The failure of federal prosecutors May 31 to win guilty verdicts against former Democratic Presidential contender John Edwards on campaign violations illustrates the Justice Department’s ongoing arrogance and incompetence in politically sensitive cases.
The Justice Department’s crusade to imprison Edwards for up to 30 years on highly dubious charges showed poor judgment when the relevant campaign finance law is so murky. And now a federal jury empaneled in North Carolina has agreed by rendering an acquittal on one charge and no decision on the remaining five counts. The mistrial continues an extraordinary series of defeats and controversial results for the DOJ’s Public Integrity Section, an elite unit that is supposed to preserve public trust in government by prevailing against the nation’s most corrupt officials in the most important cases.
As in recent high-profile cases stretching from Alabama to Alaska over the past four years, the unit has again humiliated itself, needlessly hurt defendants and wasted millions of dollars in taxpayer funds. Edwards is at right in a file photo from his term as a North Carolina senator before his current disgrace for cheating on his ailing wife, fathering an illegitimate daughter and trying to hide his affair.
“To pick this kind of case and spend tens of millions of dollars to prosecute a failed presidential candidate just doesn’t make any sense to me,” commented Bush-appointed former Federal Election Commission Chairman Michael Toner. A Republican, he is now a partner at the powerhouse Washington law firm of Wiley Rein. “I’m not a fan of John Edwards or his underlying conduct,” Toner continued, “but I never thought it was a violation of the federal election laws, let alone a criminal violation.” Among others denouncing the Edwards prosecution as ill-conceived have been campaign finance lawyer Brett Kappel, who said the verdict was no surprise because “it was a difficult legal theory to prove.” Another is Harvard law professor Alan Dershowitz, who published a column, Edwards’ Jury Couldn’t Decide and for Good Reason.
Our Justice Integrity Project similarly has denounced the prosecution from the start as an unwarranted attempt to criminalize Edwards’ reprehensible personal conduct. Our view is that authorities should take on tough cases, but use their powers with a clear view of a prosecution’s overall cost-benefit. Those circumstances should include the likelihood of success, seriousness of the offense and the expected benefits for the public, including deterrence of future crime. The DOJ failed miserably by most of those criteria in the Edwards case, as predicted.
Prosecutors used an innovative legal theory to describe as illegal money that helped Edwards hide his illicit romantic affair from his family and the public. But a new theory not used against other candidates made success difficult to predict. These issues could have been explored in a lower-key civil action or even a criminal prosecution with lesser charges. But authorities, including holdover Bush prosecutor George Holding, tried to throw the book at Edwards in a mega-trial in hopes that public revulsion against him would translate into convictions.
In this, the Justice Department followed a pattern under both Republicans and Obama Attorney General Eric Holder, above left. DOJ setbacks have included the corruption prosecutions of Republican U.S. Sen Ted Stevens of Alaska in 2008, former New Jersey mayoral candidate Louis Manzo in 2009, and Alabama gambling kingpin Milton McGregor and four former state legislators this year. Most disgraceful of all is the Bush-initiated prosecution of former Alabama Gov. Don Siegelman, which the government “won” in a 2006 trial and in appeals conting curently before the Supreme Court — despite compelling evidence that the Bush administration framed the state’s most popular Democrat and Obama officials have made a political calculation to let him rot in prison for the rest of his life rather than investigate the DOJ’s many lapses and antagonize powerful interests.
All of those prosecutions were originally brought by such Bush-appointed prosecutors as Chris Christie (now New Jersey’s governor). They were among the 85 U.S. attorneys who were allowed for suspicious reasons to remain in their jobs in 2006 during the unprecedented Rove-linked political purge of nine federal prosecutors. This was to create cadres of what one DOJ leader called “loyal Bushies” in the 93 regional U.S. attorneys offices, who were encouraged to use their vast discretion against political opponents, sometimes in highly dubious cases.
Charges have been dismissed in most of these cases, with some convictions taintedby oppressive tactics. The government failed to secure a single conviction against McGregor and his major co-defendants in two trials, for example, despite scores of charges and vast expense to taxpayers.
Although the Bush and Obama DOJ have obviously enjoyed successes also in public corruption cases the government’s presumed fairness, power and expertise are supposed to ensure that even DOJ’s courtroom losses do not become nationally notorious. The Washington Post summarized the Edwards case as follows:
In four weeks of testimony, Edwards was portrayed by a parade of witnesses as a scheming and manipulative politician, but at least some jurors remained unconvinced that he orchestrated an elaborate conspiracy to secretly funnel nearly $1 million that should have been declared as campaign contributions to his mistress and the aides who helped him hide an extramarital affair during the 2008 presidential campaign.
When the decision was read by the clerk, Edwards’s face betrayed no emotion, but he slumped back in his chair. Moments later, he turned to his parents, Wallace and Bobbie Edwards, and they smiled at him broadly. When the jury left the courtroom, Edwards rose and leaned across the bar in a long embrace with his daughter, Cate Edwards, who has been in the courtroom almost every day through a grueling trial.
Prosecutors must decide whether to retry the case. The trial judge, Catherine Eagles, said in court Thursday that she had reviewed issues related to the trial of former Illinois Gov. Rod Blagojevich, who was convicted in a corruption case in 2010 after his first trial ended with a hung jury.
But legal and campaign law experts were lining up Thursday to predict that Edwards would not be retried and to criticize the U.S. Justice Department for bringing the charges in the first place.
Edwards, a 58-year-old Democrat who served one term in the U.S. Senate, has become such a pariah in North Carolina that many of his closest friends and supporters have cut ties with him. During many days of the trial, his 30-year-old daughter, Cate, was the sum total of his support network inside the court, though his parents also spent considerable time there in the final days of testimony.
The Justice Department filed charges last year against Edwards in a case jointly investigated by Washington officials and Eastern District U.S. Attorney George Holding, right, a former aide to the late ultra-conservative Republican Sen. Jesse Helms. President Bush named Holding to the powerful prosecution post in 2006 after he helped his predecessor secure the convictions of a number of high-profile of officials, primarily Democrats, including former N.C. Agriculture Commissioner Meg Scott Phipps, former House Speaker Jim Black and former U.S. Rep. Frank Ballance. The highest-rankiing was former Democratic Gov. Mike Easley, convicted on state charges in a joint state-federal investigation that involved Holding.
The Obama administration continued Holding in office until he secured the Edwards indictment last year. Holding has since embarked on a congressional campaign as a Republican for the state’s 13th district. He won the GOP primary last month based in significant part on his track record of imprisoning officials. He denies political motivations in his cases. But in a lengthy profile last year, the specialized news site Main Justice examined suspicions about his motivations and the Obama administration’s goals in retaining him. Similarly, Harpers legal columnist Scott Horton wrote:
As a U.S. attorney, Holding championed the idea of charging Edwards with election-finance crimes. Election-law experts around the country view Holding’s theories as borderline crackpot, but the Holder Justice Department, fearing that it would be accused of partisanship, allowed Holding to stay on and gave him free rein to pursue the case, even as his other objectives — tilting the political balance in the state toward the G.O.P. and winning a seat in Congress for himself — were open secrets.
No doubt [the Edwards] affair, undertaken while his heroic wife was dying of cancer, makes him the definition of a cad, but while he may be morally unsuited for high office, that is not the question in this trial. If Edwards can be imprisoned for using campaign funds to try to cover up his flaws, then few politicians could fairly escape prison. The Justice Department appears instead to be engaged in statutory vandalism, and it is awarding itself exceptional power to intrude into the electoral process — a power that is ripe for abuse, as the Edwards case demonstrates.
Regarding the Obama administration, we have seen a pattern in a number of regions whereby the Obama administration sought to protect its reputation by enabling Republican prosecutors from the “loyal Bushie” era to keep their jobs so long as they focused on a few already unpopular scapegoats, such as Edwards, Siegelman or former Illinois Gov. Rod Blagojevich.
Although this kind of selective prosecution serves the short-term interests of both the retained prosecutors and Obama administration, it is a political perversion of the justice system, much like when Bush Justice Department illegally hid evidence to win a corruption conviction against fellow Republican Ted Stevens. That Stevens conviction carried short-term career enhancement for those involved. But it proved devastating for the Department’s overall reputation when the trial judge protested the government law-breaking.
With more than 100,000 personnel and many criminal and civil cases, the Justice Department has many dedicated employees, worthy cases and successes, of course. Among its initiatives this week are its new probe of efforts by states to purge voters in dubious circumstances just before elections. Our project has reported serious abuses by politically motivated state election officials Among the most outrageous allegations were those by author Greg Palast documenting how Florida in 2000 skewed results by unfairly deleting up to 91,000 eligible voters just before the Presidential elections. Out of timidity, federal authorities and newspapers have overlooked these major scandals for the most part. So, the Obama DOJ deserves praise for this week’s initiative, Department Of Justice Tells Florida To Stop Purging Voter Rolls, even though the order is in Democrats’ self-interest.
But then we have such other situations as the flawed Edwards prosecution. Justice Department officials never tire of quoting the inspirational sayings of New Deal-era Attorney General Robert Jackson. He was famous for telling his staff that when the Justice Department pursues a just cause it never loses, even when the process renders a courtroom “defeat.” That’s an inspiring concept from the future Supreme Court Justice and Nuremberg war crimes chief prosecutor.
But why not implement Jackson’s rhetoric really, truly and consistently?
Re-posted with the author’s permission.
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