FEC commissioner questions DOJ’s ‘dangerous’ decision not to intervene in Trump prosecution

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President Donald J. Trump speaks with military service personnel Thursday, Nov. 26, 2020, during a Thanksgiving video teleconference call from the Diplomatic Reception Room of the White House. (Official White House photo by Shealah Craighead)

By Katelynn Richardson
Daily Caller News Foundation

Republican FEC Commissioner Trey Trainor will testify Thursday about the Department of Justice’s (DOJ) “dangerous” failure to intervene in Democratic Manhattan District Attorney Alvin Bragg’s prosecution of former President Donald Trump.

During the House Judiciary Committee’s hearing on Bragg’s case against Trump, Trainor will explain that the DOJ’s decision not to intervene in the case sets a “dangerous precedent of local prosecutorial overreach in matters of federal concern” and unpack how Bragg “usurped the jurisdiction that Congress has explicitly reserved for federal authorities” when he attempted to enforce campaign finance law. A violation of federal campaign finance law was one of three possible crimes Bragg alleged Trump sought to cover up by falsifying business records.

Trainor, in testimony obtained exclusively by the Daily Caller News Foundation, argues that the Biden DOJ should have intervened when Bragg, a local prosecutor, effectively sought to enforce federal campaign finance law, arguing its failure to do so made Trump’s trial a major focus of the 2024 election.

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“The fact that U.S. Supreme Court precedent is so decidedly in favor of jealously guarding the ability of federal agencies to enforce federal law leaves us to wonder why Attorney General Merrick Garland and the DOJ did not intervene in the prosecution of Donald Trump,” Trainor’s written testimony states. “The DOJ often touts its Memorandum Regarding Election Year Sensitivities as a reason for inaction on certain matters of a political nature. However, the purpose of the policy is to mitigate the affect legal actions have on providing an advantage or disadvantage to any candidate or political party.”

“I posit that if the DOJ had intervened early to protect the jurisdiction of the FEC and itself to prosecute federal campaign finance laws, we would not be here discussing this matter today and it wouldn’t be the preeminent topic of the 2024 presidential election,” he continues.

Missouri Attorney General Andrew Bailey and Florida International University law professor Elizabeth Foley are also expected to testify Thursday.

A Manhattan jury convicted Trump last month on 34 counts of falsifying business records relating to reimbursing Michael Cohen for a $130,000 nondisclosure agreement with porn star Stormy Daniels.

To bring the charges as felonies, Bragg alleged they were done to conceal or commit another crime: conspiring to influence the 2016 election through unlawful means.

The public still does not know, thanks to Judge Merchan’s instructions that did not require the jurors to agree on the secondary crime, which of the three unlawful activities alleged by prosecutors Trump was found guilty of concealing: a campaign finance violation, a tax violation or the falsification of additional business records.

Setting aside the due process issues that will likely arise on appeal, Trainor notes the that DOJ’s failure to intervene comes after the department already investigated the campaign finance issue and was unable to find any crimes committed by Trump, pointing to footnotes in two FEC documents that were unredacted May 31 at his request.

The unredacted documents show that “the DOJ had no issues with intervening in eight pending investigations being conducted by the FEC into the supposed $130,000 payment that was alleged to be misreported on a campaign finance report.”

Trainor explains in his testimony that the “DOJ inserted itself so fully into ongoing FEC investigations” that commissioners ran into trouble with the statute of limitations after the DOJ was finished.

“Clearly, the DOJ knows a great deal about the federal campaign finance issues that Alvin Bragg has prosecuted,” Trainor argues. “DOJ counsel knew the extent to which they themselves had exercised federal jurisdiction, investigated, and found no illegal activity by anyone other than Michael Cohen.”

In 2021, FEC commissioners deadlocked 2-2 on pursuing a case against Trump regarding the non-disclosure agreement with porn star Stormy Daniels after Republican Commissioners voted to dismiss the matter “as an exercise of prosecutorial discretion,” upsetting Democratic FEC commissioners who noted there was no other route for Trump to be held accountable.

“In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters,” commissioners Trainor and Sean Cooksey wrote at the time in their statement of reasons.

The unredacted footnote in the document states that the FEC’s delay in action is partly attributable “to the Commission’s acquiescence to a request from the U.S. Department of Justice to hold these matters in abeyance.”

In a May 2021 Washington Post op-ed, Democratic FEC Commissioner Ellen Weintraub slammed her colleagues’ decision to “kill” the case, writing that “no court can overturn this decision” under the current law.

The DOJ declined to respond to the DCNF’s inquiry about why it did not intervene in the case. Other FEC commissioners did not respond to requests for comment.

Other legal experts told the DCNF the law is clear on who has the authority to enforce federal campaign finance law — and it’s not Alvin Bragg.

“Both DOJ and the FEC could have appeared in the case through notification letters or a motion to intervene to raise objections to any claim of a violation of federal campaign finance law, explaining that the FEC has exclusive civil jurisdiction and the DOJ has exclusive criminal jurisdiction to enforce federal campaign finance law,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the DCNF.

The Supreme Court “interpreted the FEC to have primary oversight of the provisions of the U.S. Criminal Code regarding enforcement of political contributions and expenditures, as well as disclosure requirements, by individuals, political organizations and candidates” in its 1976 Buckley v. Valeo decision, America First Legal Vice President Daniel Epstein told the DCNF.

“Interestingly, the Buckley Court pointed out that Congress provided public rights to individuals to petition the FEC for adjudication,” Epstein explained. “By taking federal law into his own hands, DA Bragg actually violated the public rights granted to U.S. citizens because his enforcement scheme, in circumventing the ability for individuals to oversee his enforcement, prevented the oversight Congress granted to individuals to petition the federal government.”

Similarly, Epstein noted the Supreme Court “made clear that federal election laws can only be criminally enforced by the Attorney General of the United States” in South Carolina v. Katzenbach.

Epstein said Congress could hold Bragg accountable by conducting oversight over his office and the Court “for violating its authority to pass all laws necessary and proper to the enforcement of its commerce clause and other powers that give it exclusive legislative authority to enforce election-related laws as applied to interstate activities.”

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