Hampton Dellinger, an attorney who has been following the John Edwards trial for various media outlets, yesterday provided his assessment of Week 1 and the impact of Andrew Young's testimony. Dellinger says Young made several statements contrary to its theory, which could come back to bite the Government, including:

...Young said Edwards consistently reassured him that the arrangement was legal. The last point is a huge one: If the government was counting on Young to establish that Edwards knew the Baron-Mellon financial support for his mistress ran afoul of federal election laws, his testimony proved a major disappointment.

I think it may not only be a "huge disappointment", but fatal to the Government's case. To prove Edwards is guilty of receiving illegal campaign contributions, it must prove he acted "willfully." In Team Edwards proposed jury instructions, it states the Government must show:

First, that while a candidate for the Democratic nomination for President of the United States, Mr. Edwards knowingly received $25,000 or more from one person in one calendar year;

Second, that this money was a contribution within the meaning of the federal campaign finance laws; and

Third, that Mr. Edwards knowingly and willfully violated the law in receiving these contributions. (my emphasis)

The parties don't disagree on the meaning of "willful." Team Edwards says:

The word “willfully” means that the act was done voluntarily and purposely with the specific intent to violate a known legal duty, that is, with the intent to violate the law or to do something that the law forbids. In other words, the government must convince each of you beyond a reasonable doubt that the Mr. Edwards knew that his actions in receiving these monies were a violation of the law and deliberately chose to violate the law notwithstanding that knowledge.

It's the Government's burden to prove Edwards acted "willfully.

If Mr. Edwards acted in good faith, sincerely believing himself not to be violating the law, then he did not intentionally violate a known legal duty - - that is, the Defendant did not act “willfully.” The burden of proof to show good faith is not on Mr. Edwards because a defendant does not need to prove anything. The Government must establish beyond a reasonable doubt that Mr. Edwards acted willfully as charged and in the absence of a good faith belief as to the legality of his conduct.

According to the Government, in its proposed jury instructions, "willfully" means:

"Willfully" means to act with knowledge that one=s course of conduct is unlawful and with the intent to do something the law forbids, in other words, with the bad purpose to disobey or to disregard the law.

If the Government's own witnesses maintain Edwards told them he thought what he was doing was legal, how will the jury find Edwards acted "willfully" beyond a reasonable doubt?

The Government's view of what it must prove, as to the four counts charging illegal receipt of campaign contributions, is also that Edwards must have acted "willfully." Its proposed instructions list the elements for Counts 2 to 5 as:

First, that the defendant was a candidate for federal office;

Second, that while a candidate for federal office, the defendant accepted or received, or caused another to accept or receive on his behalf, a contribution or contributions from a person (for Counts Two and Three, Rachel "Bunny" Mellon, and for Counts Four and Five, Fred Baron) totaling in excess of $2,300 with respect to a primary or general election;

Third, that the contributions in excess of $2,300 with respect to a primary or general election that the defendant accepted or received, or caused another to accept or receive on his behalf, from a person (Rachel "Bunny" Mellon or Fred Baron, as the case may be) totaled $25,000 or more in a calendar year (2007 or 2008, as the case may be);

Fourth, that the defendant acted knowingly and willfully, as I have defined those terms for you already. (my emphasis)

Even as to Count 6, the False Statement Charge, the Government states in its proposed jury instructions:

In order to sustain its burden of proof for the crime of knowingly and willfully causing another to conceal a material fact from an agency of the federal government as charged in Count Six of the Indictment, the government must prove the following essential elements beyond a reasonable doubt.... (my emphasis)

Team Edwards asks the Court to instruct the jury:

If you find that the government has proven beyond a reasonable doubt that the monies involved in this case were “contributions,” I remind you that this finding alone is not sufficient to find Mr. Edwards guilty of the crimes with which he has been charged. The government must prove additional elements, including the requirement that Mr. Edwards acted willfully.

The conspiracy count, which only has a requirement of "knowingly", still requires Edwards to have entered an agreement to commit an unlawful act. If he didn't think his actions were unlawful, it's hard to see how the jury convicts him on this count. Even the Government acknowledges in its jury instructions:

What the government has to prove, though, is that there was a mutual understanding, either spoken or unspoken, between two or more people to cooperate with each other to accomplish an unlawful act.

The Government, while it has has asked for what is called an "ostrich instruction" (think, burying one's head in the sand), acknowledges that conscious avoidance can only be used to show Edwards acted knowingly, not willfully:

In determining whether the defendant acted knowingly, you may consider whether the defendant deliberately closed his eyes to what would otherwise have been obvious to him. If you find beyond a reasonable doubt that the defendant acted with a conscious purpose to avoid learning the truth -- and not because he was merely negligent, foolish, or mistaken -- then the element that the defendant acted knowingly may be satisfied. I want to caution you, however, that the element of willfulness cannot be satisfied in this manner.

Team Edwards points out Edwards does not have to prove he acted in good faith, believing his actions were lawful. It's the Government's burden to prove otherwise:

If Mr. Edwards acted in good faith, sincerely believing himself not to be violating the law, then he did not intentionally violate a known legal duty - - that is, the Defendant did not act “willfully.” The burden of proof to show good faith is not on Mr. Edwards because a defendant does not need to prove anything. The Government must establish beyond a reasonable doubt that Mr. Edwards acted willfully as charged and in the absence of a good faith belief as to the legality of his conduct.

“Motive” is what prompts a person to act. It is why a person acts. “Intent” refers to the state of mind with which the act is done, a necessary requirement for the crime charged in this case.

Team Edwards asks that the jury be instructed:

If you find beyond a reasonable doubt that Mr. Edwards specifically intended to do something that he knew was against the law and voluntarily committed the acts that make up the crime, then the element of "willfulness"; is satisfied. I instruct you, however, that an honest mistake in judgment, or negligence, or a failure to understand the application of the law to his actions is not willfulness and such conduct is not criminal.

Unless the Government has additional witnesses who will testify Edwards wasn't telling the truth when he told both Andrew and Cheri Young he thought the contributions were legal, it's hard to see how the Government will prevail, given its obligation to prove Edwards acted "willfully" on five of the six counts against him.