John Edwards: Government's Final Witnesses

The Government will rest its case against John Edwards today. According to the Charlotte Observer, the final three witnesses will be law enforcement officers. According to another account, one of the final witnesses will be Leo H. Hindery, Jr., a Democratic power player and former cable magnate who became the Edwards campaign's senior economic policy advisor in June, 2007. Hindery switched his support to Obama after Edwards dropped out,

What would he testify to? Possibly that Edwards' was interested in being Attorney General if Obama won the election. From Game Change by John Heilemann and Mark Halperin (Saint Elizabeth and the Ego Monster): [More...]

Having been rebuffed on the notion of teaming up with Obama after Iowa, he once again dispatched Leo Hindery to make a revised offer.

“John will settle for attorney general,” Hindery emailed Tom Daschle. Daschle shook his head. How desperate is this guy?

“Leo, this isn’t good for John,” Daschle replied. “This is ridiculous. It’s going to be ambassador to Zimbabwe next.”

Daschle warned Hindery that this new offer, like the last one, was sure to be rejected. And it was. When Obama heard about the suggested quid pro quo, he was incredulous. That’s crazy, he told Axelrod. If I were willing to make a deal like that, I shouldn’t be president!

I don't see the relevance of the testimony, since the campaign finance law doesn't apply to one seeking a cabinet position, I also don't see any e-mails of either Hindery or Daschle on the Government's exhibit list, so I'm neither convinced he will be a witness nor that this would be the subject of his testimony.

[Added: Hindery did testify, and the subject was indeed his reaching out to Daschle for Edwards to be Obama's running mate, and later, reaching out to both Obama and Hillary to be named Attorney General. Hindery said Edwards ultimate goal was to be named to the Supreme Court.]

Interesting Asides:

Wade Smith was one of John Edwards lawyers and the Government forced him off the case by saying it would call him as a witness. It never called him. Instead, it asked Bunny Mellon's lawyer to testify as to what Wade said. So the Government deprived Edwards of one of his counsel of choice, who knew him the best, for nothing. Nice.

On Hindery: Andrew Young thanks him for his "advice and friendship" in the acknowledgement section of the his book, The Politician.

On Jennifer Palmieri's testimony yesterday: According to the News and Record reporter who has been attending the trial, Palmieri did say a few things that could help the defense. At one point, she was asked by the prosecutor what she thought of Andrew Young. She took some direct shots at his credibility:

Palmieri: "I didn't find him particularly reliable. You couldn't take what he had to say at face value.


"He seemed insincere to me. ... He would exaggerate his experiences."

She also made a statement that supports Edwards' contention he was trying to keep the media at bay out of concern for his wife and family rather than to enhance his election chances:

"This was about protecting her and her family."

Added: As to the law enforcement officer testimony, the Government called two FBI agents, one who testified about phone records and one who showed the jury the payments made by Fred Baron.

It is somewhat surprising to me that the Government didn't call financial investigators or financial or election law experts. Maybe they couldn't find an election law expert, since its theory of criminal liability on the campaign contributions is so unprecedented.

When the Government rests, the defense will make a motion for judgment of acquittal. If the case survives that motion, the defense will begin its case. It's highly unlikely Edwards will testify. I also don't think Team Edwards will call Rielle Hunter. Even if they could control her on direct examination, cross examination by the Government could turn out to be a nightmare. And if the jury thinks as little of her as does the rest of the country, she'd could hurt Edwards' case rather than help it, no matter what she said.

The one person I think the defense will call is Lisa Blue Baron. She's a highly accomplished trial lawyer, a psychologist and a jury consultant. She might be able to save the day for Edwards all on her own. The Government won't intimidate her and is unlikely to trip her up. She probably has a lot to say to correct the impression the jury has gotten so far of Fred Baron. She might be very convincing if her testimony is that she, Fred, and John were concerned not with saving his campaign, but with preventing the media from disclosing more details of the affair from an already distraught and dying Elizabeth. She might say Baron (as he typically did, according to those who knew him) acted out of compassion and a sense of what's right. Even Andrew Young wrote in his book that Fred Baron never believed that John, rather than Andrew, was the father of Rielle's child until mid-2008. Fred gave numerous interviews before he died insisting that he had never discussed the affair with John.

Since this is a criminal case, the jury doesn't get to decide which side it believes more -- that's a preponderance of the evidence standard. It must believe the Government's version, which is based on testimony of the compromised Andrew and Cheri Young, over witnesses like Lisa Blue Baron and Alex Forger (especially as to the intent of Fred Baron and Bunny Mellon in providing the money) beyond a reasonable doubt.

That said, I think it will be the Judge who ends up affecting the verdict the most. She's the final arbiter on the jury instructions and will choose between the competing versions submitted by the parties. This will be particularly important when it comes to the instruction on the meaning of a campaign contribution. She will also make the call as to whether Edwards can call his FEC experts to testify as to whether a candidate should know that Baron and Bunny's money were or were not campaign contributions. I'm skeptical she'll allow them to testify.

Best case scenario: The judge tosses the charges based on the defense motion for Judgment of Acquittal -- after making a legal determination that even if everything the Government witnesses testified to was accurate, the Government hasn't proven a crime.

I think America has pilloried and taken more pounds of flesh from John Edwards and the memory of Elizabeth than any case I recall in recent memory. I don't think it's personal. It's how prosecutors view things. Which is probably why I'm a defense lawyer. I think my lens is is far more focused on justice.

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    Thanks for all the information (5.00 / 1) (#1)
    by sj on Thu May 10, 2012 at 09:16:29 AM EST
    Unlike you, I do think it's personal.  I think it's just as personal as Whitewater and the travesty that became.  I'm just baffled as to why.

    It is personal. This is about punishment.... (5.00 / 1) (#5)
    by cosbo on Thu May 10, 2012 at 03:31:01 PM EST
    and destruction of Edwards reputation. It's not about justice. Clearly it's not. This is about making sure that he never has a voice again.

    First, he's being punished for suggesting and planning the Public Option. That was a big deal in 2007-2008. It put Obama in a difficult position. He weasled out of it somewhat, but the effectiveness and fairness of the Edwards plan is absent.

    Second, the complete destruction of his reputation ensures that he will never rally a crowd for any big ideas behind him again.

    Aside from all his personal issues, Edwards was pretty effective at making his case.

    Elizabeth's reputation, life, sanity was the perfect sacrifice to ensure Edwards destruction.

    I don't think the government expect to win it's case, but a trial with lots of juicy witness testimony was probably the best way to leak all the dirt. Winning would just be the icing for them.


    Yes (5.00 / 1) (#6)
    by sj on Thu May 10, 2012 at 04:42:23 PM EST
    Overall, I agree with you.  After observing for a while I came to the conclusion that
    1. He had really, really pi$$ed someone off, and
    2. the charges and the trial were to make absolutely sure that he never, ever again had a credible public voice.  I was pretty sure that "someone" didn't want the "Two Americas" theme coming up again, but it seemed like overkill.

    I just couldn't see what he was being punished for.  I'll have to ponder what you say.  

    Maybe (none / 0) (#7)
    by jbindc on Thu May 10, 2012 at 04:49:07 PM EST
    It's to make an example of him.

    Kinda hard to scream about Republican Super PAC's et al, when the Dems are engaging in the same thing.  At least with this, they can show they are tough on members of their own party on someone who, while may or may not be guilty of illegally using campaign funds, should have known better than to get himself in this situation in the first place.


    Might be true if it was a super PAC (none / 0) (#8)
    by sj on Thu May 10, 2012 at 05:08:08 PM EST
    or even a PAC.  But this is about a gift.  Signed, sealed and taxes paid.  And if he was not
    guilty of illegally using campaign funds
    then "they" have no business charging him with it as punishment for said bad judgement.  Because it comes back to that: the charges are personal and intended to punish and discredit.

    The problem is (none / 0) (#10)
    by jbindc on Thu May 10, 2012 at 05:09:53 PM EST
    We don't KNOW if he is guilty of using campaign funds.  We know what has been testified to up to this point - conflicting stories.

    Really? (none / 0) (#11)
    by sj on Thu May 10, 2012 at 05:16:35 PM EST
    Just because the trial hasn't ended doesn't mean facts haven't come to light.  Now the jury may decide to punish him, too.  It isn't as if he would be the first defendent where the jury ignored the evidence.  Gift taxes were paid.  That's not a "story".  

    Well (none / 0) (#12)
    by jbindc on Thu May 10, 2012 at 08:21:08 PM EST
    Did Edwards pay taxes on the "gift"?  Any income from gifts over something like $14,000 is ordinary taxable income.  That also is a fact.  If not, either the IRS might be very intetested in speaking with him about tax evasion, or he considered the money a campaign contribution.  

    Which is it?


    This doesn't make sense to me (none / 0) (#13)
    by sj on Fri May 11, 2012 at 12:12:31 AM EST
    that it is the giver who is required to pay the taxes, but I'll say this: he isn't being prosecuted for tax evasion.  I believe that if the IRS could have been brought into it, they would already be all over it.  If I'm wrong, then we'll see.  In any case, tax evasion is a completely different matter than misuse of campaign funds.

    edwards didn't get (none / 0) (#14)
    by Jeralyn on Fri May 11, 2012 at 01:41:08 AM EST
    any money. Neither did his campaign. The money went from the donors to Andrew Young, and was for Young and Rielle Hunter. The donors paid gift tax. This is not about income to Edwards or his campaign.

    The Government has never alleged the campaign or Edwards got money or income. It's about expenditures made by donors.

    In certain instances, the election law creates a legal fiction and treats expenditures by
    donors as campaign contributions for the purpose of limiting the amount of expenditures a donor can make on behalf of a candidate.

    The Government is not alleging a direct contribution. It's alleging a coordinated  expenditure or personal use expense, which is treated under campaign law as a contribution so that limits can be placed on them.

    The Government acknowledged in  pleadings that the funds are not a direct contribution -- meaning  there weren't dollar amounts that were given to the campaign, put into the Edwards For President campaign coffers or spent by the campaign.

    This isn't about income to John Edwards or his campaign. It's about whether the donations were expenditures by donors and accepted by the candidate that the law treats as a contribution for the purpose of putting a ceiling on them.


    As to why, (none / 0) (#2)
    by Jeralyn on Thu May 10, 2012 at 12:42:28 PM EST
    read Edwards' brief in support of his motion to dismiss based on prosecutorial vindictiveness, which was denied prior to trial.

    At the hearing on the motion, the prosecutor said the final decision was not made by US Attorney Holding, but by the Assistant Attorney General for the Criminal Division (Brewer) after consultation with the leadership of the Public Integrity Section and after listening to Edwards' lawyers on why he should not be charged.


    If you just want a summary (none / 0) (#3)
    by Jeralyn on Thu May 10, 2012 at 12:46:47 PM EST
    I wrote one here at the time they filed their motion.

    Thanks (none / 0) (#9)
    by sj on Thu May 10, 2012 at 05:09:43 PM EST
    Now that you pointed it out, I remember that.  That explains why this particular dog might be worrying the bone.  Now who sicced him on Edwards, and why?

    Great analysis, Jeralyn! (none / 0) (#4)
    by Robot Porter on Thu May 10, 2012 at 12:47:52 PM EST
    Much clearer and less sensational than anything else I've read on the trial.  Thanks!