May, 17 2012, 03:18pm EDT
For Immediate Release
Contact:
Jordan Libowitz,,jlibowitz@citizensforethics.org,.
CREW Asks AG Holder to Clarify DOJ Position on FEC's Relevance
WASHINGTON
Today, Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Attorney General Eric H. Holder, Jr. asking that the Department of Justice (DOJ) clarify its position as to when DOJ will prosecute criminal campaign finance violations.
On Monday, in the trial of former presidential candidate John Edwards, a DOJ prosecutor argued that determinations made by the Federal Election Commission (FEC) are "not relevant" to criminal charges. In contrast, in 2009, in response to a letter from CREW, the director of DOJ's Election Branch refused to investigate a case claiming, "there must be no doubt that the Commission considers that the underlying conduct presents a [Federal Election Campaign Act] offense."
Read CREW's letter to Attorney General Eric Holder
CREW Executive Director Melanie Sloan stated, "DOJ can't have it both ways. It can't claim it must defer to the FEC one day, then argue that the FEC's views are irrelevant the next. Our criminal justice system is based on the idea we have fair notice of what is and is not against the law. DOJ seems to have forgotten that fundamental American precept."
In 2004, CREW filed an FEC complaint against the U.S. Chamber of Commerce for creating the November Fund to run negative ads against then vice-presidential candidate John Edwards focused on his background as a trial lawyer. Four years later, the FEC deadlocked and failed to act, despite a withering report from the Commission's General Counsel finding the Chamber had made an illegal $3 million contribution to influence the election. In light of all the evidence, CREW asked DOJ to investigate, but the Department refused claiming it could not act unless the FEC found a violation.
A few months later, after President Obama took office, CREW - this time in conjunction with the Campaign Legal Center - asked Attorney General Holder to reconsider. Again, DOJ declined to investigate, claiming that if four FEC commissioners couldn't find a FECA violation, it was "highly unlikely" DOJ could convince a jury there had been a crime.
In the contentious November Fund matter, the politicized FEC split 3-3. In Edwards, however, the FEC voted 6-0 to close the audit of Edwards' presidential campaign, knowing about the payments from Bunny Mellon and Fred Baron, without requiring they be reported.
Sloan continued, "DOJ's position in Edwards is a 180 degree turn-around from the policy it expressed in 2009. You'd think DOJ would be compelled to maintain the same policy from one case to the next. Why the change here? Just because everyone hates John Edwards? Going forward, will DOJ be as aggressive with every other federal candidate or will it revert to deferring to the FEC whenever it's more convenient?"
Citizens for Responsibility and Ethics in Washington (CREW) is a nonprofit 501(c)(3) organization dedicated to promoting ethics and accountability in government and public life by targeting government officials -- regardless of party affiliation -- who sacrifice the common good to special interests. CREW advances its mission using a combination of research, litigation and media outreach.
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After about three hours of oral arguments Thursday on former President Donald Trump's immunity claims, legal experts and democracy defenders urged the U.S. Supreme Court to rule swiftly, with just over six months until the November election.
Trump—the presumptive Republican candidate to challenge Democratic President Joe Biden, despite his 88 felony charges in four ongoing criminal cases—is arguing that presidential immunity should protect him from federal charges for trying to overturn his 2020 loss to Biden, which culminated in the January 6, 2021 insurrection at the U.S. Capitol.
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Matthew Seligman, a lawyer and a fellow at the Constitutional Law Center at Stanford Law School who filed a brief backing prosecutors, said Sauer's concessions highlight that Trump is "not immune for the vast majority of the conduct alleged in the indictment."
Ultimately, he said, the case will go to trial "absent some external intervention—like Trump ordering [the Justice Department] to drop the charges" after having won the election.
At the same time, Sauer's backtracking might have little consequence from an electoral perspective. Further delay in a trial, which Sauer is close to achieving, is a form of victory in itself.
Slate's Mark Joseph Stern pointed out that when Barrett similarly questioned Michael Dreeben, the U.S. Department of Justice lawyer arguing the case for Smith, it seemed like they "were trying to work out some compromise wherein the trial court could distinguish between official and unofficial acts, then instruct the jury not to impose criminal liability on the former."
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Stern and other experts signaled that the decision likely comes down to Barrett and Chief Justice John Roberts, with the three liberals seemingly supporting the prosecution of Trump and the other four conservatives suggesting it is unconstitutional.
People for the American Way president Svante Myrick said in a statement that "today's argument brought both good and bad news. It was chilling to hear Donald Trump's lawyer say that staging a military coup could be considered part of a president's official duties."
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