Edwards Indicted . . . But How Strong Is The Case?

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

69 thoughts on “Edwards Indicted . . . But How Strong Is The Case?

  1. And how many people given government jobs by politicians to not run…or to get out of the way….hmmmm….now exactly how many were charged….

    This is what I would call political payback….

  2. Don’t think Edwards had a chance against Hillary or Obama. I was an Edwards supporter early on. What I don’t like is that all this was going on in the 2008 campaign and being hidden from the voters by the Edwards and Fred Baron. He was outed by the National Enquirer. Fred Baron’s mansion is extremely ostentatious. He made the money from asbestos lawsuits before Texas had tort reform. He had a battle with cancer and died. Democratic fundraisers are held there.

  3. When I was in high school, I did a research project on the overly broad topic of “justice.” If I’d known then, what I know now… Wish I had still had a copy of the final paper. I’d get a good laugh out of it, I’m sure…

    AY has it right, I think… and the words “whimsical” and “capricious” come to mind.

  4. Fred Baron received high dollar awards from W.R. Grace and Haliburton before Texas over cooked tort reform. I think someone on another thread said that these corporation have the citizens best interest in mind. What about asbestos?

  5. Thank you Prof for explaining this case so well.

    I suspect Edwards will do quite well in the courtroom once the battle of jury selection is over.

    How the prosecutors frame their case and the defense’s response will be interesting to analyze and I hope you and our regular blogging lawyers will provide occasional commentary for our edification.

  6. From a political point of view, Edwards cost Hillary more votes than Obama. Campaign contributors did not want their money to be paid to Ms. Hunter. They wanted Edwards to use the money effectively to beat Obama and Hillary as Edwards was the advocate for the poor. So we thought.

  7. Edwards’ message about the two Americas is even more relevant now than it was in 2004 when he he started talking about it. I remember when Fox News was all over him for declaring class warfare. Just talked to another Edwards supporter that feels betrayed by Edwards.

  8. I remember something about a good DA being able to get a Grand Jury Indictment on a ham sandwich. Is this one of those? Should we expect Ensign & Demint to be charged soon?

  9. As I wrote earlier in another thread, I am waiting breathlessly for an indictment of Karl Rove for outing a covert CIA agent, Biggus Dickus Cheney for enabling and encouraging torture and Bush the Lesser for all of the above. And when are they going to indict the psychologists who designed parts of the torture program?

    We have war crimes coming out the wazoo, but they are prosecuting John Edwards for trying to keep his mistress a secret. Or poor Thomas Drake for blowing the whistle on wrongdoing and incompetence.


    What’s wrong with this picture?

  10. Isn’t this the same case being made against Ensign? Hush money to a former mistress’ husband as (presumed) severance pay etc.? Is there a difference between these two prosecutions regarding the money paid out? I know there is a complication with Ensign helping get his ex-employee a lobbying job but the payment of money as hush money seems the same to me. I’d welcome a learned comparison if there is a difference.

  11. I think it’s a weak case indeed. Friend A gives politician friend B a gift to hide an affair from his wife. Hardly unique, certainly seamy, and apparently not intended as a “campaign contribution.” Seems to me if it’s from detached and disinterested generosity rather than an attempt to curry favor from a potential office holder then it’s not a campaign contribution. The intent of the donor and the recipient are relevant. Juries tend to hold likable people criminally responsible for deeds that are patently “bad” or malum in se. Here it’s malum prohibitum and not all that assuredly prohibitum as JT points out. I’d take my chances with a home state jury regardless of the sordid details. Folks are pretty good at separating bad morals from criminal conduct. Keep in mind the figures for folks having extra-marital affairs is 45-55% of married women and 50-60% of married men have engaged in extramarital sex. (Atwood & Schwartz, 2002 – Journal of Couple & Relationship Therapy. Given those numbers, Edwards may find a considerably knowledgeable jury panel — even along Tobacco Row.

  12. He admits doing wrong, but this conflating of everything has got to stop.

    This indictment lends credence to the Edwards theory of two Americas.

    One America has people in it that are too big to jail, to big to charge with war crimes.

    The other America has people who are not too big to jail, not too big to charge with political realm crimes.

    Time to take a brick out and peek through the wall into that very vast realm of too big to jail.

  13. Wow. The Justice Department has already worked its way down to the Edwards dalliances. I must have been asleep when they announced the indictments of George Bush, Dick Cheney, John Yoo, Goldman Sachs, J.P. Morgan Chase and all the bond rating houses.

  14. Mike Appleton
    1, June 3, 2011 at 6:21 pm
    Wow. The Justice Department has already worked its way down to the Edwards dalliances. I must have been asleep when they announced the indictments of George Bush, Dick Cheney, John Yoo, Goldman Sachs, J.P. Morgan Chase and all the bond rating houses.

    Me too…Wake me when the Emperor puts his pants on……

  15. Just because someone is a slimy scumbag does not mean that thy don’t sometimes speak the truth.

    In pointing out that the US justice system is two tiered, Edwards was speaking the facts just as does Glen Greenwald at least once every week.

  16. Something occured to me today and I have been thinking about it. John Edwards is a top-tier plaintiff’s attorney. He has made a fortune helping ordinary people sue rich corporations. This makes him a Very Dangerous Man in the eyes of the power establishment.

    Paul Minor, a Very Dangerous Plaintiff’s Lawyer in Mississippi, is in prison right now on what many legal experts consider to be a trumped up charge. Try to convince me it is not punitive when they would not even let Paul visit his dying wife or attend her funeral.

    I an not a conspiracy theorist type, but this does not pass the smell test.

    As I said earlier, I am waiting to see indictments on some war criminals. I suspect I will have a long wait. It would do me good to see the puppet-master Cheney and his ventriloquist dummy, Bush the Lesser frog marched off to the hoosegow. Karl Rove needs to be perp-walked past the press gaggle as well.

  17. I don’t understand why Edwards did not use his own vast personal fortune for these expenses.

  18. Typo?

    If convicted, that could lead to a lengthly potential jail sentence for Edwards, though these counts should run consecutively.

    Perhaps you meant ‘concurrently’?

    Although in these two Americas, what is consecutive for some is often concurrent for others – especially for those whose views on economic and social equality pose if the slightest challenge to the power and prestige of the dominant class.

  19. Swarthmore mom,

    I had not accessed Powerwall before. That is a very good news catalog site.

    I think Edwards simply thought he was so powerful that could do what he wanted when he wanted and perhaps he considered that the hush money paid could be easier covered-up than using his own money (re: tax reporting, hiding those funds from Mrs. Edwards, et cetera).

    Although not a lawyer, from my reading, I think the case against Edwards is better than 50:50.

    I would have voted for this man had the truth about him not been revealed in time.

  20. Trying to figure our what the Obama Justice Department pursues might as well be predicted by throwing darts at a dart board. While Edwards conduct is certainly less than admirable, most of this case is really a stretch. From what I’ve read on this, the government is making such a novel claim that a defendant could not be possibly be reasonably expected to have an expectation that their acts were in fact illegal. And the government relying on an advisory opinion by the FEC? One of the most partisan and ineffectual bodies that presently exist? This case is off the reservation.

    How about using Justice Department resources or the FEC looking into the assertions made in Cliff Arnebeck’s King-Lincoln Bronzeville v. OH Sec. of State case and and the death of Mike Connell, related election fraud in Ohio in 2004?

    Going after Edward’s is using celebrity as convenient distraction for the public compared to unresolved events such as the Arnebeck assertions.

  21. steve k. sez: “Going after Edward’s is using celebrity as convenient distraction for the public compared to unresolved events such as the Arnebeck assertions.”


    Excellent point. And the media are also guilty of going after every new shiny thing and ignoring the real news. Weinergate is another example. Just as Congressman Weiner starts to expose the ethically challenged Clarence Thomas’ failure to disclose conflicts of interest and his wife’s income we have this new, curiously timed bit. Thomas even lied about his wife’s income, even to the point of checking the box that said, “No spousal income.” But, the media knows what is REALLY important: A PhotoShopped picture that may or may not be Anthony Weiner’s drawers.

  22. Excellent point. And the media are also guilty of going after every new shiny thing and ignoring the real news. Weinergate is another example.

    So much for Briepart doctoring photos.

    Weinergate Bombshell: New Woman Comes Forward Claiming Cache of Intimate Photos and Online Communications with Beleaguered Congressman

    A new woman has come forward with what she claims are photographs, chats, and emails with Rep. Anthony Weiner (D-NY). These appear to undermine severely Rep. Weiner’s explanations that he was the victim of a “prank” or a “hack.”

    The detailed new information suggests that the Brooklyn- and Queens-based representative and the young woman in question were involved in an online, consensual relationship involving the mutual exchange of intimate photographs.

    BigGovernment.com and BigJournalism.com were approached regarding this information more than a week prior to the separate, independent event of Friday, May 27, 2011, when a link to the now-infamous “gray underwear” photograph appeared publicly on Rep. Weiner’s Twitter feed.

    We will be updating BigGovernment.com and BigJournalism.com throughout the day with photographs, timelines, and other clarifying details. However, we will not be releasing all of the material because some of it is of an extreme, graphic nature.

  23. The (in)famous photo alleged to have been of Anthony Weiner is UPSIDE DOWN. When turned right side up, the whole context changes. The body part in question takes on a whole new appearance. Not the table leg that had been cropped out is visible in the uncropped version of the photo, and is the dead giveaway. If that is Anthony Weiner, then so am I.


  24. O.S. it reminds me of a prank I played many many years ago. I was a manager for a restaurant. We had silverware rolled up in a napkin that would go into a clear long round bag. The waitresses would blow the bag up and call it a blow job to go.
    One day I took one and blew it up and shoved it in my pants. I proceeded to walk around the waitress station until the giggles started. I was then approached by a waitress who called me out and said it was a silverware bag. I said no that’s me and walked away. Later on after the morning rush was over she happened to be in the breakroom. I happened to have an erection at the time and walked back there. She again told me to take the silverware bag out of my pants that everyone knew what it was. I dared her to grab it to see for herself. She did then got up screaming it’s him, it’s him. You wouldn’t believe how many waitresses were had after that.:)

    It’s possible he shoved a dildo in his pants.

  25. If anyone working for me pulled a prank like that they would be out of a job so fast it would make them dizzy. Not funny, sexist and a firing offense.

    As for your dildo theory, extraordinary claims require extraordinary proof, not specious speculation.

  26. Yea that was back before all the sexual harassment stuff. That’s why I said many many years ago. Remember it takes two to tango but your right. I was told a supervisor once that if I had an employee like me I would of fired myself along time ago:)

    Here’s a restaurant joke that’s appropriate. Do you know what the difference is between medium and rare.

    Hold your index fingers apart about six inches and thats medium. Spread’em out to twelve and thats rare:)

    We now know the pic came from his account. If he’s not that well endowed the dildo is the ONLY explanation.

  27. Blogger “stef” knows a lot more about twitter, yfrog and some of the other networking sites than I do. He did a prodigious amount of research. It is pretty clear the whole sordid matter does not pass the smell test.

    stef wrote about his findings here. I am not going to try and interpret his account of what he found. The reader can go to the source. This is long and highly detailed, making for some slow reading:


  28. I’ll wait to hear the women show up one by one like they did with Tiger Woods.

    The following photograph was allegedly sent to the young woman from AnthonyWeiner@aol.com via BlackBerry on Wednesday, May 4, 2011, under the subject, “Me and the pussys” (note cats in background):


    Looks like he’s got a boner in this one too. Looks like he might be a little under the influence his eye’s are glossy and red. He could be tired, he is a congressman with a busy schedule.

  29. I do not believe anything that Andrew Breitbart writes. He has a long history of making up stuff and manipulating pictures and videos. What else do we need to know to impeach his credibility? Or lack thereof. He is a muckraker, and if there is no muck, he makes up his own mud.

  30. OS,

    Why anyone would take anything that “man” (and I use the term loosely) says is a complete mystery to me. He’s a time and again demonstrated propagandist and liar (specialty: lies of omission and context shifting). Going to him for “the truth” is like going to Mengele for genetic counseling – simply asking for trouble.

  31. 1, June 6, 2011 at 9:47 am

    We now know the pic came from his account. If he’s not that well endowed the dildo is the ONLY explanation.

  32. Bdaman:

    man you are good. So Wiener did send his wiener. And it probably wasn’t his wiener but a plastic wiener. So not only does he not have a new career in porn but he has lost his seat.

    I guess Humma isn’t going to be playing that tune on the ole flute any more.

  33. The woman says she has 200 sexually explicit messages from Weiner from a Facebook account the Democratic politician no longer uses.

  34. bdaman, Your diaper guy, Vitter, did not resign. How can Weiner be like Tiger Woods if he has never met the people involved?

  35. The penis picture always bothered me because it didn’t really look like a penis in ones briefs. I’m not a certified expert but the angle was wrong for the length and alleged state of tumescence. I examined the photo carefully but didn’t turn it upside down.

    Turned upside down it looks hardly penis-like at all. It looks like someone shoved their forearm and fist into their briefs in fact and since this controversy isn’t a famous Lenny Bruce comedy routine chances are its a picture of someone’s fist and forearm shoved in their briefs, like a guy might sit while watching TV.

    Yea’, yea’, tell me I have just lived a sheltered life blah, blah, blah. No, I haven’t.😉

  36. LOL, I guess Anthony Weiner is going to have to sit on the “Group W Bench” with David Vitter.

  37. so is it illegal to send a picture your underwear to a woman who is apparently willing to take said picture and ostensibly what is in said picture?

    Is it even unethical? I wouldn’t resign either if the picture was consensual. It is certainly bad form. But at least he didn’t dress up in a diaper.

    Seems the republicans are into weird stuff and the democrats are into prostitution and submission of women to the male. Who would have thought.

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