UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEOFFREY NELS FIEGER

Plaintiff, CIVIL ACTION NO. 08-CV-14125

vs.

HON. DAVID M. LAWSON

FEDERAL ELECTION COMMISSION,

Defendant.

______________________________________________________________________________

PLAINTIFF’S SECOND SUPPLEMENTAL BRIEF AND EXHIBIT IN SUPPORT OF

MOTION FOR LEAVE TO CONDUCT DISCOVERY

By and through counsel, and in order to fully apprise the Court of the matters currently

pending, Plaintiff respectfully submits his second supplemental brief and exhibit in support of his

motion for leave to conduct discovery (Docket No. 16). In support of his supplemental response,

Plaintiff states the following:

1. In his motion for leave to conduct discovery, Plaintiff Fieger asks that theCourt allow him

the opportunity to conduct discovery in this FOIA case based on Defendant Commission’s failure

to provide responsive documents requested under Plaintiff’s FOIA request dated July 3, 2008.

2. Recently, the undersigned counsel obtained documentary proof that the Commission had

in its possession e-mails sent from former Commission Chairman Michael Toner to White House

Deputy Sara Taylor (who reported directly to Karl Rove) and Republican National Committee

General Counsel Thomas Josefiak. On March 17, 2009, Plaintiff filed with this Court his

Supplemental Brief and Exhibit in Support of Motion for Leave to Conduct Discovery (Docket No.

29).

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3. On March 24, 2009, the undersigned counsel sent Defense counsel a letter requesting that

Defendant Commission comply immediately with Plaintiff’s FOIA request dated July 3, 2008, and

produce, among others, the Toner e-mail sent to the White House and RNC. (Supplemental Exhibit

A, Letter to defense counsel dated March 24, 2009).

4. On April 1, 2009, the Commission produced to the undersigned counsel, for the first time,

the Toner e-mail in question (Docket No. 30-2 attached to Defendant’s Opposition to Plaintiff’s

Supplemental Brief). 

5. On April 2, 20089, Defendant Commission filed its opposition to Plaintiff’s supplemental

brief asserting that the Toner e-mail produced was not responsive to Plaintiff’s FOIA request dated

July 3, 2008 and thus it was under no obligation to produce it. Instead, the Commission claims that

the Toner e-mail was responsive to Plaintiff’s FOIA request dated October 27, 2008, and it has now

been produced, conveniently, in good faith.

6. Contrary to Defendant Commission’s explanation, even a cursory review of the Toner email reveals that it falls squarely within Plaintiff’s FOIA request dated July 3, 2008 (it also falls

within Plaintiff’s FOIA request of October 27, 2008, but that does not negate the fact that it is, in

fact, responsive to the earlier FOIA request dated July 3, 2008). 

7. The e-mail in question contains legislative proposals by the Justice Department “designed

to eliminate statutory loopholes, make the sentencing for FECA offenses more uniform, and improve

the effectiveness of the Justice Department’s criminal law enforcement responsibilities under the

campaign financing laws.” (Toner e-mail to White House and RNC containing letter from Assistant

Attorney General William Moschella to the Honorable Dennis Hastert)(emphasis added). Plaintiff’s

FOIA request dated July 3, 2008, sought documents between the Commission and the White House

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“relating in any way to enforcement of federal criminal statutes, including, but not limited to, the

Federal Election Campaign Act.” Based on the language of Plaintiff’s July 3 FOIA request, and the

contents of the Toner e-mail to the White House and RNC, it is disingenuous for the Commission

to claim, in good faith, that the Toner e-mail fell outside the scope of the July 3 FOIA request.

8. As the Toner e-mail shows, Mr. Toner wanted Mr. Rove’s and the RNC’s commentary

on “criminal law enforcement responsibilities under the campaign financing laws.” So why does Mr.

Toner, the Chairman of the Federal Election Commission, need the input of Karl Rove and the

Republican National Convention as to “criminal law enforcement responsibilities under the

campaign financing laws[?]” 

9. As Plaintiff highlights in his initial motion for leave to conduct discovery, there is

evidence that the Justice Department and the Federal Election Commission have engaged in selective

prosecutions based on partisan politics. The recently produced Toner e-mail corroborates an article

that appeared recently in the American Trial Lawyer Magazine:

Rove’s plan was to center his project inside the Justice Department

– which was being aggressively converted into a partisan tool through

a series of recruitment and management tools that Rove improvised.

It was essential to the scheme that the FEC bow out and turn control

over election law finance investigations in these cases to political

hacks operating inside the Justice Department.

About this time, Rove and his staffers held a number of secretive

discussions with Federal Election Commission chair Michael Toner,

and the FEC entered into some highly suspicious agreements to turn

over enforcement authority in matters involving Democraticallyoriented trial lawyers to the Justice Department. The FEC has

tenaciously resisted disclosures about its dealings and has withheld

from discovery a number of explosive emails between the White

House and Toner which relate to the project, while the White House

copies appear to belong to the more than two million emails that

mysteriously “disappeared” when federal prosecutor Patrick

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Fitzgerald began his investigation of Rove’s involvement in the

outing of cover CIA agent Valery Plame. 

Scott Horton, Fieger’s Fight for Freedom, The American Trial Lawyer, pg. 60 (Attached to

Plaintiff’s Motion for Leave to Conduct Discovery as Exhibit G).

10. In order to maintain the secrecy of their communications, Mr. Toner sent the e-mail in

question to Ms. Taylor’s “gwb43" e-mail account instead of an authorized government e-mail

account. 

11. These facts demonstrate, at a minimum, that Defendant Commission has not been

forthcoming in its handling of Plaintiff’s FOIA request, possibly because of the embarrassing and/or

improper communications at issue.

12. As the Sixth Circuit aptly pointed out in Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994);

[T]here may be evidence of bad faith or illegality with regard to the

underlying activities which generated the documents at issue. Where

such evidence is strong, it would be an abdication of the court’s

responsibility to treat the case in the standard way and grant summary

judgment on the basis of Vaughn affidavits alone. It would risk

straining the public’s ability to believe – not to mention the plaintiff’s

– that the courts are neutral arbiters of disputes whose procedures are

designed to produce justice out of the clash of adversarial arguments.

13. The recently uncovered-by-happenstance Toner e-mail falls squarely within the Sixth

Circuit’s holding in Jones and supports Plaintiff’s motion for leave to conduct discovery in this

matter.

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For these reasons, Plaintiff respectfully requests that this Honorable Court grant his Motion

for Leave to Conduct Discovery.

Respectfully submitted,

FIEGER, FIEGER, KENNEY & JOHNSON, P.C.

 

/s/ Michael R. Dezsi 

MICHAEL R. DEZSI (P64530)

Attorney for Plaintiffs

19390 W. Ten Mile Road

Southfield, MI 48075

 (248) 355-5555

m.dezsi@fiegerlaw.com

Dated: April 3, 2009

CERTIFICATE OF SERVICE

I hereby certify that on April 3, 2009, I electronically filed the foregoing paper with the Clerk

of the Court using the CM/ECF system, which will send notification of such filing to all counsel of

record in this matter.

s/ Michael R. Dezsi 

MICHAEL R. DEZSI (P64530)

FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, P.C.

19390 W. Ten Mile Road

Southfield, Michigan 48075

(248) 355-5555

m.dezsi@fiegerlaw.com

Dated: April 3, 2009

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