In wake of John Edwards mistrial, a new trial is called unlikely

WASHINGTON -- Having failed to convict John Edwards of campaign finance violations, theU.S. Justice Departmentmust now decide whether to retry the former Democratic presidential candidate on the five charges for which the judge declared a mistrial.

Edwards had been charged with six counts of campaign finance law violations. He was acquitted Thursday of one charge by a jury of eight men and four women in U.S. District Court in Greensboro, N.C.

Several legal experts said a retrial seemed unlikely. They also raised questions about the trial’s effect -- or lack thereof -- on campaign finance law.

“We knew this was a strange case, and it resulted in a strange trial with a strange ending,� said Elliot S. Berke, a Washington attorney who represents elected officials on campaign finance issues.

He said the jurors’ inability to reach a decision on five of the six counts “largely reflected society’s confusion about campaign finance law and where the lines are.�

“This was always a difficult case for the government to bring, and I am sure the prosecutors will take a hard look at whether or not they should pursue a retrial,’’ he said.

“Had they obtained a conviction, it could have marked a sea change in campaign finance law -- basically bringing under scrutiny anything of value someone gives someone who happens to be a federal candidate. I think this decision still should give everyone pause, but largely leaves the campaign finance landscape intact.’’

Michael Rich, an Elon University School of Law professor who had attended the trial, said the mistrial “shows that the government ultimately failed to make a clear enough case to the jury of truly criminal wrongdoing.’’

“The ball is now in the [Department of Justice’s] court, and they have to decide if a retrial makes political and economic sense,’’ he said. “A trial like this is expensive, but no doubt the Obama administration wants to avoid appearing like they’re going easy on a Democrat.’’

At issue in the trial was whether Edwards broke the law -- or simply behaved extremely badly. That issue would exist in a retrial as well.

Said Jerry H. Goldfeder, a New York campaign finance lawyer who also teaches election law: “The prosecution may have proven that John Edwards was a scoundrel. It was near impossible for them to prove that he broke the campaign finance law.

“It would be very surprising if the government went back to the well to try him again,� Goldfeder said. “I think this prosecution is over. It failed and it is over.�

Melanie Sloan, a former federal prosecutor who heads the watchdog group Citizens for Responsibility and Ethics in Washington, agreed. She was critical of the prosecution of Edwards, saying that it was “hard to imagine’’ that the Justice Department would retry him.

“But given the choice to bring this case in the first place, anything is possible. You’d think DOJ would recognize there are more pressing issues confronting our nation than whether Roger Clemens took steroids and John Edwards hid his mistress, but maybe not,� she said.

“While this case is over for Edwards, federal candidates remain in a quandary with little guidance as to what is and is not a legitimate campaign expense,’’ Sloan added.

“If Edwards could be prosecuted for failing to report third parties’ payments to his mistress,� she said, “there is no telling what else the department will consider a campaign contribution. DOJ should immediately issue guidance on this point and explain if and when candidates can rely on the Federal Election Commission.’’

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