If Edwards does call her, maybe it will be limited to testimony about how Andrew Young stole her sex tape, slut list and other items in her hatbox. Yong has maintained they were in the trash. It would be good impeachment testimony of Young if she somehow were able to come across as credible to the jury. Lowell said at one point early last week he might recall Young to ask about whether he stole the sex tape.

Second, she may not advance the Government's case. She didn't receive money from anyone but Andrew Young. Bunny Mellon never sent her money and the funds from Fred Baron went through Andrew and Cheri Young. In other words, as to the criminal charges, she may not have relevant first-hand knowledge.

The media is making a big to-do out of Bunny Mellon's lawyer testimony that John Edwards told him Bunny's funds were for his benefit. That doesn't make the Government's case. The Government has to prove the funds were for his political benefit. The Government is trying to do this by proving the donations fit under the "personal use expense" provision of the campaign contributions law, which requires proof they were for the purpose of influencing the election, meaning they would not have given the money to Edwards if he wasn't running for office. Forger's testimony doesn't get them there.

Forger did not testify as to whether the funds were for Edwards personal benefit or political benefit.

Forger said he told Mellon any additional money had to be a personal gift to Edwards, not a campaign contribution. "And she understood that," he said.

Forger said he later asked Huffman about the purported "furniture checks." The interior decorator told him that Young had requested the money from Mellon, saying "the senator had a special need not related to the campaign," according to Forger.

Also, according to Forger, Edwards' acknowledgement to his own lawyer that the money was for his benefit occurred in 2008, after the alleged crime. He didn't say when Edwards first knew it, and according to Forger:

Forger said he heard from Edwards soon after the Baron phone call. By then, the campaign was over. Edwards said he was not aware of the checks from Mellon and that Andrew Young should pay her back, Forger said.

Team Edwards points out in pleadings that no money from the Edwards campaign was paid to Rielle Hunter or Midline Groove. No money from the Edwards campaign was converted by Mr. Edwards to pay his "personal use" expenses. No federal matching funds (i.e., taxpayer money) received by the Edwards campaign were paid to Hunter or Midline Groove. Both Mr. Baron's estate and Bunny Mellon paid hundreds of thousands of dollars in gift taxes for money received by Ms. Hunter and the Youngs.

Two former Chairmen of the Federal Election Commission, R. Lenhard and S. Thomas, submitted affidavits before trial (here and here) that even if Edwards directly approached Ms. Mellon and Mr. Baron seeking financial assistance to Hunter, "these payments would not be considered to be either campaign contributions or campaign expenditures within the meaning of the campaign finance laws." Team Edwards wrote in a motion to dismiss:

The former FEC chairmen further stated that, in their opinion, "the Federal Election Commission, if asked, would conclude that these payments did not constitute a violation of the law, even as a civil matter," and that the facts, even viewed in the light most favorable to the theories advanced in the Indictment, "do not make out a knowing and willful violation of the campaign finance laws warranting criminal prosecution," primarily because no court opinion, agency enforcement action, or FEC advisory opinion had ever considered -- let alone adopted -- this unprecedented interpretation of the term "contribution."

Even if the court goes along with the Government's unprecedented interpretation of campaign contributions, in order to convict Edwards, it must prove he acted "willfully." There is no dispute as to what "willfully" means. Even in the Government's proposed jury instructions, it writes:

"Willfully" means to act with knowledge that one's course of conduct is unlawful and with the intent to do something the law forbids, in other words, with the bad purpose to disobey or to disregard the law.

Team Edwards definition is:

“Willfully” means that the act was done voluntarily and purposely with the specific intent to violate a known legal duty, that is, with the intent to violate the law or to do something that the law forbids.

It argues the jury must find:

Mr. Edwards knew that his actions in receiving these monies were a violation of the law and deliberately chose to violate the law notwithstanding that knowledge.

Mr. Edwards’ good faith belief concerning the legality of his conduct is a complete defense to these charges since good-faith on the part of a defendant is inconsistent with willfulness and willfulness is an essential part of the charges.

The Government acknowledges it must prove he acted willfully in receiving the donations. Given that the law had never been applied by a court or agency the way the Government is now seeking it to be used against Edwards, how could Edwards have known the donations were "campaign contributions?" Edwards wants the jury instructed:

If the law is so uncertain or highly debatable that reasonable persons could disagree as to whether those payment would be regulated as a campaign contribution, then Mr. Edwards could not knowingly and willfully violate the law by accepting or failing to report such a payment as a campaign contribution and you must find him "Not Guilty.

The Government's theory, as expressed just before trial began in its trial brief, is:

At trial, the Government will prove that John Edwards knowingly and willfully violated these bedrock laws and that he specifically did so because public revelation of his extramarital affair and the resultant pregnancy would destroy his presidential campaign. (my emphasis)

At trial, the Government will prove that Mellon’s and Baron’s payments constitute contributions in excess of the legal limit and that Edwards’ knowing and willful acceptance and receipt of them was a crime. The evidence will show that Mellon and Baron each provided funds to Edwards for the purpose of influencing the 2008 election – i.e., helping Edwards be elected President of the United States – and that Edwards knew it. (my emphasis)

John Edwards' position is:

[T]he monies were not direct contributions to the John Edwards for President Campaign, the monies were not coordinated expenditures made for a campaign-related purpose, and the monies do not fall within the personal use expense regulation.

The evidence will demonstrate the expenses involved were not to satisfy debts that Mr. Edwards was legally obligated to pay irrespective of the campaign; that Mr. Baron and Ms. Mellon would have given the money regardless of the campaign; and that Mr. Baron and Ms. Mellon made the payments knowing that the monies would not be used for campaign purposes.

The evidence will reveal that the government's case requires the jury to accept a novel interpretation of the FECA, one that has never been the basis of criminal or even civil liability in the statute's history.

....Furthermore, Mr. Edwards contends that no matter what set of facts the government seeks to prove, he could not have viewed his actions as unlawful under FECA and thus he did not have the required specific intent to knowingly violate the law.

The biggest points of disagreement seem to be:

1. The meaning of "influencing the election"

Both sides agree the gifts and expenses must be for the purpose of influencing the election in order for them to constitute campaign contributions.

Team Edwards argues this means that the spending must be "unambiguously related" to the candidate’s campaign. It wants the Court to instruct the jury:

That is, it must be susceptible of no reasonable interpretation other than to elect a candidate in a federal election. Thus, in order to convince you beyond a reasonable doubt that the money alleged to have been spent by an individual in this matter was a “contribution” under this theory, the government must convince each of you that there was no other reason for this money to be spent other than to elect Mr. Edwards President of the United States.

The Government's wants the jury instructed:

In determining whether a gift, purchase, payment, or deposit of anything of value was made for the purpose of influencing any election for federal office, you may consider evidence of the donor's statements or actions as well as evidence of the surrounding circumstances.

2. The definition of "personal use" in the campaign finance law.

Team Edwards wants the jury instructed:

[A]n individual who pays for certain expenses of a candidate that are termed “personal use” expenses and who would not have paid those expenses irrespective of the campaign, makes a contribution to the candidate. A “personal use” expense is an expense of a candidate that would exist irrespective of the election.

Such an expense must be personal to the candidate or must be an expense that the candidate is legally obligated to pay without regard to the election. In other words, it has to be an expense that the candidate would have to pay if he was not running for office.

The personal use expense regulation only applies to the candidate’s personal use expenses. It does not apply to the payment of personal expenses of other people unrelated to the candidate. If the expense is one that Mr. Edwards would not have been obligated to pay or would not have paid if he had not been running for President, then it is not a personal use expense and you cannot convict him on this theory.

In other words, if Mr. Baron or Mrs. Mellon would have paid these expenses even if Mr. Edwards had not been running for President, then the payment of these expenses is not a “contribution” and you cannot convict him on this theory

Team Edwards maintains:

Ms. Mellon and Mr. Baron covered Ms. Hunter's personal expenses (and, much more so, the Youngs' personal expenses, such as construction of their dream home) — not Mr. Edwards' expenses. As such, these cannot constitute "personal use" expenses of Mr. Edwards that would have existed irrespective of the campaign, and the Indictment fails to allege otherwise.

Moreover, because "personal use" expenses are those expenses that a candidate is legally obligated to pay regardless of the campaign, and because Mr. Edwards was not legally obligated to support Ms. Hunter in any way prior to the birth of their child in February of 2008 (after he withdrew from the presidential race), the
monies could not fall within the personal use rule.

The Government on the other hand, describes "personal use" contributions this way:

If a particular expense would ordinarily be a personal expense, payment of that expense by any person other than the candidate is a contribution to the candidate, unless the donor would have made the payment anyway, regardless of whether the candidate was running for office.

....If a gift a candidate receives is of a personal nature that had been customarily received by the candidate prior to the beginning of the election cycle, then it is not a contribution. An election cycle begins on the first day following the date of the previous general election for the office or seat which the candidate seeks. In this case, the election cycle in question began on November 3, 2004.

3. Whether John Edwards Instructed Andrew Young to Commit a Crime

The Government argues because Edwards directed Andrew Young to coordinate the payments, Young acted as his agent and this somehow establishes Edwards' willful intent. It argues in jury instructions:

As a general rule, whatever any person is legally capable of doing himself, he can do through another acting as his agent. Whoever willfully causes an act to be done which, if directly performed by him, would be a crime, is punishable as if he had committed the crime directly himself.

In other words, if the defendant willfully caused the acts or conduct of another -- if, for example, the defendant willfully ordered, directed, commanded, induced, authorized, or consented to the other person's conduct -- then the law holds the defendant responsible
for that conduct just the same as if it had been personally done by him.

The Government glosses over the requirement that Edwards has to know what he was asking Young to do was illegal. Young and his wife have testified Edwards thought it was legal, and Young wrote in his book that he thought the donations were not campaign contributions, were legal, and not subject to reporting.

According to Team Edwards:

[T]he government's mere allegation that the funds were coordinated by Mr. Edwards through Andrew Young is insufficient to transform personal payments into campaign-related contributions or expenditures.

4. The date Edwards ceased being a candidate:

The Government maintains a Candidate for federal office includes an individual who seeks nomination for election, or election, to the office of President or Vice President of the United States.

The defense argues Edwards ceased being a candidate on January 30, 2008 when he suspended his campaign for President:

A campaign contribution is not accepted until it is deposited and, for the purposes of criminal liability, acceptance marks the crime. Thus, any monies deposited after the campaign ended on January 30, 2008 may not form the basis of criminal liability.

The Government believes that because Fred Baron was urging Obama to choose Edwards as a vice-presidential candidate or Attorney General, the donations after Edwards left the presidential race are still donations for the purpose of his getting elected.

But where is the proof Edwards endorsed Baron's actions or even shared Baron's goal? He wants the jury instructed:

In 2008, Mr. Edwards expressed an interest in either becoming Vice President or Attorney General and that Fred Baron may have been motivated by this prospect. I am instructing you that any money spent to promote that interest is not a contribution under the Federal Election Campaign Act and cannot be the basis for a finding of guilt in this case.

Bunny Mellon, through Oak Farms, gave $6.3 million to Edwards' PACs in 2006 and 2007. He declared his candidacy for President on December 29, 2006. Edwards met Hunter in February, 2006. She worked for the campaign in mid-summer to fall 2006. Edwards dropped out in January, 2008.