As lawyers for John Edwards prepare to launch a defense to charges he diverted campaign cash to fund a love interest on the side, there's one question everyone wants to know: Will he testify? NBC's Lisa Myers reports.
By Hampton Dellinger, Special to msnbc.com
ANALYSIS
The judge’s ruling was written on the lawyers’ faces. Last Friday, after Catherine Eagles denied John Edwards’s motion to dismiss the six felony charges against him at the close of the government’s case, the former Democratic senator’s lead attorney sat red-cheeked and grim. To his right, the typically stiff lips of the federal prosecutors curled into small grins.
While Edwards’ request to have the case thrown out for lack of evidence was a long shot, the decision highlights the ever increasing peril Edwards faces and previews what’s to come. For Edwards case followers in a hurry, here are four ways the seemingly routine motion is actually a big deal.
Odds of Edwards going to prison just went up
When Edwards decided to contest the government’s claim that he violated the Federal Election Campaign Act (FECA) rather than reach a plea deal, his risk analysis included the hope that a judge would end the case long before jury deliberations began. While such court-ordered judgments of acquittal are infrequent, they are not unheard of. Indeed, in May 2011 a district court judge from the same appellate circuit (the Fourth) stopped the prosecution of a corporate lawyer on obstruction of justice charges because of the government’s failure to prove its case.
 Hampton Dellinger, a litigation partner with Robinson Bradshaw & Hinson of Charlotte and Chapel Hill, N.C., is former deputy attorney general of North Carolina and has taught election law at Duke University Law School. In 2008, he sought the Democratic nomination for lieutenant governor of North Carolina. |
Edwards’ hope for a similar outcome rested primarily on the novelty of the government’s theory: never before has money from third-parties (Fred Baron and Rachel “Bunny” Mellon) to other third-parties (Andrew and Cheri Young with a smaller amount to Rielle Hunter) led to a candidate’s indictment under the FECA. Last fall, Edwards spent hundreds of pages briefing that argument (i.e, that he had no “notice” that such an arrangement could be illegal and thus no criminal intent) plus other reasons for dismissal…and lost. Last week, Edwards attorney, Abbe Lowell, spent 90 minutes again beseeching Eagles to end the prosecution…and lost.
For years, Edwards the plaintiffs’ attorney fought as hard as he could to overcome opponents’ efforts for judge-directed dismissals so the outcome of his clients’ personal injury claims could be determined by a jury. Ironically, if Edwards the defendant had known for sure that his own case would go all the way to the jury, I’m not sure he would have rejected whatever the government’s best plea deal was.
How judge ruled unnerving for Edwards camp
In the run up to his motion argument, Lowell gently expressed to Eagles his hope that she would devote the weekend or at least much of Friday to considering his arguments before ruling. Rather than rejecting the motion after days or hours of pondering, Eagles did so in minutes. Moreover, the judge allowed that the “closest questions in my mind have to do with some of these venue issues” (i.e., did the crimes Edwards is accused of have a sufficient connection to the district where he is being tried). Both the speed and substance of her decision suggest that Eagles has little concern about the prosecution’s theory or the quality and quantity of evidence presented in the government’s case.
Full trial coverage from NBC News and msnbc.com
More bad news in battle over experts?
In the face of Friday’s setback, the defense doesn’t appear to be shrinking from its chief argument for dismissal: that the government has not proved and cannot prove “that Mr. Edwards acted with knowledge that his actions would violate campaign laws.” Late Friday, the defense submitted its witness list for Monday. Appearing first: Scott Thomas, the former Federal Election Commission chairman, who is prepared to testify that the prosecution “is without precedent in federal election law and that the FEC would not support a finding that the conduct constituted a civil violation much less warranted a criminal prosecution.” The problem for Edwards is that the government is contesting vigorously the right of Thomas to testify as an “expert witness” and Eagles on Friday suggested she thought several FEC-related issues were “pretty straightforward.” Such phrasing is not suggestive of a judge likely to let the former FEC chair testify broadly. But at this point, Edwards will likely consider it a win if Thomas is allowed to take the stand at all.
Closing arguments previewed
Friday’s motion hearing made something clear and it's bad news for Edwards: Andrew Young’s story sounds better when someone else tells it. Skilled federal prosecutor David Harbach opened his oral argument reading excerpts from Young’s most Edwards-damning testimony. Whether presented via the prosecutor, or Young’s wife, Cheri, the former political aide’s claim that Edwards orchestrated the sex affair cover-up is more compelling when separated from Young's hazy memory and admitted misstatements. Similarly, Harbach was able to transform the testimony of other witnesses potentially off-putting to jurors (such as the long-winded Wendy Button) into an efficient, effective litany of evidence of guilt. While Lowell is holding his own as quarterback of the defense team, Harbach’s ability to serve as a likeable standard bearer for the prosecution’s witnesses has to be making Team Edwards nervous -- very nervous -- as closing arguments fast approach.
