John Edwards: Curing Undue Prejudice

Right before the Government rested today, it was allowed to play the entire 2008 interview John Edwards gave to 20/20, in which he acknowledged having a brief affair with Rielle Hunter that had ended a long time ago, and in which he said Elizabeth knew all about it. Also in the interview, Edwards said:

"I have never asked anybody to pay a dime of money. Never been told that any money has been paid. Nothing has been done at my request."

Even if all three of those statements were a lie, John Edwards would be not guilty if the funds provided by Baron and Mellon were not "campaign contributions" as defined by the federal campaign finance statutes. [More..]

I'm not sure why the Government was allowed to play the entire interview for the jury. Since John Edwards has not testified, the tape wasn't admitted as impeachment evidence. He has not admitted any criminal conduct. His state of mind at the time of the interview in August, 2008 may or may not reflect his state of mind in in 2007 and early 2008. Nor were his statements in the interview contradictory to his defense. His defense is that the monies Fred Baron and Bunny Mellon provided were not campaign contributions because they weren't for the purpose of influencing the election, were not for paying his personal expenses, and as to some counts, were not received while he was a candidate for federal office, but after he ceased to be a candidate.

According to Edwards, the monies were not intended to influence the election, but to hide Hunter from the media so his cancer-stricken wife wouldn't learn the truth and leave him. It's not that Elizabeth didn't know he had an affair. It's that he lied to her about the extent of it. If Elizabeth knew he had lied when he told her he only had a brief fling with Hunter that ended a long time ago, and when he told her that Andrew Young was the father of Hunter's baby, she would be devastated and his marriage would be over.

Since his goal was to save his marriage and spare his wife and family more trauma, of course he's going to tell the same story to 20/20 he told to his wife. The interview, like the monies from Baron and Mellon, was intended to save his marriage and spare his wife additional pain.

Edwards could have fully known about and orchestrated the contributions from Baron and Mellon, and it wouldn't be a crime if the monies are not campaign contributions as defined by the statute.

To me, this highlights a major problem with the way the Judge conducted this trial. Rather than ruling on critical issues the defense raised in pre-trial motions, she deferred ruling until trial, saying "let's wait and see what the evidence shows at trial." She in essence, kicked the can down the road.

She still hasn't ruled on the most critical issues. How will she define a campaign contribution, a personal expense and a candidate for office to the jury? No one knows yet. And yet, prejudicial evidence such as the 20/20 interview showing Edwards lied to his wife and the country about his affair and paternity, humiliating private details of marital discord and his wife's anguish during her final days, and witness statements as to Edwards', Baron's and Mellon's state of mind over a period of years, including long after the contributions, have been admitted into evidence for consideration by the jury, in support the Government's theory that the funds from Baron and Mellon were campaign contributions; that Edwards knew they were campaign contributions; and that Edwards knew he was violating the law in accepting them and not disclosing them to his campaign, despite his knowledge the campaign was obligated to report them.

What if the Judge rules in Edwards' favor on some but not all of his arguments, either in deciding his motion for judgment of acquittal or in jury instructions? How does the jury disregard the overwhelming amount of prejudicial testimony and evidence that came in because it supported Government theories the court has finally determined to be invalid?

Edwards' arguments, as I read them, include:

1. Monies provided by donors are not campaign contributions unless they were given while Edwards was a candidate for federal office, were unambiguously related to his campaign, were intended to influence the election. and would not have been given had he not been running for office.

2. Edwards ceased being a candidate on January 30, 2008, when he suspended his campaign.

3. Money spent to promote consideration of Edwards for vice president or attorney general is not charged in the indictment and cannot be the basis for finding those expenditures to be campaign contributions. Such expenditures cannot be the basis for guilt under the federal election laws because Edwards was only a candidate for President.

4. Money provided to a candidate becomes a contribution on the date it is accepted and deposited by the candidate (not the date the donor writes the check)

5. In order for donated money to be considered a personal use expense, the money must be for the candidate's personal use, not for the use of a third party. Money is not considered a personal use expense of the candidate when it is provided by a third-party to another third-party for that third-party's (or another's) expenses; the money did not go to the campaign; did not go to the candidate; and was neither spent by the campaign nor the candidate. The personal use expense regulation only applies to the candidate's personal use expenses. It does not apply to the payment of other people's expenses, even if the candidate encourages third-parties to pay the personal expenses of other people.

A "personal use" expense is "any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign or individual's duties as a holder of Federal office". Examples: a mortgage or utility bill. Edwards was not legally obligated to support Rielle Hunter. thus, money used to support her or Andrew Young were not expenses he would be obligated to pay irrespective of the campaign and do not fall under the "personal use" expense section of the law.

Since monies provided by Mellon and Baron were not used to satisfy a financial obligation Edwards would have been obligated to pay even if he had not been a candidate for federal office, he can't be found guilty under this theory.

6. The monies had to be unambiguously connected to the campaign and susceptible of no other reasonable interpretation.

7. Fred Baron's monies can't support a guilty verdict on counts 4 and 5 because the government failed to establish venue in the Middle District of North Carolina on these counts. The counts allege Baron paid for: a charter flight to Aspen, Colorado; another from . Aspen to San Diego; a hotel in San Diego and airfare from San Diego back to Aspen, and then to Santa Barbara, CA; and a hotel in Santa Barbara.

The Government can't rely on "accessorial" acts for venue on these counts because the charged crime, acceptance of an illegal campaign contribution, is not a continuing offense and John Edwards can't be anything other than the principal on these counts. (The crime charged in these counts is a status crime -- acceptance of money by a candidate). That the monies can be aggregated for a year only relates to punishment (a felony vs. a misdemeanor), it is still a single offense.

Venue is improper on all the Mellon and Baron counts (2 through 5)if the money was not received (deposited) in the Middle District of North Carolina.

8. The count charging Edwards with illegal acceptance of money from Mellon in 2008 is invalid because her 2008 funds were received (deposited)after he withdrew from the race. Once Edwards suspended his campaign, he was no longer a candidate for President or federal office. Receiving money after he was no longer a candidate could not influence the outcome of the election.

9. Since the charged crime is illegal acceptance of a campaign contribution, the intent of the donor is not the determinative issue. The intent of the donor would be relevant if the donor were charged with making an illegal contribution, or Edwards was charged with aiding and abetting the donor's making of an illegal contribution.

10. There can be no aiding and abetting liability on the four counts charging acceptance of illegal contributions from Mellon and Baron (Counts 2-5)because Edwards can't be anything other than the principal on the crime of accepting an illegal campaign contribution. While Andrew Young could aid and abet Edwards, Edwards can't aid and abet himself. (The crime charged in these counts is a status crime -- acceptance of money by a candidate).

11. The campaign finance violations alleged in Counts 2-5 and the making of a false statement to the government charged in Count 6 all require that Edwards violated the law "knowingly and willfully." Proving that Edwards violated the campaign finance laws or caused someone to make a false statement to the government is not sufficient to convict him unless he violated the law "knowingly and willfully." That means Edwards had to known his actions were prohibited by law and he acted with the purpose of violating the law, and not by mistake or accident or in good faith.

A factor in determining willfulness is whether the requirements of the law were vague or highly debatable. If the law is so uncertain or highly debatable that reasonable persons could disagree as to whether those payments would be regulated as a campaign contribution, then Edwards could not knowingly and willfully violate the law by accepting or failing to report such payments as campaign contributions. Edwards' proposed expert witnesses would testify to the uncertain state of the law, and that a reasonable person in Edwards' situation in 2007-2008 would not have known accepting the funds violated campaign finance laws.

12. Edwards is not legally responsible for the acts of Andrew Young on an agency theory unless Young was specifically instructed and authorized to perform the acts in Mr. Edwards’ name, and Young did not exceed the authority that he was given.

Edwards could not "knowingly and willfully" cause Andrew Young to commit a crime, if he did not know that Young would be committing a crime by doing what Edwards authorized him to do on his behalf. If Edwards believed in good faith that Young was not committing a crime by doing what he asked Young to do, Edwards can't be found guilty on an agency theory.

13. The federal government can not dictate to a candidate how much of his own money he can spend on his own campaign. Nor can it tell other individuals how much money they can spend advocating on behalf of a candidate, so long as that spending is not coordinated with the candidate or his campaign.

Because of the First Amendment, campaign finance laws may constitutionally regulate only those actions that are unambiguously related to the campaign of a particular candidate. In this case, for Mellon and Baron's funds to be campaign contributions, the funds had to be unambiguously related to his campaign to become President. If Mellon or Baron would have made the payments for a reason that is not campaign-related, such as preventing Elizabeth Edwards from being hurt or helping Rielle Hunter through her pregnancy, the payments are not subject to the campaign finance laws and Edwards cannot not be convicted either for accepting the payments or for failing to report the payments to the Federal Election Commission.

14. There is a substantial variance between the single conspiracy alleged in the indictment and the evidence of apparent multiple conspiracies at trial. The indictment charges that Edwards was part of one single conspiracy to commit the crimes of accepting and receiving illegal campaign contributions or causing false campaign finance reports to be filed with the Federal Election Commission.

The Government's evidence at trial showed two or more separate conspiracies, one involving alleged campaign contributions from Mellon and the other involving alleged campaign contributions from Baron. Mellon and Baron did not conspire to assist Edwards in accepting each other's campaign contributions or in causing the other's alleged campaign contributions to be falsely reported to the Federal Election Commission.

The government failed to prove that there was a single conspiracy involving campaign contributions from both Mellon and Baron, thus Edwards cannot be guilty of the conspiracy charge. Proof that Edwards was a member of two different conspiracies, or some conspiracy other than the single conspiracy charged in the indictment is not enough to convict.

Aiding and abetting does not apply to the conspiracy charge. The Government must prove Edwards personally joined the single charged conspiracy.

(Again, this is my interpretation of Edwards' arguments based on the pleadings and transcripts of pre-trial motions hearings -- it is not a list compiled by Edwards' lawyers.)


You can't unring a bell or put toothpaste back in the tube. So much prejudicial, hearsay evidence came in during the Government's case, under the guise of being relevant to Edwards and others' state of mind on various counts, that unless the Court accepts all Edwards' arguments and dismisses all the charges (unlikely in my view), a ruling dismissing just some of the counts won't cure the prejudicial spillover effect on the jury of evidence that came in to support the dismissed counts. Limiting instructions are insufficient to undo the damage. But firm rulings by the judge prior to trial, especially on the requirements of the campaign finance laws, could have prevented a lot of it.

Even if the judge denies all the defense requests, the Government has a problem. It didn't prove willfulness -- that Edwards knew the donations were illegal contributions and had to be reported, and that he accepted the payments and failed to report them knowing he was doing so in violation of the law. None of the lies John Edwards told his staff, his wife, Andrew Young, Hunter or the media, and none of the testimony about his political aspirations after his campaign ended, fill that void. The danger is that the jury might find otherwise.

Update: The defense did not file any pleadings tonight. But the Government filed a new set of proposed jury instructions and a brief in support of them. There are three noticeable differences from its earlier submission. The first eliminates the reference to a candidate seeking election as Vice President from the definition of "a candidate for federal office." If this means it will no longer argue that Edwards' interest in becoming Obama's running mate affects whether the donations were campaign contributions, it seems to me there was no valid reason for admitting that testimony today.

Second, the government makes a new argument, based on a racketeering case and campaign finance regulations, that the donations did not have to be for the sole purpose of influencing a federal election. It asserts that if there were multiple purposes for the donations, so long as one was to influence the election, the money can still be a campaign contribution.

Because people rarely act with a single purpose in mind, it is not necessary that you find that a gift, purchase, or payment was made solely for the purpose of influencing a federal election. It is sufficient under the law if you find that the gift, purchase, or payment was made for, among other purposes, the purpose of influencing any election for federal office.
Third, the Government now wants the jury instructed on "Sympathy."
It is for you alone to decide whether the government has proven that the defendant is guilty of the crimes charged solely on the basis of the evidence and subject to the law as I instruct you. It must be clear to you that once you let fear or prejudice, or bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.

...if you should find that the government has met its burden of proving a defendant's guilt beyond a reasonable doubt, you should not hesitate because of sympathy or any other reason to render a verdict of guilty.

Since the Government's witnesses did not portray John Edwards in anything coming close to a sympathetic light, I assume its new-found concern is based on the anticipated testimony from defense witnesses. What defense witness could evoke sympathy from the jury for John Edwards? The only one I can think of is daughter Cate Edwards. (Since she was excluded from the Court's sequestration order, she could be called.)

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    well here I am on the outside of popular (2.50 / 2) (#2)
    by TeresaInPa on Fri May 11, 2012 at 07:19:14 AM EST
    thought once again. John Edwards found a fancy way to get away with campaign finance fraud.  He got Mellon to give him campaign money by bypassing him and giving it directly to his mistress to support her in the manner she demanded...too keep his wife in the dark...to keep the media and the American people in the dark, so as to keep his campaign going....voila`, campaign donation.
    No matter how much Bunny liked her dear boy she would not have given him this money, nor would he have asked for it had he not have been running for president.
    So if the prosecution is throwing everything including the pot of shrimp and clams at him I don't blame them and I hope they get him and then new laws are passed getting rid of the loop holes very smart greasy sleezeball lawyers like Edwards can slip through.

    but, the government proved the one thing (none / 0) (#1)
    by cpinva on Thu May 10, 2012 at 10:47:08 PM EST
    it intended to, and is relying on the jury to convict mr. edwards of: he is a cad.

    that is the sum and substance of their case. of course, being a cad isn't ordinarily a criminal offense, but that's pretty much all the government has. and we all know it's much, much more difficult to get a conviction tossed on appeal, which is also what the government is counting on.

    this is the scott peterson case all over again, just with a much more high profile defendant. i wonder how many members of this jury already have plans to make money off of a book or interviews?

    Arguably.... (none / 0) (#3)
    by bmaz on Fri May 11, 2012 at 09:55:45 AM EST
    ...this case should have never seen the light of day in front of a jury. But, given that it did, I am appalled at all of the evidence that has been blithely let in over what, at least to my eye, are clear 402 and 403 concerns. Jeebus. And, yes, nice touch by the prosecution on the no sympathy instruction. Ugh.

    But (none / 0) (#4)
    by jbindc on Fri May 11, 2012 at 10:45:27 AM EST
    According to Edwards, the monies were not intended to influence the election, but to hide Hunter from the media so his cancer-stricken wife wouldn't learn the truth and leave him. It's not that Elizabeth didn't know he had an affair. It's that he lied to her about the extent of it. If Elizabeth knew he had lied when he told her he only had a brief fling with Hunter that ended a long time ago, and when he told her that Andrew Young was the father of Hunter's baby, she would be devastated and his marriage would be over.

    Can't they use this to impeach Edwards on the fact of credibility alone?  He's had a (public) history of lying - why should the jury believe him now?


    How can they believe (none / 0) (#5)
    by sj on Fri May 11, 2012 at 11:49:09 AM EST
    or disbelieve him?  He didn't testify.  The testimony comes from others.

    Also, the cheating spouse lie is one that is easily understood.

    I kinda wish you would stop bringing in emotional, unrelated stuff.  You are putting me in the very uncomfortable position of defending him  :\


    I'm talking legally (none / 0) (#6)
    by jbindc on Fri May 11, 2012 at 12:00:51 PM EST
    His position, through his lawyers and his witnesses, is that he should be believed he didn't know how the money was dealt with and that he assumed it was to hide his mistress from the public and his wife - in other words, to perpetuate a lie.  He has already admitted that he lied about the affair and child, etc.  

    There are rules of evidence that allow (in some situations) the prosecution to introduce the fact that the defendant has lied in the past or has a history of lying.  I was asking the criminal defense attorneys if this is one of those cases - it doesn't really matter if it was "only about an affair" and while those lies may be easily understood, most people who have affairs don't have billionaires helping them finance the covering up of an affair to a)not get caught by the injured spouse, or, in this case, b) to allow them to continue to run for president. It goes to his credibility for truthtelling - not to how you view him for being a cheater.

    It's the old question: "Were you lying then or are you lying now?" and I think that is absolutely fair game.  Which is why I was wondering if under the Federal Rules of Evidence, that would be allowed.


    By that logic (5.00 / 2) (#7)
    by NYShooter on Fri May 11, 2012 at 12:18:23 PM EST
    Were I an attorney I would begin my cross examination of every opposing witness with, "have you ever told a lie?"

    If the answer is, "yes," than nothing he/she says afterwards is to be believed. If he/she says, "no," then most people would infer that that is a lie, and everything he/she says afterwards is not to be believed.

    This is the sort of hypocrisy that lawyers use to impugn the veracity of witnesses. The idea that someone told a lie sometime in their life does not imply that they are a chronic "Liar."


    I think this is a bit different (none / 0) (#8)
    by jbindc on Fri May 11, 2012 at 12:36:28 PM EST
    Again - this isn't you lying and telling your friend you like her blouse.  This even isn't about lying to cover up an affair.  And let's fact it - it also isn't "a lie" either.

    But it's more than that - your question would be silly in court.  Asking about truthfulness andhonesty is used in certain circumstances, like for example, if you had a previous conviction for embezzlement - that could definitely be used.

    Were I an attorney I would begin my cross examination of every opposing witness with, "have you ever told a lie?"

    Actually - many attorneys DO ask that question.


    as I said (none / 0) (#9)
    by Jeralyn on Fri May 11, 2012 at 12:48:31 PM EST
    he hasn't testified. He has a right not to testify. This isn't being used for impeachment. Look up impeachment.