Former President Donald Trump’s indictment has drawn comparisons in recent days to the failed hush-money case against former Democratic senator and presidential candidate John Edwards.
In 2011, Edwards faced six felony charges relating to campaign finance law violations for accepting $1 million from donors to obscure his affair during his 2008 presidential campaign. In 2012, a jury acquitted Edwards on one count of receiving illegal campaign contributions and deadlocked on the others, which the Justice Department declined to pursue again.
A Manhattan grand jury indicted Trump last Thursday as part of the Manhattan District Attorney’s Office’s years-long investigation into his alleged hush-money payments to adult film actress Stormy Daniels and former Playboy model Karen McDougal.
While Edwards faced federal charges and Trump now faces state charges, experts see similarities in both cases, which they say could benefit Trump.
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Fox News Digital spoke with several experts – including a law professor, former Federal Election Commission members and a former federal prosecutor – who spelled out why Edwards’ case could be bad news for Manhattan District Attorney Alvin Bragg.
Here’s what they had to say.
Bradley Smith – Josiah H. Blackmore II/Shirley M. Nault designated professor at Capital University School of Law and former Federal Election Commission member
“The Edwards scenario is relevant for two reasons. First, as much as I criticize the theory of District Attorney Bragg, it’s worth noting that the federal district court judge in the Edwards case let the case go to trial on basically what was that theory – that friends of the candidate were paying a woman off to be quiet that counted as a campaign expenditure,” Smith told Fox News Digital in a phone interview.
“The other point about it is the jury found in favor of Edwards. They hung on some charges, and on others, they acquitted,” he continued. “I think that illustrates the tremendous difficulty of winning this kind of case both on the law and the facts.”
“In the Edwards case, they were actually trying a federal case. Here, they’re not actually trying a federal case,” Smith said. “If they go ahead to go to trial and find Trump guilty, he’s not going to be found guilty of federal campaign finance violations; he’s going to be found guilty of violating the New York state law on altering business records in order to cover up other crimes, which are allegedly these campaign finance crimes.”
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“So, the prosecutor has sort of a case within a case,” Smith added. “He’s got to prove Trump committed this New York crime, but to prove Trump committed this New York crime, he’s going to have to prove that had he been the U.S. attorney, he would have brought this federal crime and won on that.”
“That’s a very tough thing for a prosecutor to do, but on the other hand, it could be a helpful thing,” Smith said. “If you get [to] the jury, you don’t have to show the federal crime beyond a reasonable doubt; you just have to [get the] jury thinking, ‘Trump’s probably a bad guy and probably did it,’ then maybe that’s enough, and they convict on the state crime.”
Hans von Spakovsky – Senior legal fellow at Heritage Foundation and former Federal Election Commission member
“I think that what it foreshadows is that Alvin Bragg is trying to make out that there was a violation of federal of campaign finance law, but when the Justice Department moved against John Edwards – and remember the claim was that big political donors of Edwards didn’t give money to the campaign but gave money directly to his mistress that was somehow a violation of campaign finance law – and they failed,” Spakovsky told Fox News Digital. “The jury didn’t buy that.”
“I think that shows that the one time the Justice Department tried to pursue a case like this, it failed,” he continued. “That was probably the biggest reason why the Justice Department and the FEC didn’t go after Trump because they didn’t believe that it was – based on prior experience – a violation of federal campaign finance law, and that’s the biggest flaw in this whole case.”
“The FEC long ago established what they call the ‘irrespective test,’ which is the way the FEC determines whether something is a campaign-related expense and, therefore, is covered by all the laws and regulations – ‘would that expense exist irrespective if you’re running for office?'”
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“That’s why you can’t use campaign money, for example, to pay the mortgage on your house, buy a car, because all those expenses would exist whether or not you were running for office or not,” Spakovsky added.
“I think here, a settlement of a personal injury claim – because that’s essentially what this was – that claim would exist irrespective of whether you’re running for office or not. It might be more important because you’re running for office, but when you apply the FEC’s test to it, it’s not a campaign-related expense and, therefore, none of the federal rules apply to it.”
Katie Cherkasky – Former federal prosecutor and criminal defense and civil rights attorney
“The John Edwards case is the exact same type of charge, except the Edwards case was much stronger from a criminal prosecutorial perspective than this Trump case,” Cherkasky told Fox News Digital.
“Even in that case, they obviously were not able to get a conviction,” Cherkasky said. “The reason for that is when you’re charging these campaign finance violations, it’s a specific intent crime. The prosecution has to prove the individual not only failed to properly account for campaign finance funds but that the reason that they did that was for purposes of campaign fraud, not for some other purpose.”
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“When you’re looking at the Edwards case, the reason they likely couldn’t get a conviction on that was because of the intent for the payment – remember, hush-money payments are lawful; it’s just a matter of how they’re reported if that’s what they’re for – the intent for those payments could have very well been for a personal purpose to avoid embarrassment to his wife, who was very ill at that time, and any other option besides the fact that it was solely for the purpose of impacting an election – that’s going to get you an acquittal,” Cherkasky said.
“The Edwards case was a prime example of this being tried by a prosecutor, and that case was much stronger because there was no dispute that the money had been paid and Edwards was personally involved with that. Trump is not even conceding that much,” she added.
“The prosecution in the Trump case has even more hurdles to get over. Even if they were able to get to the point where they could show Trump was directly involved with those payments, they still have those intent problems: ‘Why did he pay her off?'”
“If it was a nuisance payoff or anything other than an intent to interfere with the election, then they’re going to have a problem with their proof,” Cherkasky said.
Fox News Digital’s Andrew Murray and Thomas Catenacci contributed to this report.
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