The defense rested abruptly Wednesday without Mr. Edwards taking the stand, marking the end of a courtroom drama that had plenty of drama but little of what the prosecution had promised, analysts and observers say.
Before the trial began, prosecuting attorney Lanny Breuer said the federal government won’t “permit candidates for high office to abuse their special ability to access the coffers of their political supporters to circumvent our election laws.”
But what followed became little more than an effort to put a deplorable face on the alleged evils of breaking campaign-finance law. Edwards, prosecutors said, funneled $900,000 of campaign cash to his pregnant mistress to hide the affair from his ill wife and to keep his name in the running as a potential 2008 vice presidential candidate.
To some, the prosecution has overreached in an attempt to net a big fish. Yet the broader context of the trial has also played no small part in stripping it of deeper meaning for the political world. Indeed, given the US Supreme Court’s landmark Citizens United ruling in 2010, a candidate in a similar situation today would likely be able move such money to its target in an alternate, and legal, way.
As it is, prosecutors are seeking convictions on six felony counts. Defense lawyers say that, even if Edwards knew about the transaction, it was far from a clear campaign cash violation and doesn’t rise to the level of a felony.
How the jury views those points will matter greatly to Edwards. Closing arguments are set to begin Thursday. But the Citizens United ruling has made the trial seem like a window onto a bygone era.
In the Citizens United case, the Supreme Court ruled that groups that are not connected with candidates can solicit and use campaign dollars for campaign activity, so long as it is not coordinated by a candidate. The ruling opened the floodgates for so-called “super political-action committees,” which raise and spend millions of dollars to advocate on behalf of an issue or a candidate, though they are not actually affiliated with the candidate’s campaign.
In the Edwards trial, the defense has argued that Edwards didn’t actually coordinate the money transfers from millionairess Bunny Mellon to an account that Edwards’s mistress, Rielle Hunter, could use as a former campaign aide shuttled her around the country. This, to some experts, sounds like activity that would now be legal under super PACs.
“If we lived in a different world and this money had gone to a nonconnected valid [super PAC], there would be no problem here,” says Donald Tobin, a law professor at the Moritz School of Law at Ohio State University in Columbus. “This was not express advocacy … it’s not electioneering, and it doesn’t even feel like a campaign contribution.”
“A 501c(4) [super PAC] could say this is a nonconnected association of individuals allowed to engage in noncoordinated campaign activity,” he says.
Not everyone shares that view. If Edwards actually were involved, “then there’s coordination, so independent spending wouldn’t come into play,” says Rick Hasen, a law professor and campaign-finance expert at Loyola Law School in Los Angeles.
Yet the Citizens United ruling has been cited by at least one politician in an attempt to have a campaign-finance conviction overturned. Former Rep. Tom DeLay (R) of Texas will cite the ruling in an appeal. Earlier this year he was sentenced to three years in prison for illegally funding Republican candidates in Texas in 2002. Mr. DeLay has said the idea in Citizens United, of corporate donations qualifying as constitutionally protected free speech, would nullify the verdict against him.
Citizens United or not, Professor Hasen casts doubt on the decision to charge Edwards in the first place. The US Justice Department, he suggests, has been using “novel” legal interpretations to open doors for criminal prosecutions of candidates, which have now grown to some 600 a year, on average.
In Edwards’s case, for example, prosecutors — including one who is running for Congress – rejected a tradition. In the past, the Justice Department wouldn’t file criminal charges in campaign-finance cases without a ruling from the Federal Election Commission. In this case, FEC commissioners could not with certainty state that Ms. Mellon’s gift constituted a campaign contribution.
“The broader takeaway is the danger of even well-meaning prosecutors who can ruin lives by being overly aggressive instead of focusing on clear cases of criminality,” says Hasen.