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PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

United States Attorney

THEODORE C. HIRT

Assistant Branch Director 

Civil Division, Federal Programs Branch

ERIC J. BEANE (AZ Bar No. 023092)

TAMARA ULRICH

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20530

(202) 616-2035

(202) 616-8470 (fax)

eric.beane@usdoj.gov

Attorneys for Defendant Attorney General Gonzales

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 )

Jon Marcus, ) DEFENDANT ATTORNEY

) GENERAL’S REPLY

Plaintiff, ) MEMORANDUM

) IN SUPPORT OF HIS

v. ) MOTION TO DISMISS

)

United States Attorney General )

Alberto R. Gonzales, Federal Election )

Commission Chairman Michael E. Toner, ) CV07-00398-PCT-EHC

In their official capacities, )

)

Defendants. ) )

DEFENDANT ATTORNEY GENERAL’S REPLY MEMORANDUM

IN SUPPORT OF HIS MOTION TO DISMISS

INTRODUCTION

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

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

(“FEC”). This question was decisively resolved in the Attorney General’s favor by the Ninth

Circuit. See United States v. Int’l Union of Operating Eng’rs Local 701, 638 F.2d 1161 (9th Cir.

1979). 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. Plaintiff’s various arguments must be rejected because they ignore controlling

precedent and 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 Plaintiff’s complaint

for failure to state a claim.

ARGUMENT 

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

POWER TO INITIATE CRIMINAL INVESTIGATIONS

Plaintiff entirely fails 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). As the Ninth Circuit recognized, Congress did not limit the Attorney’s General’s

authority to enforce the FECA. Int’l Union, at 1163 (“Nothing in [the FECA] suggests, much

less clearly and ambiguously 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.”). 

Plaintiff relies 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. Pl.’s Response to Def.’s Mot. to Dismiss at 1-6 (“Pl.’s Resp.”). Plaintiff cites

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

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1

 Contrary to Plaintiff’s argument, see Pl.’s Resp. at 5, there is no disagreement between

the FEC and the Attorney General on this point.

2

 Plaintiff attempts 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 as to the same conduct be codified separately.

 Plaintiff also seemingly suggests that United States v. Morgan can be ignored and that

the Attorney General is impliedly precluded from initiating criminal investigations pertaining to

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

Pl.’s Resp. at 5-6. 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.,

-3-

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,

Plaintiff 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). Plaintiff argues that “[t]he Attorney

General utterly fails to explain how the FEC can share its exclusive jurisdiction...” Pl.’s Resp.

at 3. Plaintiff apparently assumes that only one entity may have jurisdiction over FECA

violations. 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.1

 The Attorney General has authority to

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

investigate civil violations of FECA. Plaintiff falsely assumes that there can be no concurrent

civil and criminal investigations, but there is nothing in the statutory language that states this.2

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47 U.S.C. § 231; 50 U.S.C. § 1705. 

-4-

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, Plaintiff discusses 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 Pl.’s Resp. at 6-9. Cases that predate 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). This non-substantive change in procedure cannot be relied on by

Plaintiff to present the type of clear and unambiguous Congressional directive that is required to

alter the powers of the Attorney General. As discussed in Defendant’s opening brief, at least six

courts, including the Ninth Circuit, have considered the authority of the Attorney General to

institute criminal investigations under FECA, and all have reached the same conclusion. 

Plaintiff basically ignores 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), Plaintiff offers only rhetoric and unsubstantiated legal

assertions. 

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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.

Dated: June 1, 2007 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

Interim United States Attorney

THEODORE C. HIRT

Assistant Branch Director

 /s/ Eric J. Beane 

ERIC J. BEANE

TAMARA ULRICH

United States Department of Justice

Civil Division

20 Massachusetts Ave., N.W., Rm. 7124

Washington, D.C. 20530

Telephone: (202) 616-2035

Attorneys for Defendant Attorney General 

Gonzales

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Reply Memorandum in Support

of Defendant’s Motion to Dismiss was served this 1st day of June 2007, by the electronic

case filing system, upon counsel as follows:

Michael R. Dezsi

Fieger Fieger Kenney & Johnson

19390 W 10 Mile Rd

Southfield, MI 48

m.dezsi@fiegerlaw.com Counsel for Plaintiff

Gregory John Mueller

Federal Election Commission

999 E Street, N.W.

Washington, DC 20463

gmueller@fec.gov

Counsel for Defendant Federal Election Commission

 /s/ Eric J. Beane 

ERIC J. BEANE

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