Stephen Weissman for the American Interest:
One can imagine how Lowell’s argument would be grasped by counsel defending Cohen and Trump. So would other statements about the Edwards case by former FEC Commissioners. Before the trial, Thomas and another Democratic Commissioner retained by the defense were shown the government indictment charging that Edwards orchestrated the payments for electoral purposes. Nevertheless, they wrote, the payments “would not be considered campaign contributions or expenditures under the law” and the FEC would agree “if asked.” At the same time, Republican Commissioner (and current White House counsel) Don McGahn agreed the donations were “not reportable.” Concerning the Daniels payment, President Trump has stated, “There were no campaign funds going into this.” This is the Edwards defense: “third party” financial arrangements over an alleged affair outside the formal campaign are never contributions.
Prosecutors attempted to surmount this legal argument by showering the jury with facts and inferences indicating that one purpose of the payments was to influence the election. But they lacked “smoking guns”: strongly corroborated witnesses, thoroughly incriminating recorded conversations and documents, self-damning testimony from the principals (Neither donor appeared—one had died and the other, a 101-year-old, was excused—and Edwards declined to testify). The defense cast “reasonable doubt” on the donations’ having anything to do with elections. It challenged the truthfulness of eyewitness testimony by Edwards’ close aide. Most important, it offered evidence of donors’ strong personal friendships with Edwards, suggesting that they might have helped him regardless of the campaign and asserted that Edwards’ only purpose was to hide the affair from his wife.