IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

JOHN DOE 1, et al., 

Civ. No. 17-cv-2694 (ABJ) 

 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

REPLY IN SUPPORT OF MOTION TO INTERVENE BY CITIZENS FOR 

RESPONSIBILITY AND ETHICS IN WASHINGTON AND ANNE WEISMANN 

 Citizens for Responsibility and Ethics in Washington and Anne Weismann (collectively 

“CREW”) respectfully submit this reply in support of CREW’s motion to intervene pursuant to 

Federal Rule of Civil Procedure 24(a)(2). The arguments raised by plaintiffs and the Federal 

Election Commission (“FEC”) in opposition to CREW’s motion are premised almost entirely on 

misstatements regarding CREW’s statutory rights as an administrative complainant under the 

Federal Election Campaign Act (“FECA”) and as a requester under the Freedom of Information 

Act (“FOIA”). Pursuant to FECA, CREW filed an administrative complaint with the FEC to 

vindicate CREW’s statutory right to know who made and illegally concealed a $1.71 million 

political contribution. And pursuant to FOIA, CREW has filed a request for the information the 

FEC relied upon in disposing of CREW’s administrative complaint. This lawsuit would 

substantially impair CREW’s rights in both respects. CREW’s motion presents a textbook case 

for intervention, and should accordingly be granted. 

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ARGUMENT

I. CREW’s Motion Is Timely.

Plaintiffs contend that intervention should be denied because “CREW knowingly waited 

nine days to meet and confer with the parties . . . and an additional six days to file.” Pls.’ Mem. 

in Opp. to Mot. to Intervene (“Pls.’ Opp.”) at 3. Plaintiffs’ argument is frivolous. They do not 

cite a single case finding untimely an intervention motion filed fifteen days after the complaint. 

Nor could they. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 734-35 (D.C. Cir. 2003) 

(holding that it was “not difficult at all” to conclude that intervention motion was timely when it 

was filed “less than two months after the plaintiffs filed their complaint and before the 

defendants filed an answer”). In fact, CREW’s motion is all the more timely considering the 

circumstances: Plaintiffs filed their suit under seal, and the case was unsealed only three days 

before the Christmas holiday and before the statutory deadline for CREW to file suit pursuant to 

52 U.S.C. § 30109(a)(8), challenging the FEC’s unlawful failure to make public the sources of 

the illegal $1.71 million contribution. See CREW v. FEC, No. 17-cv-2770 (D.D.C. filed Dec. 22, 

2017); see also Notice of Publ’n, ECF No. 20 (noting publication of redacted administrative file 

on Dec. 22, 2017). In addition, counsel for John Doe 1 hindered the filing of CREW’s motion by 

failing to respond to CREW’s multiple meet and confer requests under LCvR 7(m). Plaintiffs 

cannot plausibly contend, under these circumstances, that the filing was untimely, let alone 

unduly delayed. 

Nor would CREW’s intervention prejudice plaintiffs or the FEC, as plaintiffs contend. 

Pls.’ Opp. at 2. The Court has already ordered plaintiffs’ identities redacted pending resolution 

of this case, so plaintiffs cannot contend they are somehow harmed by any meager delay 

occasioned by CREW’s participation. At most, if the Court grants CREW’s motion, plaintiffs 

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3 

might be required to respond to CREW’s arguments. That hardly constitutes legal prejudice—

rather, every opposing party must do so when intervention is granted. CREW’s intervention will 

not require the Court to “revisit issues that have already been decided.” Roane v. Leonhart, 741 

F.3d 147, 152 (D.C. Cir. 2014) (holding no prejudice to warrant denying intervention where 

intervention would not reopen previously decided issues); see also Crossroads Grassroots 

Political Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015) (authorizing intervention despite the 

parties’ summary judgment briefing having closed ten months earlier). Moreover, the fact that 

this Court has accelerated its consideration of this case does not make CREW’s motion untimely. 

Were plaintiffs correct, there could almost never be intervention as of right in motions for 

temporary restraining orders or preliminary injunctions—even though these are the very 

proceedings in which hurried motion practice heightens the possibility of prejudice to a third 

party’s legal rights. Indeed, plaintiffs’ argument would mean CREW had no opportunity to 

intervene because even if CREW had filed its intervention motion on the very day it learned this 

suit might impair its rights, briefing on CREW’s motion would not close until after plaintiffs 

filed their reply in support of their merits motion. As it stands, the Court granted the FEC the 

opportunity to file a surreply only days ago, meaning there will be no significant delay in 

reaching the merits if the Court grants CREW’s motion and provides CREW an opportunity to 

submit a brief on the merits. And plaintiffs yesterday filed a response to the surreply. ECF No. 

40. 

Contrary to plaintiffs’ contention, CREW easily satisfies the timeliness requirement for 

intervention as of right. 

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II. CREW Has Legally Protected Interests Potentially Impaired by this Case. 

CREW has at least three legally protected interests potentially impaired by this case. See

Fed. R. Civ. P. 24(a)(2). As CREW explained in its motion, federal law grants it a statutory right 

to know the source of the $1.71 million contribution. Moreover, the Court’s decision here will 

affect CREW’s lawsuit challenging the FEC’s decision not to enforce against plaintiffs, and the 

outcome of this case will affect CREW’s FOIA request and any subsequent FOIA litigation. See 

Mot. at 5-10. Thus, CREW clearly has a legal interest potentially affected by this case, and 

plaintiffs’ and the FEC’s contentions to the contrary are misplaced. 

A. FECA Grants CREW a Statutory Right to Know Plaintiffs’ Identities. 

 FECA grants CREW a statutory right to know who financed and illegally concealed the 

$1.71 million contribution. Mot. at 5-6. CREW, therefore, has a legally protected interest in this 

case, where plaintiffs’ sole purpose is to permanently hide their identities as part of that 

concealment scheme. Plaintiffs contend that CREW lacks a legally protected interest because 

(1) plaintiffs say they were not respondents to CREW’s administrative complaint, and (2) the 

question of whether the FEC acted contrary to law in failing to investigate the plaintiffs will not 

be determined in this case. See Pls.’ Opp. at 4-5. Both arguments lack merit. 

 First, CREW’s legal interest in the plaintiffs’ identities does not hinge on whether the 

plaintiffs are named respondents in an FEC administrative action or whether the FEC found 

reason to believe the plaintiffs violated the law. FECA provides CREW the right to know the 

true source of any and all contributions that meet the statutory reporting threshold, 52 U.S.C. 

§ 30104(b)(3)(A), as well as the identity of anyone who acted as a conduit.1

 Thus, the mere fact 

                                                            

1 See Instructions for FEC Form 3X and Related Schedules at 11 (revised May, 2016), 

https://www.fec.gov/resources/cms-content/documents/fecfrm3xi.pdf (any political committee 

receiving an earmarked contribution through conduit entities must “report each conduit through 

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that the plaintiffs made or passed on a reportable contribution—a fact plaintiffs do not deny—

creates CREW’s legally enforceable interest in knowing the identities of the plaintiffs. By 

means of this proceeding, however, plaintiffs seek a judicial order preventing CREW from ever 

learning their identities, not only impairing but indeed eliminating CREW’s legal rights. 

Second, CREW’s administrative complaint, which sought to vindicate CREW’s legal 

right to know the origins of the illegal $1.71 million contribution that American Conservative 

Union provided to Now or Never PAC, designated the “true source” of those funds as an 

“unknown respondent.” Compl. ¶ 12, MUR 6920 (American Conservative Union et al.) (Feb. 

27, 2017), https://www.fec.gov/files/legal/murs/6920/17044434345.pdf. There turned out to be 

multiple unknown respondents, only one of which the FEC apparently investigated. See Global 

Conciliation Agreement ¶¶ 6-9, MUR 6920 (American Conservative Union et al.) (Nov. 3, 

2017), http://eqs.fec.gov/eqsdocsMUR/17044434756.pdf (noting that investigated respondent 

received funds at issue “from another source”). Because the plain text of CREW’s 

administrative complaint and the facts discovered by the FEC staff identify plaintiffs as 

“unknown respondents”—together with the other unknown sources of the $1.71 million—the 

FEC’s enforcement failures cannot somehow remove plaintiffs from the explicit purview of that 

complaint. 

 Third, the FEC’s decision not to investigate or enforce against plaintiffs says nothing 

about whether FECA requires plaintiffs to be reported as sources or conduits of the 

                                                            

which the earmarked contribution passed, including the name and address of the conduit, and 

whether the contribution was passed on in cash, by the contributor’s check, or by the conduit’s 

check”). FEC forms have the force of law. See 52 U.S.C. § 30107(a)(8). And this information 

must include the true source. See 52 U.S.C. § 30104(b)(3)(A) (requiring identification of each 

person contributing in excess of $200); id. § 30122 (prohibiting contributing in the name of 

another). 

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contribution—the decision means merely that they were not investigated or fined. In other 

words, the FEC’s decision to reject its own lawyers’ recommendations and not even investigate 

plaintiffs hardly constitutes a determination that FECA did not require reporting of plaintiffs’ 

contribution. To the contrary, even the two Commissioners who voted against accepting the 

Office of General Counsel’s recommendation to investigate plaintiffs appear to acknowledge that 

an investigation might have generated “direct evidence” that plaintiffs were required to be 

disclosed as conduits. See Statement of Reasons of Vice Chair Caroline C. Hunter and 

Commissioner Lee E. Goodman at 2-4 (Dec. 20, 2017), http://eqs.fec.gov/eqsdocsMUR/ 

17044435563.pdf. The dismissal, therefore, has no bearing on CREW’s legally protected 

interest in plaintiffs’ identity, which plaintiffs seek to conceal through this lawsuit, and their 

contention that this action is “wholly unrelated to [CREW’s] complaint,” Pls.’ Opp. at 7, is flatly 

false. In any event, the propriety of CREW’s intervention motion does not turn on whether the 

Court will directly decide every aspect of CREW’s stated legal interest. It suffices that CREW 

has a legal interest “relating to . . . the subject of [this] action,” Fed. R. Civ. P. 24(a)(2) 

(emphasis added), i.e., learning plaintiffs’ identities as uncovered due to CREW’s administrative 

complaint. 

 Finally, plaintiffs draw a meaningless distinction—that this lawsuit merely impairs 

CREW’s ability to “assert, not protect, an interest in the disclosure of [their] identities,” and that 

CREW can assert its interest in its separate lawsuit against the FEC (also assigned to this Court). 

Pls.’ Opp. at 9. This distinction between “asserting” a right and “protecting” it makes no sense. 

When a lawsuit damages a third party’s ability to assert an interest, intervention is warranted to 

allow that interest to be protected. See Crossroads, 788 F.3d at 318 (“[I]t is enough that a 

plaintiff seeks relief, which, if granted, would injure the prospective intervenor.”). CREW 

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should be permitted to intervene as of right precisely to protect its legal interest in the disclosure 

of plaintiffs’ identities. 

B. FECA Grants CREW a Right to Challenge the FEC’s Failure to Provide 

CREW with Contributor Information Required by Law. 

CREW has a statutory right to challenge the FEC’s unlawful failure to provide the relief 

that CREW’s administrative complaint sought: Disclosure of the true source of the $1.71 million 

contribution. See 52 U.S.C. § 30109(a)(8); Mot. at 7-9. CREW needs the information at issue in 

this case to effectively vindicate that statutory right. Id. at 8-9. 

Plaintiffs and the FEC counter that CREW needed the information only to decide whether

to sue the FEC under § 30109(a)(8). See Pls.’ Opp. at 10; FEC Opp. at 5.2

 According to the 

existing parties, now that CREW has filed such a suit, CREW no longer needs the information at 

all. See Pls.’ Opp. at 10; FEC Opp. at 5.3

 

                                                            

2

 Plaintiffs also speculate that CREW might lack “standing” to bring suit against the FEC 

under 52 U.S.C. § 30109(a)(8) because the FEC reached a negotiated conciliation agreement 

with certain respondents in the administrative enforcement action. See Pls.’ Opp. at 5-6. But the 

FEC did not reach an agreement with all respondents: The only entities with whom the FEC 

settled were the recipient of the illegal funds and two of the entities that served as unlawful 

conduits for that money. See Global Conciliation Agreement ¶¶ 6-9, MUR 6920 (American 

Conservative Union et al.) (Nov. 3, 2017), http://eqs.fec.gov/eqsdocsMUR/17044434756.pdf. 

The FEC reached no agreement with—indeed, did not even open an investigation into—the 

administrative respondent who was the true source of the illegal $1.71 million contribution. 

Compare id. ¶ 6 (noting that respondents in conciliation agreement received funds “from another 

source”), with Compl. ¶ 12, MUR 6920 (American Conservative Union et al.) (Feb. 27, 2015), 

https://www.fec.gov/files/legal/murs/6920/17044434345.pdf (naming “true source” of funds as 

administrative respondent); see also Common Cause v. FEC, 729 F. Supp. 148, 151 (D.D.C. 

1990) (hearing challenge to dismissed claim even where FEC had entered conciliation agreement 

with defendant with respect to other claims); Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 

1980) (considering complainant’s challenge to FEC’s inaction as to parties with whom FEC did 

not pursue conciliation agreement even where FEC had reached conciliation agreement with 

other respondents). 

3

 CREW notes that the FEC waited until December 19—three days before the expiration of 

CREW’s 60-day statutory deadline to file suit—to make even the redacted case file of MUR 

6920 available. CREW was therefore forced to protect its rights by filing suit under 

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Plaintiffs and the FEC seem to assume that the purpose of filing a lawsuit is to file a 

lawsuit, and that once the case is docketed, the plaintiff’s rights have been vindicated. But the 

purpose of bringing suit is to obtain relief from a court, which requires the plaintiff to show that 

the facts entitle the plaintiff to relief under the applicable legal standard. As explained in 

CREW’s opening motion, the standard this Court applies under § 30109 will require CREW to 

show that the FEC acted contrary to law in failing to require reporting of the full path that the 

$1.71 million illegally took from its original source through plaintiffs to the recipients. See 

CREW v. FEC, 209 F. Supp. 3d 77, 88 (D.D.C. 2016) (discussing standard). This will mean 

showing that the record before the FEC did not support the conclusions of the controlling FEC 

Commissioners. Id. (“[T]he FEC’s decisions are reversible if the Court determines that the 

agency entirely failed to consider an important aspect of the relevant problem or has offered an 

explanation for its decision that runs counter to the evidence before it.” (internal quotation marks 

and alterations omitted)). But if plaintiffs prevail here, that record will remain forever 

incomplete, with plaintiffs’ identities redacted. Thus, a victory by plaintiffs would mean that 

CREW would have to litigate the lawfulness of the FEC’s failure to trace the $1.71 million back 

to its source without knowing through whose hands the money passed—even though this fact 

would be known to CREW’s litigation opponent, the FEC. This would be manifestly prejudicial 

to CREW. Cf. FTC v. Sysco Corp., 308 F.R.D. 19, 22 (D.D.C. 2015) (“[R]esolving conflicts in a 

court of law is not a game of ‘blind man's bluff,’ but ‘a fair contest with the basic issues and facts 

                                                            

§ 30109(a)(8) without having had a full and fair opportunity to review that file. See Jordan v. 

FEC, 68 F.3d 518, 519 (D.C. Cir. 1995) (holding that FECA’s time-limit to filing suit is 

jurisdictional). CREW’s complaint is subject to amendment as of right, see Fed. R. Civ. P. 

15(a)(1), and CREW may well exercise that right, particularly in light of any information gained 

as a result of this suit. 

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disclosed to the fullest practicable extent.’” (quoting United States v. Procter & Gamble Co., 356 

U.S. 677, 682-683 (1958))). 

The FEC responds that plaintiffs’ victory here would not impair CREW’s lawsuit against 

the FEC because such a result “would not preclude the Court [in CREW’s suit against the FEC] 

from allowing CREW to have access to the administrative record containing plaintiffs’ names 

pursuant to a protective order.” FEC Opp. at 6. But the FEC of course cannot guarantee what 

orders this Court will enter in that (or any) suit. The possibility that CREW might prevail on a 

contested motion in a separate case to obtain access to the material subject to a protective order 

cannot negate CREW’s interest in protecting its rights through this case. See Crossroads, 788 

F.3d at 318-19 (rejecting FEC’s argument that intervention should be denied because intervenor 

would be able to assert its arguments in subsequent administrative and judicial proceedings). 

Plaintiffs’ counterargument is even more attenuated. Plaintiffs claim that CREW would 

be able to piece together “the context” of documents containing plaintiffs’ names even with those 

names redacted. Pls.’ Opp. at 10. Plaintiffs provide no explanation for how this divination 

would be conducted. For example, consider the FEC General Counsel’s report that apparently 

recommended investigating plaintiffs:4

 

[Full line redacted].17 

[Redacted] acting as a trustee of [full line redacted].18 

[Redacted] funded GI LLC, wiring it $2.5 million only seven weeks after 

the LLC's formation.19 

[Full line redacted].20 

. . . . 

17 In an August 24, 2017 telephone conversation with OGC, [rest of 

footnote redacted]. 

. . . . 

20 [Full footnote redacted]. 

                                                            

4

 Third General Counsel’s Report, at 4-5, MUR 6920 (American Conservative Union et 

al.) (Sep. 15, 2017), http://eqs.fec.gov/eqsdocsMUR/17044435484.pdf. 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 9 of 16
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It is impossible to determine from such documents what facts were before the FEC when 

it made its decision. 

In any event, as noted above, in a lawsuit challenging the FEC’s failure to act on the 

administrative record before it, CREW would be inherently prejudiced by having to guess “the 

context” of that record. For example, perhaps John Doe 1 is a candidate who benefitted from the 

illegal $1.71 million, or a family member or friend of that candidate, or a lobbyist with interests 

to advance. John Doe 2 may have made other reportable contributions which, if combined with 

this contribution, could establish that the trust is a political committee itself subject to its own 

reporting obligations. Either may have a known relationship with a third party, providing reason 

to believe they acted as conduits for the third party’s contribution. CREW has a right to use any 

such facts that might be revealed by knowing plaintiffs’ identities to bolster its case that the FEC 

acted contrary to law when it refused to investigate plaintiffs and the sources of the funds they 

concealed. See CREW, 209 F. Supp. 3d at 82-84, 93-95 (engaging in detailed analysis of 

administrative respondents’ activities in assessing claim under § 30109); see also Second 

General Counsel’s Report at 2, MUR 6920 (July 5, 2017), http://eqs.fec.gov/eqsdocsMUR/ 

17044434484.pdf (relying in part on the identity of PAC’s treasurer to prove conduit 

contribution).

Plaintiffs’ reliance on Pharmaceutical Research & Manufacturers of America v. FTC, 

790 F.3d 198 (D.C. Cir. 2015), is entirely misplaced. That case was a challenge to an agency 

action where the agency withheld from the plaintiff certain documents as required by law. The 

Court found no prejudice to the plaintiff because the agency “did not rely on these [withheld] 

filings” in taking the action at issue but instead “used them only as a general source of 

background.” Id. at 210-11. Moreover, the redacted identities had no relevance to the plaintiff’s 

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legally protected interest to participate in a rulemaking proceeding. Id. Here, in contrast, the 

redacted documents—to the extent CREW can discern their contents—seem to indicate that the 

FEC not only engaged in particularized consideration of the information at issue, but even took a 

formal vote on it. See Certification, MUR 6920 (American Conservative Union et al.) (Sep. 21, 

2017), https://www.fec.gov/files/legal/murs/6920/17044434647.pdf.5

 Therefore, CREW would 

be prejudiced by being forced to challenge that vote without using the information at issue here. 

 C. CREW’s FOIA Rights Support Intervention in this Suit. 

 As CREW explained in its motion, Mot. at 9-10, CREW’s intervention here is consistent 

with cases granting a FOIA requester intervention in reverse FOIA suits. Once CREW became 

aware of this lawsuit, it promptly filed a FOIA request, which the FEC has denied solely on the 

grounds that this Court has ordered plaintiffs’ identities redacted pending the outcome of this 

suit. See Ex. 1 (FOIA Denial). CREW has now administratively appealed that denial. See Ex. 2 

(Administrative Appeal). Absent intervention in this case, should plaintiffs prevail, CREW’s 

only recourse would be a collateral attack through a suit challenging its FOIA denial. 

 Plaintiffs object that CREW cannot rely upon FOIA cases permitting intervention 

because “any alleged injury is not yet sufficiently concrete or imminent because a final order 

preventing disclosure under FOIA has not yet been issued. . . . [and] CREW . . . must first 

exhaust its administrative remedies before seeking judicial review.” Pls.’ Opp. at 8-9. This 

misses the point. First, CREW is not raising its FOIA claim here; rather, CREW is contending 

that its ability to engage in FOIA litigation will be harmed should plaintiffs prevail in this suit, 

and thus CREW’s FOIA dispute provides an additional legally protected interest at stake in this 

                                                            

5

 Plaintiffs’ argument that CREW has already used the redacted documents to file suit 

under § 30109, Pls.’ Opp. at 8 & n.1, is meritless for the reasons explained supra n.3. 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 11 of 16
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suit. It does not matter that the FOIA litigation itself is not yet ripe. Second, plaintiffs are wrong 

to suggest that the issue is not yet ripe: The sole basis upon which CREW’s FOIA request was 

denied was this Court’s temporary order precluding the FEC from releasing plaintiffs’ identities, 

see Ex. 1; and an administrative appeal of the FOIA denial has no chance of reversal until this 

Court’s order is lifted, see Armstrong v. Bush, 807 F. Supp. 816, 819 (D.D.C. 1992) (applying 

futility exception to administrative exhaustion requirement in FOIA case). Plaintiffs contend 

that CREW’s rights under FOIA will not be impaired because issue preclusion would not prevent 

CREW from contending that FOIA requires the release of plaintiffs’ identities even if plaintiffs 

prevail in concealing them through this lawsuit. See Pls.’ Opp. at 11. But plaintiffs’ contention 

is legally questionable, see GTE Sylvania, Inc. v. Consumers Union, Inc., 445 U.S. 375, 386-87 

(1980) (holding agency’s withholding of documents did not violate FOIA, despite documents 

being agency records not exempted from disclosure, because agency was complying with court 

order proscribing disclosure), and even if CREW would not be precluded from challenging the 

Court’s order, it hardly bears saying that this Court is going to consider its own order persuasive 

should plaintiffs prevail here and should CREW file a related FOIA case, see Crossroads, 788 

F.3d at 320; see also Roane, 741 F.3d at 151 (holding possibility of “unfavorable precedent that 

would make it more difficult for [intervenor] to succeed on similar claims if he brought them in a 

separate lawsuit of his own . . . is sufficient to support intervention under our caselaw”). Finally, 

even if CREW could raise these arguments de novo in a separate suit, “questions of 

‘convenience’ are clearly relevant,” and judicial resources are preserved by allowing intervention 

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13 

because “[CREW’s] involvement [here] may lessen the need for future litigation to protect [its] 

interests.” In re Brewer, 863 F.3d 861, 873 (D.C. Cir. 2017).6

 CREW has an interest based upon its FOIA dispute, and this Court should grant 

intervention just as courts do for FOIA requesters in reverse FOIA suits. 

III. The FEC’s Own Actions in this Case Confirm that the FEC Cannot Be Assumed to 

Represent CREW’s Interests.

 In its motion, CREW noted the general rule in this Circuit that a government agency 

cannot be presumed to adequately represent the interests of a private intervenor so as to defeat 

intervention under the final prong of the Rule 24(a) test. Mot. at 10-12. In response, the 

plaintiffs assert that “[t]his case . . . presents an unusual situation in which the proposed 

intervenor and existing federal agency party have – and will continue to have – identically 

aligned interests”—an alignment that plaintiffs claim is demonstrated by “the Commission 

advocat[ing] for CREW’s exact position” on the merits of the case. See Pls.’ Opp. at 12; see also 

id. (“The FEC and CREW have taken identical positions seeking the release of unredacted 

investigative records for MUR 6920.”). The FEC makes similar arguments. See FEC Opp. at 9 

(“[T]he record in this case belies any claim that the Commission has failed to present 

a defense any less full-throated or different from CREW’s intended defense.”). The problem 

with these claims regarding the FEC’s supposed actions to advance CREW’s interests is that the 

FEC has done no such thing. Instead, the FEC seems to have (1) voluntarily granted plaintiffs 

the temporary restraining order they sought, see Dec. 18, 2017 Minute Order; (2) refused to 

acknowledge that CREW has any existing statutory rights to the information at issue, FEC Opp. 

                                                            

6

 The FEC does not dispute that FOIA grants CREW an interest, but rather asserts that it 

can adequately protect CREW’s interest. See FEC Opp. at 7. For the same reasons the FEC 

cannot generally adequately protect CREW’s interest, it cannot do so with respect to CREW’s 

FOIA interest. See infra Part III. 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 13 of 16
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at 5, 7; and (3) represented to the Court that CREW does not require the information to prosecute 

its suit against the FEC under § 30109, id. at 5-6. As CREW noted in its motion, see Mot. at 11, 

these FEC positions are not surprising, given that CREW intends to use the information at issue 

to help demonstrate that the FEC’s actions in MUR 6920 were contrary to law. But they amply 

demonstrate why the D.C. Circuit, in reversing a court in this District for denying a motion to 

intervene as of right in a suit against the FEC under the adequacy-of-representation prong, noted 

that “a doubtful friend is worse than a certain enemy.” Crossroads, 788 F.3d at 314; see also In 

re Brewer, 863 F.3d at 873 (“[I]ntervenors need not prove that representation is inadequate but 

need show merely that it may be.” (internal quotation marks and alterations omitted)); 

100Reporters LLC v. U.S. Dep’t of Justice, 307 F.R.D. 269, 280 (D.D.C. 2014) (possibility that 

government agency could “change its strategy during the course of litigation” demonstrates 

inadequacy of representation, even if interests and strategy currently align). 

 Finally, the FEC contends that it has a practice of changing its position when it loses 

district court cases, rather than appealing those decisions, and that when the FEC’s 

Commissioners deadlock on whether to appeal, it is by Congress’s design. FEC Opp. at 9-10. 

This illustrates precisely why the FEC cannot adequately protect CREW’s interest. As an 

intervenor, CREW will have the right to appeal an adverse decision should one occur, rather than 

having to merely hope that the FEC will deviate from its uniform practice of the last decade and 

neither accept the adverse decision nor deadlock. The FEC’s acknowledgement of its practice 

vitiates its suggestion that it can adequately represent CREW’s interest in this litigation. 

CONCLUSION 

For the foregoing reasons, CREW’s motion to intervene should be granted. 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 14 of 16
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Respectfully submitted, 

Stuart C. McPhail (D.C. Bar No. 1032529) 

Adam J. Rappaport (D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue NW 

Washington, DC 20001 

(202) 408-5565 

 smcphail@citizensforethics.org 

 arappaport@citizensforethics.org 

 /s/ Adav Noti 

 Adav Noti (D.C. Bar No. 490714) 

 Mark P. Gaber (D.C. Bar No. 988077) 

 Campaign Legal Center 

 1411 K Street NW, Suite 1400 

 Washington, DC 20005 

 (202) 736-2200 

 anoti@campaignlegalcenter.org 

 mgaber@campaignlegalcenter.org 

 Counsel to Citizens for Responsibility and Ethics in Washington and Anne Weismann 

 January 24, 2018 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 15 of 16
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CERTIFICATE OF SERVICE 

I hereby certify that on January 24, 2018, I caused the foregoing Reply in Support of 

Motion to Intervene by Citizens for Responsibility and Ethics in Washington and Anne 

Weismann, including attachments, to be served on the following through the Court’s electronic 

case filing system: 

William W. Taylor , III, Esq., wtaylor@zuckerman.com 

Dermot W. Lynch, Esq., dlynch@zuckerman.com 

Adam L. Fotiades, Esq., afotiades@zuckerman.com 

Kathleen C. Neace, Esq., kneace@velaw.com 

Kevin Deeley, Esq., kdeeley@fec.gov 

Charles Kitcher, Esq., ckitcher@fec.gov 

Gregory John Mueller, Esq., gmueller@fec.gov 

Haven G. Ward, Esq., hward@fec.gov 

 /s/ Adav Noti 

 Adav Noti (D.C. Bar No. 490714) 

 Campaign Legal Center 

 1411 K Street NW, Suite 1400 

 Washington, DC 20005 

 (202) 736-2200 

 anoti@campaignlegalcenter.org 

 Counsel to Citizens for Responsibility and Ethics in Washington and Anne Weismann 

 January 24, 2018 

Case 1:17-cv-02694-ABJ Document 41 Filed 01/24/18 Page 16 of 16