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Edwards’ defense team prepares to tell its side after judge rejects request to throw out case

By Anne Blythe, McClatchy Newspapers –

GREENSBORO, NC. — The first three weeks of the John Edwards trial had little testimony about campaign finance law — the reason the former Democratic presidential candidate has been in court.

That could change starting Monday, as the defense begins its side of the case. Jurors could hear from a former Federal Elections Commission chairman who has publicly stated that he thinks the government’s theory under which Edwards is being tried is “far reaching” and an “erroneous reading” of the law.

Edwards’ defense had hoped to have the case dismissed after the prosecution rested its case. Defense attorney Abbe Lowell asked Judge Catherine Eagles on Friday for acquittal of all six counts of the federal indictment related to campaign finance law. She rebuffed the request.

The jury was not in court Friday, but was told to be back Monday at the regular time.

Lowell argued that even if the prosecution had presented enough evidence for a reasonable jury to think a crime had taken place, that there has been no testimony about Edwards’ intent — a crucial element of the accusations against him.

The case, being watched by many legal analysts, could set a new standard for what falls into the category of campaign expenses.

Scott Thomas, who worked at the FEC for 30 years — almost 20 as commissioner — released his opinion that prosecutors were overreaching shortly after Edwards was indicted.

Prosecutors have objected to the defense’s plans to call Thomas and another former FEC chairman, Robert Lenhard, as expert witnesses. In a document filed before the trial, prosecutors contended that the former FEC chairmen — both of whom have raised questions about the prosecution’s definition of campaign contributions — should not be classified as expert witnesses.

“(E)xpert opinion testimony that simply states legal conclusions is generally not helpful to the jury and is properly excludable,” the prosecutors argued in their pre-trial motion.

Raleigh defense attorney Wade Smith, who represented Edwards during the federal investigation, is also on the list of possible witnesses to be called Monday. Though in the unusual position of being called as a witness in a case that he used to be a part of, Smith could elaborate on a phone call he had with Alex Forger, the New York lawyer who represents Rachel “Bunny” Mellon. She is one of the two billionaires who prosecutors claim provided nearly $1 million to hide Rielle Hunter, Edwards’ pregnant mistress.

The beginning of the defense case caps three weeks of testimony in which prosecutors called 24 witnesses to develop a tawdry storyline about a candidate who used to be a rising star in the Democratic Party.

The defense argues that personal expenses that must be reported under campaign finance law are only those that would not otherwise be spent or incurred.

If Edwards were not a candidate running for office, Lowell pointed out Friday, he still conceivably could have to spend money to hide a mistress — and a pregnant one at that — from his wife, his family and others.

The government, which started its investigation of Edwards in 2009, had many holes in the legal theory behind its case, Lowell contended. Congress and U.S. lawmakers should decide whether payments for a candidate’s mistress fall within the realms of campaign finance regulations, not a judge and jury, he said.

“They’re asking you to be a pot hole filler,” Lowell told the judge. “They’re asking you to be a super-legislator.”

Prosecutor David Harbach tried to address each of the defense team’s points Friday, giving a glimpse of how closing arguments might take shape.

Harbach pointed to key segments of testimony, hoping to persuade the judge that there was evidence of Edwards’ intent through statements of his former political aide Andrew Young.

Young, who could have credibility problems with a jury, testified that he had five conversations with Edwards in which they talked about a plan to get money to support Hunter, the former campaign videographer who was pregnant with the candidate’s child.

Harbach also recalled the testimony of Cheri Young, Andrew’s wife, who said she listened in on a call between her husband and Edwards in which the legality of the payment plan was discussed. The Youngs both testified that Edwards had checked with campaign finance lawyers and told them it was legal.

“In the minds of Mr. and Mrs. Young, this was against the law,” Harbach said.

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