thomas' testimony. Thomas addressed the topic of whether a third party payment to another third party for personal expenses associated with an affair could be covered by FECA, noting that it had never arisen in his decades of dealing with the statute. The upshot: How could John Edwards have thought money for his mistress could be illegal when not even experts such as Haggard and Thomas thought it was covered by federal campaign law?

If Edwards is convicted, but the verdict reversed
Finally, there is the possibility that the jury finds Edwards guilty, but a reviewing court (either the U.S. Court of Appeals for the Fourth Circuit or the U.S. Supreme Court) throws out his conviction.

While prosecutors and the presiding trial judge appear untroubled by the novelty of the government's case, it may provoke greater interest on appeal. Lowell has made much of a Fourth Circuit decision, North Carolina Right to Life v. Leake, which he believes strongly favors his client's claim that if Baron and Mellon sought to aid Edwards as a friend as well as a candidate, their "mistress money" cannot be considered a campaign donation.

Judge Eagles' jury instructions define this pivotal issue differently: "The government does not have to prove that the sole or only purpose of the money was to influence the election. … The government does not have to prove that Ms. Mellon (or Mr. Baron) had any intent or knowledge as to exactly how the money would be spent, or that the money was in fact spent on the campaign." Eagles also limited testimony from Haggard and Thomas, and denied defense efforts to introduce evidence that the FEC concluded that the failure to report the Mellon-Baron money as campaign contributions did not violate commission rules.

If a conviction is reversed, an unexpected but pivotal factor may be the defense's decision not to call Hunter, Edwards or Edwards's daughter, Cate, to the stand.

Here's why: The less evidence there is at his trial, the more the trial judge's rulings will stand out on appeal. By calling so few witnesses, and by not testifying himself, Edwards limited the trial record in a very deliberate way — one that emphasizes the impact of Eagles' rulings and makes it less likely a higher court can conclude any error was "harmless" if it finds mistakes. Still, if Edwards is found guilty and the conviction is upheld on appeal, the regret he will likely take to his grave is not taking the stand.

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Updated at 6:55 p.m. ET: John Edwards' defense lawyers said Tuesday they might call both Edwards and Rielle Hunter, his mistress and the mother of his youngest daughter, to the stand Wednesday in his campaign finance corruption trial.

Both have been on the defense's potential witness list from the beginning, as has Edwards' eldest daughter, Cate Edwards Upham. But speculation had swirled around the trial in Greensboro, N.C., that it might be too risky for the defense to call any of them to the stand.

Their names were on an updated list of possible witnesses that Edwards' lawyers gave the judge late Tuesday. Their appearance on the list doesn't mean they'll definitely testify; crafty defense lawyers have been known to list possible witnesses whom they have no intention of calling to throw prosecutors off the trail.

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Tuesday, a large crowd gathered at the federal courthouse anticipating Upham's testimony, but a parade of other witnesses pushed her appearance on the stand back a day. She is likely to be one of the first witnesses called Wednesday.

Upham is expected to say that despite the lies and betrayal, her father still cared for her mother, Elizabeth, and was trying to protect the family.

"Taking the stand, talking about her father, how much family mattered — I think it could be powerful evidence for John Edwards," said Hampton Dellinger, a legal analyst for NBC News and msnbc.com.

The focus instead was on the money trail Tuesday, as a longtime friend and former campaign aide testified that Edwards was surprised to learn that billionaire oil heiress "Rachel "Bunny" Mellon had given almost $750,000 to help conceal the affair with Hunter.

• Full trial coverage on msnbc.com
• Analysis by Hampton Dellinger

Edwards, a former U.S. senator from North Carolina who was the 2004 Democratic vice presidential nominee, is on trial in U.S. District Court on six felony counts of accepting about $1 million in illegal and unreported campaign donations from Mellon and the late Fred Baron, finance chief for his 2008 presidential campaign.

A major point of the defense argument is that Edwards didn't know what the money from Mellon and Baron was being used for, a contention that was supported Tuesday by John Moylan, who worked in both of Edwards' presidential campaigns.

Moylan testified that Edwards was shocked to learn in August 2008 — several months after the fact — that Mellon had been paying to help support Hunter and keep her from the public eye. The money was given through checks falsely labeled as furniture purchases through Andrew Young, who was once a top aide to Edwards and is now his chief accuser.

Referring to Young as "that damn Andrew," Edwards told Mellon, "Bunny, you should not be sending money to anyone," Moylan testified.

Edwards' lawyers also called former FBI agent Jim Walsh to provide an analysis of Edwards' and Hunter's finances that appeared to show that most of the money from Mellon and Baron stayed in the hands of Young and his wife, while "Rielle Hunter saw little" of it, Dellinger said.

Financial records showed that the Youngs got about $1 million from Baron and Mellon in 2007 and 2008, but tax returns suggested they gave Hunter only $191,000 of it.

Other records showed that rather than deal with Young, Baron paid Hunter through direct deposits into her checking account. That money accounted for $74,000 over seven months.

Other defense witnesses also questioned the credibility of Young, calling him "untrustworthy" and "dishonest."

That could be Edwards' best angle after U.S. District Judge Catherine Eagles ruled out a major part of the defense case Monday, saying jurors wouldn't be allowed to hear about a federal audit that concluded that the money for the Hunter operation didn't amount to campaign contributions subject to federal regulation.

Scott Thomas, a former chairman of the Federal Election Commission, had been ready to testify about the audit of Edwards' 2008 campaign, which found that the contributions were legal. But Eagles ruled that evidence inadmissible because there was no way to determine what FEC auditors knew or were told at the time.

Thomas was allowed to testify Tuesday morning, but only in general terms. He said the commission had never before considered a case like Edwards'.

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ANALYSIS

The judge’s ruling was written on the lawyers’ faces.  Last Friday, after Catherine Eagles denied John Edwards’s motion to dismiss the six felony charges against him at the close of the government’s case, the former Democratic senator’s lead attorney sat red-cheeked and grim.  To his right, the typically stiff lips of the federal prosecutors curled into small grins.  

While Edwards’ request to have the case thrown out for lack of evidence was a long shot, the decision highlights the ever increasing peril Edwards faces and previews what’s to come. The transcript of the argument is a worthy read for anyone whose interest in the trial is more than passing and, thanks to NBC News, it’s available here. For Edwards case followers in a hurry, here are four ways the seemingly routine motion is actually a big deal. 

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Odds of Edwards going to prison just increased
When Edwards decided to contest the government’s claim that he violated the Federal Election Campaign Act (FECA) rather than reach a plea deal, his risk analysis included the hope that a judge would end the case long before jury deliberations began.  While such court-ordered judgments of acquittal are infrequent, they are not unheard of.  Indeed, in May 2011 a district court judge from the same appellate circuit (the Fourth) stopped the prosecution of a corporate lawyer on obstruction of justice charges because of the government’s failure to prove its case.  

Edwards’ hope for a similar outcome rested primarily on the novelty of the government’s theory: never before has money from third-parties (Fred Baron and Rachel “Bunny” Mellon) to other third-parties (Andrew and Cheri Young with a smaller amount to Rielle Hunter) led to a candidate’s indictment under the FECA.  Last fall, Edwards spent hundreds of pages briefing that argument (i.e, that he had no “notice” that such an arrangement could be illegal and thus no criminal intent) plus other reasons for dismissal…and lost.   Last week, Edwards attorney, Abbe Lowell, spent 90 minutes again beseeching Eagles to end the prosecution…and lost. 

For years, Edwards the plaintiffs’ attorney fought as hard as he could to overcome opponents’ efforts for judge-directed dismissals so the outcome of his clients’ personal injury claims could be determined by a jury.  Ironically, if Edwards the defendant had known for sure that his own case would go all the way to the jury, I’m not sure he would have rejected whatever the government’s best plea deal was. 

How judge's ruling was unnerving for Edwards camp 
In the run up to his motion argument, Lowell gently expressed to Eagles his hope that she would devote the weekend or at least much of Friday to considering his arguments before ruling.  Rather than rejecting the motion after days or hours of pondering, Eagles did so in minutes.  Moreover, the judge allowed that the “closest questions in my mind have to do with some of these venue issues” (i.e., did the crimes Edwards is accused of have a sufficient connection to the district where he is being tried).  Both the speed and substance of her decision suggest that Eagles has little concern about the prosecution’s theory or the quality and quantity of evidence presented in the government’s case. 

Full trial coverage from NBC News and msnbc.com

Analysis by Hampton Dellinger

More bad news in battle over experts?
In the face of Friday’s setback, the defense doesn’t appear to be shrinking from its chief argument for dismissal: that the government has not proved and cannot prove “that Mr. Edwards acted with knowledge that his actions would violate campaign laws.” Late Friday, the defense submitted its witness list for Monday.  Appearing first: Scott Thomas, the former Federal Election Commission chairman, who is prepared to testify that the prosecution “is without precedent in federal election law and that the FEC would not support a finding that the conduct constituted a civil violation much less warranted a criminal prosecution.”  The problem for Edwards is that the government is contesting vigorously the right of Thomas to testify as an “expert witness” and Eagles on Friday suggested she thought several FEC-related issues were “pretty straightforward.”  Such phrasing is not suggestive of a judge likely to let the former FEC chair testify broadly.  But at this point, Edwards will likely consider it a win if Thomas is allowed to take the stand at all.  

Closing arguments previewed
Friday’s motion hearing made something clear and it's bad news for Edwards: Andrew Young’s story sounds better when someone else tells it.  Skilled federal prosecutor David Harbach opened his oral argument reading excerpts from Young’s most Edwards-damning testimony.  Whether presented via the prosecutor, or Young’s wife, Cheri, the former political aide’s claim that Edwards orchestrated the sex affair cover-up is more compelling when separated from Young's hazy memory and admitted misstatements.  Similarly, Harbach was able to transform the testimony of other witnesses potentially off-putting to jurors (such as the long-winded Wendy Button) into an efficient, effective litany of evidence of guilt.  While Lowell is holding his own as quarterback of the defense team, Harbach’s ability to serve as a likeable standard bearer for the prosecution’s witnesses has to be making Team Edwards nervous -- very nervous -- as closing arguments fast approach.  

ANALYSIS

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?!

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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.

Full trial coverage from NBC News and msnbc.com

Analysis by Hampton Dellinger

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.

 

ANALYSIS

GREENSBORO, N.C. — After an eventful first five days, here are three keys as the John Edwards case moves on to week two:

Did the defense's cross-examination of Andrew Young destroy the government's case?
Stymied by technical glitches (no mike, a balky video player), frequently sustained objections and a somewhat scattershot approach, the cross-examination of Edwards' former aide by lead defense attorney Abbe Lowell got off to a halting start. But by Day Two, Lowell's questioning of Young had turned surgical. Time and again, Lowell forced Young to acknowledge inconsistencies among his past statements, and between those statements and his courtroom testimony. The centerpiece came when Young acknowledged that most of the $925,000 the government contends went to cover up Edwards' affair with Rielle Hunter was, in fact, kept by Young and his wife, Cheri, to finance a family manse.

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By the end, Lowell (solemn-faced and in a dark suit) had the air of an undertaker while Young (fatigued and evidencing a gray pallor atop his tanned faced) looked funeral-ready. And yet ... I'm not sure the government's theory of the case got buried by the cross-examination. No matter how much of the money trail led to the money pit that was the Youngs' dream home, some amount of political supporter money well above the $2,300 individual contribution limit benefited Hunter. Indeed, Edwards admitted as much in his trial brief filed in mid-April: "[T]here is no doubt that payments by Ms. Mellon and Mr. Baron covered Ms. Hunter's personal expenses (and much more so, the Youngs' personal expenses, such as the construction of their dream home." So, while Lowell's cross of Young was good lawyering and great theater, the government's prosecution theory likely survived it.

Full trial coverage from NBC News and msnbc.com

Analysis by Hampton Dellinger

Did Andrew Young damage the prosecution more during his direct examination?
Ultimately, Young's answers in three areas of questioning during his direct examination may prove more helpful to Edwards than the admissions forced out of him by Lowell on cross. First, Young made it clear that neither Rachel "Bunny" Mellon nor Fred Baron expected anything in return for their largesse, thus confirming that this isn't the typical quid pro quo political corruption case.

Second, Young testified that both he and Edwards told Mellon that her donations were intended to aid Edwards with a personal matter, not a political one.

Third, Young said Edwards consistently reassured him that the arrangement was legal. The last point is a huge one: If the government was counting on Young to establish that Edwards knew the Baron-Mellon financial support for his mistress ran afoul of federal election laws, his testimony proved a major disappointment.

Is an anti-Andrew Young train coming and, if so, how long is it?
Given that the defense was able to turn the trial of Edwards into the trial of Young during much of Week One, prosecutors have to be worried about a possible parade of witnesses coming to the stand to disparage Young's character and dispute his recollection. We can't know for sure until they take the stand, but there are indications that potential defense witnesses such as respected North Carolina lawyer David Kirby, acclaimed author Robert Draper and veteran pollster Harrison Hickman may offer event accounts that differ dramatically from Young's.

This trial is a long way from over. But it's fair to say that, thanks to Young's direct testimony as much as anything else, prosecutors likely see some hard work ahead before they will feel comfortable resting the government's case.

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ANALYSIS

GREENSBORO, N.C. — The list of John Edwards' gambles is legendary. It grew longer on Monday.

The dice roll came early in Alison Van Laningham's opening statement on behalf of the once-acclaimed lawyer and 2004 Democratic vice presidential nominee:

We are not here to debate whether a large amount of money flowed from Mrs. Mellon or Mr. Baron. We now know that it did. We are here to follow the path of that money, to follow the path, and the evidence will show that it ended up in the pockets of Andrew and Cheri Young and in the wood and in the stone and in the walls and in the roof of their $1.5 million house in Chapel Hill.

(Those reference are to Fred Baron and Rachel "Bunny" Mellon, money from whom was used for the travel and living expenses of Edwards' mistress, Rielle Hunter and of political aide Andrew Young and his family in 2007 and 2008, while Edwards was seeking the Democratic nomination for president.)

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And with that allegation — essentially that Young, not John Edwards, sought hundreds of thousands of dollars from Edwards' wealthy political supporters and then kept it for himself — United States v. Johnny Reid Edwards was transformed into Edwards v. Andrew Aldridge Young.

Full trial coverage

Analysis by Hampton Dellinger

A common mistake in opening statements is for lawyers to overpromise. After underdelivering during the evidence phase of the case, the attorneys then get nailed by opposing counsel during closing arguments. In months of pretrial hearings and thousands of pages in written briefings, Team Edwards gave little indication that the attempted takedown of Young would take a Tracy Kidder-esque turn.

In retrospect, Edwards's intention to center his defense on Young's alleged pocket-lining and home-building helps explain his awkward last-minute addition of Van Laningham and her partner, Alan Duncan, to his trial team. The pair represented Rielle Hunter in her civil suit against Young over possession of the Edwards-Hunter sex tape. It's now clear they learned enough to level serious self-dealing allegations against the former aide to Edwards.

If Edwards can back up the allegations against Young, we're looking at a very different case. I have long thought the facts favored the government while the law (at least as applied before his prosecution) was on Edwards' side. If Edwards can successfully recast the facts and replace Young for himself as the principal architect and beneficiary of Mellon's and Baron's beneficence, the gamble in opening may look like a smart bet by trial's end. 

A final thought: Given that Edwards thinks he has the goods on Young, I was surprised that Van Laningham's opening continued with the claim that Edwards' interest in keeping his affair quiet was centered on saving his marriage, not his 2008 campaign for president:

We are here to talk about the evidence that will show that John Edwards did not hide his mistress for any campaign purpose. He did it why anybody does it, to keep it from his wife and to keep from humiliating himself and his family.

To my mind — and to borrow a concept from labor and employment law — Edwards' interest in hiding his affair is a classic case of "mixed motive": He was trying to preserve the viability of both his marriage and his campaign. 

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