IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK and RENEE BEAM, )

)

Plaintiffs, ) No. 07 CV 1227

)

v. ) Judge Pallmeyer

)

ALBERTO R. GONZALES, et al., )

)

Defendants. )

DEFENDANT ATTORNEY GENERAL’S REPLY MEMORANDUM 

IN SUPPORT OF HIS MOTION TO DISMISS

The sole issue in this case is purely legal: whether the Attorney General has authority to

initiate investigations of criminal violations of the Federal Election Campaign Act of 1971 as

amended, 2 U.S.C. § 431 et seq. (“FECA”), without a referral from the Federal Election

Commission (“FEC”). As explained in Defendant’s opening brief, it is well-established that the

Attorney General has plenary power to investigate criminal violations of any federal law unless

Congress clearly and unambiguously removes such power from the Attorney General. Plaintiffs’

various arguments, although artful and spirited, must be rejected because they fail to address,

much less satisfy, the exacting standard that this Court must apply to the present legal question. 

Accordingly, this Court should join the unanimous conclusion reached by courts around the

country that have faced this precise legal issue and dismiss Plaintiffs’ complaint for failure to

state a claim.

Case 1:07-cv-01227 Document 37 Filed 05/23/2007 Page 1 of 6
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ARGUMENT 

I. FECA DOES NOT REMOVE THE ATTORNEY GENERAL’S PLENARY 

POWER TO INITIATE CRIMINAL INVESTIGATIONS

Plaintiffs entirely fail to address the weight of authority holding that the Attorney

General has plenary authority over criminal matters, or that any limitation of the Attorney

General’s authority must be “clear and unambiguous.” United States v. Morgan, 222 U.S. 274,

282 (1911); United States v. Palumbo Bros., 145 F.3d 850, 865 (7th Cir. 1998) (“Courts

recognize that criminal prosecution is an executive function within the exclusive prerogative of

the Attorney General.”) (internal quotations omitted). Plaintiffs rely solely on the spurious,

extra-textual argument that FECA requires the Attorney General to await a referral from the FEC

before he may exercise his jurisdiction over criminal matters. Pls.’ Response to Def.’s Mot. to

Dismiss at 1-4 (“Pls.’ Resp.”). Plaintiffs cite no clear and unambiguous authority for this

assertion because there is no authority for this assertion. Congress did not expressly provide an

exhaustion requirement for criminal investigations under FECA. The fact that referrals are

allowed under the statute is in no manner an exhaustion requirement for such a referral. If

Congress had wished to create such an exhaustion requirement, it could have explicitly done so. 

It did not. Because the Attorney General’s powers to initiate criminal investigations under

FECA is not explicitly removed, Plaintiffs cannot prevail on this claim.

Moreover, Congress did not give the FEC exclusive jurisdiction over all aspects of

FECA; it provided for exclusive jurisdiction over only “civil enforcement” of FECA. 2 U.S.C.

§ 437c(b)(1) (“The Commission shall have exclusive jurisdiction with respect to the civil

enforcement of such provisions.”) (emphasis added). Plaintiffs argue that “[t]he Attorney

General utterly fails to explain how the FEC can share its exclusive jurisdiction with the

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 Plaintiffs attempt to distinguish United States v. Palumbo Bros., 145 F.3d 850 (7th Cir.

1998), by asserting that the case contained two sets of laws, rather than one. This distinction is

irrelevant. In Palumbo Bros., the court found that “the existence of a civil cause of action does

not eliminate the availability or merit of an independent criminal prosecution that involves

similar facts and implicates the same conduct.” Id. at 866. There is no requirement that the civil

and criminal prohibitions on the same conduct be codified separately.

 Plaintiffs also seemingly suggest that United States v. Morgan can be ignored and that

the Attorney General is impliedly unauthorized to initiate criminal investigations pertaining to

any federal criminal law that Congress does not place in Title 18 of the United States Code. See

Pls.’ Resp. at 3-4. This argument lacks merit. There is no rule limiting the Attorney General’s

enforcement authority to statutes contained in Title 18 of the United States Code. Statutes with

criminal penalties are scattered throughout the various titles of the United States Code. See, e.g.,

47 U.S.C. § 231; 50 U.S.C. § 1705. 

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Attorney General.” Pls.’ Resp. at 1. Plaintiffs apparently assume that only one entity may have

jurisdiction over FECA. FECA, like many statutes, contains both civil and criminal penalties. 

See 2 U.S.C. § 437g(d)(1) (noting criminal penalties for violations of FECA). Therefore, both

the FEC and the Attorney General have jurisdiction under FECA. The Attorney General has

authority to investigate criminal matters falling within FECA’s prohibitions. The FEC has

authority to investigate civil violations of FECA. Plaintiffs falsely assume that there can be no

concurrent civil and criminal investigations, but there is nothing in the statutory language that

states this.1 To the contrary, the statutory language supports the fact that there can be concurrent

civil and criminal investigations, as it provides for both civil and criminal liability. Most

importantly, Congress has not made the requisite clear, unambiguous, and explicit statement to

limit the Attorney General’s criminal authority under FECA.

Finally, Plaintiffs discuss the 1980 amendments in an attempt to persuade the Court to

ignore a unanimous body of case law acknowledging the Attorney General’s authority to

prosecute criminal violations of campaign finance laws. See Pls.’ Resp. at 4-7. Cases that preCase 1:07-cv-01227 Document 37 Filed 05/23/2007 Page 3 of 6
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date the 1980 amendments cannot be so casually discarded because those cases analyzed

FECA’s referral provision, which the amendments did not substantively change. Congress

added language in 1980 to explicitly set forth that FEC referrals to the Attorney General are to

be made “by an affirmative vote of 4 of its members”:

If the Commission by an affirmative vote of 4 of its members,

determines that there is probable cause to believe that a knowing

and willful violation . . . has occurred or is about to occur, it may

refer such apparent violation to the Attorney General of the United

States without regard to any limitations set forth in Paragraph

(4)(A).

2 U.S.C. § 437g(a)(5)(C). As stated in Defendant’s opening brief, this non-substantive change in

procedure cannot be relied on by Plaintiffs to present the type of clear and unambiguous

Congressional directive that is required to alter the powers of the Attorney General. See Firstar

Bank v. Faul, 253 F.3d 982, 988 (7th Cir. 2001) (“The courts presume that Congress will use

clear language if it intends to alter an established meaning about what a law means; if Congress

fails to do so, courts presume that the new statute has the same effect as the older version.”). As

discussed in Defendant’s opening brief, at least six courts have considered the authority of the

Attorney General to institute criminal investigations under FECA, and all have reached the same

conclusion. Plaintiffs basically ignore the persuasive weight of this authority. Rather than

directing the Court to clear and unambiguous language in the statute that abrogates the Attorney

General’s power (which, of course, cannot be done), Plaintiffs offer only rhetoric. 

CONCLUSION

For the foregoing reasons, as well as those set forth in the Attorney General’s prior brief,

Defendant’s motion to dismiss should be granted.

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Dated: May 23, 2007 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

PATRICK J. FITZGERALD

United States Attorney

LINDA A. WAWZENSKI

Assistant United States Attorney

219 S. Dearborn Street

Chicago, Illinois 60604

(312) 353-1994

_/s/_Eric J. Beane__________

THEODORE C. HIRT

Assistant Branch Director

TAMARA ULRICH

ERIC J. BEANE

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W.

Washington, D.C. 20530

(202) 616-2035

eric.beane@usdoj.gov

Attorneys for Defendant Attorney General

Case 1:07-cv-01227 Document 37 Filed 05/23/2007 Page 5 of 6
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANT ATTORNEY GENERAL’S

REPLY MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS was served on May

23, 2007 in accordance with Fed. R. Civ. P. 5, L.R. 5.5, and the General Order on Electronic

Case Filing (“ECF”) pursuant to the district court’s system as to ECF filers.

 s/ Eric J. Beane 

ERIC J. BEANE

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W.

Washington, D.C. 20530

(202) 616-2035

Case 1:07-cv-01227 Document 37 Filed 05/23/2007 Page 6 of 6