United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987)). See

also In re Persico, 522 F.2d 41, 54 (2d Cir. 1975) (same) (citing United States v. Cox,
342 F.2d 167, 190 (Sth Cir. 1965) (Wisdom, J., specially concurring)). Congress may
entrust these investigatory and prosecutorial powers to another Executive officer, but
it has long been established that “{t]o graft such an exception upon the criminal law
would require a clear and unambiguous expression of the legislative will.” United
States v. Morgan, 222 U.S. 274, 282 (1911).

The Federal Election Campaign Act contains no such clear and unambiguous
direction. The Act does not restrict or even mention the Attorney General’s authority
over criminal violations, nor does it vest criminal jurisdiction in any other agency or
Executive official. To the contrary, the Act provides that the Federal Election
Commission “shall have exclusive jurisdiction with respect to the civil enforcement”
of the Act, 2 U.S.C. § 437c(b)(1), but does not work any similar change in criminal
enforcement. Congress’ silence with regard to criminal matters is reason enough to
conclude that it did not intend to disturb the traditional responsibilities of the
Attorney General. Congress’ decision to confer exclusive civil jurisdiction to the
Commission, while including no such provisionas to criminal jurisdiction, makes that
conclusion even more inescapable.

The authority by which the Commission may refer cases to the Attorney

General for criminal investigation, 2 U.S.C. § 437g(a)(5)(C), is wholly consistent

-13-


DESIGNATION OF JOINT APPENDIX CONTENTS
Pursuant to Sixth Circuit Rules 28(d) and 30(b), the United States Attorney
General hereby designates the following portions of the district court record for
inclusion in the Joint Appendix, in addition to those contents that appear in plaintiffs-

appellants’ designation:

Description of Entry Date Record Entry No.
Plaintiffs’ Motion To Conduct 3/28/07 12

Limited Discovery


filed a collateral suit challenging an investigation or prosecution, would have the
potential to greatly disrupt the grand jury as well as any subsequent criminal trial.
The “general rule barring judicial interference with the conduct of a grand jury
proceeding” is at its strongest in such cases: “courts do not, except in very limited
circumstances not alleged here, entertain the claim of a person subject to a criminal
investigation that the investigation is unlawful and must therefore be enjoined.” In
re Sealed Case, 829 F.2d at 62 n.60.4

“[S]ubjects of federal investigation have never gained injunctive relief against

federal prosecutors.” Deaver, 822 F.2d at 69-70. Principles of equity preclude such

extraordinary relief in this case as well. If plaintiffs wish to challenge the propriety
of the Attorney General’s actions, they may follow the approach taken by the
appellees in International Union and file a motion to dismiss any indictments that may
be returned against them. See 638 F.2d at 1162; Fed. R. Crim. P. 12(b)(3). Fieger
had this opportunity, and elected not to challenge his indictment on the basis of the

Federal Election Campaign Act.’ “Prospective defendants cannot, by bringing

‘Limited exceptions may apply for plaintiffs seeking to resist a subpoena or assert
particular First Amendment rights. United States v. Ryan, 402 U.S. 530, 532 (1971);
Deaver, 822 F.2d at 69, 70 n.8. Plaintiffs’ suit falls into neither category.

‘Pursuant to court order, Fieger’s motion to dismiss his indictment under Rule
12(b)(3) was due on or before October 9, 2007. Dkt. #50, United States v. Fieger,
Crim. No. 07-20414 (E.D. Mich.). Fieger’s motion did not challenge the indictment

(continued...)

-30-


investigation for violations of campaign finance laws, and that the FEC had failed to
conduct a civil investigation into those violations. (R.1 Application for Writ of
Mandamus and Complaint, pgs. 3-4, 6, Apx. pgs. 8-9, 11.) Plaintiffs alleged that
because the Federal Election Commission had not completed a civil investigation and
referred the matter to the Attorney General, the grand jury’s criminal investigation
was contrary to “the jurisdictional requirements” of the Federal Election Campaign
Act, 2 U.S.C. § 437g. (R.1 Application for Writ of Mandamus and Complaint, pg.
5, Apx. pg. 10.) Plaintiffs sought declaratory relief from grand jury investigation and
prosecution, and declaratory and mandamus relief against the FEC. (R.1 Application
for Writ of Mandamus and Complaint, pgs. 5, 7, Apx. pgs. 10, 12.)

2. In August 2007, on cross-motions by the parties, the district court dismissed
plaintiffs’ suit. The court rejected plaintiffs’ argument that the Attorney General
lacked authority to conduct a grand jury investigation or prosecution without a
referral from the Federal Election Commission, noting that while “the Act specifically

provides that the Commission has ‘exclusive jurisdiction with respect to the civil

°

enforcement of [campaign finance] provisions,” it contains no restriction or
provision governing the Attorney General’s criminal jurisdiction. (R.33 Opinion and
Order, pgs. 8-9, Apx. pgs. 27-28 (quoting 2 U.S.C. § 437c(b)(1)).)

Moreover, because plaintiffs’ interpretation of the Act would limit the Attorney

General’s plenary criminal authority, the court held that such a construction required

-7-


When Congress amended the Act in 1976 to grant the Commission exclusive
civil jurisdiction, it again made clear that the change did not affect the Attorney
General’s criminal powers, but was limited to civil enforcement. The House bill that
would ultimately become law “follow[ed] the pattern set in the 1974 Amendments”
by excluding from the FEC’s jurisdiction “complaints directed to the Attorney
General and seeking the institution ofa criminal proceeding.” H.R. Rep. No. 94-917,
at 4 (2d Sess. 1976), reprinted in Fed. Election Comm’n, Legislative History of

Federal Election Campaign Act Amendments of 1976, at 804 (1977) [hereinafter

1976 Legislative History]; see S. Rep. No. 94-677, at 7 (2d Sess. 1976) (noting that

“[t]he proposed changes would give the Commission exclusive civil enforcement
authority,” but suggesting no change to the Attorney General’s authority over

criminal violations), reprinted in 1976 Legislative History at 283; H.R. Rep. No. 94-

1057, at 43 (2d Sess. 1976) (Conf. Rep.) (“The Conference substitute is the same as

the House amendment and the Senate bill.”), reprinted in 1976 Legislative History at

1037. That sentiment was again echoed by Senator Cannon, who explained that
“Tt]he bill would grant the exclusive civil enforcement of the act to the Commission
to avoid confusion and overlapping with the Department of Justice, but at the same
time, retain the jurisdiction of the Department of Justice for the criminal prosecution
of any violations of this act.” 94 Cong. Rec. $3860-61 (daily ed. Mar. 22, 1976)

(statement of Sen. Cannon), reprinted in 1976 Legislative History at 470-71.

-17-


2 US.C. § 437g (a6) cocccsssscssesssesssesssesssstesessessssssessessesesansesssssssseinneansseeessinneen 3
2US.C. § 437g(c)
2US.C. § 437g(d)(1) .
2 USC. § 437g(d)(2)-(3) ...
2US.C. § 44la ....
2US.C. § 441b.
2US.C. § 441f ....

28 U.S.C. § 516 ....
28 U.S.C. § 1291
28 U.S.C. § 1331
28 U.S.C. § 1361
28 U.S.C. § 2201...
28 U.S.C. § 2202 ..

Rules and Regulations:

Fed. R. Crim. P. 12(b)(3) ssssccccscsesssssvcssssssesvnssseesersvassssessseeasaneereseennenesesesessee 30
TL CHR. § L121) ccccscssssssssecsssssssseenseseseeesassesseseeeasesseseensesensesanenseetnesseseeee 22
43 Fed. Reg. 5441 (Feb. 8, 1978) c.scssccsssssssssssssssssssssussssssesssstseunsssesetessesteeenee 5-6

Legislative Materials:

Pub. L. No. 93-433, § 208, sec. 310(b), 88 Stat. 1263, 1281 (Oct. 15, 1974) ..... 16
Pub. L. No. 93-433, § 208, sec. 310(c), 88 Stat. 1263, 1282 (Oct. 15, 1974) ..... 21
Pub. L. No. 93-443, § 208, sec. 314(b), 88 Stat. 1263, 1285 (Oct. 15, 1974) ..... 25
H.R. 5010, 96th Cong. § 108, sec. 309(a)(5)(C), at 130 (1979) o..eseceeeeseeseeeee 22
S. 3044, 93d Cong., § 207, sec. 309(d), at 49 (2d Sess. 1974) o..ceesccecceeteseneees 15

H.R. Rep. No. 93-1438 (2d Sess. 1974) (Conf. Rep.) ....
H.R. Rep. No. 94-917 (2d Sess. 1976) ......
H.R. Rep. No. 94-1057 (2d Sess. 1976) (Conf.
H.R. Rep. No. 96-422, at 22 (1979) ...
S. Rep. No. 94-677 (2d Sess. 1976) ...

-iv-


“The traditional rule, dating back to the English division between courts of law
and equity, was that the latter had ‘no jurisdiction over the prosecution, the
punishment or the pardon of crimes or misdemeanors’ and therefore could not enjoin
criminal proceedings.” Deaver v. Seymour, 822 F.2d 66, 68 (D.C. Cir. 1987)
(quoting In re Sawyer, 124 U.S. 200, 210 (1888)). This prohibition on interference
with criminal proceedings derives from the basic doctrine that courts of equity will
not act when a party possesses an adequate remedy at law. Because “the adversary
system ‘afford[s] defendants, after indictment, a federal forum in which to assert their

7

defenses,” individuals cannot challenge a federal criminal investigation or

prosecution through a suit in equity. Stolt-Nielsen, S.A. v. United States, 442 F.3d

177, 185 (3d Cir.) (quoting Deaver, 822 F.2d at 69), cert. denied, 127 S. Ct. 494

(2006).

“Courts exercise this restraint because, as Justice Frankfurter explained,
‘[b]earing the discomfiture and cost of a prosecution for crime even by an innocent
person is one of the painful obligations of citizenship.” In re Sealed Case, 829 F.2d

50, 62 n.60 (D.C. Cir. 1987) (quoting Cobbledick v. United States, 309 U.S. 323, 325

(1940)). The same is true of grand jury investigations. United States v. Dionisio, 410
U.S. 1, 10 (1973) (quoting Blair v. United States, 250 U.S. 273, 281 (1919)).
Individuals may decline to testify before the grand jury pursuant to certain

constitutional safeguards, but “witnesses are not entitled to take exception to the

-28-


with this reading. Plaintiffs contend (Br. 17) that the subsection “require[s] a referral
from the FEC before the Attorney General [can] initiate criminal proceedings.” But
that is not what the statute says. To the contrary, the statute provides only that, if the
Commission votes to find probable cause of certain knowing and willful violations
of the Act, “it may refer such apparent violation[s] to the Attorney General.”

As the district court properly concluded, nothing in the referral provision
“addresses, much less restricts, the authority of the Attorney General (or a grand jury)
to investigate activities that might constitute criminal violations of the Act.” (R.33
Opinion and Order, pg. 10, Apx. pg. 29.) The subsection by its terms addresses the
Commission’s authority. A referral to the Attorney General bears the imprimatur of
the Commission, and requires regular reports from the Attorney General on any action
taken regarding the matter. See 2 U.S.C. § 437g(c). The Act’s provisions ensure that
such a step is not undertaken by the Commission lightly. The statute contains no
language, however, to suggest that the Attorney General may not act on the basis of
other information or referrals, and plaintiffs offer no reason why the statute’s silence
should be read to express such a limitation. As the district court held, “there is no
* * * language in the Act which could constitute a prohibition or restriction on the
authority of the Attorney General to investigate or charge a criminal violation of

federal election law,” let alone a clear and unambiguous instruction to that effect.

-14-


not limitations upon the statutory power of the Attorney General to initiate
prosecution on behalf of the United States.” Id. at 1163.

The court found additional support for its interpretation in the Act’s extensive
legislative history. 638 F.2d at 1165-68. It further noted that the FEC and the Justice
Department, through their 1977 memorandum of understanding, had
contemporaneously interpreted the Act to permit criminal investigations by the
Attorney General without first exhausting the Commission’s civil remedies. That
interpretation, the court held, was also entitled to “[s]ubstantial deference.” Id. at
1166. The court concluded:

In sum, neither the language nor the legislative history of the Act
provides the kind of “clear and unambiguous expression of legislative

will” necessary to support a holding that Congress sought to alter the

traditionally broad scope of the Attorney General’s prosecutorial

discretion by requiring initial administrative screening of alleged
violations of the Act. On the contrary, the language and legislative
history indicates that while centralizing and strengthening the authority

of the FEC to enforce the Act administratively and by civil proceedings,

Congress intended to leave undisturbed the Justice Department’s

authority to prosecute criminally a narrow range of aggravated offenses.
Id. at 1168.

Plaintiffs attempt to escape the force of the Ninth Circuit’s decision in
International Union by contending that it “has now been superceded by subsequent

amendment to the Act in 1980.” Br. 18. In particular, plaintiffs point to the Act’s

requirement that the Commission refer violations to the Attorney General only “by

-20-


intended to interfere in any way with the activities of the Attorney General or
Department of Justice personnel in performing their duties under the laws of the

United States.” Id. at 94, reprinted in 1974 Legislative History at 1038.

Congressional statements reinforce this understanding. Senator Cannon, one
of the key supporters of the Act, explained when introducing the Conference Bill that
“the Department of Justice would not be deprived of any of its power to initiate civil
or criminal actions in response to referrals by the commission or complaints from
other sources.” 93 Cong. Rec. $18525 (daily ed. Oct. 8, 1974) (statement of Sen.

Cannon), reprinted in 1974 Legislative History at 1079. Similar sentiments were

echoed by the Act’s supporters in the House. See, e.g., 93 Cong. Rec. H10327 (daily
ed. Oct. 10, 1974) (statement of Rep. Hays) (“We allow [the Commission] to go to
court independently on civil matters * * * but all criminal matters must still be

handled by the Justice Department.”), reprinted in 1974 Legislative History at 1105;

93 Cong. Rec. H10331 (daily ed. Oct. 10, 1974) (statement of Rep. Frenzel)
(“Criminal enforcement remains with the Justice Department, but the Attorney
General is held accountable to the Commission for reporting on the disposition of
violations referred to him.”), reprinted in 1974 Legislative History at 1109. The
Conference language was enacted into law without alteration. Pub. L. No. 93-433,

§ 208, sec. 310(b), 88 Stat. 1263, 1281 (Oct. 15, 1974), reprinted in 1974 Legislative

History at 1153.
-16-


jurisdiction of the grand jury or the court over the particular subject-matter that is
under investigation.” Blair, 250 U.S. at 282; see United States v. Calandra, 414 U.S.
338, 345 (1974)?

These equitable limits are further reinforced by the Executive’s “exclusive
authority and absolute discretion to decide whether to prosecute a case.” Nixon, 418
US. at 693. “Tt follows, as an incident of the constitutional separation of powers, that
the courts are not to interfere with the free exercise of the discretionary powers of the
attorneys of the United States in their control over criminal prosecutions.” United
States v. Cox, 342 F.2d 167, 171 & n.8 (Sth Cir. 1965) (en banc) (citing cases). See
also Stolt-Nielsen, 442 F.3d at 187.

The impropriety of allowing a collateral civil challenge to criminal proceedings
is further underscored by the contrast between the broad rules of civil discovery and
grand jury secrecy. The practical implications of that difference are manifest in this
case. Plaintiffs sought civil discovery into a variety of criminal documents including
subpoenas, search warrants, and similar items regarding a broad range of individuals.
(R.12 Plaintiffs’ Motion To Conduct Limited Discovery, pg. 2, Apx. pg. 57.)

Allowing potential defendants access to such documents, simply by dint of having

5The obligation to cooperate in a grand jury investigation “is no different for a
person who may himself be the subject of the grand jury inquiry.” Dionisio, 410 U.S.
at 10 n.8.

-29-


criminal investigations and prosecutions is vested exclusively in the Attorney General
absent an express contrary command from Congress. Nothing in the Federal Election
Campaign Act disturbs that traditional allocation of power. The Act’s grant of
exclusive civil jurisdiction to the Federal Election Commission is just that--a grant
of civil jurisdiction. The statute says nothing about the Attorney General’s criminal
enforcement under the Act, and plaintiffs’ attempts to draw contrary inferences from
statutory limits on the Federal Election Commission are without merit. That
conclusion is further buttressed by the legislative history of the Act, and by the Ninth

Circuit’s decision in United States v. International Union of Operating Engineers,

638 F.2d 1161 (9th Cir. 1979), which rejected precisely the claims plaintiffs raise
here.

Plaintiffs’ claim against the Attorney General also fails because individuals
may not obtain declaratory relief from criminal investigation or prosecution through
civil litigation. Longstanding principles of equity jurisprudence prohibit parties from
interfering with federal criminal investigations or indictments through the guise of
a civil lawsuit. That rule is founded both on separation-of-powers principles and on
the traditional precept that equitable relief will not lie when an adequate alternative
remedy is available. Geoffrey Fieger has been indicted and is currently facing trial.
He was entitled to challenge the validity of his indictment on the basis of the Federal

Election Campaign Act in his criminal proceedings, but elected not to do so. He

-ll-


Election Commission had not fulfilled its statutory duty to investigate plaintiffs, and
sought declaratory and mandamus relief on that basis. (R.| Application for Writ of
Mandamus and Complaint, pgs. 6-7, Apx. pgs. 11-12.)

The district court dismissed plaintiffs’ suit in August 2007, holding that the
Federal Election Campaign Act placed no restrictions upon the investigative or
prosecutorial authority of the Attorney General and rejecting plaintiffs’ request for
relief against the Federal Election Commission. (R.33, Opinion and Order, pgs. 6-19,
Apx. pgs. 25-38.) Plaintiffs appealed.

STATEMENT OF THE FACTS
AL Statutory Background

1. The Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-
455, imposes a variety of requirements on campaign expenditures and contributions
in the federal election process. Among other provisions, the Act places dollar limits
on individual campaign contributions, 2 U.S.C. § 441a, prohibits certain corporate
contributions, 2 U.S.C. § 441b, and forbids contributions made in the name of
another, 2 U.S.C. § 441f. Violations of the Act carry both civil and criminal
penalties. 2 U.S.C. § 437g(a)(6), (d)(1).

The Act establishes a Federal Election Commission (“FEC”) with six voting
members, no more than three of whom may be affiliated with the same political party.

2 U.S.C. § 437c(a)(1). The Commission possesses “exclusive jurisdiction with

-3-


the Commission for reporting on the disposition of violations referred to him.”),
reprinted in 1974 Legislative History at 1109.

Plaintiffs assert, without support, that “[s]ince 1974, virtually all campaign
finance cases have been resolved by the FEC”; that “[i]n the history of the United
States, no case resembling the facts here has ever been criminally charged or tried to
a verdict before a jury”; and that “the FEC has resolved, civilly, about 99.9% of
campaign finance disputes without the interference or intervention of the Attorney
General.” Br. 5 n.1, 25-26. See also Br. 44. Even if those claims were not squarely
contradicted by the prosecutions cited by the Commission, FEC Br. 9-10, they would
have no bearing on the question before this Court. The position of the Justice
Department and the Commission, as memorialized in the agencies’ thirty-year-old
memorandum of understanding, is that the Attorney General possesses independent
authority to investigate potential criminal violations of the campaign finance laws.
That conclusion is compelled by the statute’s text and legislative history. The
Attorney General’s criminal enforcement power is not altered by plaintiffs’ bare
assertion that he has not prosecuted enough cases.

Finally, plaintiffs claim that the Attorney General is foreclosed from
conducting a grand jury investigation by the doctrine of primary jurisdiction. Br. 31-
34. But that doctrine applies only “in cases where protection of the integrity of a

regulatory scheme dictates preliminary resort to the agency which administers the

-26-


rely upon them. See 2 U.S.C. § 437f(c). Such opinions are therefore of no import to
previously completed conduct that might be the subject of a criminal investigation.
In any event, the Commission’s advisory opinions and rules are not “rendered
meaningless” (Br. 21) by a criminal investigation or prosecution: to the contrary, the
interpretations of the Commission are entitled to as great weight in criminal

prosecutions as in civil enforcement suits. In re Sealed Case, 223 F.3d 775, 779 (D.C.

Cir. 2000).

The Commission’s ability to enter into conciliation agreements is likewise
consistent with the Attorney General’s criminal authority. The Commission need not
pursue the conciliation process at all in cases where it refers potential violations to
the Attorney General. 2 U.S.C. § 437g(a)(5)(C). Moreover, nothing prevents the
Commission from entering into such agreements during the pendency of a criminal
prosecution. Conciliation agreements have force both as evidence to establish lack
of knowledge or intent at trial, and as mitigating evidence at sentencing. 2 U.S.C.
§ 437g(d)(2)-(3). Rather than suggest a conflict between the Attorney General and
the Commission, conciliation agreements--like advisory opinions--help to ensure
consistency between the two agencies. These powers are a substantial reason why
plaintiffs’ specter of “inevitable conflicts” (Br. 21) between the Attorney General and
the Commission has not materialized despite the concurrent exercise of their

responsibilities over the past three decades.

-23-


STATEMENT REGARDING ORAL ARGUMENT
Counsel for the United States Attorney General stands ready to present oral
argument to the extent that the Court believes argument would aid in its consideration

of this appeal.


93 Cong. Rec. H10327 (daily ed. Oct. 10, 1974) wo eeecseseseterersessseeteeetereereees
93 Cong. Rec. H10331 (daily ed. Oct. 10, 1974) ...
93 Cong. Rec. $18525 (daily ed. Oct. 8, 1974) .....
94 Cong. Rec. $3860-61 (daily ed. Mar. 22, 1976)
94 Cong. Rec. $6479 (daily ed., May 4, 1976) ..
122 Cong. Rec. $12471 (1976)

Miscellaneous:

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments of 1974 ...

. 15-16, 21, 25-26

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments of 1976 ...

17, 18, 21

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments Of 1979 oe cecsecssecsetsseeseseeseeetseeneeeeereeees 21, 22

Public Integrity Section, U.S. Dep’t of Justice, Federal Prosecution
of Election Offenses 205 (7th ed. Aug. 2007) ooo. eeiceesseesreneseseeeseereneeessenes 6


cannot now seek to halt those proceedings through a collateral civil challenge.
“Prospective defendants cannot, by bringing ancillary equitable proceedings,
circumvent federal criminal procedure.” Deaver v. Seymour, 822 F.2d 66, 71 (D.C.
Cir. 1987). That is precisely the effect of plaintiffs’ suit, and the district court’s
dismissal of plaintiffs’ claim against the Attorney General is equally justified on this
alternative ground.

STANDARD OF REVIEW

This Court reviews a dismissal for failure to state a claim de novo, Robert N.

Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir. 2007). The

Court may affirm on any ground supported by the record. Id.; see Hutcherson v.
Lauderdale County, 326 F.3d 747, 756 (6th Cir. 2003).
ARGUMENT
lL THE FEDERAL ELECTION CAMPAIGN ACT DOES
- NOT ALTER THE ATTORNEY GENERAL’S
TRADITIONAL AUTHORITY OVER CRIMINAL
INVESTIGATIONS.
1. “Congress has vested in the Attorney General the power to conduct the
criminal litigation of the United States Government.” United States v. Nixon, 418
US. 683, 694 (1974) (citing 28 U.S.C. § 516). Accordingly, “criminal prosecution

is ‘an executive function within the exclusive prerogative of the Attorney General.”

United States v. Palumbo Bros., Inc., 145 F.3d 850, 865 (7th Cir. 1998) (quoting

-42-


Mandamus and Complaint, pgs. 6-7, Apx. pgs. 11-12.) Plaintiffs invoked the district
court’s jurisdiction under 28 U.S.C. §§ 1331 & 1361. (R.1 Application for Writ of
Mandamus and Complaint, pg. 2, Apx. pg. 7.)

The district court entered final judgment dismissing plaintiffs’ suit on August
15, 2007. (R.34 Judgment, pg. 1, Apx. pg. 39.) Plaintiffs filed a timely notice of
appeal on October 10. (R.35 Notice of Appeal, pgs. 1-2, Apx. pgs. 40-41.) This
Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court properly held that the Federal Election Campaign
Act does not divest the Attorney General of his traditional authority over criminal
investigations and prosecutions.

2. Whether, in any event, declaratory relief is precluded in a civil lawsuit that
seeks to collaterally challenge a grand jury investigation and indictment.

STATEMENT OF THE CASE

Plaintiffs brought suit against the United States Attorney General and the
Chairman of the Federal Election Commission, complaining of an alleged grand jury
investigation into plaintiffs’ violation of federal campaign finance laws. Plaintiffs
claimed that the grand jury’s investigation was unlawful under the Federal Election
Campaign Act, and sought declaratory relief. (R.1 Application for Writ of Mandamus

and Complaint, pgs. 2, 4-7, Apx. pgs. 7, 9-12.) Plaintiffs also alleged that the Federal

-2-


Plaintiffs’ sole response to this history is an isolated floor statement by a
staunch opponent of the Federal Election Campaign Act, Senator Brock. See Br. 17-
18, 26 (quoting 122 Cong. Rec. $12471 (1976)); 94 Cong. Rec. $6479 (daily ed.,
May 4, 1976) (statement of Sen. Brock) (labeling the Act “a deceit, a sham, and a

fraud on the American public”), reprinted in 1976 Legislative History at 1109. As the

district court properly recognized, a single paragraph from an opponent of the Act is
entitled to little weight in determining Congressional intent. (R.33 Opinion and

Order, pgs. 11-12, Apx. pgs. 30-31.) See Bryan v. United States, 524 U.S. 184, 196

(1998) (“[T]he fears and doubts of the opposition are no authoritative guide to the ©
construction of legislation. In their zeal to defeat a bill, they understandably tend to
overstate its reach.” (quotation marks and citations omitted)). Plaintiffs’ suggestion
that the definitive statement of Congress’ intent lies not in the language of its statute,
its Conference Reports, or the statements of legislative sponsors, but rather in the lone
views of a dissenting Senator, stretches an argument for “clear and unambiguous
intent” well beyond its breaking point.

3. The Ninth Circuit has also rejected precisely the argument that plaintiffs

now press before this Court. In United States v. International Union of Operating

Engineers, 638 F.2d 1161 (9th Cir. 1979), appellees had sought dismissal of their
indictments for violations of the Federal Election Campaign Act, claiming that the

Attorney General was required “to exhaust the administrative remedy before the

-18-




is about to occur, it may refer the violation to the Attorney General without regard to
the Act’s conciliation provisions. 2 U.S.C. § 437g(a)(5)(C). In such cases, the
Attorney General “shall report to the Commission any action taken by the Attorney
General regarding the apparent violation” at regular intervals until the matter is
concluded. 2 U.S.C. § 437g(c). If a criminal defendant has entered into a
conciliation agreement with the Commission that remains in effect, he may introduce
the agreement to establish lack of knowledge or intent at trial, as well as to mitigate
his penalty at sentencing. 2 U.S.C. § 437g(d)(2)-(3).

2. Since 1977, shortly after the Federal Election Campaign Act was amended
to grant exclusive civil jurisdiction over violations of the Act to the FEC, the division
of authority between the Commission and the Department of Justice has been
governed by a memorandum of understanding between the two agencies. The
memorandum, which was originally published in the Federal Register shortly after its
adoption, see 43 Fed. Reg. 5441 (Feb. 8, 1978), sets forth the roles of each agency in
enforcing the civil and criminal provisions of the Act. The memorandum “recognizes
the Federal Election Commission’s exclusive jurisdiction in civil matters” under the
Act, and describes the circumstances in which the Commission will refer willful and
knowing violations to the Department of Justice. 1d. The memorandum further

provides:


respect to the civil enforcement” of the Act’s provisions, 2 U.S.C. § 437c(b)(1), as
well as the authority to issue subpoenas, administer oaths, render advisory opinions
regarding compliance with the Act, and litigate civil actions through its general
counsel, 2 U.S.C. § 437d(a). The Act provides that, as a general matter, “the power
of the Commission to initiate civil actions * * * shall be the exclusive civil remedy
for the enforcement of the provisions of this Act.” 2 U.S.C. § 437d(e).

In cases where the Commission, by an affirmative vote of at least four
members, finds reason to believe that a person has violated or is about to violate the
Act, the Commission must notify that person of the factual basis for the alleged
violation and make an investigation. 2 U.S.C. § 437g(a)(2). If the Commission
subsequently finds probable cause of such violation by an affirmative vote of at least
four members, it must typically “attempt, for a period of at least 30 days, to correct
or prevent such violation by informal methods of conference, conciliation, and
persuasion, and to enter into a conciliation agreement with any person involved.”
2 US.C. § 437g(a)(4)(A)(i). The Commission may enter into a conciliation
agreement only by an affirmative vote of at least four members, and any such
agreement, if abided by, provides “a complete bar to any further action by the
Commission, including the bringing of a civil proceeding.” Id.

If the Commission determines, by an affirmative vote of at least four members,

that a knowing and willful violation of the Act’s criminal provisions has occurred or

-4-


2 U.S.C. § 437d. Compare United States v. LaSalle Nat’! Bank, 437 U.S. 298, 312

(1978) (citing statutory limits on Internal Revenue Service fraud investigations after
referral to the Justice Department). Absent Congress’ clear intent to the contrary,
criminal authority remains “reserved to the Department of Justice,” with “the grand
jury as a principal tool of criminal accusation.” Id.

Equally misguided is plaintiffs’ allegation (Br. 19-20, 23-24) that the referral
and reporting provisions of the Act are rendered meaningless if the Attorney General
can independently conduct investigations. As Congress made clear when it initially
enacted those provisions in 1974,” the requirements do not prevent the Attorney
General from investigating violations independently. See supra pages 15-17.
Although the Attorney General retains the discretion whether to prosecute particular
cases, it was Congress’ hope that the reporting requirements and gravity of the
Commission’s referrals would bring additional violations to the Justice Department’s
attention--not prevent it from pursuing cases on its own. See, e.g., 93 Cong. Rec.

H1033 1 (daily ed. Oct. 10, 1974) (statement of Rep. Frenzel) (“Criminal enforcement

remains with the Justice Department, but the Attorney General is held accountable to

Plaintiffs’ characterization of the reporting requirement as a “new provision,”
Br. 20, is incorrect. The requirement has existed since the Commission’s creation.
Pub. L. No. 93-443, § 208, sec. 314(b), 88 Stat. at 1285, reprinted in 1974 Legislative
History at 1157.

-25-


Plaintiffs assert that independent prosecutions by the Attorney General would
jeopardize the Commission’s investigations due to witnesses invoking their Fifth
Amendment rights. Br. 27-30. That argument misunderstands the contours of the
Fifth Amendment, which does not turn on whether an individual is the subject of a
criminal investigation, but rather “privileges him not to answer official questions put
to him in any * * * proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley,
414 US. 70, 77 (1973). Because the Fifth Amendment’s privilege turns on the
potential for incrimination, and not on whether an individual is subject to
investigation, witnesses in Commission proceedings would have the same Fifth
Amendment privilege whether or not the Attorney General could independently
pursue investigation or prosecution at the same time.

Indeed, as the district court recognized, “[t]he civil and regulatory laws of the
United States frequently overlap with the criminal laws * * * thereby creating the
possibility of parallel civil and criminal proceedings, either successive or
simultaneous.” (R.33 Opinion and Order, pg. 14, Apx. pg. 33.) The Commission’s
civil powers are no different from those of myriad other agencies that may act
concurrently with a criminal investigation or prosecution by the Attorney General.
The FEC retains its broad powers to investigate and remedy civil infractions, without

regard to whether criminal proceedings are pending at the same time. See

-24-


IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 07-2291

GEOFFREY FIEGER, et al.,
Plaintiffs-Appellants,

Vv.

UNITED STATES ATTORNEY GENERAL, et al.,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

FINAL BRIEF OF THE UNITED STATES ATTORNEY GENERAL

STATEMENT OF JURISDICTION
Plainti ffs brought suit in district court seeking declaratory relief pursuant to
28 U.S.C. §§ 2201 & 2202, alleging that a grand jury investigation of their activities
violated the Federal Election Campaign Act, 2 U.S.C. § 437g. (R.1 Application for
Writ of Mandamus and Complaint, pgs. 2, 4-7, Apx. pgs. 7, 9-12.) Plaintiffs also
sought declaratory and mandamus relief against the Federal Election Commission for

its alleged failure to investigate plaintiffs’ conduct. (R.1 Application for Writ of


(R.33 Opinion and Order, pg. 10, Apx. pg. 29.) Plaintiffs’ claim against the Attorney
General accordingly fails.

2. The legislative history of the Federal Election Campaign Act further
underscores that its provisions have no bearing on the Attorney General’s criminal
authority. When Congress created the Federal Election Commission in 1974, it
considered and rejected language that would have conditioned the prosecutorial acts
of the Attorney General on the Commission’s approval. The original Senate bill
provided that “[nJotwithstanding any other provision of law, the Commission shall
be the primary civil and criminal enforcement agency for violations of the provisions
of this Act * * * . Any violation of any such provision shall be prosecuted by the
Attorney General or Department of Justice personnel only after consultation with, and
with the consent of, the Commission.” S. 3044, 93d Cong., § 207, sec. 309(d), at 49

(2d Sess. 1974), reprinted in Fed. Election Comm’n, Legislative History of Federal

Election Campaign Act Amendments of 1974, at 51 (1977) [hereinafter 1974

Legislative History]. Congress discarded that provision in conference, replacing it
with the House’s language that afforded the Commission only “primary jurisdiction
with respect to the civil enforcement of such provisions.” H.R. Rep. No. 93-1438, at
22 (2d Sess. 1974) (Conf. Rep.), reprinted in 1974 Legislative History at 966. In so
doing, the Conference Report explicitly disclaimed the Senate’s proposal: “The

primary jurisdiction of the Commission to enforce the provisions of the Act is not

-15-


CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I
hereby certify that this brief complies with the type-volume limitation in Rule
32(a)(7)(B). The foregoing brief contains 7150 words from its Statement of
Jurisdiction to its Conclusion, and is presented in proportionally spaced 14-point
Times New Roman typeface. The brief was prepared using WordPerfect 12 for

Windows XP.

6 fhe

Eric Fleisig-Greene


CERTIFICATE OF SERVICE
I hereby certify that on March 3, 2008, I filed and served the foregoing Brief
by causing an original and six copies to be sent to the Court by Federal Express
overnight, and two copies to be sent by Federal Express to:

Michael R. Dezsi

Fieger, Fieger, Kenney & Johnson
19390 W. Ten Mile Rd.
Southfield, MI 48075
248-355-5555

Greg J. Mueller

Federal Election Commission
999 E Street, N. W.
Washington, DC 20463
202-694-1650

Eric Fleisig-Greene


an affirmative vote of 4 of its members.” Br. 19 (quoting 2 U.S.C. § 437g(a)(5)(C));
see Br. 22-24 (same).

That claim is without merit. The provision to which plaintiffs cite is not
substantively different from any other version of the Act since the Commission’s
formation. As far back as 1974, when the Commission was first created as a six-
member body, it was required that “[a]ll decisions of the Commission with respect to
its duties and powers under the provisions of this title shall be made by a majority
vote of the members of the Commission.” Pub. L. No. 93-433, § 208, sec. 310(c), 88

Stat. at 1282, reprinted in 1974 Legislative History at 1154. As Congress recognized,

this amounted to “the requirement of four votes for affirmative action” well before
the 1979 amendments cited by plaintiffs. H.R. Rep. No. 94-917, at 4, reprinted in

1976 Legislative History at 804. Consistent with that understanding, Congress

described the 1979 language as merely “incorporat[ing] the language * * * of the
current Act regarding referral of knowing and willful violations to the Attorney

General.” H.R. Rep. No. 96-422, at 22 (1979), reprinted in Fed. Election Comm’n,

Legislative History of Federal Election Campaign Act Amendments of 1979, at 206
(1983) [hereinafter 1979 Legislative History].

Plaintiffs’ assertion that the amendment was enacted “to eliminate any
confusion that might have been caused by the erroneous 1979 Ninth Circuit opinion”

(Br. 22) is incorrect. Plaintiffs cite no legislative history to support that claim. It is

-21-


United States v. Calandra, 414 U.S. 338 (1974) wecceecseseceeeneeeeeeeereseeeeseneseneres 29

United States v. Cox, 342 F.2d 167 (Sth Cir, 1965) ...eeececsesessesnenseeteseeeeeee 13, 29
United States v. Dionisio, 410 U.S. 1 (1973) w.ccceccccseeeseeseteeeteneseseneneeeeees 28, 29
United States v. Feiger, Crim. No. 07-20414 (E.D. Mich.). occ 10, 30, 31
United States v. Gen. Dynamics Corp., 828 F.2d 1356 (9th Cir. 1987) ........ 13,27
United States v. Int’] Union of Operating Eng’rs,

638 F.2d 1161 (9th Cir, 1979) woe eeteceerereeseereeseneeeeenee 8, 11, 18-20, 30
United States v. LaSalle Nat’] Bank, 437 U.S. 298 (1978) ..seceesseceseeeeeeeteees 25
United States v. Morgan, 222 U.S. 274 (1911) wees senerteteeeeeteeeeeee 8, 13, 19
United States v. Nixon, 418 U.S. 683 (1974) oo cccceseseceesseseteeeeseteesteneseees 12, 29
United States v. Palumbo Bros., 145 F.3d 850 (7th Cir. 1998) .ceeeceesseeeeees 12
United States v. Phila. Nat’] Bank, 374 U.S. 321 (1963) oo. eeeeeeeeieee 26-27
United States v. Ryan, 402 U.S. 530 (1971) wcececeecsseceneresseseseseeecssseeertseenenee 30

Statutes:

2 U.S.C. §§ 431-455 ....
2US.C. § 437¢(ay(1) ...
2 US.C. § 437¢(b)(1)
2US.C. § 4374 ....
2 U.S.C. § 437d(a) ...
2US.C. § 437d(e) ...
2US.C. § 437f(c)
2 U.S.C. § 437¢ ....
2 US.C. § 4372(a)(2) ...
2 U.S.C. § 4379(a)(4)(A)(i)
2US.C. § 4372(a)(5)(C)

22
1,7, 19, 31
4
4
_ 5,13, 20-21, 23

-lii-


“a ‘clear and unambiguous’ directive from Congress.” (R.33 Opinion and Order, pg.
9, Apx. pg. 28 (quoting United States v. Morgan, 222 U.S. 274, 282 (1911)).) The
court found no clear and unambiguous intent in the Federal Election Campaign Act
to so restrict the Attorney General’s authority. To the contrary, the court noted that
the statutory provision granting the FEC exclusive jurisdiction “applies only to civil
enforcement of the Act.” (R.33 Opinion and Order, pg. 9, Apx. pg. 28 (citing 2
U.S.C. § 437¢(b)(1)).) The FEC’s civil enforcement was governed by a detailed set
of administrative procedures and requirements, but “none of those requirements
mentions the Attorney General, let alone the timing of when the Attorney General
may engage in criminal enforcement actions.” (R.33 Opinion and Order, pg. 10 n.2,
Apx. pg. 29 n.2.) And although the Act granted the FEC authority to refer knowing
and willful violations to the Attorney General, “nothing in that (or any other)
provision of the Act addresses, much less restricts, the authority of the Attorney
General (or a grand jury) to investigate activities that might constitute criminal
violations of the Act.” (R.33 Opinion and Order, pg. 10, Apx. pg. 29.)

This conclusion, the court held, was reinforced by the legislative history of the

statute, as well as the Ninth Circuit’s decision in United States v. International Union

of Operating Engineers, 638 F.2d 1161 (9th Cir. 1979), which had interpreted the Act
in an identical manner. (R.33 Opinion and Order, pgs. 11-14, Apx. pgs. 30-33.)

Subsequent amendments to the Act, which plaintiffs claimed had repudiated the Ninth

-8-


Il. Related Proceedings

At nearly the same time that plaintiffs brought this suit against the FEC
Chairman and the Attorney General, three other sets of plaintiffs affiliated with (and
represented by) Fieger’s law firm filed actions in the district courts of Colorado,
Illinois, and Arizona, raising claims virtually identical to those presented here. The
Colorado suit was dismissed on grounds closely resembling those adopted by the
district court in this case, and is now on appeal to the Tenth Circuit. Bialek v.
Gonzales, Civ. No. 07-00321, 2007 WL 1879989, at *2-5 (D. Colo. June 28, 2007),
appeal docketed, No. 07-1284 (10th Cir. July 13, 2007). Motions to dismiss are

currently pending in the remaining suits. Beam v. Gonzales, Civ. No. 07-1227 (N.D.

IIL, suit filed Mar. 2, 2007); Marcus v. Gonzales, Civ. No. 07-398 (D. Ariz., suit filed
Feb. 21, 2007).
In August 2007, a federal grand jury in the Eastern District of Michigan handed

down a ten-count indictment against Fieger for violations of the Federal Election

Campaign Act and related offenses. That prosecution is currently pending. United
States v. Fieger, Crim. No. 07-20414 (E.D. Mich., indictment unsealed Aug. 24,
2007).
SUMMARY OF THE ARGUMENT
The district court properly dismissed plaintiffs’ challenge to the Attorney

General’s grand jury investigation. As plaintiffs acknowledge, authority over federal

-10-


TABLE OF AUTHORITIES

Page

Cases:
Beam v. Gonzales, Civ. No. 07-1227 (N.D. QL.) ceeeccseeesesseteseceeretenestereetsneaeanenes 10
Bialek v. Gonzales, Civ. No. 07-00321 (D. Colo.) ....cesseeteseereseteteseeeseeeeneeeee 10
Blair v. United States, 250 U.S. 273 (1919) cccceecseeceesetereesseeeseteseeeeeseneneeeee 28-29

Bryan v. United States, 524 U.S. 184 (1998) ......

Cobbledick v. United States, 309 U.S. 323 (1940) oo. eeeeceseeeeesesseeneeeeeeenenees 28
Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) weitere 12, 28, 30-31
Galliano v. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) w..ceeeeeeseeneeeees 22
Hutcherson v. Lauderdale County, 326 F.3d 747 (6th Cir. 2003) oe 12, 31
In re Persico, 522 F.2d 41 (2d Cir. 1975) w..eescesceseseseeseneeersseeesenevereesteeseereneesieeee 13
In re Sawyer, 124 U.S. 200 (1888) oo... eeesesseseevereseeseessereveneetenenceseueeteee 28
In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) oo... eeseeseseeseesereeeseaseeereeneees 23
In re Sealed Case, 829 F.2d 50 (D.C. Cir, 1987) ....csscseeseesssseseeeeresseerenteneens 28, 30
Lefkowitz v. Turley, 414 U.S. 70 (1973) ..csessessessssseceesssecseeesnssesreenessssesnesneensens 24
Marcus v. Gonzales, Civ. No. 07-398 (D. ATiz.) c.eccescesesesscessceseseseseeeseseceeeeeeeeeee 10
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) oo... ecneeeeees 9
Robert N. Clemens Trust v. Morgan Stanley DW, Inc.,

485 F.3d 840 (6th Cir. 2007) oo. ieecscseesesseseeteeeeseeteasaeeesesseererescasseeneess 12,31
Stolt-Nielsen v. United States, 442 F.3d 177 (3d Cir. 2006) 00... ccs 28, 29

-ii-


ancillary equitable proceedings, circumvent federal criminal procedure.” Deayer, 822

F.2dat 71. Plaintiffs’ suit seeks precisely that result, and the district court’s dismissal

should be affirmed on this ground as well. See Clemens Trust, 485 F.3d at 845

(affirmance permitted on any supported ground); Hutcherson, 326 F.3d at 756 (same).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

MARCH 2008

5(...,continued)

Respectfully submitted,

JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General

ALAN GERSHEL
Acting United States Attorney

MICHAEL S. RAAB
(202) 514-4053
ERIC FLEISIG-GREENEG ff)
(202) 514-4815
Attorneys, Appellate Staff
Civil Division, Room 7214
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC_20530-0001

on the basis of 2 U.S.C. § 437g, and is currently pending before the district court.
Dkt. #21, United States v. Fieger, Crim. No. 07-20414 (E.D. Mich.).

-31-


Federal Election Commission (FEC), available under section 437g of the Act, before
seeking an indictment.” Id. at 1162. Like the district court in this case, the Ninth
Circuit began its analysis from the proposition that any infringement on the Attorney
General’s prosecutorial authority “‘would require a clear and unambiguous
expression of the legislative will.’” Id. (quoting Morgan, 222 U.S. at 282). After
assessing the civil enforcement scheme provided by the Act, the Court determined
that “[n]othing in these provisions suggests, much less clearly and [un]Jambiguously
states, that action by the Department of Justice to prosecute a violation of the Act is
conditioned upon prior consideration of the alleged violation by the FEC. Indeed, it
would strain the language to imply such a condition.” Id. at 1163.

In particular, the Ninth Circuit explained, “[t]he fact that the FEC may refer
certain complaints to the Department of Justice for prosecution, after administrative
processing, does not in itself imply that administrative processing and referral are
prerequisite to the initiation of litigation by the Attorney General.” 638 F.2d at 1163
(citation omitted). The court likewise held that the statute’s procedural requirements
for enforcement actions and conciliation agreements did not confine the Attorney
General’s prosecutorial discretion, but rather established limits on the Commission’s
ability to investigate and pursue remedies for civil infractions. Id. at 1164. In short,

those provisions “detail duties of the FEC and rights of persons complained against,

-19-


TABLE OF CONTENTS

Page
STATEMENT OF JURISDICTION 00... eceeceeeeeeeeseeeeeeeeees ceunitntetenieneesee 1
STATEMENT OF THE ISSUES ou... cescsssessessessessessecssssesscnceacsneseeesseessseavenseeseaeansens 2
STATEMENT OF THE CASE .....ccccscessessessesseesesssesnesecseesesscseesesnsassnsencseessaneasesnesuees 2
STATEMENT OF THE FACTS uoceseececsessssesssessesessessessssesneeeesasesrsanensaseeseeseeneerenees 3
I. Statutory Background ........cceseseseseeeeseseeressceeseescserseaceetacaeeereceeaerees 3
II. Factual Background and Prior Proceedings ............:ssssssseeeeeeeeeee a 6
TH. Related Proceedings .........ccessseecesesssececeseneseecseessceeeeeseneeessaseceearaeee 10
SUMMARY OF THE ARGUMENT ue. eceseeeerenees seetecsnseeensnisecesnesecssansecennnneaes 10
STANDARD OF REVIEW wu.cecccccscccsecesseseeeseeceeesessencesseeseeeereseeessercaversueneneeaseeenes 12
ARGUMENT ou. ccscesesceessesesenevecsseesenenscsessscesensanacsesceeneeeaeeecaeseeeneeesseseerseacareneaeees 12
I. THE FEDERAL ELECTION CAMPAIGN ACT DOES NOT
ALTER THE ATTORNEY GENERAL’S TRADITIONAL
AUTHORITY OVER CRIMINAL INVESTIGATIONS. ........000 12
Il. PLAINTIFFS ARE NOT ENTITLED TO OBTAIN
RELIEF FROM CRIMINAL INVESTIGATION OR
PROSECUTION THROUGH A CIVIL LAWSUIT. oc eee 27
CONCLUSION oo. ecceccesseseeessesscsseencencsseseesvessanssseasestesseassucaneseaseanseeereseeassecansensane 31

CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

DESIGNATION OF JOINT APPENDIX CONTENTS


scheme.” United States v. Phila. Nat’] Bank, 374 U.S. 321, 353 (1963). Plaintiffs’

argument for primary jurisdiction amounts to no more than a repetition of their other
attempts to create a “clear and unambiguous” restriction on the Attorney General’s

authority. See Gen. Dynamics Corp., 828 F.2d at 1366 & n.18 (“For all practical

purposes, there is no difference between requiring exhaustion of and requiring
deferral to an administrative remedy. In either case there can be no litigation before
the agency has acted.”). For the reasons discussed above, those attempts are without
merit, and the district court’s judgment should accordingly be affirmed.

Il. PLAINTIFFS ARE NOT ENTITLED TO OBTAIN

RELIEF FROM CRIMINAL INVESTIGATION OR
PROSECUTION THROUGH A CIVIL LAWSUIT.

Even if plaintiffs’ interpretation of the Federal Election Campaign Act had
merit, traditional equitable principles preclude the relief they seek. Geoffrey Fieger
is currently standing trial for violations of the federal campaign finance laws, see
supra page 10, and his fellow plaintiffs allege that they have been the subjects of a
similar grand jury investigation. Plaintiffs’ requested relief--that the court declare
such actions “unlawful”--would effectively enjoin Fieger’s criminal trial, as well as
any future criminal investigation of plaintiffs. That result finds no support in law.

Parties may not seek equitable relief to halt a grand jury investigation, let alone a

pending prosecution, through civil litigation.

-27-


contradicted by the Congressional Reports preceding and accompanying the 1979
amendments. And as the district court recognized, it is further belied by the fact that
the language in question was first reported on September 7, 1979, three weeks before
the Ninth Circuit’s decision in International Union. (R.33, Opinion and Order, pg.
13, Apx. pg. 32 (citing H.R. 5010, 96th Cong. § 108, sec. 309(a)(5)(C), at 130 (1979),

reprinted in 1979 Legislative History at 412).) Well after the 1979 amendments, the

D.C. Circuit cited approvingly to the Ninth Circuit’s holding in International Union,
noting that it was “settled that criminal enforcement of FECA provisions may
originate either with the FEC or the Department of Justice.” Galliano v. U.S. Postal
Serv., 836 F.2d 1362, 1368 n.6 (D.C. Cir. 1988) (citation omitted). That conclusion
holds equally in this case.

4, Plaintiffs’ remaining arguments offer no compelling reason to disregard the
clear language and legislative history of the statute, as well as the settled law of two
other Circuits.

Plaintiffs suggest that the Attorney General’s prosecutorial discretion would
interfere with the Commission’s ability to provide advisory opinions and rules or
enter into conciliation agreements. Br. 20-22. Those contentions rest on
misunderstandings of the Commission’s civil enforcement powers. The
Commission’s advisory opinions bear only on prospective conduct, 11 C.F.R.

§ 112.1(b), and afford immunity from sanction only for individuals who subsequently

-22-


Where information comes to the attention of the Department
indicating a probable violation of Title 2, the Department will apprise
the Commission of such information at the earliest opportunity.

Where the Department determines that evidence of a probable
violation of Title 2 amounts to a significant and substantial knowing and
wilful violation, the Department will continue its investigation to
prosecution when appropriate and necessary to its prosecutorial duties
and functions, and will endeavor to make available to the Commission
evidence developed during the course of its investigation subject to
restricting law. * * * *

Where the Department determines that evidence of a probable
violation of title 2 does not amount to a significant and substantial
knowing and wilful violation * * * the Department will refer the matter

to the Commission as promptly as possible for its consideration of the
wide range of appropriate remedies available to the Commission.

fi. Factual Background and Prior Proceedings

1. In February 2007, Geoffrey Fieger, along with his law firm and the firm’s
office manager, brought suit against the Attorney General and the Chairman of the
Federal Election Commission. (R.33 Opinion and Order, pg. 2, Apx. pg. 21.)

Plaintiffs claimed that they were the target of an ongoing federal grand jury

‘Congress’ expansion of the campaign finance laws in 2002 has prompted the
Department and the FEC to begin negotiations for an updated memorandum of
understanding. See Public Integrity Section, U.S. Dep’t of Justice, Federal
Prosecution of Election Offenses 205 (7th ed. Aug. 2007). These developments do
not address the Attorney General’s underlying authority to investigate and prosecute
criminal violations of the campaign finance laws independent of referral from the
FEC. See id. at 177.

-6-


Circuit’s ruling, had no bearing on the Attorney General’s criminal authority. (R.33
Opinion and Order, pgs. 13-14, Apx. pgs. 32-33.) Finding no compelling suggestion
to the contrary in the statute’s text or history, the court held that any alleged grand
jury investigation of plaintiffs was consistent with the Federal Election Campaign
Act, and dismissed plaintiffs’ claim against the Attorney General.

The court held plaintiffs’ claims against the FEC to be similarly without merit.
By plaintiffs’ own account, the Commission had initiated an investigation into their
conduct. (R.33 Opinion and Order, pgs. 16-17, Apx. pgs. 35-36.) Plaintiffs’
allegation that the investigation was not proceeding with sufficient speed did not
establish that the agency had “‘failed to take a discrete agency action that it is

rr)

required to take,”” as needed to make out a claim under the Administrative Procedure
Act or mandamus. (R.33 Opinion and Order, pg. 15, Apx. pg. 34 (quoting Norton v.

S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)).) To the contrary, the court

noted that “an agency authorized to conduct investigations has broad authority to
control the conduct and timing of its investigation.” (R.33 Opinion and Order, pg. 16,
Apx. pg. 35.) Moreover, the court held that the Federal Election Campaign Act
precluded judicial review over the Commission’s handling of administrative
complaints except in limited circumstances not satisfied by plaintiffs, further
supporting dismissal of the claims against the FEC. (R.33 Opinion and Order, pgs.

17-18, Apx. pgs. 36-37.)