Why the John Edwards prosecution went down in flames

At one point, the government’s case against John Edwards seemed open and shut: The disgraced former presidential candidate must surely be guilty of something for using a wealthy donor’s six-figure checks to hide a mistress and a love child during the 2008 presidential campaign.

This week, a jury decided just the opposite, concluding in interviews after deadlocking on most of the charges that “the evidence wasn’t there” to convict Mr. Edwards, a former senator and once-favored Democratic presidential candidate, on six counts of election fraud. The jury returned a not guilty verdict on the key charge and deadlocked on the other five.

While the Department of Justice’s Public Integrity Section, which helped prosecute the Edwards case along with a team of North Carolina lawyers, wins far more cases than it loses (it has 161 guilty verdicts since 2009, mostly for bribe-taking), the collapse of the Edwards case hits particularly hard, in part because of the questions now being raised about why the government brought what some legal analysts say was “a lousy case” in the first place.

“I think it’s a very difficult area in the law, and there was just so much background noise in this case, such difficult witness issues, that it’s frankly not surprising to me that this is where they ended up,” says Peter Zeidenberg, a former Public Integrity Section prosecutor who now works for white-collar defendants in Washington. Given that, “I think that they obviously miscalculated the strength of this case.”

To be sure, in announcing the charges last year, Assistant Attorney General Lanny Breuer came out swinging, declaring the case was about “campaign integrity.” And by most accounts, prosecutors handled the long, complex trial itself with aplomb and professionalism, helped along by favorable rulings from Judge Catherine Eagles. And more generally, the difference between a foolish exercise of discretion in bringing a losing case and a conviction on the part of courageous prosecutors can be whisper-thin even in the best of cases.

But for DOJ campaign investigators reeling from the fallout from the botched prosecution of the late Alaska Sen. Ted Stevens, where a judge threw out a guilty verdict after finding out that the government withheld exculpatory evidence, the rubble of the Edwards verdict holds some key lessons, legal analysts say.

One of the central ones is that the prosecution was faced with trying a unique case where the jurors, in one sense, were among the victims – in other words, defrauded voters. “If the public is the victim, then the jurors are victims, too, and they could basically say, ‘I don’t care, that happened three, four, five years ago,’ ” Mr. Zeidenberg says. What’s more, given that the Federal Election Commission had decided not to sanction Edwards, the prosecution had few clear legal precedents for trying Edwards.

The prosecution was also faced with using vague laws to take aim at a campaign finance system that, at this point, has become a moving target. Though the alleged crimes happened in 2008, the jury was deciding Edwards’ guilt after the landmark 2010 Citizens United case, where the Supreme Court equated cash money with free speech. The fact is that had the same scenario played out in 2012, the transfer of funds may not have been even close to illegal – a notion that has begun to seep into not just appelate judge chambers, but the national zeitgeist.

Moreover, to many Americans, even those disgusted by Edwards’s decisions, it seemed like overkill. Edwards was no longer a politician, and his career and family have paid a high price for his infidelities, indiscretions and, as he said, “sins.” “Disgraced” has been among the softer adjectives used to describe him, “scoundrel” among the gentler nouns.

But he was still a guy in a suit in a courtroom, who declared, surrounded by his family after the verdict, that he, and he alone, bore responsibility for what he had done.

Zeidenberg, the former prosecutor, says the most obvious cautionary tale for the government is that it appears to some, at least, that politics played a role in the prosecution – never a good sign in a free country.

The main investigator, a North Carolina Republican named George Holding, left the case immediately after charges were announced to run for a US House seat – a move that Zeidenberg says failed to raise enough eyebrows. And although the chief prosecutor, Lanny Breuer, a Democrat, ultimately made the decision to go forward, he had his own political considerations to consider: If he didn’t proceed, the conclusion that would likely be drawn is that he was protecting a fellow Democrat.

“It’s unfortunate to say this, but there’s a definite possibility that it was politically motivated to begin with, and it makes it really hard not to ask some questions about that,” says Zeidenberg.

Once the trial got underway, the prosecution caught every break, with the judge agreeing to motions to suppress some key defense testimony and giving the jury a wide berth in how to assign guilt to Edwards.

But prosecutors also had to contend with a shaky star witness, former Edwards aide Andrew Young, who wrote a tell-all about the whole affair, at one time proferred an alleged sex tape, and who ended up using some of the money to build a fancy home.

"I think the credibility of the witness was something that was of utmost importance to us,’’ Jury foreman David Recchion said.

The Edwards trial was decidedly high-profile and high-stakes, and can still be held up by the Department of Justice as a model for what can happen if a candidate attempts campaign finance shenanigans. And few Americans really want prosecutors to be shy about pursuing miscreants just because there are some weaknesses in the case.

At this point, a retrial of Edwards on the five deadlocked charges appears a non-starter.