Recent days have seen an extraordinary release of documents by the Federal Election Commission about when its Office of General Counsel (OGC) shares information with the United States Department of Justice.

The debate over information sharing, which the Commission is expected to take up soon, is important for many reasons.  It involves the Commission’s compliance with the notice and confidentiality provisions of the Federal Election Campaign Act.  It also involves DOJ’s access to information that might help it avoid doubtful prosecutions by consulting the administrative agency responsible for interpreting and enforcing an increasingly complex statute on a day-to-day basis.

But the documents show that the debate also involves, in no small measure, the level of control that individual Commissioners have on OGC’s operations.  They present only part of the full picture: the Commissioners selected these documents particularly for release, redacted parts of them, and presumably omitted other, more sensitive documents.  But on the record so far released, the information when organized chronologically suggests that:

(1)  The FEC’s practice of sharing information with DOJ has changed significantly over time, notably in 2001 and 2002 when Larry Norton became General Counsel.  At that time, the FEC put significant effort into defrosting its relationship with DOJ, even while DOJ would later seek legislative changes to expand its own authority in the campaign finance field.

(2)  In recent months, specific matters have prompted Commissioners to probe OGC about when it provides information to DOJ, and whether it tells the Commission when it does.  One recent request prompted General Counsel Tony Herman to acknowledge that OGC’s practice of notifying the Commissioners “has not been uniform,” and to direct that Commissioners be informed timely and consistently going forward.  Two months later, the Republican Commissioners released their alternative draft enforcement manual, which would require the Commission to vote before responding to any DOJ request.

(3)  That alternative draft elicited an extraordinary written response from General Counsel Herman and his Associate General Counsel for Enforcement, Daniel Petalas, who was himself a prosecutor in DOJ’s Public Integrity Section before joining the FEC.  Petalas and Herman – who abruptly announced on June 5 that he was leaving the Commission to return to private practice – bluntly warned the Commission that the draft policy could lead to charges of  Commissioner obstruction of justice.

Below, in chronological order, are the significant events presented in the released documents:

  • 1987-2000: Under General Counsel Larry Noble, OGC freely provides information and documents to DOJ upon receipt of a “friendly subpoena.” (Herman and Petalas Memo at 2.)
  • 2001: Under new General Counsel Larry Norton, OGC reviews its procedures and determines “that sharing enforcement information with DOJ and other law enforcement agencies does not make that information ‘public’ and therefore does not violate the Act.”  This leads Norton to end “the formality of requiring ‘friendly’ subpoenas from DOJ.”  (Herman and Petalas Memo at 2-3.)
  • August 2008: Shortly after the appointment of Commissioners Bauerly, Hunter, McGahn, Petersen, and Walther, Associate General Counsel for Enforcement Ann Marie Terzaken emails the Commission about the overall relationship between the FEC and DOJ: “We understand that our relationship with DOJ may be discussed at the next Executive Session in the context of specific matters …”
  • July-September 2011: A specific matter triggers Commissioner questions to OGC about how it handles requests for information from DOJ.  Acting Associate General Counsel for Enforcement Kathleen Guith prepares a draft enforcement procedure for OGC staff, describing how to respond to such requests.  It is not clear from the documents what happens to the draft procedure.
  • June 2012: Associate General Counsel for Enforcement Petalas sends a memorandum to OGC’s enforcement staff on how to respond to requests for information from federal, state and local authorities: “In some instances, the AGC may require staff to prepare an informational memorandum to the Commission concerning such a request.”
  • April 2013: In an email to the Commissioners, apparently in response to a Commissioner inquiry on a particular matter, General Counsel Herman says: “From time to time, we get requests from DOJ for documents … I have learned that OGC’s practice of notifying the Commission of such requests, however, and the timing of any notice, has not been uniform.  I believe there should be a uniform policy and that the Commission should be informed.  Consequently, going forward, when DOJ makes such a request, we will contemporaneously inform the Commission by email of such a request and our plan for complying with it.”
  • June 12, 2013: Commissioners McGahn, Hunter and Petersen place on the agenda a revised draft enforcement manual that would require, among other things, that the Commission authorize any response to a request for information from DOJ: “[T]he decision of whether or what to share with DOJ will rest exclusively with the Commission.”
  • June 17, 2013:  General Counsel Herman and Associate General Counsel for Enforcement Petalas urge the Commission to “continue freely cooperating with DOJ.”  They say that requiring Commissioner approval to respond to DOJ requests “seems to be unprecedented” and “would expose the Commission to allegations that politics and partisanship motivate its case-by-case decisions whether to release records to DOJ.”  They continue: “That process gives rise – at the least – to an appearance of partisanship.  And it will open the Commission up to claims that it is deciding whether to assist DOJ criminal prosecutions on a case-by-case basis premised, at least in part, on political considerations.  Conversely, it will permit an argument to be advanced that, motivated by partisanship, Commissioners obstructed an active DOJ criminal investigation.”  (Emphasis in original.)