Judge: Former FEC members might testify for Edwards

Jerry Goldfeder in Newsobserver.com, December 17, 2011

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A federal judge would not rule out two former Federal Election Commission members from testifying as experts for John Edwards in his criminal trial early next year, a decision that could be a boost for his defense.

Judge Catherine Eagles said Friday she was inclined to wait until after hearing evidence put on by prosecutors at trial before ultimately ruling whether the FEC members could testify as experts. Prosecutors had sought to have the men barred before the trial started.

"I just don't think I can say at this point (that) I'm not going to let you put any expert on," Eagles told the lawyers before her bench ruling.

The defense team for Edwards alerted prosecutors some time ago that Scott Thomas and Robert Lenhard, former FEC chairmen, are on their list of potential witnesses to call if they put on evidence during the trial set to start early next year.

The two former heads of the federal agency in charge of administering and enforcing campaign finance laws have raised questions about the prosecution of the Edwards case.

"I was unable to find any case or matter with precedental value that states that the conduct described in the Indictment - or any conduct similar to it - constitutes a violation of the federal campaign finance laws," Lenhard, a Washington attorney who served as the FEC chairman in 2007, said in an affidavit included in the extensive Edwards court file.

Thomas, the other former FEC member on the defense team's potential witness list, echoed Lenhard contending that what prosecutors have alleged against the former presidential candidate "do not make out a knowing and willful violation of the campaign finance laws warranting criminal prosecution."

Prosecutors contend the expert testimony from the two men, who could not talk specifically about Edwards' state of mind, would be confusing for the jury that would be tasked with deciding the facts of the case.

The prosecutors argued further that campaign finance law, specifically the area pertaining to the Edwards case, is not so complicated that expert testimony is needed.

Edwards, 58, a former U.S. Senator and high-profile North Carolina trial lawyer, is accused of violating campaign finance laws by secretly obtaining and using contributions from two wealthy supporters to hide his mistress and her pregnancy from the public during his unsuccessful bid for president in 2008.

The payments covered living, medical and other expenses for Rielle Hunter, a videographer with whom he had an extramarital affair and a daughter.

Prosecutors argue the donations were campaign contributions meant to hide the affair so Edwards could keep his 2008 presidential bid alive. They also contend the contributions exceeded legal limits.

Since Edwards' arrest this summer, legal scholars have raised questions about the strength of the prosecution's case, often citing the opinions of the former FEC chairmen as signs of weakness.

Testimony from Thomas and Lenhard, legal analysts say, could benefit Edwards more than prosecutors.

Jerry Goldfeder, a New York lawyer who teaches election law at Fordham University Law School, said Friday he thought prosecutors have a "tough hurdle" because the law is "not clear cut." The former FEC members, he said, could amplify those ambiguities.

"Their testimony could be very useful to the defense in explaining an arcane area of the law," Goldfeder said Friday.

Richard L. Hasen, a law and political science professor at the University of California-Irvine who has written extensively about election law and campaign finance law, said the former FEC members could help Edwards with any credibility issues he might have with a jury.

Edwards, Hasen said, could face a character attack from prosecutors, who might try to introduce evidence about his affair and subsequent statements denying it to show him as having a "propensity for lying."

Edwards' defense team contends he did not break the law. They also argue that even if laws were broken, Edwards did not do so intentionally, and his state of mind could be a big factor in a jury's verdict.

Two former FEC members highlighting the ambiguity of election law in 2007 and 2008, when the payments in question were made, could sway a jury, Hasen said.

"It could help the Edwards defense team fairly significantly by making any subjective testimony from Edwards seem more reasonable," he said.

Jury selection in the Edwards case is set to begin Jan. 30, with testimony expected to begin in mid-February.

Edwards has said he did not break the law and that he looks forward to getting his day in court.

The trial, which could include a cast of characters whose lives have been the subject of tabloid journalism, tell-all books and national intrigue, could be a well-watched curtain-raiser of the 2012 political showdown in North Carolina, a battleground state in the presidential race.

The defense maintains the case is politically motivated.

The prosecution contends it is not.