of the Act, “it may refer such apparent violation[s] to the Attorney General.” That
such an avenue exists for referring potential violations “does not in itself imply that
administrative processing and referral are prerequisite to the initiation of litigation by
the Attorney General.” Operating Engineers, 638 F.2d at 1163.

The referral provision, by its terms, addresses the Commission’s authority. A
referral to the Attorney General bears the imprimatur of the Commission, and requires
regular reports from the Attorney General on any action taken regarding the matter.
See 2 U.S.C. § 437g(c). The Act’s provisions ensure that such a step is not
undertaken by the Commission lightly. The statute contains no language, however,
to suggest that the Attorney General is prohibited from acting on the basis of other
information or referrals, and Marcus offers no reason why the statute’s silence should
be read to contain such a limitation, let alone a clear and unambiguous one.

3. The legislative history of the Federal Election Campaign Act further
underscores that its provisions have no bearing on the Attorney General’s criminal
authority. When Congress created the Federal Election Commission in 1974, it
considered and rejected language that would have conditioned the prosecutorial acts
of the Attorney General on the Commission’s approval. The original Senate bill
provided that “[n]Jotwithstanding any other provision of law, the Commission shall
be the primary civil and criminal enforcement agency for violations of the provisions

of this Act * * * . Any violation of any such provision shall be prosecuted by the

.-14-


STATEMENT OF RELATED CASES
Counsel for the Attorney General are not aware of any related cases as defined

in 9th Cir. R. 28-2.6.


raising claims virtually identical to those presented here. The Colorado and Michigan
suits were dismissed on grounds closely resembling those adopted by the district

court in this case. The Tenth Circuit recently affirmed the Colorado dismissal based

on reasoning that parallels this Court’s decision in Operating Engineers. Bialek v.
Mukasey, 529 F.3d 1267 (10th Cir. 2008). The Michigan suit is currently on appeal

to the Sixth Circuit. See Fieger v. Gonzales, Civ. No. 07-10533, 2007 WL 2351006,

at *3-8 (E.D. Mich. 2007), appeal docketed, No. 07-2291 (6th Cir. Oct. 17, 2007).
Motions to dismiss are pending in the Illinois suit. Beam v. Gonzales, Civ. No.
07-1227 (N.D. IIl., suit filed Mar. 2, 2007).

In August 2007, a federal grand jury in the Eastern District of Michigan handed
down a ten-count indictment against two defendants for violations of the Federal
Election Campaign Act and related offenses, based on campaign contributions related
to those alleged in Marcus’s complaint. In June 2008, both defendants were acquitted
of the charges. United States v. Fieger, Crim. No. 07-20414 (E.D. Mich.).

SUMMARY OF THE ARGUMENT
The district court properly dismissed Marcus’s challenge under the Federal

Election Campaign Act. As this Court explained nearly three decades ago in United

States v. International Union of Operating Engineers, 638 F.2d 1161 (9th Cir. 1979),
nothing in the Act disturbs the Attorney General’s traditional authority over federal

criminal investigations and prosecutions. Marcus’s attempts to escape the force of

~8-


to little weight.” 638 F.2d at 1168. See also Bryan v. United States, 524 U.S. 184,

196 (1998) (“[T]he fears and doubts of the opposition are no authoritative guide to
the construction of legislation. In their zeal to defeat a bill, they understandably tend
to overstate its reach.” (quotation marks and citations omitted)). Marcus’s suggestion
that the definitive statement of Congress’ intent lies not in the language of its statute,
its Conference Reports, or the statements of legislative sponsors, but rather in the lone
views of a dissenting Senator, stretches an argument for “clear and unambiguous
intent” well beyond its breaking point.

4. Marcus’s contention that Operating Engineers “has now been superceded
by subsequent amendment to the Act in 1980,” Br. 18, is similarly without merit.
Marcus makes much of an amendment requiring that the Commission refer violations
to the Attorney General only “by an affirmative vote of 4 of its members.” Br. 19
(quoting 2 U.S.C. § 437g(a)(5)(C)); see Br. 23-24 (same). Yet that provision is not
substantively different from any other version of the Act since the Commission’s
formation. As far back as 1974, when the Commission was first created as a six-
member body, it was required that “[a]ll decisions of the Commission with respect to
its duties and powers under the provisions of this title shall be made by a majority
vote of the members of the Commission.” Pub. L. No. 93-433, § 208, sec. 310(c), 88

Stat. at 1282, reprinted in 1974 Legislative History at 1154. As Congress recognized,

this amounted to “the requirement of four votes for affirmative action” well before

-18-


2 U.S.C. § 4372(d)(2)-(3) ...
2U.S.C. § 44la ....
2US.C. § 441b.
2US.C. § 441f

26 U.S.C. § 7602 (1978) sosssssssssssessesssseessnssesssasssseeeusssessessansessessusnsssesesenesnee 23

28 U.S.C. § 516
28 U.S.C. § 1291 ..
28 U.S.C. § 1331...
28 US.C. § 1346 ...
28 U.S.C. § 2201 ...
28 U.S.C. § 2202

ee eND

Rules and Regulations:

Fed. R. Crim. P. 12(b)(3) sesssssssssesscsscssssessseasssssssemnissssessaseresueumeensnneseseseesseeeee 29
TL CAR. § T1210 (b) cccesssssssssssseenesevsssssssnesesssssteseesesseasasesesseseiesnunensnseeeeseseseees 21
43 Fed. Reg. 5441 (Feb. 8, 1978) ...cssccsssssscssssssssesessessvessseresenstvansssessesseseseeeees 5-6

Legislative Materials:

Pub. L. No. 93-433, § 208, sec. 310(b), 88 Stat. 1263, 1281 (Oct. 15, 1974) ..... 16
Pub. L. No. 93-433, § 208, sec. 310(c), 88 Stat. 1263, 1282 (Oct. 15, 1974) ..... 18
Pub. L. No. 93-443, § 208, sec. 314(b), 88 Stat. 1263, 1285 (Oct. 15, 1974) .....
Pub. L. No. 94-283, § 112, sec. 329(b), 90 Stat. 475, 495 (May 11, 1976).......... 19

H.R. 5010, 96th Cong. § 108, sec. 309(a)(5)(C) (1979) ....
S. 3044, 93d Cong., § 207, sec. 309(d) (2d Sess. 1974) ...

H.R. Rep. No. 93-1438 (2d Sess. 1974) (Conf. Rep.) ...
H.R. Rep. No. 94-917 (2d Sess. 1976)
H.R. Rep. No. 94-1057 (2d Sess. 1976) (Conf. Rep.) ...
TLR. Rep. No. 96-422, at 22 (1979)
S. Rep. No. 94-677 (2d Sess. 1976)



documents, simply by dint of having filed a collateral suit challenging an
investigation or prosecution, would have the potential to greatly disrupt the grand jury
as well as any subsequent criminal trial. The “general rule barring judicial
interference with the conduct of a grand jury proceeding” is at its strongest in such
cases: “courts do not, except in very limited circumstances not alleged here, entertain
the claim of a person subject to a criminal investigation that the investigation is
unlawful and must therefore be enjoined.” In re Sealed Case, 829 F.2d at 62 n.60.4

“[S]ubjects of federal investigation have never gained injunctive relief against

federal prosecutors.” Deaver, 822 F.2d at 69-70. Principles of equity preclude such

extraordinary relief in this case as well. If Marcus wishes to challenge the propriety
of the Attorney General’s actions, he may follow the approach taken by the appellees
in Operating Engineers and file a motion to dismiss any indictment that may
ultimately be returned against him. See 638 F.2d at 1162; Fed. R. Crim. P. 12(b)(3).
But “[p]rospective defendants cannot, by bringing ancillary equitable proceedings,

circumvent federal criminal procedure.” Deaver, 822 F.2d at 71. Marcus’s suit seeks

precisely that result, and the district court’s dismissal should be affirmed on this

‘Limited exceptions may apply for plaintiffs seeking to resist a subpoena or assert
particular First Amendment rights. United States v. Ryan, 402 U.S. 530, 532 (1971);
Deaver, 822 F.2d at 69, 70 n.8. Marcus’s suit falls into neither category.

-29-


Attorney General or Department of Justice personnel only after consultation with, and

with the consent of, the Commission.” S. 3044, 93d Cong., § 207, sec. 309(d), at 49

(2d Sess. 1974), reprinted in Fed. Election Comm’n, Legislative History of Federal

Election Campaign Act Amendments of 1974, at 51 (1977) [hereinafter 1974

Legislative History]. Congress discarded that provision in conference, replacing it
with the House’s language that afforded the Commission only “primary jurisdiction
with respect to the civil enforcement of such provisions.” H.R. Rep. No. 93-1438, at

22 (2d Sess. 1974) (Conf. Rep.), reprinted in 1974 Legislative History at 966. In so

doing, the Conference Report explicitly disclaimed the Senate’s proposal: “The
primary jurisdiction of the Commission to enforce the provisions of the Act is not
intended to interfere in any way with the activities of the Attorney General or
Department of Justice personnel in performing their duties under the laws of the

United States.” Id. ‘at 94, reprinted in 1974 Legislative History at 1038. See also

Operating Engineers, 638 F.2d at 1165 (recounting the history of the 1974
amendments).

Congressional statements reinforce this understanding. Senator Cannon, one
of the key supporters of the Act, explained when introducing the Conference Bill that
“the Department of Justice would not be deprived of any of its power to initiate civil
or criminal actions in response to referrals by the commission or complaints from

other sources.” 93 Cong. Rec. $18525 (daily ed. Oct. 8, 1974) (statement of Sen.

-15-


enter into conciliation agreements. Br. 21-23, 25-26. Those contentions rest on
misunderstandings of the Commission’s civil enforcement powers. The
Commission’s advisory opinions bear only on prospective conduct, 11 C.F.R.
§ 112.1(b), and afford immunity from sanction only for individuals who subsequently
rely upon them. See 2 U.S.C. § 437f(c). Such opinions are therefore of no import to
previously completed conduct that might be the subject of a criminal investigation.
In any event, the Commission’s advisory opinions and rules are not “rendered
meaningless” (Br. 22) by a criminal investigation or prosecution: to the contrary, the
interpretations of the Commission are entitled to as great weight in criminal
prosecutions as in civil enforcement suits. In re Sealed Case, 223 F.3d 775, 779 (D.C.
Cir. 2000). See also Bialek, 529 F.3d at 1272.

The Commission’s ability to enter into conciliation agreements is likewise
consistent with the Attorney General’s criminal authority. The Commission need not
pursue the conciliation process at all in cases where it refers potential violations to
the Attorney General. 2 U.S.C. § 437g(a)(5)(C). See Operating Engineers, 638 F.2d
at 1167 (“[C]learly Congress did not intend that persons violating the Act must be
given an opportunity to enter into a conciliation agreement before a criminal
prosecution could be initiated.”). Moreover, nothing prevents the Commission from
entering into such agreements during the pendency of a criminal prosecution.

Conciliation agreements have force both as evidence to establish lack of knowledge

-21-


1976 Legislative History]; see S. Rep. No. 94-677, at 7 (2d Sess. 1976) (noting that

“[t]he proposed changes would give the Commission exclusive civil enforcement
authority,” but suggesting no change to the Attorney General’s authority over

criminal violations), reprinted in 1976 Legislative History at 283; H.R. Rep. No. 94-

1057, at 43 (2d Sess. 1976) (Conf. Rep.) (“The Conference substitute is the same as

the House amendment and the Senate bill.”), reprinted in 1976 Legislative History at

1037. That sentiment was again echoed by Senator Cannon, who explained that
“(t]he bill would grant the exclusive civil enforcement of the act to the Commission
to avoid confusion and overlapping with the Department of Justice, but at the same
time, retain the jurisdiction of the Department of Justice for the criminal prosecution
of any violations of this act.” 94 Cong. Rec. $3860-61 (daily ed. Mar. 22, 1976)

(statement of Sen. Cannon), reprinted in 1976 Legislative History at 470-71. See also

Operating Engineers, 638 F.2d at 1165-66.

Marcus’s sole response to this history is an isolated floor statement by a
staunch opponent of the Federal Election Campaign Act, Senator Brock. See Br. 17-
18, 28 (quoting 122 Cong. Rec. $12471 (1976)); 94 Cong. Rec. 86479 (daily ed.,
May 4, 1976) (statement of Sen. Brock) (labeling the Act “a deceit, a sham, and a
fraud on the American public”), reprinted in 1976 Legislative History at 1109. Yet
as this Court recognized in Operating Engineers, “Senator Brock was a leading Senate

opponent of the legislation. His characterization of the legislation is thereby entitled

-17-


ground as well. See Sybersound Records, Inc., 517 F.3d at 1142-43 (affirmance of

dismissal permitted on any supported ground).
CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

GREGORY G. KATSAS
Assistant Attorney General

DIANE J. HUMETEWA
United States Attorney

MICHAEL S. RAAB

(202) 514-4053
ERIC FLEISIG-GREENE
(202) 514-4815

Attorneys, Appellate Staff
Civil Division, Room 7214

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.
Washington, DC_20530-0001

JULY 2008

-30-


and the Justice Department, which had contemporaneously interpreted the Act to
allow criminal investigations by the Attorney General without first exhausting the
Commission’s civil remedies. 638 F.2d at 1165-68. The Court concluded:

In sum, neither the language nor the legislative history of the Act
provides the kind of “clear and unambiguous expression of legislative
will” necessary to support a holding that Congress sought to alter the
traditionally broad scope of the Attorney General’s prosecutorial
discretion by requiring initial administrative screening of alleged
violations of the Act. On the contrary, the language and legislative
history indicates that while centralizing and strengthening the authority
of the FEC to enforce the Act administratively and by civil proceedings,
Congress intended to leave undisturbed the Justice Department’s
authority to prosecute criminally a narrow range of aggravated offenses.

Id. at 1168.

2. That analysis is entirely correct. “Congress has vested in the Attorney
General the power to conduct the criminal litigation of the United States
Government.” United States v. Nixon, 418 U.S. 683, 694 (1974) (citing 28 U.S.C.
§ 516). Accordingly, “criminal prosecution is ‘an executive function within the

exclusive prerogative of the Attorney General.’” United States v. Palumbo Bros.

Inc., 145 F.3d 850, 865 (7th Cir. 1998) (quoting United States v. Gen. Dynamics

Corp., 828 F.2d 1356, 1366 (9th Cir. 1987)). See also In re Persico, 522 F.2d 41, 54

(2d Cir. 1975) (same) (citing United States v. Cox, 342 F.2d 167, 190 (Sth Cir. 1965)
(Wisdom, J., specially concurring)). Congress may entrust these investigatory and

prosecutorial powers to another Executive officer, but it has long been established

-)2-


Act, the Commission must notify that person of the factual basis for the alleged
violation and make an investigation. 2 U.S.C. § 437g(a)(2). If the Commission
subsequently finds probable cause of such violation by an affirmative vote of at least
four members, it must typically “attempt, for a period of at least 30 days, to correct
or prevent such violation by informal methods of conference, conciliation, and
persuasion, and to enter into a conciliation agreement with any person involved.”
2 U.S.C. § 437g(a)(4)(A)(i).. The Commission may enter into a conciliation
agreement only by an affirmative vote of at least four members, and any such
agreement, if abided by, provides “a complete bar to any further action by the
Commission, including the bringing of a civil proceeding.” Id.

If the Commission, by an affirmative vote of at least four members, finds
probable cause that a knowing and willful violation of the Act’s criminal provisions
has occurred or is about to occur, it may refer the violation to the Attorney General
without regard to the Act’s conciliation provisions. 2 U.S.C. § 437g(a)(5)(C). In
such cases, the Attorney General “shall report to the Commission any action taken by
the Attorney General regarding the apparent violation” at regular intervals until the
matter is concluded. 2 U.S.C. § 437g(c). If a criminal defendant has entered into a
conciliation agreement with the Commission that remains in effect, he may introduce
the agreement to establish lack of knowledge or intent at trial, as well as to mitigate

his penalty at sentencing. 2 U.S.C. § 437g(d)(2)-(3).

-4-


such proceedings “unlawful,” ER 143, effectively enjoining any future criminal
investigation or prosecution of his conduct. That result finds no support in law.
Parties may not seek equitable relief to halt a grand jury investigation or prosecution
through civil litigation.

“The traditional rule, dating back to the English division between courts of law
and equity, was that the latter had ‘no jurisdiction over the prosecution, the
punishment or the pardon of crimes or misdemeanors’ and therefore could not enjoin
criminal proceedings.” Deaver v. Seymour, 822 F.2d 66, 68 (D.C. Cir. 1987)
(quoting In re Sawyer, 124 U.S. 200, 210 (1888)). This prohibition on interference
with criminal proceedings derives from the basic doctrine that courts of equity will
not act when a party possesses an adequate remedy at law. Because “the adversary
system ‘afford[s] defendants, after indictment, a federal forum in which to assert their
defenses,’” individuals cannot challenge a federal criminal investigation or

prosecution through a suit in equity. Stolt-Nielsen, S.A. v. United States, 442 F.3d

177, 185 (3d Cir.) (quoting Deaver, 822 F.2d at 69), cert. denied, 127 S. Ct. 494

(2006).

“Courts exercise this restraint because, as Justice Frankfurter explained,
‘[bJearing the discomfiture and cost of a prosecution for crime even by an innocent
person is one of the painful obligations of citizenship.” In re Sealed Case, 829 F.2d

50, 62 n.60 (D.C. Cir. 1987) (quoting Cobbledick v. United States, 309 U.S. 323, 325

-27-


the “grand jury as a principal tool of criminal accusation.” 437 U.S. at 312. LaSalle
accordingly affords no support for Marcus’s claim. See Bialek, 529 F.3d at 1272.
Equally misguided is Marcus’s allegation (Br. 18-20, 23-25) that the referral
and reporting provisions of the Act are rendered meaningless ifthe Attorney General
can independently conduct investigations. As Congress made clear when it initially
enacted those provisions in 1974,’ the requirements do not prevent the Attorney
General from investigating violations independently. See supra pages 13-16.
Although the Attorney General retains the discretion whether to prosecute particular
cases, it was Congress’ hope that the reporting requirements and gravity of the
Commission’s referrals would bring additional violations to the Justice Department’s
attention--not prevent it from pursuing cases on its own. See, e.g., 93 Cong. Rec.
H10331 (daily ed. Oct. 10, 1974) (statement of Rep. Frenzel) (“Criminal enforcement
remains with the Justice Department, but the Attorney General is held accountable to
the Commission for reporting on the disposition of violations referred to him.”),

reprinted in 1974 Legislative History at 1109. Marcus suggests (Br. 25) that a lone

Commissioner, frustrated by the lack of support for a referral, “could simply walk

across the street to a politically allied Attorney General and say, ‘prosecute this

*Marcus’s characterization of the reporting requirement as a “new provision,”
Br. 19, is incorrect. The requirement has existed since the Commission’s creation.
Pub. L. No. 93-443, § 208, sec. 314(b), 88 Stat. at 1285, reprinted in 1974 Legislative

History at 1157.

-24-


IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 08-15643 PL ge

JON MARCUS,
Plaintiff-Appellant,
v.

MICHAEL B. MUKASEY, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

BRIEF OF THE ATTORNEY GENERAL

STATEMENT OF JURISDICTION
Plaintiff Jon Marcus brought suit in district court seeking declaratory relief
under 28 U.S.C. §§ 2201 & 2202, alleging that a grand jury investigation into his
activities violated the Federal Election Campaign Act, 2 U.S.C. § 437g. Excerpts of
Record (“ER”) 139-43. Marcus invoked the district court’s jurisdiction under

28 U.S.C. §§ 1331 & 1346. ER 140.


93 Cong. Rec. H10327 (daily ed. Oct. 10, 1974) ...
93 Cong. Rec. H10331 (daily ed. Oct. 10, 1974)
93 Cong. Rec. $18525 (daily ed. Oct. 8, 1974)
94 Cong. Rec. $3860-61 (daily ed. Mar. 22, 1976) ..
94 Cong. Rec. $6479 (daily ed., May 4, 1976) ..
122 Cong. Rec. $12471 (1976)

Miscellaneous:

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments of 1974 o....ccccsessescsesseseseeseseseeeceeee 15-16, 18, 24

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments Of 1976 oo... cscs reeeeeeneerenereenenseee 16, 17, 19

Fed. Election Comm’n, Legislative History of Federal Election
Campaign Act Amendments Of 1979 o.....ececcesccessesseceesceseeeeeneeeeeeeneessees 19, 20

Public Integrity Section, U.S. Dep’t of Justice, Federal Prosecution
of Election Offenses (7th ed. Aug. 2007) ........csccsssesseestsecsereeeeeneessesereeenen 6


that “[t]o graft such an exception upon the criminal law would require a clear and
unambiguous expression of the legislative will.” United States v. Morgan, 222 US.
274, 282 (1911).

The Federal Election Campaign Act contains no such clear and unambiguous
direction. The Act does not restrict or even mention the Attorney General’s authority
over criminal violations, nor does it vest criminal jurisdiction in any other agency or
Executive official. To the contrary, the Act provides that the Federal Election
Commission “shall have exclusive jurisdiction with respect to the civil enforcement”
of the Act, 2 U.S.C. § 437c(b)(1), but does not work any similar change in criminal
enforcement. Congress’ silence with regard to criminal matters is reason enough to
conclude that it did not intend to disturb the traditional responsibilities of the
Attorney General. Congress’ decision to confer exclusive civil jurisdiction to the
Commission, while including no such provision as to criminal jurisdiction, makes that
conclusion even more inescapable.

The authority by which the Commission may refer cases to the Attorney
General for criminal investigation, 2 U.S.C. § 437g(a)(5)(C), is wholly consistent
with this reading. Marcus contends (Br. 17) that the subsection “require[s] a referral
from the FEC before the Attorney General [can] initiate criminal proceedings.” But
that is not what the statute says. To the contrary, the statute provides only that, if the

Commission votes to find probable cause of certain knowing and willful violations

-13-


STATEMENT OF THE FACTS
I. Statutory Background

1. The Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-
455, imposes a variety of requirements on campaign expenditures and contributions
in the federal election process. Among other provisions, the Act places dollar limits
on individual campaign contributions, 2 U.S.C. § 441a, prohibits certain corporate
contributions, 2 U.S.C. § 441b, and forbids contributions made in the name of
another, 2 U.S.C. § 441f. Violations of the Act carry both civil and criminal
penalties. 2 U.S.C. § 437g(a)(6), (d)(1).

The Act establishes a Federal Election Commission (“FEC”) with six voting
members, no more than three of whom may be affiliated with the same political party.
2 U.S.C. § 437c(a)(1). The Commission possesses “exclusive jurisdiction with
respect to the civil enforcement” of the Act’s provisions, 2 U.S.C. § 437c(b)(1), as
well as the authority to issue subpoenas, administer oaths, render advisory opinions
regarding compliance with the Act, and litigate civil actions through its general
counsel, 2 U.S.C. § 437d(a). The Act provides that, as a general matter, “the power
of the Commission to initiate civil actions * * * shall be the exclusive civil remedy
for the enforcement of the provisions of this Act.” 2 U.S.C. § 437d(e).

In cases where the Commission, by an affirmative vote of at least four

members, finds reason to believe that a person has violated or is about to violate the

-3-


the amendment cited by Marcus. H.R. Rep. No. 94-917, at 4, reprinted in 1976
Legislative History at 804. Consistent with that understanding, Congress described
the amendment as merely “incorporat[ing] the language * * * of the current Act
regarding referral of knowing and willful violations to the Attorney General.” H.R.
Rep. No. 96-422, at 22 (1979), reprinted in Fed. Election Comm’n, Legislative

History of Federal Election Campaign Act Amendments of 1979, at 206 (1983)

[hereinafter 1979 Legislative History].

The only other amendment cited by Marcus concerns the use of conciliation
agreements in criminal cases. Br. 25-26 (citing 2 U.S.C. § 437g(d)(2)). But the
language of that provision is in all relevant respects identical to the 1976 language

that this Court considered in Operating Engineers. See Pub. L. No. 94-283, § 112,

sec. 329(b), 90 Stat. 475, 495 (May 11, 1976), reprinted in 1976 Legislative History
at 1147. As this Court then explained, and contrary to Marcus’s contention, nothing
in that provision requires the Attorney General to wait for a referral from the Federal
Election Commission before exercising his own criminal authority. 638 F.2d at 1167.
See also infra pages 21-22.

In short, Marcus’s claim that the 1980 amendments were enacted “in a direct
repudiation of the Ninth Circuit’s opinion” (Br. 20) is contradicted by the substance
of those amendments and their Congressional Reports. It is also belied by the timing

of the amendments, which were first reported on September 7, 1979, weeks before

-19-




to the Commission as promptly as possible for its consideration of the
wide range of appropriate remedies available to the Commission.

IY. ‘Factual Background and Prior Proceedings

1. In February 2007, Jon Marcus brought suit against the Attorney General and
the Chairman of the Federal Election Commission. Marcus claimed that he was the
target of an ongoing federal grand jury investigation into violations of campaign
finance laws, and contended that because the Federal Election Commission had not
completed a civil investigation and referred the matter to the Attorney General, the
grand jury’s criminal investigation was contrary to “the jurisdictional requirements”
of the Federal Election Campaign Act, 2 U.S.C. § 437g. ER 141-42. On this basis,
Marcus sought declaratory relief from the investigation. ER 143.

2. In March 2008, on cross-motions by the parties, the district court dismissed
Marcus’s suit. The court rejected Marcus’s argument that the Attorney General
lacked authority to conduct a grand jury investigation without a referral from the

Federal Election Commission, and “note[d] specifically” that this Court had already

‘Congress’ expansion of the campaign finance laws in 2002 has prompted the
Department and the FEC to begin negotiations for an updated memorandum of
understanding. See Public Integrity Section, U.S. Dep’t of Justice, Federal
Prosecution of Election Offenses 205 (7th ed. Aug. 2007). These developments do
not address the Attorney General’s underlying authority to investigate and prosecute
campaign finance violations independent of referral from the FEC. See id. at 177.

-6-


2. Since 1977, shortly after the Federal Election Campaign Act was amended
to grant exclusive civil jurisdiction over violations of the Act to the FEC, the division
of authority between the Commission and the Department of Justice has been
governed by a memorandum of understanding between the two agencies. The
memorandum, which was published in the Federal Register shortly after its adoption,
see 43 Fed. Reg. 5441 (Feb. 8, 1978), sets forth the roles of each agency in enforcing

- the civil and criminal provisions of the Act. The memorandum “recognizes the
Federal Election Commission’s exclusive jurisdiction in civil matters” under the Act,
and describes the circumstances in which the Commission will refer willful and
knowing violations to the Department of Justice. Id. The memorandum further
provides:

Where information comes to the attention of the Department
indicating a probable violation of Title 2, the Department will apprise
the Commission of such information at the earliest opportunity.

Where the Department determines that evidence of a probable
violation of Title 2 amounts to a significant and substantial knowing and
wilful violation, the Department will continue its investigation to
prosecution when appropriate and necessary to its prosecutorial duties
and functions, and will endeavor to make available to the Commission
evidence developed during the course of its investigation subject to
restricting law. * * * *

Where the Department determines that evidence of a probable

violation of title 2 does not amount to a significant and substantial
knowing and wilful violation * * * the Department will refer the matter


Attorney General’s criminal enforcement power is not altered by Marcus’s bare
assertion that he has not prosecuted enough cases.

Finally, Marcus claims that the Attorney General is foreclosed from conducting
a grand jury investigation by the doctrine of primary jurisdiction. Br. 37-39. But that
doctrine applies only “in cases where protection of the integrity of a regulatory
scheme dictates preliminary resort to the agency which administers the scheme.”
United States v. Phila. Nat’| Bank, 374 U.S. 321, 353 (1963). Marcus’s argument for
primary jurisdiction amounts to no more than a repetition of his other attempts to
create a “clear and unambiguous” restriction on the Attorney General’s authority. See

United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1366 & n.18 (9th Cir. 1987)

(“For all practical purposes, there is no difference between requiring exhaustion of
and requiring deferral to an administrative remedy. In either case there can be no
litigation before the agency has acted.”). For the reasons discussed above, those
attempts are without merit, and the district court’s judgment should accordingly be

affirmed.
II. MARCUS IS NOT ENTITLED TO OBTAIN RELIEF
FROM CRIMINAL INVESTIGATION OR
PROSECUTION THROUGH A CIVIL LAWSUIT.
Even if Marcus’s interpretation of the Federal Election Campaign Act had

merit, traditional equitable principles preclude the reliefhe seeks. Marcus alleges that

he has been the subject of a grand jury investigation and asks that the court declare

-26-


case.” Yet as this Court recognized in Operating Engineers, Congress expressed no
such concern when it enacted the Federal Election Campaign Act or its amendments.
638 F.2d at 1164-65. And as the Tenth Circuit recently explained in rejecting such
an argument, “it is doubtful that Congress would implicitly divest the DOJ of its
authority based on a hypothetical fear of insistent FEC commissioners. We expect
that FEC commissioners, like any other government officials, follow the law.”
Bialek, 529 F.3d at 1274.

Marcus asserts, without support, that “[s]ince 1974, virtually all campaign
finance cases have been resolved by the FEC”; that “[i]n the history of the United
States, no case resembling the facts here has ever been criminally charged or tried to
a verdict before a jury”; and that “the FEC has resolved, civilly, about 99.9% of
campaign finance disputes without the interference or intervention of the Attorney
General.” Br. 5 n.1, 27. See also Br. 40. Even if those claims were not squarely
contradicted by the prosecutions cited by the Commission, FEC Br. 9, they would
have no bearing on the question before this Court. The position of the Justice
Department and the Commission, as memorialized in the agencies’ thirty-year-old
memorandum of understanding, is that the Attorney General possesses independent
authority to investigate potential criminal violations of the campaign finance laws.

That conclusion is compelled by the statute’s text and legislative history. The

-25-


The district court granted defendants’ motions to dismiss on March 10, 2008.
ER 3-10. Marcus filed a timely notice of appeal on March 18. ER 1-2. This Court
has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court properly held that the Federal Election Campaign
Act does not divest the Attorney General of his traditional authority over criminal
investigations and prosecutions.

2. Whether, in any event, declaratory relief is precluded in a civil lawsuit that
seeks to collaterally challenge a grand jury investigation or indictment.

STATEMENT OF THE CASE

Plaintiff Jon Marcus brought suit against the United States Attorney General
and the Chairman of the Federal Election Commission, complaining of an alleged
grand jury investigation into Marcus’s violation of federal campaign finance laws.
ER 141-42. Marcus claimed that the grand jury’s investigation was unlawful under
the Federal Election Campaign Act, and sought declaratory relief. ER 142-43.

The district court dismissed Marcus’s suit in March 2008, holding in

accordance with this Court’s decision in United States v. International Union of

Operating Engineers, 638 F.2d 1161 (9th Cir. 1979), that the Federal Election
Campaign Act placed no restrictions upon the investigative or prosecutorial authority

of the Attorney General. ER 8-9. Marcus appealed.

-2-


Cannon), reprinted in 1974 Legislative History at 1079. Similar sentiments were

echoed by the Act’s supporters in the House. See, e.g., 93 Cong. Rec. H10327 (daily
ed. Oct. 10, 1974) (statement of Rep. Hays) (“We allow [the Commission] to go to
court independently on civil matters * * * but all criminal matters must still be
handled by the Justice Department.”), reprinted in 1974 Legislative History at 1105;
93 Cong. Rec. H10331 (daily ed. Oct. 10, 1974) (statement of Rep. Frenzel)
(“Criminal enforcement remains with the Justice Department, but the Attorney
General is held accountable to the Commission for reporting on the disposition of

violations referred to him.”), reprinted in 1974 Legislative History at 1109. The

Conference language was enacted into law without alteration. Pub. L. No. 93-433,

§ 208, sec. 310(b), 88 Stat. 1263, 1281 (Oct. 15, 1974), reprinted in 1974 Legislative

History at 1153.

When Congress amended the Act in 1976 to grant the Commission exclusive
civil jurisdiction, it again made clear that the change did not affect the Attorney
General’s criminal powers, but was limited to civil enforcement. The House bill that
would ultimately become law “follow[ed] the pattern set in the 1974 Amendments”
by excluding from the FEC’s jurisdiction “complaints directed to the Attorney
General and seeking the institution ofa criminal proceeding.” H.R. Rep. No. 94-917,
at 4 (2d Sess. 1976), reprinted in Fed. Election Comm’n, Legislative History of

Federal_Election Campaign Act Amendments of 1976, at 804 (1977) [hereinafter
-16-


CERTIFICATE OF SERVICE
Thereby certify that on July 25, 2008, I filed and served the foregoing Brief by
causing an original and fifteen copies to be sent to the Court by Federal Express
overnight, and two copies to be sent by Federal Express to:

Michael R. Dezsi

Fieger, Fieger, Kenney & Johnson
19390 W. Ten Mile Rd.
Southfield, MI 48075
248-355-5555

Greg J. Mueller

Federal Election Commission
999 E Street, N.W.
Washington, DC 20463
202-694-1650

edi

Eric Fleisig-Greene


or intent at trial, and as mitigating evidence at sentencing. 2 U.S.C. § 437g(d)(2)-(3).
Rather than suggest a conflict between the Attorney General and the Commission,
conciliation agreements--like advisory opinions--help to ensure consistency between
the two agencies. These powers are a substantial reason why Marcus’s specter of
“inevitable conflicts” (Br. 22) between the Attorney General and the Commission has
not materialized despite the concurrent exercise of their responsibilities over the past
three decades.

Marcus asserts that independent prosecutions by the Attorney General would
jeopardize the Commission’s investigations due to witnesses invoking their Fifth
Amendment rights. Br. 28-32. That argument misunderstands the contours of the
Fifth Amendment, which does not turn on whether an individual is the subject of a
criminal investigation, but rather “privileges him not to answer official questions put
to him in any * * * proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley,
414 US. 70, 77 (1973). Because the Fifth Amendment’s privilege turns on the
potential for incrimination, and not on whether an individual is presently subject to
investigation, witnesses in Commission proceedings would have the same Fifth

Amendment privileges whether or not the Attorney General could independently

pursue investigation or prosecution at the same time. See Bialek, 529 F.3d at 1272.

-22-


United States v. Dionisio, 410 U.S. 1 (1973) . 28

United States v. Feiger, Crim. No. 07-20414 (E.D. Mich.). ..c.cscssessssesesseseeeereeees 8

United States v. Gen. Dynamics Corp., 828 F.2d 1356 (9th Cir. 1987) ........ 12, 26

United States v. Int’] Union of Operating Eng’rs,

638 F.2d 1161 (9th Cir. 1979) wee 2,7, 10-12, 14, 15, 17-19, 21, 25, 29
United States v. LaSalle Nat’] Bank, 437 U.S. 298 (1978) ....eessessessesesesteneess 23-24
United States v. Morgan, 222 U.S. 274 (1911) w.eeessseeseceseseeteeeeeteeseeeees 10-11, 13
United States v. Nixon, 418 U.S. 683 (1974) ..ceceseeesesseseeecesseseeseeseneeneaes 12, 28
United States v. Palumbo Bros., 145 F.3d 850 (7th Cir. 1998) oo. ceeeeteeeeeee 12
United States v. Phila. Nat’] Bank, 374 U.S. 321 (1963) ....ccsesseesseseeesseseeenenees 26
United States v. Ryan, 402 U.S. 530 (1971) ..ceceeceeecseceeeeeeeseeeeaeseeneteesseeseeeans 29

Statutes:

2 US.C. §§ 431-455 .
2 US.C. § 437c(a)(1)
2 U.S.C. § 437¢(b)(1)
2 U.S.C. § 437d
2 U.S.C. § 437d(a) ....
2 U.S.C. § 437d(e)
2 US.C. § 437f(c) .
2US.C. § 437g ...
2 U.S.C. § 437g(a)(2) ...

2 U.S.C. § 437g(a)(4)(A)(i)
2 U.S.C. § 437g(a)(5)(C)
2 US.C. § 437g(a)(6) ...
2 U.S.C. § 437g(c) ....
2 US.C. § 437g(d)(1)
2 U.S.C. § 437g(d)(2) ......

-iii-


that binding precedent are without merit. Indeed, the Tenth Circuit recently rejected
a challenge virtually identical to Marcus’s and recognized the continued vitality of
this Court’s decision in Operating Engineers. Bialek v. Muaksey, 529 F.3d 1267
(10th Cir. 2008). The statute’s grant of exclusive civil jurisdiction to the Federal
Election Commission is just that--a grant of civil jurisdiction. The Act says nothing
about the Attorney General’s criminal enforcement authority, and Marcus’s efforts
to infer such limits from restrictions on the Federal Election Commission fail.

Marcus’s suit against the Attorney General also fails because individuals may
not obtain declaratory relief from criminal investigation or prosecution through civil
litigation. Longstanding principles of equity jurisprudence prohibit parties from
interfering with federal criminal investigations or indictments through the guise of
a civil lawsuit. That rule is founded both on separation-of-powers principles and on
the traditional precept that equitable relief will not lie when an adequate alternative
remedy is available. “Prospective defendants cannot, by bringing ancillary equitable
proceedings, circumvent federal criminal procedure.” Deaver v. Seymour, 822 F.2d
66, 71 (D.C. Cir. 1987). That is precisely the effect of Marcus’s suit, and the district
court’s dismissal is equally justified on this alternative ground.

STANDARD OF REVIEW

This Court reviews a dismissal for failure to state a claim de novo, construing

the complaint’s allegations in the light most favorable to the plaintiff. Sybersound
-9-


legislative will.’” Id. (quoting United States v. Morgan, 222 U.S. 274, 282 (1911)).
After assessing the civil enforcement scheme provided by the Act, the Court
determined that “[nJothing in these provisions suggests, much less clearly and
[unJambiguously states, that action by the Department of Justice to prosecute a
violation of the Act is conditioned upon prior consideration of the alleged violation
by the FEC. Indeed, it would strain the language to imply such a condition.” Id, at
1163.

Moreover, the Court explained, “[t]he fact that the FEC may refer certain
complaints to the Department of Justice for prosecution, after administrative
processing, does not in itself imply that administrative processing and referral are
prerequisite to the initiation of litigation by the Attorney General.” 638 F.2d at 1163
(citation omitted). Nor do the statute’s procedural requirements for civil enforcement
actions and conciliation agreements confine the Attorney General’s prosecutorial
discretion; rather, they establish limits on the Commission’s ability to investigate and
pursue remedies for civil infractions. Id. at 1164. In short, those provisions “detail
duties of the FEC and rights of persons complained against, not imitations upon the
statutory power of the Attorney General to initiate prosecution on behalf of the
United States.” Id, at 1163.

The Court found additional support for its interpretation in the Act’s extensive

legislative history and in the 1977 memorandum of understanding between the FEC

-ll-


TABLE OF AUTHORITIES
Cases:

Beam v. Gonzales, Civ. No. 07-1227 (N.D. IIL.) ...

Bialek v. Mukasey, 529 F.3d 1267 (10th Cir. 2008) ...c.ceeeeeeee 8, 9, 20-22, 24, 25
Blair v. United States, 250 U.S. 273 (1919) v.cesscsessessssssssereereseestsecseeneseeneeneeneaeens 28

Bryan v. United States, 524 U.S. 184 (1998) ..

Cobbledick v. United States, 309 U.S. 323 (1940) woe ceeseecesesseneteerenereneseees 27
Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) o...iceceseseeseeserseeneees 9, 27, 29
Fieger v. Gonzales, Civ. No. 07-10533, 2007 WL 2351006

(E.D. Mich. 2007) .....ecesseseesessessecsssseesecssssecsessesscsusssessesesessserencsnesesseseeseassseess 8
Galliano v. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) ......cceeeeeees 20
In re Persico, 522 F.2d 41 (2d Cir, 1975) .ceeeecssssessreeesssessesesesseeeeseensneaeeeerseaes 12
In re Sawyer, 124 U.S. 200 (1888) oo. ceseesssesessseseecseseeesceesssesssescseneneseseceeeneeaee 27
In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ...c.ceccecscesetesesssseeseseeesereserseseees 21
In re Sealed Case, 829 F.2d 50 (D.C. Cir, 1987) ...sesescecssseseseseseeseeessensseess 27, 29
Lefkowitz v. Turley, 414 U.S. 70 (1973) w.cccscsseeseessssrsssesssesseesessseesesteassnesesnssnens 22
Stolt-Nielsen v. United States, 442 F.3d 177 (3d Cir. 2006) .......sscecssceesseeee 27, 28

Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) . 9-10, 30

United States v. Calandra, 414 U.S. 338 (1974) oo. cccseeseseeseeseesseeereesneneneseeee 28
United States v. Cox, 342 F.2d 167 (Sth Cir. 1965) ccesceseseescseeeeeseseneeeee 12, 28

-il-


CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I
hereby certify that this brief complies with the type-volume limitation in Rule
32(a)(7)(B). The foregoing brief contains 6851 words from its Statement of
Jurisdiction to its Conclusion, and is presented in proportionally spaced 14-point
Times New Roman typeface. The brief was prepared using WordPerfect 12 for

Windows XP.

Eric Fleisig-Greene


this Court’s decision in Operating Engineers. See H.R. 5010, 96th Cong. § 108, sec.

309(a)(5)(C), at 130 (1979), reprinted in 1979 Legislative History at 412; ER 8.

Well after the 1979 amendments, Operating Engineers continues to be relied
upon by other courts of appeals--most recently by the Tenth Circuit in rejecting the

very same claims that Marcus now presses in this appeal. See Bialek, 529 F.3d 1267,

1271 & n.5 (10th Cir. 2008) (holding that the 1979 amendments “do[] not affect the
Ninth Circuit’s reasoning, and Bialek is without support when he claims that this
portion of the 1979 amendments was intended to overrule the Ninth Circuit”). See

also Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1368 n.6 (D.C. Cir. 1988) (citing

Operating Engineers in noting that it is “settled that criminal enforcement of FECA
provisions may originate either with the FEC or the Department of Justice”). The
statute today is in no relevant sense different from the one considered by this Court
in Operating Engineers. Marcus offers no good reason to discard this Court’s prior,
reasoned analysis of the Act’s text and legislative history, and his suit must fail
accordingly.

4. Marcus’s remaining arguments offer no greater justification to disregard the
clear language and legislative history of the statute, let alone the settled law of this
Court.

Marcus suggests that the Attorney General’s prosecutorial discretion would

interfere with the Commission’s ability to provide advisory opinions and rules, or to

~20-


TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION ......cccscsseessessesseseeseesessessessseeneseesesusseeaeensensensene 1,
STATEMENT OF THE ISSUES ou... ccscsscessssssssessessessesenseseenecareuceresceessesassueateneensens 2
STATEMENT OF THE CASE .0......ccecccsssssscseessseesseeeeseceeneneseeasereneeaceeseeueersnseeerenenes 2
STATEMENT OF THE FACTS. u....esssecsscessessesseseesssseeseenessesessreaseneaneansseeecanensenenseaee 3
L Statutory Background .00.....cceesseeesseeeseececseeeecerseseeneneeesreaeseeneateees 3
II. Factual Background and Prior Proceedings 00... sesssesseeeteeeseereereeene 6

III. Related Proceedings ....

SUMMARY OF THE ARGUMENT. .0.......:csscsescssseceeseeseeeeseseeresesssessereseensseneesenees 8
STANDARD OF REVIEW ......:.cccccccsccsseesscscecsescscsesessseseecesceeesesssesseeeseeveeesensnenters 9
ARGUMENT. 0... cccceccsscccsscsesesesescscscssseeeesescscseeesessesesssseseerseresesesesestsanesseaseeeseaseeees 10

1. THE FEDERAL ELECTION CAMPAIGN ACT DOES NOT
ALTER THE ATTORNEY GENERAL’S TRADITIONAL
AUTHORITY OVER CRIMINAL INVESTIGATIONS. .........0006 10

Ill. MARCUS IS NOT ENTITLED TO OBTAIN RELIEF
FROM CRIMINAL INVESTIGATION OR PROSECUTION
THROUGH A CIVIL LAWSUIT. ...

CONCLUSION ..0.ceccccececeescsssssceseseseesseeeecevesssesescsesescecaeseseseeserseeeeeesessessesasseseseneaeees 30
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


(1940)). The same is true of grand jury investigations. United States v. Dionisio, 410

U.S. 1, 10 (1973) (quoting Blair v. United States, 250 U.S. 273, 281 (1919)).

Individuals may decline to testify before the grand jury pursuant to certain
constitutional safeguards, but “witnesses are not entitled to take exception to the
jurisdiction of the grand jury or the court over the particular subject-matter that is
under investigation.” Blair, 250 U.S. at 282; see United States v. Calandra, 414 U.S.
338, 345 (1974)?

These equitable limits are reinforced by the Executive’s “exclusive authority
and absolute discretion to decide whether to prosecute a case.” Nixon, 418 US. at
693. “It follows, as an incident of the constitutional separation of powers, that the
courts are not to interfere with the free exercise of the discretionary powers of the
attorneys of the United States in their control over criminal prosecutions.” United
States v. Cox, 342 F.2d 167, 171 & n.8 (Sth Cir. 1965) (en banc) (citing cases). See
also Stolt-Nielsen, 442 F.3d at 187.

The impropriety of allowing a collateral civil challenge to criminal proceedings
is further underscored by the contrast between the broad rules of civil discovery and

grand jury secrecy. Allowing potential defendants access to grand jury testimony or

>The obligation to cooperate in a grand jury investigation “is no different for a
person who may himself be the subject of the grand jury inquiry.” Dionisio, 410 U.S.
at 10 n.8.

-28-


Marcus’s reliance (Br. 33-34) on United States v. LaSalle National Bank, 437

USS. 298 (1978), is similarly misplaced. The LaSalle Court addressed the authority
of the Internal Revenue Service to issue administrative summonses in aid of a
criminal investigation. Jd. at 307-08. Noting that the IRS, upon referring a case to
the Justice Department, “loses its ability to compromise both the criminal and the
civil aspects of a fraud case,” the Court reasoned that IRS summonses issued after
referral risked being used for criminal investigatory purposes by the Justice
Department. Id. at 312. Because the limited purposes for which the IRS could
execute summonses “d[id] not include the goal of filing criminal charges against
citizens,” id. at 316 n.18, the Court set out a prophylactic rule prohibiting the Service
from issuing summonses after referral to the Justice Department, or before such
referral in the absence of a valid civil purpose. Id. at 312-13, 316.

No similar problem exists for the Commission, which (unlike the IRS) does not
lose its civil authority when it refers a case to the Department, and which possesses
broad investigative powers that are not limited to particular civil purposes. Compare
2 U.S.C. § 437d with 26 U.S.C. § 7602 (1978). Even if that were not so, nothing in
LaSalle suggests that restrictions may be placed on the Attorney General’s
investigative authority because of statutory limits on an agency’s subpoena power.

Quite the contrary, the LaSalle Court emphasized that the authority to investigate and

prosecute criminal cases was “reserved to the Department of Justice,” and included

-23-


reached the same conclusion in United States v. International Union of Operating

Engineers, 638 F.2d 1161 (9th Cir. 1979). ER 8. Subsequent amendments to the
Federal Election Campaign Act, which Marcus claimed to have repudiated Operating
Engineers, had no bearing on the continued vitality of that precedent. ER 8-9.

Consistent with Operating Engineers, the district court reasoned that although
the statute “provides that ‘[t]he Commission shall have exclusive jurisdiction with
respect to the civil enforcement of such provisions’... [t]his ‘directive’ applies to
civil enforcement of the Act, not to criminal enforcement of the Act.” ER 8 (quoting
2US.C. § 437c(b)(1)). The Act’s legislative history likewise “demonstrate[d] that
Congress did not intend to limit or displace the Attorney General’s independent
authority to pursue criminal violations of the Act.” ER 8. Because “the plain
language of the Act neither grants the Commission exclusive jurisdiction to enforce
criminal violations of the Act nor infringes the Attorney General’s plenary power to
enforce criminal violations of the Act,” and because both this Court’s precedent and
the statute’s legislative history further supported that conclusion, the district court
held that any alleged investigation of Marcus was consistent with the Federal Election
Campaign Act and dismissed Marcus’s suit. ER 8.
III. Related Proceedings

At approximately the same time that Marcus brought this suit, three other sets

of plaintiffs filed actions in the district courts of Colorado, Illinois, and Michigan,

_7-


Records, Inc. v. UAV Corp., 517 F.3d 1137, 1142 (9th Cir. 2008) . The Court may

affirm on any ground supported by the record. Id. at 1142-43.
ARGUMENT
I. THE FEDERAL ELECTION CAMPAIGN ACT DOES
NOT ALTER THE ATTORNEY GENERAL’S
TRADITIONAL AUTHORITY OVER CRIMINAL
INVESTIGATIONS.

1. Marcus contends that the Federal Election Campaign Act prohibits the
Attorney General from investigating and prosecuting campaign finance crimes until
after referral from the Federal Election Commission. This Court has already rejected
precisely that argument, holding that “Congress did not intend to impose this

limitation upon the power of the Attorney General to enforce the law.” United States

v. International Union of Operating Engineers, 638 F.2d 1161, 1162 (9th Cir. 1979).

That conclusion controls the outcome of this appeal, and this Court need go no further
to affirm the district court’s dismissal of Marcus’s suit.

Appellees in Operating Engineers, like Marcus here, contended that the Federal
Election Campaign Act required the Attorney General “to exhaust the administrative
remedy before the Federal Election Commission (FEC), available under section 437g
of the Act, before seeking an indictment.” 639 F.2d at 1162. This Court began its
analysis from the proposition that any infringement on the Attorney General’s

rr

prosecutorial authority “‘would require a clear and unambiguous expression of the

-10-