John Edwards Begins Presenting Defense

Update #1: The FEC concluded an audit last month and found the funds from Baron and Mellon were not campaign contributions, but the Judge wouldn't let the witness testify to that.
U.S. District Judge Catherine Eagles refused to allow Haggard to testify that the FEC determined last July that the money from the two donors wasn't campaign contributions. Prosecutor Jeffrey Tsai argued outside of the jury's presence that the stance of one FEC commissioner was irrelevant to the criminal case.

Haggard was allowed to testify that FEC auditors never asked her to amend campaign finance reports to include the money from Mellon and Baron, even after Edwards was indicted last summer. The audit of the campaign, which was required because Edwards accepted federal campaign matching funds, was finally completed last month, she said.

And the judge still hasn't ruled on whether Edwards' expert can testify. [More...]

Original Post

The defense in the John Edwards trial is presenting its witnesses. First up was Lora Haggard, who was the controller or CFO of his 2008 campaign. Nicole Ferguson of My Fox 8 has been tweeting from court. Her first tweet:

Edwards' defense came out swinging this morning, and Edwards is smiling.

Later, Ferguson tweeted that defense witness Haggard testified Edwards had no influence over campaign reports submitted to FEC. Haggard took full responsibility for reports. She said the FEC commissioner concluded no excessive contributions had been made, so they didn't need to be reported. Ferguson also said prosecutors were "clearly frustrated" during cross-examination of Haggard and they "argued Haggard [and the] FEC commissioner were not experts in this matter the jury is deciding."

Via Twitter, Haggard said she didn't consider the Mellon or Baron contributions to be campaign contributions, but apparently the parties are now battling over whether she can say what the FEC told her.

MSNBC has posted the full transcript of Friday's hearing on John Edward's Motion for Judgment of Acquittal.

Yesterday, Team Edwards filed its objections to the Government's latest round of proposed jury instructions. I discussed the ones on reasonable doubt in the update to this post.)

The biggest debate now seems to be over the meaning of the word "the" in the campaign finance statute which requires that in order for a contribution or expenditure to be considered a campaign contribution it must be "for the purpose of influencing the election." The Government last week filed a brief arguing that "the purpose" can be one of several purposes. The defense says Congress' use of the word "the" in "the purpose" means influencing the election must be the sole purpose of the donated funds in order for the monies to be considered a campaign contribution.

Since I have my own pleadings due today, instead of writing 3,000 words today as I usually do, I just uploaded the relevant jury instructions and arguments so you can read them for yourself.

To be continued.

< Sunday Night TV and Open Thread | Defense Gets Discovery in George Zimmerman Case >
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  • Display: Sort:
    If there was an FEC (5.00 / 1) (#7)
    by Zorba on Mon May 14, 2012 at 03:35:34 PM EST
    audit, then I don't see why the defense can't introduce that on Edward's behalf.  There must be a report on record from the FEC.  Why can't that be submitted as evidence in Edward's favor?  If the Federal Election Commissioner isn't an "expert" at determining what is and what isn't an allowable campaign contribution, then he's in the wrong job.  And he would certainly be much more of an expert on campaign finance law than a couple of prosecutors in the Justice Department.

    Exactly (5.00 / 2) (#15)
    by sj on Mon May 14, 2012 at 04:02:15 PM EST
    Like scribe:
    ...I've come to the conclusion that the plaintive sound I heard was, in fact, the distant whistle of a railroading.
    I just hope the jury sees through it.  If I were on that jury, and voted to convict, only to find out later that the judge excluded this information, I would be devastated.  This isn't tainted evidence or tainted testimony.  They just made the responsible government agency irrelevent to the wishes of the JD.

    It still stuns me... (5.00 / 5) (#8)
    by bmaz on Mon May 14, 2012 at 03:41:11 PM EST
    ...that an official audit by the relevant United States federal agency in charge of the pertinent issue can classify these funds contrary to what the United States is arguing to the jury, and that finding is not admissible on its face and the case done. The FEC position has been evident for some time, but I was not aware of final conclusion of the audit.  This is just BS. There is but one sovereign United States, and they have effectively cleared Edwards. The jury should be told that, even if Judge Eagles does not have the cojones to dismiss the case.  

    I don't get it, either, bmaz (5.00 / 3) (#10)
    by Zorba on Mon May 14, 2012 at 03:47:27 PM EST
    That should be all the defense Edwards needs.  Judge Eagles let the prosecution introduce all kinds of irrelevant cr@p about Edwards' private life, but this, which is extremely relevant, she won't allow?

    Yeah, this is too bizarre (5.00 / 4) (#13)
    by NYShooter on Mon May 14, 2012 at 03:58:42 PM EST
    There's got to be something we're missing.

    This is like the victim in a homicide walking into the courtroom and saying "Hi" to the judge.....who then refuses to drop the murder charge.

    How many post trial verdicts do we have to witness where the jury says afterwards, "wow, if we knew that, we would've have certainly voted differently?"

    I've always felt, except in exceptional cases, everything should come in. If the judge had a problem with the FEC official's testimony/evidence, she should have let it come in and then let the prosecutor make whatever explanation he wanted to in his summation. I sure as heck trust the combined wisdom of twelve average citizens to ferret out the truth more than an imperfect, and possibly biased, judge.


    You mean (none / 0) (#11)
    by jbindc on Mon May 14, 2012 at 03:48:01 PM EST
    this audit?

    The one that had nothing to do with the funds used to cover up his affair?

    The Federal Election Commission ruled that former Sen. John Edwards (D-N.C.) will have to pay the government almost $2.3 million following an audit of his 2008 presidential bid.

    The payments are mostly a result of Edwards' acceptance of federal matching funds beyond the limits that he was entitled to and not connected to allegations that he used campaign funds to cover up an extramarital affair.

    By a unanimous vote, agency leaders ruled that the Edwards campaign has to pay back the government more than $2.1 million in primary matching funds that were "in excess of the candidate's entitlement." The FEC also said the campaign may have to pay $142,000 to the Treasury Department for 128 stale-dated checks.

    Well, yes (5.00 / 2) (#12)
    by bmaz on Mon May 14, 2012 at 03:56:50 PM EST
    I absolutely mean that audit. If the allegations were raised and considered in it, and not held against Edwards, you bet I mean just that. And that is EXACTLY what I would be arguing all day long in his defense, and rightfully so.

    You say that as (5.00 / 1) (#14)
    by sj on Mon May 14, 2012 at 04:00:14 PM EST
    if it were a "gotcha".  I haven't yet read your link (although I will later).  But what you have written here has as much relevance to the charges as the purported video tape does.

    No (none / 0) (#16)
    by jbindc on Mon May 14, 2012 at 04:15:51 PM EST
    I was providing information regarding a "long known" audit and asking if that's the one bmaz was talking about.

    Jeralyn has since updated the post to reflect a new audit.


    If you say so (none / 0) (#18)
    by sj on Mon May 14, 2012 at 04:19:53 PM EST
    This is still true, however:
    But what you have written here has as much relevance to the charges as the purported video tape does.
    If you really wanted just clarification, and no interest in piling on, you w/could have asked your question with one neutral sentence and a link.

    enough, please stop (none / 0) (#37)
    by Jeralyn on Mon May 14, 2012 at 11:46:23 PM EST
    sniping at each other. Thank you.

    We only snipe half the time (5.00 / 1) (#43)
    by sj on Tue May 15, 2012 at 10:24:12 AM EST
    The rest of the time we are in total accord.

    grounds for appeal? (5.00 / 3) (#17)
    by desmoinesdem on Mon May 14, 2012 at 04:16:32 PM EST
    Could the judge's refusal to permit the defense witness to testify about the FEC audit provide grounds for appeal if Edwards is convicted?

    To my non-attorney brain, it makes no sense that the judge would exclude this testimony. It seems to go right to the heart of the issue.

    Grounds for appeal, what I was wondering... (5.00 / 3) (#21)
    by Angel on Mon May 14, 2012 at 04:39:55 PM EST
    I have thought from the beginning they are trying to railroad him.  Hope the jury sees through this nonsense, especially all of the unnecessary and salacious details about the affair that had nothing to do with the charges.  This is like Ken Starr all over again with the sex sex sex...

    Everything is "grounds" for an appeal (none / 0) (#27)
    by NYShooter on Mon May 14, 2012 at 05:07:49 PM EST
    But, believe me, you don't want to go there. First of all, appeals are extremely time consuming; they can take many years. Secondly, they're unbelievably expensive. And, finally, there's no assurance the appellate judges will be any wiser, or fairer, than the trial judge. Also, the scope of the appeals court is extremely narrow; you don't get to try the case over. Most of what occured in the original stays as is.

    It's a gamble with one's life, and I assure you, John Edwards knows that better than anyone.

    He'll move heaven and earth to finish it NOW.


    yes it could be (5.00 / 1) (#26)
    by Jeralyn on Mon May 14, 2012 at 05:04:31 PM EST
    a grounds for appeal by the defense.

    Assuming that the government (5.00 / 5) (#24)
    by jimakaPPJ on Mon May 14, 2012 at 04:52:52 PM EST
    knew that the FEC audit was underway... Why didn't they just wait for the results? Could have saved a million or so of tax payer money.

    You know, I'm beginning to smell payback from the Feds for some sin that we are unaware of.

    Jim, you can mark this day (5.00 / 1) (#28)
    by Zorba on Mon May 14, 2012 at 05:23:31 PM EST
    on your calendar.  It's another of the few times I've agreed with you.   ;-)
    It does seem as though the feds are trying to pay Edwards back for- who knows what?  Meanwhile, they're wasting our money on this farce.

    It does seem personal (5.00 / 2) (#29)
    by Rupe on Mon May 14, 2012 at 05:27:40 PM EST
    There is something about this case that just smells funny...as most people have commented, a lot of it just doesn't make sense.

    Told you so (5.00 / 1) (#30)
    by scribe on Mon May 14, 2012 at 08:59:32 PM EST
    This is a railroading pure and simple.

    I've said it before and I'll continue to:  the reason the Obama Administration took this case and continued it is because the message John Edwards presented in the 2008 campaign - that of Two Americas, one rich and one not, of eonomic inequality which needs to be addressed for the vast majority of people who are not well-off - has to be destroyed.

    There is no other reason for Obama to allow a Republican US Attorney (now running for Congress as a Republican) to continue in office for literally years into his administration, when the US Attorney's office in any district is one of the plum patronage jobs out there (and also an inocculant against scandals involving your own party).  Yet, in Edwards' case, Obama did just that.

    There is no other reason for Obama or Holder to allow a case with venue messed up as badly as this one.

    And there is no reason for allowing this case to fall to a new judge.

    If I'm Abbe Lowell, I'm pushing every bound in trying to get that FEC report into evidence and letting the government object.  And I will transgress the bounds.  And I will argue in my closing that, ladies and gentlemen of the jury, you can be sure that if the FEC report would have helped the government, they would have moved heaven and earth to bring it into evidence.  And you can infer from their battling to keep it out, that it kills their case.  And I don't care if I set off a mistrial.  And the same for the expert.  I might even go so far as to look the judge in the eye at sidebar and on the record and tell her she's making a mighty fine try at railroading my client with her evidentiary rulings and then call her on it when she can't look me back in the eye.

    Because she knows what she's doing and if she has even the remotest hint of integrity left (not a given in a judge) she won't be able to deny it.

    Can't wait for an open thread (5.00 / 1) (#32)
    by Peter G on Mon May 14, 2012 at 10:49:58 PM EST
    TSA gives Henry Kissinger, nearly 89 yrs old, an intensive pat-down at LaGuardia Friday.  In his wheelchair.  The agents had no idea who he is or was. Does the official "retired Secretary of State" ID say "war criminal" on it, or only "Nobel Prize winner"?

    And you ripped me a new one (5.00 / 1) (#33)
    by NYShooter on Mon May 14, 2012 at 10:56:39 PM EST
    for making a joke about Republicans building stone/brick houses for the purpose of deflecting potential molotov cocktails?

    Peter, would you mind explaining how the (none / 0) (#35)
    by oculus on Mon May 14, 2012 at 11:26:59 PM EST
    venue issue became a jury question in the Edwards criminal case?

    The general rule in federal court (5.00 / 1) (#42)
    by Peter G on Tue May 15, 2012 at 09:17:49 AM EST
    (although I have challenged this conventional view, as a matter of interpretation of the Sixth Amendment) is that when the facts that would establish venue as being in one place rather than another are in dispute, that factual dispute is a jury question. I'm not immersed in the details of the Edwards case enough to know what facts those might be, in his case. Typically, a prosecution based on an allegation of filing a false report with a federal agency has venue in Washington DC, or wherever the report was required to be filed.  However, specific laws can place venue elsewhere.

    OFF-TOPIC: Website Woes (none / 0) (#1)
    by Belswyn on Mon May 14, 2012 at 12:23:23 PM EST
    For the past few weeks, seemingly at random, talkeft has been diverting me to talkleft.prohost.mobi, I guess the website for mobile devices. I don't want this. How do I make it stop?!


    if you try to access (none / 0) (#2)
    by Jeralyn on Mon May 14, 2012 at 12:33:00 PM EST
    talkleft from a mobile device, it takes you to the mobile site. At the bottom of the mobile site, there should be a link to "desktop" and then the regular site comes up on your mobile device. At least on my iPhone it did. Let me know if that doesn't work.

    It's not a full featured mobile site, there are no comments or even a sitemeter to count traffic. I'm not sure I'll stay with it.


    I noticed the same thing (none / 0) (#3)
    by Zorba on Mon May 14, 2012 at 12:36:29 PM EST
    on my new iPad, but I eventually found the "desktop" function.  The mobile site didn't seem very useful to me, since as you said, no comments.  And I didn't care for its lay-out, either.

    I don't like mobile site either (none / 0) (#23)
    by ZtoA on Mon May 14, 2012 at 04:50:02 PM EST
    That's the problem (none / 0) (#4)
    by Belswyn on Mon May 14, 2012 at 12:37:42 PM EST
    I'm on my desktop, not a mobile device. And when I hit the desktop button at the bottom, it shows me the desktop view for a moment, then flashes back to the mobile view. I'm only able to post this comment because I'm doing it from my laptop.



    What browser (none / 0) (#5)
    by Zorba on Mon May 14, 2012 at 12:44:58 PM EST
    are you using on your desktop?

    If it were me, (none / 0) (#22)
    by sj on Mon May 14, 2012 at 04:41:56 PM EST
    I would clear all caches, boot in safe-mode, and run a full system scan.  Then see where you are.

    ok, lets get back to Edwards (none / 0) (#25)
    by Jeralyn on Mon May 14, 2012 at 05:02:07 PM EST
    You can discuss this further in an open thread or email me with problems. Thanks.

    Interesting (none / 0) (#6)
    by Abdul Abulbul Amir on Mon May 14, 2012 at 01:36:44 PM EST

    The government contends that "the purpose" means the same as "a purpose."  If Edwards wins this, the law becomes almost meaningless as virtually every human action has multiple minor purposes.  

    What big buck donor does not consider the possibility of post election access when writing the check?


    Because, if a donor states (5.00 / 1) (#9)
    by NYShooter on Mon May 14, 2012 at 03:42:54 PM EST
    that "a" purpose of his/her donation was to get an  

    Ambassadorship, among other things....well, that's just too stupid to have to explain.


    it is obvious to me (1.00 / 2) (#31)
    by TeresaInPa on Mon May 14, 2012 at 10:38:09 PM EST
    that the main purpose of this money was to facilitate the campaign to continue.  If that also meant keeping Edward's marriage together, that was a side issue.  
    All this talk about it not being campaign funds, well it just makes me scratch my head.  We are supposed to believe that because they spent it on the mistress and not lawn signs and pizza? Or is it because Bunny paid the gift taxes?  I am sure they did some fancy foot work to get her to do that, but that doesn't change the fact that the money was to keep him in the presidential race.
    I guess I am hoping that the justice system will cast the net as wide as possible in this case.  I want something done about sleazy electioneering and the influence of millionaires and billionaires. In this case I am not in line with the pro-defense leanings of this blog.  I realize that.  But I also couldn't care less about his scummy personal behavior.  It is his scummy political behavior I care about.

    Even if that were true (5.00 / 2) (#36)
    by gyrfalcon on Mon May 14, 2012 at 11:40:09 PM EST
    it doesn't change the fact that this is a novel interpretation of the law even the government admits it's never used before.

    How are you supposed to know something is illegal if it never has been before?  The case relies on Edwards knowing what he was doing was illegal.  If even the government hasn't decided that at the time he did it, how is he supposed to have knowingly violated the law?

    The whole thing is bogus, IMO, and although I agree with you about money and politics, I'm far, far more fearful of prosecutorial overreach, not to mention political prosecutions, which this fairly clearly is.


    "Ignorance of the law is no excuse." (5.00 / 0) (#38)
    by oculus on Mon May 14, 2012 at 11:50:10 PM EST
    I don't think that whole "ignorance of (5.00 / 2) (#39)
    by caseyOR on Tue May 15, 2012 at 12:21:21 AM EST
    the law" thing applies here. Edwards is being tried for something that has never before been considered a violation of campaign finance law. Perhaps it would be different if this novel prosecutorial interpretation  of the law had been around for awhile, and people not living in the prosecutor's fevered imagination had knowledge of it.

    The FEC people do not think that Edwards violated campaign finance flaw with the money in question. If the very people charged with interpreting and administering the law do not see a violation, then how could Edwards be expected to have seen this as a violation of the law?

    This whole prosecution smells to high heaven.


    it's not about ignorance (none / 0) (#40)
    by Jeralyn on Tue May 15, 2012 at 04:09:47 AM EST
    of the law, or what he didn't know. It's about what the government can prove he did know. The government is required to prove that he knew these funds were campaign contributions under the law and that he intended to break the law by accepting them and not reporting them.

    The Government also acknowledges that conscious disregard deliberate ignorance -- the ostrich instruction -- does not apply to crimes where the intent is willfulness -- it can only be used where the mental state is knowingly.


    I think Edwards knew (1.00 / 2) (#41)
    by TeresaInPa on Tue May 15, 2012 at 06:40:32 AM EST
    that what they were doing was right on the line.  That is why they made the point of getting Miss Bunny to pay the gift tax.  And precedence has to be made by someone. Maybe this is the case that will define for future scumbag politicians what they can and can not do.
    Generally the libertarian in me would worry about prosecutorial overreach. But in this area, I am much more worried that the justice system will continue to fail to protect the american people against a system that cheats them of fair elections over and over and over again.

    Thiis case (none / 0) (#44)
    by gyrfalcon on Tue May 15, 2012 at 11:03:00 PM EST
    ain't even going to make a faint dent in that particular problem.  The problem does not lie in wealthy people paying to hide candidates' mistresses.

    I share your rage about money in politics, but frightening scumbag pols off this particular bizarre kind of use of money won't have the faintest impact on multi-gazillionaires anonymously funding campaigns through super-PACs and other dodges.