MUR 6992 (Trump, et al.) 

Statement of Reasons

Page 1 of 4 

1 

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

) 

Donald J. Trump, et al. ) MUR 6992

) 

STATEMENT OF REASONS OF VICE CHAIR ALLEN DICKERSON AND 

COMMISSIONER JAMES E. “TREY” TRAINOR, III

INTRODUCTION

The Complaint in this Matter alleged that the Trump Organization, “a 

privately held conglomerate that owns, develops[,] and manages a variety of real 

estate holdings,”1 made “prohibited in-kind contributions to support” the 2016 

campaign of former President Donald Trump “when Trump Organization General 

Counsel Alan Garten provided legal services to the campaign, and Executive Vice 

President and Special Counsel Michael Cohen communicated with the press on behalf 

of the Trump Committee.”2

Our Office of General Counsel (“OGC”) recommended that we dismiss these 

allegations pursuant to our prosecutorial discretion under Heckler v. Chaney.3 The 

trouble, though, is that the statute of limitations had long expired by the time this 

Matter came to a vote, and so we lacked discretion, prosecutorial or otherwise, as to 

whether to proceed. Accordingly, we could not follow OGC’s recommendation that the 

1 First Gen’l Counsel’s Report (“FGCR”) at 3, MUR 6992 (Trump, et al.).

2 Id. at 2.

3 470 U.S. 821 (1985); FGCR at 16; cf. Citizens for Responsibility and Ethics in Wash. v. Fed. Election 

Comm’n, 993 F.3d 880, 884-887 (D.C. Cir. 2021) (describing the Commission’s authority to dismiss 

pursuant to prosecutorial discretion under the Heckler doctrine). OGC had concluded that “the value 

of the services provided by Garten and Cohen were likely de minimis, and in the case of Cohen, may 

have been covered by the volunteer exception” and did not “warrant[] the use of additional Commission 

resources.” FGCR at 2.

MUR699200082
MUR 6992 (Trump, et al.) 

Statement of Reasons

Page 2 of 4 

2 

Commission invoke discretion it did not have, and instead voted to “[d]ismiss the 

allegations based upon the expiration of the statute of limitations.”4

Our colleagues disagreed, and we accordingly provide this Statement to 

explain our reasoning.5

I. Background

To be clear, our vote did not depend on any of the alleged facts concerning Mr. 

Cohen, Mr. Garten, the Trump Organization, or the Trump campaign. 

The only relevant facts are these: The Complaint in this Matter alleged 

violations of the Federal Election Campaign Act (“FECA” or “the Act”) that, even if 

true, were subject to a statute of limitations that expired on December 4, 2020.6 And 

the Matter came before the Commission at the executive session held on July 13, 

2021,7 221 days after the statute of limitations had run.8

4 Amended Certification at 1, MUR 6992 (Trump, et al.) (noting 3-3 vote). 

5 See Dem. Cong. Campaign Comm. v. Fed. Election Comm’n, 831 F.2d 1131, 1135 (D.C. Cir. 1987) 

(“DCCC”) (establishing requirement that “[t]he Commission or the individual Commissioners” must 

provide a statement of reasons why the agency “rejected or failed to follow the General Counsel’s 

recommendation”); Common Cause v. Fed. Election Comm’n, 842 F.2d 436, 453 (D.C. Cir. 1988) (“A 

statement of reasons...is necessary to allow meaningful judicial review of the Commission’s decision 

not to proceed”); see also id. at 451 (R.B. Ginsburg, J., dissenting in part and concurring in part) (“I 

concur in part III of the court’s opinion holding the DCCC rule applicable, prospectively, to all 

Commission dismissal orders based on tie votes when the dismissal is contrary to the recommendation 

of the FEC General Counsel”); Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 966 F.2d 

1471, 1476 (D.C. Cir. 1992) (“We further held that, to make judicial review a meaningful exercise, the 

three Commissioners who voted to dismiss must provide a statement of their reasons for so voting. 

Since those Commissioners constitute a controlling group for purposes of the decision, their rationale 

necessarily states the agency’s reasons for acting as it did.”) (citation omitted); Campaign Legal Ctr. 

& Democracy 21 v. Fed. Election Comm'n, 952 F.3d 352, 355 (D.C. Cir. 2020).

6 FGCR at 1 (“LATEST SOL: Dec. 4, 2020”).

7 Amended Certification at 1.

8 This was not due to dilatory behavior by OGC. The FGCR in this Matter is dated October 20, 2017. 

Unfortunately, between March 1, 2017 and December 9, 2020, the Commission never “had a full 

complement of commissioners” and often during that period lacked “enough commissioners to vote on 

enforcement matters.” Statement of Comm’r Weintraub on the Senate’s Votes to Restore the Federal 

Election Commission to Full Strength, Dec. 9, 2020. 

MUR699200083
MUR 6992 (Trump, et al.) 

Statement of Reasons

Page 3 of 4 

3 

II. Legal Analysis

FECA provides this Commission with “exclusive” jurisdiction over civil 

“enforcement of [its] provisions.”9 As with most grants of administrative authority, 

this one is subject to a statute of limitations. Specifically, we cannot lawfully act on 

alleged violations that are more than five years old.10 To have invoked prosecutorial 

discretion, as OGC recommended, would have implicitly suggested, contrary to our

statute, that the Commission could have proceeded but declined to do so.11 

This would be improper: administrative agencies are “‘created by statute’” and 

“‘can have no jurisdiction but such as the statute confers.’”12 Accordingly, we “may 

play the sorcerer’s apprentice but not the sorcerer himself,”13 and the sorcerer has 

limited our powers to allegations that are no more than five years stale. 

CONCLUSION

Congress limited this Commission’s enforcement authority by giving us a fiveyear clock. Nevertheless, we did not address this Matter until 221 days after that 

clock had wound down. Accordingly, we took the only course lawfully available to us 

and voted to dismiss “based upon the expiration of the statute of limitations.”14

9 52 U.S.C. § 30107(e).

10 52 U.S.C. § 30145(a) (“No person shall be...punished for any violation of” the Act “unless...the 

information is instituted within 5 years after the date of the violation”); 28 U.S.C. § 2462 ( “Except as 

otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil 

fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within 

five years from the date when the claim first accrued if, within the same period, the offender or the 

property is found within the United States in order that proper service may be made thereon”).

11 We have voted in the past to invoke the Heckler doctrine when faced with, inter alia, “a lapsed 

statute of limitations” and an OGC recommendation that the availability of equitable relief entitled 

us to enforce against a Respondent. Statement of Reasons of Vice Chair Dickerson and Comm’rs 

Cooksey and Trainor at 4, MUR 7181 (Independent Women’s Voice), Mar. 18, 2021. Here, however, 

OGC has provided no argument, even one we disagree with, supporting our jurisdiction here. 

12 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (quoting Sheldon v. Sill, 49 

U.S. 441 (1850)).

13 Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (describing regulatory authority of federal 

administrative agencies).

14 Amended Certification at 1.

MUR699200084
MUR 6992 (Trump, et al.) 

Statement of Reasons

Page 4 of 4 

4 

_________________________________ _________________________ 

Allen Dickerson Date

Vice Chair

_________________________________ _________________________ 

James E. “Trey” Trainor, III Date

Commissioner

August 31, 2021

August 31, 2021

MUR699200085