In an apparent rejection of a plea bargain, former senator and 2008 presidential candidate John Edwards has been indicted on six counts of conspiracy, campaign contribution violations, and false statements. If he goes to trial, he is obviously risking a jail term. However, the case of the Justice Department is no slam dunk and presents novel legal theories that will offer strong appellate arguments if allowed by the trial court. This will make the pre-trial motions even more important than usual for the defendant. The two-year investigation has now led to a warrant (below) for his arrest.

The indictments are based on money given to support Edwards’ mistress Rielle Hunter by friends and donors of Edwards. The government is insisting that such money should have been reported as campaign contributions — a novel claim. The government will have to show not only that such money constitutes reportable campaign contributions but that Edwards had the requisite knowledge and intent.

Part of the problem for Edwards is his high-profile status. While people often talk about celebrity justice as preferred treatment, the opposite is true. Prosecutors are often drawn to high-visibility cases and the public watches for any evidence of lenient treatment. The result is often harsher treatment for celebrities. I have serious question as to whether this case would have been given such work and time — let alone a trial — for someone who is less visible and less disliked (due to his cheating on his late wife as she struggled with cancer).

If convicted of a felony, Edwards would lose not just his freedom but his license. The plea deal likely demanded the sacrifice of his license. This must have been an ironic and bitter factor for Edwards. Edwards is reportedly interested in starting a public interest law firm. It was likely an effort to redeem himself and his name with skills that made him one of the nation’s more successful trial attorneys. The prosecutors, therefore, were not only likely asking for jail time but the elimination of the only avenue he had for personal and professional redemption.

The government is expected to rely on an advisory opinion issued by the Federal Election Commission, which asserted that a gift to a candidate for federal office would be considered a campaign contribution. That decision involving a party named Phillip Harvey was handed down on June 14, 2000. Harvey asked for the opinion on whether his giving money to be likely candidate for office would be a campaign contribution if the recipient was not going to use it for campaign purposes. That is not exactly the strongest legal basis for a case and I can find no actual federal case on point. What it can show is constructive knowledge that, absent a rejection of the claim in a federal case, such contributions were viewed by the FEC as a campaign contribution. In this case, the defense is likely to argue that this was not an effort to hide money from the FEC but to hide an affair from Edwards’ wife — a classic motivation.

Part of the practical problem for Edwards is that the jury is likely to be more entranced by the sordid details than the legal definitions. This is actually a case that should turn on these distinctions, but it likely to become a matter of credibility on the stand. The government is likely to frame the case as a factual matter, offering detailed testimony from witnesses. In such a case with reprehensible underlying conduct by the defendant, the government always has a considerable advantage. For that reason, the defense may want to stipulate to as many of these facts as possible to avoid the in court testimony. In the end, however, the defense may have to attack cooperating witnesses like former Edwards aide Andrew Young and risk getting bogged down in the details of the affair.

One witness, however, may not testified due to her age — 100-year-old philanthropist Rachel “Bunny” Mellon of Virginia. The other key witness,attorney Fred Baron, will certainly not testify because he is now deceased. The defense can argue that this presents an added disability for the defense and should create reasonable doubt in the circumstantial evidence presented by the government.

Count One is a conspiracy charge under 18 U.S.C. 371.

Count Two is the illegal campaign contributions charge under 2 U.S.C. 441a.

Count Three is a second illegal campaign contribution charge under 2 U.S.C 441a.

Count Four is a third illegal campaign contribution charged under 2 U.S.C 441a.

Count Five is a fourth illegal campaign contribution charged under 2 U.S.C 441a.

Count Six is a false statements charge under 18 U.S.C. 1001.

Some of us anticipated the final charge which is a standard basis against politicians in Washington, D.C. It is often said that politicians are more often indicted for how they respond to scandal than the underlying scandal itself. The problem with these charges if that it is an all-or-nothing package. The jury is most likely to accept or reject the counts in toto. If convicted, that could lead to a lengthly potential jail sentence for Edwards, though these counts should run consecutively.

Here is the Edwards warrant: JE_arrest_warrant

Here is the indictment: John_Edwards indictment