Guest Host: Tom Gjelten

The criminal trial against former presidential candidate and senator, John Edwards, is nearing an end. Today in a Greensboro, North Carolina, courtroom, the prosecution and defense are presenting closing arguments. Edwards has been charged with six felony counts for violated campaign finance rules concerning nearly $1 million dollars from two wealthy supporters, spent to hide his pregnant mistress during the 2008 election. The case is full of melodrama. It is also one of the first to test the uncertainty of campaign finance rules. A panel of legal and campaign experts join guest host Tom Gjelten to discuss what the verdict could mean for money and politics in an election year.

Guests

  • Jan Baran head of the election law group at Wiley Rein LLP; former general counsel to the Republican National Committee; author, "The Election Law Primer for Corporations."
  • Steven Friedland professor of law, Elon University School of Law; former Assistant U.S. Attorney for the District of Columbia.
  • Meredith McGehee policy director at the Campaign Legal Center and principal of McGehee Strategies.
  • Ruth Marcus columnist and editorial writer, The Washington Post.

Transcript

  • 10:06:56

    MR. TOM GJELTENThanks for joining us. I'm Tom Gjelten of NPR, sitting in for Diane Rehm. She's on a station visit. The jury is hearing closing arguments today in the criminal case against former presidential candidate and Sen. John Edwards. The prosecution says Edwards broke campaign finance law by using about $1 million from two wealthy donors to keep his pregnant mistress a secret.

  • 10:07:20

    MR. TOM GJELTENWe're going to discuss what the case could mean for the way campaigns are financed. Joining me in the studio are Ruth Marcus, a columnist at The Washington Post, also Jan Baran. He has the -- he heads the election law group at the Wiley Rein firm. And Meredith McGehee, she's the policy director at the campaign legal center here in Washington. Good morning, everyone.

  • 10:07:43

    MS. RUTH MARCUSGood morning.

  • 10:07:43

    MR. JAN BARANGood morning.

  • 10:07:43

    MS. MEREDITH MCGEHEEGood morning.

  • 10:07:44

    GJELTENAnd we'll include you, our listeners, in this conversation as well. Call us with your questions and comments at 1-800-433-8850. Email us, drshow@wamu.org. Send us a tweet or join us on Facebook. There's lots to cover with this case, but, first, let's go to Steven Friedland, a professor of law at Elon University School of Law and a former assistant U.S. attorney for the District of Columbia. He joins us from his office just down the street from the federal courthouse in Greensboro, and he's been following this case closely. Good morning, Steven.

  • 10:08:22

    PROF. STEVEN FRIEDLANDGood morning.

  • 10:08:23

    GJELTENSo, I guess, big news yesterday, John Edwards' daughter, Cate, was not called to testify, nor Edwards himself, nor his mistress, Rielle Hunter. What's your sense of the defense strategy at this moment? And what do you expect from their closing argument today?

  • 10:08:46

    FRIEDLANDWell, this was a tale of two cases. All the tawdry details were brought forth in the prosecution's case, and the defense tried to take this and shift it completely in another direction. They basically are trying to get the jury to see that these personal gifts were not campaign contributions, and they were made for personal matters. So not calling Cate Edwards and not calling John Edwards takes the tawdriness away, takes the personal drama away and focuses on the question of law.

  • 10:09:25

    GJELTENAnd has the defense presented? You were over at the courtroom already today before you came on the show, weren't you? What's -- what's going on there this morning?

  • 10:09:32

    FRIEDLANDThe prosecution is giving its closing argument as we speak. And they basically started out by laying it out to the jury as to what they're claiming, and they basically said that, if John Edwards' affair became public, it would ruin his chances to become president and that covering up the affair and the pregnancy promoted his campaign, and, therefore, all these contributions, these gifts were campaign gifts and not personal gifts.

  • 10:10:00

    GJELTENSo, Steven, what was the prosecution's purpose in sort of highlighting the most tawdry aspects of this affair, given that what's at issue here is a fairly narrow legal issue about what's legal under campaign finance law?

  • 10:10:15

    FRIEDLANDIt is a legal issue, but criminal trials are charged with emotion. And it's pretty clear that John Edwards acted immorally. He lied. He lied to lots of people. He hurt his family very badly, and he hurt lots of people around the nation. That factors into whether he is the kind of person who harbored criminal intent. That's the other major issue here. Did he have criminal intent in his actions?

  • 10:10:40

    GJELTENSo, in other words, the prosecution's view would be that his character, his moral character is actually relevant.

  • 10:10:47

    FRIEDLANDYeah. Juries really like smoking guns. In this case, the prosecution did not have one. So it has to build its case inferentially. They do not have John Edwards, for example, saying, I knew that these were campaign contributions, and they were in excess of the amount allowed by law. So all these other inferences are helping them build the idea that he's not only immoral, he's a criminal.

  • 10:11:11

    GJELTENNow, Steven, the judge, Catherine Eagle, (sic) will give instructions to the jury at the conclusion of these closing arguments. How important will those instructions be in guiding the jury's deliberation?

  • 10:11:26

    FRIEDLANDThe instructions on the law are going to be critical. The real issue for the defense, and for the prosecution as well, is, what does the term contribution mean? Under the law, it says that it's anything for the purpose of influencing any election for federal office. This whole case may come down to the word the. What's the purpose of (word?) ? Can it be multiple purposes, which is what the prosecution would like to see, or is it sole purpose, what the defense would like to see?

  • 10:11:56

    FRIEDLANDAnd the judge has indicated she's probably going to come up somewhere in the middle saying there can be more than one purposes -- more than one purpose, but it cannot be simply a side purpose. So the Clinton case, the impeachment, many people think, came down to the word is. This case seems to come down to the word the.

  • 10:12:13

    GJELTENThat's ironic, isn't it? But what about the definition of contribution more broadly? I mean, the Federal Election Commission -- correct me if I'm wrong -- seemed to conclude that these donations were not actually contributions. They were more in the category of gifts, correct? Is there an issue here about how you define contributions?

  • 10:12:40

    FRIEDLANDYes, and that's a critical issue. Judges generally decide the law. So the judge basically stopped the defense from presenting all of this evidence to the jury. However, the defense was able to get out quite a bit of this through their chief finance officer who, even after the indictment came out, was not asked to amend the submissions to the Federal Election Commission, indicating that the commission did not think these were contributions. That's something the defense wants to push. If Edwards is convicted, this will likely go up on appeal and be decided as a matter of law by the 4th Circuit appellate judges.

  • 10:13:19

    GJELTENWell, as a law professor, Steven Friedland, what's your sense of where the scorecard is, as it were, stands right now? You already mentioned that Judge Eagles has sort of chartered out a middle course between the defense and prosecution position here. Which side do you think is stronger at this moment, just as the case is about to go to jury?

  • 10:13:44

    FRIEDLANDI really think it could either way here. It's how each side packages the case in its closing argument. That will matter a lot. The essential facts are really not in dispute. Both sides agree there was money given, and there was help to cover up the affair and the pregnancy. It's how it's positioned and whether the jury gets lost in some of the tawdry details or they focus on what a campaign contribution is. This jury has been paying attention, and it looks like they're going to take these issues very seriously.

  • 10:14:16

    GJELTENAnd do you expect this to wrap up today so that it'll actually -- jury deliberations will actually begin tomorrow, or could this go on for a bit?

  • 10:14:24

    FRIEDLANDNo. I think just judge wants to move things along. The closing arguments should end today and the case be given to the jury. And then we'll see what happens. They'll probably start deliberating, and they'll consider it carefully, all the evidence. There's lots of records. There's lots of exhibits. So it could take them a while.

  • 10:14:45

    GJELTENWell, Steven, you have been following this case closely, and we really appreciate -- given how important what's going on in the courtroom today is, we really appreciate you taking the time to run off and chat with us. Can you say why you, as a law professor, have been following this case so closely? You've been there almost every day, right?

  • 10:15:05

    FRIEDLANDI have, and, since I teach evidence in criminal law, I thought this would be really useful for the students. There've been a lot of interesting evidentiary issues involving hearsay, people talking to each other all over. So the judge has had to make lots of rulings. And I've been fascinated, having been a trial lawyer, with how the lawyers are presenting the cases as well.

  • 10:15:25

    GJELTENAnd are you discussing this case in class -- classes?

  • 10:15:28

    FRIEDLANDClasses just ended, but I plan on doing it when we start up again, yes.

  • 10:15:32

    GJELTENAnd to what extent are you using this case and the case of you following the arguments here, to what extent are you interested in the larger issues about campaign finance law here that goes beyond -- that go beyond the Edwards situation?

  • 10:15:49

    FRIEDLANDWell, I think this is a very important case in terms of the influence and effect of money. The Citizens United case, of course, has changed the landscape lately. And the irony is perhaps this would not have happened if it was five years or seven years later after Citizens United came down and there were different ways that the money could be channeled. But that's highly influential and could make a difference in the outcome of campaigns.

  • 10:16:15

    FRIEDLANDThe other interesting point of inflection here, the inflection point of this case, is how John Edwards felt he was invincible. And so I think it's a good lesson to people of -- for those who have power or are getting power that you've got to watch out. Humility is really important. Invincibility can get you in lots of trouble.

  • 10:16:36

    GJELTENWell, Steven, thank you so much for joining for us. I'm sure you're anxious to run back to the courtroom.

  • 10:16:40

    FRIEDLANDThank you very much. Appreciate it.

  • 10:16:42

    GJELTENYeah. Steven Friedland is a professor of law at Elon University School of Law and a former assistant U.S. attorney for the District of Columbia. He joined us from his office in Greensboro, N.C. Jan Baran, what do you make of the point that Steven just made at the end there that what's at stake here is larger than simply John Edwards' personal conduct?

  • 10:17:07

    BARANWell, I think there is an issue relating to campaign finance regulation that is at stake here, which is what point does substantial money that is spent on behalf of a candidate in which the candidate allegedly is personally involved becomes a contribution as opposed to a personal gift? And that is what the argument is going to be divided over, and the defense is saying, this is a personal gift. The prosecution says, this is a campaign contribution.

  • 10:17:38

    BARANNow, we haven't had an instance quite like this, but for many years, really decades, the Federal Election Commission has addressed the question of, what happens when anybody gives money to a candidate, while that person is a candidate, for personal use? And this comes up actually in the context mostly of parents of a candidate or family members who have resources, and they say, well, you know, we want to give you a couple hundred thousand dollars.

  • 10:18:06

    BARANAnd the FEC, as a regulation, it says, well, if there's a history of gift giving, we'll treat that as a personal gift. If there's no history of personal gift giving, we're going to treat that as a campaign contribution. In terms of what the professor said regarding the evidence about the FEC review, you know, it's unclear whether the FEC actually analyzed these details of this case. I don't think they ever investigated, and they probably did not have an in-depth analysis of the Edwards matter.

  • 10:18:39

    GJELTENJan Baran is head of the election law group at Wiley Rein here in Washington. We're talking about the John Edwards case. Stay with us. We'll be right back.

  • 10:20:04

    GJELTENWelcome back. I'm Tom Gjelten, sitting in today for Diane Rehm. And today are the closing arguments in the trial of former Sen. John Edwards in Greensboro, N.C. We're talking about that case, we're talking about the arguments on each side, and we're talking about the broader issues around campaign finance law that this case may raise. You can join us. Call 1-800-433-8850. Send us an email at drshow@wamu.org. We'll be going to your calls and comments a bit later in the hour.

  • 10:20:38

    GJELTENHere in studio with me this morning is Jan Baran. He's head of the election law group at Wiley Rein, a law firm here in Washington, also a former general counsel to the Republican National Committee, and he's author of "The Election Law Primer for Corporations." Also, Ruth Marcus, a columnist and editorial writer for The Washington Post, and Meredith McGehee, policy director at the Campaign Legal Center and principal of McGehee Strategies.

  • 10:21:04

    GJELTENRuth, you heard what Steven Friedland, the Elon University law professor, said about this case in Greensboro. He's following it because he thinks it raises really important issues. Jan Baran, just before the break, was making the same argument. What's your sense of what's at stake in this case?

  • 10:21:24

    MARCUSWell, I'm not sure in the sort of broader universe of great legal issues that there's a huge amount at stake in this case. But I do think that the case matters for what it says about where we are in the campaign finance landscape. The way I look at it, if I were one of the professor's law students and he asked an exam question about whether you could turn -- whether you could look at these facts and argue that there's a violation of campaign finance laws, sure, I could look at those facts and make the case that these were contributions and they violated the campaign finance laws.

  • 10:22:00

    MARCUSBut we talk a lot about prosecutorial discretion, and I think this is a case, as I wrote the other day, of prosecutorial indiscretion. Just because you can fit something into the fact pattern of a violation doesn't mean it rises to the level of a criminal case, or that it should be brought. And what's the point punishing John Edwards? He's toast. Everybody understands that he's pond scum and, you know, stipulates to that.

  • 10:22:28

    MARCUSDeterring other candidates from taking money to hide their mistresses, I guess we know enough about politicians to know that this is capable of repetition. But seems to me there's already a deterring effect there. So what's the point of going after this, and can you really get to the legal threshold of showing that he knowingly and willfully violated the campaign finance laws? I kind of doubt it.

  • 10:22:51

    GJELTENYeah, and I should point out, Ruth Marcus did have a really well-argued column on this in The Washington Post this week. Meredith McGehee, what do you see here as being at stake? Do you agree with Ruth that this maybe is not the best case to highlight these very important issues of campaign finance, or does this case serve that purpose?

  • 10:23:14

    MCGEHEEActually, I don't agree with Ruth. Though, as always, I much enjoy her articles and her columns.

  • 10:23:19

    MARCUSAnd it's much more fun if we disagree.

  • 10:23:21

    MCGEHEEYes. Well, look, I think if the prosecution hadn't pursued this case, the message would be clearly sent that having a sugar daddy come in to help you sweep your dirt under the rug and the campaign finance system was acceptable behavior. There's always a need to send the message about what is permitted and what is not. At the same time, I understand that taking this case into a criminal court is a very difficult case.

  • 10:23:46

    MCGEHEEI mean, while we all know by a reasonable person standard, you know, kind of what I would describe as the but for standard, would this money have been given but for his political aspirations? I think the answer is very clearly, it -- no way. This was given because they wanted him to rise in the political arena. At the same time, when you get in a court of law, the evidentiary standards are much higher.

  • 10:24:10

    MCGEHEEIt's a very difficult case to prove. So, in some ways, it's a lose-lose situation. If you don't bring the case, you're sending the wrong message. If you do, you have a very tough case in court. But it was the right thing to do, and the message does need to be sent.

  • 10:24:25

    GJELTENJan Baran, why is campaign finance law so uncertain that there is this disagreement or confusion about whether laws were broken in this case? We've had a lot of campaign finance legislation. We've had court cases, and yet it seems there's still a lot of uncertainty about what's legal or what's not legal. You've written a primer on this. Why is this so confusing?

  • 10:24:49

    BARANWell, I personally don't think that this particular issue is confusing in the sense that the question as the professor said at the beginning of the show is, you know, was this a contribution? A contribution is defined in the law as anything of value that is given or spent for the purpose of influencing an election. So the question is simply, was this election campaign-related? And we may dismiss the question under these facts and say, oh, it's just about sex. You know, it's about a mistress and their baby.

  • 10:25:24

    BARANBut what if these two wealthy campaign supporters, who never provided any money to this candidate prior to his candidacy, decided to, well, let's -- we'll just pay all the tuitions for your children while you're a candidate. And, of course, tuitions can be $50,000 a year. Some of us parents know all too well, unfortunately. Or we'll pay for your mortgage, or we'll pay these other expenses. And we do so because you're a candidate for president.

  • 10:25:54

    BARANIn fact, you were a nominee for vice president in 2004, and maybe you'll be a nominee again this time and -- or if that doesn't work out, maybe you'll be appointed attorney general. So I think the issue is not all that vague. It's just a decision by the jury in this case on the facts as to whether this was campaign-related.

  • 10:26:15

    GJELTENBut, if it's not all that vague, why is there this kind of strange disagreement between the Federal Election Commission and the Department of Justice to U.S. government federal agencies that apparently take different views of the facts here?

  • 10:26:27

    BARANWell, actually, it's unclear that there is a disagreement. The prosecution, when the defense tried to enter the evidence relating to the audit, pointed out that the commission never conducted its own investigation. It wasn't really part of this case. It never interviewed the witnesses and gathered all the information that prosecution has. And to our knowledge, there is no pending investigation.

  • 10:26:51

    BARANNow, there are numerous cases where the prosecution goes after a defendant and, either win or lose in a criminal case, after the trial, the Federal Election Commission gets involved, and there could be a civil penalty. Now, that's happened recently with respect to a defendant up in Michigan who was accused of laundering money, coincidentally to the Edwards campaign, through his law firm. He testified at his criminal trial. He was acquitted. But after the trial, he was fined a couple of hundred thousand dollars by the Federal Election Commission.

  • 10:27:26

    GJELTENRuth Marcus, let's talk about the Federal Election Commission a bit here because I think, from some of the commentaries, we can almost conclude that it's the FEC that's on trial here, as well as John Edwards. Melba, one of our listeners, wrote in an email, "The government's entire case hinges on their unique definition of campaign finance. Why were the FEC experts not allowed to testify about what is traditionally considered contributions?" Well, I think we know the judge didn't allow that. But what's your sense here of what's at stake for the Federal Election Commission?

  • 10:27:59

    MARCUSWell, I think that if the Federal Election Commission isn't on trial, it probably should be. The -- I want to go back and just emphasize the -- I would not really have a huge problem if the FEC wanted to go after John Edwards civilly. My issue with the case is turning it into a criminal matter, and I think that's really a stretch and a bad use of resources. But I think...

  • 10:28:24

    GJELTENBad use of resources. So is it a resource argument, or is your argument that this does not -- this case does not highlight the issues you want highlighted?

  • 10:28:32

    MARCUSWell, it's both. Prosecutors look at a whole array of bad conduct, and they decide, among those, what is it -- what does it make sense for us to prosecute criminally either on its own merits? Do you really want to send the guy to prison for this? Meredith made the argument about sending a message to other people about sugar daddies. And, you know, is -- are there other really bad things that we see going on that we could use our investigative resources in a better way to do?

  • 10:29:01

    MARCUSBut talking about the FEC, one of the things that is just so -- I don't know whether it's ironic or tragic about the Edwards prosecution, is that, even as we have this prosecution going on where the fundamental issue is, can you have your sugar daddy/benefactor/sugar mommies, I guess, in the case of Bunny Mellon, spending large amounts of money on your behalf and be criminally prosecuted for it?

  • 10:29:27

    MARCUSMeanwhile, out in the open, flagrantly, proudly, people in this campaign in 2012, through the vehicle of super PACs, are spending millions of dollars on behalf of their favorite candidates. And nobody is talking about criminally charging them. And the FEC, for various reasons, is doing absolutely nothing about that, to say nothing of Justice Department.

  • 10:29:50

    GJELTENWell, Meredith McGehee, speaking of sugar daddies, Bunny Mellon, very rich woman, she gave somewhat less than $1 million to the Edwards campaign for whatever purpose. But that contribution pales in comparison to some of the other contributions we've seen from, for example, Sheldon Adelson, who bankrolled the Newt Gingrich campaign as well as others.

  • 10:30:11

    MCGEHEEOh, absolutely. And I think Ruth -- I get to agree with Ruth this time because I think she's absolutely correct in that the role of super PACs is allowing many of these very wealthy individuals to funnel money. There's a little bit of a distinction between funneling that money for legitimate campaign activities and paying off your mistress. I think that is a fact that is worth noting. So you can't just simply say, super PACs and Bunny Mellon equal the same.

  • 10:30:35

    MCGEHEEBut I think there's a really critical point here about what I call, instead of the Federal Election Commission, the Failure to Enforce Commission. This commission is a disaster. It has lame ducks in it. There's only one out of the six. And so relying on this particular entity to be enforcing these campaign finance laws at this time is really a tragedy, I think, for our country. And the super PACs and the shadow super PACs, the (c)(4) s, I think, are really going to be a huge problem in this election.

  • 10:31:04

    MCGEHEEI want to note the court case that just was decided at the appellate level yesterday on the Van Hollen case, which is requiring these electionary communications to be revealed -- I don't know. I think, Jan, your law firm was on the losing end of that. But I think it's a very important court case that you're going to at least, for the moment, bring more transparency into this mess where people are just pouring millions and millions of dollars into the system.

  • 10:31:32

    GJELTENJan, why wouldn't transparency be a good idea? Why isn't that really an important -- that was actually part of the argument of the Supreme Court.

  • 10:31:39

    BARANYeah. Transparency is a good idea. It's constitutional, which always helps, assuming it's not unconstitutionally ambiguous and vague. I mean, there's still some constitutional considerations. But, you know, I have to disagree with both Meredith and Ruth because they're conflating several different issues here. I mean, number one, contributions like the so-called Adelson donation to a super PAC are not only legal and reported and constitutionally protected, they have to be independent of the candidate, you know?

  • 10:32:15

    BARANSo if there were evidence that Newt Gingrich was personally involved in the super PAC, that would be just the same type of crime as Sen. Edwards is alleged to have committed, and, with respect to the disclosure issue, that concerns spending by groups other than super PACs or campaigns like not-for-profit groups. And those groups are not disclosing their contributors, although they are disclosing their spending.

  • 10:32:42

    GJELTENJan Baran. I'm Tom Gjelten. You're listening to "The Diane Rehm Show." But, Jan, you said that as long as contributions are independent, they are legal. But isn't -- hasn't that distinction between independent contributions and coordinated contributions, in practice, been pretty fuzzy, to say the least?

  • 10:33:00

    BARANWell, actually, it's less funny -- fuzzy today than it was 20 years ago when this principle was established by the Supreme Court. And just for the -- briefly, for the benefit of your listeners, the Supreme Court, starting in the 1970s, established a principle that if somebody or any organization wants to spend their money communicating a message to the public on their own, without collaborating with the candidate, they can do so. They have a constitutional right to do so. And it's been applied to individuals, wealthy individuals, associations, political parties, unions and now corporations.

  • 10:33:36

    BARANIn terms of the definition, which, again, is a legally defined term of independence, it is set forth in about four pages of Federal Election Commission detailed regulations. It prohibits candidates from requesting somebody to spend that money. It prohibits them from providing nonpublic material information about their campaign and many other things. And if somebody has, you know, facts that somebody is collaborating under that legal definition, then that spending becomes a contribution and is subject to a limit.

  • 10:34:10

    GJELTENRuth Marcus.

  • 10:34:10

    MARCUSSo that's a really nice theory. Here's the reality of super PACs, and, in particular, what I think we're talking about that's really a problem are these candidate-specific super PACs that exist only for the purpose of helping a particular candidate. So you have Newt Gingrich who just happens to be Jan's former client, late lamented former client. It's a long, complicated story.

  • 10:34:32

    BARANVery former.

  • 10:34:34

    MARCUSHe's not responsible for anything that Newt has done for many years.

  • 10:34:37

    BARANPlease don't do that. Yeah.

  • 10:34:39

    MARCUSBut Newt Gingrich stood up, as he announced his withdrawal from the race, to thank Sheldon Adelson...

  • 10:34:46

    GJELTENIt's true.

  • 10:34:46

    MARCUS...the chief benefactor of the super PAC. People travel with their super PAC benefactors. People -- when I say people, I mean candidates. Candidates send or have their or allow their top advisers, top fundraisers to go off and magically form super PACs to operate on their behalf and to raise money for them. So this notion of independence is really quite mythical.

  • 10:35:11

    GJELTENMeredith McGehee.

  • 10:35:12

    MCGEHEEWell, not only are these -- this mythical independence doesn't exist, as we've seen with the Romney super PAC or the Obama super PAC, but you have this kind of strange construction in the law where somehow the Congress has looked at it and said, a campaign contribution directly to a candidate of -- more than $2,500 is corrupting. But it's OK if someone comes in and spends $1 million, and somehow that isn't corrupting. That's just a nonsensical part of the law.

  • 10:35:42

    MCGEHEEAnd what's happening with these super PACs, as well as -- I want to make sure and include here -- these shadow super PACs, these (c)(4) organizations that are supposedly social welfare organizations or the (c)(6) s, like the Chamber of Commerce, they're coming into these races. In many cases, for example, in Indiana, these outside groups are outspending the candidates themselves.

  • 10:36:02

    MCGEHEEAnd in many cases, we probably don't have any clue where some of that money is coming from. That's very problematic. And I think it's part and parcel of the consequences of the shutdown on disclosure and, obviously, the Citizens United decision.

  • 10:36:17

    GJELTENJan Baran, do you want to -- first of all, do you want to talk about Newt Gingrich?

  • 10:36:20

    BARANWell, you know, I want to make it clear that, you know, what all these complaints are about, fundamentally, is the First Amendment, you know, that for 40 years, the Supreme Court has repeatedly said, look, the government cannot prohibit people from disseminating their view to the public about candidates and politicians. And, therefore, they have a right to do so independently. And we can debate, you know, what the law should say about what's independent and not independent.

  • 10:36:50

    BARANBut if somebody wants to spend their money, either individually or collectively through an association or an organization, they have a constitutional right to do so. So what has happened -- and this is important to our discussion today -- is we, in effect, have a bifurcated campaign finance system where we have one little world in this two-world system that is highly regulated, subject to contribution limits and all this other stuff, and the rest of the world is not subject to these limits. And we're complaining about that fact.

  • 10:37:21

    GJELTENJan Baran is head of the election law group at Wiley Rein. He's also a former general counsel to the Republican National Committee. I've also been joined -- I am joined by Ruth Marcus from The Washington Post and Meredith McGehee, policy director at the Campaign Legal Center. We're talking about the John Edwards trial, which is going into its final phase today. But that trial also, that case raises broader issues, which we're going to be getting into when we come back from this short break.

  • 10:40:04

    GJELTENWelcome back. I'm Tom Gjelten, sitting in today for Diane Rehm. And the subject is the John Edwards trial, which is in its final phase in Greensboro, N.C., and the broader campaign finance issues that it raises. I'm joined here in the studio by Jan Baran, head of the election law group at Wiley rein, a former general counsel to the Republican National Committee. Also, Meredith McGehee, policy director at the Campaign Legal Center and Ruth Marcus, columnist and editorial writer at The Washington Post.

  • 10:40:31

    GJELTENJust before the break, we were talking about some of the big issues in campaign finance and the future of the Federal Election Commission, but we need to keep track of the little issues in the John Edwards case. Ruth, you called John Edwards pond scum, and one of our listeners objected to that term, saying, "He is human. Many people have done much worse things. Are we so intent on marginalizing his behavior that we lose all compassion?" Of course, I think your point is to -- is that his moral character is not really in question here. It's the bigger issue.

  • 10:41:08

    MARCUSOh, luckily in America, we don't try people for their moral characters. And I have to say, I've said pond scum about John Edwards in print, and so I'm going to stick with it. I don't mean to be unsympathetic to him because, in a sense, I'm the most sympathetic person in the -- among our group because I don't think he should be being prosecuted. But I'm distinguishing between his moral behavior, which is reprehensible, and I thought I was reaffirmed in my pond scum assessment by even his consideration of putting his daughter on the stand.

  • 10:41:43

    GJELTENNo kidding.

  • 10:41:44

    MARCUSI have daughters. If I were charged with what he is charged with, I would rather spend my life in prison than expose them to testifying and cross-examination if I had behaved the way he behaved. So I've said pond scum. I'm sticking with it. Sorry.

  • 10:42:00

    GJELTENAnd she actually ran out of the courtroom rather that -- you know, it was so painful for her.

  • 10:42:03

    MARCUSAt one point in the thing.

  • 10:42:04

    GJELTENYeah.

  • 10:42:05

    MARCUSI just -- how you can inflict that on your family, I don't know.

  • 10:42:08

    GJELTENOK. We're going to go to the calls now, the phones. If you want to join us, 1-800-433-8850 is the number. We have to go first to Ben who's on the line from Greensboro, N.C. Good morning, Ben. What's it like down there in Greensboro, N.C.? What it's been like for the duration of this trial?

  • 10:42:27

    BENOh, well, it's been awfully fantastic to have all the roads blocked by all the big media trucks. It's been -- made traffic wonderful.

  • 10:42:36

    GJELTENGood business for restaurants and hotels, I imagine.

  • 10:42:39

    BENI'm sorry. What was that?

  • 10:42:40

    GJELTENI said it's good business for local businesses, I'm sure, good opportunity.

  • 10:42:45

    BENOh, it's been wonderful, yes. And also, I'm one of professor Friedland's students, actually, and so I'm hoping that he gets to work on grading our final exams at some point. But I -- thank you very much for taking my call, and I do have a question.

  • 10:42:59

    GJELTENSure.

  • 10:43:02

    BENI was wondering that in the prolonged campaign process like we see today with the GOP, where you have all sorts of moves scrutinized by the media, where you have Mitt Romney campaigning for what seemed like two years now, where does a campaign gift turn into a personal gift when it seems like they're spending their entire life campaigning?

  • 10:43:25

    GJELTENWell, that's exactly the point that your professor Steven Friedland raised before, and it's actually a very important one from a legal point of view. And, in fact, we've had lots of emails this morning, wondering, questioning whether the donors -- and that would be Bunny Mellon and Fred Baron, who -- the late Fred Baron -- whether they filed their contributions as gifts on their tax returns and whether Edwards -- John Edwards' own tax returns noted them as gifts. Jan, do you have any thoughts on this? We talked about this briefly before.

  • 10:43:56

    BARANYeah. Well, just like the definition of contribution, there is a definition of a candidate in the campaign finance laws, and it's the point in which the individual starts raising and accepting donations over $5,000 for his campaign. And in the case of Sen. Edwards, that occurred early in 2007. To answer the question about gifts, one of the two benefactors here, Mrs. Mellon, filed a gift tax return, which, of course, occurred after the investigations started and after the controversy became somewhat known.

  • 10:44:34

    BARANBut she did, for tax purposes, treat them as a gift. There's no indication that Sen. Edwards accepted that as income or -- not that he had to, but did anything in that regard. He certainly did not include any of these benefits in a personal financial disclosure report, which all candidates must file as well about their personal finances. And the listener does have a good point about, you know, at what point do people become candidates? The law says that happens. There's a long run-up before somebody becomes a candidate.

  • 10:45:10

    BARANIn fact, just in the last month, we've started seeing and reading articles about who are going to be the candidate in 2016. You notice Hillary Clinton starting. She's going to be opposed by Gov. Cuomo in New York. That doesn't make them candidates today. But if they do run, they will become candidates closer to 2016.

  • 10:45:29

    GJELTENOK. Let's go now to Kathleen, who's on the phone from Sterling, Va. Good morning, Kathleen. Welcome to "The Diane Rehm Show." Thanks for your call.

  • 10:45:36

    KATHLEENGood morning. Thank you. I lived in North Carolina when the charges were initially brought against John Edwards. And at that time, what was brought out was that the Republican attorney general for the state of North Carolina did not have any credible evidence to prove that the donations in question were campaign contributions and not personal contributions. One of the individuals who gave money to John Edwards is dead -- and I think you just mentioned that -- another is incompetent.

  • 10:46:05

    KATHLEENAnd the major witness against John Edwards is on record for lying repeatedly. And it was just that there just wasn't enough evidence to bring this to trial. And if I can add one more thing, the Constitution of the United States of America protects only those who have been born. Businesses are not born. They are not persons. They are -- should not be giving, you know, these huge sums of money to politicians because they expect a return. And that's bribery.

  • 10:46:37

    GJELTENOK. Thank you very much, Kathleen. I'm going to put some of your thoughts to the panel. But before we do it, I want to go to Phil who's on the line from Fredericksburg, Va. because Phil, I think, has a somewhat different point of view. Good morning, Phil. Welcome to "The Diane Rehm Show." Phil, are you with us, Phil? Well, Phil is apparently not with us anymore.

  • 10:47:01

    GJELTENSo her point, which is one we've been talking about all along, is that there's no smoking gun here. But, of course, there's no smoking gun in many cases, right, Meredith, and still prosecutors have their -- the legal responsibility to pursue cases when they think they have a case.

  • 10:47:17

    MCGEHEEWell, I think they thought, with the personal testimony of Andrew Young, with the other testimony that they brought forth, some of the emails, that they, in fact, were building a fact case. Now, obviously, the jury will be deciding whether or not that fact case is strong enough to convict. But I think it's certainly clear that, with the personal testimony and with the -- some of the email trail that they felt they had a strong enough case to bring it.

  • 10:47:43

    MCGEHEENow, the other point that your caller made that I think is very important to note -- and I think this is often where Jan and I have very fundamental disagreements -- goes back to the question of whether you see money as speech and that they are equivalent and that you see corporations as people and that they are equivalent. Those two questions go to the heart of many of these campaign finance questions. I think Jan and I probably fundamentally disagree on that question.

  • 10:48:09

    MCGEHEEI don't believe that money is speech. I don't believe that corporations are people. That doesn't mean there's -- there aren't balances that you can't create there, that there aren't certain free speech rights that exist for everyone. But I think in the Edwards case, what you're seeing is the role of big money regardless, that candidates, politicians seeking office are spending night and day looking for large amounts of money, whether they have a leadership PAC so that they can support their political aspirations.

  • 10:48:38

    MCGEHEEIn that case, they're going to run for office soon, or they're doing joint fundraising committees. Or they're creating a super PAC, or they're creating their own PAC. This is almost a full time preoccupation with our candidates, and I think it's fundamentally a problem.

  • 10:48:52

    GJELTENWell, Ruth, there is no question that the donors in this case were individual people, they were not corporations, so I suppose, in a sense, these are different issues. But you've been highlighting that there is some connection here to -- at a broad level to the role of money in campaigns.

  • 10:49:08

    MARCUSSure. And I think that the -- it is completely -- that there's two separate things going on here, right? In the Edwards' case, it is individuals, not corporations. In the Edwards' case, nobody who's actually made these contributions is arguing the usual, that this is pure political speech, that they were being impelled by their political motives.

  • 10:49:29

    MARCUSThe argument among those making the contributions, if they were able to testify, would be, no, that they would do it -- presumably would be that they were doing it out of their personal loyalty and friendship for John Edwards and not as part of their political speech. But I do think it's always important for those of us who care about and write about campaign finance regulation to remember that there are First Amendment free speech issues at -- that are involved in it and not to forget the constitutional implications. One other quick thing about Kathleen's point, which went to, I think, political bias.

  • 10:50:02

    MARCUSThere have been some questions about whether the original prosecution in North Carolina was impelled by political animist Edwards versus the Republican political establishment in North Carolina. I think however critical you want to be about the prosecution here, it's absolutely clear that it was approved by and directed by the highest levels of the Obama Justice Department. So I do not see this at this stage in any way as a politically motivated prosecution. It's just a misguided prosecution.

  • 10:50:35

    GJELTENWell, the fact that the Obama administration brought the charges certainly is relevant in that case. Let's go now to Darrell who's on the line from St. Louis, Mo. Darrell, I know you've been waiting a long time. Thanks for the call.

  • 10:50:46

    DARRELLThank you, Tom, for taking my call.

  • 10:50:47

    GJELTENYes, your question.

  • 10:50:49

    DARRELLYeah. My question is, will John Kerry -- I'm sorry -- John Edwards' financial advisers be -- would they be liable for anything in this?

  • 10:50:57

    GJELTENWould they be liable? You mean criminally liable?

  • 10:50:59

    DARRELLYes.

  • 10:51:00

    GJELTENJan Baran? He's asking whether whoever gave advice to the John Edwards' campaign on this issue, could they face any liability, or why haven't they?

  • 10:51:11

    BARANThat is a good question because it really raises the issue of, did anybody give advice to John Edwards regarding the legality of these transactions? There was testimony from two witnesses who each said that Edwards had told them that this had been looked into, and it was OK. It complied with campaign finance laws. However, nobody presented any witnesses, any lawyers, who said they had gave such advice or were qualified to give such advice.

  • 10:51:42

    BARANBut let's say that a lawyer, in fact, had advised John Edwards in his campaign, look, there's no problem with the campaign finance laws for this money to be spent the way it was spent by these two wealthy individuals. That would be critical, critical information because it would be a defense for Mr. Edwards. He would say, I was advised by counsel that this was legal. So that completely eliminates criminal intent.

  • 10:52:07

    BARANAnd if there was such evidence, it surely would've been presented by now well before he was even indicted. But the problem with this testimony, because it appears to be false or unreliable, is that it just underscores that perhaps Edwards was telling these two witness yet another lie.

  • 10:52:26

    MARCUSBut his campaign lawyer -- I'm sorry.

  • 10:52:29

    GJELTENI just want to identify Jan Baran. He's a lawyer with Wiley Rein. All of my guests this morning are lawyers, Meredith McGehee and Ruth...

  • 10:52:36

    MARCUSBarely.

  • 10:52:37

    GJELTEN...Ruth Marcus. I'm Tom Gjelten. You're listening to "The Diane Rehm Show." OK, Ruth.

  • 10:52:42

    MARCUSSorry about that. Edwards' campaign lawyer, as I understand it, has said that had she known of these checks, she would not have considered them to be campaign contributions. He was not allowed to put on this testimony by two former FEC commissioners that they would not have considered these campaign contributions.

  • 10:52:59

    MARCUSAnd, in fact, one of the interesting things is imagine if they had been campaign contributions. The FEC would've reasonably deemed them to be for an improper purpose 'cause you can't use campaign money to hush up your mistress or to support her. So there's a catch-22 embedded in the concept of the prosecution.

  • 10:53:17

    GJELTENOK. Let's go now to Steve who's on the line from Cambridge, Mass. Good morning, Steve. Thanks for the call.

  • 10:53:23

    STEVEGood morning, Tom. I think this case kind of highlights the problems with campaign finance laws in general. Citizens United was a group of persons who wanted to show a movie, and they were forbidden by the government to show a movie because it was considered a violation of what was then the campaign finance laws at the time. Money is very fungible, as we all know. What's a personal gift? What's a campaign contribution?

  • 10:53:53

    STEVEVery hard to distinguish. So I think all of these laws, these campaign finance laws, by their very nature, are so vague and broad that they give the government way too much power. And so I think when we talk about the problems of money, we have to be very careful that the solutions to these problems don't make things a lot worse and violate our Constitution.

  • 10:54:17

    GJELTENJan Baran, you're nodding your head.

  • 10:54:19

    BARANWell, I agree completely with the caller. I would just say that one reason this has become increasingly complicated is because we try to increasingly regulate the process. If you go to some state jurisdictions like Virginia, which has no contribution limits, does not prohibit donations to candidates from anybody, including corporations or unions, but they do insist on full disclosure by the campaigns in their political parties. You don't have evidence of super PACs or, you know, having to funnel money indirectly in order to accomplish the same thing.

  • 10:55:03

    BARANNow, and my reason for pointing this out is not to say, well, one process is legal or unconstitutional or any of that. I'm just saying, look, even assuming that all of the regulations that are proposed are constitutional and would comply with laws, you know, we have a fundamental issue of what's the best way to regulate campaign finance, and I think that's what the caller is raising.

  • 10:55:28

    GJELTENYou don't disagree with that, do you, Meredith?

  • 10:55:30

    MCGEHEEWell, the irony here is in this call for disclosure. This is also coming from the same side that has blocked every effort to increase disclosure, particularly in light of Citizens United. Look, there is no question Citizen United was very limited. It's the Supreme Court who decided to come and make it a whole different case. But I'm glad to hear that Jan supports disclosure.

  • 10:55:49

    MCGEHEESo, hopefully, at this point, he will put his many intellectual efforts behind increased disclosure in the -- in this Congress to make sure that we have a better understanding and more transparency of where the money is coming from. That would really improve the process.

  • 10:56:03

    BARANWell, I don't think you heard my full statement at the beginning of the program, which I'm for disclosure, and, obviously, it's constitutional, as long as it doesn't violate other constitutional principles like being overly broad or vague. So disclosure is constitutional if applied in a constitutional way.

  • 10:56:22

    GJELTENWell, we have to watch out for loopholes, though, don't we, when you make an argument like that?

  • 10:56:25

    MCGEHEEYeah.

  • 10:56:25

    BARANWell, I -- you know, let's say Congress passed a law that it wanted to -- The Washington Post here to disclose how much money they spend on their editorials. I was like, you know…

  • 10:56:33

    MARCUSNot enough. They don't spend enough money on editorials.

  • 10:56:35

    BARANNot enough, you know? But, you know, that would be a disclosure under the law.

  • 10:56:38

    MARCUSAnd definitely not enough on editorial writers.

  • 10:56:40

    BARANBut I don't think The Post would say, well, you, know, there's a constitutional reason for that disclosure, is there?

  • 10:56:45

    GJELTENOK. Jan Baran is head of the election law group at Wiley Rein. And our Washington Post columnist this morning Ruth Marcus, she has written about this issue, the John Edwards' trial and the campaign finance legal issues that it raises. I was also joined by Meredith McGehee, policy director at the Campaign Legal Center and principal of McGehee Strategies. I'm Tom Gjelten. You've been listening to "The Diane Rehm Show." Thanks for listening.

  • 10:57:11

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Monique Nazareth, Nikki Jecks, Susan Nabors and Lisa Dunn, and the engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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