AGENDA DOCUMENT NO. 13-JI- :r 

FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

June 26, 2013 

MEMORANDUM 

TO The Commission Secretary 

FR0\1: Anthony Herman t\ d--J 

General Counsel / --) rr--

AGENDA ITEM 

For Meeting of ~ "'{) 1- [?) 

SUBMITTED LATE 

SUBJECT: Proposed MOU Between the Commission and DOJ 

Attached is the March 3, 2006 memo from Lawrence H. Norton to the 

Commissioners regarding the proposed MOU between the Commission and DOJ. The 

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

Attachment 
FEDERAL ELECTION COMMISSION 

WASHINGTON. DC 204b3 

March 3, 2006 

MEMORANDUM 

TO: 

r""ROM: 

SUBJECT: 

The Commissioners 

Lawrence H. Norton A/ 

General Counsel { 

James A. Kahl ~ Deputy General Counsel 

Rhonda J. Vosdingh ~\l(w.t~) Associate General Counsel for Enforcement 

Proposed MOU Between the Commission and DOJ 

This memorandum sets forth the comments of the Office of General Counsel 

regarding a proposed Memorandum of Understanding (MOU) between the Commission 

and the Department of Justice (DOJ) that we received in January 2006. As addressed 

more fully below, we believe that several parts of this proposal would have to be 

modified or clarified before we would recommend its adoption by the Commission. 

Background 

Before addressing the proposal, a brief summary of the history of our negotiations 

with DOJ might be helpful. The existing MOU relating to enforcement matters dates 

back to 1977. (Attachment A) This brief agreement acknowledges the Commission's 

exclusive jurisdiction in the civil enforcement of FECA, establishes a framework for the 

two agencies with respect to the discharge of their respective responsibilities, and 

outlines circumstances warranting the referral of matters between the two agencies. The 

MOU does not, however, dictate the nature of the working relationship between the 

agencies in each matter that has civil and criminal implications. 

The most recent efforts by DOJ and the Commission to negotiate a new MOU 

date back to the latter part of 2003. A dialogue between the two agencies began at that 

time, and the Commission and DOJ exchanged drafts of proposed revisions to the MOU 

in May of 2004. (Attachments B & C) Representatives of the two agencies subsequently 

met in June and September 2004 to discuss their respective drafts. While both agencies 
have acknowledged the benefits of cooperation in carrying out enforcement 

responsibilities, the respective drafts reflected different approaches. 

In our first discussion in June 2004, DOJ stated its view that the Commission 

should hold a matter in abeyance whenever so requested by DOJ. This, DOJ argued, 

would reflect the choice that Congress purportedly made in BCRA to give priority to the 

criminal prosecution of knowing and willful conduct above certain dollar thresholds. In 

our view, as explained more fully below, the Act, as amended by BCRA, contemplaces 

no abeyance policy of this sort. BCRA did not alter the statutory grant of exclusive 

jurisdiction with respect to civil enforcement of the FECA, the Commission's 

discretionary reporting power, the deference due conciliation agreements in criminal 

proceedings, or the Commission's responsibility for interpreting the Act and formulating 

policy with respect to it. 

Although the lack of a more current MOU has not, from our perspective, been an 

impediment to improved cooperation with DOJ, we have viewed these discussions as an 

opportunity to develop an MOU that defines the agencies' roles and establishes a 

framework for collaboration, while leaving appropriate flexibility for judgment and 

discretion in the exercise of our respective duties. To this end, our draft attempted to 

describe more clearly the emphases of our respective enforcement programs and 

highlight approaches for cooperation, particularly noting that our statutory authorities 

contemplate that enforcement may proceed simultaneously. If we accomplish that, we 

told DOJ we would be willing to recommend that the Commission look anew at its longstanding interpretation that Sections 437g and 437d(a)(9) do not allow referral of FECA 

violations prior to a finding of probable cause to believe. As we understood it, this 

reinterpretation would remedy a substantial frustration. The agencies agreed to further 

analyze the drafts and meet again. 

At the meeting in September 2004, it was agreed that the Commission's draft 

would become the working document and DOJ would propose revisions to that 

document. Those revisions were received in January of this year, when the latest DOJ 

draft was delivered to us. (Attachment D) 

Summary of the DOJ Proposal 

DOJ's January proposal incorporates parts of the initial drafts that the two parties 

exchanged in May 2004. The first twelve paragraphs are drawn from the Commission's 

document- mostly hortatory language addressing the opportunities for, and mutual 

benefits of, cooperation and joint investigations. The following nine paragraphs, which 

are large! y taken from the DOJ' s draft, mandate the referral of certain matters to OOJ 

and, to varying degrees, vest DOJ with the authority to direct the course and timing of the 

Commission's enforcement efforts. These latter paragraphs are of greatest concern to us, 

and they raise issues that fall into two broad categories: 1) the obligations of the agencies 

in regard to the referral of matters, and DOJ's ability, if any, to control the Commission's 

civil processing of matters it refers to DOJ; and 2) the obligations of the agencies in 

regard to the settlement of cases. 

2 
A. Referral and Processing 

The DOJ proposal greatly limits its obligation to refer matters to the Commission. 

DOJ will only refer to the Commission matters DOJ does not want to pursue or over 

whic:h it does not have jurisdiction. (Paragraph 13) In contrast, the Commission is 

required to report to OOJ any potential knowing and willful violations of FECA (and 

potential violations of other statutes), regardless of where in the Commission's 

investigative process the potential violations become apparent.' The result of these two 

provisions is that the potential universe of cases as to which OOJ might consider for joint 

or parallel investigations is limited to cases we refer to them. 

While the OOJ draft is not clear, it might even be DOJ's position that it will 

determine which agency takes action and when with regard to cases we refer or report to 

DOJ. Paragraph 16 says that as to referral cases, OOJ will"make a determination" as to 

whether it should pursue a criminal investigation or whether it should be referred back to 

FEC. Whatever this means, it does not seem to contemplate joint action, and it could be 

interpreted to mean that DOJ reserves the right to direct the Commission to delay its 

action on a matter while DOJ pursues a criminal case. 

In addition, the DOJ proposal requires that whenever the Commission develops 

or receives evidence of a false statement of material fact, the particulars of that false 

statement will be reported promptly to DOJ. Moreover, as to these offenses, the DOJ 

proposal clearly requires the Commission to hold its administrative matters in abeyance 

when so directed by OOJ. Paragraph 21 states that the Commission agrees to follow such 

guidance as DOJ may provide with respect to the "course and timing" of the 

Commission's administrative proceeding during the period when the criminal matter is 

pending with OOJ. 

The abeyance provisions of the proposal present the Commission with both legal 

and practical problems. As a preliminary matter, they give no weight to Congress's 

mandate that "the Commission shall have exclusive civil jurisdiction with respect to the 

civil enforcement of' the Act, and chapters 95 and 96 of Title 26, U.S. Code. 2 U.S.C. 

43 7c(b )( 1) (emphasis added). In contrast to this provision, the Act contains no language 

making the Commission's exercise of that jurisdiction dependent in any way on the 

potential for, or pendency of, parallel criminal proceedings. Treating the Commission's 

jurisdiction in that manner would necessarily undermine the Congressional grant of 

exclusivity. More practically, Section 437g(d)(2) permits criminal defendants to use a 

conciliation agreement entered into with the Commission to evidence a lack of 

knowledge or intent. Furthermore, Section 437g(d)(3) requires courts in criminal cases 

Under FECA.lhc Commission's reporting obligations are discretionary. Pursuant to 

437g(a){5)(C). when the Commission determines that there is probable cause to believe that a knowing and 

wailful violation ofFECA has occurred, it "may refer" such an apparent violation to the Attorney General. 

Pursuant to 437d(a)(9), the Commission "has the power" to "repon apparent violations" to the appropriate 

law enforcement officials. The Commission has historically interpreted this latter provision to apply only 

to nort-FECA violations. 

3 
''to take into account, in weighing the seriousness of the violation and in considering the 

appropriateness of the penalty to be imposed if the defendant is found guilty," whether 

the same act or failure to act is the subject of a conciliation agreement with which the 

defendant is in compliance. These situations can only arise if the Commission completes 

its civil enforcement proceeding before DOJ completes its criminal prosecution. A 

mandate for the Commission to send all potential knowing and willful cases to DOJ, and 

hold matters in abeyance whenever so directed, would undercut this statutory 

requirement. 

While we have agreed in many cases to delay the civil enforcement process 

pending action by DOJ, we are not able to do so in all cases. The investigatory demands 

of a case may dictate that we act without delay for many reasons. For example, the need 

to preserve evidence requires that we gather documents without undue delay. This is a 

particularly acute concern in the context of campaigns that by their nature have a limited 

life span. Similarly, it is important to reach out to witnesses while we know where they 

can be found and before memories fade. More generally, it is essential that the 

Commission have adequate time to investigate a matter, to engage in mandatory briefing 

and conciliation and, of course, to insure that the Commission can file suit, if necessary, 

before the statute of limitations expires. Deferring a civil investigation for an indefinite 

period while DOJ decides whether it wants to pursue it and, if it does, undertakes its own 

investigation, could lead to a situation where nothing is done about the matter. DOJ 

could decide, for any number of reasons, not to pursue the matter, to pursue only a small 

part of it, or to pursue different respondents, and the Commission could be left without 

adequate time to act on its own.

2 

Another issue raised by the proposal is whether holding a case in abeyance at the 

behest of DOJ would pose problems in an action under 437g(a)(8). That provision allows 

a complainant to file a petition in the U.S. District Court for the District of Columbia if 

the Commission fails to act on a complaint within 120 days of its having been filed. If 

the Commission were subject to a delay suit, it is highly unlikely that it could 

successfully defend the suit based on a .. stand-down" provision in an MOU that we 

entered into voluntarily. 

2 It is wonh noting that DOJ could take no action against a respondent whose conduct might be of great 

interest to the Commission. For eJtample, in cases involving embezzlement from a committee, DOJ does 

not hold the committee accountable in any way for false or inaccurate disclosure reports that have been 

filed with the Commission. On the other hand, the Commission has found such committees to have 

violated the Act's disclosure requirements, and may consider seeking some penalty from the committees if 

a lad. of internal controls contributed to the embezzlement. Further, where DOJ and the Commission are 

looking at matters involving the same respondents, there may not be a perfect overlap in the conduct at 

i.ssue. In other words, waiting for DOJ to act will not necessarily ensure that everything the Commission 

would view as a significant violation will be addressed. DOJ would not, for instance, be able to seek relief 

for any non-knowing and willful conduct that may be part of the same course of conduct. Also, DOJ's 

focus may simply be different For example, in one case in which a First General Counsel's Report is 

currently in progress involving MZM, Inc. and MZM PAC, DOJ recently announced one defendant's 

agreement to plead guilty to criminal violations of 2 U.S.C. 441 f. However, the enforcement matter before 

the Commission contains allegations not merely of reimbursed contributions, but allegations of coerced and 

facilitated contributions, as well. 

4 
As a practical matter, DOJ's need for this abeyance authority is not evident. We 

are not aware of any case where prosecutors have complained to us that the 

Commission's simultaneous investigation has compromised a criminal investigation. To 

the contrary, there have been instances where parallel investigations have been mutually 

beneficial to the criminal and civil investigations. Indeed, we have forged cooperative 

relationships with a number of U.S. Attorney's Offices in which we have been able to 

lend our expenise in campaign finance law and exchange information that provides each 

of us with a fuller factual record. In a couple of recent instances, U.S. Attorney's Offices 

have taken the unusual step of obtaining from the coun an order pennitling the disclosure 

of Rule 6(e) infonnation (bank records, in one case), that saved us substantial time. 

Moreover. there have been times when knowing and willful conduct would never 

have been prosecuted by DOJ if not for the Commission's investigation. Recently, for 

example, the Commission received a complaint that was simultaneously filed with DOJ. 

(MUR 5384 -Never Stop Dreaming) The complaint alleged that two individuals, known 

as Bill Baulding and Jade Newhart of Never Stop Dreaming, Inc., had misrepresented 

themselves as acting on behalf of Gephardt for President, Inc. in connection with 

planning a fundraiser for that committee. The Commission found reason to believe that 

these respondents violated 2 USC 44lh and authorized an investigation. Our 

investigation uncovered the real identities of the respondents- Bianchi Dugatkin and 

William Dugatkin, individuals who had used several aliases and evaded service of the 

Cornmjssion's factual and anal 

we were investigating the matter, it lay donnant at DOJ after the 

r,..n-, .... n, of the FBI case agent. The new information we uncovered rekindled DOJ' s 

interest in the matter. Thereafter, we worked closely with DOJ, and the Dugatkins were 

criminally prosecuted for fraudulent solicitation. 

In reviewing the referral and abeyance aspects of the proposal, we are also struck 

by how much they differ from the MOUs executed by other enforcement agencies, 

including DOJ. Those agreements, like the Commission's original proposal, focus on 

cooperation in joint or parallel investigations. To our knowledge. however. other civil 

law enforcement agencies that have overlapping jurisdiction with DOJ are not required 

to, and do not in practice, notify DOJ in every case where there may be criminality and 

agree to hold such cases in abeyance at the request of DOJ. The scope of the referral 

obligation in the proposal is particularly striking in regard to false statements. We 

encounter witnesses who are not truthful on a regular basis, and it is our practice to 

recommend that the Commission send the most serious of such matters to DOJ. A 

blanket requirement to refer every matter where there may be a material false statement 

would quickly result in a large number of reports to the Commission and referrals to 

DOJ, affecting the discharge of our statutory obligations and the effective management of 

our cases. 

Finally, the referral requirements of DOl's proposal may well have an impact on 

self--referrals by respondents (i.e .• "sua spontes"). Many of these matters come to us from 

5 
companies that discover violations and want to come clean with the Commission, rather 

than risk being found out at some later time. In exchange for full cooperation and 

effecli ve remedial relief, including payment of an appropriate penalty, we are typically 

willing to recommend that the Commission forego knowing and willful findings or an 

admission to that effect. An MOU that requires the Commission not only to refer all 

knowing and willful matters to OOJ. but also to stand down until OOJ decides whether to 

"refer'' the matter back:, may discourage the reporting of these matters in the first place. 

B. Settlements 

Paragraphs 22 through 24 of the proposal concern the settlement of civil and 

crimmal matters. and underscore the benefits of global settlements that simultaneously 

resolve related criminal and civil violations ofFECA. (Paragraph 22) If a defendant 

requests a global settlement, DOJ commits to work with the Commission to determine if 

such a settlement is possible. (Paragraph 24) In all other instances, DOJ undertakes to 

ensure that a plea agreement reserves the Commission's ability to seek a civil penalty or 

other administrative remedy. (Paragraph 23) While these paragraphs are drawn from the 

Commission's first draft, DOJ deleted one critical provision: DOJ's obligation to refer a 

matter to the Commission prior to entering a plea agreement. 

Given the limits that OOJ seeks to put on its obligations, we will need to clarify 

how 1 t intends to give effect to paragraph 22's admonition to pursue global settlements. 

Our experience to date is that the Public Integrity Section at DOJ has not favored such 

agreements. and may even beheve that raistng the poss1bility of such an agreement with 

defense counsel is improper. Most typically, when we are notified about a settlement by 

DOJ, it is on or near the day that the plea if filed. That is certainly not what we 

contemplated in drafting paragnph 22. 

In this vein. a couple of recent matters shed light on the nature of our interactions 

with DOJ. ln the Dugatkins/Never Stop Dreaming matter, both the criminal and civil 

aspects of that case were ultimately disposed of in DOJ's plea agreement. However, 

despite our having provided DOJ with key evidence that allowed it to obtain a plea from 

the defendants. DOJ gave the Commission only 24-hour's notice to review and either 

the settlement of the MUR the 

App1·oach to Discussions with DOJ 

At this stage in our discussions, it would appear to be most productive to explore 

ways to expand our cooperative endeavors while recognizing the enforcement 

responsibilities of both agencies. To be sure, there are matters as to which it is 

appropriate for the Commission to delay our investigations or limit their focus for some 

6 
period of time to avoid interfering with a criminal investigation. But there are also times 

when the Commission cannot hold a matter in abeyance and fulfill its enforcement 

obligation. A working relationship that recognizes both of these facts, and recognizes the 

benefits of cooperative joint investigations would well serve the interests of both 

agencies. 3 Such a relationship can be established with the aid of a new MOU, but such 

an agreement is not essential to achieving this goal. 

3 In July 1997. the Attorney General issued a memorandum on Coordination of Pamllel Crimintrl, Civil 

and Admimsrrative Proceedings. This document underscores the murual advantages of parallel 

investi gal1ons, and states that investigative coordination expands the arsenal of remedies, increases 

program Integrity, and represents the full range of the Government's interests. 

7 
Attachment A 
5468 Guidelines-Regulations-Rules 280 7-98 

MEMORANDUM OF UNDERSTANDING WITH DEPARTMENT OF JUSTICE 

(f 2042] 

The following is intended to serve as a guide 

for the DEPARTMENT OF JUSTICE (hereinafter referred to as the .. Department") and 

the Federal Election Commission (hereinafter 

referred to as the "Commission") in the dis· 

charge of their respective statutory responsibilities under the Federal Election Campaign 

Act and Chapters 95 and 96 of the Internal 

Revenue Code: 

(1) The Department recognizes the Federal 

Election Commission's exclusive jurisdiction in 

civil matters brought to the Commission's attention involving violations of the Federal 

Election Campaign Act and Chapters 95 and 

96 of the Internal Revenue Code. It is agreed 

that Congress intended to centralize civil enforcement of the Federal Election Campaign 

Act in the Federal Election Commission by 

conferring on the Commission a broad range of 

powers and dispositional alternatives for handling nonwilful or unaggravated violations of 

these provisions. 

(2) The Commission and the Department 

mutually recognize that all violations of the 

Federal Election Campaign Act and the antifraud provisions of Chapters 95 and 96 of the 

Internal Revenue Code, even those committed 

knowingly and wiJCully, may not be proper 

subjects for prosecution as crimes under 2 

U.S.C. 44lj, 26 U.S.C. 9012 or 26 U.S.C. 9042. 

For the most beneficial and effective enforcement of the Federal Election Campaign Act 

and the antifraud provisions of Chapters 95 

and 96 of the Internal Revenue Code. those 

knowing and wilful violations which are significant and substantial and which may be described as aggravated in the intent in which 

they were committed, or in the monetary 

amount involved should be . referred by the 

Commission to the Department for criminal 

prosecution review. With this framework, numerous factors will frequently affect the determination of referrals, including the repetitive 

nature of the acts, the existence of a practice 

or pattern, prior notice, and the extent of the 

conduct in terms of geographic area, persons, 

and monetary amounts among many other 

proper considerations. 

(3) Where the Commission discovers or 

learns of a probable significant and substantial 

violation, it will endeavor to expeditiously in· 

vestigate and find whether clear and compel· 

ling evidence exists to determine probable 

cause to believe the violation was knowing and 

~2042 

wilful. If the determination of probable cause 

is made, the Commission shall refer the case to 

the Department promptly. 

(4) Where information comes to the attention of the Department indicating a probable 

violation of Title 2. the Department will apprise the Commission of such information at 

the earliest opportunity. 

Where the Department determines that evidence of a probable violation of Title 2 

amounts to a significant and substantial knowing and wilful violation, the Department will 

continue its investigation to prosecution when 

appropriate and necessary to its prosecutorial 

duties and functions, and will endeavor to 

make available to the Commission evidence 

developed during the course of its investigation subject to restricting law. Where the alleged violation warrants the impaneling of a 

grand jury, information obtained during the 

course of the grand jury proceedings will not 

be disclosed to the Commission, pursuant to 

rule 6 of the Federal rules of criminal 

procedure. 

Where the Department determines that evidence of a probable violation of title 2 does not 

amount to a significant and substantial knowing and wilful violation (as described in paragraph 2 hereoO, the Department will refer the 

matter to the Commission as promptly as possible for its consideration of the wide range of 

appropriate remedies available to the 

Commission. 

(5) This memorandum of understanding con· 

trois only the relationship between the Commission and the Department. It is not 

intended to confer any procedural or substan· 

tive rights on any person in any matter before 

the Department. the Commission or any court 

or agency of Government. 

Dated: December 5, 1977. 

For the United States Department of 

Justice. 

BENJAMIN R. CIVILETTI, 

Assistant Attorney General, Criminal 

Division. 

Dated: December 8, 1977. 

For the Federal Election Commission. 

WILLIAM C. OLDAKER, 

General Counsel. 

[Source:43 F.R. 5441, February 8, 1978.] 

C1998,CCHINCORPORATED 
Attachment B 
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 204&3 

VIA HAND DELIVERY 

Christopher A. Wray 

Assistant Attorney General 

DepanrnentofJustice 

Criminal Division 

950 Pennsylvania Ave. 

Washington, D.C. 20530-0001 

Dear Mr. Wray: 

Enclosed is a draft version of the revised Memorandum of Understanding. I hope you agree that 

it will help to establish a new foundation for a mutually beneficial and cooperative relationship. 

In furtherance of this spirit of cooperation, much of the language contained in this draft was 

taken from Department of Justice sources. In particular, I would like to acknowledge our 

reliance on the Criminal Division's publication Federal Prosecution of Election Offenses, by 

Craig C. Donsanto; Mr. Donsanto's public pronouncements; The Attorney General's July 28,1997 

Memorandum Coordination of Parallel Criminal, Civil and Administrative Proceedings; as well 

as the Department of Justice's Memoranda of Understanding with other Federal agencies. 

Moreover, I would draw your attention particularly to paragraph 17 in which we seek to enhance 

our cooperation by establishing a framework for the Commission's expedited reporting of 

knowing and willful violations, which should allow the Department of Justice to consider the 

prosecutive merits of some matters in a more timely fashion. 

We look fmward to working closely on this project and any future matters over which we have 

concurrent jurisdiction. If you have any questions or need further infonnation feel free to contact 

Associate General Counsel Rhonda Vosdingh at (202) 694-1650. 

Enclosure 

Memorandum of Understanding 

cc: NoelL. Hillman 

Sincerely, 

Lawrence H. Norton 

General Counsel 
............ ________________________ __ 

Memorandum of Understanding 

Between the Federal Election Commission and the Department of Justice 

Purpose 

1. The following is intended to serve as a guide for the Federal Election Commission 

("Commission'') and the Department of Justice ("Department") in the discharge of their 

respective statutory responsibilities under the Federal Election Campaign Act, as recently 

amended by the Bipartisan Campaign Reform Act of2002 ("BCRA"), and Chapters 95 and 96 of 

the Internal Revenue Code (referred to collectively hereinafter as "FECA"). 

2. The purpose of this Memorandum is to promote the most efficient and effective 

use of law enforcement resources and to establish guidelines for the Conunission and the 

Department to conduct joint investigations and share information and evidence, subject to legal 

and ethical restraints. 

Authority 

3. The Commission has exclusive jurisdiction over civil enforcement of the FECA. 

The Commission's civil enforcement authority extends to knowing and willful violations as well 

as unintentional violations. 

4. lit is understood that Congress determined that compliance with the FECA and 

deterrence ofFECA violations should generally be achieved through conciliation in the 

Commission's civil enforcement proce~.!:.l Through conciliation the Commission can seek a 

range of remedies to deter violations and ensure compliance, including civil penalties, refunds, 

disgorgement, cease and desist provisions, requirements to amend disclosure reports filed with 

the FEC, required training, and other corrective steps. 

5. The Commission has the exclusive authority, conferred by the FECA itself, for 

administering and interpreting the FECA. 2 U.S.C. §§ 437c(b)(l), 437d(e). The Commission's 

views concerning the meaning of the FECA and the implementing regulations are to be given 

great deference. 

6. The Department has criminal prosecutorial authority over knowing and wi 

violations of the FECA. The Commission and the Department mutua~:y recognize that a 

knowing and willful violations of the FECA may not be proper subjects for prosecution 

crimes under 2 U.S.C. § 437g(d), 26 U.S.C. § 9012, 26 U.S.C. § 9042, or other appror· 

statutes. 

7. The role of the Department in matters arising under FECA is to pre' 

that falls in the FECA's "heartland," i.e., where there is no dispute as to the appli, 

law to the facts involved. The Department shall defer to the Commission in those ·. 

matters in which application of the law to the facts is not clear, when the necessary 

of scienter is problematic, when there is an unresolved question oflaw, or when tb1.: . 

violation turns on the content of one's speech. The legal precedents formulated b:, . '· 

Document#: 4784 v14 
--..... . 

Commission and the courts provide the basis for detennining whether there is a clear application 

of the law to the facts prior to criminal prosecution ofFECA violations. 

]lnvestigations 

8. Both the Department and the Commission will assist each other in fulfilling their 

respective statutory responsibilities and will coordinate their efforts, consistent with all legal 

restrictions, to assist and not impede each other's investigations. Because consultation will be 

most effective at the earliest stages of a matter, the Department and the Commission will 

designate specific officials to serve as primary points of contact who will meet no less than once 

every three calendar months to confer on ongoing matters and other topics of mutual interest. 

Cooperation in Parallel Investigations 

9. In order to maximize the efficient use of resources to enforce the FECA, the 

Commission and the Department will consider whether there are investigative steps common to 

civil and criminal enforcement actions. Where appropriate, the Commission and the Department 

should coordinate an investigative strategy that includes prompt decisions on the merits of 

criminal and civil matters, sensitivity to grand jury secrecy, proper use of discovery and the 

potential value of global settlements. By coordinating investigative strategy, the parties bring 

additional expertise to their respective efforts, expand the range of available remedies, increase 

both the integrity ofthe electoral process and deterrence of future violations, promote 

compliance, and better represent the full range of the Government's interests. 

10. The Department and the Commission jointly investigating a matter may together 

undertake fact-finding activities such as interviewing witnesses and getting documents. 

Concurrent efforts should be used to prevent impediments to effective enforcement, such as stale 

documents, missing witnesses, and the passage of applicable statutes of limitation. Whenever 

appropriate, and with proper safeguards, the Department shall obtain evidence prior to initiation 

of a grand jury. Such evidence can then be shared with the Commission. This informationsharing can provide a mechanism through which the Government can achieve a comprehensive 

settlement of all ofthe Government's various interests. 

11. Both the Department and the Commission recognize that they are subject to 

confidentiality provisions which restrict the public dissemination ofnonpublic information 

shr.:ed during the course of parallel investigations, and will not release such information without 

obt•.ining the prior consent of the originating agency. Unless prohibited by law, the Department 

and the Commission will each promptly notify the other in writing of any legally enforceable 

demand or request for such information (including, but not limited to, a subpoena, court order, or 

request pursuant to the FOIA), providing the other agency a reasonable opportunity to respond to 

the demand prior to complying with the demand or request, and asserting all legal exemptions or 

privileges on the other agency's behalf as requested. 

12. Upon a matter becoming public, both the Department and the Commission will 

promptly make available to each other public documents relating to their proceedings (e.g., 

criminal indictments, unsealed search warrant affidavits, criminal plea agreements, civil 

conciliation agreements, and civil complaints filed by the Commission in U.S. District Court). 

-2-
13. The Department will provide assurances to witnesses in Commission proceedings 

by issuing no prosecution letters and providing infonnalletter immunity where appropriate. 

Similarly, the Commission will provide the Department with expert analysis and testimony on 

FECA-related issues where appropriate. 

Department Referrals to the Commission 

14. When information comes to the attention of the Department indicating that there 

has been an apparent FECA violation that is not knowing and willful, the Department will, 

without awaiting the conclusion of its own investigation, routinely and promptly refer the matter 

to the Commission. The Department will also report to the Commission apparent knowing and 

willful violations of the FECA that, based on the criteria discussed below, may not be suitable 

for criminal prosecution and those for which simultaneous civil prosecution would aid in 

achieving deterrence and compliance with the law. Such referrals shall include appropriate 

access to investigative materials gathered by the Department for which dissemination is not 

otherwise restricted. 

Commission Referrals to the Department 

15. The Commission may refer apparent knowing .and willful violations of the FECA 

to the Department. In determining whether to refer a violation to the Department, the 

Commission may consider the following factors, among others: the presence of fraudulent or 

deceptive conduct; the existence of prior notice as to illegality; provable perjury, obstruction or 

false statements in the course of the Commission's investigation; monetary amount in violation; 

scope of activity; the existence of a practice or pattern that included repetitive acts and multiple 

persons; impact on election; strength of evidence, particularly the evidence of scienter; strength 

of legal theory; prompt voluntary self-disclosure to the Commission upon discovery of the 

violation; cooperating fully in the course of the Commission's investigation, including waiving 

any privileges applicable to internal investigations; waiving statute of limitations; promptly 

taking meaningful corrective measures, including appropriate disciplinary action against 

responsible individuals; conciliating the matter with the payment of a substantial civil penalty 

and any additional remedial measures requested by the Commission; taking full responsibility in 

the conciliation agreement; and compliance with the conciliation agreement. 

16. Mitigating factors in considering whether criminal enforcement is appropriate 

when a person is alleged to have committed a FECA violation include: entry into a conciliation 

agreement with the Commission which specifically dt '.s with the act or failure to act 

constituting the alleged violation and which is still in ei.fect; making a prompt disclosure to the 

Commission upon discovery of the violation; being fully forthcoming in describing the violation; 

cooperating fully in the course of the Conunission's investigation, including waving any 

privileges that may be applicable to the internal investigations; and agreeing through conciliation 

to pay a substantial civil penalty and implement meaningful corrective measures. 

1 7. When the Commission detennines that there may have been an apparent knowing 

and willful violation of the FECA, the Commission may report it to the Department, without 

awaiting the conclusion of its own ongoing civil investigation and prior to a finding of probable 

cause. 2 U.S.C. § 437d(a)(9). The Commission also will report apparent violations of other 

- 3-
-· -

-· 

-- . statutes over which the Department may have jurisdiction. 2 U.S.C. § 437d(a)(9). Such reports 

will not constitute a recommendation as to the merits. 

18. Where the Commission, at the conclusion of an investigation, determines that 

there is probable cause of a knowing and willful violation of the FECA, the Commission may 

refer the case to the Department. 2 U.S.C. § 437g(a)(5)(C). 

19. Whenever the Commission refers an apparent violation to the Department, the 

Department shall report to the Commission any action taken by the Department regarding the 

apparent violations. Each report shall be transmitted within 60 days after the date the 

Commission refers an apparent violation, and every 30 days thereafter until the final disposition 

of the apparent violation. 

Settlements 

20. The Department and the Commission recognize the benefits of global settlements 

that simultaneously resolve related criminal and civil violations of the law. 

21. If the Department has not already referred a matter to the Commission, it will 

make such a referral prior to entering into any criminal plea agreement as to violations of the 

FECA. The Department will ensure that all draft or final plea agreements presented to a 

defendant contain a specific disclaimer that nothing in the agreement waives or limits in any way 

the authority of the Commission to seek civil penalties or other administrative remedies for 

violations of the FECA pursuant to 2 U.S.C. § 437g(a). If the defendant requests a global 

settlement, the Department and the Commission will work together to determine if it is possible 

to resolve simultaneously that person's criminal and civil liability arising from the same or 

related transactions in a global settlement. · 

Limitation 

22. This Memorandum of Understanding controls only the relationship between the 

Commission and the Department. It is not intended to confer any procedural or substantive 

rights on any person in any matter before the Department, the Commission, or any court or 

agency of Government. The parties will jointly review this MOU every five years from the date 

of its execution to make any suggestions for modification or amendment. 

-4-
Attachment C 
--··--·------

N.i'. Larry Norton 

(] eneral Counsel 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Dear Mr. Norton: 

U.S. Department of Justice 

Criminal Division 

Washington. D.C. 20530 

MAY 1 9 2004 

)> 

--

·o 

w 

We have received the Federal Election Commission's draft revision to the 1977 

Memorandum of Understanding (MOU) between the Commission and the Department of Justice 

eonceming the implementation of the law enforcement responsibilities of our respective agencies 

with respect to violations of the Federal Election Campaign Act, as amended. Thank you for this 

,;onstructive first effort at this important task. 

Attached is an alternative draft of the revised MOU we have prepared which we 

commend to your consideration. We look d to discussing the issues raised in our 

respective drafts at your earliest conve · 

Very truly yours, 

Attachment· 
•• 

MEMORANDUM OF UNDERSTANDING 

BETWEEN THE UNITED STATES DEPARTMENT OF JUSTICE AND 

THE FEDERAL ELECTION COMMISSION REGARDING ENFORCEMENT OF THE 

FEDERAL CAMPAIGN FINANCING LAWS AND RELATED OFFENSES 

This Memorandwn of Understanding is intended to serve as a guide for the United States 

Department of Justice (the Department) and the Federal Election Commission (the Commission or 

the FEC) in the discharge of their respective statutory responsibilities regarding the federal campaign . 

financing laws and related offenses. 

(1) Definitions. For Purposes of this Memorandum of Understanding: 

(a) the term "federal campaign financing laws" means the Federal Election Campaign 

A.ct of 1971, as amended (FECA), 2 U.S.C. § 431-§ 455, and the anti-fraud provisions of the 

presidential campaign funding laws contained in Chapters 95 and 96 of the Internal Revenue Code 

(IRC), 26 U.S.C. §§ 9012, 9042; 

(b) the term "criminal violation of the federal campaign financing laws" means a 

violation oflaw that was committed knowingly and willfully, and, in the case of an FECA violation, 

involves a sum which in the aggregate equals or exceeds the applicable jurisdictional monetary 

threshold provided in 2 U.S.C. § 437g(d); 

(c) the term "knowing and willful violation" means a violation of the federal 

campaign financing laws by a person or entity of a prohibition, limitation, requirement, or duty that 

is clearly established under the federal campaign financing laws, of which the person or entity was 

aware, and which the person or entity violated notwithstanding that knowledge; and 

(d) the term "related offenses" includes but is not limited to false statements within 

the jurisdiction of a federal agency, in violation of 18 U.S.C. §1001; willfully causing, and aiding 

and abetting, false statements within the jurisdiction of a federal agency, in violation of 18 U.S.C. 

§ 1001 and§ 2; conspiracy, in violation of 18 U.S. C. §371; obstruction of agency proceedings, in 

violation of 18 U.S.C. § 1505; and perjury, in violation of18 U.S.C. § 1621. 

(2) Purpose of Memorandum. In executing this Memorandum of Understanding, the 

Commission and the Department seek to increase the effectiveness of their respective law 

enforcement responsibilities over violations of the federal campaign financing laws and related 

offenses by harmonizing their discrete statutory responsibilities in a manner that follows the dictates 

of FECA and at the same time provides appropriate avenues for necessary communication and 

flexibility between law enforcement agencies. 

(3) Jurisdiction oftbe Commission. The Department recognizes that the Commission has 

exclusive jurisdiction over all civil violations of the federal campaign financing laws. It is agreed 

that Congress intended to centralize civil enforcement of the federal campaign financing laws in the 

Conunission by conferring on the Commission a broad range of powers, including sole jurisdiction 
--· .. --·----------. 

.. 

10 enforce noncriminal dispositional alternatives for handling nonwillful and financially 

un.aggravated violations ofthese laws. 

(4) Juri§diction of the Department. 

(a) The Commission recognizes that the Department has exclusive jurisdiction over 

all criminal violations of the federal campaign financing laws and related offenses. 

(b) The Commission and the Department recognize that in 2002 Congress increased 

the Department's ability to prosecute and thereby deter criminal violations of the federal campaign 

financing laws by enacting enhanced criminal penalties for such violations, by extending the statute 

of limitations, and by mandating that the United States Sentencing Commission promulgate a 

se:ntencing guideline for those offenses that would reflect "the serious nature of [FECA] violations 

rud the need for aggressive and appropriate law enforcement action to prevent such violations." 

Bipartisan Campaign Reform Act of2002, § 314(b)(l), Pub. L. 107-155 (Mar. 27, 2002). Both the 

Commission and the Department further recognize that the sentencing guideline promulgated by the 

Sentencing Commission in response to this congressional mandate provides for the possibility, and 

in many cases the likelihood, of imprisonment for campaign financing crimes that are accompanied 

by various aggravating factors. U.S.S.G. §2C1.8. 

(5) Department Referral to the Commission. 

(a) The Department agrees to refer to the Commission any matter brought to its 

a1tention reflecting a substantive violation of the federal campaign financing laws if: (a) the facts 

d') not suggest a knowing and willful violation; (b) the facts fall below the jurisdictional monetal)' 

threshold for a criminal FECA violation; or (c) the Department determines that the matter does not 

otherwise warrant criminal prosecution. 

(b) In fulfilling its obligation under subparagraph (a), the Department agrees to refer 

all available information relating to such matter, consistent with applicable prohibitions, privileges, 

and restrictions(~ Federal Rule of Criminal Procedure 6(e), the Privacy Act, and restrictions 

i::nposed by laws and regulations addressing national security information) as promptly as possible 

for its consideration ofthe wide range of noncriminal remedies available to the Commission. 

(6) Criminal Violations of Federal Campaien Financing Laws. The Commission and 

the Department mutually recognize that all knowing and willful violations of the federal campaign 

Jinancing laws that aggregate or exceed the applicable criminal jurisdictional amount represent· 

criminal offenses in violation of the laws of the United States; that Congress intended that all such 

'liolations would be subject to possible criminal prosecution; and that whether such a violation 

:;hould be prosecuted is a decision that can only be made by a criminal prosecutor employed by the 

Department. 

2 
--·-·-----------

.. 

(7) Commission Referral to the Department 

(a) If the Commission or its staff develops or receives evidence that a knowing and 

willful violation of the federal campaign financing laws above the criminal jurisdictional amount 

may have occurred, or that a related offense maybave occurred, the Commission's Office of General 

Cc,unsel shall refer the matter to the attention of the Public Integrity Section of the Department's 

Criminal Division, which is the component of the Department responsible for overseeing the 

Dc:partment' s prosecution of campaign financing offenses. This provision is intended to supplement, 

and not supplant, Commission referrals to the Department pursuant to 2 U.S.C. § 437g(a)(S)(C). 

(h) If, during its review of a violation of the federal campaign financing laws, the 

O)mmission or its staffis uncertain whether sufficient evidence suggesting a knowing and willful 

violation of these laws has been developed orreceived, the Commission's Office of General Counsel 

sLall consult informally with the Department's Public Integrity Section on this issue. 

(8) Department Review of Referral. 

(a) Upon being advised of the facts of a matter in accordance.with Paragraph 7, the 

Department shall review the matter and· make a determination as to whether the matter: 

(1) should be handled as a criminal investigation by the Department; or 

(2) should be referred back to the Commission for civil enforcement action. 

(b) The Department shall then advise the Commission of its determination under this 

Paragraph as promptly as possible. 

(c) In the event that the matter is referred back to the Commission, the Commission 

agrees that if in the course of further proceedings it develops additional or different evidence 

:;uggesting a knowing and willful violation it will provide such information to the Department's 

Public Integrity Section for reevaluation as a possible criminal matter. 

(9) Coordination ofParallel Proceed in as. In the event that the Department determines that 

a campaign financing matter should be handled criminally, the Commission agrees to coordinate any 

parallel civil or administrative action regarding the matter with the Department. 

(1 0) Department Investh:ative Materials Provided to the Commission. At the conclusion 

of a criminal prosecution of a campaign :financing offense, or when prosecution of such a matter has 

been declined after an investigation by the Department, the Department shall make available to the 

Commission investigative materials developed by the Department during the course of its 

investigation, subject to restricting law and regulations. In those cases where the matter warranted 

the impaneling of a grand jury, information obtained through the grand jury proceedings, which is 

3 
pre tected from disclosure by Rule 6 of the Federal Rules of Criminal Procedure, shall not be 

disclosed to the Commission. 

(11) Q-lobal Settlement. In the event a person or entity should wish to dispose ofhislher/its 

ci\'il or administrative liability under the campaign financing laws simultaneously or in connection 

with his/her/its plea of guilty to a criminal violation of such laws, the Department agrees to ascertain 

the monetary amount the target or defendant is willing to pay by. way of an administrative fine and 

to advise the Commission's General Counsel of that amount. The Commission shall then determine 

whether the amount tendered is an appropriate administrative disposition of the matter or whether 

a different amount would be an appropriate administrative disposition, and shall advise the 

Department of its determination. If the defendant and the Department agree with the Commission • s 

d€:termination, both the Department and the Commission shall take all reasonable steps to reach a 

global settlement acceptable to the defendant and all parties. 

(12) Related Offenses in the Course of Commission Proceedines. 

(a) Both the Department and the Commission acknowledge that information, records, 

::nd statements that are materially false, which were intentionally made· or submitted to the 

Commission represent potential federal felonies under 18 U.S.C. § 1001 and § 1505. The 

Commission and the Department agree that whenever the Commission develops orreceives evidence 

that a witness in a Commission administrative proceeding, or a person or entity who has beeri 

required to present testimonial or documentary evidence to the Commission in the furtherance of an 

FEC investigation, may have falsely represented a material fact, the particulars of that false statement 

will be reported promptly to the Department for prosecutive evaluation. 

(b) The Department agrees to evaluate the matter reported by the Commission as 

quickly as is reasonably feasible, and to advise the Commission of its determination as to whether· 

:1 criminal investigation or criminal proceedings are warranted. 

(c) The Commission agrees to cooperate with the Department in the evaluation and, 

if warranted, the prosecution of such false statements, and agrees to follow such guidance as the 

Department may provide with respect to the course and timing of the Commission•s administrative 

proceeding during the period when the criminal matter thus reported is pending with the Department. 

(13) Other Crimes. In addition to the undertakings agreed to in Paragraphs 7 and 12, in the 

event that the Commission in the course of an administrative enforcement or audit proceeding 

develops or receives evidence that a violation of another federal criminal law ~ embezzlement, 

fraud, bribery, extortion) may have occurred, the Commission agrees to bring that evidence promptly 

to the attention of the Department, and agrees to follow such guidance as the Department may 

provide with respect to the course and timing of the Commission's administrative proceeding during 

the period when the criminal matter thus reported is pending with the Department. 

4 
-- ... 

(14) Immunity. 

(a) The Department and the Commission recognize that a witness in an administrative 

proceeding before the Commission may assert his or her right under the Fifth Amendment of the 

United States Constitution to remain silent in order to avoid incriminating himself or herself, and 

acknowledge that there is a procedure in federal criminal law set forth in 18 U.S.C. § 6004 whereby 

ag•!ncies of the United States, such as the Commission, can receive judicial orders of formal 

immunity that will result in requiring said witness to give evidence. The Commission recognizes 

tha: a judicial order under 18 U.S.C. § 6004 requires preclearance from the Department. 

(b) The Department and the Commission agree that whenever a witness in an FEC 

pre ceeding claims his or her Fifth Amendment right to -remain silent, the Commission shall promptly 

bring that claim and the facts surrounding it to the attention of the Department. The Department 

agTees to evaluate the facts thus provided to determine whether the Fifth Amendment claim should 

result in a request for formal immunity under 18 U.S.C. § 6004, or whether, on the other hand, the 

m(ttter should be pursued criminally without such a grant of immunity. In the event that the 

D~partment determines that seeking a grant of formal immunity is apptopriate, the Department 

agrees to process the requisite clearance for that immunity order expeditiously. 

(15) Point-of-Contact. The Public Integrity Section ofthe Department's Criminal Division 

shall be the Commission's point-of-contact for all of the Department's obligations under this 

Memorandum of Understanding, and said Section will be responsible for performing or supervising 

al'1 of the Department's undertakings and agreements under this Memorandum. 

(16) Scope of Memorandum. This Memorandum controls only the relationship between 

tbe Commission and the Department. It is not intended to confer, and does not confer, any 

procedural or substantive rights on any person or entity in connection with any matter that is before, · 

or that may be brought before, the Department, the Commission, or any court or agency of the 

Federal Government. 

(11) Repeal of 1977 Memorandum. This Memorandum repeals the 1977 Memorandum 

o [Understanding between the Commission and the Department regarding the handling of campaign 

ti nancing violations. 

(18) Effective date. The effective date of this Memorandum ofUnderstanding shall be the 

,j ate the executed Memorandum is published in the Federal Register. 

--------------------------------------- FEDERAL ELECTION COMMISSION U.S. DEPARTMENT OF JUSTlCE 

TITLE: TITLE: __________________ __ 

DATE: ___________________________ _ 

5 
Attachment D 
FFO~ .IC INTEGRITY 

Jarr!t:S A. Kahl, Esquire 

Dep·Llty General Counsel 

F'edc:ral Election Commission 

999 F.: Street. NW 

Wa.!hington, DC 20463 

Dc.ar MT. Kahl: 

(MONl 1. 9' 06 12: 15/ST. 12: 14/NO. 4861578665 P 2 

lJ.S. Department of Justice 

Criminal Division : 

DEC 2 9 2COS 

i 

~ I 

..0 

·--::-

w 

r 

After reviewing the Commission's proposed revision to the 1977; Memorandum pf · 

1Jnderstanding (MOU) between the Commission and the Department an1 ~eeting with staff ~f 

its General Counsel's office to c.liscuss our respective revisions to the cu~cnt MOU, we have 

]>repared another proposed MOU tor the Commission's consideration. 11hi~ dran incorporales 

,;ignificant provisions from both of our prioJ· proposals. ! · 

A copy of the draft MO\.l is enclosed. Each provision is annotated to reflect its source 

.ag.;::ncy. As you will see, this version is based primarily on the CommissJon 's proposed MOU. 

In c:ombjn.ing the two proposals, we attempted to address the issues that ;re critical to our 

res.1>ective Jaw enforcement r~spon~ibilitics with respect to violation:. of ~he Federal F..1ection 

Campaign Act. Please let us know after you and your slaffhave had an ~pportunity to review 

thi1; proposal 

We look forward to rnf:~o:ling with you to discuss this matter, anu we thank you for your ef~)rlS in thill imponant endea,•or. 

V cry truly yours, 

1c 1ntegrity Section 

Er closure: 
FRC~ DOJ ?UBLIC INTEGRITY (MONl 1. 9' 06 12: 15/ST. 12: 14/NO. 4861578665 P 3 

DRAFT 

M.EMORANDllM OF UNDERSTANDING 

BETWEEN THE }'f.DERAI. ELECTION COMMISSION AND 

TilE UNITED STATES D'tPAR"fMENT OF JUSTICE REGARDING 

ENFORCEMENT OF TllE l•'EDERAL CAMPAIGN FINANCING I.A WS1 

I ' 

i 0 

I . I 

l FEC] 1. The following is intended to serve as a guide for the Fede~l Election Commission 

rconunission'') and the United States Department of Justice (''Department") in the discharge of 

their respective statutory responsibilities Wlder the Federal Election Cam~aign Act, as amended 

by the Bipartisan Campaign Reform Act of2002, and Chapters 95 and 96!ofthe Internal 

Revenue Code (referred to collectively hereinafter as the ''federal campaiJll :financing Jaws'). 

I 

[:FE C) 2. The purpose of this Memorandum is to promote the most dfficient and effective 

use 1>f law enforcement resources concerning violations uf th..: federal ca~p~ign financing laws 

and to establish guidelines for the Commission and the Department to co.1d~ct joint . 

iJ:tvestigations and share infonnation and evidence, subject to legal and cjica) restraints. 

: 

;Qs.Jinition s I 

[DOJ] 3. For purposes of this Memorandum ofUnderstanding: 

I 

(a) the tenn .. fedt.T~I campaign financing Jaws .. means the federal EJection 

Campaign Act of 1971, as amended ("fECA"), 2 u·.S.C. § 431·§ 455, and the presidential 

~;arrpaign ~mding laws c~nlained in Chapters 95 and 96 of the lntemal Rfenu~ Coil~, ... 6 u.s.c. §§ 9012, 9042, i 

. (b) the tenn .. criminal violation of the federal campaign fiJ}ancing Jaws" means 

il violation oflaw that was comrnilleu knowingly and willfully, and, jn the case of an l-"'ECA 

viCJI ation, involve!IO a sum which in the aggregate equals or exceeds the apJ?Iicable jurisdictional 

lrtW:letary threshold for FECA crimes provided in 2 U.S.C. § 437g(d); 1 

0 

(c) the tenn .. knowing and willful violation" means a violation of the fcdercll 

·campaign financing laws by a person or entity of a prohibition, limitation, requirement, or duty 

tha1 is clearly established under the federal campaign financing Jaws, of which thE: person or 

em ty was aware, and which the person or entity violated notwithstanding that knowledge; and 

(d) lh~ teTTn .. rclaled offenses" includes but is not limited to false statements 

within the jurisdiction of a fedcr3l ugency, in violation ofl8 U.S.C. § 100 l; willfully coausing, and 

'The source of each paragraph of this composite DOJ/FEC MOO is indicated. 
~R ;M C.CJ PUBLIC INTEGRITY {MON) L 9' 06 12: 15/ST. 12: 1 4/NO. 4861578665 P 4 

I 

aid'i~1g and abetting, false statements within the jurisdjction of a federal agency, in vjo)ation of 

18 U.S.C. § 1001 and§ 2; conspiracy,ln violation of 18 U.S.C. § 371; obstruction of agency 

proc:eedings, in violation of 11$ U.S.C. § 1 SOS; and pCJjury, in violation of 18 U.S.C. § 1621. 

.t~bority 

{FEC) 4. The Commission has exclusive jurisdiction over civil cnfqrcement of the federal 

(;ampaign llnancing laws. The Commission's civil enforcement authority extends to knowing and 

wjl] ful violations as well as unintentional violations. 

i 

[FEC} 5. The Commission has lhe exclusi"e authority. conferred b)i the FF.CA, for. 

admini~ering and interpreting the FECA. 2 U.S.C. §§ 437c(b)(l), 437d(~). The Commission's 

·vjews concerning the meaning of the f'tCA and the implementing regu)aJions are lu be given 

deference. Federal Election Commission v. Democratic Senatorial Camnaign Committee, 454 

u.s. 27 (1981). . 

[FE:C] 6. The Department has exclusive jurisdiction over aJJ crimin•l violations of the 

carJJpai~ financing Jaws and related offenses. ' 

luyqtigations 

[FEC] 7. Both the Department and the Commission will assist eachlotheT in fulfilling their 

respective statutory responsibHities and will coordinate their efforts, consrstent with all legal 

restrictions. to assist and not impede each other's investigations. Beeaus~ consuhalinn will be 

mrJst effective at the earliest stages of a matter. the Department and the Commission will 

de~;ignate specific officials to serve as primary points of contact who will meet no Jess than once 

e'ic:ry three calendar months to confer on ongoing matters and other topic~ of mutual interest.. 

I Coopnatiblf ;,. Pt~rtlll~llllvestigatiolll ; 

i 

lFEC] 8. ln order to maximize the efficient use of resources to enforce the FF.CA and the 

pn:sidential campaign fUnding provisions in the Internal Revenue Code, the Commission and the 

Department will consider whether there are investigative steps common t~ civil and criminal 

tr.L:Orcemcnt actions. Where appropriate, the Commission and the Oepart~ent should coordinate 

an investigative strategy that incJudes prompt decisions on the merits of criminal and civil 

mHters, adherence to gr.md jury :;ecrecy, proper use of discovery am.lthe potential ·value of 

gl<•bal seultrnents. By coordinating investigative strategy, the parties bring additional expertise 

to thcir respective efforts, expand the range of available remedies, increas~.: both the integrity of 

the: elcctorctl process and deterrence of future vioJatinnJ;, promote compliance, and bvtter 

reJlTescnt the fuJJ range of the Go''emmenl's interests. 

[FEC] 9. The Depanment ancJ the Commjssionjointly investigating a mancr m<~y •ogethcr 

undenake fact-tindin8 activiLies S11ch as interviewing witnesses and getting documents. 

2 
-----·--

~RC1\ DOJ ?U3LlC JNTEGRITY (MON) 1. 9' 06 12: 15/ST. 12: 14/NO. 4861578665 P 5 

' I 

C)ncurrent efforts should be used to prevent impediments to effective enforcemcn1. such as stale 

documents, missing witnesses, and the passage of applicable statutes of limitation. Whenever 

appropriate, and within the sole discretion of the Department, the Department wi11 endeavor to 

obtain evidence prior to initiation of a gT"clJldjury investigation in oruer to faciJitate the sharing of 

ir,fmmation with the Commis.c;ion. 

[FEC) 10. Unless prohibited by law, the Department and the Commi~sion ,...;)) ecach promptly 

noti1y the other in writing of any legally enforceable demand or request fqr nonpllblic 

infoJmation received (including, but notlimiled to, a subpoena, court ord~r, or request pursuant 

t<> ilie Freedom oflnformation Act), providing the other agency a rcasona~)e opportunity to 

rc~spond to the demand prior to complying wilh the demand or request, and asserting a111egaJ 

e:xernptions or privileges on the other agen~s behalf as requested. 

[ FEC] 11. Upon a matter becoming pub He. both the Dc..-partment and the Commission wj]) 

promptly make available to each other p\lblic documents relating to their respective proceedings 

(Ya criminal indicunents, unseal~d search warrant affidavits, criminal p~a agreements, civil 

c:ondJiation agreements, and civi I complaints filed by the Commis&ion in~ .S. District Court). 

[FEC) 12. The Department wi 11 provide assurances to witnaiH~s in CG>mmission proceedings 

by issuing no prosecution letters or providing infonnallette:r immunity w~ere ' appropriate. 

Similarly. the Commission will provide the Department with expert anal~is and testimony on 

FECA-related issues where apprupriate. l 

I 

I 

Departnunt Rejerr11h to the Commission I 

[DOJ] 13.. The Department shall refer to the Commission any. matter ~rought to its attention 

retlecting a substantive violation of the FECA if: (a) the facts do not suggest a knowing and 

willful violation; (b) the facts fall below the jurisdictional monetary lhre~old for;, criminal 

FECA violation; or (c) the Department detennines that the matter does no~ otherwise warrant 

cr:iminal prosecution. ! 

' 

[DJJ] 14. In fulfilJing its obligation under Paragraph 13. the Department agrees to refer to 

the Conunission all available information relating to such matter, .consistent with appUeable 

prohibitions. privileges. and restrictjons (~Federal Rule of Criminal PrjoQcdure 6(e), the 

Ptivacy Act, and restrictions imposed by laws and regulations addressing pational security 

inh>rmation), as promptly as possible for its consideration of the wide ran~e of noncriminal 

1emeclies available to the Commi!>sion. l 

CommissioN Referrals to the Depurtme11t 

[BOTH] 15. If the Commission determines that there may have·been anlapparent knowing 

and willful violalion oftbe FECI\, lhe Commission shall report the mattcn to the J)epartmeru, 

\\ i thout awaiting the concJusion of its own ongoing civil investigation an~ priur to a finding of 

3 
--·-----·------

:·R 1V\ DOJ PUBLIC INTEGRITY (MONl 1. 9' 06 12: 16/ST. 12: 14/NO. 4861578665 P 6 

Jl·robahle cau~e. 2 U.S.C. § 437d(a)(9). The Commission shall also report. to the Department 

apparent violations of other statutes over which the Department may have jurisdictjon. 2 U.S.C 

§ 43 7d(a)(9). Such reports will not constitute a recommendation as to the merits. TI\is provision 

is i.r:tended to supplement, and not supplant, Commissjon refenals to the pepartmcnt pursuant to 

2 U .S.C. § 437g(a)(S)(C). . i 

' 

{DOJ] 16. Upon being advised of the facts of a matter in accordance with. Paragraph 15, 

t.he Department shall rev;ew the matter and make a determination as to whetheT the matter: 

(a) should be handled as a criminal investigation by the Department; or(~) should be referred 

back to the Commiss:ion for civil enforcement action. The Department s~all advise the 

Cc,lnmission of its detennination under lhjs Paragraph as promptly as pQisihte. 

I 

[DOJ] 1 7. In the event that a matter referred under Paragraph 15 is investigated by the 

D(:J>artment, the Department will advise lhe Commission at the cQnclusion of its invesugation 

whether the Department either has declined to bring criminal charges or ~as sought criminal 

chuges. 

[ DIJJ 1 18. ln the event that a matter referred under Paragraph 1 S is rferred back to the 

Commission by the IA.-partment. the Commission agrees that ifin the course of further 

pwceectings ]t develops additional or different evidence suggesting a knowing and '\villful. 

vic1lation it will provide such information to the Department•s Public lntdgrity Section for 

reevaluation as a possible criminal matter. 

i 

i 

Related Offen us in the Course of Commission Proceedings 1 

I 

[DOJ] 19. Both the Depanmen1 and the Commission acknowledge iliat informa1ion. records. 

and statements that are materially false, which were intentionally made o~ submitted to the 

Cummission. represent potential federal felonies under 18 U.S. C.§ 1001 !and§ l 505. The 

Commission and the Department agree that whenever the Commission develops or receives 

e·11idence that a wimess in a Commission administrative proceeding, or a person or entity who bas 

been required tC) presen1 testimonial or documentary evidence to the Commission in the 

furtherance: of an FEC investigation. may have falsely represented a material fact, the particulars 

of that false statement will be J c::pur\~ promptly to the Depanment fur prosecutive evaluation. 

[DOJ] 20. The Department agrees to evaluate a matter reported by the Commission under I 

Paragraph 19 as quickly as is rea!;onably feasible, and to advise the Commission of its · 

dc:tennination as to whether a criminal investigation is warranted .. 

l I>OJ) 21. The Commission agrees to cooperate with the Department in the evaluation and, 

if warranted, the prosecution of S\tch false statements reported under Paragrapll 19, and agrees to 

fc,llow such guidance as the Department may provide with respect to the ~ours~ and timing of the 

Commission's administrative proceeding during the period when the criminal matter thus 

n:ported is pending with the Department. 

4 
;RlM COJ PCBLIC INTEGRITY (NON) 1. 9' 06 12: 16/ST. 12: 14/NO. 4861578665 P 7 

~dtlements apd Dispositions 

[:FE C) 22. The Department and the Commission recognize the bcnctns of global settlements 

that simultaneously resolve related crimjnal and civil violations of the F~CA. 

I 

!FEC] 23. The Department will ensure that all plea agreements involving an FECA crime 

tbat are presented to a defendant contain a specific disclajmer that nothini in the ayccment 

wa1·1es or limits in any way the authority of the Commission to seek civil! penalties or other 

::1drr inistralive remedies for vjo)ations of the: FECA.pursuant to 2 U.S. C.~ 437g(a). 

[FE C] 24. 1f a defendant requests a global settlement, the Department and the Commission 

will work together to detennine ifil is possible to resolve simultaneously in a global settlement 

lh41l person's criminal and civil liability arising from the same or related transactions. 

I 

I 

i 

I.FEC] 25. Thjs Memorandum ofUnderstanding controls only the rel.tionship between 

the Comm)ssion and the Dt:partment. It is not intended to confer, and d~s not confer, any· 

pw•:eduraJ or substantive rights on any person in any matter before the D~artmcnt, the 

Commission, or any coun or agency of Government. : 

:Point-of-Contact 

I 

i 

I 

I 

[DOJ) 26. The Public Integrity Section ofthc Department•s Criminai!Division shall be the 

Commission's point-of-contact for all of the Department's obligations un~er this Memorandum 

·C>fUnderstanding, and said Section will be responsible for performing or supervising aU of the 

Deparunenfs undertakings and agreements under this Memorandum. · 

B&JuaJ of 1977 Memonndum I 

i 

[DOJj 27. This Memorandum repeals the 1977 Memorandum ofUnckrstanding between the 

Co1nni~ion and lhe Depanment regarding the handling of violations of the federal campaign 

financing laws. 

El]ective date 

[DOJ] 28. ·me effective date of this Memorandum of Understanding shall be the date the 

exc:cuted Memorandum is published in the Fe<leral Register. 

---~ .. ~ ... ... 

}'"'}; DERAL ELECTION COMMJSSION V. S. DE:PAR'rMENT OF JUS'fJCE 

5