UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

FEDERAL ELECTION COMMISSION, )

)

Plaintiff, )

)

v. ) Civil Action No. 12-0958 (ABJ)

)

CRAIG FOR U.S. SENATE, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

This opinion arises out of former Senator Larry Craig’s efforts to withdraw the guilty 

plea he entered in Minnesota state court in 2007, after he was arrested for disorderly conduct in 

the Minneapolis-St. Paul International Airport. On June 11, 2012, the Federal Election 

Commission (“FEC” or “the Commission”) brought suit against defendants Craig, the Craig for 

U.S. Senate campaign committee (“Craig Committee”), and Kaye L. O’Riordan, the former 

treasurer of the Craig Committee,1 contending that defendants converted campaign funds to 

personal use in violation of the Federal Election Campaign Act (“FECA” or “the Act”) when 

they expended those funds to pay legal fees incurred in connection with Senator Craig’s efforts 

to withdraw his plea. Defendants moved to dismiss the complaint for failure to state a claim on 

August 2, 2012, and the Court denied that motion on March 28, 2013. The FEC then moved for 

summary judgment on September 30, 2013, seeking an order disgorging from Senator Craig the

$216,984 sum that the FEC contends was unlawfully converted, a $70,000 civil penalty against 

 

1 Defendant Craig has since been substituted for Ms. O’Riordan as the treasurer for the 

Craig Committee, and he is now named as a defendant in this case in both his personal and 

official capacities. See May 1, 2013 Minute Order.

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defendant Craig, a $70,000 civil penalty against the Craig Committee, and declaratory and 

injunctive relief. 

The Court will grant the FEC’s motion, although it will not award all of the relief the 

FEC seeks. The Court finds that defendants violated the FECA when they converted campaign 

funds to pay for legal expenses related to Senator Craig’s efforts to withdraw his guilty plea, 

which was a personal matter that was not connected to the Senator’s duties as an officeholder. 

Furthermore, the Court finds that the circumstances of this case merit the imposition of both a

penalty and an order of disgorgement, as well as the declaratory relief the FEC seeks. But the 

Court finds that the amount that was unlawfully converted totals $197,535, not $216,984, and 

that a penalty of $45,000 against Senator Craig is appropriate in this case. The Court will 

therefore order Senator Craig to pay a total of $242,535 to the U.S. Department of the Treasury,

which is comprised of the amount he was unjustly enriched plus the additional penalty. The

Court will not order any relief against the now defunct Craig Committee, nor will it issue an 

injunction in this case.

BACKGROUND

The following facts are not in dispute.2 Defendant Larry Craig was a United States 

Senator from Idaho from January, 1991 to January, 2009. Compl. [Dkt. # 1] ¶ 6; Answer [Dkt. 

# 12] ¶ 6. Senator Craig is named in this case both in his personal capacity and in his official 

 

2 Defendants did not file a statement of material facts in dispute that directly responded to 

the statement of undisputed material facts filed by the FEC, as required by the Local Rules of 

this Court and this Court’s Scheduling Order [Dkt. # 14]. See LCvR 7(h)(1) (“In determining a 

motion for summary judgment, the court may assume that facts identified by the moving party in 

its statement of material facts are admitted, unless such a fact is controverted in the statement of 

genuine issues filed in opposition to the motion.”). Instead, defendants filed a non-responsive 

statement of their own disputed facts. See Defs.’ Statement of Material Facts in Dispute [Dkt. 

# 19-1]. The FEC, however, filed an additional statement of facts that directly responds to 

defendants’ statement, which the Court will rely on in part to set forth the facts of this case. See

FEC’s Resp. to Defs.’ Statement of Alleged Material Facts in Dispute [Dkt. # 21].

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capacity as treasurer of defendant Craig for U.S. Senate. See May 1, 2013 Minute Order. 

Defendant Craig for U.S. Senate is a political committee authorized to receive contributions and 

make expenditures on behalf of defendant Craig. Compl. ¶ 7; Answer ¶ 7. Plaintiff, the Federal 

Election Commission, is an agency of the United States government that is authorized to enforce 

the Federal Election Campaign Act. Compl. ¶ 5; Answer ¶ 5. 

On June 11, 2007, Senator Craig was arrested in the Minneapolis-St. Paul International 

Airport and charged with two violations of Minnesota criminal law: “disturbing the peacedisorderly conduct,” and interference with privacy. Compl. ¶ 12; Answer ¶ 12. On August 8, 

2007, Senator Craig pled guilty to disorderly conduct, a misdemeanor. Compl. ¶ 12; Answer 

¶ 12; see also FEC’s Resp. to Defs.’ Statement of Alleged Material Facts in Dispute [Dkt. # 21] 

¶ 1 (“FEC Facts Resp.”). But on September 10, 2007, Senator Craig filed a motion in Minnesota 

state district court to withdraw his guilty plea. Compl. ¶ 14; Answer ¶ 14. Senator Craig’s 

efforts to withdraw his plea were unsuccessful, and his final appeal was denied on December 9,

2008. Compl. ¶ 14; Answer ¶ 14. 

On September 1, 2007, after the arrest and conviction became the subject of national 

media attention, Senator Craig announced his intention to resign from the Senate effective 

September 30, 2007. Compl. ¶ 15; Answer ¶ 15. Meanwhile, the U.S. Senate Select Committee 

on Ethics (“Senate Ethics Committee”) launched an inquiry into the Senator’s arrest, guilty plea, 

and subsequent conduct. Compl. ¶ 16; Answer ¶ 16. Senator Craig then decided not to resign so 

that he could “continue [his] effort to clear [his] name in the Senate Ethics Committee,” and he 

retired at the end of his term in January 2009 instead. Compl. ¶ 17; Answer ¶ 17.

On July 25, 2008, the Senate Ethics Committee authorized Senator Craig to establish a 

legal expense trust fund “to pay for expenses incurred in connection with” the Minnesota 

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litigation, although it warned Senator Craig that its “approval of the Fund and of the trust 

agreement [did] not indicate approval of [his] continuation of the proceedings in” Minnesota. 

Ex. 9 to Defs.’ Opp. to Pl.’s Mot. for Summ. J. (“Defs.’ Opp.”) [Dkt. # 19-11] at 1. The 

Committee also warned that it would “consider any further use of [Senator Craig’s] campaign 

funds for legal expenses without the Committee’s approval to be conduct demonstrating [his] 

continuing disregard of ethics requirements.” Id. at 2. 

Between July 9, 2007 and October 5, 2008, the Craig Committee disbursed more than 

$480,000 of campaign funds for legal fees and other expenses. Compl. ¶ 18; Answer ¶ 18. The 

Craig Committee paid at least $139,952 to the law firm of Sutherland, Asbill & Brennan LLP for 

its legal services to Senator Craig in connection with his efforts to withdraw his guilty plea, and 

approximately $77,032 to the law firm of Kelly & Jacobson for similar services, for a total of 

$216,984. Compl. ¶¶ 19–20; Answer ¶¶ 19–20.

On February 13, 2008, the Senate Ethics Committee issued a “Public Letter of 

Admonition” to Senator Craig, which stated that some portion of the Craig Committee’s 

expenditures “may not be deemed to have been incurred in connection with [Senator Craig’s]

official duties, either by the Committee or by the Federal Election Commission.” Ex. 7 to Defs.’ 

Opp. [Dkt. # 19-9] at 2. Then, on November 10, 2008, the FEC received an administrative 

complaint alleging that Senator Craig had violated the FECA by spending more than $213,000 in 

campaign funds to pay legal fees and expenses incurred in connection with his attempts to 

withdraw his guilty plea. Compl. ¶ 24; Answer ¶ 24. The FEC investigated the complaint and 

attempts to resolve the matter short of litigation were unsuccessful. Compl. ¶¶ 25–30; Answer 

¶¶ 25–30.

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The FEC filed this lawsuit on June 11, 2012, claiming that defendants violated 52 U.S.C. 

§ 30114(b)3 when they disbursed campaign funds to pay legal expenses related to the Senator’s 

efforts to withdraw his guilty plea in Minnesota. Compl. ¶¶ 33–34. The FEC alleged that 

defendants unlawfully “converted the Craig Committee’s funds to personal use” because these

expenditures were not “made in connection with Mr. Craig’s campaign for federal office and 

were not ordinary and necessary expenses incurred in connection with his duties as a Senator.” 

Id. ¶ 33. Defendants moved to dismiss the complaint on August 2, 2012 for failure to state a 

claim. Defs.’ Mot. to Dismiss [Dkt. # 3]. On March 28, 2013, the Court denied defendants’ 

motion. See FEC v. Craig for U.S. Senate, 933 F. Supp. 2d 111, 113 (D.D.C. 2013). Accepting 

the allegations in the complaint as true, the Court found that the FEC had stated a claim that 

defendants violated the Act by converting campaign funds to personal use. Id. at 116–119. The 

Court further found that defendants had failed to demonstrate that they were immune from 

prosecution based on their alleged reliance on prior FEC Advisory Opinions because all of those 

opinions were distinguishable. Id. at 120–25.

Following the Court’s ruling on the motion to dismiss, on April 11, 2013, defendants 

filed an answer that admitted nearly all of the factual allegations in the complaint. See Answer 

¶¶ 12–31. Then, on September 30, 2013, the FEC moved for summary judgment. FEC’s Mot.

for Summ. J. [Dkt. # 16] (“FEC Mot.”). The FEC sought the following relief in addition to the 

entry of judgment in its favor: an order disgorging from Senator Craig the $216,984 disbursed to 

Sutherland, Asbill & Brennan LLP and Kelly & Jacobson; a $70,000 civil penalty against 

Senator Craig; a $70,000 civil penalty against the Craig Committee; a declaration that defendants 

 

3 All of pleadings in this case, as well as the Court’s previous opinion, refer to the relevant 

portion of the FECA as 2 U.S.C. § 439a(b). As of September 1, 2014, however, that provision 

was recodified at 52 U.S.C. § 30114(b). 

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violated the Act; and a permanent injunction against all defendants prohibiting them from 

violating the Act in the future. Id. at 14. Defendants opposed the FEC’s motion on November 

13, 2013, arguing in part that a portion of the legal fees were lawful campaign expenditures. 

Defs.’ Opp. [Dkt. # 19]. Plaintiff filed its reply on January 10, 2014. FEC’s Reply Mem. [Dkt. 

# 21] (“FEC Reply”). The Court heard oral argument on plaintiff’s motion on July 17, 2014. 

After the hearing, the Court ordered defendants to submit a supplemental pleading “itemizing 

and quantifying all of the legal expenses included in any of the bills submitted . . . by Kelly & 

Jacobson and Sutherland, Asbill, and Brennan” that defendants maintained were permissible.

July 17, 2014 Minute Order. Defendants submitted their pleading on August 15, 2014, and the 

FEC responded on August 29, 2014. Defs.’ Pleading Itemizing & Quantifying Legal Expenses 

[Dkt. # 24] (“Defs.’ Supp. Mem.”); FEC’s Resp. to Defs.’ Pleading [Dkt. # 25] (“FEC Resp.”).

STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party seeking summary judgment bears the “initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat 

summary judgment, the non-moving party must “designate specific facts showing that there is a 

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual 

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the 

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non-moving party; a fact is only “material” if it is capable of affecting the outcome of the 

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In 

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the 

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 

655 (1962) (per curiam).

ANALYSIS

The Court finds that there are no genuine issues of material fact in dispute in this case,

and that defendants are liable as a matter of law for converting campaign funds to personal use in 

violation of section 30114(b) of the FECA. Defendants admitted all of the material facts with 

respect to their liability in their answer to the complaint, and the Court has already concluded 

that those facts amount to a violation of the federal campaign finance law. The Court has wide 

discretion to fashion a remedy in this case, and it will order defendant Craig to pay $242,535 to 

the United States Department of the Treasury. This amount is comprised of a disgorgement of 

$197,535, the amount of campaign funds that were unlawfully converted to personal use, plus a 

penalty of $45,000, which the Court finds necessary and appropriate to punish defendants’ 

misconduct and to deter future misconduct by others. The Court will also issue the declaratory 

relief that the FEC seeks, but it finds that injunctive relief is not appropriate in this case.

I. Defendants violated 52 U.S.C. § 30114(b).

In its previous opinion in this case, the Court found that, accepting the allegations in the 

complaint as true, the FEC had shown that defendants had violated the FECA’s ban on 

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converting campaign funds to personal use.4 See Craig, 933 F. Supp. 2d at 116–119. The Court 

“reject[ed] defendants’ assertion that the expenditures were permitted under the Act” because it 

found that legal expenses incurred in withdrawing a plea to personal criminal conduct in the 

airport could not be characterized as “ordinary and necessary expenses in connection with 

Senator Craig’s duties as an office holder.” Id. at 113. Therefore, “the campaign funds were 

converted to Senator Craig’s personal use as that term is defined in the Act.” Id. In addition, the 

Court found that defendants could not find safe harbor in prior FEC opinions since they had 

“misstate[d] the holding of those opinions, minimize[d] the key distinctions between those cases 

and [their own], and disregard[ed] clear admonitory language” in the advisory opinion on which 

they relied most heavily. Id.

After the court issued its opinion denying defendants’ motion to dismiss, defendants 

answered and admitted the critical facts. Compare Compl. ¶¶ 12–31 (setting forth the facts 

section of the complaint), with Answer ¶¶ 12–31 (admitting all of the factual allegations 

contained in the corresponding paragraphs of the complaint but maintaining Senator Craig’s 

innocence as a matter of law). In particular, defendants admitted that “the Sutherland law firm 

received at least $139,952 for providing legal services to Mr. Craig in connection with his efforts 

to withdraw his guilty plea,” and that “[t]he Kelly law firm received approximately $77,032 from 

the Craig Committee for providing legal services to Mr. Craig in connection with efforts to 

withdraw his guilty plea.” Compl. ¶¶ 19–20; Answer ¶¶ 19–20. Thus, defendants have now

admitted to utilizing campaign funds in a manner that the Court has already found to be a

 

4 Section 30114(b) prohibits individuals from converting campaign funds to personal use. 

52 U.S.C. § 30114(b)(1). The statute specifies that a contribution to a campaign fund “shall be 

considered to be converted to personal use if the contribution . . . is used to fulfill any 

commitment . . . or expense of a person that would exist irrespective of the candidate’s election 

campaign or the individual’s duties as a holder of Federal office.” Id. at § 30114(b)(2).

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violation of the personal use ban of the FECA. See Craig, 933 F. Supp. 2d at 113; see also

Defs.’ Opp. at 2 (“Although defendants maintain that they did not violate the [FECA’s] personal 

use ban, they recognize that the Court’s order denying their motion to dismiss essentially held to 

the contrary.”). On that basis, alone, the Court could grant summary judgment to the FEC.

Nevertheless, defendants contend that the FEC’s motion should be denied because 

“material facts . . . remain in doubt.” Defs.’ Opp. at 2. First, defendants take issue with the 

Commission’s failure, in their view, “to provide a full and accurate depiction of facts material to 

this matter.” Id. at 4. Defendants submit that the FEC has not taken the following facts into 

account: the date on which Senator Craig retained counsel; Senator Craig’s reliance on the 

arresting officer’s assurance that he would not “call media”; Senator Craig’s state of mind 

immediately after his arrest; and Senator Craig’s dispute with the Idaho Statesman newspaper.

Id. at 4–6; see also Defs.’ Statement of Material Facts in Dispute [Dkt. # 19-1] ¶¶ 1–15. But 

even if all of these alleged facts are true, they do nothing to alter the Court’s conclusion that 

defendants’ expenditure of campaign funds in connection with the Minnesota matter violated the 

FECA’s personal use ban. See Craig, 933 F. Supp. 2d at 118 (“Neither the charge nor the 

underlying conduct had anything to do with [Senator Craig’s] performance of his official duties, 

so the legal expenses they generated were not incurred in connection with those duties.”). These 

facts may illuminate why Senator Craig did what he did, but they do not change what he did: the 

Senator’s arrest was personal and the attendant legal expenditures were not incurred in 

connection with his official duties, even if he either elected to plead guilty or to change course

with his public image in mind.

Defendants also claim that there is an issue of material fact with respect to defendants’ 

good-faith reliance on an FEC Advisory Opinion. Defs.’ Opp. at 7, 9–11, citing FEC AO 2006-

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35 (Kolbe), 2007 WL 419188 (Jan. 26, 2007). But the Court has already concluded that any 

reliance by defendants on the Kolbe opinion does not relieve them of liability because the Kolbe 

opinion does not actually support their claims. Craig, 933 F. Supp. 2d at 124 (“[D]efendants’ 

suggestion that the [Kolbe] Advisory Opinion stands for something other than what it said is 

unsupported.”). Although the question of defendants’ good faith may still be relevant to the 

question of punishment and the Court’s determination of the remedy it will impose, see infra 

section III.B.1, it does not alter the Court’s finding that defendants violated section 30114(b).

Next, defendants argue that the Court cannot grant summary judgment for the FEC 

because there is a question of material fact as to the total amount of funds defendants converted 

to personal use. Defs.’ Opp. at 12–13. The Court agrees that the FEC has failed to pinpoint the 

precise dollar amount that defendants unlawfully converted, but that is not a material fact that 

precludes summary judgment. There is no question that defendants unlawfully converted funds

to personal use. Thus, there is no material fact in dispute on the question of defendants’ liability. 

Rather, the dispute centers on the amount of that liability, which the Court will address further 

below.5

 

5 The Court also notes that the lack of clarity surrounding the expenditures in this case is 

attributable to defendants’ own actions. Defendants claim, with justification, that some of their 

legal expenditures qualify for payment with campaign funds under two FEC Advisory Opinions. 

Defs.’ Opp. at 12–13, citing FEC AO 2008-7 (Vitter), 2008 WL 4265321, at *4–5 (Sept. 9, 

2008), and FEC AO 1998-1 (Hilliard), 1998 WL 108618, at *4 (Feb. 27, 1998). But these 

opinions also clearly place the onus on defendants to obtain “billing documentation” that

“provide[s] sufficient details as to the precise legal services rendered” so that there are “adequate 

records to determine which amounts are lawfully payable from campaign funds.” Hilliard, 1998 

WL 108618, at *5; see also Vitter, 2008 WL 4265321, at *5 (outlining the requirement to 

“maintain appropriate documentation”). Defendants did not obtain this detailed documentation, 

or at least they have yet to provide it to the FEC or the Court, even after repeated requests that 

they do so. So, they have no grounds to complain about the FEC’s over-inclusiveness or lack of 

precision, and they did little to carry their burden to establish the amount of the legal expenses 

that qualified for at least partial payment with campaign funds.

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Finally, defendants argue that a recently-released FEC Advisory Opinion indicates that 

they should not be found liable in this case. Defs.’ Opp. at 15, citing FEC AO 2013-11 (Miller),

2013 WL 6022101 (Oct. 31, 2013). But this opinion has no bearing on defendants’ case. The

Advisory Opinion concerns Joe Miller, a former candidate for U.S. Senate in Alaska. During 

Miller’s campaign, certain media outlets sued to obtain personnel records related to his previous 

public employment. Id. at *1. The court found that Miller’s “right to privacy . . . [was] 

outweighed by the public’s significant interest in the background of a public figure that is 

running for U.S. Senate,” and ordered the release of the records. Id. Miller then requested an 

Advisory Opinion from the FEC as to whether his campaign committee could use campaign 

funds to post the cash deposit required to appeal the ruling, “and/or to pay the judgment should 

his appeal be unsuccessful.” Id. at *2. The FEC determined that it was lawful for Miller to use 

campaign funds in this manner because the underlying lawsuit and the verdict would not have 

arisen but for Miller’s status as a candidate for office. Id. at *3. As the FEC explained: “[T]he 

Alaska media outlets’ suit to obtain Miller’s personnel records, as well as the court’s order 

granting that relief, directly related to his federal campaign.” Id.

Defendants claim that “[m]uch like Miller’s decision to fight disclosure of personal 

material that could harm his campaign, Senator Craig’s challenge to his plea stemmed from his 

desire to counter allegations that he believed would be damaging to his public stature as a United 

States Senator and his viability as a future candidate.” Defs.’ Opp. at 15–16. But the Miller 

ruling was not based on the fact that Miller had his public profile in mind; it was based on the 

fact that the lawsuit in which the fees were incurred was occasioned by his status as a candidate 

for office. As the FEC put it, “the lawsuit would not have existed irrespective of Miller’s 

campaign,” 2013 WL 6022101, at *2, and that is simply not the case for the criminal proceedings 

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in Minnesota. Moreover, since the Miller Advisory Opinion was not issued until October 2013, 

there can be no argument that defendants relied on it in good faith to justify expenditures that 

began in 2007.

Thus, the Court finds that defendants have not identified any material facts in dispute as 

to their liability. The Court therefore holds that defendants violated section 30114(b) of the 

FECA by converting campaign funds to the personal use of Senator Craig.

II. Defendants converted $197,535 to personal use in violation of the FECA.

Although the FEC has proven that defendants violated the FECA, neither the FEC nor 

defendants have established the precise amount of funds that defendants unlawfully converted. 

Defendants admitted in their answer that they paid $216,984 in campaign funds to the Sutherland 

and Kelly law firms for “legal services” related to the Minnesota guilty plea. See Answer ¶¶ 19–

20; see also Compl. ¶¶ 19–20. But they contend that $46,464 of that amount was permissible 

under FEC Advisory Opinions that provide that spending on legal services related to media and 

ethics issues can be exempt from the personal use ban. See Defs.’ Supp. Mem. at 1–4, 18. In 

response, the FEC argues that defendants have not carried their burden to establish that any 

portion of the $216,984 was permissibly spent, and it urges the Court to find that the full amount 

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was converted to personal use, or, in the alternative, to apply a flat discount rate of 10 percent,

resulting in a reduction of only $10,856. FEC Resp. at 10–13.6

The Court finds that while defendants have established that some portion of the $216,984 

in campaign funds was permissibly spent, their estimate of that lawful portion is over-inclusive. 

But the FEC’s approach fares no better: it is under-inclusive, imprecise, and disconnected from 

its legal underpinnings. Therefore, the Court has undertaken its own line-by-line analysis of 

defendants’ legal invoices, and it concludes – to the extent it is possible to derive a dollar figure 

– that $19,449 of the $216,984 spent was a permissible use of campaign funds under the 

principles set forth in the FEC’s Hilliard and Vitter Advisory Opinions. See Appendix A 

(detailing the Court’s calculations); see also Ex. 1 to FEC Resp. [Dkt. # 25-1] (the relevant 

invoices).

The Hilliard and Vitter opinions establish that certain legal expenses devoted to media 

relations or responding to ethics inquiries are partially or fully payable with campaign funds.

These opinions are based upon the principle that these sorts of legal expenses would not 

ordinarily be incurred if the client were not a candidate or federal officeholder. See Vitter, 2008 

WL 4265321, at *3–4; Hilliard, 1998 WL 108618, at *4. In the Hilliard opinion, the FEC stated

 

6 It is important to note that the FEC has already excluded significant portions of the 

campaign funds defendants spent in connection with the Minnesota matter from the $216,984 

figure, apparently in keeping with the principles articulated in the Hilliard and Vitter Advisory 

Opinions. Specifically, the $216,984 the Commission seeks to recoup does not include the more 

than $100,000 defendants paid to Impact Strategies, a public relations firm, nor does it include 

the campaign funds paid to the Brand Law Group in connection with its representation of 

Senator Craig in the Senate Ethics Committee inquiry. See FEC Reply at 11 n.10 (noting the 

exclusion of the funds paid to Impact Strategies); Ex. 12 to FEC Reply [Dkt. # 21-1] at 5 (stating 

that defendants retained the Brand Law Group to respond to the Senate Ethics Committee 

inquiry); see also Hr’g Tr. at 7 (explaining that the FEC excluded all payments to Impact 

Strategies and the Brand Law Group). So the order of disgorgement imposed in this opinion 

does not include those expenditures.

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that “any legal expense that relates directly and exclusively to dealing with the press . . . would 

qualify for 100% payment with campaign funds.” 1998 WL 108618, at *4, quoting FEC 

Advisory Opinion 1997-12.7 The Vitter opinion explains that “a candidate’s campaign 

committee [may] pay legal fees incurred in preparing press releases, appearing at press 

conferences, meeting or talking with reporters, reviewing and monitoring media allegations, 

responding to media requests for comment, and conferring with the candidate or officeholder

regarding media allegations.” Vitter, 2008 WL 4265321, at *4 n.2. It also states that campaign 

funds may be used to pay legal fees and expenses incurred in responding to a Senate Ethics 

Committee inquiry, even when the alleged wrongdoing is “unrelated to candidacy and the duties 

of an officeholder.” Id. at *3. Finally, both opinions make it clear that the party claiming that its 

use of campaign funds is permissible has the burden to obtain and retain records that show 

precisely which expenditures qualified for payment with campaign funds. See Hilliard, 1998 

WL 108618, at *5 (stating that a campaign committee is required to obtain “billing 

documentation” from its attorneys that “provide[s] sufficient details as to the precise legal 

 

7 In full, the Hilliard Advisory Opinion provides that: 

1) any legal expense that relates directly and exclusively to dealing with the press, 

such as preparing a press release, appearing at a press conference, or meeting or

talking with reporters, would qualify for 100% payment with campaign funds 

because [the person is] a candidate or Federal officeholder;

2) any legal expense that relates directly to allegations arising from campaign or 

officeholder activity would qualify for 100% payment with campaign funds;

3) 50% of any legal expense not covered by 1 above that does not directly relate 

to allegations arising from campaign or officeholder activity can be paid for with 

campaign funds because [the person is] a candidate or Federal officeholder and 

[is] providing substantive responses to the press (beyond pro forma “no 

comment” statements).

1998 WL 108618, at *4, quoting FEC Advisory Opinion 1997-12 (alteration in original).

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services rendered” so that there are “adequate records to determine which amounts [were] 

lawfully payable from campaign funds”); see also Vitter, 2008 WL 4265321, at *5 (outlining the 

requirement to “maintain appropriate documentation”). 

There is no question that the invoices that defendants submitted to the FEC and to the 

Court include charges for legal services related to both public relations and the Senate Ethics 

Committee inquiry. See, e.g., Ex. 13 to Defs.’ Opp. [Dkt. # 19-15] at “Craig 36” (“Research and 

review draft Press Release.”); id. at “Craig 59” (“Teleconference regarding Senator ethics issues; 

discussion with ethics counsel.”). But defendants’ legal invoices utilize a “block” billing style, 

where multiple tasks performed are grouped together within undifferentiated blocks of time. 

See, e.g., Ex. 1 to FEC Resp. at “Craig 34” (reflecting charges for 5.10 hours of work described 

as follows: “Revise motion to withdraw guilty plea and supporting affidavit. Discuss same with 

B. Martin and K. Verdi. Various calls with Senate staff . . . [and] with T. Kelly regarding legal 

issues associated with motion. Various calls with J. Smith and staff regarding publicity issues 

associated with motion.”). Thus, defendants did not fulfill their obligation to retain “adequate 

records” so that the Court or the FEC can “determine which amounts [were] lawfully payable 

from campaign funds.” Hilliard, 1998 WL 108618, at *5.8

Still, the Court gave defendants one more chance to make this showing. After hearing 

oral argument on the FEC’s motion for summary judgment, the Court ordered defendants to 

submit a supplemental pleading “itemizing and quantifying all of the legal expenses included in 

any of the bills submitted . . . by Kelly & Jacobson and Sutherland, Asbill and Brennan that they 

 

8 Moreover, although the FEC expressly asked defendants to identify campaign funds used 

to pay legal fees related to media inquiries, defendants declined to do so. See FEC Reply at 11; 

see also Ex. 13 to FEC Reply [Dkt. # 21-2] at 3 (FEC questionnaire asking defendants to “[s]tate 

the total amount of Craig for U.S. Senate funds that were disbursed to pay legal fees . . . to 

respond to media inquiries”); Ex. 14 to FEC Reply [Dkt. # 21-3] at 1 (letter from defendants’ 

counsel stating that defendants “decline to respond directly to [the FEC’s] questions”). 

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 15 of 41
16

contend were permissible under [the Hilliard and Vitter] FEC Advisory Opinions.” July 17, 

2014 Minute Order. The Court further instructed that “[d]efendants’ submission should 

separately identify each entry by date and by attorney and indicate the amount of time involved 

and the specific dollar amount they claim constituted an appropriate use of campaign funds.” Id. 

Defendants submitted a pleading on August 15, 2014, and the FEC submitted its response on 

August 29, 2014. See Defs.’ Supp. Mem.; FEC Resp. 

The Court finds that defendants have still failed to establish what portion of their legal 

bills was permissibly paid with campaign funds under the standards articulated in the Hilliard 

and Vitter opinions. Rather than complying with the Court’s instruction to identify the specific 

amounts of time spent on activities that might constitute an appropriate use of campaign funds,

defendants simply discounted entries containing a mix of exempt and non-exempt activities by a

flat and unduly generous 50 or 25 percent. For instance, defendants applied a 50 percent 

discount to 7.5 hours billed by the Sutherland firm for the following: 

Attend to finalizing motion to withdraw guilty plea and affidavit. Additional 

research regarding same. Discuss same . . . . Various calls with Senate staff 

regarding legal issues associated with motion to withdraw guilty plea. Various 

calls with [public relations consultant Judy] Smith regarding legal and publicity 

issues associated with motion to withdraw guilty plea . . . .

See Defs.’ Supp. Mem. at 7. There is no apparent factual basis for applying the 50 percent 

discount to this entire entry; defendants should have applied any discount only to the portion of 

the time that was spent on the calls with the public relations consultant concerning “legal and 

publicity issues.” In another instance, defendants discounted by 50 percent the 9.9 hours of legal 

work by the Sutherland firm described in the following block entry: 

Numerous conference recalls [sic] regarding political and legal issues regarding 

Minneapolis incident. Confer with local counsel regarding Minneapolis 

proceedings. Review police report and other documents regarding Minneapolis 

proceedings.

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17

See id. at 6. But the only portion of that entry that is even arguably media or ethics related is the 

first sentence about the conference calls; the remaining two sentences of the entry describe work 

that is purely legal.9 Defendants’ submission is replete with entries like these, and it falls far 

short of compliance with the Court order entered for their own benefit.10 The Court therefore 

rejects defendants’ contention that $46,464 of the campaign funds disbursed to the two law firms 

was exempt from the personal use ban.11

The FEC argues that in light of defendants’ failure to document the expenditures that 

should be exempt from the personal use ban, the Court should either consider the full $216,984 

to have been converted to personal use, or apply a flat discounting rate of 10 percent. FEC Resp. 

 

9 Defendants themselves acknowledged the mixed nature of these billing entries in their 

pleading by highlighting only certain sentences of the entries in yellow. See Defs.’ Supp. Mem. 

at 5–17.

10 See, e.g., Defs.’ Supp. Mem. at 12 (applying 50 percent discount to 2.10 hours billed by 

Kelly & Jacobson for the following: “Attend to various public relations issues. Research 

procedures for filing notice of appeal. Discuss same with T. Kelly.”); id. at 16 (applying a 25 

percent discount rate to the following billing entry from Kelly & Jacobson: “Redraft and finalize 

oral argument; Telephone conferences with counsel for the defense; Review of cases; 

Preparation for oral argument with counsel for the defense; Court – Appellate Hearing; Debrief 

with co-counsel; Post-hearing press conference.”). 

11 Defendants also contend that legal fees associated with “the attorneys’ consultations with 

staff members in Senator Craig’s office, a meeting with another United States Senator, 

addressing a Senate Committee on Appropriations issue and addressing FEC disclosure 

concerns” qualified for payment with campaign funds because these activities constituted 

“consultations with the Senator and his advisors” under the Vitter Advisory Opinion. Defs.’ 

Supp. Mem. at 2; see also id. at 5–17 (reflecting numerous deductions for “political” expenses). 

But the Vitter opinion exempts only those “consultations” that involved “Ethics Counsel” and “a 

public relations professional.” See 2008 WL 4265321, at *3 (authorizing the use of campaign 

funds to “pay legal fees for Subpoena Counsel’s consultations with Ethics Counsel”); id. at *4 

(authorizing the use of campaign funds to pay “legal fees and expenses incurred by Subpoena 

Counsel in press relations . . . including . . . consultations with a public relations professional”).

Defendants’ claim that it was permissible to use campaign funds to pay for legal expenses 

broadly related to “political” issues is an unwarranted expansion of the principles established in 

the Vitter opinion for which defendants have offered no legal authority. 

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at 10–12. The FEC’s proposed approach would result in a discount of zero or $10,856. Id. at 13.

But although defendants’ legal invoices are not sufficiently specific, and although defendants 

have been maddeningly cavalier in responding to both the FEC’s and the Court’s inquiries, the 

Court is bound to follow the law, and the bills are not so vague that the Court cannot do a better 

job than that in calculating the exempt amount.

The Court undertook its own evaluation of the invoices provided by the parties, and it

determined that of the $216,984 at issue here, defendants permissibly spent approximately 

$19,449 in campaign funds on media or ethics related legal services. See Appendix A. The

Court’s review of the invoices from the Sutherland and Kelly law firms revealed forty-nine 

entries that included at least some legal work related to public relations or ethics matters. The 

Court found that fourteen of these entries described work that was fully payable with campaign 

funds and that the remaining thirty-five entries billed for a mix of tasks that were only partially 

exempt from the personal use ban. Given the undifferentiated nature of the data, the Court used 

its best judgment to estimate the amount of time spent on the exempt activities, multiplied those 

hours by the relevant attorneys’ rates, and deducted that amount from the full $216,984 that 

defendants have admitted they paid to the Kelly and Sutherland firms. Through this process, the 

Court determined that defendants spent $19,449 on legal services related to media or ethics 

concerns, and that defendants converted the remaining $197,535 to personal use in violation of 

the FECA.12 A chart setting forth the Court’s calculations in detail is available as Appendix A to 

this Memorandum Opinion.

 

12 Any imprecision in the math is attributable to the quality of the information provided by 

the defendants. 

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III. The Court will order Senator Craig to pay $242,535 to the U.S. Department of the 

Treasury and will issue a declaration that defendants violated section 30114(b).

Now that the Court has found that defendants converted $197,535 in campaign funds to 

personal use, it must determine the appropriate remedy for defendants’ violation of the FECA. 

The Court’s judgment in this case will be the first of its kind; it appears that no other court has 

been asked to determine the remedy for a violation of the particular section of the FECA 

involved here.

The FEC asks the Court to: (1) order Senator Craig to disgorge the full amount of funds 

converted to personal use; (2) levy a $70,000 civil penalty against Senator Craig; (3) levy a 

$70,000 civil penalty against the Craig Committee; (4) issue a declaration that defendants 

violated the Act; and (5) order a permanent injunction against all defendants that prohibits them 

from violating the Act in the future. FEC Mot. at 14. Defendants contend that the FEC’s request 

for both a disgorgement and civil penalties is excessive and unwarranted, and that injunctive 

relief is not appropriate in this case.13 Defs.’ Opp. at 2, 4. In an exercise of its broad discretion 

to fashion a remedy for a violation of the FECA, the Court will order Senator Craig to pay 

$242,535 to the U.S. Treasury, which is the sum of a disgorgement of $197,535 and a penalty of 

$45,000. The Court will also issue the declaratory relief that the FEC requests. But the Court 

does not find that injunctive relief is appropriate in this case, nor will it order the Craig 

Committee to pay a penalty.

 

13 Defendants do not, however, oppose the FEC’s request for declaratory relief. See Defs.’ 

Opp. at 16.

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A. The Court has broad discretion to fashion a remedy under the FECA.

The FECA provides that a court

may grant a permanent or temporary injunction, restraining order, or other order, 

including a civil penalty which does not exceed the greater of [$7,500]14

or an 

amount equal to any contribution or expenditure involved in such violation, upon 

a proper showing that the person involved has committed, or is about to commit 

(if the relief sought is a permanent or temporary injunction or a restraining order), 

a violation of this Act . . . .

52 U.S.C. § 30109(a)(6)(B). Despite defendants’ claim that “no authority justifies [the FEC’s] 

request for both disgorgement and sizable civil penalties,” Defs.’ Opp. at 2, the plain language of 

the Act accords the Court the discretion to call for disgorgement (an “other order”), a penalty, the 

declaration, and the injunctions that the FEC seeks.15

Moreover, the cases addressing violations of other provisions of FECA all suggest that 

the Court has broad discretion to fashion a remedy that is appropriate to the particular 

circumstances of this case. See, e.g., FEC v. Furgatch, 869 F.2d 1256, 1258, 1262, 1264 (9th 

Cir. 1989) (imposing a penalty of $25,000 where the defendant willfully and knowingly failed to 

report and disclose $25,008 in independent expenditures, and suggesting that a temporary 

injunction would be appropriate because the defendant was likely to commit further violations); 

FEC v. Ted Haley Cong. Comm., 852 F.2d 1111, 1115–17 (9th Cir. 1988) (deferring to the 

FEC’s interpretation of the FECA but affirming the district court’s decision not to impose 

approximately $85,000 in civil penalties because the defendants had acted in good faith); FEC v. 

Comm. of 100 Democrats, 844 F. Supp. 1, 7–8 (D.D.C. 1993) (holding that the defendants’

willful violation of two FEC conciliation agreements warranted civil penalties, an order to repay

 

14 As of July 24, 2013, this amount was increased from $5,000 to $7,500 to adjust for 

inflation. 11 C.F.R. § 111.24(a)(1). 

15 Notably, at the hearing on the FEC’s motion, counsel for defendants conceded that the 

Court “ha[s] discretion to impose the penalty that [it] see[s] fit.” Hr’g Tr. at 39.

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 20 of 41
21

$3,500, and an injunction against future violations); FEC v. Kalogianis, No. 8:06-cv-68-T23EAJ, 2007 WL 4247795, at *6–8 (M.D. Fla. Nov. 30, 2007) (declining to award the maximum 

penalty or a permanent injunction for the defendant’s reporting failures and then-unlawful 

acceptance of corporate contributions where the defendant had acted in good faith, any injury to 

the public was “remote and circumscribed,” and there was “no indication . . . that [the defendant

was] likely to violate the Act again”); FEC v. Friends of Jane Harman, 59 F. Supp. 2d 1046, 

1057, 1059 (C.D. Cal. 1999) (declining to award a penalty, disgorgement, or injunction where 

the case “involve[d] a detailed analysis of complex statutes and regulations,” the defendants’ 

violations were not “substantial nor obvious,” the Harman campaign no longer existed, and 

Representative Harman was no longer in office).

In addition, several FEC conciliation agreements provide for relief similar to the relief the 

FEC requests in this case; that is, some combination of penalties, disgorgement, refunds, and 

injunctions. See, e.g., Istook Conciliation Agreement at 5–7 (Sept. 25, 2008)16 (assessing a civil 

penalty of $14,600, requiring the disgorgement of excessive contributions and the refund of 

funds converted to personal use, and ordering defendants to “cease and desist” violations of the 

FECA); Kalyn Free for Congress Conciliation Agreement at 7 (Sept. 23, 2008)17 (assessing a 

civil penalty of $10,000, requiring a refund by the candidate to the campaign committee, and 

ordering defendants to “cease and desist” violations of the FECA); Meeks for Congress 

Conciliation Agreement at 6–7 (Feb. 4, 2008)18 (assessing a civil penalty of $63,000 against the 

campaign committee, requiring a refund and disgorgement of other funds, and ordering 

 

16 Available at http://eqs.fec.gov/eqsdocsMUR/28044212385.pdf.

17 Available at http://eqs.fec.gov/eqsdocsMUR/28044212013.pdf.

18 Available at http://eqs.fec.gov/eqsdocsMUR/000EC959.pdf.

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22

defendants to “cease and desist” violations of the FECA); Campbell for Senate Conciliation 

Agreement at 3–4 (Oct. 31, 2003)19 (assessing a civil penalty of $79,000, requiring a refund of 

up to $104,434 in excess contributions, and ordering defendants to “cease and desist” violations 

of the FECA).

Thus, based on the language of the FECA, the case law, and the FEC’s own conciliation 

agreements, the Court concludes that it has broad discretion to impose a remedy that it deems 

appropriate under the specific circumstances of this case.

B. The Court will order Senator Craig to pay $242,535 to the U.S. Department of the 

Treasury.

The Court will require defendant Craig to pay $242,535, which is comprised of a

disgorgement of the $197,535 the Court has determined that defendants converted to personal 

use, plus a penalty of $45,000. The $242,535 is to be paid to the U.S. Department of the 

Treasury. 

The Court finds that the disgorgement order is necessary to avoid the unjust enrichment 

of Senator Craig, and to “deprive the wrongdoer of his ill-gotten gain.” SEC v. Bilzerian, 29 

F.3d 689, 697 (D.C. Cir. 1994). Moreover, even defendants do not dispute that they should be 

required to repay an amount equal to the funds they converted to personal use. See Defs.’ Opp. 

at 16 (“If the Court does find a violation of the personal use ban, then . . . the penalty should be 

no greater than the amount the Commission can establish was improperly spent solely on legal 

issues relating to the Minnesota case.”). Therefore, the Court finds that a disgorgement is 

warranted in this case.

The Court further finds that a penalty over and above the disgorgement is also 

appropriate given the seriousness of the violation here. Although the D.C. Circuit has not

 

19 Available at http://eqs.fec.gov/eqsdocsMUR/000006E2.pdf.

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23

articulated any standards to guide the Court’s discretion in imposing a penalty, courts in this 

district and elsewhere have turned to the factors articulated by the Ninth Circuit in Furgatch.

See 869 F.2d at 1258; see also Comm. of 100 Democrats, 844 F. Supp. at 7 (applying Furgatch

factors); FEC v. Am. Fed. of State, Cnty., & Mun. Employees—P.E.O.P.L.E. Qualified, No. 88-

3208 (RCL), 1991 WL 241892, at *2 (D.D.C. Oct. 31, 1991) (same); Kalogianis, 2007 WL 

4247795, at *6 (same). The Court will do the same.

In Furgatch, the Ninth Circuit looked to the following factors to determine whether a 

civil penalty was appropriate: “(1) the good or bad faith of the defendants; (2) the injury to the 

public; (3) the defendant’s ability to pay; and (4) the necessity of vindicating the authority of the 

responsible federal agency.” 869 F.2d at 1258, citing United States v. Danube Carpet Mills, Inc.,

737 F.2d 988, 993 (11th Cir. 1984). The FEC also asks the Court to consider the need to deter 

and punish serious violations of the FECA. See FEC Mem. at 18. The Court finds that all of 

these factors and considerations are relevant and, taking them together, that a penalty is 

appropriate in this case.

1. The good or bad faith of defendants.

The facts and circumstances of this case do not suggest that defendants have acted in 

particularly good or particularly bad faith. Defendants reiterate the claim that they relied in good 

faith on the FEC’s Kolbe for Congress Advisory Opinion. Defs.’ Opp. at 2, 23–24. Defendants 

also contend that they tried in good faith to comply with the requirements of FECA, noting in 

particular that their unlawful expenditures were authorized by counsel and disclosed to the FEC.

See Defs.’ Opp. at 2–3. And defendants argue that when the Senate Ethics Committee 

authorized Craig to set up a legal defense fund and trust, it “necessarily acknowledged that 

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 23 of 41
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Senator Craig’s legal expenditures ‘relate to or arise by virtue of the service of the Member.’” 

Id. at 3.20

Defendants’ arguments are largely unavailing. First, the Court has already held that any 

reliance by defendants on the Kolbe decision was misplaced. Craig, 933 F. Supp. 2d at 113. At 

the motion to dismiss stage, defendants claimed their reliance on the Kolbe opinion exempted 

them from sanctions under the FECA. See id. at 120; see also 52 U.S.C. § 30108(c)(1)(B)–(c)(2)

(stating that an individual who relies in good faith upon an FEC advisory opinion involving 

activity that “is indistinguishable in all its material aspects” from his or her own activity “shall 

not, as a result of any such act, be subject to any sanction provided by th[e] Act”). The Court 

observed that the Kolbe opinion was distinguishable, and, more important for these purposes,

that defendants had ignored its “clear admonitory language.” Craig, 933 F. Supp. 2d at 113.

The Court also rejected defendants’ argument that the record underlying the Kolbe opinion 

supported their claims. Id. at 122–24.

Now, defendants again point to the record underlying the Kolbe opinion as evidence that 

they relied on that opinion in good faith. Defs.’ Opp. at 10–11. While it may be true that there is 

“[n]o bar . . . on [defendants’] use of the [Kolbe] record to establish good faith reliance” at the 

penalty stage of the case, Defs.’ Opp. at 11, the Court has already concluded that the Kolbe 

record does not support defendants’ arguments. See Craig, 933 F. Supp. 2d at 124. 

Furthermore, defendants’ purported evidence of their longstanding reliance on the Kolbe opinion 

– a letter from Senator Craig’s counsel to the Senate Ethics Committee in November, 2007 –

 

20 Defendants further contend that the issue of good faith is a question of fact that “is 

ordinarily a question for the jury” and that summary judgment is inappropriate at this time. 

Defs.’ Opp. at 9, quoting Landrum v. Moats, 576 F.2d 1320, 1329 (8th Cir. 1978). But the Court 

has already determined as a matter of law that defendants violated section 30114(b), and the 

question of their good or bad faith goes only to the remedy that the Court will impose.

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only indicates that defendants relied on the Kolbe opinion as authority for spending campaign 

funds on representation before the Senate Ethics Committee, which is not included in the 

$197,535 the Court has found defendants wrongfully converted to personal use. See Defs.’ Opp. 

at 9; see also Ex. 6 to Defs.’ Opp. [Dkt. # 19-8] at 6–9. Any reliance on the Kolbe opinion to 

authorize that spending is therefore irrelevant to the question of what penalty the Court should 

impose.

It is true, though, that defendants reported the expenditures at issue in this case to the 

FEC as required by law, and that the Senate Ethics Committee permitted Senator Craig to 

establish a legal defense fund and trust. But as with the Kolbe Advisory Opinion, defendants 

disregard the stern admonition contained in the Senate Ethics Committee’s letter of approval:

“the Committee’s approval of the Fund and of the trust agreement does not indicate approval of 

your continuation of the proceedings in State of Minnesota v. Larry Edwin Craig.” Ex. 9 to 

Defs.’ Opp. at 2. The letter further states: “The Committee also reminds you that it has not 

approved your use of campaign funds for the payment of legal expenses in connection with this 

proceeding, noting in its Public Letter of Admonition that ‘[i]t appears that some portion of these 

expenses may not be deemed to have been incurred in connection with your official duties.’” Id.

at 3. Given these express admonitions, it is difficult to understand how defendants can claim that 

the Senate Ethics Committee “acknowledged that Senator Craig’s legal expenditures ‘relate to or 

arise by virtue of the service of the Member.’” Defs.’ Opp. at 3.

It is undisputed that defendants sought advice from counsel as to whether they could 

lawfully expend campaign funds in connection with Senator Craig’s legal matters in Minnesota, 

and that counsel took the position that the expenditures were authorized. See Ex. 5 to FEC Mot.

[Dkt. # 16-5] at 1 (letter from counsel to Senator Craig dated October 4, 2007 stating, “it is our 

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 25 of 41
26

conclusion that you may utilize campaign funds to pay for all of your legal expenses relating to 

this matter”). Throughout their opposition brief, defendants repeatedly claim that their reliance 

on the advice of counsel indicates that they acted in good faith. See, e.g., Defs.’ Opp. at 2 

(“Senator Craig sought the advice of counsel and made the expenditures only after receiving 

authorization from counsel.”); id. at 7 (“Based on the legal advice, defendants were confident 

that the use of campaign funds for these expenditures was legal and customary. Indeed, they 

would not have made the committee expenditures had they not received authorization from 

counsel.”); id. at 19 (citing reliance on advice of counsel as evidence of defendants’ “good faith 

efforts to comply with the Act”); id. at 20 (same); id. at 23 (same).

But whether or not defendants would have made the expenditures at issue in this case 

without counsel’s approval, defendants have been on notice since at least February 13, 2008 that 

their expenditures might not comport with the law. See Ex. 7 to Defs.’ Opp. at 1–2 (public letter 

of admonition from Senate Ethics Committee dated Feb. 13, 2008 stating “[i]t appears that some 

portion of these expenses may not be deemed to have been incurred in connection with your 

official duties, either by the Committee or by the Federal Election Commission”). Defendants 

persisted in expending campaign funds on the Minnesota lawsuits for several more months, 

despite this warning. See, e.g., Ex. 1 to FEC Mot. at “Craig 75” (legal invoice from the Kelly 

law firm for legal services provided between April 1, 2008 and September 15, 2008). And 

defendants decided to forego what would have been a significant demonstration of good faith 

and declined to request an advisory opinion from the FEC about their spending before disbursing 

the funds. FEC Mem. at 26.

In sum, the Court finds that the evidence of defendants’ good or bad faith in this case 

points in both directions: defendants ignored clear admonitions against their use of campaign 

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27

funds and declined to seek an advisory opinion from the FEC, but they also relied on the advice 

of counsel and disclosed all of their spending. Thus, the Court concludes that the factor that 

takes defendants’ “faith” into consideration was largely neutral, and it neither aggravates nor 

mitigates the penalty the Court will impose. 

2. The injury to the public, the necessity of vindicating the FEC’s authority, and the 

need to deter and punish violations of the FECA.

The Court finds that these factors weigh in favor of imposing a penalty in this case.

First, although the injury to the public caused by defendants’ misappropriation of campaign 

funds is difficult to discern, “there is always harm to the public when FECA is violated.” 

P.E.O.P.L.E. Qualified, 1991 WL 241892, at *2. It is also reasonable to conclude that 

defendants’ actions caused harm to the contributors to the Craig Committee, who presumably 

intended that their donations be used for lawful, campaign-related purposes. Moreover, a penalty 

here would certainly vindicate the authority of the FEC and strengthen its ability to enforce the 

FECA’s personal use ban in the future.

In addition, the FEC argues that a penalty is necessary to deter similar violations and to 

punish defendants, noting that the purpose of a civil penalty is “to punish culpable individuals,” 

not just to “restore the status quo.” FEC Reply at 13, quoting Tull v. United States, 481 U.S. 

412, 422 (1987). Defendants counter that there is no need for deterrence or additional 

punishment in this case because they, and especially Senator Craig, have already paid a high 

price for their actions. Defs.’ Opp. at 20–21. But defendants’ view of deterrence is too narrow: 

a penalty would deter not only future misconduct by these defendants, but also the

misappropriation of campaign funds by others. Therefore, the Court finds that these 

considerations all weigh in favor of imposing a penalty in this case.

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3. The defendants’ ability to pay.

Despite defendants’ protestations to the contrary in their opposition brief, defendants’ 

counsel acknowledged at oral argument that Senator Craig has the ability to pay the full 

$216,984 disgorgement plus the $70,000 penalty that the FEC seeks. Hr’g Tr. at 48–4921 (“It 

would not be our position that [Senator Craig] could not afford to pay.”). Therefore, there is no 

question that Senator Craig can also pay the reduced total that the Court will impose. But 

defendant the Craig Committee has “now spent virtually all its funds,” and would have no ability 

to pay its own penalty. See FEC Mem. at 17 n.12. 

4. The Court’s analysis.

The Court finds that all of the Furgatch factors are either neutral or weigh in favor of 

imposing a penalty. This is not a case like Furgatch, where the defendant plainly acted in bad 

faith and refused to report the unlawful expenditures, which warranted a penalty equal to the 

amount of the violation. See 869 F.2d at 1259. On the other hand, this is also not a case like Ted 

Haley, where the court assessed no penalty because the statute and regulations were unclear, the 

defendants acted in good faith, and the defendants quickly remedied their unintentional 

violations. See 852 F.2d at 1116–17. Some penalty, therefore, is called for.

But the Court does not agree that defendants’ violation warrants the full $140,000 

penalties the FEC seeks on top of an order of disgorgement. The FEC states that it requested 

penalties in the amount of $70,000 for defendants Craig and the Craig Committee because the

sum must be sufficient to deter and punish violations of section 30114(b) without being overly 

punitive. See FEC Mem. at 18. At oral argument, counsel for the FEC noted that penalties that 

 

21 All citations to the transcript of the hearing on the FEC’s motion for summary judgment 

are to the unofficial transcript.

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are too low are ineffective, since they “threaten[ ] to become something equivalent to interest on 

a loan payment for the immediate use of campaign funds.” Hr’g Tr. at 16.

This argument has some force, but in the court’s view, the proposed $140,000 penalty 

would be excessive given all of the facts and circumstances, including the amount that was 

diverted. The Court notes that the total penalty requested here exceeds the assessment in most of 

the conciliation agreements that the FEC cites in its pleadings. See, e.g., Campbell for Senate 

Conciliation Agreement at 3–4 (Oct. 31, 2003) (assessing civil penalty of $79,000 where 

violation was not willful or knowing and requiring refund of up to $104,434 in excess 

contributions); Meeks for Congress Conciliation Agreement at 8 (Feb. 4, 2008) (assessing civil 

penalty of $63,000 against campaign committee and ordering refund and disgorgement of other 

funds). But see America Coming Together Conciliation Agreement at 11–12 (August 24, 

2007)22 (assessing civil penalty of $775,000 where organization had misreported and misspent 

“millions of dollars” in funds but had agreed to wind down its affairs). Therefore, in an exercise 

of the Court’s discretion, and in consideration of all the factors presented in this case, the Court 

will order a penalty in the amount of $45,000, which is between 20 and 25 percent of the amount 

diverted to Senator Craig’s personal use. The Court finds this civil penalty to be sufficient but 

not greater than necessary and it will be added to the $197,535 disgorgement for a total order of 

$242,535.

Furthermore, the Court will not order that any funds be disgorged to the Craig 

Committee,23 nor will it impose a penalty on the Craig Committee, as the FEC requests. At oral 

 

22 Available at http://eqs.fec.gov/eqsdocs/000061A1.pdf.

23 The parties agreed that any disgorged funds should be repaid to the Craig Committee. 

FEC Mem. at 17; Defs.’ Opp. at 24 n.19. But the FEC proposed in the alternative that the funds 

be paid to the U.S. Department of the Treasury. FEC Mem. at 17 n.12.

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argument, the FEC acknowledged that the Craig Committee is essentially defunct; Senator Craig 

has no plans to run for office again, and he is the Committee’s only staff member. Hr’g Tr. at 

14; see also id. at 19 (reflecting FEC counsel’s statement that “the Committee at this point seems 

to be a shell”). So a disgorgement from Senator Craig to the Committee would essentially move 

the funds from one pocket to another, and then he would be solely responsible for the proper 

disposition of the funds. Moreover, counsel for the FEC was “not sure” whether it was possible 

to identify and repay any of the donors whose funds defendants converted to personal use on

some sort of pro rata basis. Id. at 11. And, again, without the disgorgement, the Craig 

Committee has essentially no money. See FEC Mem. at 17 n.12. So if the Senator repaid the 

Committee and it was ordered to pay a penalty, the outcome would be the same as under the 

terms of the Court’s order.

Under these circumstances, where the Craig Committee is little more than an alter-ego for 

Senator Craig himself, the Court finds that any disgorgement of funds to the Committee would 

be little more than an empty gesture and a logistical headache. So, the Court will simply order 

Senator Craig to pay both the $197,535 disgorgement and the $45,000 penalty to the U.S. 

Department of the Treasury.

C. The Court will issue declaratory relief.

The FEC asks the Court to declare that defendants violated the FECA by converting 

campaign funds to personal use. Defendants do not object to this request beyond their general 

contention that they did not break the law. As the Court has already determined that defendants 

did, indeed, violate section 30114(b) by converting campaign funds to the personal use of 

Senator Craig, the Court will issue the declaration that the FEC seeks.

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 30 of 41
Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 31 of 41
32

APPENDIX A

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

9/28/

2007

K.H. 

Sinclair

Attend to public relations 

issues regarding motion to 

withdraw guilty plea. Call 

with C. Garrett (Impact 

Strategies) regarding same. 

Review draft q&a regarding 

same.) 1.10 1.10 $355 $390.50

Craig 

311

Sutherland, 

Asbill, & 

Brennan

9/29/

2007

K.H. 

Sinclair

Attend to public relations 

issues related to ACLU 

involvement in motion to 

withdraw guilty plea. Call to 

M. Ware regarding same. 0.20 0.20 $355 $71.00

Craig 

31

Sutherland, 

Asbill, & 

Brennan

9/17/

2007

K.H. 

Sinclair

Confer with local counsel 

regarding upcoming hearing. 

Miscellaneous calls with press 

staff and staff of Senator Craig 

regarding legal and media 

issues pertaining to motion to 2.10 0.50 $355 $177.50

Craig 

32

 

1 The relevant legal invoices are numbered “Craig 30” to “Craig 90.” See Ex. 1 to 

FEC Resp.

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 32 of 41
33

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

withdraw guilty plea. Review 

ACLU amicus brief.2

Sutherland, 

Asbill, & 

Brennan

9/18/

2007

K.H. 

Sinclair

Various calls with M. Ware, J.

Smith,

3 T. Kelly regarding 

upcoming hearing on motion 

to withdraw guilty plea. 

Confer with L. Craig regarding 

same. Review ACLU amicus 

brief. Attend to miscellaneous 

legal and medial [sic] issues

regarding same. 1.10 0.50 $355 $177.50

Craig 

32

 

2 The American Civil Liberties Union (“ACLU”) filed briefs of amicus curiae in 

support of Senator Craig’s efforts to withdraw his guilty plea, and the invoices reflect that 

his lawyers devoted some time to reviewing those submissions. Defs.’ Supp. Mem. at 2. 

Defendants argue that legal expenditures relating to the ACLU’s filings should be 

payable with campaign funds because, if Senator Craig had not been an officeholder, 

there would not have been public interest in the case, and the ACLU would not have been 

prompted to become involved. Id. The FEC did not contest defendants’ use of campaign 

funds for expenses related to the ACLU pleadings. See, e.g., FEC Resp. at 13 (indicating 

the FEC’s view that ACLU-related expenses were not “personal use” by highlighting in 

yellow the portion of a billing entry that refers to the ACLU); id. at 15 (same); id. at 16 

(same). But the ACLU’s pleadings addressed only the claimed overbreadth of the 

criminal statute to which the Senator entered his guilty plea, and privacy concerns raised 

by prosecuting individuals for personal conduct within the confines of a restroom stall. 

See Br. for ACLU, et al., as Amici Curiae in Supp. of Def. Craig, State of Minnesota v. 

Craig, No. 07043231, 2007 WL 2892651 (Minn. Dist. Ct. Oct. 4, 2007). None of this 

had anything to do with the Senator’s status as an officeholder, and the defense lawyers’ 

review of the amicus briefs was simply part of their representation of Craig in connection 

with what the Court has already concluded was a personal matter. Those expenses were 

not incurred in connection with Senator Craig’s duties as an officeholder, and neither 

Hilliard nor Vitter – which were limited to lawyers’ media and ethics efforts – goes so far 

as to cover this purely legal work.

3 J. Smith is Judy Smith, a media relations consultant with Impact Strategies. See 

Defs.’ Supp. Mem. at 4. The Court has deemed entries reflecting Ms. Smith’s 

involvement to be at least partially exempt from the personal use ban under the principles 

set forth in the Hilliard and Vitter Advisory Opinions.

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 33 of 41
34

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

9/20/

2007

K.H. 

Sinclair

Telephone call with L. Craig

regarding upcoming hearing 

and factual details surrounding 

conversations with 

prosecutors. Call with M. 

Ware regarding case status. 

Meet with L. Craig, M. Ware 

regarding case status. Brief 

Senator A. Specter regarding 

case status. Travel to and from 

same. Various calls with T. 

Kelly, J. Smith regarding 

procedural issues. Review

Motion to strike ACLU amicus 

brief. 5.20 1.00 $355 $355.00

Craig 

32

Sutherland, 

Asbill, & 

Brennan

9/21/

2007

K.H. 

Sinclair

Review motion to strike 

ACLU amicus brief. Draft 

waiver of appearance. Discuss 

same with T. Kelly, L. Craig. 

Discuss various publicity 

issues with J. Smith, C. 

Garrett. Discuss motion to 

strike ACLU brief with B. 

Martin. 2.10 0.50 $355 $177.50

Craig 

32

Sutherland, 

Asbill, & 

Brennan

9/24/

2007

K.H. 

Sinclair

Prepare for hearing on motion 

to withdraw guilty plea. 

Various calls with J. Smith, T. 

Kelly, M. Ware, L. Craig 

regarding upcoming hearing. 

Confer with B. Martin 

regarding motion. Review 

government response to 

motion to withdraw guilty 

plea. Review case law 

regarding same. 4.60 0.50 $355 $177.50

Craig 

32

Sutherland, 

Asbill, & 

Brennan

9/9/

2007

K.H. 

Sinclair

Finalize motion. Discuss same 

with B. Martin. Research on 

ethics and procedural rules 

regarding media. Discussion 

with L. Craig regarding 

motion. Calls with M. Ware 

regarding motion. Discussion 

of final edits to motion with T. 

Kelly. 7.50 2.00 $355 $710.00

Craig 

33

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 34 of 41
35

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

9/10/

2007

K.H. 

Sinclair

Various calls with J. Smith,

M. Ware, L. Craig, T. Kelly

regarding case status and

strategy. Attend to issues

relating to filing of motion to 

withdraw guilty plea. Review 

rules regarding same. 2.30 0.50 $355 $177.50

Craig 

33

Sutherland, 

Asbill, & 

Brennan

9/11/

2007

K.H. 

Sinclair

Various calls with M. Ware, L. 

Craig, J. Smith, T. Kelly, B. 

Martin regarding legal and 

media issues related to motion 

to withdraw guilty plea. 1.60 0.50 $355 $177.50

Craig 

33

Sutherland, 

Asbill, & 

Brennan

9/12/

2007

K.H. 

Sinclair

Various calls with J. Smith,

M. Ware, B. Martin, T. Kelly 

regarding case filing. Review 

draft of ACLU brief. Attend to 

issues related to scheduling 

hearing. 2.20 0.50 $355 $177.50

Craig 

33

Sutherland, 

Asbill, & 

Brennan

9/13/

2007

K.H. 

Sinclair

Various calls with T. Kelly, J. 

Smith regarding legal and 

media issues related to motion 

to withdraw guilty plea and 

upcoming hearing. Review 

ACLU arguments related to 

constitutional law. 1.40 0.50 $355 $177.50

Craig 

33

Sutherland, 

Asbill, & 

Brennan

9/14/

2007

K.H. 

Sinclair

Various calls with M. Ware, J. 

Smith, B. Martin, T. Kelly 

regarding upcoming hearing on 

motion to withdraw guilty plea 

and related media issues.

Review media documents and 

revise same. Transmit same to 

M. Ware and D. Whiting. 3.00 1.00 $355 $355.00

Craig 

33

Sutherland, 

Asbill, & 

Brennan

9/4/

2007

K.H. 

Sinclair

Consult with client regarding 

case strategy and costs and

benefits of motion to withdraw 

plea. Research and draft 

motion to withdraw guilty 

plea. Discuss same with B. 

Martin. Various calls with 

Senate staff regarding public 

relations and legal issues. 

Various discussions with J. 4.50 1.00 $355 $355.00

Craig 

34

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 35 of 41
36

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Smith regarding legal issues.

Sutherland, 

Asbill, & 

Brennan

9/5/

2007

K.H. 

Sinclair

Draft and revise motion to

withdraw guilty plea. Discuss 

same with B. Martin. Various 

calls to Senate staff regarding 

legal and political issues 

associated with motion. 

Various calls with J. Smith 

regarding publicity issues 

associated with motion. 10.50 2.00 $355 $710.00

Craig 

34

Sutherland, 

Asbill, & 

Brennan

9/6/

2007

K.H. 

Sinclair

Attend to finalizing motion to 

withdraw guilty plea and

affidavit. Additional research 

regarding same. Discuss same 

with B. Martin and K. Verdi. 

Various calls with Senate staff 

regarding legal issues 

associated with motion to 

withdraw guilty plea. Various 

calls with J. Smith regarding 

legal and publicity issues

associated with motion to 

withdraw guilty plea. Various 

calls with T. Kelly regarding

motion to withdraw guilty 

plea. Review supporting 

materials for same. 7.50 1.50 $355 $532.50

Craig 

34

Sutherland, 

Asbill, & 

Brennan

9/7/

2007

K.H. 

Sinclair

Revise motion to withdraw 

guilty plea and supporting 

affidavit. Discuss same with B. 

Martin and K. Verdi. Various 

calls with Senate staff 

regarding legal issues 

associated with motion. 

Various calls with T. Kelly 

regarding legal issues 

associated with motion. 

Various calls with J. Smith 

and staff regarding publicity 

issues associated with motion. 5.10 1.50 $355 $532.50

Craig 

34

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 36 of 41
37

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

8/9/

2007

K.H. 

Sinclair

Review response letter from 

Statesman. Discuss same with 

B. Martin. Discuss same with 

J. Smith. Conference call with 

M. Ware, B. Roberts, S. 

Smith, S. Potano, W. Hart, D. 

Whiting. Draft reply letter. 2.40 2.40 $355 $852.00

Craig 

35

Sutherland, 

Asbill, & 

Brennan

8/10/

2007

K.H. 

Sinclair

Draft response letter to

Statesman. Discuss same with 

J. Smith. 1.40 1.40 $355 $497.00

Craig 

35

Sutherland, 

Asbill, & 

Brennan

8/15/

2007

K.H. 

Sinclair

Strategy call with M. Ware, S. 

Smith, W. Hart, D. Whiting, J. 

Smith. 0.80 0.80 $355 $284.00

Craig 

35

Sutherland, 

Asbill, & 

Brennan

8/16/

2007

K.H. 

Sinclair

Draft response letter to

Statesman. Confer with J. 

Smith regarding same. Confer 

with B. Martin regarding 

same. Transmit same to client. 1.50 1.50 $355 $532.50

Craig 

35

Sutherland, 

Asbill, & 

Brennan

9/1/

2007

K.H. 

Sinclair

Attend to media and legal 

issues surrounding 

Minneapolis proceedings. 

Attend to senate ethics issues.

Numerous teleconferences 

with M. Ware, J. Smith, B. 

Martin regarding same. 6.80 2.50 $355 $887.50

Craig 

35

Sutherland, 

Asbill, & 

Brennan

8/27/

2007

B. 

Martin

Teleconference to discuss 

arrest of Senator Craig and 

possible legal and PR 

implications of arrest. 1.00 0.50 $650 $325.00

Craig 

36

Sutherland, 

Asbill, & 

Brennan

8/30/

2007

B. 

Martin

Teleconference with Senator 

Craig, Office of the 

Prosecution and local counsel. 

Press accounts and PR 

strategy. 0.80 0.40 $650 $260.00

Craig 

36

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 37 of 41
38

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

9/1/

2007

B. 

Martin

Research and review draft 

Press Release; telephone 

conversation with client; 

discuss options, prepare and 

review of press conference; 

telephone conference with 

Stan Brand.

4 2.50 2.00 $650 $1,300.00

Craig 

36

Sutherland, 

Asbill, & 

Brennan

9/26/

2007

B. 

Martin

Meetings in Minneapolis with 

trial team, T. Kelly, K. Sinclair 

and PR team to prepare for 

hearing and press conference.

Attendance at Motion hearing. 14.00 3.00 $650 $1,950.00

Craig 

36

Kelly & 

Jacobson

8/28/

2007

to

9/26/

2007

J. 

Katan

Case law research; 

Supplemental research; Draft 

correspondence and court 

documents; Field and redirect 

media calls. 8.00 2.00 $110 $220.00

Craig 

44

Sutherland, 

Asbill, & 

Brennan

10/

15/

2007

K.H. 

Sinclair

Attend to filing notice of 

appeal. Confer with P. 

Jacobson regarding same. 

Confer with J. Smith and D. 

Rene regarding media issues.

Call to L. Craig regarding 

status of appeal. 1.80 0.80 $355 $284.00

Craig 

49

Sutherland, 

Asbill, & 

Brennan

10/

19/

2007

K.H. 

Sinclair

Review media goals statement.

Revise statement of case. 0.60 0.30 $355 $106.50

Craig 

49

Sutherland, 

Asbill, & 

Brennan

10/5/

2007

K.H. 

Sinclair

Review draft question and 

answer documents. Confer 

with J. Smith and Senate staff 

regarding same. 0.70 0.70 $355 $248.50

Craig 

50

Sutherland, 

Asbill, & 

Brennan

10/6/

2007

K.H. 

Sinclair

Review draft question and 

answer for poll. Confer with 

Senate staff regarding same. 0.60 0.60 $355 $213.00

Craig 

50

 

4 Mr. Brand was Senator Craig’s counsel for the Senate Ethics Committee inquiry, 

and so the Court has deemed entries that reflect his involvement to be at least partially 

exempt from the personal use ban under the principles set forth in the Hilliard and Vitter 

Advisory Opinions. See Ex. 12 to FEC Reply at 5 (stating that defendants retained the 

Brand Law Group to respond to the Senate Ethics Committee inquiry).

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 38 of 41
39

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

10/7/

2007

K.H. 

Sinclair

Review draft question and 

answer documents. Confer 

with J. Smith regarding same.

Attend to scheduling issues. 

Attend to issues related to 

upcoming poll. Confer with 

D. Whiting regarding same. 2.10 2.10 $355 $745.50

Craig 

50

Sutherland, 

Asbill, & 

Brennan

10/8/

2007

K.H. 

Sinclair

Attend conference call with M. 

Ware, L. Craig, J. Smith and 

Senate staff regarding next 

steps. Discuss notice appeal 

with T. Kelly. Prepare notice 

appeal. 2.70 0.50 $355 $177.50

Craig 

50

Sutherland, 

Asbill, & 

Brennan

10/

12/

2007

K.H. 

Sinclair

Attend to filing issues related 

to notice of appeal with local 

counsel. Attend to billing 

issues in relation to FEC 

disclosure. Confer with T. 

Kelly regarding notice appeal. 

Confer with P. Jacobson 

regarding notice of appeal. 

Confer with J. Smith 

regarding public relations 

issues related to notice of 

appeal. 3.10 0.60 $355 $213.00

Craig 

50

Sutherland, 

Asbill, & 

Brennan

10/4/

2007

B. 

Martin

Conference call with Senator 

Craig, K. Sinclair and PR team

to discuss and review Judge's 

decision. 1.50 0.75 $650 $487.50

Craig 

51

Sutherland, 

Asbill, & 

Brennan

10/

15/

2007

B. 

Martin

Review of Press Release for 

appeal. 0.50 0.50 $650 $325.00

Craig 

51

Sutherland, 

Asbill, & 

Brennan

10/2/

2007

K.H. 

Sinclair

Attend to various public 

relations issues. Research 

procedures for filing notice of 

appeal. Discuss same with T. 

Kelly. 2.10 1.00 $355 $355.00

Craig 

51

Sutherland, 

Asbill, & 

Brennan

10/3/

2007

K.H. 

Sinclair

Prepare for issuance of order. 

Review procedures for filing 

appeal. Various calls to client, 

J. Smith, Senate staff 

regarding scheduling and 

procedural issues. 3.10 0.30 $355 $106.50

Craig 

51

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 39 of 41
40

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Sutherland, 

Asbill, & 

Brennan

10/

30/

2007

B. 

Martin

Teleconference regarding 

Senator ethics issues; 

discussion with ethics 

counsel. 1.50 1.50 $650 $975.00

Craig 

59

Sutherland, 

Asbill, & 

Brennan

10/

26/

2007

K.H. 

Sinclair

Review appellate rules. Attend 

to media issues with J. Smith. 1.10 0.50 $355 $177.50

Craig 

59

Sutherland, 

Asbill, & 

Brennan

10/

31/

2007

K.H. 

Sinclair

Call with M. Ware, B. 

Roberts, D. Whiting regarding 

Senate Ethics Committee 

issue. Conference call with 

M. Ware, B. Roberts, D. 

Whiting, S. Brand, B. Martin, 

J. Smith regarding Ethics 

Committee issues and media 

relations. 0.70 0.70 $355 $248.50

Craig 

60

Sutherland, 

Asbill, & 

Brennan

11/

14/

2007

K.H. 

Sinclair

Review ethics committee 

submission. Confer with B. 

Martin regarding same. 0.30 0.30 $355 $106.50

Craig 

60

Sutherland, 

Asbill, &

Brennan

11/

29/

2007

K.H. 

Sinclair

Call with M. Ware regarding 

public relations issues. 0.30 0.30 $355 $106.50

Craig 

61

Sutherland, 

Asbill, & 

Brennan

11/

30/

2007

K.H. 

Sinclair

Review research on factual 

basis of guilty plea. Confer 

with T. Kelly regarding case 

status and research issues. 

Conference call on public 

relations issues. 1.30 0.80 $355 $284.00

Craig 

61

Sutherland, 

Asbill, & 

Brennan

12/

19/

2007

K.H. 

Sinclair

Revise appellate brief. Confer 

with B. Martin regarding same. 

Call to Senator's staff 

regarding legal and political 

issues related to Idaho 

Statesman. 1.30 0.80 $355 $284.00

Craig 

71

Sutherland, 

Asbill, & 

Brennan

12/

20/

2007

K.H. 

Sinclair

Call to B. Roberts. Review 

draft letter to Idaho 

Statesman. Review revisions 

to appellate brief. 0.30 0.10 $355 $35.50

Craig 

71

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 40 of 41
41

Law Firm Date

Legal 

Prof’l

Description (exemptions 

italicized and bolded)

Total

Hours

Exempt 

Hours

Hourly 

Rate

Exempt 

Amount Page

Kelly & 

Jacobson

9/8/

2008

T. 

Kelly

Redraft and finalize oral 

arguments; Telephone 

conferences with counsel for 

the defense; Review of cases; 

Preparation for oral arguments 

with counsel for the defense; 

Court - Appellate Hearing; 

Debrief with co-counsel; Posthearing press conference. 13.00 1.00 $550 $550.00Craig 

75

Kelly & 

Jacobson

9/27/

2007

to 

11/

30/

2007

T. 

Kelly

Review Judge Porter's Orders; 

Review court transcript; Assist 

in drafting Notice of Appeal &

Statement of Case documents; 

Research relevant case law; 

Telephone conferences with 

the prosecuting attorney; 

Telephone conferences with 

the Appellate Court Clerk; 

Review court filings from 

prosecuting attorney; Review 

public statements made by 

client regarding the case; 

Handle calls from sources 

wanting factual information 

relevant to the case; Review of 

ACLU court filings; Review 

Appellate Court Orders; 

Multiple telephone 

conferences and email 

correspondence with counsel 

for the defense. 7.50 1.50 $550 $825.00

Craig 

79

Kelly & 

Jacobson

9/27/

2007

to 

11/

30/

2007

J. 

Katan

Draft correspondence and 

court documents; Field and 

redirect media calls; Facilitate 

filing of Appellate Court 

documents. 1.00 0.50 $110 $55.00

Craig 

87

TOTAL $19,449

Case 1:12-cv-00958-ABJ Document 27 Filed 09/30/14 Page 41 of 41