John Edwards's Trial Will Showcase a Novel Defense

As the disgraced former presidential candidate John Edwards prepares for trial on criminal charges of accepting nearly $1 million in illegal contributions during the 2008 Democratic race, consider what his two election-law experts are prepared to concede.

Much of it is indisputably, painfully true: That Edwards was a cad, a purported family man who cheated on his wife as she was dying of cancer. That he did so with a certain juvenile glee, even letting his paramour, a New Age videographer named Rielle Hunter, tape one of their sexual encounters. That he was a serial liar, repeatedly and huffily insisting to his wife and the American public that such reports were “tabloid trash,” that he’d had a fling rather than a two-year -affair, that the resulting baby girl wasn’t his handiwork but that of a pathologically -sycophantic aide.

The two experts, Scott Thomas and Robert Lenhard, also concede, simply for the sake of legal argument, some points still in dispute: that Edwards had asked two wealthy benefactors—heiress Rachel “Bunny” Mellon and his finance chair, Fred Baron—for hundreds of thousands of dollars to squirrel away Hunter from the press, with Mellon sending checks, hidden in chocolate boxes and ostensibly for antiques, that were quickly signed over to Edwards’s aide.

Still, the Edwards legal team contends, he violated no laws: the money wasn’t campaign contributions at all, but personal donations from Mellon and Baron to help a friend in a fix. It’s a highly technical argument, one based on the hope—or prayer—that jurors can look beyond Edwards’s scandals and focus on the law. Edwards, whose faith in juries enabled his meteoric political career in the first place, is now going to have his own put in front of one.

Interviews with key players and a review of documents in the case offer a picture of how Edwards’s gold-plated legal team will attempt to get him off the hook. Just days ago, a federal judge in Greensboro, N.C., finally cleared the way for that to happen, refusing Edwards’s attempt to throw out the charges. “After all these years, I finally get my day in court,” Edwards said with his best game face on as he emerged from the courthouse.

The ruling by Judge Catherine Eagles sounded routine, but was in fact freighted. The case carries peril to all parties involved: not only for Edwards, but for the Justice Department and the Democratic Party.

For Edwards, a conviction would mean not just the final, humiliating tumble in his precipitous fall from grace, but up to five years in prison, plus a $1.5 million fine, the loss of his law license, and separation from his two youngest children. For the U.S. government, specifically the Justice Department’s Public Integrity Section, it is an opportunity to redeem itself after recent embarrassments, but it comes with great risk: a dubious principal witness, and an unorthodox and unprecedented expansion of the election law. For Democrats, the scheduled trial date in January comes at the start of a presidential-election year—an unpleasant time for further tawdry details to emerge of Edwards’s dalliances with Hunter. And this spectacle is set to take place in North Carolina, a crucial tossup state that President Obama barely carried in 2008, and in which the Democrats will hold their national convention next summer.

Had both sides been less stubborn, they might have struck a deal. They did come close. With former Obama White House counsel Gregory Craig representing Edwards, the two sides negotiated right up until the moment in early June when a grand jury handed up the indictment.

But pleading to a felony would have cost Edwards his law license. And copping to a misdemeanor would have meant at least a brief stint in jail, away from his children Jack, 11, and Emma Clair, 13, whom he’s now raising by himself. (The government evidently ruled out alternatives like halfway houses, weekend releases, or house arrest.) Edwards moved back into the family compound near Chapel Hill after his wife’s death and now devotes most of his time to his kids. Unable to make a living, he has been spotted only at his son’s baseball games (he’s a coach) and, for a time, around pickup joints in Chapel Hill. Edwards regularly travels to Charlotte to see Rielle Hunter and their daughter, who is now nearly 4. Friends say the couple remain an item, but are unlikely to marry.

This is hardly the first time Edwards has bet it all on a jury. In his trial-lawyer days, he was renowned as a fearless gambler. In a 1996 case involving a girl whose intestines were sucked out by an uncovered pool pump, he famously turned down a $17.5 million offer, only to have a jury award her nearly $8 million more shortly thereafter. And his vanity, the sort that led to all those $400 haircuts, is equally legendary. He may still think he can charm a jury—and one of the great questions in the trial is whether he will take the stand himself.

Edwards may have one winning card in the prosecution’s star witness: his own former aide Andrew Young. Young was once so loyal to Edwards that his nickname was “Rose Petal,” after what he figuratively spread before Edwards’s feet wherever he walked. But he has now turned state’s witness.

Unfortunately for the government, Young comes with huge credibility issues. That’s only in part because he initially claimed to be the father of Rielle Hunter’s child. Edwards campaign alumni almost uniformly describe him (and his book) as notoriously, even pathologically, unreliable, filled with fibs, half-truths, and self-aggrandizing exaggerations. In a separate case involving the Hunter-Edwards sex tape—which Young somehow found and copied, and for whose return Hunter sued him—Young has admitted to having a poor memory, particularly when drinking or under stress. Asked in that case whether he’d swear that everything in his book was true, he replied, “I’m not going to allege that, no.”

Lawyers for Hunter claim Young and his wife, Cheri, lied under oath some 20 times on such things as how many copies of the sex tape Young made, where he hid it, and to how many people he played it (legions, it appears). You can expect Edwards’s lawyers to use these alleged lies as they attempt to discredit the feds’ star witness.

Edwards’s lawyers have also suggested that much of the money from Bunny Mellon and Fred Baron went to Young himself. Young’s lawyer, David Geneson of Washington, denies this, and says Young’s testimony is detailed and accurate enough to sustain attacks on his credibility. Young’s wife, who stuck with her husband through the entire scandal, is also expected to be called as a witness against Edwards. Thanks largely to such faithfulness, says Geneson, she will be even more persuasive on the stand.

The Justice Department’s Public Integrity Section urgently needs to win the case. Doing so would bring it redemption after being sullied by its disastrous prosecution of the late senator Ted Stevens of Alaska. Although the case against Edwards was initiated by the Bush Justice Department, the Obama administration—fearful, perhaps, of being seen coddling a Democrat—has jumped in with both feet. Its principal backer has been Lanny Breuer, head of the Justice Department’s criminal division. A Rahm Emanuel protégé who helped represent Bill Clinton during the Monica Lewinsky scandal, he is distrusted by some veteran prosecutors. Bagging Edwards would earn him spurs.

And he’s spared no expense, going after Edwards relentlessly. For 34 months, at least 56 agents from the FBI and IRS interviewed some 125 witnesses. The government collected more than 400,000 documents, spanning Edwards’s entire political career.

The indictment charges that sometime around May 2007—that is, just about the time Hunter told Edwards she was pregnant with his child—Edwards and Young began looking for donors to help hide her. They quickly lighted on socialite Bunny Mellon. Mellon, who’d met Edwards through Andrew Young three years earlier, had taken a shine to him, seeing him as the second coming of John and Robert Kennedy. “We’re going to do whatever it takes to make you president,” she told Edwards—according to Young. After Edwards, who’d positioned himself as a man of the people, had been caught getting his fancy haircuts, Mellon loosened her purse strings. “It is a way to help our friend without government restrictions,” she wrote Young. “From now on, all haircuts, etc. that are necessary and important for his campaign—please send the bills to me.”

By January 2008, $725,000 of Mellon’s money had gone to the care and feeding of Rielle Hunter. The funds paid for her rent, furniture, car, living expenses, medical visits, and prenatal care. And beginning in December 2007, those funds covered a weird 20-city luxury escape from public view that took Hunter, the Youngs, and their three children from Ft. Lauderdale, Fla., to Aspen, Colo., to Santa Barbara, Calif., invariably aboard Fred Baron’s jet. The air travel alone cost $200,000.

Even after January 2008, when Edwards suspended his campaign, the checks continued coming. At that point, incredibly, Edwards still hoped to be named attorney general. He eventually collected more than $6 million from Mellon, mostly for legitimate campaign-related activities or entities.

By all accounts, Mellon, now 101 years old, does not feel ill used, is bewildered that Edwards is being hounded for anything involving her, and still thinks he would have made a fine president. But she’s also said to be too fragile and confused to testify.

The case will largely turn on whether the gifts from Mellon and Baron were personal or political. Neither benefactor considered the money to be contributions; each paid gift tax on them. Prior to his death in October 2008, Baron said he “decided independently” to help Hunter, and that Edwards neither knew about nor instructed him to do it. But it’s hard to see how the money wasn’t designed at least in part to hide the affair from voters. As a result, prosecutors say, it was effectively a campaign contribution and was illegal both because it wasn’t reported and because it wildly exceeded the legal limit of $2,300.

Because Young could well be demolished on cross--examination, prosecutors will likely call a host of other witnesses to try to establish that Edwards was deeply involved in the scheme. Observers also foresee witnesses who might testify that the payments continued long after Elizabeth Edwards knew about her husband’s affair with Hunter. That would mean the money wasn’t principally to help a man hiding an affair from his wife; it was to help a politician hide it from voters.

Edwards’s phalanx of lawyers includes the dean of the North Carolina trial bar, Wade Smith of Raleigh; James Cooney III of Charlotte; and Abbe Lowell of Washington, who once represented lobbyist Jack Abramoff. And, of course, there’s the star trial lawyer in the room, John Edwards himself, who is kibitzing constantly. For all the high-priced advice he’s getting, it is Edwards who will ultimately determine whether he himself should testify.

Had his grand political ambitions borne fruit, he might now be finishing his first term. Instead, he finds himself an untouchable, embracing a legal defense that rests at least in part on the idea that he’s not even worth going after: his lawyers claim it is a “vindictive prosecution.” It was spawned, they charged, by the politically polluted Bush Justice Department, then steered to an ambitious Republican prosecutor in Raleigh, George Holding, rather than to the less political U.S. attorney in Greensboro, the district where Edwards lives. Holding and Edwards are longtime antagonists: Edwards blocked the promotion of the federal judge for whom Holding once clerked, for instance, and Holding worked for Edwards’s archrival, the late senator Jesse Helms.

Holding, who announced his candidacy for Congress a month after Edwards’s indictment, built his prosecutorial career going after Democratic politicians, including former and current North Carolina governors Mike Easley and Bev Perdue. But Edwards, the former senator’s lawyers say, was Holding’s “biggest political prize.”

For someone as enthralled with attention and power as Edwards, Chapel Hill now seems a provincial place. His universe of aides has been reduced largely to his lawyers, including his daughter Cate, whose wedding on Oct. 22 at the Edwards home in Chapel Hill was among the factors he cited for seeking to postpone his trial. One of the reasons he clings so tenaciously to the law license he stands to lose is that he’s said he wants to remain relevant—to devote himself, once all this is over, to fighting poverty.