Criminal law, Politics

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?”

  2. mespo,

    Thank you, kind sir … that is the type of analysis I love to read

  3. 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……

  4. 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.

  6. 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.

  7. 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.

  8. 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.

  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.

    http://www.rawstory.com/rawreplay/2011/05/nsa-whistleblower-tom-drake-talks-espionage-act-911-intelligence-with-60-minutes-thin-thread/

    What’s wrong with this picture?

  10. 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?

  11. SwM,

    I liked him too though Tex and I were strong Hilary people. Still are.

  12. 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.

  14. 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.

  15. 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.

  17. 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?

  18. 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.

  19. 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.

  20. 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….

Comments are closed.