Campaign finance rules have changed markedly since 2008 -- making this, the only case of its kind, one to watch.
Jury selection in the federal criminal trial of John Edwards begins Thursday April 12th in a Greensboro, N.C., courtroom. As the world now knows, Edwards chose to cheat on his cancer-stricken wife during his 2008 presidential run. Two wealthy political supporters then spent hundreds of thousands of dollars supporting Edwards's mistress as part of a failed effort to keep the affair quiet. Prosecutors decided that the financial support constituted unreported, excessive and thus illegal campaign donations, and indicted Edwards for his role in the arrangement.
The story of Edwards and his paramour Rielle Hunter has been told by former campaign aide Andrew Young in excruciating detail in his book The Politician: An Insider's Account of John Edwards's Pursuit of the Presidency and the Scandal That Brought Him Down. The story that has not been detailed is why the sex scandal turned into a federal case, whether it should have, and how Edwards -- the famed trial lawyer -- has bungled the run up to his own trial.
While the former United States Senator and Democratic vice presidential nominee continues to garner tabloid attention, the same mainstream media that was late to report on his extramarital affair has been similarly slow to focus on the significant legal and political questions posed by his prosecution. Below are some of the most compelling storylines that have received scant national attention so far:
The unprecedented nature of Edwards's prosecution. Edwards is being tried for activity for which no one has ever before been indicted. In fact, two former Federal Election Commission Chairs are prepared to testify (according to a letter they've sent to the Justice Department) that the prosecution "is without precedent in federal election law, and that the Federal Election Commission would not support a finding that the conduct constituted a civil violation much less warranted a criminal prosecution." Prosecutors have fought hard but so far unsuccessfully to keep the former top campaign cops from testifying; Edwards's defense may well rise or fall on their trial appearance and performance.
How the Citizens United decision makes the case seem dated. Lack of precedent aside, the prosecution of Edwards appears anachronistic in light of the changes wrought by the U.S. Supreme Court's 2010 decision in Citizens United (and the follow on D.C. Circuit ruling in Speechnow). Today, unlike when the investigation of Edwards began in 2008, Super PACs are permitted to raise and spend enormous sums of individual and corporate money in direct support of candidates, often accompanied by minimal reporting and disclosure requirements. The tens of millions spent by Sheldon Adelson, Foster Friess and others in explicit support of 2012 Republican presidential primary campaigns makes the $900,000 spent keeping Hunter content and quiet seem rather paltry. And a central premise of the indictment of Edwards -- that "in order to restrict the influence that any one person could have on the outcome" of a presidential primary election, "the most an individual can contribute to any candidate for that primary election was $2,300" -- seems downright quaint.
How a Republican U.S. Attorney benefited from the Bush-era U.S. Attorney scandal. George Holding, the North Carolina prosecutor who initiated the investigation of Edwards and pressed for his indictment, is a staunch Republican who remained in office during the Obama Administration thanks -- oh-so-ironically -- to the backlash against the politicization of federal prosecutors by the Bush Administration. Holding spoke openly about seeking partisan political office while still serving as a U.S. Attorney, stepped down to run for Congress just after indicting Edwards, and has used the indictment as a centerpiece of his political campaign, while repeatedly criticizing the president who permitted him to holdover as U.S. Attorney for North Carolina's Eastern District. In pre-trial motions, the defense has alleged not just that Holding had political ambitions but that he harbored outright bias against Edwards as well. In support of its allegation, the defense noted Holding's donations to Edwards's Republican opponent in a 1998 U.S. Senate race, Holding's time as an aide to Edwards's political nemesis Jesse Helms, and his work as a law clerk to a federal trial judge whose confirmation for a Court of Appeals seat was blocked by then-Senator Edwards. Here is a second Holding-related irony: if Holding wins his Congressional race (as many Republican observers think likely), he is widely expected to seek North Carolina's next available U.S. Senate seat. So Holding's indictment of former Senator John Edwards could play a crucial part of the making of future Senator George Holding.
The high stakes for the Justice Department's Public Integrity Section. Based on the pre-trial hearings, it's clear that David Harbach of the U.S. Department of Justice's Public Integrity Section is quarterbacking the government's trial team. Harbach has filled the role ably, seems to have earned the grudging respect of Edwards's lead lawyer (Abbe Lowell), and brings not only his Harvard Law School pedigree but lived experience in central North Carolina (where the case will be tried), thanks to four years of college at Duke University. But the fallout from his section's botched prosecution of Alaska Senator Ted Stevens has continued throughout the run up to Edwards's trial. As a result, the pressure on Harbach to oversee a successful, rule-abiding prosecution is intense.
What's with the famed lawyer's attorney-churning? You would think that a successful trial lawyer such as Edwards would be perfectly positioned to identify, recruit and maintain the best group of advocates money can buy. Instead, his effort to build a legal "Dream Team" has looked bush league and amateurish as he's churned through one attorney after another. His questionable decisions include hiring a former high-ranking Obama Administration lawyer at the same time he was trying to convince Obama's Justice Department not to authorize his prosecution. Why put a presidential administration trying to prove it's above "revolving door, politics-as-usual" behavior in the awkward position of appearing to do Edwards a favor just after he hired the president's former White House counsel? The Justice Department refused to step in and stop the prosecution. Edwards also put Wade Smith -- one of the best criminal defense lawyers in North Carolina history -- in the position of being a fact witness, thus precluding Smith from representing him at trial. Then, on the eve of trial, a respected and effective North Carolina-based attorney on the defense team withdrew just as Edwards made another ham-handed move: padding his team with the lawyers representing Rielle Hunter in her fight with Andrew Young over control of the infamous Edwards-Hunter "sex tape."
The media outlets that do decide to cover the trial are likely to find a defense team given wide latitude by presiding judge Catherine Eagles (a highly intelligent yet folksy judge who may strike some television show-minded trial observers from out-of-state as part Matlock, part Aunt Bea). Judge Eagles dealt Edwards a body blow last October when she denied his motion to dismiss the indictment. Yet since then, Edwards has prevailed on every big argument between the sides she's had to settle: whether the former FEC Commissioners would be barred from testifying; whether the trial would be postponed due to Edwards's claim of poor health; whether he could add Hunter's civil attorneys to his team; and the extent to which the defense can raise Young's questionable "sex tape" case conduct on cross-examination.
The judge aside, there should be no shortage of courtroom drama. Edwards is an extraordinary defendant: a state (Ohio) away from being elected vice president in 2004, he is among the most famous American politicians to be indicted and arguably the most acclaimed attorney to face a criminal trial since Clarence Darrow. It is hard to imagine that he won't take the stand. The same is true for Rielle Hunter. But with Hunter's two benefactors incapable of appearing (Fred Baron is dead; centenarian Rachel "Bunny" Mellon is infirm), the trial is shaping up to be as much Andrew Young v. Edwards as it is United States v. Edwards. Unfortunately for the government, as prosecutor Harbach conceded recently, Edwards's defense team has plenty of ways to attack Young's credibility.
Edwards's own credibility issues are of course considerable. But for all his pre-trial missteps, either he (or one of his dozen or so lawyers) recognized at least one blunder he was poised to make, assuming he testifies. At court hearings last year, Edwards's gold wedding band was clearly visible on his ring finger -- as it surely would be to a jury. Was Edwards really going to swear to tell the truth with a Bible framing a left hand still bearing the tangible embodiment of the sacred vow of marital fidelity he so infamously broke? As it turns out, no. In his most recent courtroom appearances, the ring has been nowhere to be seen.
Whatever the amount of media coverage on the trial's less prurient angles, politicians in both parties will surely be following the government's case and the jury's verdict closely. For all the "Wild West" campaign activity inspired by Citizens United, a guilty verdict could still have a chilling effect. Indeed, whether or not you think it warrants a felony indictment, such "off the books" financial activity in the orbit of a candidate is undoubtedly troubling. And if the jury is instructed to find Edwards guilty if it concludes that Baron and Mellon only supported Hunter because Edwards was a candidate for political office, Edwards may have a problem. Edwards's longtime friend Baron may well have supported Hunter regardless; whether Mellon would have is much harder to say. The key for Edwards is effectively utilizing whatever opportunity his defense is given to show what typical political corruption looks like -- Blagojevich-style quid pro quos, excessive and unreported donations intended as direct campaign aid for a candidate, lobbyist-sponsored lining of a politician's pocket in the school of Abramoff vein -- and then convincing the jury that what Edwards did is different, less nefarious, and unworthy of felony convictions.
With jury selection set to begin, the case's focal point begins the transition from congenial judge and hired guns to the women and men of the jury. It will be fascinating to see what their verdict will be. Even after extensive efforts to identify and seat an impartial jury, and despite the lack of precedent for such a prosecution, it is hard to see 12 jurors all willing to allow Edwards to walk scot-free on all six counts. At the same time, it is difficult to imagine the government retrying the case if there is a hung jury. So John Edwards -- the man who garnered millions of votes and sought millions more -- now seeks the loneliest number: one lone but firm vote for "not guilty."