John Edwards and Bunny's Honey Money

John Edwards has a multiple defenses planned for the Bunny Money -- the funds provided by Bunny Mellon through her decorator Bryan Huffman to Andrew and Cheri Young. Their arguments also apply to the Fred Baron money. It essentially boils down to: If Bunny's Money Went to My Honey, You Must Acquit.

The Government says the donations from Mellon and Baron were for the purpose of influencing the 2008 election – helping Edwards be elected President of the United States – and that Edwards knew it. [More...]

The Government is relying on two theories: First, the government maintains Mellon and/or Baron provided the money for the purpose of influencing the election. Second, the government maintains Mellon and Baron paid “personal use” expenses of Mr. Edwards that they would not have paid irrespective of the election.

Edwards maintains since he did not prearrange or coordinate the spending, the spending is not a contribution and there is no crime.

But even if the jury were to decide Edwards did know about the money and instructed Andrew Young to solicit and receive it, Team Edwards has more up its sleeve. It has asked that the jury be instructed (from Edwards' proposed Jury Instructions, available on PACER):

[T]he spending must be for the purpose of influencing the election. This means that the spending must be unambiguously related to the candidate’s campaign. That is, it must be susceptible of no reasonable interpretation other than to elect a candidate in a federal election.

...Thus, in order to convince you beyond a reasonable doubt that the money alleged to have been spent by an individual in this matter was a “contribution” under this theory, the government must convince each of you that there was no other reason for this money to be spent other than to elect Mr. Edwards President of the United States.

Payment of personal expenses is only a campaign contribution if the person would not have paid those expenses irrespective of the campaign and they are expenses the candidate would have been obligated to pay even if he was not running for office.

A “personal use” expense is an expense of a candidate that would exist irrespective of the election. Such an expense must be personal to the candidate or must be an expense that the candidate is legally obligated to pay without regard to the election.

The personal expense has to be an expense of the candidate, not a third party, like Rielle Hunter or Andrew Young:

The personal use expense regulation only applies to the candidate’s personal use expenses. It does not apply to the payment of personal expenses of other people unrelated to the candidate.

....If the expense is one that Mr. Edwards would not have been obligated to pay or would not have paid if he had not been running for President, then it is not a personal use expense and you cannot convict him on this theory.

Team Edwards argues in its Trial Brief:

Ms. Mellon and Mr. Baron covered Ms. Hunter's personal expenses (and, much more so, the Youngs' personal expenses, such as construction of their dream home)—not Mr. Edwards' expenses.

As such, these cannot constitute "personal use" expenses of Mr. Edwards that would have existed irrespective of the campaign, and the Indictment fails to allege otherwise. Moreover, because "personal use" expenses are those expenses that a candidate is legally obligated to pay regardless of the campaign, and because Mr. Edwards was not legally obligated to support Ms. Hunter in any way prior to the birth of their child in February of 2008 (after he withdrew from the presidential race), the monies could not fall within the personal use rule.

Team Edwards wants the jury to be instructed:

[I] Mr. Baron or Mrs. Mellon would have paid these expenses even if Mr. Edwards had not been running for President, then the payment of these expenses is not a “contribution” and you cannot convict him on this theory.

Timing of the payments is also critical. Team Edwards says

[A] campaign contribution is not accepted until it is deposited and, for the purposes of criminal liability, acceptance marks the crime. Thus, any monies deposited after the campaign ended on January 30, 2008 may not form the basis of criminal liability.


[O]nce an individual stops seeking nomination or election for federal office, in this case the nomination of the Democratic Party for the Presidency of the United States, he ceases to be a “candidate” and payments received by such an individual are not deemed for the purpose of influencing that person’s election.

...[A] campaign contribution is not “received” until it is deposited. If money is received after the Mr. Edwards was no longer a candidate for a federal election, then it is not for the purpose of influencing the election.

...[T]the government must also convince you beyond a reasonable doubt that any money which it claims was a contribution was deposited by Mr. Edwards or someone acting on his behalf at a time when Mr. Edwards was a candidate for President of the United States.

If monies were received (deposited) after Edwards withdrew from the race, Team Edwards says the jury must exclude that amount from its determination as to whether Edwards received more than $25,000 in excessive contributions in a calendar year from a specific individual. The only purpose for which the jury can consider such funds is:

Payments received after a person is no longer a candidate may be considered by you to determine if payments made before were for the purpose of influencing the election.

In sum:

Mr. Edwards will argue the monies were not direct contributions to the John Edwards for President Campaign, the monies were not coordinated expenditures made for a campaign-related purpose, and the monies do not fall within the personal use expense regulation. The evidence will demonstrate the expenses involved were not to satisfy debts that Mr. Edwards was legally obligated to pay irrespective of the campaign; that Mr. Baron and Ms. Mellon would have given the money regardless of the campaign; and that Mr. Baron and Ms. Mellon made the payments knowing that the monies would not be used for campaign purposes.

So, according to Team Edwards, if Bunny's money went to Edwards' honey, it was not a personal use expense since he wasn't obligated to pay money for the baby's support until after the baby was born. Plus, Bunny would have given it to him regardless of whether he was running for office. Plus money given after he ceased running for office doesn't count.

The Government, of course, argues differently, and the Court may or may not agree to instruct the jury in accordance with Team Edwards' theory.

Ordinarily, one might be concerned as to whether jurors will take the time to fully analyze the fine print in federal election laws. In this case, I think the jury may be so anxious to avoid having to rehash the tawdry details of this trio of unsavory characters (Andrew Young, Rielle and Edwards), they may welcome the opportunity to focus on anything that doesn't make them feel like they need a shower afterwards, even hyper-technical federal statutes.

Team Edwards can make the argument "If Bunny's Money Went to My Honey, You Must Acquit" pretty simply, boiling it down to:

  • Mellon and Baron funded Young's and Hunter's personal expenses, not Edwards' expenses.
  • Edwards wasn't legally obligated to pay Young's and Hunter's expenses regardless of the campaign.
  • Mellon and Baron would have paid for the expenses even had Edwards not been running for office
  • Money paid after Edwards' withdrew from the race doesn't count and must be excluded from the calculation of total payments received in a particular year.

I'll leave for another day Edwards' additional defenses to the conspiracy and false statement charges.

< Thursday Morning Open Thread | Andrew Young Admits Funneling Funds For Own Use >
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  • Display: Sort:
    Isn't Every Dollar... (5.00 / 0) (#1)
    by ScottW714 on Thu Apr 26, 2012 at 02:59:05 PM EST
    ...donated to a campaign or party going to influence the election ?

    This morning on the Today show they had an email in which Edwards stated he was on lock down and that the wife has taken his cell phone and car keys.  

    I laughed so hard, good gravy, being single has left me wondering how we could trust the Nation to a guy who can't get his phone or keys back from his woman.  

    How in the hell is gonna keep N Korea and Iran from building nukes when he can't drive or call his boys ?

    Ha! I think Edwards' team can use the theory (5.00 / 1) (#8)
    by Angel on Thu Apr 26, 2012 at 03:51:41 PM EST
    that Elizabeth controlled the money in the family, so in order to keep the baby and relationship a secret the friends' money was needed to keep Hunter happy...therefore not a campaign expense.  Simple explanation, and reasonable, too.

    If the theory fits, you must acquit.


    I'd have trouble believing Ms. Mellon (none / 0) (#9)
    by oculus on Thu Apr 26, 2012 at 03:54:03 PM EST
    made such donations absent Edwards' running for Dem. nomination for Pres.  

    I don't think the "but for" rationale (5.00 / 1) (#29)
    by expy on Thu Apr 26, 2012 at 07:33:40 PM EST
    is the appropriate legal test.

    I mean, a lot of people want to get in good graces with politicians they support.  Does that make every possible gift fall under the rubric of a campaign donation?  

    Obviously there are some ethical obligations that office-holders have to report gifts, whether or not they are campaign contributions - but that is not what is at issue here.

    It seems to me that the definition of "campaign expense" should be limited to things that are legitimate expenses. If Edwards had authorized those payments to come from money raised through campaign donations, then I think it would be criminal -- it would have been an improper allocation of campaign funds.   But it makes no sense to me to label funds that are raised to cover a cost that legally can not be paid or incurred by the campaign and then deem that a campaign contribution.


    I might too, but weren't they friends? And I'm (none / 0) (#10)
    by Angel on Thu Apr 26, 2012 at 03:59:49 PM EST
    sure a lovely older woman such as herself could have been flattered by a younger, good-looking man such as John Edwards...he could have made her happy with his attention and she was in a position to help him out monetarily so maybe it was a form of quid pro quo.  Who knows?  I think I've read she's not in any position to testify at the present.  Still, the argument could be made.

    google is your friend (none / 0) (#18)
    by Jeralyn on Thu Apr 26, 2012 at 05:47:46 PM EST
    do some research about how they came to meet and and don't post unfounded speculation that there was some kind of other attraction going on in the mind of a 95 year old woman.

    Thank you. (5.00 / 2) (#32)
    by Donald from Hawaii on Thu Apr 26, 2012 at 08:40:26 PM EST
    I think I tried to make that point earlier. I have older female friends myself in their 70s and 80s, and I'd like to think that people wouldn't find that unseemly.

    Clearly, Bunny Mellon and John Edwards were friends, and she cared about him as such. He was in a jam -- that it was of his own making is completely irrelevant -- and she wanted to help him out. If she wants to give money to him, regardless of reason, that's strictly her business and really nobody else's. After all, it's her money.


    I think (none / 0) (#3)
    by jbindc on Thu Apr 26, 2012 at 03:01:52 PM EST
    new] Isn't Every Dollar... (none / 0) (#1)
    by ScottW714 on Thu Apr 26, 2012 at 02:59:05 PM EST

    ...donated to a campaign or party going to influence the election ?

    that's the point of the case.


    Right... (none / 0) (#38)
    by ScottW714 on Fri Apr 27, 2012 at 09:24:22 AM EST
    ...anyone donating to a campaign is trying to influence the election.  If that's the theory, why is it only applied to this donation and not all the others, they were all meant to influence an election.

    And if it's the dollar amount, why are the Super PAC's contributors exempt ?


    I suspect that as well. (5.00 / 1) (#12)
    by Angel on Thu Apr 26, 2012 at 04:33:27 PM EST
    But maybe she just liked John Edwards.  Maybe he made he laugh and feel young and alive.  We never really know the dynamics of others' relationships.  

    Apparently she really liked his haircut. (none / 0) (#13)
    by oculus on Thu Apr 26, 2012 at 04:34:31 PM EST
    Damn the cost.  

    stop with the one-liners (none / 0) (#19)
    by Jeralyn on Thu Apr 26, 2012 at 05:51:06 PM EST
    you have been doing it repeatedly the past few days and it's not appreciated. If you have something substantive about the case, feel free to comment. Otherwise scroll on by. This isn't a place for drive-by zings. It's a place to discuss the legal aspects of a criminal trial that a lot of people are interested in.

    Sorry. I can provide a link but (none / 0) (#20)
    by oculus on Thu Apr 26, 2012 at 06:01:54 PM EST
    then I will leave your threads.  

    you don't have to leave (5.00 / 1) (#22)
    by Jeralyn on Thu Apr 26, 2012 at 06:08:17 PM EST
    just please stop the one-line jokes. Your other comments are very welcome here.

    Not heinous. (2.00 / 0) (#23)
    by Doug1111 on Thu Apr 26, 2012 at 06:11:35 PM EST
    Also I'm gonna say, and this will I'm quite sure win no points with you or most others around here, I don't think what John Edwards did in having an affair with Reille when he did was so heinous.  

    He didn't stop caring for his wife or providing her with loving attention from what I know.  She probably had very low energy and zero interest in sex ever, or at most extremely rarely.  He didn't abandon her.  He knew she was dying as did she.  

    The French and many other cultures would not consider a husband having a non abandoning affair under such circumstances heinous, but natural and reasonable.  American women are extremists on such topics, as to a lesser extent are other Anglosphere women.

    Now if Edwards had himself moved to divorce his wife as she was dying of cancer to marry Reille, instead of caring for her and waiting, that would have been nasty.  What Gingrich did.

    Elizabeth didn't have Alzheimer's. (5.00 / 0) (#24)
    by oculus on Thu Apr 26, 2012 at 06:18:22 PM EST
    Sorry, can't really give him kudos for "non-abandonment."  

    Doug1111 (5.00 / 1) (#26)
    by Jeralyn on Thu Apr 26, 2012 at 06:34:01 PM EST
    I realize you are new here, but I have repeatedly said (as the judge instructed the jury) this is not about whether Edwards is a cad. It's about whether he violated federal campaign laws. I don't want the thread hijacked into personal views of Edwards' behavior. I spend a lot of time trying to analyze the legal issues and I am interested in others' views of the case and evidence. Changing the topic is not allowed. You have to get your own blog for that.

    As a new commenter, Doug is (5.00 / 3) (#30)
    by Anne on Thu Apr 26, 2012 at 08:06:56 PM EST
    well over your 10 comments per day limit - currently at 48 today alone - which is excessive even for long-time commenters.

    I'm giving him a pass (none / 0) (#35)
    by Jeralyn on Fri Apr 27, 2012 at 02:24:40 AM EST
    on that. He is well-informed on the facts of the case he's commenting on and if you want to discuss this, let's do it in an open thread, not an Edwards thread. Thanks.

    OK, sorry. (none / 0) (#40)
    by Doug1111 on Fri Apr 27, 2012 at 10:38:55 AM EST
    You have stricter standards of what's on topic than anywhere else I know, but that's fine, now that I'm getting a better idea, I'll endeavor to stay within those lines.

    It will be interesting to see (none / 0) (#4)
    by KeysDan on Thu Apr 26, 2012 at 03:34:27 PM EST
    how Team Edwards backs up the argument, " Mellon and Baron would have paid for the expenses even had Edwards not been running for office." The late Mr. Baron was a long-time friend and former partner of Edwards and that might be reason enough to support the argument--without rebuttal (save for possible documentation).

    Mrs. Mellon's role may need another tact, since she seemed to be a political supporter and fan and was, apparently, upset over criticisms such as  the fire the expensive haircuts drew--and was willing to finance such expenditures in service of the cause.  However, the funneling of Mrs Mellon's checks through her decorator with notations for antique furniture, may support her use of  discretion in the support of Ms. Rielle's expenses, in an effort to keep this support from Mrs. Edwards.

    "tack": (5.00 / 1) (#6)
    by oculus on Thu Apr 26, 2012 at 03:48:31 PM EST
    Yes, thanks. (none / 0) (#7)
    by KeysDan on Thu Apr 26, 2012 at 03:51:39 PM EST
    Bunny Mellon, seems to me (5.00 / 1) (#33)
    by gyrfalcon on Thu Apr 26, 2012 at 11:54:36 PM EST
    supported Edwards's campaign for president because she had long fervently believed in him and even loved him (platonically) as a person, not the other way around.

    there is no case (none / 0) (#5)
    by desmoinesdem on Thu Apr 26, 2012 at 03:48:20 PM EST
    This trial looks like an attempt to have the DOJ be seen going after a hated public figure, rather than prosecuting an actual crime.

    That said, my money is on the jury convicting because they hate the defendant. Edwards' legal team will need a lot to overcome those feelings.

    I think by the time (5.00 / 1) (#15)
    by Jeralyn on Thu Apr 26, 2012 at 04:38:58 PM EST
    all the evidence is in, it's Andrew Young they'll hate more. I think they will acquit on the conspiracy. I'm not sure yet on the substantive counts as they may be depend on Bunny's lawyer (Alexander Forger) and decorator (Bryan Hoffman) and Fred Baron's widow and law partner (Lisa Blue) which we haven't heard yet.

    good point (none / 0) (#17)
    by desmoinesdem on Thu Apr 26, 2012 at 04:48:26 PM EST
    Andrew Young is a highly unlikeable figure in the whole sorry tale.

    This is tawdry melodrama ... (none / 0) (#14)
    by Donald from Hawaii on Thu Apr 26, 2012 at 04:37:09 PM EST
    ... at its absolute finest. I better go make some popcorn.

    This case is mondo (none / 0) (#21)
    by Doug1111 on Thu Apr 26, 2012 at 06:06:08 PM EST
    complicated and I'm not that interested in the intricacies if federal election law.  I'm impressed that you've become so knowledgeable about it.

    I have however heard on both CNN and Fox that this is an unprecedented application of federal election law with no one arguing otherwise.  That bothers me.  A lot.  It does make sense to me that the intent part of a successful charge should fail, since Edwards apparently had no way of knowing what he did was illegal.  

    on the unprecedented (5.00 / 1) (#25)
    by Jeralyn on Thu Apr 26, 2012 at 06:28:23 PM EST
    interpretation, I tried to explain it a year ago  here, with links to the FEC commission opinions in other cases that demonstrate it.

    I have no particular knowledge of campaign election laws. I've just read and saved every non-sealed pleading, court order and exhibit filed in the case since the beginning. That's why I present it as "the Government claims" and the "Team Edwards argues." The judge has still not ruled on some key Edwards motions that could greatly affect the final jury instructions.

    On your point about intent, Team Edwards says:

    Intent and motive must not be confused.

    "Motive" is what prompts a person to act. It is why a person acts.

    "Intent" refers to the state of mind with which the act is done, a necessary requirement for the crime charged in this case.

    ...If the law is so uncertain or highly
    debatable that reasonable persons could disagree as to whether those payment would be
    regulated as a campaign contribution, then Mr. Edwards could not knowingly and willfully violate the law by accepting or failing to report such a payment as a campaign contribution.

    Also there's apparently a big issue as to whether it's Edwards' intent or the donors' intent that matters. Election law expert Rick Hasen says it's Edwards' intent. Team Edwards agrees, and for example, as to Baron, asks for this jury insruction:

    In 2008, Mr. Edwards expressed an interest in either becoming Vice President or Attorney General and that Fred Baron may have been motivated by this prospect. I am instructing you that any money spent to promote that interest is not a contribution under the Federal Election Campaign Act and cannot be the basis for a finding of guilt in this case.

    I'll stop here.


    I do not get how (5.00 / 1) (#34)
    by gyrfalcon on Thu Apr 26, 2012 at 11:58:12 PM EST
    somebody can be prosecuted for deliberately violating a law in a way that it never occurred to anybody, including the prosecutors, anybody could find illegal.

    I will be profoundly disillusioned if this case succeeds.


    I believe that having good hair (none / 0) (#27)
    by expy on Thu Apr 26, 2012 at 07:19:09 PM EST
    was a big part of Edwards' electoral appeal, and yet  there was near-unanimous agreement that the cost of his hair dresser was not a proper campaign expenditure, and the $600 inadvertently spent for the campaign-plane haircut had to be reimbursed out of Edwards' personal funds.    

    What about the cost (5.00 / 1) (#37)
    by Jeralyn on Fri Apr 27, 2012 at 02:38:31 AM EST
    of makeup for a female candidate? That seems to be a proper campaign expenditure. Via the New York Times:

    Gov. Sarah Palin's traveling makeup artist was paid $68,400 and her hair stylist received more than $42,000 for roughly two months of work, according to a new campaign finance report filed with the Federal Election Commission.

    I would request (none / 0) (#28)
    by Doug1111 on Thu Apr 26, 2012 at 07:19:12 PM EST
    that you don't stop comments at 200.

    There is very interesting back and forth or your Trayvon-Zimmerman posts that get's cut off there.  Why?

    It's been that way (none / 0) (#36)
    by Jeralyn on Fri Apr 27, 2012 at 02:33:59 AM EST
    since the 2008 primaries.  After a certain point, people just start repeating themselves and sniping at each other.

    When the comments exceed 200, the site bogs down and doesn't display properly,I'm not really sure why. Even though TalkLeft is on its own server, for which I pay a lot of money, it takes longer to load. Maybe because there are 10 years of posts on it and  who knows how many comments (although comments through 2006 or 2007 have been deleted.) There will be a new thread on Zimmerman or you can discuss it in the open thread. You can also email me with questions.

    Also, I've waived the posting limit on new commenters for you. You can respond as you wish, so long as you don't just repeat yourself, which so far you haven't. I've liked reading your comments.


    Edwards suspends campaign (none / 0) (#31)
    by JoeW on Thu Apr 26, 2012 at 08:40:16 PM EST
    I'm curious, did Edwards ever drop out? Per AP via MSNBC, Edwards suspended his campaign:

    As expected, Edwards said he was suspending his campaign rather than ending it, but aides said that was simply legal terminology so that he can continue to receive federal matching funds for his campaign donations.

    If someone suspends a campaign in order to continue to receive federal matching funds, I think it could successfully be argued that they are still a candidate. That could be problematic for one angle of the defense. The article is dated 1/30/2008, the date the defense states the campaign ended.

    IRS prosecution (none / 0) (#39)
    by nckate11 on Fri Apr 27, 2012 at 09:38:39 AM EST
    Has anyone read anywhere that the IRS is looking into prosecuting the Youngs or Hunter for receiving this money and not reporting it as income?  Seems that Team Edwars would love to take that angle to rebuke the Youngs' or Hunter's testimony.

    their immunity agreement (none / 0) (#41)
    by Jeralyn on Fri Apr 27, 2012 at 02:03:06 PM EST
    may prevent federal prosecution on any charges stemming from this investigation which would preclude a criminal tax charge, but I don't think even if they got such extensive immunity it prevents the civil division of the IRS from going after them for tax liability. I don't know if they would have civil liability or not.

    Short answer: (Not definitive, just my immediate thoughts): I doubt there would be federal criminal tax charges brought against either of them, but civil tax liability could be an issue.