John Edwards' trial proves salacious, but lawyers see no 'smoking gun'

ablythe@newsobserver.comMay 13, 2012 

— John Edwards arrives at the federal courthouse here each morning somehow sporting that same fresh look with which he bounded onto the national political stage.

Trim and polished in his business suits and crisp shirts, he still flashes a bright smile to greeters. And the hair – almost as famous now as the man himself – is still thick, a shiny brown and always in place.

That groomed, confident image for a man so battered can be unsettling to onlookers on the sidewalk in front of the courthouse and spectators in the courtroom.

The former U.S. senator, once the darling and rising star of the Democratic Party, has lost his wife to cancer, his reputation to his unfaithfulness and his political future to a past that won’t fade with time.

Now the trial lawyer who made millions with his powerful sway over juries is taking a gamble – instead of a plea deal – on moving one more group of 12, this time hoping to persuade the jurors who will decide his criminal case not to add freedom to his list of losses.

After three weeks, Edwards’ chances of winning in a criminal case like no other remain alive. The defense team, which has been poking holes in the government’s case, will begin Monday to call their own witnesses, holding out the possibility that Edwards will step up to the stand to provide his account of what he did and didn’t know, and what he did and didn’t do.

The government rested its case Thursday with a videotape of a 2008 TV interview with ABC’s Bob Woodruff in which Edwards, who has changed little physically in the last four years, smiles, then lies about being the father of the daughter born to him and Rielle Hunter, the former campaign videographer at the heart of the six-count indictment.

The government must not only convince jurors that Edwards, 58, broke campaign finance laws. The prosecutors must also show the 2008 Democratic presidential hopeful knew he was breaking the regulations when others took money from two billionaire supporters to hide his pregnant mistress.

The testimony thus far has ranged from appalling to amusing, with a parade of 24 witnesses and cast of intriguing characters.

But on the key point of intent, lawyers watching the trial from inside the courtroom say the government has failed to deliver a direct hit.

“Juries like smoking guns, and there is no smoking gun here,” said Steven Friedland, an Elon University law professor and former federal prosecutor who has been inside the courtroom for much of the trial.

Edwards, himself, was heard in court last week uttering to his lawyers “that’s their case?” at the close of a day in which two key witnesses testified he was aware his Texas lawyer friend, Fred Baron, a billionaire who died in October 2008, had provided support. But neither witness could establish under cross-examination that Edwards or Baron, a finance chairman of the 2008 presidential campaign, thought the money should be classified as a campaign expense subject to federal caps and public reporting.

That ultimately is a question of law, that, depending how the jury rules, could be decided by the U.S. Court of Appeals or ultimately the U.S. Supreme Court.

Public scourging for all

As the trial opened with a cadre of national and international media closely watching, the Washington Post offered this April 23 headline: “The John Edwards Trial: A Final Public Flogging.”

These past three weeks have delivered that promised flogging. Edwards has been described as a narcissistic, selfish candidate who ignored pleas from staffers who believed in him, those mesmerized by his “two Americas” message, to distance himself from the unusual campaign videographer who ultimately shattered the family-man image so important to his campaign.

Edwards has been portrayed as a double-speaking politician who talked about eradicating poverty while parading across the country and around the globe in ritzy style. He could be tart-tongued, calling the mother of his out-of-wedlock child “a crazy slut,” according to one witness, and unleashing a flurry of expletives when upset with friends and staffers who called him out on his extramarital affair.

But Edwards has not been the only one publicly flogged in this trial. Andrew Young, Hunter, Elizabeth Edwards and even the government have been. Young, a key witness for the prosecution, has been portrayed as a love-spurned, scheming sycophant motivated by greed and a stinging anger. Elizabeth Edwards has been described by some of the campaign staffers as controlling, emotionally volatile, and less than forthright about her knowledge of her husband’s philandering in her public speeches and two books. And Hunter, the woman who has become famous for her infamous relationship, has been portrayed as a kooky, unpredictable and scheming New Ager with motives as questionable as Young, the man who once falsely claimed to be the father of her baby.

The government, with its teams of investigators and prosecutors from outside the federal district where the case finally landed, has been portrayed as overly zealous to bring a case against Edwards.

George Holding, the former U.S. attorney who launched the investigation, began a campaign of his own just a month after Edwards was indicted, seeking a U.S. congressional seat in a newly carved district favorable to Republican candidates. He won the Republican primary this past week.

The Edwards case, in many ways, puts the Justice Department’s small Public Integrity Section on trial, too, after the 2007 bungling of a corruption case against Alaska Sen. Ted Stevens. The revelation that prosecutors in that case failed to disclose key evidence to the defense led to the voiding of the verdict against Stevens and an investigation into professional practices of the section.

“The stakes are high for both sides in this case,” said Hampton Dellinger, a Triangle-based lawyer who has been inside the courtroom for most of the trial.

Steamy power drama

The case, however tentative in its legal groundings, has been convincingly interesting and often entertaining.

It has delivered story after story about what happens behind the scenes of a national political campaign, many of which had already been divulged in two recent books – “The Politician” by Young and “Game Change” by political journalists John Heilemann and Mark Halperin.

There has been testimony about visits and phone calls with some of the country’s most powerful politicians – President Barack Obama, Secretary of State Hillary Clinton, Sen. Tom Daschle, to name a few. In a moment that left defense lawyers flabbergasted in disbelief, Young even claimed to have talked to former Secretary of State Warren Christopher about Edwards being vice president and Young being an adviser on Iraq.

And there have been glimpses of the glitzy lifestyles of those on the upper side of Edwards’ two Americas – private jets taking off from front-yard runways, posh vacation homes and hotel rooms that cost several thousand dollars a night.

There have been seamy moments that might make a parent reach to cover a child’s ears. There has been poignant and tearful testimony that is a down-to-earth reminder that, all salacious details aside, the many people tangled up in this case are not just characters in a soap-opera drama that packs a small but stately courtroom each day. They are real people with raw and complicated emotion about circumstances enmeshed in a presidential campaign four years ago.

Cate Edwards, now 30, married and running her mother’s foundation, has accompanied her father to court most days, as have his parents, Wallace and Bobbie Edwards.

Defense faults the case

On Friday, a routine trial procedure in which defense attorneys ask for dismissal of a case after prosecutors have presented all their evidence provided a peek at key points and testimony from key witnesses that lawyers might focus on in closing arguments.

Abbe Lowell, the swift-speaking, high-profile white-collar crime defense attorney out of Washington, D.C., who writes his initials on a styrofoam water cup first thing each morning, stood at the podium in front of Judge Catherine Eagles and went through the six charges, count by count.

The credibility of Young’s testimony loomed large in Lowell’s request to spare the jury from a case that he argued was too weak and riddled with holes to put in front of 12 reasonable people.

Lowell also argued that no testimony had been presented showing Edwards and the people involved in hiding the affair had a criminal conspiracy to break the law.

Further, Lowell contended, there was no evidence that the nearly $1 million from two billionaire supporters was a contribution for “the sole” purpose of influencing the 2008 election, putting a strong emphasis on words used in the six-count indictment. The money, the defense team has contended, was used to hide Edwards’ continued affair with Hunter and her pregnancy from his increasingly suspicious and terminally ill wife.

“Mr. Edwards would have expenses for a baby he fathered, whether there was a campaign or not,” Lowell said.

Lowell further asserted that a “fatal defect” in the prosecution’s case was that no evidence showed Edwards did anything with the specific intent of violating the law or that his billionaire supporters gave the money at the crux of the case as anything other than gifts on which taxes were paid.

“What ounce of proof is there that this was a campaign contribution?” Lowell said.

Prosecutor has answers

David Harbach, a prosecutor with a Harvard law degree who got to know North Carolina while doing his undergraduate studies at Duke University, stood up with his rebuttal to Lowell, almost point by point.

A hand-written note from Rachel “Bunny” Mellon sent to Young, Harbach contended, showed her intent to get around campaign regulations.

“I was sitting alone in a grim mood – furious that the press attacked Senator Edwards on the price of a haircut,” Mellon’s note states. “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.”

That, Harbach contended, showed motive for Mellon, a philanthropist who had already given the maximum campaign contributions for that year in addition to providing about $6 million to issue-oriented organizations tied to Edwards.

But Mellon, just three months shy of her 102nd birthday, was not called as a witness, and others who testified about her motives stated she had a “bit of a crush” on Edwards and thought of him as a friend first and a man she would have supported in any of his endeavors.

Harbach said the statements of former speechwriter Wendy Button, staffer John Davis and Jennifer Palmieri, a former spokeswoman and friend of Elizabeth Edwards, bolstered their contentions that Edwards knew Baron had provided flights, hotel rooms and money to hide Hunter.

Button testified that Edwards told her in the summer of 2009 that he “knew all along” that Baron was helping. Button conceded under cross-examination that Edwards did not state precisely what he meant by that during that emotional telephone call.

Davis testified he was on a private plane with Edwards and Baron, close enough for their knees to touch, when he heard the Texas billionaire boast “the media was never going to be able to find Rielle because he was keeping her moving.” Davis said he told Baron, who had a reputation as being a bit of a gossip, to stop talking about it.

But Lowell has contended that Baron, a trial lawyer of much renown, knew what constituted illegal contributions and was careful to direct money to the proper accounts either for the candidate’s campaign or the issue-related organizations linked to Edwards.

Teasing truth out of lies

Prosecutors and defense attorneys plan to use the complicated testimony of Young to support their contentions.

Prosecutors want jurors to believe that the 46-year-old Young – who falsely claimed paternity, a former aide described by staffers as “sketchy” and not an integral part of the 2008 campaign – has offered a story line that matches with other evidence.

Defense attorneys contend that Young, if taken at his word, testified that Edwards told him on at least two occasions that he had checked with campaign lawyers and what they were doing was legal, speaking to whether there was criminal intent.

But Harbach stated Edwards had lied before, and he used the 2008 ABC interview as evidence that could lead a reasonable juror to believe the defendant had lied again when making such a statement to Young.

Eagles, a former Guilford County Superior Court judge who was appointed to the federal bench by Obama in 2010, told the lawyers on Friday she had heard sufficient evidence over the weeks of testimony to put the case to a jury when the time comes.

Eagles, a 53-year-old Tennessee native, has presided over the trial in folksy style, her long, wavy hair pulled up in a loose bun atop her head, large hoop earrings dangling, and glasses that she slips down her nose when something is either perplexing or troubling her.

“You’re squinting at me,” Lowell told Eagles on Friday after trying to persuade her to throw out the case and acquit Edwards.

“That just means I’m thinking,” she said with the same pluck and spunk evident when she tells the lawyers to slow their speech or move on with a point.

On Monday, the jury will be back, and the defense team is expected to bring in a former Federal Election Commission chairman who stated shortly after Edwards was indicted that he thought the prosecution’s theory in this case was “far reaching.” Edwards’ lawyers have said that the case should have been a matter for the FEC to consider, not the courts.

Prosecutors, who called only one witness to speak specifically about campaign finance reports, have objected to the defense’s efforts to classify Thomas as an expert witness, who then would be able to offer his opinion to the jury.

That could be the next prickly ruling for the judge, deciding whether there has been enough testimony in the prosecution’s case about campaign finance law to allow an expert witness to offer his thoughts on the case.

Will we hear Edwards?

Legal analysts familiar with the trial have offered a mix of views on whether Edwards should and would take the stand. The jury, a collegial group that offers hearty greetings to the judge each morning, has heard him in his own words from four years ago in the videotaped TV interview and voicemail messages saved by Young.

Taking the stand would open him to cross-examination by prosecutors who have described him as so overly ambitious and selfish that he would stop at nothing to achieve his goals. But it also would provide the successful trial lawyer an opportunity to expose the jury to the man he is today. Greensboro lawyer Allison Van Laningham, the only woman on his defense team, contended in her opening statement that Edwards had “committed many sins, but no crime.”

Once all has been said and done, and a jury has decided the fate of the former U.S. senator and presidential candidate, the verdict is not likely to be the last word on the Edwards case.

Throughout the trial, there has been much testimony about book, movie and play deals.

Young testified that there had been talks about adapting “The Politician” for film or theater.

Button, a writer and prolific note taker, has written a book that builds on her experience trying to help Edwards craft a statement to acknowledge paternity of the daughter born to him and Hunter.

There could be others, too.

It remains to be seen what the next chapter is in the story of John Edwards, a man who grew up in a Moore County mill town, became a legal star in Raleigh, made a big splash on the national political stage, then got sucked into the churning waters of a scandal that has him fighting for his freedom.

No matter the verdict or any celebratory smiles afterward, the trial has made clear that for Edwards and others involved there can be no real winning here after so much has been lost.

Blythe: 919-836-4948

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