In addition to Hunter being an unpredictable loose cannon who might want to help Edwards despite her immunity agreement with the Government, and the likelihood she would seriously impeach Andrew and Cheri Young, there are strategic considerations.

If the Government calls Rielle Hunter as its witness, the defense gets to cross-examine her, which means the defense can ask her leading questions. If the Government thinks Team Edwards will call her, it may prefer she testify as his witness, so it has the added advantage of being able to ask her leading questions. The downside to that strategy is that the Government's questions might be limited to topics the defense chose to ask her about. While I have no crystal ball, I think the Government will only call her if it thinks its case is really in trouble. In that event, it might decide it's worth the risk because there's little to lose but a chance she she can resurrect it.

The media is so focused on testimony impugning Edwards' character, it misses or buries the details about whether the Government is proving its case. Almost every headline is about Wendy Button's testimony yesterday that Edwards knew Fred Baron was subsidizing Rielle Hunter. Edwards isn't charged with knowing Baron funded his pregnant mistress or lying to public about what he knew, or even covering up Baron's payments. He's charged with accepting illegal campaign contributions, a conspiracy related to campaign contributions and failing to have his campaign report the receipt of the funds. It the funds aren't campaign contributions, there is no crime. I think Button's testimony yesterday helped the defense on the charges in a few crucial areas:

First, she testified he said he lied to protect his family. The Government's whole case is built on the premise that John Edwards' motivation was not protecting his family but protecting his candidacy.

Second, she testified that during her conversations with Edwards in the summer of 2009, well after the crime and after the investigation was already underway, Edwards told her he "only recently" learned that Bunny Mellon had donated $725,000 through Andrew Young, and that he thought Young extorted the money from Bunny and he did not authorize Young to do this. This contradicts the Government's allegation that Andrew Young was acting as John Edwards agent and under principals of agency law, John Edwards is responsible for Young's actions.

Third, Edwards told her in 2009 he believed the donations from Fred Baron and Bunny Mellon were legal and not campaign contributions. Andrew and Cheri Young also said Edwards did not think the donations were campaign contributions. Alexander Forger backed Edwards on this as well. Not one witness has testified John Edwards knew or believed, at the time the funds were received from Fred Baron and Bunny Mellon, that he knew or believed the funds were campaign contributions, intended to influence the election and subject to federal limits and reporting by his campaign.

Because the required mental state on the four counts charging acceptance of excess campaign contributions and failing to report the contributions is "willfull", the Government's proof so far is woefully lacking.

There's no dispute as to the meaning of willfull. According to the Government's proposed jury instructions:

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.

Team Edwards describes it as:

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.

Whether Edwards lied about Rielle Hunter and the paternity of their child to the public, his campaign staff, his supporters and his wife -- even his knowledge that Baron had been supporting Young and Rielle during the campaign -- are not determinative of guilt on the charges.

The Government must prove, beyond a reasonable doubt, that Edwards accepted the funds while he was a candidate, and that he knew or believed the funds constituted campaign contributions intended to influence the 2008 election, and he accepted the funds and failed to have his campaign report them intending to violate the law.

We don't know yet what Button testified to today, and how she did on cross. The court doesn't allow cell phones in the courtroom, so there's no tweeting until recesses. I'll update when that's available. (Added: Apparently, she didn't do much in her testimony today besides ramble. She was admonished by the judge to just answer the questions-- "Listen to their questions so that we can get out of here this year." Abbe Lowell brought out her close relationship with the Youngs that developed during the investigation. He also got her to confirm that she had no knowledge of specific payments by Baron or Bunny Mellon and did not know when Edwards learned of them. She also said she thought Baron was providing funding for the baby, and the baby wasn't born until after the Edwards' campaign ended.

Jennifer Palmieri will be up next, I'll start a new post for that -- and on how the Government seems to be changing its theory of guilt in a major way. It's moving the goalposts, from it s original theory that the funds were for the purpose of saving John Edwards' presidential candidacy to one in which Edwards was trying to preserve his shot at becoming Obama's running mate.

Up until now, this has been a back-up theory for the Government, just like its "agency" theory for liability with respect to Andrew Young is a backup theory. There's a big question as to whether the judge will allow this vice-presidential aspiration testimony to be considered as evidence of guilt on the charges in the Indictment which refer almost exclusively to his presidential campaign.

Since the media doesn't report much on evidentiary objections and rulings during trial, it's hard to say whether the judge has indicated she'll allow or disallow the Government's vice-presidential theory to be considered as a basis for guilt as opposed to just for matters related to intent.

I'm tending to think the Judge isn't crazy about the theory, because there are so few reports about Eileen Mancera's testimony yesterday. One tweet said she was on for 45 minutes and boring. That leads me to think she wasn't allowed to testify to what the Government wanted her to testify to. In a pretrial motion, the Government said:

Eileen Mancera, finance chair during Edwards’ 2004 campaign and an adviser to his 2008 campaign, is expected to testify that shortly after the New Hampshire primary in early January 2008 (before Edwards suspended his campaign), Mancera reached out to the Obama campaign to offer her services to them. Shortly after that, Mancera received a phone call from an angry Fred Baron, who chastised her for breaking ranks and contacting the Obama campaign. Baron implored her not to leave, and even though the campaign for President had not yet been suspended, emphasized that it was important that they stick together to maximize Edwards’ chances to be nominated for Vice President.

.... Baron’s asking Mancera to stick together and not leave the campaign is not hearsay because it does not involve a declaration of fact. See Fed. R. Evid. 801©. Baron’s statement is best characterized as a request of Mancera or an instruction to her. In neither case is the statement hearsay.

...Baron’s statements are relevant because they underscore Baron’s motive in making the payments he made: to ensure John Edwards became President. Indeed, that Baron remained fixated on Edwards’ chances to be Vice President or Attorney General well after the campaign was suspended (as the evidence will show at trial) demonstrates his degree of commitment to the goal of Edwards achieving high national office. That evidence takes on special importance in this case, because the defense has already argued that (a) Baron’s intent in making the payments was not to influence the election, but rather to help Rielle Hunter (Edwards’ Memorandum in Support of Motion to Dismiss Indictment for Failure to Allege a Crime, Dkt. No. 30, at 29); and (b) the evidence that Baron continued to make payments following suspension of the campaign means that his intent in the first instance could not have been to help John Edwards win the election.

Had Mancera been allowed to testify to all this, wouldn't the media have reported it? This really highlights the problems with reporting on a trial when you are aren't there and don't have the transcripts. The lawyers and media gets daily copies of the transcripts, since they made arrangements to pay the court reporter for them. But the media only shares them with the reporters who work for organizations in its "consortium" that contribute to their cost. The rest of us can't afford them. (The transcripts can also be viewed at the courthouse, if you happen to be in the neighborhood.)