What’s a lawyer to do? Send out the minions. The minions produced, big time. They located the tape of the FEC open hearing on the audit (which is on the FEC website), and late last night filed a motion to admit it. You can read it here.

What excuse will the trial court use to block it? I can’t think of a single valid reason. But don’t listen to me, here’s what Team Edwards had to say in their motion.

The tape directly refutes the false statement charge in Count 6 of the Indictment.

Mr. Edwards is charged with causing false reports of a "material fact" to the FEC by not reporting the payments by Mr. Baron and Ms. Mellon as campaign contributions as part of a trick, scheme or device. Because the FEC is aware of theissue and has explained that the payments would not need to be reported, even if the jury finds that the alleged payments were unlawful campaign contributions, those statements by the FEC are certainly probative as to whether the FEC has been tricked or the failure to report the payments as contributions is "material."

On July 21, 2011 the commissioners of the FEC reviewed the "Proposed Audit Division Recommendation Memorandum on John Edwards for President, Inc." in open session.

The FEC referenced the Indictment in this case (with Count 6 included), and its relevance to the FEC's audit of the campaign .....FEC Commissioner Donald McGahn raised the issue of whether the record should remain open, in the event the jury finds that the payments should have been reported as contributions. But he explained there is no reason to leave the record open in this case because, no matter what the jury concludes, the FEC concludes those payments would not be reportable as campaign contributions.

Commissioner McGahn stated “ I can say...in my view [the monies paid by Mellon and Baron are] not reportable." No member of the Commission objected to Commissioner McGahn's assessment, and the Commission voted to adopt the Audit Division's recommendation to close the record unanimously.

Pretty good for Edwards, don’t you think? But Team Edwards isn't taking any chances with the judge who seems all too inclined to rule for the Government. On the relevancy of the tape:

The tape is relevant because it credits Mr. Edwards' defense that the FEC was not tricked with respect to the payments by Mr. Baron or Ms. Mellon and that the FEC does not find the omission of the payments "material" because the FEC does not believe these payments had to be reported, or at least it was reasonable for them not to be. ...What better evidence is there that there is no concealment of a material fact than that the agency accused of being the victim of the concealment is aware of the nondisclosure and explains that it would not want the payments reported as contributions? The fact that the FEC would not require the disclosure of the payments as contributions demonstrates that the FEC does not consider the omission material. In conjunction with the testimony of Lora Haggard, this completes the thought.

Team Edwards cites an 11th Circuit case where a candidate received a $1,500 payment that was used to pay his living expenses.. He did not report the payment as income, and was prosecuted for filing a false tax return. The defendant claimed the payment was a gift and not taxable income. The Government said it was a campaign contribution that had to be reported. The candidate sought to introduce expert testimony at trial that it was a gift. The government claimed that the payment was a campaign contribution, rather than a gift, and that converting it to to cover living expenses required it to be treated as income.

The defendant sought to introduce expert testimony to explain that the candidate’s interpretation of his legal obligation (i.e., that the payment was not a campaign contribution) was well-founded and reasonable. The trial court refused to allow it. He was convicted. The appeals court reversed.

The Eleventh Circuit explained that denial of this evidence was prejudicial because it is "highly probative for the defense to show that the defendant's belief -- whether or not it was mistaken -- was reasonable; evidence of the belief's reasonableness tends to negate a finding of willfulness and to support a finding that the defendant's belief was held in good faith." Looking back at the decision, the Eleventh Circuit explained that, without such evidence, "it would be difficult if not impossible for a defendant to introduce evidence specifically about his mental state. Consequently, he had to focus on providing circumstantial evidence concerning collateral matters, such as the reasonableness of his beliefs, from which the jury could infer what his mental state was.

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Team Edwards maintains that because a critical issue in Count 6 is one of specific intent, the tape is relevant evidence. Anticipating objections from the Government it goes through every possible evidentiary rule to show the tape is admissible. I’ve listed a few below:

The Tape is self authenticating’

There can be no question as to the authenticity of this audio tape of an open session by the FEC, which was taped by the FEC and is maintained on the FEC's own website. See here. The fact that the FEC itself acknowledges that this is a recording of its official proceedings makes it a self- authenticated recording under Federal Rule of Evidence 902(4), 902(8) and 902(11). Because the FEC and the tape itself identify the speaker as Commissioner McGahn, his statements also are authenticated under Rule 901(b)(5) and 901(b)(7).

Hearsay: No Problem:

Because the FEC records its open session meetings and makes them publicly available, the tape is not hearsay under Federal Rule of Evidence 803(6) (Records of Regularly Conducted Activity).

Rule 803(8)

Similarly, the tape is admissible under Rule 803(8) because Commissioner McGahn's statement reflects the FEC's factual finding that there would be no reason to delay the audit to await an amended report from the campaign following the jury's verdict in this case.

Rule 801(d)(2)

The statement also is admissible as an admission by a party-opponent under Rule 801(d)(2). “[T]he Federal Rules clearly contemplate that the federal government is a party-opponent for the defendant in criminal cases.”

....Where a defendant alleges that the government has taken inconsistent positions, “the inconsistencies of the government’s positions . . . should [be] made known to the jury.”

In addition, under well-settled application of Federal Rule of Evidence 803(8), the FEC is the agency to be in charge of this issue, it needs not be a formal finding of that agency but a statement will suffice, and any official of the public agency can speak and that statement is admissible.

Our Supreme Court says “As a constitutional matter, a defendant’s right to present a defense . . . ‘includes, at a minimum, . . . the right to put before a jury evidence that might influence the determination of guilt.’

Such an “[e]rror cannot be harmless where it prevents the defendant from providing an evidentiary basis for his defense. ” The Fourth Circuit allows evidence that will support or undermine the believability or reasonableness of a defendant's claim of innocent intent.

Monday afternoon, after a hearing outside the presence of the jury at which his proposed election law expert, former FEC Commissioner Scott Thomas testified, the Judge ruled Thomas can't give his expert opinion that the funds were not campaign contributions.

Judge Catherine C. Eagles, however, ruled against Mr. Edwards’s lawyers and said Mr. Thomas could not offer the United States District Court jury his opinion on the legality of the contributions. Judge Eagles said it was her role — not a witness’s — to explain the law to the jurors and let them decide if Mr. Edwards had violated it.“It doesn’t seem to me that the jury needs help,” she said. “It just doesn’t seem that complicated to me.”

I'd like to know how hearsay testimony that Elizabeth Edwards ripped off her shirt and bra to scream at her husband, or that Rielle Hunter called her spiritual adviser when a Reuben sandwich came with the wrong dressing, is relevant to Edwards' intent in accepting campaign contributions, but the testimony of a former FEC Commissioner and evidence of an FEC audit negating the Government's theory that he knew the Mellon/Baron funds were campaign contributions is not relevant? The public wants to understand too, and I don't think quoting Rule 702 or Rule 904 suffices.

Why isn't it more important to allow the defendant to show, in the words of the Supreme Court, that this prosecution violates the due process principles "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" and

"[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

There are no cases to support the Government's novel theory that third-party spending on a candidate's "paramour" could result in a campaign finance violation. As Team Edwards argued in its Motion to Dismiss for Failure to State a Crime:

The fact that former Chairmen of the FEC find the government's suggestion of criminal liability flawed and without precedent makes plain that Mr. Edwards could not have been on notice that his conduct "knowingly and willfully" violated the campaign finance laws.

Our Supreme Court has said:

"[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope."

Even in the 4th Circuit where Edwards is being tried, courts have found campaign finance regulation is 'baffling and conflicted." An expert would illuminate, not obfuscate, the meaning and application of the law.

You don't need a weatherman to know which way the wind blows at this trial. The Judge's statement Monday that she thought the expert's testimony would differ from her final instructions, is practically a declaration that she's going with the Government's highly disputed and unprecedented interpretation:

The judge agreed with Harbach, saying that the case "doesn't seem that complicated to me" and worrying that Thomas' testimony would conflict with her jury instructions at the end of the case. "He made a pretty good closing argument for the defense," she said after hearing Thomas testify.

In an area of complex law the average juror would have difficulty understanding, the Judge, instead of allowing the jury to hear knowledgeable expert testimony about what constitutes and does not constitute a campaign contribution, so it can decide for itself whether the monies at issue are a campaign contribution, will force the jury to accept the Government's definition, even though no charges have ever been brought and no court has ever accepted such a definition, and its definition is contrary to both FEC findings in this very case and prior FEC opinions and judicial decisions.

Here's what Edwards' experts, Former Commissioners Thomas and Robert Lenhard, opined in an affidavit to the Court:

[U]nder the law as developed by the United States courts and the Federal Election Commission, these payments would not be considered to be either campaign contributions or campaign expenditures within the meaning of the campaign finance laws …. [T]he Federal Election Commission, if asked, would conclude that these payments did not constitute a violation of the law, even as a civil matter; and …that the facts do not make out a knowing and willful violation of the campaign finance laws warranting criminal prosecution. . . . Moreover, in 2007 and 2008, a candidate would not have been on notice that the payments by Mrs. Mellon and Mr. Baron to Ms. Hunter would violate the campaign finance laws. A criminal prosecution of a candidate on these facts would be outside anything we would expect after decades of experience with the campaign finance laws.

Courts have been clear the Government doesn't get to decide what is a crime. That's Congress' job. From Judge Kosynski's concurring opinion in United States v. Goyal, 629 F.3d 912, 922 (9th Cir. 2010):

"This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal."

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Cate Edwards is expected to testify for her father today. Will the Government object to her telling the jury what she has known and heard her father to say? ? Will the judge restrict her testimony like she did that of his experts? Or will she admit Cate's testimony the same way she admitted the irrelevant trash-talk testimony of the Government's witnesses?

When this trial is over, if Edwards is convicted, millions will believe the real reason he is being sent to the gallows has nothing to do with campaign contributions and everything to do with his having a child out of wedlock with a woman his friends and staffers found "kooky," while his demanding and unhappy wife was dying of cancer.

Or, they may believe that he's being punished for what in the eyes of the Government is apparently an even greater sin -- he had the gall to take the case to trial instead of kow-towing to the Government's demand he lie down and plead guilty to something he had no reason to believe he was guilty of.

Only if the trial is fair, can the public trust in the integrity of an ensuing guilty verdict. I don't see how anyone (other than a prosecutor or Republican) will have faith in the integrity of a guilty verdict in this case, should that occur.

If John Edwards is convicted, saying he'll win on appeal is little consolation. His life, already a mockery by the public shaming he was subjected to in this trial, will have been devastated.

When you break the law, the Government has the right to punish you. It does not have the right to destroy you. And if you are found not guilty, the Government should be obligated to help you restore your life.