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June 3, 2011 4:28 PM

On Edwards Indictment, Am Law 200 Ranks Include Plenty of Skeptics

Posted by Brian Baxter

The campaign finance and conspiracy charges unveiled Friday against former presidential candidate and U.S. Senator John Edwards has some Am Law 200 attorneys questioning the legitimacy of the government's case.

Indeed, unsolicited statements e-mailed to The Am Law Daily Friday by partners at several leading firms were uniformly skeptical of the six-count indictment against Edwards, who, before entering politics, made a small fortune as a plaintiffs lawyer.

Artur Davis, a former Democratic congressman and candidate for governor of Alabama, focused his statement on the Justice Department's decision to hand off the Edwards case to federal prosecutors in North Carolina.

"It's telling that the local U.S. attorney's office in Raleigh issued the indictment," says Davis, now a partner at SNR Denton's white-collar and government investigations practice in Washington, D.C. "While [Main] Justice has to sign off on the case, it is very unusual that any direct action [against] such a prominent individual like Edwards be left in the hands of a satellite office far from Washington."

Davis--also a former federal prosecutor--said in his statement that he believes the Edwards case is far from a slam dunk. He noted that the government rarely brings criminal cases in connection with the misuse of campaign funds, and that when such cases are brought, they usually involve obstruction of justice. The indictment unsealed Friday contains no such charges.

"The case at its core is a dispute over whether certain funds were a legitimate campaign contribution, a gift, or an independent expenditure," Davis said. "It is extremely rare that these disputes produce a criminal investigation, much less an indictment."

DLA Piper's Peter Zeidenberg believes that the government's case could chart new legal territory because campaign finance violations usually result in civil fines levied by the Federal Election Commission rather than criminal charges. Aggressively prosecuting Edwards over the alleged use of campaign donations to conceal an affair could set a dangerous precedent, he added.

"It is a very slippery slope if gifts, which do not directly benefit a campaign, are deemed to violate the law simply because they have some indirect benefit," Zeidenberg said. "In addition, while Edwards is hardly a popular politician right now, this case has very little jury appeal. It is hard to identify what the public harm is in this conduct. This may well be viewed by a potential jury as piling on, and simply kicking a guy when he is down."

Barry Pollack of Washington's Miller & Chevalier believes that just because prosecutors can target an individual as widely vilified publicly as Edwards has been for his personal conduct doesn't mean that they should do so.

"Federal criminal laws are expansive enough that a clever prosecutor can recast almost any bad behavior into a federal crime," Pollack said. "Being a jerk should make you a jerk, not a federal felon."

Glen Donath, a white-collar and government enforcement partner with Katten Muchin Rosenman in Washington, also expressed displeasure over the Edwards indictment.

"It is both surprising and distressing that the government has brought these charges, considering the novel theory underlying its case," Donath said. "Campaign finance violations are very difficult to prosecute given both the complex and subjective nature of the elements of the offenses."

The National Law Journal, a sibling publication, reports that Edwards's legal team--led by former White House counsel Gregory Craig and the media savvy Cliff Sloan of Skadden, Arps, Slate, Meagher & Flom--has solicited the support of two campaign finance lawyers to bolster their case.

Scott Thomas, a former chairman of the Federal Election Commission, current head of the political law practice at Dickstein Shapiro, and, according to The NLJ, potential expert witness for the defense, said that "the theory on which the government intends to base its prosecution is without precedent in federal election law . . . and the [FEC] would not support a finding that the conduct at issue constituted a civil violation, much less warranted a criminal prosecution."

Edwards's campaign counsel, elections law partner Patricia Fiori of Washington's Utrecht & Phillips, told The NLJ that had she been asked for her legal opinion on the payments to Edwards's mistress, Rielle Hunter, she would have determined they did not constitute illicit campaign contributions.

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