John Edwards: Closing Arguments

By now it's hardly a surprise, just a major disappointment, that the Judge in John Edwards' trial continues to restrict his defense and rule against his legal arguments, while giving the Government everything it wants.

The latest: The Judge is going with the Government's position on the meaning of "the" in the statute that prevents candidates from accepting donations over $2,300.00 if they are "for the purpose of influencing the election."

Although Eagles said she tried to balance the wishes of prosecutors and the defense in drafting her instructions, she delivered a clear victory for the government by saying she would tell the jury that money doesn't have to be for "the sole purpose" of influencing an election to be considered a campaign contribution.


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 phrase "for the purpose of " means that influencing the election must be the sole purpose of the donated funds in order for the monies to be considered a campaign contribution.

Politico has a good article on the difference and implication for Edwards. The defense brief arguing the statute means "sole purpose" is here. The Government's brief arguing the opposite is here.

The judge also scaled back Team Edwards' requested jury instruction on good faith:

Lowell unsuccessfully urged Eagles to provide more instruction that Edwards had a "good faith" belief that the money from Mellon and Baron were legal gifts and not excessive campaign donations. Citing Young's testimony that Edwards had consulted campaign finance experts who assured him the payments weren't illegal, Lowell said that amounted to testimony from Edwards.

"(Those were) Mr. Edwards' words on his belief of legality," Lowell said. "That's why he didn't need to testify, because this was spoken by him."

After denying Edwards' motion to admit the tape of the FEC hearing (D.E. #283, described here), Abbe Lowell made an oral motion to admit the transcript of the hearing. The government provided it as an attachment to its brief arguing against the admission of the tape. The Judge denied that too.

[Judge] Eagles, who previously prevented a former FEC chairman from telling jurors that he thought the payments weren't campaign contributions, ruled that the transcript wouldn't be allowed as evidence.

"I don't think the opinions of others, whether they are FEC commissioners or not, is particularly helpful for this jury," she said.

Then there was Edwards' motion to admit a letter from DOJ in 2009, described by Josh Gerstein at Politico. The letter is here. From the motion (D.E. #284:

Mr. Edwards was just made aware of and seeks to admit a January 16, 2009 letter from the U.S. Department of Justice ("DOJ") to the Citizens for Responsibility and Ethics in Washington ("CREW"), explaining that DOJ does not prosecute election law cases when the FEC has concluded that criminal liability does not exist.

It quotes the letter:

...The FECA specifically gives the Commission the authority to interpret the features of the FECA. The role of the Department of Justice in matters arising under FECA is confined to prosecuting violations of the Act's provisions that are committed "knowingly and willfully." For such a criminal violation to occur, the application of the law to the facts of a matter must at the very least be clear, and there must be no doubt that the Commission considers that the underlying conduct presents a FECA offense.

The motion argues:

Mr. Edwards is entitled to introduce the FEC statements to demonstrate the reasonableness of his view and the view of his staff that the payments by Mr. Baron and Ms. Mellon are not campaign contributions and that any omission was not material. For the same reason, the DOJ Letter adds to the evidentiary value of the FEC's statements by establishing that this is not the opinion of just anybody, but of the expert agency on FECA matters.

In addition, due process requires the introduction of this evidence to alleviate any false impression DOJ has sought to create in this trial that its view of the evidence is the view of the United States government as a whole.

That was denied too: From the court's Docket on PACER:

05/16/2012 ORAL ORDER denying 283 Motion as to JOHNNY REID EDWARDS (1); denying 284 Motion as to JOHNNY REID EDWARDS (1) for reasons stated from bench by JUDGE CATHERINE C. EAGLES on 5/16/2012.

From the transcript of last Friday's hearing on the Motion for Judgment of Acquittal, it appears that the Government has convinced the judge to treat the Mellon/Baron contributions as continuing offenses to get around its venue problem and support for its aiding and abetting theory on certain counts.

So what has the Judge left for John Edwards to argue in closing? That Andrew Young is a liar?

That was the purpose of the stipulation today to admit evidence of Rielle Hunter's menstrual cyle and conception date medical records. But I don't think it was for the reason the Washington Post suggests: "It’s a way to attempt to cast doubt on the prosecution’s claims about Edwards’s motivations to keep the pregnancy secret."

I think it goes far beyond that. It shows Andrew Young lied when he told the jury he asked Bunny Mellon for money after Hunter told him she was pregnant.

Hunter conceived sometime during between May 25 and 28, 2007. The earliest she could have known she was pregnant (she didn't take a home pregnancy test) was when she missed her next period, which would be June 8. Her doctor didn't confirm she was pregnant until July 3, 2007.

Yet, the first big check Andrew received from Bunny Mellon through her decorator Bryan Huffman, after he contacted her for money, was on June 6, before Rielle could have known about the pregnancy-- and before she could have discussed it with him.

This goes to strengthen Edwards claim that Andrew Young solicited funds from Mellon to benefit himself rather than to cover up Hunter's pregnancy.

Here are the checks Andrew Young wrote to his builder.

Edwards did the right thing in my view staying off the stand. Given his lies to ABC News that came in, which they probably graphically display during closing as they hone in on how many lies he told, he'd probably get convicted and be looking at a sentencing enhancement for lying at trial (obstruction of justice enhancement.)

The only thing left to read tea-leaves from is the final jury instructions. Those should be published at the end of the day tomorrow, after closing arguments are done. The jury is expected to begin deliberating on Friday.

I do want to say that I think Abbe Lowell and his team have done a great job. Really well-written pleadings with well-crafted, supported arguments. I've read every single one -- and some pre-trial transcripts.

I will also say that the next big federal trial I cover as a writer, it's going to be from the courtroom. There's none of the in -depth coverage in Edwards like Marcy, Jane, the other FDL'rs and me did for Scooter Libby in 2006. We took turns typing the proceedings live while we listened (we all type really fast). We also got synoposes pieces up a few times of day with our impressions of the players, witnesses, and covered arguments over instructions and legal issues. At night we did video wrapups and and a late night summary, covering the day in a nutshell. And none of us were paid a dime other than travel expenses which our readers contributed. I guess Big Media figures the rest of the country isn't interested in all the details, just the more salacious ones. And by now, most of us are so sick of pundits, we just want the facts. We can figure out on our own what it all means. Still, there's no substitute for being in the courtroom or overflow room, getting daily transcripts, and watching the expressions on the everyone's faces, including the jury and judge, as the trial takes place.

I'll be in court all morning, so I won't have any updates until lunchtime MT or after. BTD says he's swamped until next Tuesday, so you may see more open threads for a few days.

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    It should be sad to see a federal judge (5.00 / 5) (#1)
    by scribe on Thu May 17, 2012 at 08:05:07 AM EST
    working so hard to railroad a defendant but, having hung around courthouses entirely too long and seen too much, I'm neither sad nor surprised.  One would think, though, that she was still a local traffic court judge, one where her continued employment depends on the local pols being satisfied with her performance when they ask "does she support the police?"  (I've been in the room and heard it....)

    We're watching the Dagny Taggart of the federal bench at work here - the woman who runs a railroad.

    In a larger sense, though, she's doing the work Obama and Romney and their funders need done.  Edwards, for all his flaws, did (and to some extent still does) represent the idea not only that there are two Americas - one for the rich and one, significantly less inviting, for the not-rich - and a divide between them that can only be closed by giving the not-rich a better chance.  This prosecution is of a piece with the draconian prosecutions and sentences handed down (after ample police beatings) on the Occupy protestors - they are both intended by the rich to put the not-rich "in their place"  (i.e., under the heel of the rich) and as a reminder of what can be done to the not-rich.  They are both given the veneer of some semblance of regularity - there's a judge and there's a courtroom - and there's a Greek chorus of jurors brought in to give a verdict not based upon the truth and the whole truth, but rather on the limited interpretation the jurors are permitted on the crabbed and tilted set of "facts" they are permitted to see.  It's no less a show trial than the chicancery going on at Gitmo.

    I know Abbe Lowell is too professional to do it, but I'm of the opinion that the only sane thing to do in this situation is to deliberately cause a mistrial by telling the jury point blank that the FEC completely exonerated Edwards and the contents of the DoJ letter and the tape and what the former FEC commissioner would have testified to, and tell them the judge would not let them hear that, while letting them hear all sorts of inflammatory bullcrap.  The better time to have done it would have been before resting, but it's not too late now.

    Because I'm not sanguine about the Fourth Circuit.  After all, they found a way to both let Jose Padilla languish in a brig, incommunicado and tortured, for years while they first dithered and then said it was OK for a president to do that (6-5, en banc).  Does anyone in the room think for a second that they will do any better by Edwards?

    I don't.

    Deliberately causing a mistrial (none / 0) (#7)
    by KeysDan on Thu May 17, 2012 at 02:29:20 PM EST
    has very serious consequences, and, with this judge, contempt of court for the defense attorneys would be just for starters.   Of course, Lowell would not do it, nor would Edwards' daughter, should she give the closing arguments.   But, withholding the FEC commissioner's opinion and the DOJ letter seems incomprehensible--unfair to Edwards, of course, but also, to the jury and criminal procedure in general.

    Uhhhh, (none / 0) (#8)
    by bmaz on Thu May 17, 2012 at 03:27:42 PM EST
    This judge doesn't look so good in that regard to go and be so arrogant. First off, she is awfully new and wet behind the ears; secondly she is in no position to wail on anybody.

    Will Abbe Lowell do what Scribe is contemplating? Nope, not from what I know of him.  But it could VERY easily be probed and expanded to just short of mistrial by a defense attorney willing to so so.  

    And don't kid yourself, yes, defense attorneys do sometimes take just this tact.


    True, but probing and (none / 0) (#9)
    by KeysDan on Thu May 17, 2012 at 03:41:29 PM EST
    expanding points to just short of mistrial seems different to me than serving up point blank  information to the jury that the judge has specifically ruled against.   Of course, as you sagely note,  the trick is to keep the probing and expansion just short of mistrial.  

    "Wide latitude" (none / 0) (#11)
    by bmaz on Thu May 17, 2012 at 04:53:29 PM EST
    ...is given in closing.  Without being there, and having a true granular feel and grasp of the dynamics, it is simply impossible to say how or what I would do. Simply put, I dunno, and anybody not standing in Abbe's shoes simply doesn't know.  But, if I felt that what had to be done, as Scribe contemplates, here is the ten second synopsis of how it might go down:

    Blah, blah traditional closing - important defense points etc. - blah, blah......and ladies and gentlemen, you have heard passing references to governmental entities to wit the FEC and if there was really a problem with the FEC, you can be your bottom dollar the government would have had someone here to say so; they di NOT"..........

    Over the line? Yup. Unethical?  Gonna be a tough argument vis a vis the record lately of the DOJ which they have skated on. So, no long lasting worries there.  Would Eagles even have the balls to do it?  I don't think so.

    Does stuff like this happen? Yes, but far more rarely than the TeeVee and Law & Order and whatnot would have you believe.  Real court is boring, slow, and no they ain't got all that fancy CSI crap and "Perry Mason moments". It is a far different, and much more generally mundane, animal than many seem to think. But it can occur, and in rare circumstances does.  Not likely here.


    Concur 100 pct with you BMAz. (5.00 / 1) (#15)
    by scribe on Thu May 17, 2012 at 09:44:30 PM EST
    Blowing the case up with a deliberate mistrial is both a desperate move and one not guaranteed to succeed.  Suppose, for a second, that the judge declines to rule a mistrial, and the prosecution doesn't object.  When your guy is convicted and you appeal on the ground he couldn't get the evidence before the jury, the prosecution turns around and says - "oh, yes, you did.  Came in during closing."  And the 4th Circuit, hell-bent to railroad your client, agrees.  Then where are you?

    Stuff like that is why I've always laughed at the conception of Obama playing eleventy-dimensional chess.  He never tried cases and surely never waited for The Knock.  It's only trial lawyers (like you and me, BMAz) who have to make these sorts of calls and game it out in eleven dimensions on our feet and without opportunity to consult anyone.

    I agree that the "dog that didn't bark" type references to the FEC would be more effective.  But the jurors might be slow on the uptake on that, blinded by St. Elizabeth the Shirtless.


    Great post, scribe (none / 0) (#16)
    by Dadler on Fri May 18, 2012 at 10:49:50 AM EST
    I only quibble with one thing: that being Edwardes representing the two Americas idea. I agree Obama Mittens may perceive him as such, but in reality Edwards proved to be as thoughtless and selfish as any garden variety pol.

    His personal shortcomings notwithstanding (5.00 / 1) (#19)
    by sj on Fri May 18, 2012 at 03:06:03 PM EST
    His message was all about the "Two Americas".  The argument can certainly be made about the hypocrisy of it, but a little hypocrisy doesn't seem to annoy TPTB.  A little populism, however, is a completely different matter.

    All Aboard! (5.00 / 3) (#2)
    by bmaz on Thu May 17, 2012 at 08:18:48 AM EST
    The Catherine Eagles is leaving the station from the courtroom terminal.

    I was not an Edwards supporter and don't have (5.00 / 5) (#3)
    by Angel on Thu May 17, 2012 at 08:27:15 AM EST
    any particular attachment to him, but what the government is doing, in my opinion, is just wrong in so many ways.  From what I read this trial was nothing more than a sleazefest, it had little to do with the actual charges of accepting money to influence the election.  The people who should have been on trial were Andrew Young and his wife.  I hope and pray the jury sees through this railroad attempt and votes to acquit.  

    I was an Edwards supporter (5.00 / 4) (#4)
    by Militarytracy on Thu May 17, 2012 at 10:24:58 AM EST
    And I was really PO'd and upset about how things went down.  I was upset with him over the dangerous game he played with the Presidency.  There is being upset at someone though, and then there's railroading. I cannot abide him being railroaded.  If they can railroad him, they can railroad all of us, they can railroad me.

    I can't believe we all have to watch this B.S. go down while the current Presidential election is practically for sale to the highest bidder, and millionaires and billionaires ruled the GOP primary.

    It isn't the questionable election dollar and what it is doing on the field that crazes everyone these days, it is the questionable election dollar found touching unwed penises and vaginas


    I didn't like Edwards (5.00 / 1) (#12)
    by NYShooter on Thu May 17, 2012 at 05:10:48 PM EST
    long before the sex scandal erupted. I thought he was insincere in his campaign platform and, for me, he came across as one of those late night vacuum cleaner infomercial salesmen. But, I hope I'm fair-minded enough to understand that that has nothing to do with the issue at hand.

    John Edwards has paid a tremendous price, first politically, and then, with the Rielli Hunter tragedy. And yet, as profound as those two issues are, it seams they pale in comparison to stepping on the toes of the Oligarchs that rule this country.

    This "tax" issue has the same feel as the Joe Wilson/Valerie Plame "outing" did. There is no ethical boundary that is inviolate when you cross the 1%. Whoever is pulling the strings in this fiasco, "remember John Edwards" is what they want to be remembered as the rulers consolidate their stranglehold on this, once great country.


    Yet, remember (none / 0) (#13)
    by christinep on Thu May 17, 2012 at 08:08:22 PM EST
    That Edwards himself is one of the top "one percent."

    And that (5.00 / 1) (#14)
    by bmaz on Thu May 17, 2012 at 08:50:36 PM EST
    Has absolutely nothing to do with due process and fundamental fairness and to even raise it in such a context is somewhat beyond the pale.

    Of course (none / 0) (#17)
    by christinep on Fri May 18, 2012 at 11:46:12 AM EST
    You are correct...the matter of one's wealth is not & cannot be relevant in the case.  That is why I did not "raise" it; rather, my response was meant to be cautionary to the individual who suggested that Edwards might be being railroaded by the elite powers in that the brush being used is too broad (since Edwards, in fact, had been in that same elite.).

    Please take another look at the particular comment chain.


    I have a nested comment chain (none / 0) (#18)
    by sj on Fri May 18, 2012 at 03:03:24 PM EST
    and I still don't understand your point in bringing it up.  So what were you being cautionary about?  Or did you mean that Shooter should have referenced the .01% or the oligarchs instead?  I think his overall point was pretty clear even if the details were fuzzy.

    How would you have worded it?


    I'm feeling (5.00 / 2) (#20)
    by NYShooter on Fri May 18, 2012 at 04:55:38 PM EST
    all "Mother Theresa" today, so

    Let's put this interpretation on my friend, Christine's (What do they want??) comment.

    I believe she meant "even" 1% John Edwards gets slammed for showing a morsel of humanity.

    I know Chris comes across sometimes as the descendent of "let them eat cake," erroneously attributed to Marie Antoinette. (That's the media for you) Her actual comment was somewhat longer, and, certainly more benevolent. Addressing the starving peasants our princess told them, "My beloved subjects, I have some good news, and some not so good news for you. First, the Bad news: Our warriors have returned with food for you.....but it's sheep dung. The good news is, there's lots and lots of sheep dung."

    Goes to show you, a light shines even in the darkest heart.


    Bwahaha! (5.00 / 1) (#21)
    by Zorba on Fri May 18, 2012 at 05:13:44 PM EST
    Thank you, NYShooter.  I just spewed iced tea all over my keyboard!   ;-)

    Aw, thank you, Ms Zorba (5.00 / 3) (#22)
    by NYShooter on Fri May 18, 2012 at 06:16:56 PM EST
    All credit goes to my Jewish Pop who, having slogged through two World Wars, developed this beautiful, dark, cynical humor, and he loved to tell jokes exposing the duplicity of rich people and their "caring."

    Many thanks (5.00 / 1) (#10)
    by Beldar on Thu May 17, 2012 at 04:18:11 PM EST
    Jeralyn, even though you haven't been writing daily from the trial site, your collections of links and information has been the best one-stop shopping on the net for those of us trying to follow the case.

    I don't always agree with your opinions -- naturally enough, you seem to think and write through from the perspective of a criminal defense lawyer -- but from the information you've provided and linked, I've been able to follow what's going on with a higher degree of confidence than I extend to any of the mainstream media outlets covering the case.

    Thanks for your efforts.

    The really bad thing about the government's (none / 0) (#5)
    by jimakaPPJ on Thu May 17, 2012 at 01:44:17 PM EST
    actions is this.

    Sooner or later we will need to have the government put away a really bad guy on very slim evidence.... and the government won't have the credibility to get the job done.

    oy (5.00 / 1) (#6)
    by sj on Thu May 17, 2012 at 01:56:52 PM EST
    not what I was most worried about.