Politico on November 30, 2011 released the following:
Posted by Josh Gerstein
“Federal prosecutors are asking a judge to reject an effort by former Sen. John Edwards’s defense team to call two former Federal Election Commission members as expert witnesses on campaign finance law at his upcoming criminal trial.
Edwards’s defense wants to call Scott Thomas and Robert Lenhard to testify about the complexities of federal campaign finance regulations and about their implications for the prosecution Edwards is facing for allegedly accepting illegal, off-the-books donations to his 2008 presidential campaign by participating in a scheme to direct about $925,000 in reimbursements from two of his wealthy supporters to his mistress and a child she and Edwards had.
Both Thomas and Lenhard will testify, according to summaries prepared by the defense, that if Edwards had asked them whether such gifts consituted campaign donations under federal election law, they “would have given the opinion that [the payments] did not fall within the scope of those laws.”
In a motion seeking to keep both men off the witness stand, prosecutors call the testimony “utterly irrelevant” and improper under federal legal precedent.
“It is a fundamental precept that expert testimony on the meaning and applicability of relevant law is inadmissible. This is because each trial court already has its own legal expert: the judge,” prosecutors wrote in their motion filed Monday. “What Mr. Thomas or Mr. Lenhard would have said in 2007 and 2008 simply has no bearing whatsoever on what Edwards thought or knew at the time.”
A defense spokesman had no comment on the motion to exclude Thomas and Lenhard from the trial, but a written response from the defense team is expected next week.
Ordinarily, expert witnesses are not permitted to opine on legal points, since the trial judge resolves legal questions. However, Edwards’s case arguably presents a more complicated question about whether he should have or could have known in 2007 and 2008 that the alleged scheme to support his mistress would be considered a campaign contribution.
The defense also wants the two men to testify about a 2002 FEC opinion issued to Rep. Jim Moran (D-Va.) and holding that a $25,000 loan he accepted from a drug company lobbyist. “Testimony from retained experts about legislative history is of little to no use, even to the Court, much less a jury,” prosecutors wrote.
Judge Catherine Eagles previously rejected a defense motion to dismiss the case based on its failure to state a clear violation of federal law. However, that leaves open the possibility that the facts the prosecution presents at trial might not withstand a similar motion at or after the trial.
Eagles has set a Dec. 16 hearing to take up motions in the case, including a new defense motion seeking more information on the prosecution’s theory of the case.”
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