UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) No. 1:12-cv-00958-ABJ 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

CRAIG FOR U.S. SENATE, et al., ) MEMORANDUM IN 

 ) OPPOSITION TO 

 Defendants. ) MOTION TO DISMISS 

___________________________________ ) 

PLAINTIFF FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

Harry J. Summers 

Assistant General Counsel 

Kevin P. Hancock 

Attorney 

 FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

September 4, 2012 (202) 694-1650 

 

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TABLE OF CONTENTS 

BACKGROUND .......................................................................................................................2 

A. The Parties .........................................................................................................2 

B. Craig’s Arrest, Guilty Plea, and Legal Proceedings in Minnesota ....................2 

C. The Senate Ethics Committee Proceedings .......................................................3 

D. FEC Administrative Proceedings .......................................................................4 

ARGUMENT .............................................................................................................................6 

I. STANDARDS OF REVIEW .........................................................................................6 

A. Motion to Dismiss ..............................................................................................6 

B. Deference to Commission Interpretations .........................................................7 

II. DEFENDANTS VIOLATED 2 U.S.C. § 439a(b) BY CONVERTING FUNDS 

DONATED TO CRAIG FOR U.S. SENATE TO USE FOR THEN-SENATOR 

CRAIG’S PERSONAL LEGAL EXPENSES ...............................................................8 

A. Craig’s Legal Expenses, Which Resulted From His Decision to Plead 

Guilty and Later Choice to Try to Withdraw that Plea, Would Have 

Existed Irrespective of His Duties as a Holder of Federal Office ......................8 

B. Even if Craig’s Legal Expenses Had Resulted from Defending Against 

His Criminal Charges, They Still Would Have Existed Irrespective of 

His Duties as a Holder of Federal Office .......................................................11 

C. Craig’s Trip to Washington, D.C. Was Not Constitutionally Required ..........15 

III. THE COMMISSION’S DETERMINATION THAT DEFENDANTS 

ILLEGALLY CONVERTED CAMPAIGN FUNDS TO PERSONAL USE IS 

SUPPORTED BY PRIOR FEC ADVISORY OPINIONS ..........................................18 

CONCLUSION ........................................................................................................................23

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Defendants converted more than $200,000 that donors contributed to Craig for U.S. 

Senate and used it to pay the legal expenses that former Senator Larry Craig incurred when he 

attempted to withdraw his guilty plea to one misdemeanor count of disturbing the peace in 

Minnesota. This misuse of campaign funds violated the prohibition on converting campaign 

funds to personal use in the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57. See 

2 U.S.C. § 439a(b). 

Defendants concede that Craig was arrested for purely personal conduct unrelated to his 

duties as a federal officeholder. But they then contend that Craig’s legal expenses were not 

personal because he was on constitutionally-mandated, official Senate travel at the time of his 

arrest. The personal use argument is defeated by Craig’s concession, and Craig’s trip was not 

required by the Constitution. Nothing about his official duties as a federal officeholder caused 

him to engage in that personal conduct in the airport restroom, or to subsequently plead guilty, or 

to thereafter decide to try to withdraw that guilty plea. His resulting legal expenses were thus 

personal in nature, and defendants’ use of campaign funds for those expenses violated FECA. 

This common sense result finds support in advisory opinions of plaintiff Federal Election 

Commission (“FEC” or “Commission”). In Advisory Opinion (“AO”) 2006-35 (Kolbe) — upon 

which defendants primarily rely — the Commission expressly stated that a Member of Congress 

may not use campaign funds to respond to a criminal investigation into the Member’s personal 

conduct, even where that conduct occurred on a Congressionally-sponsored trip. Contrary to 

defendants’ arguments, their conversion of campaign funds to personal use is not excused by any 

FEC advisory opinions. 

The motion to dismiss should be denied. 

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BACKGROUND 

A. The Parties 

Plaintiff Federal Election Commission is the independent agency of the United States 

government with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of FECA. See 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. The Commission is 

authorized to investigate possible violations of FECA, id. §§ 437g(a)(1) and (2), and to initiate 

civil actions in the United States district courts to obtain judicial enforcement of FECA, id.

§§ 437d(e), 437g(a)(6). FECA provides that a “contribution accepted by a candidate, and any 

other donation received by an individual as support for activities of the individual as a holder of 

Federal office,” shall not be “converted by any person to personal use.” 2 U.S.C. §§ 439a(a)-(b). 

Defendant Larry Craig was a United States Senator from Idaho from January 1991 to 

January 2009. (FEC’s Complaint for Civil Penalty, Declaratory, Injunctive, and Other 

Appropriate Relief (“Compl.”) ¶ 6 (Docket No. 1).) In 2007, Craig was a candidate for the 

United States Senate in the 2008 election, and he authorized defendant Craig for U.S. Senate 

(“Craig Committee”) as his principal campaign committee under 2 U.S.C. §§ 431(5)-(6). 

(Compl. ¶¶ 6-7). Accordingly, the Craig Committee was authorized to receive campaign 

contributions and make expenditures on Craig’s behalf. Compl. ¶ 7; see 2 U.S.C. §§ 432(e)(1)-

(2). Defendant Kaye L. O’Riordan was the Craig Committee’s treasurer, and therefore had 

authority to authorize its expenditures. Compl. ¶ 8; see 2 U.S.C. §§ 432(a), 433(b)(4). 

B. Craig’s Arrest, Guilty Plea, and Legal Proceedings in Minnesota 

 On June 11, 2007, then-Senator Craig was arrested while using a restroom at the 

Minneapolis-St. Paul International Airport, where he was awaiting a scheduled flight to 

Washington, D.C. (Compl. ¶ 12; Memorandum in Support of Defendants’ Motion to Dismiss 

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(“Defs.’ Mem.”) at 3 (Docket No. 3-1).) Craig was charged under Minnesota law with 

disturbing the peace-disorderly conduct and interference with privacy. (Compl. ¶ 12.) About 

two months later, on August 8, 2007, Craig pleaded guilty to a misdemeanor count of disorderly 

conduct. (Compl. ¶ 12.) 

 Craig retained the Washington, D.C. law firm of Sutherland, Asbill & Brennan 

(“Sutherland”) and the Minnesota law firm of Kelly & Jacobson (“Kelly”) in an effort to 

withdraw his guilty plea. (Compl ¶ 13.) On September 10, 2007, Craig filed a motion to 

withdraw the guilty plea in Minnesota state district court, which was denied on October 4, 2007. 

(Compl. ¶ 14.) Craig appealed the ruling to the Minnesota Court of Appeals, which rejected the 

appeal on December 9, 2008. (Compl. ¶ 14.) From July 9, 2007 through October 5, 2008, the 

Craig Committee paid at least $139,952 to Sutherland and $77,032 to Kelly in connection with 

Craig’s failed efforts to withdraw his guilty plea. (Compl. ¶¶ 19-20.) 

C. The Senate Ethics Committee Proceedings 

 The United States Senate Select Committee on Ethics (“Senate Ethics Committee”) 

conducted an inquiry into Craig’s conduct in connection with his arrest, conviction, and 

subsequent conduct. (Compl. ¶ 16.) The Brand Law Group in Washington, D.C. — which 

represents defendants in this matter — also represented Craig before the Senate Ethics 

Committee. (Compl. ¶ 21; Defs.’ Mem. at 11.) In a September 5, 2007 letter to the Senate 

Ethics Committee, Craig’s counsel argued that the Senate Ethics Committee should not exercise 

jurisdiction over the matter because Craig’s arrest and conviction was “‘purely personal conduct 

unrelated to the performance of official Senate duties.’” (Compl. ¶ 22 (quoting Letter to the 

Honorable Barbara Boxer from Stanley M. Brand and Andrew D. Herman (Sept. 5, 2007)).) 

On February 13, 2008, the Senate Ethics Committee issued a “Public Letter of 

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Admonition” unanimously concluding that, among other matters, Craig had not complied with 

Senate Rule 38.2, which requires Senate Ethics Committee approval of any payments for “legal 

expenses” paid with funds of a principal campaign committee. (Compl. ¶ 23.) Specifically, 

the Ethics Committee wrote: 

[T]he Senate Ethics Manual states that “Members, officers or employees 

may pay legal expenses incurred in connection with their official duties 

with funds of a Senator’s principal campaign committee, but only if such 

payment is approved by the Committee.” . . . It appears that you have used 

over $213,000 in campaign funds to pay legal (and, apparently, “public 

relations”) fees in connection with your appeal of your criminal conviction 

and in connection with the preliminary inquiry before the Committee in 

this matter. It appears that some portion of these expenses may not be 

deemed to have been incurred in connection with your official duties, 

either by the Committee or by the Federal Election Commission (which 

has concurrent jurisdiction with the Committee on the issue of conversion 

of a Senator’s campaign funds to personal use). 

Public Letter of Admonition, United States Senate (Feb. 13, 2008) (Select Committee on Ethics), 

available at http://www.ethics.senate.gov/downloads/pdffiles/craig.pdf (emphasis omitted and 

second emphasis added); see Compl. ¶ 23. 

D. FEC Administrative Proceedings 

On November 10, 2008, the Commission received an administrative complaint alleging 

that Craig had violated FECA by spending more than $213,000 in campaign funds to pay legal 

fees and expenses incurred in connection with his arrest and conviction. (Compl. ¶ 24.) 

The complaint was designated by the Commission as Matter Under Review (“MUR”) 6128 for 

administrative purposes. Compl. ¶ 24; see 2 U.S.C. § 437g(a)(1). By letter dated November 18, 

2008, the Commission notified defendants that the administrative complaint had been filed and 

provided defendants with a copy. Craig responded to the Commission on December 2, 2008. 

Compl. ¶ 25; see 2 U.S.C. § 437g(a)(1). 

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After reviewing the then available information, on May 19, 2009, the Commission voted 

5-0 (with one Commissioner recused) to find “reason to believe” that defendants had violated 

2 U.S.C. § 439a(b). Compl. ¶ 26; see 2 U.S.C. §§ 437g(a)(1)-(2). Specifically, the Commission 

adopted a factual and legal analysis (see Exh. A (FEC Factual and Legal Analysis (MUR 

6128))), and found reason to believe that the use of the Craig Committee’s funds to pay for legal 

fees and expenses Craig incurred in connection with his attempt to withdraw his guilty plea 

constituted a conversion to personal use (Compl. ¶ 26). 

The Commission notified defendants of its reason-to-believe determination by letter 

dated June 30, 2009. (Compl. ¶ 27.) Defendants responded by letter dated August 10, 2009. 

(Compl. ¶ 27.) Following an investigation, the Commission’s General Counsel notified 

defendants by letter dated April 8, 2011, that the General Counsel was prepared to recommend 

that the Commission find “probable cause” to believe that defendants violated 2 U.S.C. 

§ 439a(b). Compl. ¶ 28; see 2 U.S.C. § 437g(a)(3). The General Counsel also provided 

defendants with a brief stating the position of the General Counsel on the legal and factual issues 

of the case. (Compl. ¶ 28.) The defendants filed a response with the Commission dated 

April 25, 2011 (Compl. ¶ 28), and counsel for defendants appeared at a probable cause hearing 

before the Commission on May 25, 2011 (see Exh. B (Transcript of Probable Cause Hearing 

(“Prob. Cause Tr.”)).1 After reviewing the information available, on February 7, 2012, the 

Commission voted 5-0 to find probable cause to believe that defendants had violated 2 U.S.C. 

§ 439a(b). Compl. ¶ 29; see 2 U.S.C. § 437g(a)(4)(A). 

The Commission notified all of the defendants of its February 7 findings by letter dated 

February 22, 2012, and, as FECA requires, for a period of not less than 30 days, endeavored to 

 

1

 Portions of the probable cause hearing transcript have been redacted pursuant to 2 U.S.C. 

§ 437g(a)(4)(B)(i). 

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correct the violations through informal methods of conference, conciliation and persuasion. 

Compl. ¶ 30; see 2 U.S.C. § 437g(a)(4)(A). Unable to secure acceptable conciliation agreements 

with the defendants, on May 3, 2012, the Commission voted 5-0 to authorize filing this suit 

against defendants. Compl. ¶ 30; see 2 U.S.C. § 437g(a)(6). The Commission filed this action 

on June 11, 2012, pursuant to its authority under 2 U.S.C. §§ 437d(a)(6), 437g(a)(6)(A). (Docket 

No. 1.) 

ARGUMENT 

Defendants used more than $200,000 in campaign funds donated to the Craig Committee 

to pay for then-Senator Craig’s personal legal expenses. Those personal expenses stem from his 

choice to try to withdraw his plea of guilty to disorderly conduct in Minnesota. In their motion 

to dismiss, defendants do not even attempt to argue that Craig’s guilty plea or effort to withdraw 

that plea were connected to his duties as an officeholder. Nor could they. The motion to dismiss 

should be denied. 

I. STANDARDS OF REVIEW 

A. Motion to Dismiss

On a motion to dismiss, the Court must “accept the well-pleaded factual allegations set 

forth in [the] complaint as true for purposes of this stage of the litigation and construe reasonable 

inferences from those allegations in [the plaintiff’s] favor.” Doe v. Rumsfeld, 683 F.3d 390, 391 

(D.C. Cir. 2012). Thus, defendants note as they must that “[f]or the purposes of th[eir] Motion, 

Defendants accept the facts set forth in the Complaint.” (Defs.’ Mem. at 3 n.2.) In addition to 

the facts alleged in the complaint, the Court may consider “any documents attached to or 

incorporated in the complaint, matters of which the court may take judicial notice, and matters of 

public record” when deciding a motion to dismiss. Melson v. Salazar, 598 F. Supp. 2d 71, 73 

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(D.D.C. 2009) (citing Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. 

Cir. 1993) (affirming lower court’s reliance on an administrative record when deciding a motion 

to dismiss, where the court used the record to resolve legal questions and not to test factual 

allegations in the complaint)), aff’d, 377 Fed. Appx. 30 (D.C. Cir. 2010). 

To survive the motion, the Commission’s complaint need only “‘plead[] factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.’” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (quoting Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)). “‘[T]he burden is on the moving party to prove that no legally 

cognizable claim for relief exists.’” Harris v. CitiMortgage, Inc., ___ F. Supp. 2d ___, No. 11-

cv-1591, 2012 WL 2935594, at *2 (D.D.C. July 19, 2012) (quoting 5B Fed. Prac. & Proc. Civ. § 

1357 (3d ed.)).

B. Deference to Commission Interpretations 

The Commission’s interpretation of FECA’s prohibition on the personal use of campaign 

funds, 2 U.S.C. § 439a(b), is entitled to deference. When Congress has not “directly spoken to 

the precise question at issue,” a court must defer to “a reasonable interpretation made by the 

administrator of an agency.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 842, 844 (1984). The agency’s “view governs if it is a reasonable interpretation of the 

statute — not necessarily the only possible interpretation, nor even the interpretation deemed 

most reasonable by the courts.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009). 

As the Supreme Court has recognized, the FEC “is precisely the type of agency to which 

deference should presumptively be afforded.” FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27, 37 (1981); United States v. Kanchanalak, 192 F.3d 1037, 1043, 1049 (D.C. Cir. 

1999) (“[T]he FEC’s interpretation of the Act should be accorded considerable deference.” 

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(internal quotation marks omitted)). The Commission receives deference when — as it did here 

— it a makes a legal determination “pursuant to [its] detailed statutory procedures analogous to 

formal adjudication.” FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) 

(“[T]he probable cause determination and its underlying statutory interpretation . . . warrant 

Chevron deference.”). The Commission also receives deference when it determines in an 

advisory opinion whether proposed conduct would violate FECA. Id. at 184-86 (discussing the 

“appropriateness of giving FEC advisory opinions Chevron deference”). 

Thus, the Court should give deference to the Commission’s determination that Craig’s 

legal fees “lacked the necessary nexus to Craig’s campaign activities or his duties as a Federal 

officeholder” to be permissible under 2 U.S.C. § 439a(a),2 see infra Part II, as well as to its 

determination that, based on earlier Commission advisory opinions, defendants’ use of campaign 

funds did not qualify for protection under 2 U.S.C. § 437f(c), see infra Part III. 

II. DEFENDANTS VIOLATED 2 U.S.C. § 439a(b) BY CONVERTING FUNDS 

DONATED TO CRAIG FOR U.S. SENATE TO USE FOR THEN-SENATOR 

CRAIG’S PERSONAL LEGAL EXPENSES 

A. Craig’s Legal Expenses, Which Resulted From His Decision to Plead Guilty 

and Later Choice to Try to Withdraw that Plea, Would Have Existed 

Irrespective of His Duties as a Holder of Federal Office 

FECA provides that a candidate or federal officeholder may use contributions or 

donations “for any . . . lawful purpose unless prohibited by” 2 U.S.C. § 439a(b). See 2 U.S.C. 

§ 439a(a)(6).3

 Section 439a(b)(1) states that a “contribution or donation . . . shall not be 

 

2

 FEC Factual and Legal Analysis at 10 (MUR 6128) (attached as Exh. A). 

3

 Defendants suggest (Def.’s Br. at 1-2) that the Commission improperly omitted section 

439a(a)(2) from its Complaint. See 2 U.S.C. § 439a(a)(2) (providing that a candidate or federal 

officeholder is permitted to use campaign funds “for ordinary and necessary expenses incurred in 

connection with the duties of the individual as a holder of Federal office”). Despite the 

significance defendants attempt to place on this paragraph, it adds nothing to section 439a(a), 

since a catch-all paragraph of that subsection states that campaign funds may also be used “for 

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converted by any person to personal use.” Conversion to personal use occurs when funds from a 

campaign account are “used to fulfill any commitment, obligation, or expense of a person that 

would exist irrespective of the candidate’s election campaign or individual’s duties as a holder 

of Federal office.” 2 U.S.C. § 439a(b)(2) (emphasis added); see 11 C.F.R. § 113.1(g). Under 

this test, 

[i]f campaign funds are used for a financial obligation that is caused by 

campaign activity or the activities of an officeholder, that use is not 

personal use. However, if the obligation would exist even in the absence 

of the candidacy or even if the officeholder were not in office, then the use 

of funds for that obligation generally would be personal use. 

Final Rule and Explanation and Justification, Personal Use of Campaign Funds, 60 Fed. Reg. 

7862, 7863-64 (Feb. 9, 1995).4

 The Commission determines on a “case-by-case basis” whether 

using funds from a campaign account for legal expenses is a conversion to personal use. 11 

C.F.R. § 113.1(g)(1)(ii). Campaign funds may be used for legal expenses that were caused by a 

candidate’s campaign or officeholder’s duties, such as where “a committee . . . incur[red] legal 

expenses in its capacity as the employer of the campaign staff.” 60 Fed. Reg. at 7868. In 

contrast, campaign funds may not be used for legal expenses that a non-candidate or nonofficeholder in the same position also would have incurred — such as “legal expenses associated 

with a divorce or charges of driving under the influence of alcohol.” Id. These kinds of legal 

expenses are “treated as personal, rather than campaign or officeholder related,” and it is 

irrelevant whether “the underlying legal proceedings have some impact on the campaign or the 

officeholder’s status.” Id. 

 

any other lawful purpose unless prohibited by [section 439a(b).]” Thus, section 439a(b) contains 

the only relevant statutory standard in this case. 

4

 The statute and its implementing regulation provide a non-exhaustive list of expenses that 

are per se personal use, including “a home mortgage, rent, or utility payment” and “a clothing 

purchase.” 2 U.S.C. § 439a(b)(2)(A)-(I); see 11 C.F.R. § 113.1(g)(1)(i). 

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There can be no doubt that Craig’s legal fees of more than $200,000 were personal 

expenses. Craig’s legal expenses resulted from his effort to withdraw his guilty plea to a 

misdemeanor count of disorderly conduct. (Compl. ¶¶ 12-14, 19-20; see also Defs.’ Mem. at 3.) 

Because there is no connection between Craig’s choice to plead guilty or his later decision to 

attempt to withdraw that guilty plea and his duties as a federal officeholder, his resulting legal 

expenses “would exist irrespective of [Craig’s] duties as a holder of Federal office.” 2 U.S.C. § 

439a(b)(2). Accordingly, defendants violated FECA’s bar on converting campaign funds to 

personal use. 2 U.S.C. § 439a(b). 

In their motion to dismiss, defendants do not even argue that Craig’s guilty plea and 

decision to try to withdraw it have anything to do with Craig’s duties as a federal officeholder. 

Nor could they. Instead, defendants focus on the events of Craig’s June 11, 2007 arrest and 

incorrectly claim that “Senator Craig’s legal expenses arose during official Senate travel.” 

(Defs.’ Mem. at 5-6.) But Craig did not incur any legal expenses during his trip or for any 

official business that he conducted while on that trip. Nor did the legal expenses at issue here 

involve a direct defense to the charges resulting from his June 11, 2007 arrest — Craig did not 

even challenge those charges. Rather, nearly two months after his arrest, Craig pled guilty to 

one charge of disorderly conduct. (Compl. ¶ 12.) Only later still, when Craig attempted to 

reverse that guilty plea, did defendants spend the campaign funds that are at issue here. (Compl. 

¶¶ 13-14, 19-20.) 

Those expenses would have existed irrespective of Craig’s duties as a federal 

officeholder. Thus, the Commission has sufficiently pleaded a violation of FECA’s bar on 

converting campaign funds to personal use. 

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B. Even if Craig’s Legal Expenses Had Resulted from Defending Against His 

Criminal Charges, They Would Have Existed Irrespective of His Duties as a 

Holder of Federal Office 

Even if Craig’s legal expenses had arisen during his official Senate travel, as defendants 

claim (Defs.’ Mem. at 5-6), those expenses still would have existed irrespective of Craig’s duties 

as a federal officeholder. Craig was arrested at the Minneapolis-St. Paul International Airport 

after engaging in conduct in a public restroom. (Compl. ¶ 12; Defs.’ Mem. at 3.) Craig admitted

that he “knew or should have known [that his restroom conduct] tended to arouse alarm or 

resentment [in] others which conduct was physical (versus verbal) in nature.” Public Letter of 

Admonition, United States Senate at 1 (Feb. 13, 2008) (Select Committee on Ethics). Craig was 

charged under Minnesota law with disturbing the peace-disorderly conduct, and interference with 

privacy. (Compl. ¶ 12.) Before the Senate Ethics Committee and in the proceedings before the 

Commission, defendants conceded the obvious: Craig’s arrest resulted from “purely personal 

conduct unrelated to the performance of [Craig’s] official Senate duties.” (Compl. ¶ 22; see 

also Prob. Cause Tr. at 23:15-18 (“Let me state it as clearly as I am able. Certainly we are not 

making the allegation that one’s conduct in a restroom has any bearing on your duties as an 

office-holder.”) (emphasis added). 

This concession is dispositive. It ends the analysis under section 439a(b). If the legal 

expense “would exist . . . even if the officeholder were not in office, then the use of funds for that 

obligation generally would be personal use.” 60 Fed. Reg. at 7864. If a non-officeholder had 

engaged in the same behavior as Craig, that person would also have been arrested and faced 

charges for disturbing the peace and interference with privacy. Even assuming Craig’s travel 

were required by or related to his duties as a United States Senator, nothing about those duties 

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also required or was related to his conduct and arrest. Accordingly, those legal expenses would 

have existed irrespective of Craig’s duties as federal officeholder. 

This conclusion is consistent with a long line of Commission advisory opinions 

determining that campaign funds may be used for legal expenses when “incurred in legal 

proceedings involving allegations concerning the candidate’s campaign activities or duties as a 

Federal officeholder.” FEC AO 2006-35 (Kolbe), 2007 WL 268223, at *2, available at 

http://saos.nictusa.com/aodocs/2006-35.pdf (emphasis added). For example, and in sharp 

contrast to this case, legal expenses arising from defending against the following investigations, 

criminal charges, and civil suit were found by the Commission to be permissible uses of 

campaign funds: 

 A federal government investigation into “campaign contributions allegedly made by [a 

lobbying firm] and its clients to Representative Visclosky . . . [and] appropriations 

earmarks purportedly obtained by Representative Visclosky for various [lobbying firm] 

clients.” FEC AO 2009-10 (Visclosky), 2009 WL 1811018, at *3. 

 A grand jury investigation into “allegations that Representative Cunningham obtained 

benefits (i.e., the sale of his house at an above-market price and a rent-free stay on a 

yacht) from [a federal defense contractor] because of his status as a U.S. Representative 

and his position on the Permanent Select Committee on Intelligence and the House 

Appropriations Defense Subcommittee.” FEC AO 2005-11 (Cunningham), 2005 WL 

2470825, at *3, available at http://saos.nictusa.com/aodocs/2005-11.pdf. 

 Federal criminal charges that a candidate for federal office made “false reports . . . to the 

[Federal Election] Commission” and engaged in other fraudulent activity during the 

course of his campaign for federal office. FEC AO 2003-17 (Treffinger), 2003 WL 

21894954, at *4-*5, available at http://saos.nictusa.com/aodocs/2003-17.pdf. 

 A civil suit by Representative John Boehner against Representative Jim McDermott, 

alleging that McDermott violated federal law by disclosing an illegally recorded 

telephone conversation Boehner had with House Republican leaders, which McDermott 

received and disclosed due to his position as Ranking Minority Member of the House 

Ethics Committee. FEC AO 2000-40 (McDermott), 2001 WL 136013, at *1-*3, 

available at http://saos.nictusa.com/aodocs/2000-40.pdf. 

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In each of these cases — unlike in Craig’s case — a non-candidate or non-officeholder in 

the same position would not have engaged in the conduct being investigated and from which the 

legal expenses arose. See, e.g., FEC AO 2003-17 (Treffinger), 2003 WL 21894954, at *4 

(explaining that “[a]bsent Mr. Treffinger’s campaign, the [allegedly criminal] telephone calls at 

issue would not have been made,” and the allegedly fraudulent FEC reports would not have been 

filed (emphasis added)). 

In contrast, the Commission has stated that where a Member of Congress faces an 

investigation “involv[ing] allegations not related to [the Member’s] duties as a Federal 

officeholder,” campaign funds may not be used — even where those allegations relate to events 

that occurred during an official Congressional trip. FEC AO 2006-35 (Kolbe), 2007 WL 

268223, at *3 (emphasis added). 

Straining to avoid the consequences of their admission that Craig’s conduct and arrest 

were not related to Craig’s duties, defendants assert that their expenditures were permissible 

because Craig was arrested while on “official Senate travel.” (Defs.’ Mem. at 5.) Defendants’ 

makeweight arguments should be rejected. 

First, defendants argue that “legal proceedings arising out of [Craig’s] travel are 

necessarily ‘in connection with’ Senator Craig’s official duties.” (Defs.’ Mem. at 6.) But 

Craig’s arrest, guilty plea, and attempt to withdraw that plea could not have arisen out of Craig’s 

travel, since Craig was not arrested for traveling. He was arrested for admittedly unlawful 

personal conduct. Defendants’ attempt to conflate Craig’s official Senate travel with his arrest 

are belied by their concessions that Craig was arrested for purely personal conduct unrelated to 

his Senate duties. (Compl. ¶ 22; Prob. Cause Tr. at 23:15-18.) 

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Second, defendants assert that the legal expenses would not exist irrespective of Craig’s 

officeholder duties since Craig “was engaged in official, constitutionally-mandated activity at the 

time of the incident.” (Defs. Mem. at 6.) As explained infra pp. 15-18, the Constitution did not 

require Craig’s trip. But even if it did, defendants’ argument still fails because it continues to 

conflate Craig’s trip with his arrest. Even if Craig’s travel expenses (see Defs.’ Mem., Exh. A) 

would not have existed irrespective of his officeholder duties, legal expenses arising from his 

arrest would, since, as defendants admit, his arrest resulted from purely personal conduct 

unrelated to his duties. 

Defendants’ argument that, but for Craig’s official trip, the arrest (and resulting legal 

expenses) would not exist has no logical stopping point, and thus cannot be the test for a 

permissible use of campaign funds under section 439a(b). A chain of “but for” causation could 

be constructed between an individual’s election to federal office and virtually any expense he or 

she incurs thereafter. For example, but for an officeholder’s election to Congress, he or she 

might not purchase a home in Washington, D.C. or buy clothing appropriate for a Member of 

Congress, and thus, under defendants’ logic, such expenses should constitute permissible uses of 

campaign funds. Yet, section 439a(b)(2) states that certain expenses — including mortgage, 

rent, and clothing payments — are per se personal uses. Thus, the Commission has allowed 

campaign funds to be used to pay legal expenses when the actual conduct giving rise to the 

allegations occurred as a direct result of officeholder status or duties, see supra pp. 12-13, but 

not when the specific conduct was unrelated to such status or duties. 

If accepted, defendants’ argument would lead to the absurd result that an officeholder 

could use campaign funds to defend against any criminal charge — no matter how unrelated to 

an officeholder’s duties — so long as the alleged crime occurred during official travel. 

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15 

Such an absurd result flies in the face of the Commission’s interpretation of FECA’s 

irrespective test. The Commission has determined, for example, that “legal expenses associated 

with . . . charges of driving under the influence of alcohol will be treated as personal, rather than 

campaign or officeholder related.” 60 Fed. Reg. at 7868. Under defendants’ theory, however, an 

officeholder could use campaign funds to defend against a charge of driving under the influence 

so long as the officeholder was driving to or from official Congressional business at the time. 

Indeed, defendants do not shy away from this extreme position. They embrace it. As 

defendants’ counsel argued at the probable cause hearing: “[I]f a member of Congress was 

returning from a caucus meeting where alcohol had been served and he was returning to his 

home from that meeting . . . he would at least have a prima facie argument that these expenses 

stemming from the DUI would be related to his federal position.” (Prob. Cause Tr. at 11:16-22; 

see also id. at 25:7-21 (defendants’ counsel claiming campaign funds could also be spent on 

charges for shoplifting or “get[ing] into a brawl on the street [where] someone is seriously 

injured or killed” while traveling from Congress). 

Congress clearly prohibited campaign funds from being used for such purposes when it 

stated that expenses that exist “irrespective of the candidate’s election campaign or individual’s 

duties as a holder of Federal office” cannot be paid with campaign funds. 2 U.S.C. § 439a(b)(2). 

And for this additional reason, defendants’ motion to dismiss should be rejected. 

C. Craig’s Trip to Washington, D.C. Was Not Constitutionally Required 

While defendants do not allege that the conduct that gave rise to Craig’s arrest was 

required by his officeholder duties, because they could not, they do claim that Craig’s travel 

from Idaho to Washington, D.C. fell “within the ambit” of his official duties because of two 

clauses of the Constitution. (Defs. Mem. 4-6, 10.) Not so. Nothing in the Constitution required 

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16 

Craig’s travel to Washington, D.C. — or anything that occurred during that travel — on the day 

of his arrest. 

 First, defendants assert that “the Constitution’s ‘Inhabitancy Clause’ mandates that 

Senator Craig reside in his home state while serving as a United States Senator. See U.S. Const., 

Art. I, § 3, cl. 3.” Defendants are wrong. Article I, section 3, clause 3 of the Constitution 

requires that an individual inhabit his or her home state only “when elected” — that is, on 

election day. Indeed, the clause is more commonly known as the “Qualifications Clause,” not 

the “Inhabitancy Clause,” as it governs qualifications for election, not sitting officeholders. It 

states in full: 

No Person shall be a Senator who shall not have attained to the Age of thirty 

Years, and been nine Years a Citizen of the United States, and who shall not, 

when elected, be an Inhabitant of that State for which he shall be chosen. 

U.S. Const., Art. I, § 3, cl. 3 (emphasis added); see also id., Art. I, § 2, cl. 2 (“No Person shall be 

a Representative who . . . shall not, when elected, be an Inhabitant of that State in which he shall 

be chosen.” (emphasis added)). 

As courts have held, although the Qualifications Clause requires a Member of Congress 

to inhabit his or her state “at the time of his election to Congress,” it “does not require that he 

shall remain an inhabitant or resident of his State during his term of office.” Howard v. Citizens’ 

Bank & Trust Co., 12 App. D.C. 222, 235 (D.C. Cir. 1898); see Texas Democratic Party v. 

Benkiser, 459 F.3d 582, 589-90 (5th Cir. 2006) (“The Qualifications Clause only requires 

inhabitancy when that candidate is elected. Given this language, [a party official] could not 

constitutionally find that [sitting Member of Congress Tom] DeLay was ineligible [to run for 

reelection based on out of state residency] on June 7.”); Strong v. Breaux, 612 So. 2d 111, 112 

(La. Ct. App. 1992) (stating that “[a]s we read the qualifications [clause], an individual shall be 

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17 

an inhabitant of the state from which he is chosen when elected,” and holding that a sitting U.S. 

Senator from Louisiana was not disqualified from running for reelection because he allegedly did 

not inhabit Louisiana prior to the election); see also 2 J. Story, Commentaries on the Constitution 

of the United States §§ 618-19, pp. 94-95, available at http://www.constitution.org/js/js_309.htm 

(explaining that the Qualifications Clauses “omi[tted] to provide, that a subsequent nonresidence [after election] shall be a vacation of the seat” and noting that “it has happened, in 

more than one instance, that a member, after his election, has removed to another state”). 

Accordingly, the Qualifications Clause did not require Craig to inhabit Idaho between his 

reelection to the Senate in November 2002 and election day in November 2008. As a result, the 

clause also did not require his July 11, 2007 trip from Idaho to Washington, D.C., because the 

Constitution did not require him to travel to Idaho in the first place. 

 The second Constitutional provision on which defendants rely is the Speech or Debate 

Clause (which they call the “Immunity from Arrest” clause). (Defs.’ Mem. at 4.) It states in 

relevant part that “Senators and Representatives shall in all Cases, except Treason, Felony and 

Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their 

respective Houses, and in going to and returning from the same . . . .” U.S. Const., Art. I, § 6, cl. 

1. But the clause does not require any travel by Members of Congress; it merely establishes a 

right that Members hold while doing so. 

Defendants claim, without further citation, that the Speech or Debate Clause shows that 

the “framers certainly contemplated that a member’s interaction with local law enforcement 

while traveling to and from Congress would fall within the ambit of his or her official duties.” 

(Defs.’ Mem. at 4.) But defendants’ overbroad and unsupported argument is irrelevant here 

because Craig was arrested for a criminal offense, and the Supreme Court has held that the 

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Speech or Debate Clause “exempts Members from arrest in civil cases only.” Gravel v. United 

States, 408 U.S. 606, 614 (1972) (explaining that the “term treason, felony, and breach of the 

peace . . . excepts from the operation of the privilege all criminal offenses” (internal quotation 

marks omitted)). Moreover, defendants’ argument proves far too much. If correct, a Member’s 

arrest for driving while intoxicated, stealing, assault, or even murder would — under the United 

States Constitution — be considered part of his or her official duties so long as it occurred while 

traveling to or from Congress. It is safe to say that this is not what the framers intended. 

* * * 

In sum, then-Senator Craig incurred legal expenses when he attempted to withdraw his 

guilty plea to a misdemeanor charge of disorderly conduct in Minnesota. He incurred these 

expenses irrespective of his duties as a federal officeholder, as Craig had expressly conceded 

before the Senate Ethics Committee. Accordingly, the Court could draw the reasonable 

inference that defendants are liable for converting campaign funds to personal use in violation of 

2 U.S.C. § 439a(b). The motion to dismiss should be denied. 

III. THE COMMISSION’S DETERMINATION THAT DEFENDANTS ILLEGALLY 

CONVERTED CAMPAIGN FUNDS TO PERSONAL USE IS SUPPORTED BY 

PRIOR FEC ADVISORY OPINIONS 

Under 2 U.S.C. § 437f(c), a person who in good faith relies upon the “provisions and 

findings” of an FEC advisory opinion involving activity that is “indistinguishable in all its 

material aspects from” his or her own activity shall not be subject to any sanction in FECA. 

Contrary to defendants’ claims (Defs.’ Mem. at 6-10), their conversion of campaign funds to 

personal use was illegal — not excused — under FEC advisory opinions. 

 The Commission determined that defendants did not qualify for the safe harbor under 

section 437f(c) when it found that there was probable cause to believe defendants violated 

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19 

section 439a(b). (Compl. ¶ 29.) That determination was reasonable — and is entitled to 

deference — since the advisory opinions on which defendants rely involve transactions that are 

materially distinguishable from defendants’ activities.5 Indeed, in AO 2006-35 (Kolbe), upon 

which defendants chiefly rely, the Commission expressly stated that the use campaign funds to 

defend against criminal allegations regarding conduct not related to officeholder duties would be 

impermissible, even if that conduct happened to occur while the officeholder was on an official 

Congressional trip. 

 Defendants rely upon four advisory opinions (including the Kolbe opinion), but none of 

them shields defendants from a finding that they violated the personal use prohibition in FECA. 

First, in AO 2006-35 (Kolbe), the Commission approved the use of campaign funds for legal 

expenses then-Representative Jim Kolbe incurred while responding to a preliminary inquiry by 

the Department of Justice into “an official congressional trip to the Grand Canyon attended by 

Representative Kolbe and two former House Pages, among others.” Id. Because the trip “was 

part of an official Congressional visit,” the Commission concluded that Kolbe’s legal expenses in 

responding to an “inquiry regarding the rafting trip . . . would not exist irrespective of his duties 

as a Federal officeholder.” Id.

 

5

 The Commission’s vote to find probable cause involved an underlying finding that the 

defendants did not qualify for a safe harbor under 2 U.S.C. § 437f(c) based on prior advisory 

opinions. Before the Commission, defendants argued that they qualified for the safe harbor 

because prior advisory opinions have permitted the use of campaign funds in situations that were 

materially indistinguishable from the circumstances here. (See, e.g., Prob. Cause Tr. at 35:17-22 

(“I just would point out, as you know, under 437f(c), we are entitled to rely on this 

Commission’s opinions in terms of conforming our conduct to that guidance and we feel 

comfortable relying on the language in the Kolbe for our position.”); see also id. at 24:4-15 

(relying on the Cunningham advisory opinion).) There was no factual dispute regarding 

defendants’ conduct before the Commission. (Id. at 6:1-11.) The Commissioners discussed the 

Kolbe advisory opinion at length (see generally id. at 18-40) and nevertheless voted to find that 

there was probable cause to believe defendants violated section 439a(b) (Compl. ¶ 28). 

Accordingly, the Court should defer to the Commission’s determination that its prior advisory 

opinions involved conduct materially distinguishable from defendants’ activity. 

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 News reports that the Kolbe for Congress committee submitted to the Commission with 

its advisory opinion request indicate that the Department of Justice had yet to officially state why

it was inquiring into Kolbe’s trip, although anonymous and unofficial sources were reporting that 

the inquiry was due to allegations that Kolbe had engaged in inappropriate behavior with former 

House pages during the trip. See AO Request 2006-35 (Kolbe) and Supporting Documents, 

available at http://saos.nictusa.com/aodocs/569946.pdf. For instance, the New York Times 

reported that it “was not immediately clear whether [the inquiry into the trip] concerned any 

contention of improper activity by the retiring Kolbe,” and that “[a] Justice Department 

spokeswoman declined to comment” on the matter. Id. (citing House Page Program Leaders 

Discuss Trip, N.Y. Times, Oct. 17, 2006).6

 Accordingly, after concluding that Kolbe could use 

campaign funds for “the inquiry into his trip,” the Commission added a point that is critical here: 

the details of the preliminary inquiry by the Department of Justice are not 

public at this time, and it is possible that the scope of the inquiry could 

involve allegations not related to Representative Kolbe’s duties as a 

Federal office holder. Thus, the Committee may not use campaign funds 

to pay for Representative Kolbe’s legal expenses in the preliminary 

inquiry regarding other allegations, if any, that do not concern the 

candidate’s campaign activities or duties as a Federal officeholder. 

AO 2006-35 (Kolbe), 2007 WL 268223, at *3 (emphases added). 

 Thus, the Kolbe advisory opinion provides defendants no protection because Craig’s 

legal expenses did not arise from an investigation that related to an official trip — let alone from 

a preliminary investigation whose precise nature was unknown. Craig was arrested and pleaded 

 

6

 See also Letter from William H. Kelley, Treasurer, Kolbe for Congress to Federal 

Election Commission (Oct. 27, 2006) (pointing out that “the details of the preliminary inquiry 

are unknown”); Jonathan Weisman & James V. Grimaldi, Kolbe Matter Is Referred to House 

Ethics Panel, Washingtonpost.com, Oct. 18, 2006 (citing an unnamed law enforcement official 

as stating that the inquiry was regarding Kolbe’s behavior with pages); U.S. Prosecutors 

Targeting GOP Lawmakers, N.Y. Times, Oct. 24, 2006 (citing no source for its report that the 

Justice Department was investigating Kolbe for improper conduct with pages). 

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21 

guilty for behavior that was concededly “purely personal conduct unrelated to the performance 

of [Craig’s] official Senate duties.” (Compl. ¶ 22 (emphasis omitted).) Moreover, Craig’s legal 

expenses were not incurred to challenge his arrest, but for his later decision to attempt to 

withdraw his guilty plea. See supra pp. 8-10. Nothing in the Kolbe advisory opinion approves 

the use of campaign funds for an expense such as Craig’s, and the Commission’s determination 

that the opinion does not protect defendants is entitled to deference.7 

 Defendants also rely on three other advisory opinions, but the activities at issue in each 

are also materially distinguishable from the circumstances here. (See Defs.’ Mem. at 9 (citing 

FEC AO 1997-27, 2000-40, and 2005-11).) All three opinions approve the use of campaign 

funds for legal expenses that, unlike those in this case, were closely related to a Member’s 

official duties. 

 In FEC AO 1997-27 (Boehner), Representative John Boehner incurred legal expenses 

arising from his filing of a civil suit against a defendant who allegedly disclosed an intercepted 

telephone conversation between Boehner and other Members of Congress, which “pertained 

specifically to the business of the House.” 1998 WL 108616, at *2, available at

http://saos.nictusa.com/aodocs/1997-27.pdf. Because the telephone conversation itself “was in 

pursuit of his duties as a Member of Congress,” the “legal expenses at issue would not [have] 

exist[ed] irrespective of Mr. Boehner’s duties as a Federal officeholder.” Id. 

 In FEC AO 2000-40 (McDermott), then-Representative Jim McDermott incurred legal 

expenses defending against Boehner’s lawsuit, which accused him of illegally disclosing 

 

7

 Citing unofficial reports in the news sources, defendants contend that the Kolbe advisory 

opinion approved of the use of campaign funds to respond to “the underlying allegations about 

[Kolbe’s] conduct on the trip.” (Defs.’ Mem. at 7-8.) This misreads the advisory opinion. It 

approves the use of campaign funds only to the extent the preliminary Department of Justice 

inquiry was “related to Representative Kolbe’s duties as a Federal office holder.” AO 2006-35, 

2007 WL 268223, at *3. 

Case 1:12-cv-00958-ABJ Document 5 Filed 09/04/12 Page 23 of 26
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Boehner’s intercepted conversation. 2001 WL 136013, at *1. The Commission explained that 

McDermott received the tape and released it to the media and other Members of Congress only 

because of his position as the ranking Democratic Member of the House Committee on 

Standards of Official Conduct. Id. at *3. Thus, McDermott faced Boehner’s suit due to 

“activities that [he] engaged in because of [his] position at the time” in Congress, and as a result, 

his legal expenses did not exist irrespective of his position. Id.

 Finally, in FEC AO 2005-11 (Cunningham), then-Representative Randall Cunningham 

incurred legal fees defending against a grand jury investigation regarding “allegations that 

Representative Cunningham obtained benefits (i.e., the sale of his house at an above-market 

price and a rent-free stay on a yacht) from [a federal defense contractor] because of his status as 

a U.S. Representative and his position on the Permanent Select Committee on Intelligence and 

the House Appropriations Defense Subcommittee.” 2005 WL 2470825, at *3. Accordingly, 

those allegations and legal fees would not have existed irrespective of Cunningham’s 

officeholder duties. Id. 

 In none of these three advisory opinions did the Commission “ignore[] the substance of 

members’ underlying conduct,” as defendants’ claim (Defs.’ Mem. at 9); to the contrary, the 

Commission determined in each instance that the Member engaged in the activity giving rise to 

the legal expenses because he was an officeholder.8 

This is a far cry from the conduct giving rise to Craig’s arrest. In no advisory opinion did 

a requester claim, as defendants do here, that the legal expenses incurred arose from concededly 

personal conduct unrelated to officeholder duties, but which happened to occur while on an 

 

8

 Defendants’ attempt to reduce the activity at issue in each of these advisory opinions to 

merely “selling one’s house, renting a yacht, or intercepting and disclosing cellular telephone 

calls” (Defs. Mem. at 9), ignores the critical facts underlying the opinions. 

Case 1:12-cv-00958-ABJ Document 5 Filed 09/04/12 Page 24 of 26
23 

official trip. As a result, the Commission reasonably determined that these advisory opinions do 

not provide defendants a safe harbor from their conversion of funds to personal use, and that 

determination is entitled to deference. 

CONCLUSION 

As alleged in the Commission’s complaint, defendants spent more than $200,000 in 

campaign funds on Craig’s legal expenses, which defendants concede arose from Craig’s purely 

personal conduct that was unrelated to his duties as a federal officeholder. Thus, the complaint 

pleads a violation of FECA’s bar on converting campaign funds to personal use, 2 U.S.C. 

§ 439a(b), and no FEC advisory opinion shields defendants from being held responsible for that 

violation. The motion to dismiss should be denied. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

aherman@fec.gov 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

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

Special Counsel to the General Counsel 

lstevenson@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Case 1:12-cv-00958-ABJ Document 5 Filed 09/04/12 Page 25 of 26
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/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

khancock@fec.gov 

September 4, 2012 FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

(202) 219-0260 (facsimile) 

Case 1:12-cv-00958-ABJ Document 5 Filed 09/04/12 Page 26 of 26