!\GlENDA DOCUMENT NO. 13-cll-6--

FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

June 26, 2013 

MEMORANDUM 

TO: The Commission Secretary 

FROM Anthony Herman r\ \ f 

General Counsel \- ) :"t-

:' '] ., . ; 'J p 12: c 1 \J ... ~.''it-' 

AGENDA ITEM 

For Meeting of ~ ~ ~1., \3 

SUBMITTED LATE 

SUBJECT: Enforcement Procedure 2011-XX: Requests for Information from the 

Department of Justice and other Criminal Law Enforcement Agencies 

Attached is a draft September 2011 memo prepared by staff for Kathleen Guith 

regarding a proposed Enforcement Procedure 2011-XX: Requests for Information from 

the Department of Justice and other Criminal Law Enforcement Agencies. The 

Commission has requested the document be placed on the agenda for June 27, 2013. 

Attachment 
I 

2 

3 MEMORANDUM 

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FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

5 TO: Enforcement Staff 

5 

7 FROM: Kathleen Guith 

g Acting Associate General Counsel for Enforcement 

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: ) SUBJECT: Enforcement Procedure 2011-XX: Requests for Information from the 

: I Department of Justice and other Criminal Law Enforcement Agencies 

I 2 

I 3 I. Introduction 

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I 5 During Executive Session meetings on July 19, August 2, and August 30, 2011, 

1,5 Commissioners raised questions about the Office of the General Counsel's ("OGC") 

I 7 hand I ing of requests for information to the Commission from the Department of Justice 

I.~ ("DOJ''). The questions arose from a specific matter, but more general questions about 

I') OCiC's policy for handling these requests were raised. OGC explained it follows a 

~:1) general practice of handling such inquiries from DOJ, but that it did not have a written 

=· l policy detailing its practice. ~ .. , .:. .. 

~ :l After conducting additional research, OGC confirmed that its current practice has 

:: ·~ generally been: 

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:: ~i • To share information with DOJ freely when it is requested; this furthers 

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7 cooperation between the agencies as envisioned by DOJ and FEC's Memorandum 

2 B of Understanding; 

2'1 

3 0 • To require that DOJ request documents or testimony from the Commission in 

3 writing, to generally comply with such written requests, and to notify the 

3:~ Commission of such a request in relevant General Counsel's Reports; 

3:; 

34 • To recommend whether the Commission should comply with Grand Jury 

3:; subpoenas and to circulate such recommendations on tally vote; and 

3(i 

3~' • To require written requests from state or local law enforcement agencies asking 

3~: for information from the Commission and to notify the Commission of such 

3~ 1 interactions through informational memos. 

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OGC's information-sharing practice with DOJ has evolved over time. Before 

2001 and 2002, OGC required DOJ to issue "friendly" subpoenas before handing over 

any docmnents. These subpoenas were considered "'friendly" because the Commission 

intended to comply with the requests, but preferred to disclose documents through a more 

fonnal channel. OGC has handled "'friendly" subpoenas in this mrumer since at least 

1993, as evidenced by Enforcement Procedure 1993-22, which addresses the hru1dling of 

subpoenas for information from DOJ. 

The practice of requiring a "friendly" subpoena changed m1der General Com1sel 

Lan-y N011on. Mr. Norton did not believe that a subpoena was necessary for the 

Commission to provide information to DOJ or other law enforcement agencies. More 

specifically, because the Act's confidentiality provision prohibits the release of 

infonnatiou to the "public," see 2 U.S.C. § 437a(l2), and DOJ and other law enforcement 

agencies do not appear to be pa11 of the "public" for pwposes of the Act, the Connnission 

may share relevant infonnation with these agencies when appropriate. By sharing 

mfonuation with DOJ more freely, the Commission hoped that it would gain more 

fh·quent cooperation from DOJ. The change in practice appears to have been discussed 

at an Executive Session with the Conmlissioners present, but that decision is not reflected 

111 a written docmnent. 

OGC's current practice in handling requests from state and local law enforcement 

agencies is slightly different. OGC has typically been more reluctant to disclose 

infonuation to state and local law enforcement, and when it has done so it typically alerts 

the Commission to the disclosure through an informational memo. See, e.g., MUR 5380 

(Delay Congressional Committee) (2006) (OGC informed Commission that state 

prosecutor had asked for all files from matter but Colllnission denied request); Audit of 

AIUvlPAC (2002) (local district attorney requested interview with Audit Chief; OGC 

infonned Colllnission and Connnission denied request). OGC has treated requests from 

state and local law enforcement agencies differently because (1) there are significantly 

more state and local law enforcement agencies than federal agencies, and granting every 

request could place undue burden on the Commission and its staff; (2) OGC does not 

have the same developed relationship with state or local prosecutors, and they may be 

less awru·e of the Act's confidentiality requirements; and (3) requests from state and local 

law enforcement agencies are usually for information that would support allegations 

other than campaign finance violations (i.e., embezzlement from local campaigns). 

Since the change in practice around 2002, the Commission, through OGC, has 

had a munber of opportunities to cooperate with DOJ and other state and local law 

enforcement agencies. Most frequently, DOJ has asked the Commission for information 

pertaining to one or more respondents in an open matter. In these instances, DOJ may be 

v ... , ... V'.U u.a.u.;o ...... ., .... , or even the General Counsel's Reports. See 

MUR 6054 (Buchanan); MUR 

MUR 5187 Inc.); 

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or in the First General Counsel's Report. Seeother matters, OGC did not inform the Conuniss~he 

See MUR 5924 (Nguyen). With respect to the audit process, OGC 

has submitted an informational memo to the Commission where DOJ r"""'""'·"?".ro 

onJ~Z:OJnsz audit. 

9 II. Procedure 

10 

11 lu order to more efficiently and effectively handle requests from DOJ and state 

1 2 and local law enforcement agencies, the following Enforcement Procedure should be 

1 3 comulted when staff in the Enforcement Division are approached for infom1ation in a 

14 Conuuission matter. 

15 

16 A. Grand Jury Subpoenas 

:7 

, 8 In the event that OGC receives a subpoena from a grand jury for Commission 

: i docmnents, Commission approval must be obtained before providing the doclD.Ilents. A 

:~) memorandwn should be prepared with appropriate recommendations. 

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B. Written Requests for Information from the Department of Justice in 

Commission Matters 

In the event that OGC receives a written request from the Department of Justice 

(or any component or sub-component, such as the Federal Bureau of Investigation) for 

information in a Commission matter (including MURs. pre-MURs, Audits, etc.), 

approval should be obtained from the Associate General Counsel for Enforcement (or his 

or her delegate) before providing the documents. 

An informational memorandum should be prepared that informs the Commission 

of the request from DOJ, identifies the documents to be provided, and alerts the 

Corrunission of the date on which disclosure is to occur. 

3 :; C. Oral Requests for Information from the Department of Justice in 

3ti Commission Matters 

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3~: In the event that OGC receives an oral request from the Department of Justice (or 

39 any component or sub-component, such as the Federal Bureau of Investigation) for 

4(' inf01mation in a Conunission matter (including MURs, pre-MURs, Audits, Etc.), OGC 

t 1 may infonu DOJ orally of the existence and the status of the matter, but should inform 

4~ DOJ that any requests for specific infom1ation or documents should be made in writing. 

l ~ OGC should infonn the Commission of such requests in the next appropriate 

fS General Co1msel's Report or Memorandum to the Commission ifthe request is deemed 

t~ relevant to a potential violation of the Act. 

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2 D. Department of Justice Requests to Hold an Investigation in Abeyance 

3 

4 In the event that OGC receives a request from the Department of Justice (or any 

5 component or sub-component, such as the Federal Bureau of Investigation) asking that 

6 the Commission hold an investigation in abeyance, DOJ should provide the request in 

7 writing. Moreover, OGC should prepare an informational memorandum that notifies the 

8 Commission of the abeyance request. OGC should include in the informational memo 

9 any statute of limitations issues that might be impacted by the proposed abeyance. 

10 

I I E. Requests for Information from State and Local Law Enforcement Agencies 

12 

13 In the event that OGC receives a written or oral request from a state or local law 

14 enforcement agency for information in a Commission matter (including MURs, pre15 ML Rs, Audits, etc.), approval should be obtained from the Associate General Counsel 

16 for Enf~)rcement (or his or her delegate) before providing the documents. 

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I 8 An informational memorandum should be prepared that informs the Commission 

I 9 of the request from the state or local law enforcement agency, identifies the documents to 

:!O be provided, and alerts the Commission of the date on which disclosure is to occur. If 

:! I infonnation is requested by subpoena, then Commission approval should be obtained 

2 2 before providing the documents. A memorandum should be prepared with appropriate 

:! 3 re..::ommendations. 

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2 5 F. Request for Testimony of Commission Staff, Either as an Expert or Fact 

:~~) Witness 

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In the event that OGC receives a request from DOJ for Commission staff to testify 

(or otherwise provide information as part of an investigation), approval should be 

obtained from the Associate General Counsel for Enforcement (or his or her delegate) 

before providing testimony. If the request is for testimony from a staff member not 

within the Enforcement Division, the Associate General Counsel for Enforcement (or his 

or her delegate) shall consult with the appropriate manager ofthat staff person. 

3 :i An informational memorandum should be prepared informing the Commission of 

3 <i th(: request, identifying the substance of the testimony sought, and alerting the 

3" 7 Commission of the date and location during which the testimony will be given. 

3l: 

J<l In the event that OGC receives a request from a state or local law enforcement 

40 agency for Commission staff to testify, or otherwise provide information as part of an 

41 imestigation, approval should be obtained from the Associate General Counsel for 

4:·. Enforcement (or his or her delegate) before providing testimony. If the request is for 

4:. testimony from a staff member not within the Enforcement Division, the Associate 

4-' General Counsel for Enforcement (or his or her delegate) shall consult with the 

4: appropriate manager of that staff person. However, the Associate General Counsel for 

-H· Enforcement (or his or her delegate) may decline to make the staff person available 

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I unless the testimony involves potential violations of the Act and the providing of such 

2 te·stimony does not place an undue burden on Commission resources. 

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4 If such testimony is provided, an informational memorandum should be prepared 

5 informing the Commission of the request, identifying the substance of the testimony 

6 sought, and alerting the Commission of the date and location during which the testimony 

7 \\-ill be given. 

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9 G. Appropriate Confidentiality Disclaimers 

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II When forwarding the documents to a Grand Jury, DOJ, or a state or local law 

12 enforcement agency, every page of each document provided should be stamped 

13 "'CONFIDENTIAL." An appropriate cover letter detailing the confidentiality 

14 requirements of2 U.S.C. § 437g(a)(l2) and 2 U.S.C. § 437g(B)(i) should accompany 

15 each document disclosure. 

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17 Ill. Conclusion 

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19 Enforcement Division staff should follow this Enforcement Procedure, but where 

:~0 significant or unexpected issues arise the Associate General Counsel for Enforcement 

:~I should be consulted. 

5 
1\flJR 

5924 (Tan 

Nguyen) 

Who 

requests 

informatio 

n? 

(Public 

Integrity) 

DOJ(USA 

for E.D. 

Calif.) 

DOJ REQUESTS FOR INFOR1\1.A.TION 

EXAMPLE MlTRS 

What type 

of 

informatio 

nis 

How is it 

(must it be) 

requested? 

At what stage of 

our process? 

investigation, 

before and after 

PC Report 

At what stage I What does 

of DOJ OGC do? 

matter? 

Via phone 

(check with 

RQL) 

OGCwas 

"standing down" 

pending criminal 

matter 

Disclose to 

DOJ with letter 
5069/5132 I DOJ (FBI 

(Acevedo Agent) 

Derrick 

Shepherd 

Campaign Committee 

2006 Audit 

DOJ(USA 

for E. D. of 

La.) 

DO.J REQlTESTS FOR INFORl\IATION 

Informally 

through phone 

and email 

contact. 

Initially issued 

grand jury 

subpoena but 

withdrawn 

consultation 

withOGC; 

OGC informed 

DOJ that 

formal process 

not necessary 

Post-closing 

During ongoing 

Audit 

? Information 

disclosed. 

Information 

disclosed.