A politician hiding a dark secret, even as he sought the nation’s highest job. Hush money slipped to a woman to secure her silence. Criminal charges filed years later.
The storyline is now familiar to those following the indictment of former president Donald Trump in New York, in a case seemingly related to Trump’s payoff to adult film actress Stormy Daniels in the waning days of the 2016 presidential campaign.
But in 2008, it was Sen. John Edwards (D-N.C.) who arranged payments to a mistress to keep her quiet as he sought the Democratic nomination for president. Three years later, Edwards was charged with federal campaign finance violations, accused of hiding the affair using money from donors that should have been reported to the Federal Election Commission. After a six-week trial, a North Carolina jury balked at the case, acquitting Edwards of one count and failing to come to a verdict on five others, leading the Justice Department to drop the matter.
While there are some key differences between the Edwards and Trump cases, legal experts — and the foreman of the jury in the Edwards matter — said the failed federal prosecution in North Carolina offers a note of caution for Manhattan District Attorney Alvin Bragg as he prepares to try Trump on a case stemming from the Daniels’ payment.
“I can make the connection very easily,” said David Recchion, 62, who led the jury that declined to convict Edwards in 2012. “It’s surreal a little bit — it brings back a lot of memories.”
Officials said Thursday that the New York grand jury indicted the former president but the indictment remains under seal, and prosecutors have not yet unveiled any of their evidence or the precise charges that were filed against Trump.
Without more details of the case against Trump, comparing the Trump and Edwards matters is difficult. But people familiar with the case have said Bragg was exploring the possibility of charging Trump with falsifying business records related to the Daniels’ payment, a misdemeanor.
In New York, the charge could be elevated to a felony if records are falsified to cover up or commit another crime. In this case, Bragg’s office appears to be investigating if the business records were falsified to conceal a payment that amounted to an undisclosed campaign contribution to benefit Trump’s 2016 bid for president, bringing the comparison to Edwards into play.
Already Trump’s lawyers have signaled that they might look to the Edwards case to help shape a defense.
“Remember that case, where a third party paid for John Edwards’s mistress who was pregnant with his baby and all that stuff?” said Trump lawyer Joe Tacopina in a recent appearance on MSNBC. “He was acquitted. And the DOJ dropped all charges on the hung counts on that.”
After Edwards’ trial concluded, Recchion and other jurors cited weaknesses in the case that could crop up in the case against Trump as well, including confusion over the exact requirements of campaign finance law, discomfort with using the law in an unusual way to punish a candidates’ personal misdeeds and concerns with the credibility of a key witness.
But experts said differences between the two cases could also mean prosecutors are playing a stronger hand in the Trump case than they were during Edwards’ six week long trial in 2012.
On the surface, the two cases seem similar, involving hush money paid to a woman.
In Trump’s case, lawyer Michael Cohen paid $130,000 to adult film actress Stephanie Clifford, who goes by the name Stormy Daniels, in October 2016, as voters prepared to go to the polls. Daniels says she and Trump had a brief sexual encounter after meeting at a celebrity golf tournament in 2007 but she agreed to keep quiet as part of the deal. Trump then repaid Cohen using company funds, and federal prosecutors have said the Trump Organization falsely accounted for the reimbursement as payment for a legal retainer. In 2018, Cohen pleaded guilty to various crimes, including violating campaign finance law by making the unreported payment to help Trump’s campaign.
Edwards was a popular Democratic senator and attorney who made a bid for the Democratic nomination for president in 2008. He arranged for two campaign donors to pay nearly $1 million to videographer Rielle Hunter, with whom he’d had an affair that he was hiding from both voters and his wife, Elizabeth, who was ailing with cancer.
After initially denying the affair, Edwards admitted to it after dropping out of the presidential race. He also later acknowledged he had fathered a baby with Hunter. In 2011, prosecutors charged him with violating campaign finance laws, arguing the payments to Hunter should have been reported and exceeded legal limits on campaign contributions.
His lawyers argued that while he had engaged in bad behavior and sinned against his wife, he had not broken the law. In particular, they argued that prosecutors could not prove that Edwards knew the payments were illegal nor that the money he steered to Hunter were actually campaign contributions. Instead, they argued the money — which continued to be paid even after Edwards had ended his presidential campaign — came from friends and supporters who wanted to help Edwards hide the affair from his wife.
Legal experts said that Bragg could have similar difficulties convincing a jury that Trump knowingly broke campaign finance laws should he try to make that argument. “In the John Edwards’ case, there were all these different frames and narratives, and it wasn’t entirely clear he had criminal intent,” said Steven Friedland, a former federal prosecutor and law professor at Elon University. He said the Trump case could raise similar questions: “What did Trump know about the payments? What did he know about whether he was acting unlawfully?”
Trump’s team has signaled they could offer a similar defense, should the former president face charges related to breaking campaign finance laws, arguing that the money was unrelated to his campaign and intended to protect his family.
“He made this with personal funds to prevent something coming out false but embarrassing to himself and his family’s young son,” Tacopina told ABC News’ George Stephanopoulos on “Good Morning America.”
In the Edwards case, prosecutors were hobbled by the fact that neither of the two donors testified and offered a first hand account that their goal was to influence the campaign. One, former Edwards finance co-chairman Fred Baron, had died. The other, heiress Rachel “Bunny” Mellon, was 101 and too elderly to testify.
Instead, the prosecution’s star witness was a former Edwards aide named Andrew Young, who had at one point falsely claimed that he had fathered Hunter’s child, before turning on Edwards and testifying against him.
Recchion said the jury had significant doubts about Young’s credibility, a problem he sees as likely to reemerge in the New York case should it feature as a key witness Cohen, who pleaded guilty to lying to Congress and has written books about his experience.
“Andrew Young was not a good reputable witness,” Recchion said. He said the prosecution was unable to convince the jury to trust Young, even after offering other witnesses and documents to support his account. “If the foundation of their case is Michael Cohen — or, in our case, Andrew Young — once that foundation breaks down, it’s really hard to give credibility to the supporting references,” he said.
Still, experts said some of the facts of the Trump case could make for a stronger prosecution than in Edwards. For one, Trump could have a more difficult time arguing that the pay off was to protect this family, given that Daniels was paid just once, on the eve of the November 2016 vote.
For another, Trump denies the sexual encounter with Daniels, instead arguing that he was extorted by the actress. That might make it harder for his defense team to tell jurors they admit their client acted badly. Recchion said that argument was persuasive in the Edwards’ case, when he believed the senator had acted unethically but did not believe prosecutors had proven he broke the law. “You have to wrestle with the difference between not innocent and proven guilty,” he said.
In other ways, a case against Trump could be harder. Randall D. Elliason, a criminal law professor at George Washington University Law School said that any attempt by Bragg, a state prosecutor, to cite violations of federal campaign finance law as a way to elevate a misdemeanor case into a felony would bring with it a whole additional set of complications not present in the Edwards case. “It would be a strange bank shot to bootstrap this into a felony,” he said.
Politics will hover over the Trump case, as it did for Edwards, with the new case brought by an elected Democrat against a former president who is again running for office. Recchion advised lawyers helping to select the jury to look for people with strong moral compasses rather than people who don’t hold political views. And he advised jurors to focus on the weightiness of their task.
“It’s very hard to find somebody who’s unbiased — we all admitted that when we came in,” he said. But, he added, “you have jurors who are willing to put their bias to the side long enough to realize this is a serious, serious event. It’s not a show.”
