As legal experts debate the strength of the campaign finance case against former North Carolina Sen. John Edwards, details are emerging of how the indictment came about.
Lawyers for Edwards had pressed Justice Department officials for weeks to end the two-year investigation of the once-prominent Democrat with no criminal charges, a decision that would have carried profound political fallout. It would have been a hard sell even in an ordinary prosecution, let alone one completely interwined with politics.
"The optics drive that and you can't expect uncommon courage from the Department of Justice in the face of that," says Stanley Brand, a prominent Democratic campaign lawyer in Washington.
And tanking an indictment of Edwards would certainly have been controversial, Brand says.
"The way the bureaucracy works, the Department of Justice generally defers to local prosecutors," he says. "And when they don't, they are accused of interference and obstruction and all kinds of heinous crimes themselves."
That includes local prosecutors such as the former U.S. Attorney in North Carolina, George Holding. He had been a holdover from the Bush administration with ties to the late Republican Sen. Jesse Helms.
Holding's prosecutors spent years investigating questionable payments from Edwards' donors that went to support the candidate's mistress and their baby. Holding resigned late last week, as expected, with the conclusion of the Edwards investigation. The government team in North Carolina worked hand-in-hand with veteran public corruption prosecutors in Washington, who also pushed to move ahead with an indictment.
Federal Law Uncertainty
The political equation got even more complicated earlier this year after Edwards hired Greg Craig, a man who had served as President Obama's first White House counsel. Craig paraded a group of campaign finance experts to the Justice Department to try to persuade the government not to bring criminal charges.
Peter Zeidenberg used to prosecutor public corruption cases before joining the law firm DLA Piper.
"The fact that it didn't work apparently in this case doesn't mean it certainly wasn't worth every effort," Zeidenberg says. "You want to stave off an indictment at all costs if you possibly can."
Last-minute plea talks would have given Edwards a way to avoid losing his license to practice law. But the deal would not have ruled out some prison time. So Edwards rolled the dice.
Rick Hasen teaches election law at the University of California, Irvine. He says the Justice Department is taking a risk too.
"When the government takes on a big fish, and does so in a high-profile way, it can serve an important public purpose in saying that no person is above the law," Hasen says. "But when the government takes on those cases and loses, it can lead to a situation where the government is embarrassed."
Richard Pildes teaches election law at New York University. He's one of the scholars raising doubts about the government's case against John Edwards.
"There's uncertainty about whether this kind of money being spent to conceal an affair is a contribution at all within the meaning of the federal election laws," Pildes says.
To win the case, prosecutors would need to prove Edwards knew the money was flowing and that it was a donation to prop up his run for the presidency — not a personal gift from friends who wanted to help him keep the affair from his family. That might be unseemly, but it's not illegal.
The six-count felony indictment quotes a note from one donor in April 2007, telling an Edwards aide that "from now on, all [items] that are necessary and important for his campaign -– please send to me. ... It is a way to help our friend without government restrictions."
And prosecutors intend to produce emails between Edwards and a public relations consultant in which he allegedly said he was aware of some of the payments to his mistress but that for "legal and practical reasons" they shouldn't be mentioned in any public statements.
Still, Zeidenberg, the former public corruption prosecutor, says he sees some problems with the Justice Department case.
One of the Edwards donors, trial lawyer Fred Baron, is dead. The second, heiress Rachel "Bunny" Mellon, is 100 years old.
"And the third person has significant credibility issues ... who's written a book and made money off of it," Zeidenberg says.
That third person is Andrew Young. Once a close aide to Edwards, Young for a time said he was the father of the former senator's baby. Young has given different accounts about the money that went to support the child, and whether the cash was intended as a donation or a gift.
That issue strikes at the heart of the government's case.