In the trial of former Sen. John Edwards (D-N.C.), the jury succeeded in reaching a unanimous opinion on only one point -- that a $200,000 check written as Edwards's campaign was disintegrating, and cashed only after it ended, was not an illegal campaign contribution.
That makes sense. Criminal trials are supposed to be about the actions and intentions of the accused, not those of third parties. Bunny Mellon may have intended any number of things when she wrote that check. But the fact that it was cashed only after Edwards had failed in his bid for the presidency is compelling evidence that the check was not seen at least by Edwards as furthering his then-doomed quest for the White House.
Several people, including my colleague Allison Hayward, have noted that the judge's jury instructions in this case posed grave difficulties. That’s because U.S. District Judge Catherine Eagles asked the jury to consider whether contributions were given "for the purpose" of influencing an election. That standard, which has been declared unconstitutional in other contexts, is unworkable and, most troublingly, imposes liability on Edwards for the intentions of Mellon, his benefactor.
It’s always perilous to guess at the thinking of a jury. But Edwards was acquitted on only this one count, and therein lies a hint of clarity in the general confusion surrounding this trial. Perhaps the jury understood that it was Edwards's thoughts that count here. Perhaps if they had been fully instructed on that point, they’d have reached a verdict on the remaining, less clear-cut counts. Perhaps not.
What’s clear is that the government has just spent a large amount of money on a prosecution so novel that a federal judge likely committed reversible error, a jury deadlocked on the majority of counts, and federal election law experts are still scratching their heads over the prosecution's theory. This is no way to make law.
The government has been given an opportunity to reconsider the entire enterprise. Campaign finance prosecutions are complex, controversial and constitutionally fraught endeavors. If there is nothing else with which to charge the former senator, perhaps he should be allowed to finally slink off the public stage. We don’t yet know if Edwards will be retried on the remaining five counts filed against him, but the government has hinted that’s highly unlikely.
Allen Dickerson is Legal Director at the Center for Competitive Politics, a nonprofit organization that advocates for Americans' First Amendment rights of speech, assembly, and petition. He was previously a litigation associate with the New York office of a leading commercial law firm. Allen is a graduate of Yale College and New York University School of Law.