Edwards' defense team might want to reconsider their reliance on a Clintonesque "It's all just about sex" defense

John Edwards has always tried to emulate, and out-do, that other smooth-talking, good-looking Democratic politician from the South, Bill Clinton. Edwards has certainly fallen short of Clinton's achievements — most conspicuously in failing to win the White House. As for Edwards' foibles and failings, I suppose that the consensus of history will decide, someday, whether sexually exploiting a White House intern, and lying about that to the American people and the First Lady, is worse than having an affair and fathering a child with a campaign groupie, and lying about that to the American people and the would-be First Lady (who's also dying of cancer).

But John Edwards' urgent problem is not the eventual judgment of history, but the impending judgment of the U.S. District Court for the Middle District of North Carolina. And his defense lawyers would do well to keep that always in mind as they ponder the appropriateness and likely effectiveness of a defense strategy consciously constructed to parallel Bill Clinton's defense in L'affaire Lewinsky.

Clinton was tried primarily in the court of public opinion. Oh, yes, he certainly was impeached in the House of Representatives, and he was nominally "tried and acquitted" in the resulting Senate proceeding over whether he ought also be removed from office. But there is not much resemblance between even the formal "rules" that governed the impeachment proceedings against Clinton and those which are governing Edwards' criminal trial. And Edwards' trial in North Carolina has taken place within a structure, a setting, that has little in common with Capitol Hill. The key participants in Edwards' trial are ordinary, "real-life" participants in our criminal justice system, with the most significant of them being chosen as a cross-section of the voting public — not big-shots from our political system.

Then-Chief Justice William Rehnquist did a fine and fair-minded job of presiding over Clinton's Senate "trial," using his exalted position atop the judicial branch to keep order inside the Senate chamber during the formal proceedings. But nothing could give even the Chief Justice remotely the same practical authority or influence over the U.S. Senators who decided Clinton's fate that U.S. District Judge Catherine Eagles will necessarily have over the jurors who decide John Edwards' fate.

When Clinton's supporters argued — within the House and Senate proceedings, but mostly, incessantly, and desperately in every channel of public conversation outside the Capitol Dome — that his prosecution was "all about sex," there was no one to overrule them, to correct them, to re-focus the inquiry.

But whenever John Edwards' team finishes his defense — and it's still essentially certain that defense will not include Edwards waiving his Fifth Amendment rights and taking the stand on his own behalf — Judge Eagles will give the jury a set of written instructions and questions comprising the "charge of the court" and their required verdict form. Although she will doubtless give Edwards' lawyers great latitude to argue, if they wish, that Edwards' prosecution is "all about sex," or "all about politics," or "all about ____ (fill in the blank)," nevertheless, when all the lawyers are done, the jury will be obliged to answer the questions posed by Judge Eagles.

And at that point, Edwards' lawyers simply won't any longer be able to distract attention from those questions and that verdict form any longer. Judge Eagles' questions will be lifted in large part from the text of the relevant statutes. And those questions are therefore guaranteed to be about violations of the federal campaign finance laws — not about sex, not about politics.

Edwards' lawyers can puff and huff about sex and politics all day long, but it's the jury's eventual answers to those specific questions which will decide their client's fate.

Being tried in the court of public opinion, rather than in a U.S. District Court, was an enormous advantage to Bill Clinton because a "misdirection defense" works quite well in a court with no rules, no boundaries, and no effective judge to control the proceedings and define the issues. I doubt that a "misdirection defense" is likely to be as effective in Judge Eagles' courtroom. But I suppose it's the best semblance of a defense they can put together for this toxic scoundrel.