Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 1 of 29 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

) 

Plaintiffs, ) Civ. No. 22-35 (CRC) 

) 

v. ) 

) OPPOSITION TO MOTION 

FEDERAL ELECTION COMMISSION, ) TO COMPEL 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO PLAINTIFF’S MOTION TO COMPEL

January 22, 2024 

Lisa Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

/s/ Blake L. Weiman 

Blake L. Weiman (D.C. Bar No. 1725165) 

Attorney 

bweiman@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 
Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 2 of 29 

TABLE OF CONTENTS 

PAGE 

BACKGROUND .......................................................................................................................1 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT 

PROCEDURES..............................................................................................................1 

II. FACTUAL BACKGROUND........................................................................................4 

A. Matter Under Review 7465, Freedom Vote, Inc................................................4 

B. The Current Lawsuit ..........................................................................................6 

ARGUMENT.............................................................................................................................9 

I. CREW’S DISCOVERY REQUESTS ARE INAPPROPRIATE 

WHERE THE COMMISSION HAS PROVIDED THE 

ADMINISTRATIVE RECORD ....................................................................................9 

A. Requests for Production are Unnecessary in 

Administrative Review Cases, as the Agency Must 

Already Provide the Full Administrative Record ..............................................9 

B. The FEC Supplied Plaintiff with All Materials the 

Commission Considered by Providing the 

Administrative Record .....................................................................................11 

II. MATERIALS CONCERNING THE COMMISSION’S

DETERMINATION ARE PRIVILEGED AND NOT 

PART OF THE ADMINISTRATIVE RECORD ........................................................13 

A. The Deliberative Process Privilege Prevents 

Disclosure of the Documents CREW Seeks ....................................................13 

1. Commission Pre-Vote Discussions Are Not 

Settled, Final Decisions .......................................................................15 

2. Commission Pre-Vote Discussions Reflect 

Give-and-Take of the FEC Enforcement’s 

Consultative Process............................................................................16

B. The Attorney-Client Privilege and Work Product 

Doctrine Prevent Disclosure of the Documents 

CREW Seeks....................................................................................................18 

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CONCLUSION........................................................................................................................21 

ii 
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TABLE OF AUTHORITIES 

PAGE(S) 

Cases 

Alexander v. FBI, 192 F.R.D. 12 (D.D.C. 2000) .......................................................................... 19 

Am. First Legal Found. v. Cardona, 630 F. Supp. 3d 170 (D.D.C. 2022) ............................. 10, 11 

Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) .......................................................... 9 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................... 2 

Cabezas v. FBI, 2022 WL 898789 (D.D.C. Mar. 28, 2022) ......................................................... 19 

Califano v. Sanders, 430 U.S. 99 (1977) ........................................................................................ 9 

Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ....................................... 9, 12 

Chang v. United States, 2012 WL 28257 (D.D.C. Jan. 5, 2012) .................................................. 19 

Chiayu Chang v. U.S. Cit. & Imm. Servs., 254 F. Supp. 3d 160 (D.D.C. 2017) .......................... 10 

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ........................................ 9 

City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010) ....................................................... 11 

Coastal States Gas Corp. v. Dep’t of Energy, 

617 F.2d 854 (D.C. Cir. 1980)....................................................................................... 14, 16, 17 

Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305 (S.D.N.Y. 2012) .......... 11, 17 

Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014)................................................. 15 

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 

532 U.S. 1 (2001) ...................................................................................................................... 14 

Disability Rts. Council of Greater Wash. v. Wash. Metro. Transit Auth., 

242 F.R.D. 139 (D.D.C. 2007) ............................................................................................ 19, 20 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .................................... 4 

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ........................................................ 10 

Fund for Animals v. Williams, 245 F. Supp. 2d 49 (D.D.C. 2003)................................... 10, 11, 13 

iii 
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Fund for Animals v. Williams, 391 F. Supp. 2d 191 (D.D.C. 2005)............................................. 10 

Hickman v. Taylor, 329 U.S. 495 (1947)...................................................................................... 19 

Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir. 2013)..................................... 10, 11, 12 

In re Subpoena Duces Tecum, 156 F.3d 1279 (D.C. Cir. 1998)............................................. 14, 17 

James Madison Ltd. v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996)................................................... 10 

Judicial Watch v. Dep’t of Justice, 20 F.4th 49 (D.C. Cir. 2021)........................................... 14, 16 

Khatchadourian v. Defense Intel. Agency, 

597 F. Supp. 3d. 96 (D.D.C. 2022).................................................................... 14, 15, 16, 17, 18 

Lloyd v. Illinois Regional Transp. Authority, 548 F.Supp. 575 (N.D.Ill.1982) ........................ 9, 10 

Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 

566 F.2d 242 (D.C. Cir. 1977)................................................................................................... 19 

Motor & Equip. Mfrs. Assn. Inc. v. EPA, 627 F.2d 1095 (D.C.Cir.1979).................................... 11 

Neese v. Pittman, 202 F.R.D. 344 (D.D.C. 2001)......................................................................... 19 

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).................................................................. 16 

Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) ............................................................. 13, 14 

Pac. Shores Subdivision Cal. Water Dist. v. United States Army Corps of Eng'rs, 

448 F.Supp.2d 1 (D.D.C.2006).................................................................................. 9, 10, 11, 12 

Pub. Citizen, Inc. v. U.S. Dep’t of Educ., 388 F. Supp. 3d 29 (D.D.C. 2019) .............................. 19 

Public Power Council v. Johnson, 674 F.2d 791 (9th Cir. 1982)................................................. 11 

Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 

421 U.S. 168 (1975) .................................................................................................................. 15 

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 

789 F.2d 26 (D.C.Cir.1986)....................................................................................................... 17 

Sea Tow Int’l, Inc. v. Pontin, 246 F.R.D. 421 (E.D.N.Y. 2007)................................................... 19 

SEC v. Chenery Corp., 332 U.S. 194 (1947) .................................................................................. 9 

Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008)..................................................................... 10 

iv 
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Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008) ................................................................. 13 

Tax Analysts v. Internal Revenue Serv., 117 F.3d 607 (D.C.Cir.1997) ........................................ 19 

Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299 (D.Del.1979)............................ 9, 10 

United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261 (2021)................ 13, 15, 17 

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ............................... 10 

Statutes 

5 U.S.C. § 706................................................................................................................................. 9 

52 U.S.C. § 30101........................................................................................................................... 1 

52 U.S.C. § 30102........................................................................................................................... 5 

52 U.S.C. § 30103........................................................................................................................... 5 

52 U.S.C. § 30104(a) ...................................................................................................................... 5 

52 U.S.C. § 30104(b) ...................................................................................................................... 5 

52 U.S.C. § 30104(g)(2) ................................................................................................................. 5 

52 U.S.C. § 30106(b)(1) ............................................................................................................. 1, 2 

52 U.S.C. § 30106(c) .................................................................................................................. 4, 6 

52 U.S.C. § 30106(e) ...................................................................................................................... 1 

52 U.S.C. § 30107(a) ...................................................................................................................... 1 

52 U.S.C. § 30107(a)(6).......................................................................................................... 2, 4, 6 

52 U.S.C. § 30107(a)(7).................................................................................................................. 2 

52 U.S.C. § 30107(a)(8).................................................................................................................. 2 

52 U.S.C. § 30107(e) ...................................................................................................................... 2 

52 U.S.C. § 30109........................................................................................................................... 1 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

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52 U.S.C. § 30109(a)(2).............................................................................................................. 2, 3 

52 U.S.C. § 30109(a)(3).................................................................................................................. 3 

52 U.S.C. § 30109(a)(4)(A)(i) .................................................................................................... 3, 4 

52 U.S.C. § 30109(a)(6).................................................................................................................. 2 

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 4 

52 U.S.C. § 30109(a)(8).............................................................................................................. 1, 9 

52 U.S.C. § 30109(a)(8)(A) ............................................................................................................ 4 

52 U.S.C. § 30109(a)(8)(C) ............................................................................................................ 4 

52 U.S.C. § 30109(a)(12)................................................................................................................ 2 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

Rules and Regulations 

11 C.F.R. § 2.4................................................................................................................................ 3 

11 C.F.R. § 111.16.......................................................................................................................... 3 

11 C.F.R. § 111.20.......................................................................................................................... 2 

11 C.F.R. § 111.21.......................................................................................................................... 2 

Fed. R. Civ. P. 26(b) ..................................................................................................................... 14 

Miscellaneous 

FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) ................................................................................ 4, 15, 16 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007)................................................... 2, 3 

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The Federal Election Commission (“FEC” or “Commission”) opposes plaintiff Citizens 

for Responsibility and Ethics in Washington’s (“CREW”) Motion to Compel defendant Federal 

Election Commission to Produce the Administrative Record and Respond to Requests for 

Production (“Motion” or “Mot.”). (Doc. No. 6). Plaintiff, an experienced litigant in 52 U.S.C. 

30109(a)(8) actions against the Commission, seeks to upend the well-established protocol for 

compiling a record on which to evaluate the Commission’s disposition of an enforcement matter. 

Plaintiff’s motion aims to subject the FEC to ordinary discovery through requests for production 

of documents, which are inappropriate in an administrative review case where the agency has 

provided the opposing party the relevant administrative record. Further, plaintiff pursues 

disclosure of all documents reflecting the nature and basis for the FEC Commissioners’ 

deliberations and voting on the underlying Matter Under Review (“MUR”). Any such 

documents are protected under the deliberative process privilege, attorney-client privilege, and 

work-product doctrine, and indeed, do not constitute part of the administrative record and are not 

discoverable. Because the Commission has supplied plaintiff with the full administrative record, 

and because plaintiff does not attempt to demonstrate extraordinary need for further discovery, 

the Court should deny the motion to compel. 

BACKGROUND 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES 

The FEC is an independent agency of the United States government with jurisdiction 

over the administration, interpretation, and civil enforcement of the Federal Election Campaign 

Act, 52 U.S.C. §§ 30101-46 (“FECA” or the “Act”). See generally 52 U.S.C. §§ 30106(b)(1), 

30107(a), 30109. Congress provided for the Commission to “prepare written rules for the

conduct of its activities,” 52 U.S.C. § 30106(e), “formulate policy” under FECA, see, e.g., 52 

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U.S.C. § 30106(b)(1), and make rules and issue advisory opinions, 52 U.S.C. §§ 30107(a)(7), 

(8); id. §§ 30108; 30111(a)(8); see also Buckley v. Valeo, 424 U.S. 1, 110-11 (1976) (per 

curiam). The Commission is also authorized to institute investigations of possible violations of 

FECA, 52 U.S.C. § 30109(a)(1)-(2), and to initiate civil enforcement actions in the United States 

district courts, id. §§ 30106(b)(1), 30107(a)(6), 30107(e), 30109(a)(6). 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the statute. 52 U.S.C. § 30109(a)(1). Absent waiver, proceedings on such 

complaints are covered by confidentiality protections, 52 U.S.C. § 30109(a)(12), 11 C.F.R. § 

111.21, until the Commission “terminates its proceedings,” 11 C.F.R. § 111.20. Upon receipt of 

an administrative complaint, the Commission’s Office of General Counsel (“OGC”) is required 

to notify anyone alleged to have committed such a violation, referred to as a respondent, and to 

provide such persons with an opportunity to demonstrate in writing that no action should be 

taken. Id. OGC then prepares a report to the Commission known as a General Counsel’s Report. 

The Report analyzes the allegations in the complaint, applies the relevant law to the facts 

alleged, and sets forth the OGC’s recommendations for Commission action. The first General 

Counsel’s Report in an enforcement MUR usually includes a recommendation that the 

Commission take actions regarding the alleged violations, including most commonly: (1) find 

reason to believe that a violation occurred and open an investigation; (2) find no reason to 

believe a violation occurred; (3) dismiss the matter as an exercise of prosecutorial discretion; or 

(4) dismiss the matter with a cautionary message to the respondent regarding its legal 

obligations. And FEC votes at this stage are frequently, although not always, on whether to take 

one or more of these courses of action. See Statement of Policy Regarding Commission Action 

in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007). 

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Generally, if one or more Commissioners objects to a first General Counsel’s Report after 

it has been circulated to the Commission, or if fewer than four Commissioners vote to approve or 

reject the report’s recommendations by the voting deadline, the Commission considers the 

enforcement matter at an Executive Session. See generally FEC, Commission Directive No. 52 

(Circulation Vote Proc.) (effective Dec. 1, 2016). Executive Sessions are meetings that are 

closed to the public during which Commissioners consider pending enforcement matters and 

other items that must be kept confidential. See 11 C.F.R. § 2.4. During such meetings, the 

Commissioners may, inter alia, discuss OGC’s recommendations and vote on potential actions 

like those described above, including whether there is “reason to believe” that a FECA violation 

has occurred. 52 U.S.C. § 30109(a)(2). 

If at least four members of the Commission vote to find “reason to believe” a FECA 

violation has occurred, the Commission must notify the respondent of the alleged violation and 

its factual basis, and the agency then ordinarily investigates the allegations. Id. On the other 

hand, if at least four Commissioners determine that there is “no reason to believe” a violation 

occurred and so it is not appropriate to proceed with an investigation, the file in the matter may 

be closed. Statement of Policy Regarding Commission Action in Matters at the Initial Stage in 

the Enforcement Process, 72 Fed. Reg. 12,545, 12,546. 

After an investigation, OGC may recommend that the Commission find that there is 

“probable cause” to believe FECA has been violated. 52 U.S.C. § 30109(a)(3). Respondents are 

entitled to file a responsive brief, id., and OGC prepares a report to the Commission with further 

recommendations, 11 C.F.R. § 111.16. If at least four members of the Commission vote to find 

probable cause to believe that a violation has occurred, the Commission must first attempt to 

resolve the matter by “informal methods of conference, conciliation, and persuasion, and to enter 

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into a conciliation agreement” with the respondents. 52 U.S.C. § 30109(a)(4)(A)(i). If informal 

methods of conciliation fail, the Commission may, “upon an affirmative vote of 4 of its 

members,” file a de novo civil enforcement suit in federal district court. Id. § 30109(a)(6)(A). 

After the termination of enforcement matters, the Commission places on the public record 

categories of documents integral to its decision-making process, including certifications of 

Commission votes. FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016). 

If the Commission dismisses an administrative enforcement matter, FECA provides that 

the administrative complainant may seek judicial review in this District pursuant to 52 U.S.C. 

§ 30109(a)(8)(A). Defense of such cases may only be approved through an affirmative vote of 

four members of the Commission. 52 U.S.C. §§ 30106(c), 30107(a)(6). FECA expressly limits 

the scope of available relief to a plaintiff challenging an FEC dismissal. If a court in a review 

action declares that a Commission dismissal is “contrary to law,” the court can order the 

Commission to conform to that declaration within 30 days. Id. § 30109(a)(8)(C). If the 

Commission fails to conform to the declaration within 30 days, the complainant may obtain a 

private right of action against the administrative respondent for the alleged violations. Id.; FEC 

v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 (1985). 

II. FACTUAL BACKGROUND 

A. Matter Under Review 7465, Freedom Vote, Inc. 

On August 8, 2018, CREW filed an administrative complaint with the FEC, designated 

MUR 7465, alleging Freedom Vote had violated FECA by failing to register and report as a 

political committee. Admin. Compl., MUR 7465, Freedom Vote, Inc. (Aug. 8. 2018), 

https://www.fec.gov/files/legal/murs/7465/7465_01.pdf. On July 25, 2019, the Commission 

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adopted by a vote of 4-0 the recommendation of the Office of General Counsel (“OGC”) finding 

reason to believe Freedom Vote violated the Act. Cert., MUR 7465, Freedom Vote, Inc., (July 

29,2019), https://www.fec.gov/files/legal/murs/7465/7465_16.pdf. The Office of General 

Counsel proceeded with an investigation of the allegations of plaintiff’s administrative complaint

and compiled a record of various materials, including formal responses of MUR respondents, 

business and financial documents and communications of Freedom Vote, deposition testimony, 

and other documents. 

Based on this record and relevant factual and legal analysis, the General Counsel’s Brief 

recommended the Commission find probable cause to believe Freedom Vote violated 52 U.S.C. 

§§ 30102, 30103, and 30104(a), (b), and (g)(2) by failing to organize, register, and report as a 

political committee. Gen. Counsel’s Br., MUR 7465, Freedom Vote, Inc., (Sept. 20, 2021), 

https://www.fec.gov/files/legal/murs/7465/7465_27.pdf. Freedom Vote submitted a written 

response to the General Counsel’s Brief on October 5, 2021, and the Commission held a 

Probable Cause Hearing on the matter on October 14, 2021. 

On November 9, 2021, the Commission considered a motion to find probable cause that 

Freedom Vote violated the relevant provisions of FECA, which failed by a 3-3 vote, having not 

garnered four necessary votes in the affirmative. Cert, MUR 7465, Freedom Vote, Inc., (Nov. 9, 

2021), https://www.fec.gov/files/legal/murs/7465/7465_33.pdf. Commissioners Broussard, 

Walther, and Weintraub voted affirmatively for the motion, while Commissioners Cooksey, 

Dickerson, and Trainor opposed. Id. That same day, the Commission held a vote on whether to 

dismiss the matter pursuant to the Commission’s prosecutorial discretion pursuant to Heckler v. 

Chaney. This motion similarly garnered a 3-3 vote and did not pass. Id. Commissioners 

Cooksey, Dickerson, and Trainor voted in the affirmative, while Commissioners Broussard, 

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Walther, and Weintraub opposed. Finally, the Commission voted 4-1 to close the file. Id. 

Commissioners Broussard, Cooksey, Dickerson, and Trainor voted affirmatively for closure; 

Commissioner Weintraub opposed and then-Commissioner Walther abstained. Id. The 

Commission sent appropriate letters to CREW, the administrative complainant, and respondents 

notifying those parties of the MUR’s disposition and file closure. 

B. The Current Lawsuit 

On January 6, 2022, Citizens for Responsibility and Ethics in Washington filed this 

action alleging the Commission’s dismissal of the administrative complaint in MUR 7465 was 

contrary to law. (Doc. No. 1). When the Commission considered whether to authorize defense 

of this case as required by statute, the vote for such authorization did not receive the required 

four affirmative votes and failed. Cert., CREW v. FEC, No. 22-35 (Feb. 15, 2022), 

https://www.fec.gov/resources/cms-content/documents/fec_cert_02-18-2022.pdf; 52 U.S.C. §§ 

30106(c), 30107(a)(6). The Clerk entered an Entry of Default on March 29, 2022. (Default, 

Mar. 29, 2022 (Doc. No. 5).) Shortly thereafter, CREW propounded on the FEC requests for 

production of documents (“RFPs”) on April 20, 2022, and filed a motion to compel the FEC to 

produce the administrative record and respond to the previously issued requests for production 

on June 8, 2022. (Mot. to Compel, Jun 8, 2022 (Doc. No. 6); (Doc. No. 6-1).) 

As indicated in the parties’ November 13, 2023, Consent Motion, and later in the 

November 9, 2023, Certification released on January 12, 2024, FEC counsel was authorized to 

appear for the limited purpose of producing the administrative record and agreed with CREW to 

do so by December 12. (Mot. to Set Schedule and Extend Time, Nov. 13, 2023 (Doc. No. 13).) 

The Commission compiled and certified the administrative record, filed the certified list of its 

contents, and commenced supplying plaintiff with the record materials on that date. Due to 

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issues transmitting produced materials with unexpectedly high file sizes, the Commission 

completed delivery of the administrative record materials to CREW as quickly as practicable on 

December 13, 2023. 

The parties conferred after CREW’s counsel reviewed the then-1,847-page administrative 

record. As reflected in the December 15th Joint Status Report, two issues remained despite the 

parties’ good-faith efforts to resolve CREW’s objections to the record. (Joint Status Rept. (Doc. 

No. 16).) Thus, CREW elected to continue to pursue the instant motion to compel only as to two 

sets of documents: 

• “Records the FEC received from Freedom Vote in the course of the FEC’s investigation 

of MUR 7465, bearing bates stamps starting at FV01207 and up to at least FV01561, 

• Documents, other than the certified votes and post-hoc explanations, reflecting the 

Commissioners’ discussion of and rationale for voting to find reason to believe in July 

2019, and its deadlocked votes on probable cause and prosecutorial discretion in 

November 2021, including any records of the meetings at which those votes were taken”

(Id.). CREW seeks this first set of documents as a continuation of its RFP Request 3 and seeks 

this second set of documents under its RFP Request 4. 

As to the MUR respondent production documents, FEC counsel pointed out to CREW 

that it could obtain such materials through a Freedom of Information Act request specifically for 

any additional records produced by Freedom Vote records that were not part of the 

administrative record because they had not been before the agency decisionmakers. CREW 

declined to agree to utilize this route to resolve the dispute in advance of the status report 

deadline but later filed such a request nevertheless. Additionally, the Commission indicated its 

position that any documents reflecting the Commissioners’ discussion of and rationale for the 

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three relevant votes are privileged and not subject to disclosure as part of the administrative 

record or through discovery. CREW insisting otherwise, the parties agreed on the briefing 

schedule this Court later approved in its December 19th Minute Order. 

In response to plaintiff’s FOIA request, the Commission supplied CREW with 397 pages 

of additional documents from MUR respondent Freedom Vote. That included 42 pages at the 

beginning of Freedom Vote’s production to the Commission, labeled FV00001 through 

FV00042, in addition to the pages CREW identified in the Joint Status Report, labeled FV01207 

through FV01561. The FEC received these records in response to written requests for 

production in the enforcement matter investigation. These documents were not included initially 

in the administrative record because they had not been made electronically available to agency 

decisionmakers, the Commissioners. Because that omission appears, however, to have been due 

to ministerial error and because agency staff relied on these documents, to narrow the area of 

dispute in this motion the FEC agreed to stipulate to their inclusion in the administrative record. 

(Stipulation and Joint Motion (Doc. Nos. 18-19).) The Commission and CREW entered into a 

stipulation to that effect, providing for the Bates-stamping of the records and filing of a revised 

certified list of the administrative record’s contents. (Id.) For these reasons, plaintiff CREW no 

longer pursues the first component of the instant motion to compel—additional pages of the 

MUR respondent’s production. The parties continue to dispute whether the FEC must provide 

CREW with documents reflecting Commissioners’ discussions of and rationale for votes on its 

reason to believe, probable cause, and prosecutorial discretion determinations.

1 

1 The Commission authorized the Office of General Counsel to oppose plaintiff’s instant motion 

to compel. Cert, CREW v. FEC, Civ. No. 22-35 (Nov. 9, 2023), 

https://www.fec.gov/resources/cms-content/documents/fec-certification-11-09-2023.pdf. On 

January 9, 2024, the Commission again considered general defense authorization in this case, 

which, by a 3-3 vote, it did not determine to authorize. Cert., CREW v. FEC, Civ. No. 22-35 

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ARGUMENT 

I. CREW’S DISCOVERY REQUESTS ARE INAPPROPRIATE WHERE THE 

COMMISSION HAS PROVIDED THE ADMINISTRATIVE RECORD 

A. Requests for Production are Unnecessary in Administrative Review Cases, as 

the Agency Must Already Provide the Full Administrative Record 

The APA provides that judicial review shall be based on the “whole record” before the 

agency. 5 U.S.C. § 706. The “whole record” signifies “the full administrative record” before the

agency at the time it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 

U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). 

Challenges to agency decisions, such as this one under 52 U.S.C. § 30109(a)(8), must be decided 

based only on the administrative record compiled by the agency. 5 U.S.C. § 706; see also SEC v. 

Chenery Corp., 332 U.S. 194, 196 (1947) (in an APA case, the court reviewing the agency action 

must judge the propriety of that action solely by the grounds invoked by that agency, considering 

consider only the materials before the agency when it made its decision). 

“[T]he focal point for judicial review should be the administrative record already in 

existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 

138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The complete administrative record 

“before the agency” includes all documents and materials “directly or indirectly” considered by 

agency decisionmakers. Pac. Shores Subdivision Cal. Water Dist. v. United States Army Corps 

of Eng'rs, 448 F.Supp.2d 1, 4 (D.D.C.2006); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 

739 (10th Cir. 1993) (citing Lloyd v. Illinois Regional Transp. Authority, 548 F.Supp. 575, 590 

(Jan. 10, 2024), https://www.fec.gov/resources/cms-content/documents/fec-certification-01-10-

2024.pdf; see also Statement of Commissioner Dara Lindenbaum Concerning the Defense 

Authorization in CREW v. FEC, Civ. No. 22-35 (CRC) (D.D.C.) (Jan. 11, 2024), 

https://www.fec.gov/resources/cms-content/documents/Statement-of-DL-in-CREW-v-FEC-1-11-

24-FINAL.pdf. 

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(N.D.Ill.1982); Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299, 317 (D.Del.1979)). 

“[C]ourts in this circuit have directed agencies to collect those materials ‘that were compiled by 

the agency that were before the agency at the time the decision was made.” Fund for Animals v. 

Williams, 391 F. Supp. 2d 191, 196 (D.D.C. 2005) (quoting James Madison Ltd. v. Ludwig, 82 

F.3d 1085, 1095 (D.C. Cir. 1996)); Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 

2013) (it is “black-letter administrative law” that a reviewing court must have before it “neither 

more nor less information than did the agency when it made its decision”); see also Am. First 

Legal Found. v. Cardona, 630 F. Supp. 3d 170, 178 (D.D.C. 2022); Chiayu Chang v. U.S. Cit. & 

Imm. Servs., 254 F. Supp. 3d 160, 161 (D.D.C. 2017). 

Accordingly, “[i]n a suit under the APA, discovery rights are significantly limited.”

Sharkey v. Quarantillo, 541 F.3d 75, 92 n.15 (2d Cir. 2008). This is because the administrative 

record alone supplies the materials necessary for the challengers to make their case and the 

reviewing court to perform its task, “hav[ing] before [them] neither more nor less information 

than did the agency when it made its decision.” Walter O. Boswell Mem’l Hosp. v. Heckler, 749 

F.2d 788, 792 (D.C. Cir. 1984). Permitting plaintiff discovery beyond the administrative record 

is unnecessary and contrary to well-established administrative law principles. 

It is the province of the agency to compile and submit the administrative record for 

review by the court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). Once 

an agency presents a certified copy of the complete administrative record to the court, the court 

presumes that the record is properly designated. Pac. Shores, 448 F. Supp. 2d at 5 (D.D.C. 

2006). Common sense dictates that the agency determines what constitutes the “whole”

administrative record because “[i]t is the agency that did the ‘considering,’ and that therefore is 

in a position to indicate initially which of the materials were ‘before’ it—namely, were ‘directly 

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Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 18 of 29 

or indirectly considered.’” Id. (citing Fund for Animals v. Williams, 245 F. Supp. 2d 49, 57 

(D.D.C. 2003). Thus, “deference is due to the agency’s judgment as to what constitutes the 

whole administrative record.” Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 

305, 309 (S.D.N.Y. 2012). 

“Supplementation of the administrative record is the exception, not the rule.” Pac. 

Shores, 448 F. Supp. 2d at 5 (quoting Motor & Equip. Mfrs. Assn. Inc. v. EPA, 627 F.2d 1095, 

1105 (D.C.Cir.1979)). “Discovery or supplementation of the administrative record is therefore

not permitted ‘unless [a party] can demonstrate unusual circumstances justifying a departure

from this general rule.’” Am. First Legal Found., 630 F. Supp. 3d at 178 (quoting City of Dania 

Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)). This exception is limited to where the 

administrative record itself is so deficient as to preclude effective review. Hill Dermaceuticals, 

709 F.3d at 47. But even where further explanation for agency action may be needed, “the 

preferred procedure is to remand to the agency for its amplification,” not to permit discovery by

the plaintiff. Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982). 

B. The FEC Supplied Plaintiff with All Materials the Commission Considered 

by Providing the Administrative Record 

The Commission produced the administrative record—consisting of 1,847 pages of 

materials and records—by December 13, 2023. Plaintiff’s RFP Requests 1-3 are coextensive 

with the Commission’s requirements for producing the administrative record. To resolve 

CREW’s continuing objection on Freedom Vote documents at issue in the instant motion, the 

Commission released an additional 397-page supplement to the administrative record on January 

16, 2024. Having found that the revised administrative record was sufficiently responsive to its 

request for all documents the FEC received in the course of its investigation in the MUR, CREW 

agreed with the Commission that it no longer seeks any additional records received during the 

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MUR investigation, as previously detailed in the December 15th Status Report. (See Stipulation 

and Joint Motion (Doc. Nos. 18-19).) 

Plaintiff has not identified any further objections to the administrative record, apart from 

Commissioners’ discussion of and rationale for relevant votes under RFP Request 4 (addressed 

in Part II, infra). The administrative record as provided included all documents in the FEC’s file, 

including all publicly available records and additional nonpublic records considered by the 

Commission in MUR 7465, and all existing communications regarding MUR 7465 between the 

FEC and other persons or entities, including the deposition transcript of James S. Nathanson. As 

a result, any nonprivileged documents, records, or materials responsive to its remaining RFPs 

have already been supplied. Plaintiff, having the administrative record in its possession, has not 

argued that this Court should compel further responses to its RFP Requests 1-3. Accordingly, as 

to the first issue raised in the Joint Status Report, documents produced to the Commission by 

Freedom Vote, CREW has withdrawn its motion to compel and the Court need not address it. 

In Pac. Shores, this Court found that the “sheer volume and complexity” of the 

administrative record, consisting of 1,593 pages of materials consisting of reports, 

correspondence, studies, and analyses, “suggest[ed] it [was] complete.” 448 F. Supp. at 7. The 

FEC here has provided CREW with 2,244 pages in this administrative record of various records, 

reports, analyses, correspondence, etc. While its volume is not dispositive, it certainly indicates 

the Commission has provided a record that does not reflect “such [a] failure to explain 

administrative action as to frustrate effective judicial review.” Camp, 411 U.S. at 142-43; see 

also Hill Dermaceuticals, 709 F.3d at 47. “The [agency] is not obligated to include every 

potentially relevant document existing within its agency. Only those documents that were 

directly or indirectly considered by the [agency’s] decisionmaker(s) should be included in the 

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administrative record.” Pac Shores, 448 F. Supp. at 7 (citing Fund for Animals v. Williams, 245 

F. Supp 2d. 49, 57 (D.D.C. 2003)). That is what the FEC has done here; further discovery is 

unwarranted. 

II. MATERIALS CONCERNING THE COMMISSION’S DETERMINATION ARE

PRIVILEGED AND NOT PART OF THE ADMINISTRATIVE RECORD 

Plaintiff CREW specifically requests at this juncture “[d]ocuments, other than the 

certified votes and post-hoc explanations, reflecting the Commissioners’ discussion of and 

rationale for voting to find reason to believe in July 2019, and its deadlocked votes on probable 

cause and prosecutorial discretion in November 2021, including any records of the meetings at 

which those votes were taken.” (Joint Status Rept. at 2 (Doc. No. 16)). The categories of 

documents responsive to this request include executive-session recordings, draft statements of 

reasons, and communications regarding planned votes and draft statements of reasons. As 

explained further below, however, the administrative record entails only all nonprivileged 

documents which the agency considered in taking the challenged action. 

A. The Deliberative Process Privilege Prevents Disclosure of the Documents 

CREW Seeks 

Any documents meeting plaintiff’s description are protected by the deliberative process 

privilege and are thus not subject to production as part of the administrative record or otherwise. 

“A complete administrative record . . . does not include privileged materials, such as documents 

that fall within the deliberative process privilege, attorney-client privilege, and work product 

privilege.” Tafas v. Dudas, 530 F. Supp. 2d 786, 794 (E.D. Va. 2008). Specifically, the 

deliberative process privilege shields from disclosure recommendations and deliberations that 

comprise part of a process by which governmental decisions and policies are formulated. United 

States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 266 (2021). The D.C. Circuit has 

held that deliberative documents “are not a part of the administrative record to begin with,” are

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not discoverable, and “do not need to be logged as withheld from the administrative record.”

Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019). “On arbitrary and capricious review . . 

. ‘agency deliberations not part of the record are deemed immaterial.’” Id. (citing In re 

Subpoena Duces Tecum, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998)). And because predecisional 

documents are “immaterial,” they are not “discoverable” under Fed. R. Civ. P. 26(b). Id. 

The deliberative process privilege exists to promotes free communications within an 

agency, providing decisionmakers with uninhibited recommendations, and to “protect against

premature disclosure of proposed policies before they have been finally formulated or adopted”

by the agency. Judicial Watch v. Dep’t of Justice, 20 F.4th 49, 54 (D.C. Cir. 2021) (quoting 

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege 

“protect[s] against confusing the issues and misleading the public by dissemination of documents 

suggesting reasons and rationales for a course of action which were not in fact the ultimate 

reasons for the agency’s action.” Judicial Watch, 20 F.4th at 54. As the Supreme Court has 

articulated, the “deliberative process privilege rests on the obvious realization that officials will 

not communicate candidly among themselves if each remark is a potential item of discovery and 

front-page news, and its object is to enhance the quality of agency decisions, by protecting open 

and frank discussion among those who make them within the Government.” Dep’t of Interior v. 

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (internal citations and quotations 

omitted). To be protected by the deliberative process privilege, a document must be both 

“predecisional” and “deliberative.” Khatchadourian v. Defense Intel. Agency, 597 F. Supp. 3d. 

96, 115 (D.D.C. 2022). Withholding “communications within and among the FEC” including 

“documents . . . reflecting Commissioner’s discussion of and rationale for vot[es]” that plaintiff 

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Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 22 of 29 

seeks was permissible based on this privilege. (Plf. CREW’s First Request for Production of

Documents at 7 (Doc. No. 6-1)); (Joint Status Rept. at 2 (Doc. No. 16)). 

1. Commission Pre-Vote Discussions Are Not Settled, Final Decisions 

A record is predecisional if it was “generated before the adoption of an agency policy[.]”

Khatchadourian, 597 F. Supp. 3d. at 115. In this regard, a “record generated after one decision 

can be the basis of another, future decision.” Id. “Whether a record is predecisional depends on 

a record’s context relative to particular agency decisions or series of decisions.” Id. (citing 

Conservation Force v. Jewell, 66 F. Supp. 3d 46, 61 (D.D.C. 2014)). “A document is not final 

solely because nothing else follows it. . . . What matters, then, is not whether a document is last 

in line, but whether it communicates a policy on which the agency has settled.” U.S. Fish & 

Wildlife Service, 592 U.S. at 268. A “document that leaves agency decisionmakers ‘free to 

change their minds’ does not reflect the agency’s final decision.” Id. (quoting Renegotiation Bd. 

v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 189-90 & n.26 (1975)). 

Here, documents reflecting Commissioners’ discussions and rationale on reason to 

believe, probable cause, and prosecutorial discretion determinations at executive sessions or 

meetings do not reflect final agency decisions. Any such discussions do not “communicate a

policy on which the agency has settled,” they are merely discussions that help the Commission 

settle on and later communicate an action. U.S. Fish & Wildlife Service, 592 U.S. at 268. 

Accordingly, because these discussions themselves do not convey a policy, Commissioners are

“free to change their minds.” Id. at 269. The Commission does not treat documents reflecting its 

discussions and rationale for votes that have not yet occurred as its “final view on the matter.” Id. 

at 268. Indeed, the Commission makes subsequent vote certifications—which the Commission 

releases as a matter of course once a MUR is closed or where the Commission affirmatively 

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waives privilege prior to a MUR’s conclusion—publicly available under the agency’s 2016 

disclosure policy. See Disclosure of Certain Documents in Enforcement and Other Matters, 81 

Fed. Reg. at 50703. Commissioners also release statements of reasons—formal articulations of

their decisions and underlying reasoning—for their final positions. And apart from being 

accessible on the FEC’s website, the three relevant vote certifications and Commissioners’ 

statements of reasons were produced in the administrative record here. (See Def. FEC’s 

Certified List (Doc. No. 15-1)).

2. Commission Pre-Vote Discussions Reflect Give-and-Take of the FEC 

Enforcement’s Consultative Process

A record is deliberative if it reflects “the give-and-take of the consultative process.”

Coastal States, 617 F.2d at 866; Khatchadourian, 597 F. Supp. 3d. at 115. This standard

encompasses “recommendations” and other documents that would “inaccurately reflect or

prematurely disclose” the agency’s views. Id. To show that a record meets this requirement, an 

agency accordingly must establish: (1) the deliberative process was involved; (2) the role the

document played in the course of the deliberative process; and (3) the nature of the decisionmaking authority vested in the office or person issuing the records, along with where the parties 

to the documents sit in the chain of command. Id. at 11. The application of the privilege

depends upon the role the document plays in the administrative process. Judicial Watch, 20 

F.4th at 55. Documents are deliberative if they “reflect [the] agency’s group thinking in the 

process of working out its policy and determining what its law shall be.” NLRB v. Sears, 

Roebuck & Co., 421 U.S. 132, 153 (1975).

Any documents reflecting the Commission’s discussions of and rationale for the three

relevant MUR votes reflect the ongoing “give-and-take” and “group thinking” of the FEC’s 

enforcement process built on consultation among the Commissioners and between the 

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Commissioners and FEC staff. Sears, Roebuck & Co., 421 U.S. at 150; Coastal States, 617 F.2d 

at 866; Khatchadourian, 597 F. Supp. 3d. at 115. The very purpose of the Commission’s 

executive sessions and other predecisional discussion is to deliberate. And the documents 

plaintiff seeks directly reflect that deliberative process by those ultimately charged with final 

decision-making authority. While a MUR file is open and under consideration, FEC 

Commissioners often develop and alter their positions as to the allegations at issue. This 

deliberative process can encompass FEC staff recommendations, discussion among 

Commissioners, initial votes, further instructions to staff that may lead to the development of 

new argument or evidence, additional discussion and deliberations, and later rounds of votes. 

During this process, Commissioners remain free to reconsider previous determinations and to 

“change their minds.” U.S. Fish & Wildlife Service, 592 U.S. at 268. It is not until 

Commissioners, as ultimate decisionmakers, memorialize their views into a final vote that it

becomes concrete, final agency action capable of meaningful review.

This is for good reason. “[E]xcluding deliberative materials from the administrative

record[] has two distinct purposes. First, . . . it reflects that it is the agency’s articulated 

justification for its decision that is at issue; the private motives of agency officials are immaterial

. . . . Second, [it] advances the functional goal of encouraging the free flow of ideas within 

agencies, with agency employees not inhibited by the prospect of judicial review of their notes 

and internal communications.” Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 305, 

312 (S.D.N.Y. 2012) (citing In re Subpoena Duces Tecum, 156 F.3d at 1279; San Luis Obispo 

Mothers for Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26, 44–45 (D.C.Cir.1986)). The

position CREW urges here could undermine the agency’s deliberative process. Revealing pieceby-piece agency deliberations would risk public confusion resulting from the release of non-final 

17 
 

 

Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 25 of 29 

agency determinations that the Commission never articulated as justification or reasoning for its 

ultimate action. Furthermore, disclosure of such discussion risks stifling the collaborative nature

of Commission decision-making in its enforcement process, hindering the ability of 

Commissioners to develop their views and attempt to reach consensus. Disclosure of 

preliminary “discussion of and rationale for” relevant votes, as plaintiff terms it, runs the risk of 

locking in decisions prior to deliberating, limiting the Commission’s opportunity to engage in

give and take necessary for the effective operation of government.

Accordingly, the materials CREW seeks meet the standards for invoking deliberative

process privilege that this Court articulated in Khatchadourian. 597 F. Supp. 3d. 96. The 

Commission engaged in a detailed, lengthy process to evaluate the allegations raised in MUR 

7465. That process required extensive deliberation between Commissioners to finalize their 

positions on reason to believe, probable cause, and prosecutorial discretion determinations. FEC 

Commissioners finalized their positions, articulated them in votes that were certified and made 

public, and explained their determinations in statements of reasons. Compelling disclosure of 

preliminary discussions or communications is unnecessary, and moreover, would be harmful to 

the consultative decision-making process the agency employs in enforcement matters. As such, 

this Court should deny the motion to compel as to CREW’s second objection raised in the 

December 15th Status Report and RFP Request 4. 

B. The Attorney-Client Privilege and Work Product Doctrine Prevent 

Disclosure of the Documents CREW Seeks 

Plaintiff CREW expressly seeks documents reflecting only Commissioners’ discussion of

and rationale for relevant MUR votes. However, several topics that would be addressed in these 

documents invade the realm of protected information in the attorney-client relationship between 

FEC Commissioners and counsel. Thus, documents meeting plaintiff’s description are also 

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Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 26 of 29 

protected by the attorney-client privilege and work product doctrine and are thus not subject to 

production as part of the administrative record or otherwise. 

To establish that the attorney-client privilege applies to documents, an agency must show 

that (1) the information in the documents was communicated to or by an attorney as part of a 

professional relationship, (2) the information is confidential, and (3) the communication is based 

on confidential information provided by the client. See Cabezas v. FBI, Civ. No. 19-0145, 2022 

WL 898789, at *8 (D.D.C. Mar. 28, 2022) (citing Mead Data Cent., Inc. v. U.S. Dept. of Air 

Force, 566 F.2d 242, 253–54 (D.C. Cir. 1977); Pub. Citizen, Inc. v. U.S. Dep’t of Educ., 388 F. 

Supp. 3d 29, 40 (D.D.C. 2019)). The privilege applies to testimony as well as documents. See 

Sea Tow Int’l, Inc. v. Pontin, 246 F.R.D. 421, 427 (E.D.N.Y. 2007). 

The attorney work-product doctrine protects the mental impressions of attorneys and 

affords them “a certain degree of privacy, free from unnecessary intrusion by opposing parties 

and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). “Opinion work product, 

such as that would disclose the mental impressions, conclusions, opinions, or legal theories of an 

attorney, may be reflected in interviews, statements, memoranda, correspondence, and countless 

other tangible and intangible ways.” See Disability Rts. Council of Greater Wash. v. Wash. 

Metro. Transit Auth., 242 F.R.D. 139, 143 (D.D.C. 2007) (citing Hickman, 329 U.S. at 511; Tax 

Analysts v. Internal Revenue Serv., 117 F.3d 607, 619 (D.C.Cir.1997)). “[W]hile the work 

product privilege as set out in the Federal Rules of Civil Procedure speaks of a document, it 

unquestionably also prohibits the exploration of the lawyer’s thoughts, opinions and mental 

impressions even if they have not taken tactile form.” Chang v. United States, Civ. No. 02-2010, 

2012 WL 28257, at *5 (D.D.C. Jan. 5, 2012) (citing Alexander v. FBI, 192 F.R.D. 12, 17 (D.D.C. 

2000); Neese v. Pittman, 202 F.R.D. 344, 356 (D.D.C. 2001)). 

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Here, the principal material responsive to plaintiff’s request for “Commissioners’ 

discussion of and rationale for” reason to believe, probable cause, and prosecutorial discretion 

votes are executive-session recordings. Discussions at executive session meetings consist of 

communications between FEC Commissioners and the FEC’s Office of General Counsel 

(“OGC”). These are not simply intra-Commissioner deliberations but also discussions with 

agency counsel occurring in anticipation of litigation. Much of the discussion Commissioners 

engage in at executive sessions may be directed to both other Commissioners and counsel 

simultaneously. Thus, attorney-client communications are so intertwined with Commissioner 

deliberations that it would not be possible to separate discussions Commissioners have with 

counsel. 

In their evaluation of MURs at several stages of the process, FEC Commissioners 

regularly rely on counsel’s oral and written communications. Commissioners also have 

extensive discussions about that advice with OGC and each other at executive sessions where 

MURs are discussed. Commissioners rely on that advice in their voting, their deliberations, and 

their statements of reasons. And here, Plaintiff specifically seeks documents reflecting the 

reasons for Commissioners’ voting and plans for future action. The topics plaintiff seeks plainly 

cover the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Disability 

Rts. Council, 242 F.R.D. at 143. And compelling production of any such discussions would 

further undermine the Commission’s deliberative process and its ability to engage in detailed 

consultation with its attorneys. 

Accordingly, plaintiff’s request for documents in the Joint Status Report in dispute in this 

motion not only targets FEC Commissioner deliberations preceding final agency action but also 

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Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 28 of 29 

protected communications between FEC Commissioners and the Commission’s counsel. The 

motion to compel should be denied on this basis as well. 

CONCLUSION 

The FEC provided CREW with the complete administrative record for MUR 7465, 

rendering ordinary requests for production of documents redundant and unnecessary. It likewise 

properly excluded from the record documents reflecting Commissioners’ discussion of and 

rationale for key votes in the enforcement matter that are protected by privilege. For the 

foregoing reasons, the Court should deny CREW’s Motion to Compel. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

/s/ Blake L. Weiman

Blake L. Weiman (D.C. Bar No. 1725165)

Attorney

bweiman@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

1050 First Street, NE

Washington, DC 20463

January 22, 2024 (202) 694-1650

21 
Case 1:22-cv-00035-CRC Document 20 Filed 01/22/24 Page 29 of 29 

CERTIFICATE OF SERVICE

I hereby certify that on January 22, 2024, I served on the foregoing pursuant to Fed. R. 

Civ. P. 5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF

system.

/s/ Blake L. Weiman

Blake L. Weiman (D.C. Bar No. 1725165)

Attorney

bweiman@fec.gov

22