ANALYSIS: As the jurors in the federal criminal trial of John Edwards begin their second day of deliberations on Monday, we don't know whether the outcome of their work will be a conviction, an acquittal or a mistrial. But based on trial observation and the attorneys' closing arguments, the keys that might motivate any of the three most likely outcomes are surprising:
If Edwards is convicted
If John Edwards goes to prison, credit could go to two unexpected sources: Cheri Young (the wife of former Edwards' political aide Andrew Young) and the quintessentially "old school" evidence of handwritten notes.
As I wrote at the end of week one, there can be little doubt that Andrew Young's credibility as a witness was in tatters by the end of defense questioning. Yet for all the success Edwards attorney Abbe Lowell had turning Young into the apparent culprit, Young's wife, Cheri, masterfully turned the tables — and the trial's attention — back on the defendant. By the end of her testimony it seemed that the hundreds of thousands of dollars the Youngs kept rather than pass along to Edwards' mistress, Rielle Hunter, was a pittance, and that no amount of money could make up for what the former Democratic senator put Cheri Young and her family through. Without her star turn, it is hard to imagine the government's case getting back on track after Andrew Young's evisceration on cross-examination.
The other key for the government if prosecutors prevail could be two handwritten notes, one each from the two funders of the Edwards-Hunter sex affair cover-up.
- Full trial coverage on msnbc.com
- Full transcripts of closing arguments (.pdf)
- Analysis by Hampton Dellinger
In April 2007, heiress Rachel "Bunny" Mellon wrote to Andrew Young on the occasion of news reports on John Edwards infamous $400 haircut: "(F)rom now on, all haircuts, etc., that are necessary and important for his campaign — please send the bills to me," she wrote. "….It is a way to help our friend (John Edwards) without government restrictions."
A few months later, wealthy trial lawyer Fred Baron included a barely legible cover note in an envelope with $1,000 in cash intended for the Youngs and Hunter: "Old Chinese saying: use cash, not credit cards!" it read.
Prosecutors highlighted the notes in the indictment, their case and closing arguments. And based on their requests for evidence during the initial day of deliberations, it appears jurors are focusing on the notes as well. If the jury convicts, these notes — rather than more modern communication modes such as email, texting or even video or phone recordings — may be the basis for the conclusion that Mellon, Baron and, above all, Edwards had the requisite criminal intent to sustain a conviction.
If Edwards is acquitted
If John Edwards walks out of the L. Richardson Preyer Federal Courthouse in Greensboro, N.C., a free man, the two witnesses he should thank most may be a surprise: his protégé-turned-nemesis Andrew Young and the 2008 financial officer for his campaign, Laura Haggard.
While Young identified Edwards as the orchestrator of the cover-up, he also testified that Edwards repeatedly assured him the arrangement (money from Mellon and Baron to the Youngs and Hunter) was perfectly legal. While many observers expected Young to claim that Edwards told him the cover-up was likely (or certainly) legally improper but an absolute political necessity, he said Edwards said the opposite.
More than anything else, it was Young's testimony about Edwards's exculpatory statements that may have persuaded Edwards not to testify. And Young's words made it more difficult for the government to prove Edwards possessed the requisite criminal intent to "knowingly and willfully" violate the Federal Election Campaign Act. Lead prosecutor David Harbach confirmed how helpful Young's testimony about Edwards was to the defense in an aside in his closing argument:
"By the way," he said, "if all Mr. Young was doing was sticking to the government's story, as Mr. Lowell suggested that he was, … don't you think he could have done a lot better job of that? He said that Mr. Edwards told him that he had checked with lawyers and the checks were legal. That's what Mr. Young's sworn testimony was. That is a fascinating thing to say by someone who had just tricked the government to immunizing him by being willing to say anything that the government wants in order to sink the defendant. That doesn't fit."
Edwards' statements — presented by Young — professing a belief that support for a mistress could not constitute a campaign violation were buttressed by Haggard. The earnest staffer, who oversaw the filing of the campaign's finance reports, was given a small opening by presiding Judge Catherine Eagles to testify that she did not believe the Baron-Bunny monies were contributions.
In closing arguments, Lowell returned repeatedly to Haggard's opinion, as well as former FEC Chair Scott Thomas' testimony. Thomas addressed the topic of whether a third party payment to another third party for personal expenses associated with an affair could be covered by FECA, noting that it had never arisen in his decades of dealing with the statute. The upshot: How could John Edwards have thought money for his mistress could be illegal when not even experts such as Haggard and Thomas thought it was covered by federal campaign law?
If Edwards is convicted, but the verdict reversed
Finally, there is the possibility that the jury finds Edwards guilty, but a reviewing court (either the U.S. Court of Appeals for the Fourth Circuit or the U.S. Supreme Court) throws out his conviction.
While prosecutors and the presiding trial judge appear untroubled by the novelty of the government's case, it may provoke greater interest on appeal. Lowell has made much of a Fourth Circuit decision, North Carolina Right to Life v. Leake, which he believes strongly favors his client's claim that if Baron and Mellon sought to aid Edwards as a friend as well as a candidate, their "mistress money" cannot be considered a campaign donation.
Judge Eagles' jury instructions define this pivotal issue differently: "The government does not have to prove that the sole or only purpose of the money was to influence the election. … The government does not have to prove that Ms. Mellon (or Mr. Baron) had any intent or knowledge as to exactly how the money would be spent, or that the money was in fact spent on the campaign." Eagles also limited testimony from Haggard and Thomas, and denied defense efforts to introduce evidence that the FEC concluded that the failure to report the Mellon-Baron money as campaign contributions did not violate commission rules.
If a conviction is reversed, an unexpected but pivotal factor may be the defense's decision not to call Hunter, Edwards or Edwards's daughter, Cate, to the stand.
Here's why: The less evidence there is at his trial, the more the trial judge's rulings will stand out on appeal. By calling so few witnesses, and by not testifying himself, Edwards limited the trial record in a very deliberate way — one that emphasizes the impact of Eagles' rulings and makes it less likely a higher court can conclude any error was "harmless" if it finds mistakes. Still, if Edwards is found guilty and the conviction is upheld on appeal, the regret he will likely take to his grave is not taking the stand.
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