IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

THE REAL TRUTH ABOUT OBAMA, INC. )

)

Plaintiff, )

)

v. ) Civil Action No. 3:08-cv-00483-JRS

)

FEDERAL ELECTION COMMISSION, )

U.S. DEPARTMENT OF JUSTICE, )

)

Defendants. )

UNITED STATES DEPARTMENT OF JUSTICE’S OPPOSITION 

TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Plaintiff seeks a preliminary injunction to enjoin the United States Department of Justice

and the Federal Election Commission (“FEC”) from enforcing three FEC regulations as well as a

Federal Register Notice describing the FEC’s approach to determining “political committee”

status. See Compl. ¶¶ 27-53. As set forth in the FEC’s opposition brief, Plaintiff’s motion

should be denied because Plaintiff has not demonstrated that it will suffer irreparable harm in the

absence of the injunction, because the balance of harms weighs in favor of the Defendants, and

because Plaintiff is unlikely to succeed on the merits. Moreover, as a threshold matter, the

motion should be denied because there is no case or controversy and thus no subject matter

jurisdiction. The Department of Justice hereby incorporates all of the arguments made by the

FEC on each of these issues, which it will not repeat here. 

There are, however, additional, distinct considerations that warrant denial of the

preliminary injunction that is sought against the Department. As set forth below, Plaintiff cannot

demonstrate a reasonable fear that the Department will criminally prosecute it for engaging in
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the proposed activities that are described in its Complaint. Accordingly, Plaintiff lacks standing

to seek an injunction against the Department of Justice. 

BACKGROUND: STATUTORY AND REGULATORY AUTHORITY OF THE

FEDERAL ELECTION COMMISSION AND THE DEPARTMENT OF JUSTICE

The FEC, not the Department of Justice, has the statutory authority to interpret the

Federal Election Campaign Act (“FECA” or the “Act”) and FEC’s own regulations. See 2

U.S.C. §§ 437c(b)(1) (“The Commission shall administer . . . and formulate policy with respect

to[] this Act . . . .”), 437d(a)(7) (authorizing Commission to “render advisory opinions”

regarding application of the Act or the Commission’s regulations), 437d(a)(8) (giving

Commission authority “to develop such prescribed forms and to make, amend, and repeal such

rules . . . as are necessary to carry out the provisions of this Act . . . .”); see also FEC v.

Democratic Senatorial Campaign Committee, 454 U.S. 27, 37 (1981) (“Congress has vested the

Commission with ‘primary and substantial responsibility for administering and enforcing the

Act,’ . . . providing the agency with ‘extensive rulemaking and adjudicative powers.’”) (quoting

Buckley v. Valeo, 424 U.S. 1, 109-110 (1976)); U.S. Department of Justice, Federal Prosecution

of Election Offenses 198 (7th ed. 2007) (“[T]he Commission has statutory authority to interpret

the statute through regulations and advisory opinions, and its opinion should be given

deference.”) (available at http://www.usdoj.gov/criminal/pin/ ). 

The Department of Justice’s authority is limited to investigating and prosecuting persons

who “knowingly and willfully commit[] a violation” of FECA or other federal criminal statutes. 

2 U.S.C. § 437g(d)(1) (describing criminal penalties for knowing and willful violations of the

Act); see also Federal Prosecution of Election Offenses at 4 (“to be a crime, a FECA violation

must have been committed knowingly and willfully”), 5 (“FECA violations that . . . do not

present knowing and willful violations, e.g., those resulting from negligence or mistake on the
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part of the offender as to what the law required or forbade . . . are handled noncriminally by the

Federal Election Commission (FEC) under the statute’s civil enforcement provisions.”), 14

(“FECA violations become potential crimes when they are committed knowingly and willfully,

that is, by an offender who knew what the law forbade and violated it notwithstanding that

knowledge.”), 179 (“knowing and willful FECA violation requires ‘knowing, conscious, and

deliberate flaunting’ of the Act”) (quoting AFL-CIO v. FEC, 628 F.2d 97, 101 (D.C. Cir. 1980)).

ARGUMENT

As the Fourth Circuit has recognized, “[w]hen a party . . . brings a preenforcement

challenge to a statute or regulation, it must allege ‘an intention to engage in a course of conduct

arguably affected with a constitutional interest,’ and there must exist ‘a credible threat of

prosecution’ under the statute or regulation.” Virginia Society for Human Life, Inc. v. Federal

Election Comm’n, 263 F.3d 379, 386 (4th Cir. 2001) (“VSHL”) (quoting Babbitt v. United Farm

Workers Nat'l Union, 442 U.S. 289, 298, 302 (1979)). “The fear of prosecution cannot be

imaginary or wholly speculative.” Id. 

Under the Department of Justice’s published “policies . . . related to the investigation and

prosecution of election offenses,” Federal Prosecution of Election Offenses at 1, a criminal 

investigation (or prosecution) of Plaintiff for violation of the campaign finance laws would be

unwarranted unless the circumstances suggested that Plaintiff “knew [that] the law forbade” its

activities and that it “violated [the law] notwithstanding that knowledge.” Id. at 13, 14. Here,

however, the FEC has stated publicly that the proposed activities described in Plaintiff’s

complaint are not restricted by the FEC’s regulations or by the Federal Register notice that

Plaintiff seeks to challenge. See FEC Opp. to Pl. Mot. for Prelim. Inj. at 6. In light of the FEC’s

stated position that Plaintiff’s intended activities would not be subject to regulation and the
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 deference that the Department of Justice affords the FEC with respect to the interpretation of the

Act and the FEC’s own regulations, Plaintiff cannot show that it has an objectively reasonable

fear that engaging in the activities described in its complaint will expose Plaintiff to criminal

prosecution for conduct or activities that it knew the law forbade. Accordingly, Plaintiff lacks

standing to seek an injunction against the Department of Justice.

VSHL does not require a different result. There, the Fourth Circuit held that a plaintiff

challenging one of the FEC regulations that is also at issue here had a credible fear of

prosecution notwithstanding the FEC’s statement that it would not enforce the regulation in the

Fourth Circuit. Id. at 389. In the instant case, by contrast, the FEC has not simply asserted that

it will forego, in one particular jurisdiction, the enforcement of an otherwise applicable

regulation. Rather, it has announced its interpretation that the regulations at issue do not apply

to the proposed activities described in Plaintiff’s complaint. As the FEC has argued in its

opposition brief, given the lack of any disagreement between Plaintiff and the FEC regarding the

applicability of the challenged regulations to the proposed activities described in Plaintiff’s

complaint, there is no case or controversy within the meaning of Article III.

This conclusion applies with equal, if not greater, force to the claims asserted and the

injunction sought against the Department of Justice. In order to prosecute Plaintiff for criminal

violations, the Department would not only have to set aside its normal deference to the FEC and

reach its own independent and contrary interpretation of the FEC regulations, it would have to

conclude that Plaintiff had engaged in knowing and willful violations of the Act, notwithstanding

the fact that the FEC had notified Plaintiff and this Court that Plaintiff’s proposed activities were
1

 North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (“NCRL”),

is also distinguishable. There, the Fourth Circuit found that a plaintiff faced a credible fear of

prosecution notwithstanding North Carolina’s statement that it did not interpret a state election

law as applying to issue advocacy. Id. at 710. In that case, however, the court held that,

notwithstanding the state’s interpretation, the statute in question “appear[ed] by its terms” to

restrict Plaintiff’s activities. Id. Moreover, North Carolina had not indicated “that it would

interpret the statute to mean anything other than what its plain language would suggest” when

NCRL wrote seeking guidance prior to filing suit. Id. As explained in the FEC’s brief, Plaintiff

in this case did not make any effort to obtain guidance from the FEC, but instead filed this

lawsuit one week after it incorporated.

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not subject to regulation. It is wholly speculative and, indeed, counterintuitive, to suggest that

there is a credible fear of criminal prosecution in these circumstances.1

CONCLUSION

For the reasons set forth above and in the opposition brief filed by the FEC, the Court

should deny Plaintiff’s motion for a preliminary injunction.

Respectfully submitted,

GREGORY G. KATSAS

Assistant Attorney General

CHUCK ROSENBERG

United States Attorney

JAMES J. GILLIGAN

Assistant Director, Civil Division, 

Federal Programs Branch

By: /s/ 

Debra J. Prillaman

VSB No. 15844

Assistant United States Attorney

600 E. Main Street, Suite 1800

Richmond, Virginia, 23219-2430

(804) 819-5400

Fax (804) 819-7417

Debra.prillaman@usdoj.gov
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 /s/ 

John R. Griffiths

Admitted pro hac vice

Senior Trial Counsel

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, D.C. 20044

Telephone: (202) 514-4652

Fax: (202) 616-8460

John.Griffiths@usdoj.gov

Attorneys for Defendant United States

Department of Justice
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CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of August, 2008 I have electronically filed the

foregoing pleading with the Clerk of Court using the CM/ECF system, which will then send a

notification of such filing (NEF) to the following:

Michael Boos

Michael.boos@gte.net

James Boop, Jr.

Jboppjr@aol.com

Barry Alan Bostrom

bbostrom@bopplaw.com

Clayton James Callen

ccallen@bopplaw.com

Richard Eugene Coleston

rcoleson@bopplaw.com

John Richard Griffiths

john.griffiths@usdoj.gov

Vivien Clair

vclair@fec.gov

Adav Noti

anoti@fec.gov

Seth Edward Nesin

snesin@fec.gov

Claire Naila Rajan

crajan@fec.gov

Holly Jean Baker

hbaker@fec.gov

Kevin Andrew Deeley

kdeeley@fec.gov

Thomasenia Patricia Duncan

tduncan@fec.gov

David Brett Kolker

dkolker@fec.gov
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In addition, I have caused a copy of this pleading to be served this 14thday of August by

hand upon the following: 

Michael Boos

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

 /s/ 

Debra J. Prillaman

VSB No. 15844

Assistant United States Attorney and Counsel

for Defendant U.S. Department of Justice

600 E. Main Street, Suite 1800

Richmond, Virginia, 23219-2430

(804) 819-5400

Fax (804) 819-7417

Debra.prillaman@usdoj.gov