John Edwards Seeks Dismissal of Indictment, Alleges Prosecutorial Vindictiveness

Among the bevy of motions to dismiss filed by lawyers for John Edwards yesterday, the most interesting to the public should be the motion to dismiss for abuse of prosecutiorial discretion and prosecutorial vindictiveness.

Edwards says former U.S. Attorney George Holding, now running for Congress, investigated him searching for a crime, rather than investigating a crime and searching for the culprit. He says Holding was driven by prior animosity and conflict with Edwards and Holding's own political ambitions.

The brief supporting the motion is 32 pages, I've posted the Statement of Facts here and some of the allegations below.

The crux of the argument by Team Edwards (which now consists of Abbe Lowell, James P Clooney, III and Wade Smith -- Gregory Craig and Skadden Arps are no longer on the case) is : [More...]

The prosecutor, Mr. Holding, had both a "personal stake in the outcome of the case" and an interest in seeking "self-vindication" by publicly embarrassing Mr. Edwards. Were there any question of that before he announced for Congress to capitalize personally and politically from this case, there can be little now.

The decision to prosecute Mr. Edwards was based on a strained reading of federal election laws that had never been applied in a criminal proceeding in this District or anywhere else.

The Indictment was not based on the "usual determinative factors a responsible prosecutor would consider before bringing criminal charges," and the scope of the investigation -- in terms of both manpower and the questions asked of witnesses before the grand jury -- strayed well beyond what was necessary to investigate a non-violent felony.

My favorite part is Team Edwards use of this quote from former Attorney General Robert Jackson in 1940:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations…. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints….

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. The Federal Prosecutor: An Address by Robert H. Jackson, 24 J. Am. Jud. Soc'y 18 (1940).

Edwards' burden in establishing prosecutorial vindictiveness is high.("it is a "rare case" in which a defendant can demonstrate that "the government's decision to prosecute was tainted by improper motivation.")

"To establish prosecutorial vindictiveness, a defendant must show, through objective evidence, that (1) the prosecutor acted with genuine animus toward the defendant and (2) the defendant would not have been prosecuted but for that animus."

In other words, a defendant must demonstrate that the decision to pursue criminal charges "'could not be justified as a proper exercise of prosecutorial discretion.'" To satisfy this burden, a defendant must present "some evidence" tending to show that the prosecution resulted from actual vindictive motives.

One factor courts look at is whether there is evidence that the prosecutor had "a personal stake in the outcome of the case" or an interest in seeking "self-vindication." The brief says "To demonstrate actual vindictiveness in this manner, a defendant must present "direct evidence" of genuine animus. So what does Edwards have to support his claim?

As noted above, Mr. Holding crossed political paths with Senator Edwards several times in the past and made campaign contributions to the Republican candidate running against Senator Edwards in 1998. In addition, Mr. Holding has a long history (noted in his campaign materials) of launching high-profile criminal investigations of high-ranking North Carolina Democrats. This Indictment, which generated tremendous publicity, was returned just days before Mr. Holding announced his own candidacy for Congress.

Mr. Holding therefore had both a "personal stake in the outcome of the case" and an interest in seeking "self-vindication."fn6 Mr. Holding's political contributions to Mr. Edwards' opponent and political foes also created an actual or profound appearance of a conflict of interest warranting recusal.fn7 Such a conflict of interest denies a defendant "the possibility of fair minded exercise of the prosecutor's discretion" and violates the Due Process Clause.

.......The actual or appearance of a conflict of interest created by Mr. Holding's Republican political activity thus serves as additional evidence of what the law deems to be genuine animus.

6 At some point, prosecutors from Washington, D.C. joined the investigation. By then, however, the toothpaste could not be put back in the tube: Mr. Holding had started the case; changed its direction; expanded it; supervised the case during all the leaks; and spent vast resources that had to be vindicated. Indeed, Mr. Holding never recused himself and it is his name on the actual Indictment. Having spent more than three years pursuing the case in full view of the public, Mr. Holding (then a hold-over Republican) put the new Democratic Administration in a difficult position. If the new Administration would have prevented Mr. Holding from obtaining the Indictment, the Administration itself would be the one accused of playing politics by protecting one of its own. Thus, whether Senator Edwards was indicted or not, Mr. Holding could score political points.

fn7 Indeed, as noted above, Mr. Holding was held-over because President Obama's nominee for U.S. Attorney had donated money to the Kerry-Edwards campaign in 2004. It is difficult to imagine how a donation in support of the campaign could render someone conflicted, but not a donation against the same candidate.

Edwards' next argument is that "Finally, a defendant may also show actual prosecutorial vindictiveness by presenting evidence "that the decision to pursue an indictment was not based on the usual determinative factors a responsible prosecutor would consider before bringing charges." He argues:

Mr. Holding and those he supervised or work besides failed to take several relevant factors into consideration when he decided to pursue the high-profile indictment of Mr. Edwards. They failed to consult the FEC as to the established meaning of the term "contribution" under federal election laws, choosing instead to pursue criminal charges based upon their own unprecedented and untested interpretation of that term.

They apparently overlooked the requirement that they prove a "knowing" violation of the statute by Mr. Edwards, a task that is all but impossible as not even the former FEC Chairmen charged with interpreting election laws "knew" (or now believe) the term "contribution" encompassed the conduct at issue.

And there's this claim which may raise some eyebrows:

Grand jury witnesses apparently were asked offensive questions that had nothing to do with whether Mr. Edwards knowingly violated federal election laws, but rather were designed to inflame the grand jury pool and ensure a high-profile Indictment. Courts have found such tactics to evidence vindictiveness.

Remember those reports about grand jury witnesses being asked about John Edwards' sex life? Perhaps they were true. Next, Edwards argues:

Moreover, the sheer size of the federal task force employed by Mr. Holding to investigate a non-violent felony raises questions about the motivations of the prosecutors. Even after they determined that none of the alleged violations described in the Preliminary Inquiry Memo had been committed, the prosecutors assembled a team of at least 56 federal agents to conduct 150 witness interviews in search of a new theory for an indictment.

There is simply no explanation for a taxpayer-funded investigation of this scope unless the intent was to dig up anything and everything possible on Mr. Edwards. After vesting so many resources over so many years, and having generated so much publicity about the investigation, Mr. Holding could ill afford a decision not to bring charges. This is precisely what Justice Jackson warned against, a prosecutor who investigates a man in search of a crime, rather than a prosecutor who investigates a crime in search of a culprit. The "extensive amount of FBI resources devoted to this case" is additional evidence of actual vindictiveness.

There's also an allegation the Government improperly used Andrew Young to get copies of secret documents:

In addition, prosecutors, through Mr. Young, obtained Mr. Edwards’ confidential deposition from a separate civil action between Ms. Hunter and Mr. Young, which involves matters distinct from this case. Despite Protective Orders making the deposition confidential, prohibiting the parties from providing it to third parties, and requiring notice of any effort by third parties to obtain the materials, the government issued a secret subpoena and obtained secret federal court orders regarding the deposition. The result was that it secretly got the deposition.

Around the same time, Mr. Young filed a motion to compel regarding Mr. Edwards, seeking additional sworn testimony in that civil case on matters related exclusively to this criminal action. Although the full degree of interaction between the prosecutors and their cooperating witness, Mr. Young, points is not yet clear, it would be highly improper for the government to seek to use a civil action to secretly obtain what it could never get in this criminal case—a deposition of Mr. Edwards on the issues in this case.

To prove its claim, the defense is asking for:

"(1) All pre-indictment notes, emails, memoranda, and correspondence with investigatory agencies relating to [Mr. Edwards'] indictment; (2) All correspondence with attorneys for [the government's key witnesses, including Andrew Young]; and (3) Any other documents in the possession of the Government that relate to the decision to prosecute [Mr. Edwards]." Among these documents should be correspondence between and among the prosecutors and staff concerning: (1) the merits of the case, (2) requests for resource, (3) contacts with the media, (4) contact with the FEC, and (5) ....[sic]

Edwards filed several other motions to dismiss. One alleges grand jury irregularities, one alleges improper venue, one says the conspiracy count should be dismissed for failure to state a crime, and one says the law gives insufficient notice of what's prohibited and no one's ever been prosecuted for conduct similar to that in this case.

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    *shrugs* (4.00 / 1) (#6)
    by Robot Porter on Wed Sep 07, 2011 at 12:52:27 PM EST
    It's an argument.

    It seems to be the prosecution's entire case rests on whether or not the money was a campaign contribution.  It doesn't appear to meet the legal definition of a campaign contribution.  So the case should be dismissed on those grounds.

    But what do I know?  I'm not a lawyer.

    you know a lot (5.00 / 1) (#7)
    by Jeralyn on Wed Sep 07, 2011 at 01:32:06 PM EST
    you got the core issue correct. It's explained here.

    The thing is, the prosecutorial vindictiveness (3.67 / 3) (#4)
    by scribe on Wed Sep 07, 2011 at 11:56:45 AM EST
    is not an exception under Obama's DoJ.  As has been covered over at FDL, the Lieutenant Choi case currently hanging fire in the DC criminal court is another example.  That case is over his being chained to the White House fence in a protest against "Don't Ask Don't Tell".  The defense noted that ordinarily those sorts of offenses are dealt with a summons which is the rough equivalent of a traffic ticket.  His is a felony charge.  

    Then, it came out that there was an email from the Secret Service to the Interior Department (which deals with the White House grounds) the day before Choi's protest indicating he intended to be chained to the fence, when he had made no public disclosure of that intention.  (In other words, someone was listening to his conversations and/or emails.)

    When the judge noted that Choi might have the opportunity to prove vindictiveness, rather than dismiss the defense outright consonant with the government's demand for that, DoJ went to the appellate court to get a mandamus to compel the trial judge to toss the vindictiveness defense and block further discovery of the government's chicanery beforehand.

    In both the Choi and Edwards instances, they represent political threats to Obama's future.  Choi, because he is an articulate face of one of the constituencies Obama f*cked over, time and again, until their closing their wallets (actual and threatened) compelled Obama  to deliver on DADT.

    Edwards, because (as flawed as he is) he nonetheless represents a populist, Real Democrat around whom a primary challenge to Obama could coalesce.  

    The tentacles in both these cases reach right into the Oval Office.  Make no mistake.  

    you nearly had me, (none / 0) (#11)
    by cpinva on Wed Sep 07, 2011 at 10:40:28 PM EST
    until this:

    Edwards, because (as flawed as he is) he nonetheless represents a populist, Real Democrat around whom a primary challenge to Obama could coalesce.

    not hardly likely, him being a democrat and all. remember, it's perfectly acceptable for any republican to be a complete, utter hypocrite (too numerous to list), and still be considered a viable candidate. not so for democrats.

    your theory has huge leaks and is sinking fast.


    A primary challenge (none / 0) (#13)
    by sj on Thu Sep 08, 2011 at 10:36:18 AM EST
    doesn't have to be successful to have an impact.  Just sayin'.

    It made me wonder... would I vote for him in a primary?  Maybe.  Probably.  He was my first choice in 2008 (I know, so don't start) specifically for his populist leanings.  I know he wouldn't win, but I think he could wound Obama.


    In order to take adavantge of past (5.00 / 1) (#14)
    by MKS on Thu Sep 08, 2011 at 01:14:11 PM EST
    wisdom and to have great depth, hou will need to take into account 1980 and 1968 unless that is of course--the goal--to defeat Obama and elect a Republican.

    Obama will win or lose (none / 0) (#15)
    by sj on Thu Sep 08, 2011 at 01:47:21 PM EST
    on his own, without help from me in either direction.  I await the results without any eagerness whatsoever.

    So you say (none / 0) (#16)
    by MKS on Thu Sep 08, 2011 at 02:26:55 PM EST
    But to the extent that you have a vote, it appears you will vote in a conscious way to elect a Republican.

    Ah, now it IS clear (none / 0) (#17)
    by sj on Thu Sep 08, 2011 at 02:52:51 PM EST
    that you really haven't read my previous comments.  

    And thanks for this:

    But to the extent that you have a vote
    I might use that sometime.

    Cute, but not what I intended as you know (none / 0) (#18)
    by MKS on Thu Sep 08, 2011 at 03:24:33 PM EST
    The comments here are so very predictable--I could write them myself backwards while slurping pasta and watching reruns of Batman or the Rumble in the Jungle.

    The two most memorable comments--aye, perhaps the only memorable comments, came from Christine and apparently a whack job extraordinare who believes any Obama primary opponent would be whacked by Obama's bushwackers...


    Seems akin to "pretext"... (3.50 / 2) (#8)
    by magster on Wed Sep 07, 2011 at 01:47:45 PM EST
    ...  which is usually permissible, e.g. the cop who sits outside of a bar and follows a driver waiting for a minor traffic offense to investigate a DUI.

    If it's a crime that can be proved, doesn't seem like a judge would care what the motivations for investigating are.  Seems like Edwards has a better defense on the merits than on the process to me.

    As a compromise (none / 0) (#1)
    by Abdul Abulbul Amir on Wed Sep 07, 2011 at 11:25:18 AM EST

    toss them both in the slammer.

    you could not even have read the (5.00 / 2) (#2)
    by Jeralyn on Wed Sep 07, 2011 at 11:29:53 AM EST
    post before making that snide comment (you commented less than a minute after this post went up)-- if you have something to say after reading Edwards' arguments, feel free to let us know. Otherwise, please skip the "drive-by" comments.

    I did read the piece (none / 0) (#3)
    by Abdul Abulbul Amir on Wed Sep 07, 2011 at 11:39:49 AM EST

    I am a fairly fast reader.  IMHO, there is plenty of ick factor on both of them.  The "slammer" comment may have been too strong, perhaps "power washing" would have been better.



    If you read that article (none / 0) (#5)
    by sj on Wed Sep 07, 2011 at 12:11:37 PM EST
    it was without comprehension, because your comment appears to be nothing more than an [unsuccessful] attempt to be clever.

    Jackson quote was powerful; military parallel (none / 0) (#9)
    by Lee Sailor on Wed Sep 07, 2011 at 04:08:34 PM EST
    Using the Jackson quote was powerful; also, anyone familiar with life in the military (as many judges, at least in years past, have been) is aware that the PTB can always find some violation once they have become annoyed with a person under them in the chain. Even the ever-present "quibbling." That kind of fishing expedition really does constitute an abuse of power, and coupled to Holding's run for Congress, it's particularly alarming.

    The idea that Edwards poses any kind of viable threat to anyone's presidential run is just nuts, sorry. After what happened with Elizabeth? There goes roughly half his potential voter base before we even touch on other issues. Serious lack of judgment.

    Any odds on... (none / 0) (#10)
    by Romberry on Wed Sep 07, 2011 at 04:17:50 PM EST
    ...whether this move by the defense stands a chance at succeeding? The prosecution sure looks to at least possibly be politically motivated and/or vindictive, but is that enough? I figure the bar for the defense is likely set pretty high.

    i'm guessing: (none / 0) (#12)
    by cpinva on Wed Sep 07, 2011 at 10:48:43 PM EST
    slim to none. dismissing on these grounds would set a precedent that no prosecutor's office wants to see, and darn few judges will want to deal with. my guess (and no, i haven't checked lexis), there are precious few cases involving this position. the prosecution (and rightfully so) always gets the benefit of acting in good faith, so it's a damn high bar for the defense to hurdle. if it weren't, practically any high profile defendant could get their case dismissed, because practically any prosecutor stands to gain something (however intangible) in pursuing charges against them.

    two thoughts: (none / 0) (#19)
    by NYShooter on Wed May 16, 2012 at 06:02:08 PM EST
    1. We have judges, presumably to exercise "judgment." Otherwise, why not use a computer?

    2. 56 Federal Agents. Speaks for itself.