Counts IV and V of Plaintiffs’ First Amended Complaint are based on mandamus and the 1

Administrative Procedures Act. Defendant FEC contends that the Court already ruled on these

claims (in a June 22, 2007 Minute Order) when it granted Defendants’ motions to dismiss. It was

the undersigned counsel’s understanding that during the hearing on June 22, 2007, the Court did not

expressly rule on Plaintiffs’ mandamus and APA claims and indicated that it would likely rule on

those claims in the near future. Given the Court’s verbal order and that fact that the Court had not

expressly ruled on the mandamus and APA claims, Plaintiffs included those counts in their First

Amended Complaint.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK and RENEE BEAM,

Plaintiffs, Civil Action No. 07-cv-1227

Honorable Rebecca R. Pallmeyer

vs.

ALBERTO R. GONZALES, UNITED

STATES ATTORNEY GENERAL, AND

ROBERT LENHARD, FEDERAL ELECTION

COMMISSION CHAIRMAN,

In their official capacities,

Defendants.

___________________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO

DEFENDANTS’ MOTIONS TO DISMISS

In their First Amended Complaint, Plaintiffs assert that Defendants Gonzales, the FEC, and

an unknown agent(s) of the FBI (“Justice Department, or DOJ”) violated the Right to Financial

Privacy Act, and conspired to retaliate against them for exercising their First Amendment Right of

free speech, and conspired with the FEC to circumvent federal campaign finance laws. Both 1

Defendants Gonzales and the FEC now seek dismissal under Fed. R. Civ. P. 12(b)(1) & (6). For the

following reasons, Defendants’ motion should be denied.

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 1 of 18
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In the first twelve pages of its motion to dismiss, DOJ asserts that Plaintiffs’ claims are not

ripe and Plaintiffs have no standing to challenge the DOJ “unless and until an indictment is returned

against [them].” (DOJ Motion to Dismiss, pg. 4). DOJ also begs the Court to stay out of this matter

because there is an ongoing criminal investigation and, apparently, any sort of questioning of DOJ’s

improper conduct would impede the DOJ’s ability to investigate serious and important matters (the

most important of which is investigating the political activities and preferences of American

citizens). On August 24, 2007, the DOJ indicted Mr. Geoffrey Fieger and his law partner Ven

Johnson (Exhibit A). With these indictments now in hand, there is no reason for the Court to

abstain from hearing Plaintiffs’ claims. See Steffel v. Thompson, 415 U.S. 452, 462 (1974)(pointing

out that a federal court should not abstain from hearing a claimant’s constitutional claims where

there is no pending criminal action against the claimant).

While the government attempts to place this case into a procedural morass, the crux of

Plaintiffs’ claims are very simple. The DOJ began the largest campaign finance investigation in the

history of America with a small militia of nearly 100 federal agents who raided the Fieger law firm

and the homes of all the Fieger firm employees and associates. The pretext for this unprecedented

type of raid was alleged campaign finance disputes that involve approximately $100,000 of

contributions made to the John Edwards 2004 presidential campaign. Plaintiff Jack Beam serves as

of counsel to the Fieger law firm. 

During the course of its crusade, the DOJ revealed that they had secretly obtained the bank

records for dozens of individuals without a trace of a warrant or subpoena or other document.

Shortly thereafter, FEC Chairman Michael Toner (former General Counsel of the Bush-Cheney

team) sent a threat letter to Plaintiffs Jack and Renee Beam accusing them of violating federal

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 2 of 18
-3-

campaign finance laws. So how did the FEC obtain information about political contributions made

by Jack and Renee Beam? How did the FEC obtain financial records about monies paid either to

or from the Beams from the Fieger law firm. The most likely answer is that the DOJ illegally

gathered such private financial records in violation of federal law and then sent their illegal fruits

to the FEC.

 The Beams have attempted unsuccessfully to find out how the government obtained their

bank records. The financial institutions have refused to disclose how the government accessed their

accounts. The government has also refused to explain how it secretly collected the records without

a trace of a subpoena or warrant. Now, the government is asking the Court to dismiss this case

without any further questions. The Court should deny the government’s motions to dismiss.

Generally, a grand jury subpoena served on a financial institute is not secret, and a financial

institution is not precluded from acknowledging the existence of a grand jury subpoena. Under the

Right to Financial Privacy Act (RFPA), the government may seal the existence of a grand jury

subpoena by obtaining a court issued gag-order which would effectively gag a financial institution

from revealing to its customers whether the government had accessed the account. 12 U.S.C. §§

3413(i) and 3409. 

In complete contradiction of §§ 3413(i) and 3409, the government contends that the RFPA

does not apply to grand jury subpoenas. This is not exactly true.

Section 3413(i) provides that:

Nothing in this title [] shall apply to any subpoena or court order

issued in connection with proceedings before a grand jury, except that

a court shall have authority to order a financial institution, on which

a grand jury subpoena for customer records has been served, not to

notify the customer of the existence of the subpoena or information

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 3 of 18
 If the government’s theory were correct that all grand jury subpoenas served on financial 2

institutions were secret, why would congress have passed § 3413(i) and § 3409 which expressly

provides for a gag order? 

-4-

that has been furnished to the grand jury, under the circumstances and

for the period specified and pursuant to the procedures established in

section 1109 of the Right to Financial Privacy Act of 1978 (12 U.S.C.

§ 3409).

 So, while it is true that most of the substantive provisions of the RFPA do not apply to grand jury

subpoenas, the government must still follow the statutory procedures outlines in § 3409 if it wishes

to seal the existence of a grand jury subpoena served on a financial institution. 

The following example best illustrates the operation of §§ 3413(i) and 3409. The

government is investigating a bank robbery of a prominent Chicago bank. There is an ongoing grand

jury investigation and the government wishes to obtain surveillance video from the bank. The

government serves on the financial institution a grand jury subpoena. The mere existence of that

subpoena is not a secret. The financial institution is free to disclose the existence of the grand jury

subpoena. If the government wishes to seal the existence of the subpoena, it may do so by obtaining

a gag order under § 3409. If the government does not obtain the gag order, the bank is not precluded

from disclosing the existence of the subpoena.

In this case, the government is arguing that all grand jury subpoenas are secret. This is

simply untrue. If the government wishes to secretly obtain bank records through use of a grand jury 2

subpoena, it must obtain a gag order under § 3409. In order for the government to obtain a gag order

under § 3409, it must prove, inter alia, that disclosure of such actions will “endanger life or physical

safety of any person; flight from prosecution, destruction of or tampering with evidence; intimidation

of potential witnesses; or otherwise seriously jeopardizing an investigation or official proceeding .

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 4 of 18
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. .” 12 U.S.C. § 3409(a)(3)(A)-(E). Such a court issued gag order remains in effect for only 90 days

unless the government renews its request to suppress notice of disclosure by meeting the

requirements of § 3409(a)(3)(A)-(E). 

In this case, the financial institutions, upon proper request made pursuant to 12 U.S.C. §

3404(c), have refused to reveal whether the government has accessed their customers’ accounts.

None of the statutory requirements to obtain a gag order of a grand jury subpoena remotely apply to

a campaign finance case. Alleged violations of campaign finance do not involve endangering life

or the physical safety of any person. Nor can the government credibly claim that more than 100

people (employees of the Fieger firm, their spouses and children) are at risk of “flight from

prosecution.” And because the banking records are in the possession of the financial institutions,

such records are not subject to “destruction.” Given the statutory language of § 3409, it is difficult,

if not impossible, to imagine how the government could obtain gag orders for dozens of subpoenas

in a case involving campaign contributions to John Edwards. 

As another red herring, the government also claims that “provisions in other statutes make

it a crime for financial institutions to disclose grand jury subpoenas to customers in certain

circumstances.” (Gonzales’s motion to dismiss, pg. 14-15). Specifically, the government cites 18

U.S.C. § 1510(b)(2) for the proposition that grand jury subpoenas served on financial institutions

are secret. Again, the government is incorrect. Section 1510 provides that the secrecy requirements

apply only to a grand jury subpoena for records relating to the following categories of criminal

investigations:

• receipt of commissions or gifts for procuring loans

• theft, embezzlement, or misapplication by bank officer or employee

• banking crimes committed by lending, credit and insurance institutions employees

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 5 of 18
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• influencing FDIC transactions with false entries, etc.

• making false loan and credit applications

• bank fraud

• laundering of monetary instruments

• engaging in monetary transactions in property derived from specified unlawful activity

18 U.S.C. § 1510(b)(3)(B)(i),(ii). The FEC’s claims against Plaintiffs have nothing to do with any

of the crimes enumerated in § 1510; therefore, the government’s vague claims to secrecy should be

flatly rejected. 

If the government’s investigation does not involve suspected violations of the aforementioned

crimes, then its grand jury subpoena for records is not secret unless the government obtains a gag

order under 12 U.S.C. §§ 3413(i) & 3409. Indeed, the fact that 12 U.S.C. §§ 3413(i) & 3409

specifically address the manner in which the government may seal a grand jury subpoena served on

a financial institution further demonstrates that the government’s interpretation of 18 U.S.C. § 1510

is flawed. For instance, if the government’s assertion were true that all grand jury subpoenas served

on financial institutions were secret under § 1510, then 12 U.S.C. § 3413(i) would be rendered

superfluous because there would never be a need to seal such a subpoena. See, e.g., Arkansas Best

Corp. v. Comm’r Internal Revenue Serv., 485 U.S. 212, 218 (an interpretation of statutory provision

that renders another superfluous cannot be correct). 

In short, it is a virtual certainty that the government violated at least the RFPA by secretly

obtaining Plaintiffs’ bank records (and the bank records for dozens of employees and other associates

of the Fieger law firm). It is also a virtual certainty that the DOJ illegally gathered these bank

records and then transmitted the same to the FEC. And why did the government do all of this?

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 6 of 18
 Toner, who recently resigned as Chairman of the Federal Election Commission, was 3

appointed by Mr. Bush. Prior to his appointment to the FEC, Toner served as Chief Counsel to the

Republican National Committee, and prior to that Toner served as General Counsel of the BushCheney Transition Team and General Counsel of the Bush-Cheney 2000 Presidential Campaign.

 Although the election was riddled with irregularities, the Public Integrity Division of the 4

Justice Department, headed by Noel Hillman refused to look into the matter. 

-7-

Because the DOJ, aided by other political operatives like former FEC Chairman Michael Toner,3

have aggressively engaged in a nationwide campaign to harass and prosecute Democrats with the

purpose of chilling their First Amendment rights.

It is also clear that the White House played an active role in directing the Justice

Department’s Public Integrity Division which department handles cases, like this, involving

campaign finance investigations. The most shocking evidence was revealed in the Justice

Department’s case brought against formerAlabamaDemocratic Governor Don Siegelman, who was

relentlessly pursued by the Justice Department after being narrowly defeated by GOP candidate Bob

Riley.4

With only a razor thin margin of victory and the prospect of a recount, high ranking

Republicans decided to take more decisive actions against Siegelman. According to an affidavit of

Dana Jill Simpson, a lifelong Republican lawyer who practices in Alabama, Riley’stop adviser Bill

Canary said during a conference call, “not to worryabout Don Siegelman.” because “his girls” would

take care of Siegelman. Canary then made clear that “his girls” was a reference to his wife, Leura

Canary, the United States Attorney for the Middle District of Alabama, and Alice Martin, the United

States Attorney for the Norther District of Alabama. (Exhibit B). 

Canary also reassured others on the call – including Riley’s son Rob Riley – not to worry

because “he had already gotten it worked out with Karl [Rove] and Karl had spoken with the

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 7 of 18
United States v. Thompson, 484 F.3d 877 (7th Cir. 2007). There, United States Attorney 5

Steven Biskupic of Wisconsin brought frivolous corruption charges against Ms. Georgia Thompson,

a state employee accused of steering government contracts to companies that supported her boss, a

Democratic Governor. Although Biskupic could not state a coherent crime against Ms. Thompson,

he advanced a silly theory that Thompson committed a crime because state contracts were given to

companies lead by Democrats who supported the Governor, and that Thompson received a benefit

by way of her continued employment with the state. According to Biskupic, Thompson deprived the

people of Wisconsin of her “honest services” and needed to be imprisoned.

Although the charges should never have gone to a jury, Biskupic obtained a conviction based

on an utterly indiscernible and fictitious crime. In an unprecedented ruling, the Seventh Circuit

-8-

Department of Justice and the Department of Justice was already pursuing Don Siegelman.” (Ex.

B). Although both U.S. Attorneys subsequently indicted Siegelman on a variety of charges, a federal

judge in the Northern District of Alabama dismissed the government’s case against Siegelman as

politically manipulated (Ex. C). See also Exhibit D, Adam Nossiter, Democrats See Politics in a

Governor’s Jailing, N.Y. TIMES, September 11, 2007.

So how did Karl Rove manage to direct the Public Integrity Division of the Department of

Justice? Enter Noel Hillman, a Bush loyalist and former federal prosecutor. Hillman began working

at the DOJ’s criminal division in 2001 and was later appointed by Mr. Bush to lead the Public

Integrity Section of the DOJ, one of the most sensitive and intrinsically political positions in the

Department of Justice. 

In short, Public Integrity decides who and what is corrupt in the American political

landscape. With Hillman’s arrival to Public Integrity, the Department of Justice began its most

aggressive and current nationwide campaign of targeting Democrats with frivolous criminal

prosecution. Hillman was responsible for moving forward on the incoherent charges brought against

Wisconsin civil servant Georgia Thompson (which charges the Seventh Circuit described as

“preposterous”), the prosecution of Siegelman, and a number of other cases including the 5

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 8 of 18
vacated Thompson’s conviction within hours of oral argument and ordered that she be released from

prison by day’s end. The case was so frivolous that Seventh Circuit Judge Diane Wood (a former

Deputy Assistant General of the Justice Department) told the government during argument that she

did not even understand the government’s theory of its case.

In the spring of 2006, after his dutiful service as the leader of Public Integrity at DOJ, 6

Hillman was rewarded by Mr. Bush with an appointment to the federal bench in New Jersey. In

early 2007, Mr. Bush nominated Hillman to a coveted seat on federal Court of Appeals for the Third

Circuit. In June 2007, with heightened scrutiny of Hillman’s corrupt oversight and involvement in

several politically motivated and frivolous prosecutions, Mr. Bush quietly pulled Hillman’s

nomination to the Third Circuit in a move clouded with mystery. Seemingly, the Bush

Administration did not want to subject Hillman to a Senate confirmation hearing during which he

would have been subject to mounting questions surrounding his (and the White House’s)

involvement in turning the Justice Department into a political machine. 

-9-

government’s frivolous charges against prominent Detroit Democrat Carl Marlinga who was

acquitted on all charges. More important, however, Hillman was also responsible for the nearly twoyear long criminal investigation which culminated in the instant indictments against members of the

Fieger law firm.

The strikingly disparate targeting of Democrats under the Bush Administration and Hillman’s

leadership of the Public Integrity Section is also the subject of a recent study released by Donald

Shields, Professor Emeritus, University of Missouri at St. Louis, and John Cragan, Professor

Emeritus, Illinois State University (Exhibit E). In their study, Shields and Cragan examined the

number of “public corruption” investigations and/or prosecutions brought by the Bush Justice

Department under Hillman’s leadership of Public Integrity (January 2001 through December 2006).6

Based on their data and research, Shields and Cragan concluded that “the offices of the U.S.

Attorneys across the nation investigate seven (7) times as many Democratic officials as they

investigate Republican officials, a number that exceeds even the racial profiling of African

Americans in traffic stops.” (Ex. E). According to Professors Shields and Cragan, “[t]he current

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 9 of 18
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Bush Republican Administration appears to be the first to have engaged in political profiling.” (Ex.

E). Shields and Cragan also conclude that “[t]he current Republican Administration is the first to

have been ‘caught’ statistically as engaging in political profiling.” (Ex. E). This study is proof

positive that the Public Integrity Section of DOJ has served as the operational nucleus for the White

House’s politically motivated prosecutions and investigations of Democrats like Jack and Renee

Beam.

So while the government may attempt to discredit Jack and Renee Beam as fantastic story

tellers, this case is far from fiction. Indeed, Plaintiffs have identified an alarming pattern of what

appears to be political prosecutions under the current administration. And the evidence of the

government’s witch hunt against Democrats continues to grow. Just a few days ago, two sources,

including a member of the Justice Department, revealed that the Bush Administration developed a

plan to stifle the ability of Democratic candidates to raise money by targeting their financial

supporters with frivolous allegations of campaign finance violations. See Scott Horton, Tracking

Political Prosecutions, Harper’s Magazine, Sept. 22, 2007, at 1 (Ex. F). The scheme contemplated

raids on law offices in order to “flyspeck” campaign contribution records and directed that “offenses

not be treated as an administrative matters but rather as serious criminal offenses.” Id. “It was

essential to pull it off that each case be viewed as something standing all on its own, and that the fact

that there was a politically motivated prosecution be obscured.” Id. 

While the strategy may have gone unnoticed in its early stages, the frequencywith which the

politically-based prosecutions have been carried out now proves that there is a stink in the pantry.

Now, even in the face of what appearsto be the twenty-first century version of the Salem witch trials,

the government is attempting to ‘make this lawsuit go away.’ The FEC simply claims it did nothing

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 10 of 18
 In its motion to dismiss, DOJ erroneously concludes that Plaintiffs’ cause of action, if any, 7

is against the financial institutions and not the government. Again, this is incorrect. Section 3417(a)

expressly provides a statutory cause of action against any agency or department of the United States.

-11-

wrong and the DOJ raises specious jurisdictional challenges to this lawsuit. The Court should reject

the government’s arguments and proceed on the merits of Plaintiffs’ statutory and constitutional

claims. 

A. The RFPA provides for a statutory cause of action against any “agency or

department of the United States” and thus constitutes a waiver of sovereign

immunity.

In its motions to dismiss, both Defendants DOJ and the FEC assert that Plaintiffs claims are

barred by sovereign immunity. The Right to Financial Privacy Act (RFPA) provides a statutory

cause of action for violation of the Act and expressly provides for actual and punitive damages

against “[a]ny agency or department of the United States . . .” 12 U.S.C. § 3417(a)(emphasis

added). Thus, § 3417 constitutes a waiver of sovereign immunity as to Plaintiffs’ claims against

7

both the DOJ and FEC arising under the RFPA.

To the extent that Plaintiffs claim that federal agents violated their constitutional rights to

engage in free speech, Defendants’ reliance on sovereign immunity also fails. A suit in which a

plaintiff alleges that a federal officer has acted in violation of the Constitution or statutory authority

generally is not deemed to be a suit against the sovereign. Dugan v. Rank, 372 U.S. 609, 621-22

(1963); Ogden v. United States, 758 F.2d 1168, 1177 n.5 (7th Cir. 1985). As the Seventh Circuit has

aptly pointed out, an action seeking monetary relief from individual federal officials for a

constitutional violation may be brought as a Bivens action “to avoid the sovereign immunity that

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 11 of 18
 In Bivens, the Supreme Court held that a plaintiff could recover money damages for 8

violations of the Fourth Amendment committed by federal agents. 403 U.S. at 397; see also Bagola

v. Kindt, 131 F.3d 632, 637 (7th Cir. 1997). Courts have also recognized that a Bivens remedy

extends beyond Fourth Amendment violations and encompasses other constitutional rights. Butz v.

Economou, 438 U.S. 478 (1978).

-12-

would block an action against the United States.” Sterling v. United States, 85 F.3d 1225, 1228-29

(7th Cir. 1996).8

For these reasons, the Court should reject Defendants’ arguments that Plaintiffs’ claims are

barred by sovereign immunity.

B. Plaintiffs have standing to challenge the government’s act of secretly obtaining

their private financial records where the government violated, among other

laws, the Right to Financial Privacy Act.

Also without merit is the government’s claim that Plaintiffs lack standing. In an attempt to

obfuscate the issue, the government repeatedly claims that Plaintiffs are attempting to disrupt a grand

jury investigation. This is no longer at issue. The DOJ recently indicted the principals of the Fieger

law firm such that there is no longer a prospect of disrupting a grand jury investigation.

Furthermore, the Beams have a congressional-created statutory cause of action against a government

agency and its employees who violated federal law in secretly obtaining their bank records. 

It is a fact that the government obtained bank records for scores of individuals without a trace

of a warrant or subpoena. Mysteriously, after the DOJ obtained these records in violation of federal

law, the illegally gathered bank records found their way into the hands of the FEC. The FEC, in turn,

sent letters to Plaintiffs Jack and Renee Beam accusing them of violating federal campaign laws

based on their financial support to the John Edwards presidential campaign. It is not difficult to

connect these dots. Contrary to the government’s assertion, Plaintiffs have suffered an invasion of

a legally protected interest (albeit Plaintiffs cannot yet identify the hand that held the pen). It is

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 12 of 18
 The circular type of argument made here has become all too common under the Bush Justice 9

Department. For years now, the Bush Justice Department has attempted to expand the power of the

executive branch and provide greater secrecy to DOJ activity. Apparently, their strategy is that the

less we know, the less we can complain.

-13-

incredible for the government to now stand in a circle refusing to reveal how it secretly obtained

Plaintiffs’ financial records while at the same time argue that Plaintiffs cannot ask any questions.9

The RFPA provides Plaintiffs with a statutory cause of action for violations of such Act. The

Act sets forth the manner and circumstances under which the government may gag a financial

institution from disclosing the existence of a grand jury subpoena. Plaintiffs claim that the DOJ

violated and/or circumvented these provisions in order to spy on their political activities, and the

DOJ transmitted its illegally gathered records to the FEC. The FEC also seeks dismissal of this case

and claims ignorance as to the manner in which the DOJ illegally gathered Plaintiffs’ bank records.

Seemingly, the FEC is proffering a new type of immunity; that is, the don’t ask don’t tell immunity.

In September 2006, Commission Chairman Michael Toner sent Plaintiffs Jack and Renee

Beam a threat letter accusing of them violating campaign finance laws. Toner also provided a factual

basis of his claims against Plaintiffs, which made clear that the FEC had in its possession Plaintiffs’

bank records. To this day, however, the FEC has neither conducted an investigation nor has it never

issued a subpoena for any records. So where did the FEC get the records. Answer: from the DOJ,

and the FEC asserts that it did not ask where the records came from and DOJ apparently did not tell.

At a minimum, Plaintiffs are entitled to discovery as to these disputed factual questions.

In their complaint, Plaintiffs allege that members of the DOJ and FEC conspired to retaliate

against them for exercising their free speech. In the FEC’s motion to dismiss, it claims that Plaintiffs

failed to sufficiently plead a conspiracy claim against it. Plaintiffs disagree. 

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 13 of 18
-14-

The standard which determines the sufficiency of factual allegations of the existence of a

civil conspiracy are governed by the “short and plain statement” rule set forth in Fed. R. Civ. P. 8(a).

See, e.g., In re, Crazie Eddie Securities Litigation, 747 F. Supp. 850, 863 (E.D. N.Y. 1990);see also

Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir. 1985). When pleading a civil conspiracy – just as

every other civil action – the “plaintiff need not ‘plead his evidence’ in stating a claim in conspiracy

or otherwise go into unnecessary detail (internal citations omitted).” Williams v. AMF, Inc., 512 F.

Supp. 1048 (S.D. Ohio 1981). Indeed, pleading and proving the existence of a conspiracy is one of

the more difficult of all possible undertakings in litigation because a conspiracy, by its very nature,

is a secret and clandestine enterprise. 

As the Supreme Court has admonished: “in . . . cases, where the proof is largely in the hands

of the alleged conspirators . . . dismissals prior to giving the plaintiff ample opportunity for discovery

should be granted very sparingly (internal quotation marks omitted).” Hospital Building Co. v.

Trustees of Rex Hosp., 425 U.S. 738, 746 (1976). The allegations of Plaintiffs’ complaint falls well

within the guidelines for pleading a civil conspiracy. Accordingly, this Court should reject

Defendant FEC’s argument that Plaintiffs have failed to sufficiently state a conspiracy claim. 

Plaintiffs’ complaint further alleges that the government’s acts were carried out in retaliation

for their support of the John Edwards campaign with the intent to chill the exercise of their

constitutional rights. And contrary to the government’s assertion, Plaintiffs have stated a federally

cognizable claim for retaliation. 

In Chicago Reader v. Sheahan, 141 F. Supp.2d 1142 (N.D. Ill. 2001), Judge Moran aptly set

forth the elements of a retaliation claim as follows:

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 14 of 18
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(1) that the plaintiff was engaged in a constitutionally protected

activity; (2) that the defendant’s adverse action caused the plaintiff to

suffer an injury that would likely chill a person of ordinary firmness

from continuing to engage in that activity; and (3) that the adverse

action was motivated at least in part as a response to the exercise of

the plaintiff’s constitutional rights.

(citing Block v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)). Here, Plaintiffs Jack and Renee Beam

exercised their most sacred right of political speech by providing financial support to the John

Edwards 2004 Presidential campaign. Shortly thereafter, the DOJ embarked on the largest campaign

finance investigation in the history of America. Gonzales personally authorized a small army of

nearly 100 federal agents to raid a law office and simultaneously raid the homes of its employees and

their families. Indeed, one agent commented about how he had been flown in from Iraq to help find

out why American citizens had made contributions to the John Edwards campaign. 

During the course of a nearly two-year-long grand jury investigation, federal agents have

compelled individuals to reveal the identity of whom they voted for in the 2004 presidential election.

These facts amply demonstrate that the government’s purpose was to harass, intimidate, threaten,

and chill the exercise of free speech by stifling Democratic candidates’ ability to raise money, taint

the reputations of Democratic candidates like John Edwards, and sway elections in favor of GOP

candidates. In this respect, the White House and the politicized Justice Department have already

succeeded in their mission by retaliating against people like Jack and Renee Beam for their

participation in the political process.

The government has also moved to dismiss Plaintiffs’ claims against “unknown agents of the

Federal Bureau of Investigation” for failure to serve. The problem, however, is that without

discovery Plaintiffs cannot identify the specific person(s) who violated their rights by secretly

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 15 of 18
-16-

accessing their bank accounts. The government sent a small army of nearly 100 federal agents

(apparently from all over the country and world) to investigate claims of campaign finance

violations. Since the raid upon the Fieger law firm, the government has harassed the employees,

family members, children, friends, associates, and acquaintances (all over the nation) of Mr. Fieger

and his firm. Given that the government has secretly accessed Plaintiffs’ bank records, Plaintiffs

cannot be faulted for failing to identify those responsible for the misconduct.

Indeed, in Billman v. Indiana Dep’t of Corrections, 56 F.3d 785, 789 (7th Cir. 1995)(Posner,

C.J.), the Seven Circuit held that a plaintiff’s “initial inability to identify the injurers is not by itself

a proper ground for the dismissal of the suit,” because this would “gratuitously prevent [a plaintiff]

from using the tools of pretrial discovery to discover the defendants’ identity.” See also Maclin v.

Paulson, 627 F.2d 83, 87 (7th Cir. 1980)(finding that when “a party is ignorant of defendants’ true

identity, it is unnecessary to name them until their identity can be learned through discovery or

through the aid of the trial court”). 

The Eight and Ninth Circuits also follow this rule. See Munz v. Parr, 758 F.2d 1254, 1257

(8th Cir. 1985)(“Rather than dismissing the claim, the court should have ordered disclosure of

Officer Doe’s identity by other defendants named and served or permitted the plaintiff to identify

the officer through discovery.”); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)(“the

plaintiff should be given an opportunity through discovery to identify the unknown defendants,

unless it is clear that discovery would not uncover the identities . . .”). 

Consistent with the law of this circuit, and other circuits across the country, the government

motion to dismiss Plaintiffs’ claim for failure to serve “unknown agents” of the FBI should be

denied. The mere production by the government of the subpoena (or national security letter, etc.)

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 16 of 18
-17-

used to secretly access the bank accounts in question will reveal the identity of the culprits who now

face liability. 

C. Plaintiffs have suffered a violation of their constitutional rights and their claims

are ripe for this Court’s review.

The DOJ also raises a specious argument that Plaintiffs’ claims are not ripe for review

“unless and until an indictment is returned.” (Gonzales’s Motion to Dismiss, pg. 5). The

government’s ripeness argument misses the mark. Plaintiffs’ claims are grounded in conspiracy and

retaliation for exercising their free speech. The FEC ripened Plaintiffs’ claims by sending them a

threat letter accusing Plaintiffs’ of frivolous campaign finance violations. There is an abundance of

evidence that has surfaced in the last six months which confirms Plaintiffs’ claims; that is, that the

DOJ is engaging in political profiling by targeting Democrats with frivolous investigations. It is also

clear that other agencies, headed by political appointees like former FEC Chairman Toner, are

assisting the DOJ in their mission.

The government’s assertion that Jack and Renee Beam cannot present their federal claims

unless and until they are indicted is simply absurd. So the government can harass, threaten,

intimidate, retaliate, and conspire against American citizens for exercising their free speech and

those victimized by such acts cannot complain about it unless and until they are indicted? Such an

assertion violates the core protections of the United States Constitution and should not be

circumvented by resorting to such disingenuous formalities.

Given the disclosure by Columbia Law Lecturer Scott Horton in his article Tracking Political

Prosecutions, Plaintiffs’ claims are far from imaginary or speculative (Ex. F). Given that Mr. Fieger

and his law partner were recently indicted for alleged campaign finance violations, there is no reason

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 17 of 18
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that Jack and Renee Beam cannot proceed with their constitutional and statutory claims against the

government.

For these reasons, Plaintiffs respectfully request that this Honorable Court deny the

government’s motions to dismiss and allow Plaintiffs to proceed immediately on their claims.

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: September 28, 2007

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on September 28, 2007 she electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of

such filing to the following:

Eric J. Beane at eric.bean@usdoj.gov

Linda A. Wawzenski at linda.wawzenski@usdoj.gov

Tamra L. Ulrich at tamara.ulrich@usdoj.gov

Attorneys for United States Attorney General Alberto Gonzales

Benjamin A. Streeter, III at bstreeter@fec.gov

Colleen T. Sealander at csealander@fec.gov

Attorneys for Robert Lenhard/Federal Election Commission

s/ Julie A. Nardone 

JULIE A. NARDONE 

Case 1:07-cv-01227 Document 61 Filed 09/28/2007 Page 18 of 18