Why John Edwards May Walk Free
By Dan Abrams, attorney, legal analyst and longtime television news anchor. Currently Dan is the Legal Analyst for ABC News and the founder of the Abrams Media Network of web sites.
John Edwards is a broken man. The one time luminary of the Democratic Party has become a political footnote, a cautionary tale and an almost universally reviled human being. But he is not likely to become a convicted criminal.
Typically, when a political leader is caught in some sort of wrongdoing, we hear cries of “political witch hunt” from his or her supporters, even if they disagree with or distance themselves from the conduct itself. Not so for the former star trial lawyer. After all, it wasn’t just that Edwards had an affair. Many politicians have overcome that “indiscretion.” No, he took political sleaze to another level by sanctimoniously lying about it to the media and his cancer stricken and beloved wife Elizabeth. Only when he was finally confronted with indisputable evidence, did he admit that he had gotten his campaign aide Rielle Hunter pregnant. And this was no ordinary cover up – his top aide Andrew Young had been falsely claiming that the baby was his own. (I think many of his former supporters exhaled upon processing the news. What if the ruse had been discovered after he became President?)
So even a lawyer like myself who now practices exclusively in front of a TV camera could convict him beyond a reasonable doubt in a moral court. But a criminal case is far trickier. Edwards faces six felony counts and up to 30 years behind bars for violating campaign finance laws by “knowingly and willfully” taking almost a million dollars “for the purposes of influencing an election.”
That money came from two wealthy, long time donors Rachel “Bunny” Mellon and Fred Baron and served to pay all of Hunter’s living and travel expenses while the pregnant paramour was squirreled away from public view. None of those dollars ever went through the John Edwards For President campaign fund and the defense argues, “there are obvious non-campaign-related reasons for friends of Edwards to shield the affair to protect his family and to assist Hunter during her pregnancy.” The defense is basically arguing that he had rich friends eager to pony up big cash help him lie to his wife.
Prosecutors, however, say it was because Edwards was in the midst of a campaign for President that those friends, who also happen to have also been big donors to his campaign, shelled out cash to help him hide his dirty laundry. Keeping the Hunter affair secret, prosecutors will argue, became a fundamental element of the campaign itself.
What makes the case particularly tough for prosecutors is that this is a novel use of the law. Typically campaign finance violations are considered civil, not criminal, matters and they generally involve misuse of funds from the campaign coffers. Here we are talking about dollars that were never on the campaign ledger and prosecutors will have to prove that Edwards solicited and spent the money knowing that it was designed to protect his candidacy rather than his marriage. They will call Young and other campaign aides to the stand who will relay what Edwards allegedly said as well as playing voice mails and introducing documents.
But proving what was going on in Edwards mind is the rub. How can prosecutors deny that he would have done almost anything to prevent his wife from learning of his perfidy? Separating that from any broader campaign-related motives is what makes the case difficult. There is a reason prosecutors reportedly offered Edwards a plea deal on three misdemeanors that would have allowed him to keep his law license – and it’s not based in any sympathy for poor John Edwards.
Sure, common sense suggests that these donors wouldn’t have thrown a million bucks at John Edwards to help ensure that a woman he was sleeping with was living comfortably with their love child to be. But then again, if the self-centered Edwards had convinced himself that they would and did, then a jury would probably have to find him not guilty. . . of this.
Get a better understanding of criminal law and how it affects you. Subscribe to the Lawyers.com Criminal Law Newsletter for free.