Case 1:12-cv-00958-ABJ Document 3 Filed 08/02/12 Page 1 of 2 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL ELECTION COMMISSION, 

Plaintiff, 

vs. 

CRAIG FOR U.S. SENATE, 

KAYE L. O'RIORDAN, 

in her official capacity as Treasurer 

of Craig for U.S. Senate, 

and 

SENATOR LARRY E. CRAIG 

Defendants. 

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Civil Case No. 1:12-CV-0958 

MOTION TO DISMISS 

Defendants, Craig for U.S. Senate, Kaye L. O'Riordan in her official capacity as 

committee treasurer, and Larry E. Craig (collectively, "Defendants"), respectfully request that 

the Court dismiss this matter for failure to support a claim, pursuant to Fed. R. Civ. P. 12(b)(6) 

In support of this motion, Defendants rely on the accompanying memorandum. A proposed 

order is attached. 

Dated: August 2, 2012 
Case 1:12-cv-00958-ABJ Document 3 Filed 08/02/12 Page 2 of 2 

Defendants' Motion To Dismiss 

Page 2 

Respectfully Submitted, 

Andrew D. Digitally signed by Andrew D. Herman ON: cn=Andrew D. Herman, o::Brand Law 

Herman Group, PC. OU, 

emall=aherman@brandlawgroup.com, c=US 

Date: 2012.08.02 14:59:22 -Q4'00' 

Stanley M. Brand, DC Bar # 213082 

Andrew D. Herman, DC Bar# 462334 

BRAND LAW GROUP, PC 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

Attorneys for Defendants 

Craig for U.S. Senate 

Kaye L. O'Riordan, in her official capacity as 

Treasurer of Craig for U.S. Senate. 

Senator Larry E. Craig 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 1 of 12 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL ELECTION COMMISSION, 

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Plaintiff, 

vs. 

CRAIG FOR U.S. SENATE, 

KAYE L. O'RIORDAN, 

in her official capacity as Treasurer 

of Craig for U.S. Senate, 

and 

SENATOR LARRY E. CRAIG 

Defendants. 

Civil Case No. 1:12-CV-0958 

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 

A. INTRODUCTION 

Defendants, Craig for U.S. Senate, Kaye L. O'Riordan in her official capacity as 

committee treasurer, and Larry E. Craig (collectively, "Defendants"), respectfully request that 

this Court dismiss the above-referenced complaint with prejudice. In its one-cause Complaint, 

Plaintiff, the Federal Election Commission (the "FEC" or "Commission") asserts that, by 

spending campaign funds on legal fees in connection with a matter that arose during his travel to 

a session of Congress in Washington, D.C., then-Senator Larry Craig converted over $200,000 to 

his "personal use" in violation of 2 U.S.C. § 439a. See Complaint, ~~ 32-34. 

Conspicuously absent from the FEC's Complaint, however, is any mention of the only 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 2 of 12 

standard that the Commission has used to differentiate official expenses from personal use. 

Namely, that the event generating the expenditures occurred during the individual's execution of 

his or her official duties as a member of Congress. See, e.g., FEC Advisory Opinion ("AO") 

2006-35 at 3-41 (concluding that because Congressman Jim Kolbe's Grand Canyon trip 

constituted an "official Congressional visit ... [his] legal expenses in responding to [DOJ] 

inquiry into his [conduct on the] trip . . . are ordinary and necessary expenses incurred in 

connection with his duty as a House member."); see also Complaint, ~ 11 (citing other FEC 

advisory opinions establishing similar standard). 

As the FEC recognized in Kolbe and other advisory opinions, Section 439a expressly 

authorizes Senator Craig to use privately-raised campaign funds "for ordinary and necessary 

expenses incurred in connection with duties of the individual as a holder of Federal office." /d. § 

439a(a)(2). According to both the statute and the FEC's prior analyses, Senator Craig's 

committee's payments for expenses incurred while on official travel were attendant to his office 

and did not arise "irrespective of ... [his] duties as a holder of Federal office," id. § 439a(b )(2). 

As such, this Court should dismiss the Complaint. 

Aside from its reflection of clear statutory authority, the Kolbe advisory opinion compels 

dismissal on a separate basis. By statute, Defendants are entitled to rely on FEC analysis in any 

matter "indistinguishable in all its material aspects from the transaction or activity" approved in 

prior FEC advisory opinions. 2 U.S.C. § 437f(c)(1)(B). In such a case, Defendants may not "be 

subject to any sanction provided by [federal campaign finance statutes]." Id. § 437f(c)(2). Thus, 

regardless of its statutory analysis, this Court should dismiss the Complaint because this matter 

The FEC maintains a searchable database of advisory opinions and supporting documents 

at http://saos.nictusa.com/saos/searchao. 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 2 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 3 of 12 

and the Kolbe advisory opinion are materially "indistinguishable." 

B. ANALYSIS 

"A court may dismiss a complaint or any portion of it for failure to state a claim upon 

which relief may be granted." See Fed. R. Civ. P. 12(b)(6); see also Carroll v. Fremont Inv. & 

Loan, 636 F. Supp. 2d 41, 50 (D.D.C. 2009). When deciding a motion to dismiss, a court may 

consider documents not attached to or referenced in the complaint, but which are fatal to the 

plaintiff's claim and attached to a defendant's motion to dismiss. Ward v. D.C. Dept. of Youth 

Rehab. Svcs., 768 F. Supp. 2d 117, 119-20 & n.2 (D.D.C. 2011) (dismissing claim after 

considering administrative determination letter not attached to, or referenced in, the complaint, 

where the existence of such administrative determination barred plaintiff's claim). Indeed, a 

plaintiff may not deliberately omit references to materials in an attempt to "generat[ e] complaints 

invulnerable to Rule 12(b)(6) simply by clever drafting." Global Network Comms., Inc. v. City 

of New York, 483 F.3d 150, 156-57 (2nd Cir. 2006). 

I. Facts2 

On June 11, 2007, while using a restroom at the Minneapolis-St. Paul International 

Airport before taking a connecting flight to Washington, D.C., then-Senator Craig was arrested 

and charged with misdemeanor violations of Minnesota criminal law. See Complaint,~ 12. 

Although Senator Craig pleaded guilty to a misdemeanor count of disorderly conduct, id., he 

subsequently retained both Washington, D.C. and Minnesota counsel in an effort to withdraw his 

plea. Senator Craig paid for counsel with privately-raised campaign funds from the Craig for 

U.S. Senate campaign committee. !d.,~~ 13-14, 19-20. 

2 For the purposes of this Motion, Defendants accept the facts set forth in the Complaint. 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 3 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 4 of 12 

Most importantly- and conspicuously absent from the Commission's Complaint- when 

the events occurred, Senator Craig was engaged in official travel from his home in Idaho to a 

session of Congress in Washington, D.C. commencing that evening.3 This material information, 

contained in documents "outside" the Complaint, is proper for consideration on a motion to 

dismiss because it is set forth in public records, of which a court may take judicial notice. 

Antoine v. U.S. Bank Nat 'lAss 'n, 547 F. Supp. 2d 30, 38 n.3 (D.D.C. 2008); see also Fed. R. 

Evid. 201(b)(2). 

Senator Craig's travel did not simply enable him to return to work in Washington, D.C.; it 

constituted an integral part of his official duties as established and governed by the United States 

Constitution. Specifically, the Constitution's "Inhabitancy Clause" mandates that Senator Craig 

reside in his home state while serving as a United States Senator. See U.S. Const., art. I, § 3, cl. 

3. Furthermore, the Constitution's "Immunity from Arrest" clause mandates that members be 

privileged from arrest "during their Attendance at the Session of their respective Houses, and in 

going to and returning/rom the same." U.S. Const., art. I, § 6, cl. 1 (emphasis added). As such, 

the Constitution's framers certainly contemplated that a member's interaction with local law 

enforcement while traveling to and from Congress would fall within the ambit of his or her 

official duties. See U.S. Const., art. I, § 6, cl. 1. 

3 153 Cong. Rec. S7441 (daily ed. June 11, 2007) (roll call vote cast by Senator Craig). As 

with any official travel, the United States Senate paid for his transportation and per diem 

expenses. See Report of the Secretary of the Senate, S. Doc. No. 110-11 at B-826 (Nov. 13, 

2007), a copy of which is attached hereto as Exhibit 1. 

Defendants' Memorandum In Support of Motion to Dismiss 

Page4 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02112 Page 5 of 12 

II. Legal Analysis 

1. The Legal Fees at Issue are an Official Expense Because They Would Not Exist 

Irrespective of Senator Craig's Duties as a Senator. 

Section 439a allows officeholders to spend campaign funds on all "ordinary and 

necessary expenses incurred in connection with duties of the individual as a holder of Federal 

office." !d. § 439a(a)(2). Although campaign funds "shall not be converted by any person to 

personal use," 2 U.S.C. § 439a(b)(l), Senator Craig's payments in this case were not prohibited. 

A "personal use" is a payment for "any commitment, obligation, or expense of a person 

that would exist irrespective of the ... individual's duties as a holder of Federal office." !d. § 

439a(b )(2). Payments for legal fees are neither a per se personal use nor a per se ordinary and 

necessary expense; rather, the Commission determines on a case-by-case basis whether the 

payment oflegal fees from campaign funds is permissible. See 11 C.F.R. § 113.1(g)(1)(ii)(A). 

Officeholders and candidates, however, "have wide discretion over the use of campaign funds." 

To meet the "ordinary and necessary" standard a Defendant must "reasonably show that the 

expenses at issue resulted from campaign or officeholder activities." 60 Fed. Reg. 7862, 7867 

(Feb. 9, 1995) ("Personal Use Explanation & Justification"). 

As detailed above, Senator Craig's legal expenses arose during official Senate travel, an 

activity that was part ofhis constitutionally-enumerated "duties as a holder of Federal office." 

Not only was the trip itself constitutionally required, but Senate rules sanction reimbursement for 

any cost relating to a Senator's use of a bathroom while on official travel. See United States 

Senate Travel Regulations, reprinted in 152 Cong. Rec. S 114 73 (daily ed. Dec. 7, 2006) ("Per 

diem expenses include all charges for meals, lodging, personal use of room during daytime, 

baths .... ") (emphasis added). Accordingly, Senator Craig's travel and activities on June 11 -

including his use of the restroom where the incident occurred - constituted or were in connection 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 5 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 6 of 12 

with his "duties as a holder of Federal office." 2 U.S.C. § 439a(b)(2). 

The Commission cautions that "legal expenses will not be treated as though they are ... 

officeholder related merely because the underlying legal proceedings have some impact on ... 

the officeholder's status." Personal Use Explanation & Justification, at 7868. The statute 

provides a non-exclusive list of prohibited uses. See 2 U.S.C. § 439a(b)(2)(A-I) (banning use of 

campaign funds for, inter alia, home mortgage payments, clothing purchases, country club 

memberships, vacations, tuition payments, entertainment tickets, and health club memberships). 

By way of example, the Commission posits hypothetical legal proceedings involving divorce or 

driving-under-the-influence, see Personal Use Explanation & Justification at 7868, as expenses 

that would not be payable with campaign funds. 

Here, Senator Craig's legal proceedings created more than a tangential impact on his 

status as an officeholder. The legal proceedings arose from a matter that occurred during his 

official Senate travel. Because that official travel is part of his official duties, legal proceedings 

arising out of that travel are necessarily "in connection with" Senator Craig's official duties and 

funds spent on legal fees to deal with those proceedings are similarly spent "in connection with" 

his duties as an officeholder. See 2 U.S. C. § 439a(a)(2); see also FEC AO 2006-35 at 3-4. 

Moreover, the legal expenses at issue here would not "exist irrespective of' Senator Craig's 

official obligations, id. § 439a(b)(2), because, in contrast to the FEC's hypothetical divorce or 

drunk driving expenses, Senator Craig was engaged in official, constitutionally-mandated 

activity at the time of the incident. 

2. Defendants are Immune from Prosecution in This Matter Because Existing Advisory 

Opinions Sanctioned the Payments of Legal Fees. 

The conclusion that the legal fees at issue are "ordinary and necessary" expenses under 

Section 439a is consistent with the FEC's statutory analysis. Indeed, the Commission has 

Defendants' Memorandum In Support of Motion to Dismiss 

Page6 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 7 of 12 

approved the use of campaign funds to pay for legal fees in a matter indistinguishable from this 

one, FEC Advisory Opinion 2006-35, and in numerous other substantially similar matters. See 

Complaint,~ 11. However, even if this Court were to reject this well-established standard and 

determine that Senator Craig's legal expenses did not satisfy the test for official use, Defendants 

are entitled to rely on those prior advisory opinions, providing them immunity from this suit. See 

2 U.S.C. § 437f(c)(l)(B) (authorizing reliance on FEC advisory opinion when "involved in any 

specific ... activity which is indistinguishable in all its material aspects from the ... activity 

with respect to which such advisory opinion is rendered"); and id. § 437f(c)(2) (person "act[ing] 

in good faith in accordance with the provisions and findings of such advisory opinion shall not 

... be subject to any sanction"). 

Specifically, in FEC Advisory Opinion 2006-35 retired Congressman Jim Kolbe sought 

permission from the Commission to use campaign funds to pay legal fees to respond to 

government inquiries into his 1996 rafting trip to the Grand Canyon. Then-Congressman Kolbe 

had toured the Grand Canyon with members of his family and several former House pages. See 

id.; see also supporting documents submitted by Congressman Kolbe, attached to FEC AO 2006-

35, available at http://saos.nictusa.com/aodocs/569946.pdf. After learning of allegations 

regarding Congressman Kolbe's improper conduct with the former pages during the trip, the 

Justice Department launched a preliminary inquiry into the matter. See FEC AO 2006-35. 

The FEC's procedure in rendering the Kolbe advisory opinion approving the expenditure 

of committee funds for his legal defense is instructive. After issuing a sua sponte inquiry into the 

nature of his trip, the FEC received confirmation that Congressman Kolbe "took the trip under 

the auspices of his [federal] office" and that "the trip was part of an official Congressional visif' 

funded by tax dollars. See Nov. 17, 2006, FEC correspondence with counsel for Kolbe for 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 7 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 8 of 12 

Congress committee & Nov. 27, 2006, Kolbe for Congress committee correspondence with FEC, 

attached to advisory opinion request from Kolbe for Congress committee, available at 

http://saos.nictusa.com/aodocs/569946.pdf. Notably, the FEC did not inquire into the nature of 

the underlying allegations, simply that the trip was official in nature. 

Relying solely on this submission from the Congressman, and without additional analysis 

or debate, the Commission unanimously held that payments of legal fees to respond to the Justice 

Department inquiry into the trip were "ordinary and necessary expenses incurred in connection 

with [Kolbe's] duty as a House member." FEC AO 2006-35 at 4; see also FEC, Minutes of the 

Open Meeting of Thurs., Jan. 25, 2007 (Approved Feb. 8, 2007), available at 

http://www.fec.gov/agenda/2007/approve07-04.pdf(approving Kolbe Advisory Opinion, 

apparently without debate, by a 4-0 vote of the Commission). 

Most importantly, the Kolbe advisory opinion does not assess whether the underlying 

allegations about the Congressman's conduct on the trip related to his "duties as a holder of 

Federal office." Instead, the Commission simply concludes that because the activities giving rise 

to the legal expenses occurred while Congressman Kolbe was on an official trip, those expenses 

"are ordinary and necessary expenses incurred in connection with his duty as a House member. 

2 U.S.C. 439a(a)(2)." FEC AO 2006-35 at 4. 

Simply put, no principled distinction can be drawn between the Kolbe matter and this 

case. Like Congressman Kolbe, Senator Craig was on official travel when the legal expenses 

were incurred. Like Congressman Kolbe, the alleged conduct was not strictly official in nature. 

Like Congressman Kolbe, Senator Craig expended campaign funds on a legal defense relating to 

those allegations. Because Senator Craig's payments are "indistinguishable" from the 

Commission-approved payments made from Congressman Kolbe's campaign account, 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 8 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 9 of 12 

Defendants are entitled to rely upon that decision and receive immunity from prosecution in this 

case. See 2 U.S.C. § 437f(c). 

In sanctioning the use of official funds for legal expenses in similar matters, the 

Commission has likewise ignored the substance of members' underlying conduct and focused 

simply on whether the allegations occurred during the course of official activity. See Complaint, 

~ 11 (citing other FEC advisory opinions ostensibly in support of Commission's claim). For 

instance, in Advisory Opinions 1997-27 and 2000-40, the Commission approved requests by 

Congressmen Boehner and McDermott to spend campaign funds on legal fees in connection with 

litigation concerning the allegedly unlawful interception and disclosure of a cellular telephone 

call. The Commission concluded that, for Congressman Boehner the subject matter of the 

litigation "resulted directly from the pursuit of[Boehner's] duties as a Federal officeholder," 

FEC AO 1997-27 at 3, and for Congressman McDermott "resulted directly from activities 

[McDermott] engaged in because of [his] position at the time as Ranking Minority Member of 

the Ethics Committee," FEC AO 2000-40 at 4. Similarly, in FEC Advisory Opinion 2005-11, the 

Commission approved Congressman Duke Cunningham's use of campaign funds to pay legal 

fees in connection with a grand jury investigation involving conduct wholly unrelated to 

Congressman Cunningham's officeholder duties, including "the sale of[Cunningham's] house at 

an above-market price and a rent-free stay on a yacht." !d. at 3. 

In none of these three, similar cases did the Commission address whether selling one's 

house, renting a yacht, or intercepting and disclosing cellular telephone calls were themselves 

official duties. Rather, the Commission confined its analysis to the question of whether the 

conduct in question arose as a result of, or in connection with, official duties. As with the Kolbe 

advisory opinion, a consistent application of this standard compels the conclusion that Senator 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 9 
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Craig's legal expenses arose a result of his official obligations as a member of Congress. Indeed, 

Senator Craig's expenses, incurred while on official travel, are more closely connected to his 

official duties than those incurred in the Boehner, McDermott and Cunningham matters. 

Yet, in this matter the Commission has elected to abandon its long-standing precedent. 

Regardless of its puzzling decision, application of the FEC's well-established standard to the 

facts at hand demonstrate that Senator Craig's official, constitutionally-mandated travel satisfies 

the FEC's standard for sanctioning the use of campaign funds for his legal expenses. Defendants 

are entitled to rely on that standard and receive immunity from this suit. 

C. CONCLUSION 

Because Senator Craig's payments are not a personal use under the statute, and because 

existing FEC advisory opinions both sanction Defendants' actions and bar prosecution of this 

case, Defendants respectfully request that this Court dismiss this Complaint with prejudice for 

failure to state a claim on which relief can be granted.4 

4 As a final defect, Paragraph D of the Complaint's Prayer for Relief improperly requests 

that this Court assess a civil penalty "against each of the Defendants." However, the 

Commissions' official policy maintains that a "probable cause finding against a treasurer in his 

or her official capacity makes clear to a district court in enforcement litigation that the 

Commission is seeking relief against the committee, and would only entitle the Commission to 

obtain a civil penalty from the committee." Statement of Policy Regarding Treasurers Subject to 

Enforcement Proceedings, 70 Fed. Reg. 3, 4 (Jan. 3, 2005) (citing Kentucky v. Graham, 473 U.S. 

159, 165 (1985)) (emphasis added). 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 10 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 11 of 12 

Respectfully submitted this 2nd day of August, 2012. 

Andrew D. 

Herman 

Digitally signed by Andrew D. Herman 

DN: cn=Andrew D. Herman, o=Brand law 

Group, PC, ou, 

~mail=aherman@brandlawgroup.com, 

C=US 

Date: 2012.08.02 15:01:39 -04'00' 

Stanley M. Brand, DC Bar# 213082 

Andrew D. Herman, DC Bar# 462334 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

Attorneys for Defendants 

Craig for U.S. Senate 

Kaye L. O'Riordan, in her official capacity as 

Treasurer of Craig for U.S. Senate. 

Senator Larry E. Craig 

Defendants' Memorandum In Support of Motion to Dismiss 

Page 11 
Case 1:12-cv-00958-ABJ Document 3-1 Filed 08/02/12 Page 12 of 12 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this 2nd day of August, 2012, I electronically filed the 

foregoing with the Clerk of the Court using the CMIECF system, which will send a notification 

of such filing ("NEF") to the following counsel of record: 

Anthony Herman, DC Bar# 424643 

General Counsel 

David Kolker, DC Bar# 394558 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Robert W. Bonham, III, DC Bar# 397859 

Kevin P. Hancock 

Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 p 

(202) 219-0260 F 

Andrew D. 

Herman 

Digitally signed by Andrew D. Herman 

ON: cn=Andrew D. Herman, o=Brand 

law Group, PC, ou, 

email,.,aherman@brandtawgroup.com 

,c=US 

Date: 2012.08.02 15:02:00 -<WOO' 

Andrew D. Herman