9/19/2011

By Adam Dulberg, J.D. Candidate 

Beleaguered former North Carolina Senator and presidential candidate John Edwards received welcome news regarding his impending criminal trial. On Thursday, September 8, 2011, Chief Judge James Beatty for the U.S. District Court of the Middle District of North Carolina delayed proceedings until January 2012. Edwards, who was indicted in June by the United States Department of Justice for conspiracy, issuing false statements, and violating campaign contribution laws, had earlier requested additional time to prepare his legal defense in light of the passing of his ex-wife, Elizabeth, which has made Edwards the sole caretaker of his two youngest children, ages 11 and 13. While the Edwards legal team prepares to defend against the prosecution’s assertion that campaign contributions were used to support Edward’s mistress during the 2008 presidential race--a claim his lawyers characterize as a “novel legal theory”--it may be even more prudent for federal prosecutors to use the delay to reconsider the merits of their seemingly weak case.

 The Case Against Edwards

Edwards became the target of a two-year criminal investigation brought by the Justice Department in May 2009.  This scrutiny stemmed from Edwards’ failure to report alleged contributions totaling roughly $1 millionmade by two donors to Edwards’ mistress, Rielle Hunter.

After Edwards’ unsuccessful run for the Democratic presidential nomination in 2008, he quickly became embroiled in an embarrassing national scandal when news reports emerged claiming that Edwards had been involved in an ongoing affair with Hunter, a campaign videographer, during his presidential run and had fathered her child. Edwards reluctantly admitted the affair in a primetime television interview but initially denied that the child was his. It is alleged that Edwards then pressured long-time campaign aide Andrew Young to accept responsibility for the child. Edwards eventually issued a press release in January 2010 admitting that he was indeed the father, but he continued to vehemently deny claims that he had used campaign funds to cover up the affair in order to protect his candidacy.

Federal prosecutors primarily focused their investigation on financial transactions made by two private donors, former campaign finance chairman Fed Baron and Rachel “Bunny” Mellon, to Hunter during the 2008 Democratic primaries. These donations went unreported by the campaign, and the Justice Department will certainly argue that Edwards intentionally chose not to report these contributions because he was attempting to cover up an affair that would have derailed his quest for the nomination. The money allegedly paid to Hunter went towards child support, airfare, luxury hotels, and rent for a condo in Santa Barbara, in what appears to have been a concerted effort by Edwards to keep his mistress quiet and out of the national spotlight.

In June 2011, the Justice Department moved forward with their prosecution of Edwards after securing an indictment from the grand jury. Edwards is charged with four counts receiving illegal campaign contributions, one count conspiracy, and one count making false statements.

To prove that Edwards received illegal campaign contributions, prosecutors must show that Edwards knowingly and willfully accepted and received funds in excess of the limits of the Election Act as well as demonstrate that those funds were actual campaign contributions as opposed to personal gifts.[1]Given that the donations went directly to Hunter rather than to the campaign itself, the Government will have to push for a broader reading of what constitutes a campaign contribution under the Election Act by proving beyond a reasonable doubt that Edwards intended his donors to fund Hunter for the express purpose his political campaign. If Edwards is convicted, he would face a maximum penalty of five years in prison and a $250,000 fine for each of the six counts.

The Edwards Defense

The evidence and relevant case law suggests that Edwards will ultimately survive this ordeal without being convicted, and it is very possible that the case will never actually make it to trial. When the court reconvenes on this matter in January, the thrust of their argument should be fairly straightforward.

Edwards has maintained that the funds provided to Hunter were private gifts and were in no way associated with the presidential campaign or campaign strategy. The argument would follow that Edwards’ personal friends made the gifts in order to help Edwards keep his extramarital affair a secret from his wife, Elizabeth. This claim appears credible, both in light of how the funds were spent and given that Mellon herself stated in an interview with prosecutors that she was unaware that her donation had any campaign-related purpose and that she instead viewed the contribution as a personal gift.  Edwards contends that because he and the donors considered the donations gifts rather than contributions, there was no need to report the transaction or follow rules governing the limits on individual campaign contributions.

One potential hurdle facing the Edwards team is how it will explain away an incriminating note written by Mellon to campaign aide Young in 2007. After Edwards faced intense scrutiny and criticism by the media for spending $400 on haircuts, Mellon wrote:

“I was sitting alone in a grim mood-furious that the press attacked Senator Edwards on the price of a haircut, but it inspired me – from now on, all haircuts, etc. that are necessary and important for his campaign – please send the bills to me…It is a way to help our friend without government restrictions.”

According to the indictment, Edwards and Young began soliciting money from Mellon in the months immediately following the letter, when they learned that Hunter was pregnant with Edwards’ child. As the indictment contends, the letter and subsequent actions on the part of Edwards and his campaign suggest that Edwards was seeking donations to maintain Edwards’ “public image as a devoted family man,” a “centerpiece of his candidacy.” The question still remains whether campaign laws were designed to cover such an amorphous purpose. Further, the timing of the donations was such that most of the money was transferred to Hunter after Edwards ended his campaign.

Delaying the Inevitable

The background of the Federal Election Campaign Act suggests that contribution limits were meant to cover three categories of donation: contributions to a candidate and his campaign, expenditures made in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate or his campaign, or payments for personal expenses of candidate unless they would have been made irrespective of the candidacy.[2]The indictment itself does not make clear which category the Edwards’ donations fall under, and this may be indicative of how difficult it will be for the prosecution to convince the court to construe the election law beyond the plain language of the statute since it does not appear that the funds provided neatly fit under any the statutory definitions.

The Edwards legal team vigorously asserts that there are no cases that stand for the proposition that any payment that may influence a federal election, either directly or indirectly, fall under the purview of the statute.[3]On the contrary, the case law consistently supports Edwards’ argument that any analysis of what constitutes a campaign contribution should be narrowly drawn because of the fact that campaign speech is at the core of the First Amendment.[4]

Allowing a jury to consider whether personal money spent by a third-party no longer associated with a campaign for expenses not directly related to furthering a campaign would ultimately open a Pandora’s Box of campaign finance regulation issues that the court and FEC have, to this point, viewed as off limits. Thus, the most prudent course of action for the Justice Department at this point would be to push harder for a plea deal or accept defeat now, rather than risk the embarrassment of having another highly publicized criminal case thrown out by the court. Given that Edwards is unwilling to accept any deal that bars him from practicing law and the widespread rumors that the case was brought for politically motivated reasons by partisan federal prosecutors, the expectation remains that this distasteful story is bound for an even more unpleasant conclusion.