Why criminal charges were brought against John Edwards remains unclear

 

The (Raleigh) News & Observer

More than two years of investigation and a six-week trial subjected the actions of presidential candidate John Edwards in 2007 and 2008 to unsparing scrutiny, revealing such intimate details as the likely conception date of his out-of-wedlock daughter and a hotel scene of his mistress in her nightie.

But one aspect of the case remains unexplained: Why was it brought as a long and costly criminal case rather than as a civil matter for the Federal Election Commission?

George Holding, the former U.S. Attorney for the Eastern District of North Carolina and now a Republican candidate for Congress, initiated the investigation more than three years ago. He acted after reports surfaced that Edwards had used money from two supporters to hide his pregnant mistress during his run for the 2008 Democratic nomination.

Near the end of the probe, the Edwards defense team and federal prosecutors discussed a plea deal that fell apart in the 11th hour. The government then had to choose between turning the case over to the FEC for a civil review, or proceed with a criminal prosecution. The latter was chosen.

The charges that followed in June 2011 were dramatic with the former U.S. senator and Democratic vice presidential nominee indicted on six crimes and facing possible prison time and several million dollars in fines. But the resolution of those stark charges ended in cloudy ambivalence.

A jury deliberated for nine days and could not agree on whether Edwards committed a crime. Jurors acquitted him on one count of campaign finance charges and deadlocked on the five other felony counts.

The government has yet to say whether it will retry a case that some attorneys speculate cost at least $2 million to put before a jury. But many observers, including several jurors, say the trial exposed weaknesses unlikely to be overcome a second time around.

Cindy Aquaro, a special education teacher from Winston-Salem who served on the jury, said she thought the questions might have been better weighed by federal elections officials, not 12 jurors confused by the judge’s lengthy instructions. The jurors spent days in the Greensboro federal courthouse trying to determine whether any of the $900,000 from two wealthy donors could be considered a campaign donation.

There was one man on the jury who thought Edwards was guilty on every charge, Aquaro said, and others who thought he was not guilty of any charge and refused to change their opinions. Jurors said the majority favored acquittal on all counts.

Aquaro said she would not recommend retrying the case.

“Not if they’re going to use the same evidence,” she said.

Settling a score?

From the start there were allegations from the Edwards camp that he was a victim of political score settling. Holding, a Republican from Raleigh who announced his candidacy for a U.S. congressional seat from the 13th District just weeks after Edwards’ indictment, rode herd over a case that ultimately was tried in a different district from his own.

Edwards’ lawyers noted Holding’s run for office in a 31-page memorandum in support of their September 2011 motion to dismiss the case. The memo also described Holding’s role as a former staffer to Republican U.S. Sen. Jesse Helms, his campaign contributions to the Republican senate incumbent Edwards defeated, Lauch Faircloth, and Holding’s time as a law clerk to Judge Terrence Boyle, a federal district court judge in the Eastern district whose nomination to the Fourth Circuit Court of Appeals was blocked by Edwards.

“In this prosecution, a major figure in the Democratic Party had been brought down and, as it turns out, a Republican U.S. Attorney with political ambitions of his own has used this high-profile case to his personal benefit,” the Edwards defense team said.

Holding has declined to comment on the Edwards case.

Defenders of the Edwards indictment note that it was approved by the U.S. Department of Justice during a Democratic administration. Edwards’ attorneys said in court that the department had little choice but to approve what Holding initiated. They said top Obama administration officials would have been skewered as being partisan if they did not move forward with the case.

Holding’s campaign did defend the cost of the prosecution in the May primary race when his GOP opponent, Wake County Commissioner Paul Coble, called Edwards’ prosecution political. Holding has campaigned on his willingness to investigate alleged corruption by Edwards and another prominent North Carolina Democrat, former Gov. Mike Easley.

“I think there is no question that Holding thought those two cases would take him to Congress,” Coble said.

At the time Holding’s campaign strategist, Carter Wrenn issued a statement calling Coble’s remarks “bizarre.”

But now Holding’s Democratic opponent in the 13th District is joining the debate.

“It seems like it was a stretch to convict him, as we see now,” said Charles Malone. “I don’t think it was the best use of taxpayer money.”

‘An aggressive theory’

Bruce Reinhart, a former federal prosecutor in southern Florida and a former trial attorney in the Public Integrity Section of the U.S. Justice Department, said he did not think the government was necessarily wrong to seek the charges.

“That being said, I think there were a number of good reasons not to bring the case,” Reinhart said.

The government used “an aggressive legal theory,” he said, and “to push the envelope on something like this was a bit aggressive.”

There were civil remedies available to test the case and punish the conduct just as publicly, he said.

Reinhart puts no stock in the allegations that the Edwards case was a politically motivated prosecution. He said cases of that ilk are thoroughly “scrubbed” for such abuse.

“I can tell you categorically that doesn’t happen,” Reinhart said.

Congressional investigations have found otherwise.

In April 2008, the House Judiciary Committee issued a report about the George W. Bush administration rewarding U.S. Attorneys willing to bring charges reflective of the administration’s agenda.

The report, done by a bipartisan committee, found that some U.S. Attorneys between 2001 and 2007 were replaced because they failed to bring charges supporting a political agenda and others were retained because they did bring such charges.

Anna Mills Wagoner, the top prosecutor in the Middle District when the Edwards’ investigation began, had been listed on early target lists of the Bush administration as a U.S. attorney who was insufficiently supportive of the Bush agenda, according to the memorandum filed by the Edwards defense team. The Edwards case was developed in Holding’s district, then switched to the Middle District for trial.

The Obama administration allowed Holding to remain in his post three years after Obama took office at the request of Sen. Kay Hagan, a Democrat from Greensboro, and Sen. Richard Burr, a Republican from Winston-Salem. The senators used a special “blue-slip” process in 2009 urging Attorney General Eric H. Holder Jr. not to replace Holding while he was in the middle of investigations of two high-profile Democrats.

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