Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 1 of 43 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF COLUMBIA 

FREE SPEECH FOR PEOPLE, 

CAMPAIGN FOR ACCOUNTABILITY, 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

Civil Action No. 22-cv-666-CKK 

ORAL HEARING 

REQUESTED 

MEMORANDUM IN OPPOSITION TO DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS

FREE SPEECH FOR PEOPLE 

Courtney Hostetler (admitted pro hac vice) 

Ronald A. Fein (D.D.C. Bar #MA0012) 

John C. Bonifaz (admitted pro hac vice) 

Ben T. Clements (admitted pro hac vice) 

1320 Centre St. #405 

Newton, MA 02459 

Tel.: (617) 244-0234 

chostetler@freespeechforpeople.org 

rfein@freespeechforpeople.org 

jbonifaz@freespeechforpeople.org 

bclements@freespeechforpeople.org 

Attorneys for Plaintiffs 

August 25, 2022 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 2 of 43 

TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................... 1 

STATEMENT OF FACTS ............................................................................................. 4 

I. Statutory and Regulatory Background ........................................................... 4 

A. Political spending by foreign nationals................................................................ 4 

B. Disclosure requirements ....................................................................................... 5 

II. Factual Background.............................................................................................. 6 

A. Russian interference in the 2016 U.S. elections ................................................. 7 

1. Russian Federation hacked opposition email accounts and ran deceptive 

social media accounts to benefit the Trump Campaign.......................................... 7 

2. Trump Campaign solicited in-kind and foreign contributions from the 

Russian Federation and WikiLeaks ......................................................................... 9 

3. Trump Campaign attempted to obstruct investigations into Russian 

interference in 2016 election.................................................................................... 11 

III. Procedural History.............................................................................................. 11 

A. The administrative complaint ............................................................................ 11 

B. FEC response to the administrative complaint ................................................ 13 

LEGAL STANDARDS.................................................................................................. 18 

ARGUMENT .................................................................................................................. 20 

I. The FEC’s Dismissal is Reviewable Because the Full Commission 

Specifically Refused to Dismiss the Trump Campaign As a Matter of 

Prosecutorial Discretion ........................................................................................... 20 

A. The FEC expressly considered and rejected a motion to exercise its 

prosecutorial discretion to dismiss the Trump Campaign ...................................... 20 

B. The reasoning of the three Commissioners who voted in favor of exercising 

prosecutorial discretion should not be accorded deference by this Court and does 

not render the case judicially unreviewable. ............................................................ 24 

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C. The present case is distinguishable from New Models and Commission on 

Hope because in those cases, the Commission did not expressly reject 

prosecutorial discretion as grounds for dismissal .................................................... 27 

II. Arguments Preserved for Further Review ................................................... 30 

A. A non-majority bloc cannot assert authority to exercise prosecutorial 

discretion...................................................................................................................... 30 

B. The Commission’s dismissal of the claims against the Russian Federation

were contrary to law.................................................................................................... 32 

CONCLUSION .............................................................................................................. 35 

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TABLE OF AUTHORITIES 

Cases 

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................... 18 

Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017).................................................. 7 

Bernal v. Fainter, 467 U.S. 216, 220 (1984) ................................................................. 34 

Bluewater Network v. Envtl. Prot. Agency, 370 F.3d 1 (D.C. Cir. 2004) .................... 19 

Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 565 U.S. 

1104 (2012)............................................................................................................... 5, 34 

Buckley v. Valeo, 424 U.S. 1, 66 (1976) ......................................................................... 35 

Citizens for Resp. & Ethics in Washington v. Fed. Election Comm’n (“New Models”), 

D.C. Cir. No. 19-5161 (D.C. Cir.) ECF No. 1903510 (petition for en banc review 

filed June 23, 2021) ............................................................................................... 30, 32 

* Citizens for Resp. & Ethics in Washington v. Fed. Election Comm’n, 993 F.3d 880, 

883 (D.C. Cir. 2021) (“New Models”) ..................................................................passim 

* Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm’n, 892 

F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”)...........................................passim 

Common Cause v. Federal Election Comm’n, 842 F.2d 436 (D.C. Cir. 1988) ...... 21, 24 

Democratic Congressional Campaign Committee v. Fed. Election Comm’n, 831 F.2d 

1131 (D.C. Cir. 1987)....................................................................................... 19, 24, 25 

Fed. Election Comm’n v. Dem. Senatorial Campaign Comm., 454 U.S. 27 (1981)... 19 

Fed. Election Comm’n v. John A. Dramesi for Congress Comm., 640 F. Supp. 985 

(D.N.J. 1986).................................................................................................................. 4 

Fed. Election Comm’n v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ...................... 4 

Fed. Election Comm’n v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. 

Cir. 1992)......................................................................................................3, 24, 25, 26 

* Federal Election Comm’n v. Akins, 524 U.S. 11 (1998) ..........................22, 29, 32, 35 

Free Speech For People v. Fed. Election Comm’n, No. 21-cv-3206 (D.D.C filed Dec. 8, 

2021) ............................................................................................................................. 17 

Harris v. D.C. Water & Sewer Auth., 791 F.3d 65 (D.C. Cir. 2015)............................ 18 

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Heckler v. Chaney, 470 U.S. 821 (1985) ......................................................16, 22, 30, 31 

Orloski v. Fed. Election Comm’n, 795 F.2d 156 (D.C. Cir. 1986).......................... 19, 33 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011).......................................... 18, 30 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ............................. 18 

United States v. Mead Corp., 533 U.S. 218 (2001)....................................................... 27 

Statutes 

22 U.S.C. § 611(b)............................................................................................................ 12 

26 U.S.C. § 95 .................................................................................................................. 20 

26 U.S.C.§ 96 ................................................................................................................... 20 

5 U.S.C. § 706(2)(A)......................................................................................................... 33 

52 U.S.C. § 30101(9)(A) .................................................................................................... 4 

52 U.S.C. § 30106(a) ....................................................................................................... 20 

52 U.S.C. § 30106(c)........................................................................................3, 20, 22, 31 

52 U.S.C. § 30107(a) ................................................................................................. 20, 35 

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

52 U.S.C. § 30109(a)(1)................................................................................................... 11 

52 U.S.C. § 30109(a)(2)............................................................................................. 14, 32 

52 U.S.C. § 30109(a)(3)................................................................................................... 15 

52 U.S.C. § 30109(a)(4)................................................................................................... 15 

52 U.S.C. § 30109(a)(5)(C).............................................................................................. 33 

52 U.S.C. § 30109(a)(6)(A).............................................................................................. 33 

52 U.S.C. § 30109(a)(8)(A)........................................................................................ 18, 19 

52 U.S.C. § 30109(a)(8)(C).................................................................................. 18, 33, 34 

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52 U.S.C. § 30121(a)(1)............................................................................................passim 

52 U.S.C. § 30121(a)(1)(A)........................................................................................ 12, 14 

52 U.S.C. § 30121(a)(2)

Federal Election Campaign Act, 52 U.S.C. §§ 30101 et seq.................................passim 

......................................................................................... 4, 12, 15 

52 U.S.C. § 30121(b)(1)................................................................................................... 12 

Bipartisan Campaign Reform Act of 2002, P.L. No. 107-155, 116 Stat. 81................. 4 

Rules and Regulations 

11 C.F.R. § 104.3 ......................................................................................................... 6, 13 

11 C.F.R. § 104.8 ............................................................................................................... 6 

11 C.F.R. § 104.9 ............................................................................................................... 6 

11 C.F.R. § 109.10(b).......................................................................................5, 12, 13, 14 

11 C.F.R. § 109.10(c) ............................................................................................. 5, 12, 13 

11 C.F.R. § 109.20 ............................................................................................................. 5 

11 C.F.R. § 109.20(b)................................................................................................... 6, 12 

11 C.F.R. § 109.21(b)(1) .................................................................................................... 5 

11 C.F.R. § 109.21(b)(2) .................................................................................................... 5 

11 C.F.R. § 109.21(b)(3) .................................................................................................. 13 

11 C.F.R. § 109.22 ........................................................................................................... 12 

11 C.F.R. § 110.20(b)....................................................................................................... 14 

11 C.F.R. § 110.20(f) ........................................................................................... 12, 13, 14 

11 C.F.R. § 110.20(g)............................................................................................. 4, 12, 15 

11 C.F.R. § 111.18(d)....................................................................................................... 15 

11 C.F.R. § 111.4 ............................................................................................................. 11 

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11 C.F.R. § 111.9 ....................................................................................................... 15, 21 

Fed. R. Civ. P. 12(b)(1).................................................................................................... 18 

Fed. R. Civ. P. 12(b)(6).................................................................................................... 18 

Other Authorities 

Fed. Election Comm’n, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process 12 (2012), available at https://www.fec.gov/resources/cmscontent/documents/respondent_guide.pdf................................................................. 22 

Report of the Select Committee on Intelligence on Russian Active Measures 

Campaigns and Interference in the 2016 U.S. Election, S. Rep. No. 116-290, v. 1-5 

(2019), available at https://www.intelligence.senate.gov/publications/report-selectcommittee-intelligence-united-states-senate-russian-active-measures........... 6, 8, 9 

Robert S. Mueller III, U.S. Dep’t of Justice, Report on the Investigation Into Russian 

Interference In The 2016 Presidential Election, v. 1-2 (2019), available at 

https://www.justice.gov/storage/report_volume1.pdf and 

https://www.justice.gov/storage/report_volume2.pdf ............................................. 6, 8 

Administrative Proceedings 

In the Matter of Commission on Hope, Growth and Opportunity, Amended 

Certification, MURs 6391 and 6471 (Sept. 25, 2014), available at 

https://www.fec.gov/files/legal/murs/6391/15044380114.pdf................................... 28 

In the Matter of Commission on Hope, Growth and Opportunity, Certification, 

MURs 6391 and 6471 (Oct. 2, 2015), available at 

https://www.fec.gov/files/legal/murs/6391/15044380175.pdf................................... 28 

In the Matter of New Models, Certification, MUR 6872 (Nov. 16, 2017), available at 

https://www.fec.gov/files/legal/murs/6872/17044432619.pdf................................... 28 

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INTRODUCTION 

In 2016, Plaintiffs Free Speech For People (“FSFP”) and Campaign for

Accountability (“CfA”) filed an administrative complaint before the Defendant

Federal Election Commission (“FEC” or “Commission”), asking the FEC to conduct

an immediate investigation into whether the Russian Federation’s spending of 

resources to influence the 2016 presidential election in favor of Donald Trump and 

the solicitation and coordination of that activity by the Trump Campaign violated 

the Federal Election Campaign Act, 52 U.S.C. §§ 30101 et seq. (“FECA”).1 After five 

years of delay, and contrary to the recommendations of its own Office of General 

Counsel that it find reason to believe that both the Trump Campaign and the 

Russian Federation violated FECA, the FEC dismissed the administrative 

complaint. Plaintiffs then filed this action seeking a declaratory judgment that the 

FEC’s dismissal of the administrative complaint was “contrary to law.”

The FEC now seeks to dismiss the Complaint, not on the merits of its 

decision, but on the purported ground that its dismissal of the administrative 

complaint was an exercise of prosecutorial discretion and, as such, not subject to 

judicial review. The FEC’s motion should be denied because it is (1) contrary to the 

record below, which demonstrates that the FEC considered but explicitly voted 

against dismissing the administrative complaint on the basis of prosecutorial 

discretion by a 3-3 vote, (2) contrary to the statutory requirement that the FEC can 

1 An investigation—well within the FEC’s mandate—likely would have uncovered 

critical information about these unlawful foreign expenditures: who paid, how 

much, to whom, and when. 

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only take action by a majority vote, and (3) contrary to controlling precedent of the 

D.C. Circuit. 

In reviewing Plaintiffs’ administrative complaint, the FEC’s Office of General 

Counsel (“OGC”) concluded that there was reason to believe that the Trump 

Campaign and the Russian Federation violated FECA’s strict prohibition against 

foreign contributions or solicitation thereof and violated FECA’s disclosure 

requirements. Administrative Record (“AR”) 99-100. The OGC recommended 

proceeding on the administrative complaint with respect to the Trump Campaign, 

and, with respect to the Russian Federation, entering a finding of reason to believe 

but proceeding no further.2 AR 101. Going against advice of its own OGC, the FEC 

failed to take any investigatory or enforcement action. The FEC took multiple votes 

to determine both how and why it would—or rather, would not—proceed. First, the 

Commission voted on a motion to find reason to believe that the Russian Federation 

and the Trump Campaign violated FECA. The “reason to believe” motion failed by a 

3-3 deadlocked vote. AR 269-70. The Commission then considered two additional 

motions: whether to dismiss the Russian Federation pursuant to the Commission’s

prosecutorial discretion, and whether to dismiss the Trump Campaign pursuant to 

prosecutorial discretion. The first vote garnered majority support, but the second 

motion failed by a deadlocked 3-3 vote. AR 270-71. 

2 The OGC also concluded that there was reason to believe that several other 

respondents in the consolidated administrative complaints, including Trump 

himself, violated FECA’s strict prohibition against soliciting or accepting foreign 

contributions. AR 99-100. Because these respondents were not named in plaintiffs’

administrative complaint, we do not summarize these findings here. 

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Despite its explicit failure to vote to dismiss the administrative complaint 

with respect to the Trump Campaign, the FEC now seeks to rewrite the procedural 

history, insisting that it did, in fact, exercise prosecutorial discretion with regard to 

both respondents named in Plaintiffs’ administrative complaint. Aside from defying 

the record, the FEC’s position is directly contrary to long-standing controlling 

precedent in the Court of the Appeals for the D.C. Circuit, establishing that, where 

the Commission declines to take an action because of a deadlocked vote, the 

Commissioners who voted against the action are treated as the controlling group of 

Commissioners for purpose of judicial review. See Citizens for Responsibility and 

Ethics in Washington v. Fed. Election Comm’n, 892 F.3d 434, 437 (D.C. Cir. 2018) 

[hereinafter “Commission on Hope”]; Fed. Election Comm’n v. Nat’l Republican

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) [hereinafter “NRSC”]. It is 

also contrary to the controlling statute: the Commission lacks authority to exercise 

its duties and powers except by majority vote. 52 U.S.C. § 30106(c). 

Because the Commission expressly considered and rejected a motion to assert 

prosecutorial discretion to dismiss the claims against the Trump Campaign and 

failed to investigate those claims solely because of a deadlocked reason-to-believe 

vote, it cannot now defend its failure to act by claiming that the failure rested on 

prosecutorial discretion that it voted not to invoke. 

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STATEMENT OF FACTS 

I. Statutory and Regulatory Background 

A. Political spending by foreign nationals 

Under the Federal Election Campaign Act (FECA), as amended by the 

Bipartisan Campaign Reform Act of 2002, P.L. No. 107-155, § 303, 116 Stat. 81, 96, 

it is unlawful for “a foreign national, directly or indirectly, to make a contribution or

donation of money or other thing of value . . . in connection with a Federal, State, or 

local election,” or to make “an expenditure, independent expenditure, or 

disbursement for an electioneering communications.” 52 U.S.C. §§ 30121(a)(1). An 

expenditure is defined to include “any purchase, payment, distribution, loan,

advance, deposit, or gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A). 

It also is unlawful for any person “to solicit, accept, or receive a 

contribution or donation” from a foreign national. 52 U.S.C. § 30121(a)(2); 11 C.F.R. 

§ 110.20(g). Such solicitation must be knowing, but it is not necessary that the 

person have “knowledge that one is violating the law”; the person must have merely

“an intent to act.” Fed. Election Comm’n v. Malenick, 310 F. Supp. 2d 230, 237 n.9 

(D.D.C. 2004) (quoting Fed. Election Comm’n v. John A. Dramesi for Congress 

Comm., 640 F. Supp. 985, 987 (D.N.J. 1986)), rev’d in other part on reconsideration, 

No. Civ. A. 02-1237, 2005 WL 588222 (D.D.C. Mar. 7, 2005). 

The prohibitions against foreign contributions to U.S. elections and 

against solicitation of such contributions have evolved “[a]s money became more 

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important to the election process” in the latter half of the twentieth century.

Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 283 (D.D.C. 2011), aff’d, 565 

U.S. 1104 (2012). The law responded to “concern . . . that foreign entities and

citizens might try to influence the outcome of U.S. elections.” Id. 

B. Disclosure requirements 

FECA and FEC regulations also impose reporting requirements for 

political spending. Any person that is not a political committee and which makes an 

independent expenditure exceeding $250 for a particular election in a calendar year 

shall disclose details regarding such expenditures by “fil[ing] a verified statement or

report on FEC Form 5 in accordance with CFR 104.4(e).” 11 C.F.R. § 109.10(b). If 

that person’s aggregated independent expenditures exceed $10,000 per election for a 

particular election up to and including the 20th day before an election, the person 

making the independent expenditures must similarly disclose details related to the 

expenditures by “report[ing] the independent expenditures on FEC Form 5, or by 

signed statement if the person is not otherwise required to file electronically under 

11 CFR 104.18.” 11 C.F.R. § 109.10(c). 

Expenditures that qualify either as “coordinated communication” under

11 C.F.R. § 109.21 or that are “made in cooperation, consultation or concert with, or

at the request or suggestion of, a candidate, a candidate’s authorized committee, or

a political party committee,” which “includes an agent thereof,” must also be 

reported by the candidate whom the expenditure was intended to benefit. 

11 C.F.R. §§ 109.20, 109.21(b)(1)-(2). Such expenditures are deemed, except in 

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specific circumstances, to be an in-kind contribution to that candidate. 

11 C.F.R. § 109.20(b). 

Any political committee, including a candidate committee, that receives a 

contribution, including the value of an in-kind contribution, exceeding $200 must 

report that receipt. 11 C.F.R. §§ 104.3, 104.8. Political committees, including 

candidate committees, must similarly report expenditures exceeding $200, 

including expenditures made by others that are considered by law to be made by the 

campaign because they are coordinated. 11 C.F.R. §§ 104.3, 104.9. 

II. Factual Background 

The following facts are set forth in the Plaintiffs’ Complaint for Declaratory 

and Injunctive Relief (“Compl.”)3 and in the Report of the FEC’s Office of the 

General Counsel (OGC) as found in the FEC’s Administrative Record.4 At the 

3 There are two complaints referenced in this brief. “Complaint” refers to the 

Complaint for Declaratory and Injunctive Relief filed before this Court in this 

action. “Administrative Complaint” and abbreviations thereof refers to the amended

administrative complaint filed by the Plaintiffs before the FEC, MUR 7207. 

4 The OGC Report utilized the U.S. Department of Justice and the Senate 

Intelligence Committee investigations into the Russian Federation’s interference in

the 2016 elections. See Robert S. Mueller III, U.S. Dep’t of Justice, Report on the 

Investigation Into Russian Interference In The 2016 Presidential Election, v. 1-2 

(2019), available at https://www.justice.gov/storage/report_volume1.pdf and 

https://www.justice.gov/storage/report_volume2.pdf [hereinafter “Special Counsel’s

Report”]; Report of the Select Committee on Intelligence on Russian Active Measures 

Campaigns and Interference in the 2016 U.S. Election, S. Rep. No. 116-290, v. 1-5 

(2019), available at https://www.intelligence.senate.gov/publications/report-selectcommittee-intelligence-united-states-senate-russian-active-measures. 

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motion to dismiss stage, “factual allegations in the complaint are assumed to be 

true.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017). 

A. Russian interference in the 2016 U.S. elections 

1. Russian Federation hacked opposition email accounts 

and ran deceptive social media accounts to benefit the Trump 

Campaign 

In the run-up to the 2016 U.S. presidential election, the Russian Federation 

spent substantial resources to influence the outcome of the election in Donald 

Trump’s favor. It did so sometimes in unlawful coordination with the Trump 

Campaign and with the solicitation of the Trump campaign, which failed to disclose 

the in-kind contributions it received from the Russian Federation. Complaint, Dkt. 

No. 1, ¶ 4 (“Compl.”).

In 2016, the Russian Federation, via a Russian military intelligence agency 

called the GRU, carried out a campaign to hack computer networks and email 

accounts related to Trump’s opposition. AR 110; Compl. ¶ 39-40. The GRU targeted 

key members of the Democratic National Committee (“DNC”), the Democratic 

Congressional Campaign Committee (“DCCC”), and the campaign of Hillary Clinton 

(Trump’s opponent) in “phishing” attacks. AR 110-11. The “phishing attack”

involved hackers transmitting communications directly to their targets in the 

United States. The hackers obtained information from these phishing attacks, 

which they then used to gain access to thousands of internal Democratic Party and 

campaign emails. AR 110-11; Compl. ¶ 39. The GRU also gained access to DNC and 

DCCC computer servers, from which it stole thousands of documents critical to its 

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campaigns, “including emails, strategy memos, analyses of congressional races,

fundraising information, and opposition research.” AR 112. The GRU released 

emails and documents to WikiLeaks for publication and posted some onto a GRUoperated website called “DCLeaks” and a GRU-controlled blog. AR 111-15; 

Compl. ¶¶ 39-40. It also shared emails with news reporters and with at least one 

congressional candidate on request. AR 110, 112-15. The email release was 

“designed and timed to interfere with the 2016 U.S. presidential election and

undermine the Clinton campaign.” AR 111 (quoting Special Counsel’s Report at 36). 

The Russian Federation also used the Internet Research Agency (IRA), a 

“quasi-governmental entity that operated ‘at the direction of the Kremlin,’” AR 102

(quoting S. Rep. No. 116-290, v. 2 at 32), to influence the 2016 election using paid 

advertisements and by creating false accounts to post pro-Trump and anti-Clinton 

election-related content on social media websites. AR 102-08; Compl. ¶ 43. 

The IRA’s efforts to interfere in the election can be traced back at least to 

2014, when IRA employees carried out at least two intelligence-gathering missions 

in at least ten U.S. states. AR 103. Afterwards, the IRA began to track and study 

groups on U.S. social media sites. AR 103. 

Then, during the 2016 election, IRA employees set up fake accounts on U.S. 

social media sites, deceptively and carefully establishing false personas as U.S. 

citizens or grassroots organization to post election-related content. AR 104-05; 

Compl. ¶ 43. IRA employees established approximately 3,800 accounts on Twitter, 

470 on Facebook, and 170 on Facebook-owned Instagram. AR 105. Some of these 

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accounts amassed hundreds of thousands of followers; in aggregate the false IRA 

accounts claimed millions of followers and millions more “engagements” with their

political posts. AR 106. Some of these accounts also paid for advertisements related 

to the U.S. elections. AR 107. The paid and non-paid “organic” content by the 

deceptive IRA-controlled accounts carried out a targeted pro-Trump, anti-Clinton 

campaign. AR 107-08; Compl. ¶ 45. The IRA also pursued voter suppression 

messaging, primarily targeting Black voters, by urging them to boycott the election 

or spreading incorrect voting instructions. Although the Senate Intelligence 

Committee has determined that the IRA’s operation to interfere with the U.S. 

election was a “‘multi-million dollar’ effort,” exact figures—who or what spent how 

much, when, for what purposes—are still unknown. AR 102 (quoting S. Rep. No. 

116-290, v. 2 at 22-23); Compl. ¶ 99 (detailing information that Plaintiffs still lack 

about contributions that the Russian Federation and/or the Trump Campaign were 

obliged, but failed, to disclose to the FEC). 

2. Trump Campaign solicited in-kind and foreign 

contributions from the Russian Federation and WikiLeaks 

In the lead-up to the 2016 election, Trump, the Trump campaign, and agents 

of the campaign solicited and accepted foreign in-kind contributions. On July 27, 

2016, soon after WikiLeaks first published documents obtained through the Russian 

Federation’s hack of the DNC—a hack and publication that intended to, and did, 

help Trump’s campaign—Trump solicited additional in-kind contributions during a 

televised press conference. He stated: “I will tell you this—Russia, if you’re 

listening, I hope you’re able to find the 30,000 emails that are missing. I think you

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will probably be rewarded mightily by our press. Let’s see if that happens. That’ll be 

next.” AR 116; Compl. ¶ 48.

Trump was referring to emails allegedly erased from Clinton’s personal email

server while she served as Secretary of State. Within five hours of Trump making 

this public statement, the GRU began phishing attacks on email accounts 

associated with Clinton’s personal office. AR 117. These alleged missing emails, 

though they ultimately were never publicly released, were a major campaign issue 

for the Trump campaign; the Trump campaign prepared a press strategy and 

messaging based on their potential release. AR 117. As then-White House Press 

Secretary Joshua Earnest later articulated, in relation to Trump’s public request

that Russia hack Hilary Clinton’s emails, “Mr. Trump obviously knew that Russia

was engaged in malicious cyberactivity that was helping him and hurting Hillary 

Clinton’s campaign.” AR 47 (Amended Administrative Complaint, MUR 7207, ¶ 30). 

Close associates of the Trump Campaign appeared to have information about 

the hacked documents before they became public, notably Roger Stone Jr., a Trump 

Campaign official until August 2015 who maintained close ties with Trump and the 

Trump Campaign throughout the election cycle. AR 118-26; Compl. ¶ 49. 

Furthermore, multiple high-level members of (and surrogates for) the Trump 

Campaign had direct communications with senior Russian Federation officials 

throughout the campaign period. AR 132; Compl. ¶ 150. 

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3. Trump Campaign attempted to obstruct investigations 

into Russian interference in 2016 election 

Both during and after the 2016 elections, the Russian Federation and Trump 

Campaign attempted to conceal their FECA violations. Trump attempted to prevent 

then-Attorney General Jeff Sessions from recusing himself from an investigation 

into Russian activities during the 2016 election and potential coordination with the 

Trump Campaign. Trump also fired the Director of the Federal Bureau of 

Investigation, again in an attempt to protect himself from the investigation. 

Compl. ¶ 46. Trump also repeatedly attempted to interfere in and obstruct Special 

Counsel Robert Mueller’s investigation. Id. 

III. Procedural History 

A. The administrative complaint 

On December 16, 2016, Plaintiffs filed an administrative complaint before the 

FEC, pursuant to 52 U.S.C. § 30109(a)(1) and 11 C.F.R. § 111.4, seeking an 

investigation into the Russian Federation and the Trump Campaign, alleging 

violations of FECA during the 2016 campaign, 52 U.S.C. §§ 30101 et seq. AR 2-17. 

Plaintiffs filed two amendments, on May 4 and June 2, 2017, to provide new 

information. AR 35-59, 73-77.5 As amended, the administrative complaint alleged 

six separate counts of violations of FECA: 

5 Plaintiffs’ administrative complaint was consolidated with three other 

administrative complaints filed by unrelated complainants: MUR 7268, 7274, and 

7623. The parts of the Administrative Record, including the Office of the General 

Counsel reports and the record of the Commission’s votes, that involve facts and 

respondents not related to this case are not summarized in this procedural history. 

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a. Count I: The Russian Federation, a “foreign national” under 52

U.S.C. § 30121(b)(1) and 22 U.S.C. § 611(b), paid money to 

computer hackers to gain access to Democratic National Committee 

emails and to transmit those emails to WikiLeaks for the purpose of 

public distribution, for the purpose of influencing the outcome of the 

2016 presidential election, in violation of 52 U.S.C. § 30121(a)(1)(C) 

and 11 C.F.R. § 110.20(f). 

b. Count II: The Russian Federation paid money to individuals 

operating on social media to post material on others’ web sites to 

promote the candidacy of Mr. Trump and/or oppose the candidacy of 

Secretary Clinton, in violation of 52 U.S.C. § 30121(a)(1)(C) and 11 

C.F.R. § 110.20(f). 

c. Count III: The Russian Federation failed to file any FEC disclosure 

reports regarding its independent expenditures, in violation of 

11 C.F.R. §§ 109.10(b) and (c). 

d. Count IV: The Russian Federation and the Trump Campaign 

engaged in “coordinated communications” in violation of 52 U.S.C.

§ 30121(a)(1)(A) and 11 C.F.R. §§ 110.20(b) and 109.22 on the part 

of the Russian Federation, and 52 U.S.C. § 30121(a)(2) and 

11 C.F.R. § 110.20(g) on the part of the Trump Campaign; further, 

the Trump Campaign failed to report such communications as in12 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 20 of 43 

kind contributions, in violation of 11 C.F.R. §§ 104.3(a)-(b) and 

109.21(b)(3). 

e. Count V: The Russian Federation paid money to buy 

advertisements on Facebook for the purpose of influencing the 

election, in violation of 52 U.S.C § 30121(a)(1)(C) and 

11 C.F.R. § 110.20(f). 

f. Count VI: The Russian Federation failed to file disclosure reports 

for monies spent on political advertisements on Facebook that may 

constitute independent expenditures, in violation of 

11 C.F.R. §§ 109.10(b) and (c). 

B. FEC response to the administrative complaint 

The FEC did not take any action in the case for nearly four years. While the 

case languished in the FEC, the U.S. Department of Justice and the Senate 

Intelligence Committee each carried out an investigation into the Russian 

Federation’s interference in the 2016 elections—processes that then-President 

Trump repeatedly attempted to impede and obstruct. Compl. ¶ 46. Neither 

investigation specifically examined FECA violations or sought to answer the types 

of questions that the FEC would pursue in a FECA enforcement investigation, 

related to sources, date, and amounts of money, or “coordination” as defined under

FECA. And while both reports provided important insight into the Russian 

Federation’s interference in the 2016 election and the Trump Campaign’s

coordination with the Russian Federation, critically important questions about 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 21 of 43 

unlawful foreign in-kind contributions and coordination remain unanswered. See 

Compl. ¶¶ 68, 99 (detailing factual questions that could have been addressed by an 

FEC investigation). 

The Office of the General Counsel (OGC) submitted its first report on 

February 23, 2021, AR 89, recommending in relevant part that the Commission find 

“reason to believe” under 52 U.S.C. § 30109(a)(2) that the Russian Federation and 

the Trump Campaign violated FECA as alleged in Plaintiffs’ amended

administrative complaint. In relevant part, the OGC recommended that the 

Commission: 

• Find reason to believe that the Russian Federation made prohibited 

foreign national expenditures and independent expenditures in 

connection with the influence campaign targeting the 2016 election in 

violation of 52 U.S.C. § 30121(a)(1)(C) and 11 C.F.R. § 110.20(f), made 

a prohibited in-kind contribution to the Trump campaign and a 

prohibited in-kind foreign national contribution in violation of 52 

U.S.C. § 30121(a)(1)(A) and 11 C.F.R. § 110.20(b), and failed to report 

its contributions, including prohibited in-kind contributions to the 

Trump Campaign in violation of 52 U.S.C. § 30104(c) and 

11 C.F.R. § 109.10(b); 

• Find reason to believe that Trump and the Trump Campaign 

knowingly solicited, accepted, or received an in-kind contribution from 

the Russian Federation in connection with Trump’s press conference 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 22 of 43 

statement and from WikiLeaks, and that they knowingly solicited a 

prohibited in-kind foreign national contribution, in violation of § 

30121(a)(2) and 11 C.F.R. § 110.20(g); 

• Take no further action as to the Russian Federation and the Internet 

Research Agency; and 

• Authorize OGC to engage in pre-probable cause conciliation with 

Trump, the Trump Campaign, and its agents. AR 187-88.6 

On April 22, 2021, the FEC convened to vote on how to proceed with the 

allegations. Rather than decide how to proceed via a single vote on a single motion 

under 11 C.F.R. § 111.9, the FEC took several distinct votes. Specifically, the FEC 

took three separate votes on whether or not there was reason to believe a FECA 

violation occurred, and on whether to dismiss on the basis of prosecutorial 

discretion. AR 269-71. This multi-step procedure is critical to understanding the 

posture of this case and the basis for judicial review in this Court. 

First, the Commission failed by a deadlocked 3-3 vote on a motion 

(designated by the FEC on its certification as item 3) to find reason to believe that 

the Trump Campaign committed the alleged FECA violations; to find reason to 

believe that the Russian Federation and the IRA committed the alleged FECA 

violations; to take no further action as to the Russian Federation and the IRA; to 

6 Pre-probable cause conciliation refers to attempts to settle with respondents and 

bring them into compliance before the Commission undertakes further investigation 

that may lead to a vote on whether there is “probable cause” to believe that a

violation occurred. See 52 U.S.C. §§ 30109(a)(3)-(4); 11 C.F.R. § 111.18(d). 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 23 of 43 

approve the Factual and Legal Analysis as recommended in the First General 

Counsel’s Report subject to edits circulated by Commissioner Weintraub’s Office on

April 19, 2021; and to approve pre-probable cause conciliation with the Trump 

campaign. AR 269-70. Commissioners Broussard, Walther, and Weintraub voted 

affirmatively for the motion, while Commissioners Cooksey, Dickerson, and Trainor 

dissented. AR 270. 

The Commission then took two additional votes specifically on whether the 

Commission should exercise its prosecutorial discretion under Heckler v. Chaney, 

470 U.S. 821 (1985). First, the Commission voted by 4-2 majority on a motion (item 

4) to dismiss the Russian Federation and IRA pursuant to the Commission’s

prosecutorial discretion. AR 270-71. 

Next, the Commission took another separate vote (item 5) on whether to 

dismiss the Trump Campaign pursuant to the Commission’s prosecutorial 

discretion. This vote failed by a 3-3 deadlock. In a reversal of roles from the failed 

reason-to-believe motion, Commissioners Cooksey, Dickerson, and Trainor voted 

affirmatively for the prosecutorial discretion motion, while Commissioners 

Broussard, Walther, and Weintraub dissented. AR 271. 

Only after taking these distinct votes did the Commission vote 6-0 to close 

the file as to all relevant respondents. AR 271-72. 

On September 29, 2021 the Commission voted to reopen the matter. AR 336. 

On December 8, 2021, Plaintiffs filed a lawsuit, asserting that the FEC’s delay of 

case was contrary to law. See Free Speech For People v. Fed. Election Comm’n, 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 24 of 43 

Complaint, No. 21-cv-3206 (D.D.C. filed Dec. 8, 2021). On January 14, 2022, the 

Commission voted to close the matter again, without explanation and without 

taking any intervening actions. AR 345-46.7 

Vice Chair Dickerson and Commissioners Cooksey and Trainor submitted a 

Statement of Reasons, in which they acknowledged that the Commission voted to 

dismiss the foreign respondents as a matter of prosecutorial discretion but “could

not agree by the required four votes . . . on how to proceed with regard to . . . the 

Trump Committee.” AR 342. Their statements explained only why they voted to 

dismiss the respondents as an exercise of prosecutorial discretion. AR 343 (“We 

voted to dismiss these Respondents as an exercise of prosecutorial discretion for two 

principal reasons . . . .”). They did not provide any legal or factual basis for their 

separate vote against the motion (item 3) to find reason to believe that the 

respondents committed the alleged FECA violations. AR 342-44. For example, they 

did not cite any factual lacunae or legal concerns about whether the alleged 

misconduct violated FECA or not. 

Vice Chair Dickerson also wrote a separate supplemental Statement of 

Reasons pertaining to his vote to dismiss the Russian Federation and IRA pursuant 

to the Commission’s prosecutorial discretion. AR 326-35. 

7 After the FEC voted again to close the matter, Plaintiffs voluntarily dismissed the 

delay case. 

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Finally, Commissioners Broussard and Weintraub submitted a Statement of 

Reasons explaining why they voted to find reason to believe the administrative 

respondents committed the alleged FECA violations. AR 352-57. 

After the FEC closed the file, Plaintiffs filed the present action, asking this 

Court to declare that the FEC’s dismissal of Plaintiffs’ administrative complaint

was contrary to law under 52 U.S.C. § 30109(a)(8)(C), and order the FEC to conform 

with this declaration within 30 days, under 52 U.S.C. §§ 30109(a)(8)(A)-(C). 

Compl. ¶¶ 1, 111-12. Defendants moved to dismiss, asserting that judicial review is 

not available where the Commission exercises prosecutorial discretion and claiming 

that, in this case, the Commission has properly exercised prosecutorial discretion. 

LEGAL STANDARDS 

Where, as here, Defendants assert that a complaint should be dismissed 

because the agency’s decision was discretionary, such a motion should be analyzed 

under Fed. R. Civ. P. 12(b)(6) and not under the jurisdictional standards of Fed. R. 

Civ. P. 12(b)(1). Sierra Club v. Jackson, 648 F.3d 848, 853 (D.C. Cir. 2011). A 

complaint survives a Rule 12(b)(6) motion to dismiss where it “‘contain[s] sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its 

face.’” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). On a Rule 12(b)(6) motion, the Court 

may examine the judicial complaint as well as documents incorporated into the 

complaint by reference and matters of which it may take judicial notice. Tellabs, 

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 

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FECA’s judicial review provision permits a private complainant aggrieved by

a Commission’s dismissal to file a petition for judicial review, and authorizes the 

court to “declare that the dismissal of the complaint or the failure to act is contrary 

to law.” Citizens for Resp. & Ethics in Washington v. Fed. Election Comm’n, 993 

F.3d 880, 883 (D.C. Cir. 2021)) [hereinafter “New Models”] (quoting 

52 U.S.C. § 30109(a)(8)(A), (C)). Dismissal is “‘contrary to law’ if (1) the FEC

dismissed the complaint as a result of an impermissible interpretation of the Act . . . 

or (2) if the FEC’s dismissal of the complaint, under a permissible interpretation of 

the statute, was arbitrary or capricious, or an abuse of discretion.” Orloski v. Fed. 

Election Comm’n, 795 F.2d 156, 161 (D.C. Cir. 1986). 

With regard to the arbitrary or capricious test, the court must be provided 

with a “reasonable explanation of the specific analysis and evidence upon which the 

[a]gency relied.” Bluewater Network v. Envtl. Prot. Agency, 370 F.3d 1, 21 (D.C. Cir. 

2004); see also Democratic Congressional Campaign Committee v. Fed. Election 

Comm’n, 831 F.2d 1131, 1134 (D.C. Cir. 1987) [hereinafter “DCCC”] (courts should 

defer to a Commission disposition if “the FEC (or its General Counsel) supplied

reasonable grounds for reaching (or recommending) the disposition”) (citing Fed. 

Election Comm’n v. Dem. Senatorial Campaign Comm., 454 U.S. 27, 38 n.19 (1981)). 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 27 of 43 

ARGUMENT 

I. The FEC’s Dismissal is Reviewable Because the Full Commission 

Specifically Refused to Dismiss the Trump Campaign As a Matter of 

Prosecutorial Discretion 

A. The FEC expressly considered and rejected a motion to 

exercise its prosecutorial discretion to dismiss the Trump Campaign 

This Court should reject the FEC’s current litigation position that it 

dismissed the claims against the Trump campaign on the basis of prosecutorial 

discretion because it is contrary to the record below, the controlling statute, and 

controlling circuit precedent. Far from exercising prosecutorial discretion to dismiss 

those claims, the full Commission expressly declined to dismiss Trump, the Trump 

Campaign, or its agents pursuant to prosecutorial discretion. AR 271. 

Congress has established that “[a]ll decisions of the Commission with respect 

to the exercise of its duties and powers under the provisions of [FECA] shall be 

made by a majority vote of the members of the Commission.” 52 U.S.C. § 30106(c). 

This rule applies for every duty and power except those expressly identified in 52 

U.S.C. §§ 30107(a)(6)-(9) and 26 U.S.C. §§ 95-96, including the power to conduct 

investigations and hearings or to proceed in conciliation or civil enforcement; for 

these powers, four votes are required. 52 U.S.C. §§ 30106(c); 30107(a); 30109(a).

8 

8 As a practical matter, the majority rule and the four-vote rule will be the same 

when six members of the Commission have been appointed and have voted on the 

matters at issue. See 52 U.S.C. § 30106(a) (establishing a six-member Commission). 

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In some cases, the Commission has merged into a single vote two very 

different questions: (1) whether there is “reason to believe that a respondent has

violated a statute or regulation over which the Commission has jurisdiction” under

11 C.F.R. § 111.9(a), and (2) whether the Commission should exercise its 

prosecutorial discretion notwithstanding any reason to believe a FECA violation has 

occurred. In those situations, when courts have been tasked with determining 

whether the Commission has exercised its prosecutorial discretion authority—

which the D.C. Circuit has determined would preclude judicial review of that 

decision—circuit precedent instructs courts to fall back on a legal fiction. Where a 3-

3 deadlock vote causes a reason-to-believe motion to fail and the Commission then 

votes by majority to dismiss the case, courts consider the rationale of the three 

Commissioners who voted against the reason-to-believe motion to be controlling, as 

their votes prevented the Commission from taking action. See New Models, 993 F.3d 

at 897-98; Commission on Hope, 892 F.3d at 437; Common Cause v. Federal Election 

Comm’n, 842 F.2d 436, 449 (D.C. Cir. 1988). 

But that is not what happened here. In this case, no such legal fiction is 

required (or justified) to determine whether the Commission exercised its 

prosecutorial discretion. The Commission held one vote on whether to find reason to 

believe FECA violations had occurred (item 3), then two separate, specific votes 

(items 4 and 5) on motions to exercise prosecutorial discretion to dismiss particular 

respondents. Where the Commission votes on whether to exercise prosecutorial 

discretion, that motion must garner a majority vote if the Commission is to exercise 

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its power, just as the Commission must garner a majority vote to exercise its 

authority in other matters. 52 U.S.C. § 30106(c); Federal Election Comm’n v. Akins, 

524 U.S. 11, 25 (1998) (explaining that the FEC may exercise prosecutorial 

discretion provided it does not “base[] its decision upon an improper legal ground”);

see also Fed. Election Comm’n, Guidebook for Complainants and Respondents on the 

FEC Enforcement Process 12 (2012), https://www.fec.gov/resources/cmscontent/documents/respondent_guide.pdf (“Pursuant to an exercise of its

prosecutorial discretion, the Commission may dismiss a matter when, in the opinion 

of at least four Commissioners, the matter does not merit further use of Commission 

resources.” (emphasis added)).

With regard to the Trump Campaign claims, the FEC did not obtain a 

majority vote to dismiss pursuant to prosecutorial discretion. After it deadlocked on 

a vote (item 3) to find reason to believe that the Trump Campaign unlawfully and 

knowingly solicited, accepted, or received an in-kind contribution from the Russian 

Federation or from WikiLeaks and knowingly solicited a prohibited in-kind foreign 

national contribution, AR 269-70,9 the Commission deadlocked on a separate vote 

(item 5) to dismiss the Trump Campaign pursuant to the Commission’s

prosecutorial discretion under Heckler v. Chaney, 470 U.S. 821 (1985). AR 270. Both 

votes failed for the same reason: each failed to capture a majority vote. Congress 

9 In this same vote, the Commission also deadlocked on whether to approve the 

First General Counsel’s Report, to authorize pre-probable cause conciliation with 

Trump or the Trump campaign, or approve the Conciliation Agreements 

recommended by the First General Counsel’s Report. AR 269-70. 

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established that a majority vote is required before the Commission may exercise its 

authority, whether to investigate an allegation or to exercise prosecutorial 

discretion. 

The FEC now claims that “the respective majority and controlling groups of 

Commissioners expressly invoked and exercised their prosecutorial discretion as an 

independent basis for their votes to dismiss.” Def. Mem. in Support of Mot. Dismiss, 

Dkt. No. 13-1, at 14. But the record below demonstrates that, to the contrary, the 

Commission explicitly voted on whether to invoke prosecutorial discretion to 

dismiss the Trump Campaign and that vote failed to muster a majority of 

Commissioners. The FEC’s litigation counsel cannot assert prosecutorial discretion 

as grounds to dismiss when the Commission itself explicitly opted not to exercise 

prosecutorial discretion. Prosecutorial discretion cannot “shield the Commission’s

decision from judicial review [where] the Commission has not relied on it.” New 

Models, 993 F.3d at 893-94 (differentiating New Models from two prior cases in 

which the FEC might have, but declined to, exercise its prosecutorial discretion). 

The Commission’s own action with respect to the Russian Federation 

illustrates the difference. The Commission did affirmatively vote, by a 4-2 majority, 

to dismiss the Russian Federation and IRA pursuant to the Commission’s

prosecutorial discretion. AR 270-71 (item 4). In other words, the Commission knew 

exactly how to exercise its power to dismiss a respondent based on prosecutorial 

discretion. But it declined to do so with respect to the Trump Campaign. 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 31 of 43 

B. The reasoning of the three Commissioners who voted in favor 

of exercising prosecutorial discretion should not be accorded 

deference by this Court and does not render the case judicially 

unreviewable. 

Despite the fact that the vote to dismiss the Trump Campaign on the basis of 

prosecutorial discretion failed, the FEC now asks this Court to defer to the rationale 

of the three Commissioners who wanted the vote to succeed. This contradicts the 

well-established rule of the D.C. Circuit: when a motion fails at the FEC, the 

opponents of the motion are deemed to be the controlling Commissioners, and their 

opinion supplies the rationale which the court examines on judicial review. See 

NRSC, 966 F.2d at 1476; DCCC, 831 F.2d at 1134-35. 

When the FEC votes to close a case, it can only take this action by majority. 

Dismissals are subject to judicial review, but because the FEC traditionally does not 

offer reasons for its decision to dismiss a case, the Court will instead look to the 

rationale provided by the Commission for the vote or votes that precipitated 

dismissal. See NRSC, 966 F.2d at 1476; Common Cause, 842 F.2d at 449 (requiring 

the “declining-to-go-ahead Commissioners” to issue a Statement of Reasons

explaining their decision). 

The Court will look to these reasons even where the precipitating vote failed 

because of a deadlock. The D.C. Circuit has held that where a deadlocked vote on a 

motion blocks a Commission enforcement action, the Commissioners who voted 

against the motion—and therefore prevented the action—“constitute a controlling

group for purposes of the decision, [and] their rationale necessarily states the 

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agency’s reasons for acting as it did.” NRSC, 966 F.2d at 1476 (citing DCCC, 831 

F.2d at 1134-35). 

“[F]or purposes of judicial review, the statement or statements of those 

naysayers—the so-called ‘controlling Commissioners’—will be treated as if they 

were expressing the Commission’s rationale for dismissal.” Commission on Hope, 

892 F.3d at 437; see also New Models, 993 F.3d at 897-98 (noting that where “a

deadlocked Commission fails to follow the General Counsel’s recommendation, those

who voted to reject that recommendation—often referred to as the ‘controlling

commissioners’—determine the final position of the Commission on the matter”). In 

short, under D.C. Circuit precedent, when courts review the rationale for the FEC’s

failure to adopt a motion by a 3-3 deadlock, the FEC’s rationale is deemed to be that 

of the three commissioners who opposed the motion. 

The Commission, in the administrative proceedings here, took two 

deadlocked votes pertaining to the Trump Campaign. The rules set down by the 

D.C. Circuit are clear: these motions failed, and so the three opponents of each 

motion are deemed to be the controlling Commissioners. Commission on Hope, 892 

F.3d at 437; NRSC, 966 F.2d at 1476. The FEC now asks this Court to bypass that 

rule with regard to the prosecutorial discretion vote. The FEC would have this 

Court consider the Statement of Reasons authored by Commissioners Cooksey, 

Dickerson, and Trainor to control the Commission’s decision for both the reason-tobelieve vote (in which their dissent blocked agency action) and for the prosecutorial 

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Case 1:22-cv-00666-CKK Document 24 Filed 08/25/22 Page 33 of 43 

discretion vote (in which their votes in favor exercising such discretionary action 

were blocked by the three dissenting Commissioners). 

The FEC’s argument is inconsistent with the Court’s precedent and indeed 

lacks internal consistency. The Commission’s deadlocked vote on prosecutorial 

discretion must be analyzed under the same standard as the other deadlocked vote 

in this case. The Commission expressly declined to exercise its prosecutorial 

discretion with respect to the Trump Campaign, and the Commissioners who voted 

to reject the motion represent the controlling rationale on this issue. See 

Commission on Hope, 892 F.3d at 437; NRSC, 966 F.2d at 1476. For the purposes of 

the question of whether the FEC should exercise its prosecutorial discretion with 

respect to the Trump Campaign (item 5), the controlling group are the dissenting 

Commissioners for that motion: Broussard, Walther, and Weintraub. 

The rationale of the three Commissioners who voted in favor of the 

prosecutorial discretion motion is irrelevant because the motion failed and the 

Commission did not exercise its prosecutorial discretion to dismiss. The reason-tobelieve naysayers have submitted two Statements of Reasons that only explain why 

they would have asserted prosecutorial discretion to dismiss the respondents—but 

their reasoning as to prosecutorial discretion is not controlling because that vote 

failed. Their reasoning cannot be accorded deference where, as here, the action they 

preferred the Commission to take has already been subject to a separate and failed 

vote. In other words, the writings of Commissioners Cooksey, Dickerson, and 

Trainor (who were not the controlling bloc on the question of prosecutorial 

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discretion) supply neither a basis to explain why the FEC decided not to exercise 

prosecutorial discretion (since they lost that vote) nor why the FEC deadlocked on 

whether to find reason to believe a FECA violation had occurred (since nothing they 

wrote pertains to that question). 

The Supreme Court has held “that administrative implementation of a

particular statutory provision qualifies for Chevron deference when it appears that 

Congress delegated authority to the agency generally to make rules carrying the 

force of law, and that agency interpretation claiming deference was promulgated in 

the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226 (2001) 

(emphasis added). The FEC can only exercise prosecutorial discretion with a 

majority vote, which, with regard to the Trump campaign, it failed to obtain. 

Therefore, it did not exercise its authority to utilize its prosecutorial discretion in 

choosing not to pursue enforcement against the Trump Campaign. 

C. The present case is distinguishable from New Models and 

Commission on Hope because in those cases, the Commission did not 

expressly reject prosecutorial discretion as grounds for dismissal 

The question of whether to dismiss for prosecutorial discretion was put to a 

vote before the Commission, and those three Commissioners who wanted to dismiss 

on those grounds lost. The Commission explicitly opted not to exercise prosecutorial 

discretion. See AR 270-71. For this reason, both Commission on Hope, 892 F.3d 434, 

and New Models, 993 F.3d 880, are inapposite. 

In both Commission on Hope and New Models, the FEC merged consideration 

of these questions—it did not take a separate vote on prosecutorial discretion. In 

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both cases, the FEC deadlocked on motions to find reason to believe that the 

respondents had violated FECA, and then closed the case. See In the Matter of 

Commission on Hope, Growth and Opportunity, Amended Certification, MURs 6391 

and 6471 (Sept. 25, 2014), available at 

https://www.fec.gov/files/legal/murs/6391/15044380114.pdf; In the Matter of 

Commission on Hope, Growth and Opportunity, Certification, MURs 6391 and 6471 

(Oct. 2, 2015), available at 

https://www.fec.gov/files/legal/murs/6391/15044380175.pdf; In the Matter of New 

Models, Certification, MUR 6872 (Nov. 16, 2017), available at 

https://www.fec.gov/files/legal/murs/6872/17044432619.pdf.

10 In both cases, the 

Statement of Reasons issued by the Commissioners who voted against the reasonto-believe motion referenced prosecutorial discretion as at least part of the rationale 

for their decision. 

In Commission on Hope, the D.C. Circuit held that the FEC’s exercise of 

prosecutorial discretion was unreviewable, a position it affirmed in New Models. 

10 During the Commission on Hope proceedings, the FEC voted on three separate 

reason-to-believe motions over two different voting dates. In September 2014, the 

FEC voted on two motions: one reason-to-believe vote failed, and a second reason-tobelieve vote obtained majority support. In October 2015, the FEC voted on a third 

reason-to-believe vote that failed, and then on the same day voted by majority to 

close the case. None of these motions addressed prosecutorial discretion. See In the 

Matter of Commission on Hope, Growth and Opportunity, Amended Certification, 

MURs 6391 and 6471 (Sept. 25, 2014), available at 

https://www.fec.gov/files/legal/murs/6391/15044380114.pdf; In the Matter of 

Commission on Hope, Growth and Opportunity, Certification, MURs 6391 and 6471 

(Oct. 2, 2015), available at 

https://www.fec.gov/files/legal/murs/6391/15044380175.pdf. 

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New Models, 993 F.3d at 894-95; Commission on Hope, 892 F.3d at 438-39. But in 

neither case did the FEC take an explicit vote to consider the prosecutorial 

discretion question, so in both cases the D.C. Circuit turned to the reasoning of the 

naysayers to discern the reasons for the FEC’s inaction. This is at best an imperfect 

option: treating the rationale of the naysayers who defeated the reason-to-believe 

vote “as if they were expressing the Commission’s rationale for dismissal [is] a 

rather apparent fiction raising problems of its own.” Commission on Hope, 892 F.3d 

at 437-38. 

Here, however, there is no need—nor any proper basis—to fall back on the 

“apparent fiction” that the naysayers’ vote serves as a stand-in for the Commission’s

position on prosecutorial discretion. It is clear from the vote taken by the FEC that 

the Commission did not exercise prosecutorial discretion with respect to the Trump 

Campaign. The Commission considered that option, but decided against it. It 

needed a majority vote to exercise its discretion, which it did not obtain. In this 

regard, the present case is more analogous to Akins, 524 U.S. at 25, than to either 

Commission on Hope or New Models. 

Indeed, in this case it is even clearer that the Commission failed to exercise 

prosecutorial discretion than in Akins. In Akins, the Court concluded that it did not 

know if the agency exercised its prosecutorial discretion and so did not have reason 

to find the matter unreviewable. See 524 U.S. at 25. Here, the FEC’s vote confirms

that the agency definitely did not exercise its prosecutorial discretion. If the FEC’s

dismissal was reviewable in Akins where it was not clear if the Commission had 

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exercised prosecutorial discretion, it follows a fortiori that the agency’s decision to

dismiss and close the case, while explicitly failing to exercise prosecutorial 

discretion, is reviewable, and Plaintiffs have asserted a claim upon which relief can 

be granted. Sierra Club, 648 F.3d at 853. 

II. Arguments Preserved for Further Review 

Plaintiffs preserve the following two arguments for further review, 

recognizing that current D.C. Circuit panel precedent (with a petition for en banc 

pending) may foreclose them as of the date of this filing. 

A. A non-majority bloc cannot assert authority to exercise 

prosecutorial discretion 

Regardless of whether the FEC has held a separate vote on whether to 

dismiss on prosecutorial discretion, a non-majority bloc of FEC Commissioners 

cannot assert authority under Heckler, 470 U.S. 821, to exercise prosecutorial 

discretion and thereby deprive the Court of judicial review of FEC decisions. 

Plaintiffs recognize that the D.C. Circuit has held that where the Commission relies 

on prosecutorial discretion to dismiss a complaint, that dismissal is not subject to 

judicial review, even where only a non-majority bloc of Commissioners assert 

prosecutorial discretion. See New Models, 993 F.3d at 895; Commission on Hope, 

892 F.3d at 438-39. A petition for en banc review has been filed in Citizens for Resp. 

& Ethics in Washington v. Fed. Election Comm’n (“New Models”), D.C. Cir. No. 19-

5161 (D.C. Cir.) ECF No. 1903510 (petition for en banc review filed June 23, 2021), 

and Plaintiffs preserve this argument because an en banc reconsideration of New 

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Models may alter the D.C. Circuit’s framework for reviewing assertions of 

prosecutorial discretion by the Commission. 

As established above, prosecutorial discretion—to the extent that the agency 

possesses the power—can be exercised only by a majority of the Commission. 

52 U.S.C. § 30106(c). The Statement of Reasons submitted by the three 

Commissioners who declined to vote in favor of a reason-to-believe motion should 

not, for the purposes of determining whether the full Commission chose to exercise 

prosecutorial discretion, stand in for the will of the Commission majority that voted 

separately on a motion to close the file. As the D.C. Circuit has recognized—and as 

noted above—the Court’s treatment of the rationale of the naysayers who defeated 

the reason-to-believe vote “as if they were expressing the Commission’s rationale for 

dismissal [is] a rather apparent fiction raising problems of its own.” Commission on 

Hope, 892 F.3d at 437-38. One such problem is the one that arose in that same case: 

the fiction extended to a partisan non-majority a power that should only be 

exercised by a majority of the Commission. At least for the purposes of determining 

whether the Commission exercised its authority under Heckler, 470 U.S. 821, and 

particularly given Congress’s express decision to preserve Commission

bipartisanship and to provide judicial oversight of Commission inaction, the Court 

should not look to a statement of reasons representative of a non-majority of the 

Commission. 

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B. The Commission’s dismissal of the claims against the Russian 

Federation were contrary to law. 

Plaintiffs recognize that the Commission voted 4-2 to dismiss the claims 

against the Russian government on the basis of prosecutorial discretion, AR 270-71, 

and that arguments in the preceding sections do not apply. Furthermore, Plaintiffs 

recognize that under current D.C. Circuit case law, judicial review is generally 

unavailable if the FEC, notwithstanding strong factual and legal reasons to believe 

that a violation of FECA may have occurred, votes by majority to dismiss a 

complaint on the basis of the Commission’s purported prosecutorial discretion.

Akins, 524 U.S. at 25; Commission on Hope, 892 F.3d at 439. Notwithstanding the 

above, Plaintiffs assert this claim to preserve it on appeal, and in case a pending 

petition for en banc review in the matter of New Models, D.C. Cir. No. 19-5161, may 

alter the D.C. Circuit’s framework for reviewing such assertions by the Commission.

The current broad iteration of its prosecutorial discretion authority enables 

the FEC to evade any judicial review of its decisions not to investigate violations of 

FECA’s foreign interference prohibition, despite Congress’ clear directives regarding

foreign interference in U.S. elections and the oversight role it has given both the 

FEC and the courts. 

First, Congress provided that the FEC vote on the specific question of 

whether “it has reason to believe that a person has committed, or is about to 

commit, a violation of [FECA].” 52 U.S.C. § 30109(a)(2) (emphasis added). If so, then 

the FEC “shall make an investigation of such alleged violation.” Id. (emphasis 

added). In other words, the question for the FEC to answer is whether there is 

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reason to believe that “a person has committed . . . a violation,” after which an 

investigation is mandatory. Congress could have instead written FECA to require 

the FEC to vote on whether, in its judgment (taking into consideration the facts, the 

law, and various other factors), it ought to conduct an investigation. But Congress 

did not write the law this way. The question the FEC is called to answer is whether 

the respondent has committed a violation of FECA—no more and no less. 

To be sure, the Commission has substantial enforcement discretion at later 

stages in the process: if it finds that there is “probable cause” (a higher threshold) 

that a violation has occurred, then the FEC “may” refer that violation to the 

Attorney General if it was knowing and willful, 52 U.S.C. § 30109(a)(5)(C), and 

“may” itself institute a civil action against the violator, id. § 30109(a)(6)(A). In those 

provisions, Congress’s use of “may” confers discretion. But Congress chose not to use 

such discretionary terms in the reason to believe provisions. 

Second, Congress authorized judicial review of the FEC’s dismissal of 

administrative complaints using language that is textually incompatible with the 

notion of a broad grant of prosecutorial discretion. Upon a petition for review of an 

FEC order dismissing a complaint, this Court “may declare that the dismissal of the 

complaint . . . is contrary to law.” Id. § 30109(a)(8)(C) (emphasis added). Congress 

knew how to provide judicial review for agency action that is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A) (Administrative Procedure Act (“APA”)). Notwithstanding Orloski, 795 

F.2d at 161, FECA’s “contrary to law” standard is different from the APA’s

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standard. If Congress had wanted courts to defer to the FEC’s exercise of discretion,

it easily could have provided review for abuse of discretion, rather than review of 

whether the Commission had acted “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). 

Even if FECA does incorporate prosecutorial discretion, the issues in this 

case demonstrate why allowing the FEC to exercise “prosecutorial discretion” at the 

reason to believe stage is particularly inappropriate. Congress has drawn a bright 

line rule that prohibits any foreign national from contributing “money or other 

thing of value . . . in connection with a Federal, State, or local election.” 52 U.S.C. § 

30121(a)(1). Such spending is “intimately related to the process of democratic selfgovernment,” Bluman, 800 F. Supp. 2d at 287 (quoting Bernal v. Fainter, 467 U.S. 

216, 220 (1984)), and the United States “has a compelling interest . . . in limiting 

the participation of foreign citizens in activities of American democratic selfgovernment, and in thereby preventing foreign influence over the U.S. political 

process.” Id. at 288. 

The allegations at issue in this case go to the heart of the law’s purpose. A 

foreign government poured millions of dollars into efforts to sway a U.S. 

presidential election toward its preferred candidate, Donald Trump. The Russian 

Federation conducted information-gathering on U.S. soil, spread misinformation, 

and hacked accounts associated with Trump’s opponent and her campaign. They did 

so at times in coordination with Trump and his campaign. Compl. ¶¶ 59-72. 

Despite these well-supported allegations of interference, the FEC declined to 

exercise any of its authority—which includes the authority to seek voluntary 

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compliance, conduct investigations and hearings, and compel testimony and the 

production of documentary evidence, 52 U.S.C. § 30107(a)—in relation to the 

Russian Federation. As a result, critical questions about the money involved in the 

Russian Federation’s substantial interference in the 2016 U.S. elections remain

unanswered by the very agency assigned to protect “voters’ entitlement to 

‘information as to where political campaign money comes from and how it is spent 

by the candidate.’” Commission on Hope, 892 F.3d at 442 (Pillard, J., dissenting) 

(quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976)) (cleaned up). 

Should the D.C. Circuit elect to revisit the FEC prosecutorial discretion 

framework, Plaintiffs preserve the argument that the FEC’s decision to dismiss the 

Russian Federation was contrary to law and that judicial review of its dismissal of 

the Russian Federation is appropriate. See Akins, 524 U.S. at 25 (explaining that 

the FEC may exercise prosecutorial discretion provided it does not “base[] its

decision upon an improper legal ground”). 

CONCLUSION 

The FEC expressly chose not to exercise prosecutorial discretion with regard 

to claims related to the Trump Campaign. With regard to the FEC’s majority vote to 

dismiss the Russian Federation and the IRA pursuant to prosecutorial discretion, 

pending potential change in appellate precedent, such an exercise was contrary to 

law and should be reviewed by this Court. 

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Plaintiffs have adequately stated a claim upon which relief can be granted 

and the FEC’s motion to dismiss should be denied. 

August 25, 2022 Respectfully submitted, 

/s/ Courtney Hostetler 

Courtney Hostetler* 

Ronald A. Fein (D.D.C. Bar No. MA0012) 

John C. Bonifaz* 

Ben Clements* 

Free Speech For People 

1320 Centre St. #405 

Newton, MA 02459 

(617) 249-3015 

chostetler@freespeechforpeople.org 

Counsel for plaintiffs 

*Admitted pro hac vice 

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