MIAMI – The veteran trial lawyer who did all the talking for the Justice Department at former President Donald Trump’s historic arraignment Tuesday has a history of prosecuting prominent political figures. But he hasn’t always prevailed.
David Harbach served as a top federal prosecutor in the 2012 case against former Sen. John Edwards (D-N.C.) and the 2014 case against former Gov. Bob McDonnell (R-Va.). Harbach came up short in the Edwards case before a jury, and although Harbach won a conviction of McDonnell at trial, the Supreme Court ultimately overturned it.
Harbach played a key role in both politically-sensitive prosecutions while working as an attorney in DOJ’s Public Integrity Section. He worked there and later at the Kosovo war-crimes court with Jack Smith, who was named by Attorney General Merrick Garland last November as a special counsel to oversee investigations focused on Trump.
Smith was also in the courtroom gallery Tuesday, but did not sit at the counsel table or address the court. Instead, Harbach addressed the magistrate judge who presided over the hearing.
Harbach is a Harvard Law School graduate and worked as an assistant U.S. attorney in the Southern District of New York and the Eastern District of Virginia. He also did a stint as special counsel to another Trump nemesis, former FBI Director James Comey.
Harbach joined the Los Angeles-based law firm O’Melveny in November 2021 as a partner practicing white-collar defense and handling corporate investigations. A spokesperson for Smith had no immediate comment Tuesday on when Harbach returned to government service or began working in the special counsel’s office.
Edwards was indicted in 2011 on charges that he participated in the acceptance of illegal campaign contributions from a wealthy donor that were directed to a woman he’d secretly had an affair with and impregnated while he was a Democratic presidential candidate in the 2008 race and while his wife was dying of cancer.
“He had to keep it quiet. If the affair went public, it would destroy any chance he had to be president, and he knew it,” Harbach said in the government’s opening statement. “Edwards did what the evidence will show he always did … Deny, deceive and manipulate.”
Edwards had previously confessed to the affair, but his attorneys vigorously contested the notion that the payments amounted to campaign contributions. The defense’s stance created a legal showdown with strong parallels to the one that led to Trump’s first indictment earlier this year on state charges over his involvement in payments during the 2016 presidential campaign to a porn star he allegedly had an affair with, Stormy Daniels.
A jury in Greensboro, N.C. heard the case against Edwards in 2012. The jury acquitted the former senator on one count and failed to reach a verdict on the other five counts, although the large majority of jurors opposed convicting him on anything. The Justice Department quickly opted not to retry the case.
McDonnell and his wife went to trial in 2014 on corruption charges related to their receipt of gifts from a businessman and campaign donor promoting a potential drug made from tobacco.
“This is bribery,” Harbach said to jurors in the prosecution’s closing statement. “This is corruption. The real thing. Don’t let it stand. Don’t let this stand.”
Jurors convicted the ex-governor on all 11 corruption counts; Maureen McDonnell was found guilty of eight corruption counts as well as an obstruction of justice charge. They were both acquitted on charges of lying on loan documents.
A judge sentenced the former governor to two years in prison.
However, Harbach’s victory in the McDonnell trial was short-lived. In 2015, the Supreme Court issued an unusual stay sparing the ex-governor from having to report to prison. The following year, the justices unanimously overturned the guilty verdicts in the case, ruling that some of the favors the former governor allegedly did for the businessman could not be the basis for a corruption prosecution.
The Justice Department ultimately dropped the cases against both McDonnells.
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