Notice2023-08639
Memorandum of Understanding Regarding the Enforcement of Federal Campaign Finance Laws
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 25, 2023
Effective
April 25, 2023
Issuing agencies
Federal Election Commission
Abstract
The purpose of the below MOU is to promote the enforcement of the Federal campaign finance laws and to establish guidelines for the FEC and the DOJ to engage in parallel proceedings, share information in appropriate circumstances, and otherwise properly advance the missions of both agencies subject to all relevant legal and ethical constraints informed by mutual respect of the independence of each agency.
Full Text
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<title>Federal Register, Volume 88 Issue 79 (Tuesday, April 25, 2023)</title>
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[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Notices]
[Pages 24986-24989]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08639]
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FEDERAL ELECTION COMMISSION
[Notice 2023-05]
Memorandum of Understanding Regarding the Enforcement of Federal
Campaign Finance Laws
AGENCY: Federal Election Commission (FEC), Department of Justice (DOJ).
ACTION: Notification of Memorandum of Understanding (MOU).
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SUMMARY: The purpose of the below MOU is to promote the enforcement of
the Federal campaign finance laws and to establish guidelines for the
FEC and the DOJ to engage in parallel proceedings, share information in
[[Page 24987]]
appropriate circumstances, and otherwise properly advance the missions
of both agencies subject to all relevant legal and ethical constraints
informed by mutual respect of the independence of each agency.
DATES: The MOU is effective April 25, 2023.
FOR FURTHER INFORMATION CONTACT: Charles Kitcher, Associate General
Counsel for Enforcement, Office of General Counsel, Federal Election
Commission, 1050 First Street NE, Washington, DC 20463, (202) 694-1650
or (800) 424-9530; Robert J. Heberle, Director, Election Crimes Branch,
Public Integrity Section, Criminal Division, U.S. Department of
Justice, 1301 New York Ave. NW, Washington, DC 20530, (202) 514-1412.
SUPPLEMENTARY INFORMATION: The text of the Memorandum of Understanding
is as follows:
Memorandum of Understanding Between the Federal Election Commission and
the United States Department of Justice Regarding Enforcement of the
Federal Campaign Finance Laws
Purpose
1. This Memorandum of Understanding (``MOU'') sets forth an
agreement between the Federal Election Commission (``Commission'') and
the United States Department of Justice (``Department'') concerning
their respective enforcement responsibilities under the Federal
Election Campaign Act of 1971, as amended, 52 U.S.C. 30101-45, the
Presidential Election Campaign Fund Act, 26 U.S.C. 9001-12, and the
Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42
(collectively, the ``Acts'').
2. The purpose of this MOU is to promote the enforcement of the
Federal campaign finance laws and to establish guidelines for the
Commission and the Department to engage in parallel proceedings, share
information in appropriate circumstances, and otherwise properly
advance the missions of both agencies subject to all relevant legal and
ethical constraints informed by mutual respect of the independence of
each agency.
Authority
3. The Commission has exclusive jurisdiction over civil enforcement
of the Acts. 52 U.S.C. 30106(b)(l), 30107(e). The Commission's civil
enforcement authority extends to knowing and willful violations. Id.
30109(a)(5)(B), (C). The Commission also administers the Acts and
formulates policy with respect to the Acts, including issuing formal
interpretations of the Acts and promulgating regulations to implement
and clarify the Acts. 52 U.S.C. 30106(b)(l); 26 U.S.C. 9009, 9039. The
Commission may initiate civil enforcement proceedings without a
referral to or from the Department.
4. The Department has exclusive jurisdiction over criminal
enforcement of the federal campaign finance laws. See generally 28
U.S.C. 516 (reserving to the Department the conduct of all litigation
in which the United States, an agency, or officer thereof is a party
``[e]xcept as otherwise authorized by law''). The Department also has
jurisdiction over related criminal offenses including, but not limited
to: conspiracy in violation of 18 U.S.C. 371; making false statements
within the jurisdiction of a federal agency in violation of 18 U.S.C.
1001; obstruction of agency proceedings in violation of 18 U.S.C. 1505
& 1519; and perjury in violation of 18 U.S.C. 1621. The Department may
initiate criminal investigations and prosecutions without a referral to
or from the Commission.
Civil and Criminal Enforcement
Cooperation and Information Sharing Generally
5. The Department and the Commission agree to assist each other in
fulfilling their respective statutory responsibilities and to
cooperate, consistent with all legal restrictions, to further their
respective enforcement activities.
6. The Commission may share information with the Department, which
is an appropriate law enforcement agency, regarding any Commission
enforcement proceeding at any point in that process, either upon
written request of the Department specifying the information sought or
when, in the absence of such request, the Commission concludes that
sharing such information is appropriate and consistent with paragraph 2
of this MOU. See 52 U.S.C. 30107(a)(9). In addition, as set forth in 52
U.S.C. 30109(a)(5)(C), if the Commission, by 4 affirmative votes,
determines that there is probable cause to believe that a knowing and
willful violation of the Acts has occurred or is about to occur, it may
refer such apparent violation to the Department without regard to any
limitations set forth in 52 U.S.C. 30109(a)(4)(A).
7. The Department may share with the Commission information
obtained during a criminal investigation or prosecution relating to
possible violations of the Acts when appropriate and consistent with
applicable law, the integrity of the investigation or prosecution, and
paragraph 2 of this MOU. To enable such sharing, the Department may,
where appropriate, redact materials that otherwise may not be
disclosed. Where the alleged violation warrants the impaneling of a
grand jury, information regarding the grand jury investigation will not
be disclosed to the Commission, pursuant to Federal Rule of Criminal
Procedure 6(e), absent court authorization to provide material to the
Commission preliminary to or in connection with a judicial proceeding
under Federal Rule of Criminal Procedure 6(e)(3)(E)(i). Further,
consistent with the obligations in this paragraph and paragraph 5, if
the Department concludes that it will not pursue criminal prosecution
of a matter that may involve a violation of the Acts, the Department
may apprise the Commission of the matter so that the Commission may
consider any further action that may be appropriate under the
circumstances.
8. When appropriate, and upon request of the Department, the
Commission may make Commission staff available to provide information
and to testify in federal criminal proceedings, provided, however, that
the Department shall not offer Commission staff as expert witnesses
without prior permission from the Commission. It is the understanding
of the Department and the Commission that absent exceptional
circumstances, Commission staff witnesses will not testify as expert
witnesses.
Parallel Proceedings and Investigations
9. The Department and the Commission may engage in parallel
proceedings--that is, concurrent investigations or administrative
proceedings related to the same parties or conduct. The Department and
the Commission may confer in such instances where appropriate and
consistent with paragraph 2 of this MOU, subject to any applicable
legal restrictions. While the Department and the Commission may engage
in parallel proceedings and share information where appropriate, the
Department and the Commission do not intend to engage in joint fact-
gathering, joint investigation or litigation strategy, or joint
charging determinations. For purposes of criminal litigation, the
Department does not consider the Commission to be a part of the
prosecution team or to be acting on behalf of the prosecution in any
case.
10. The Department may ask the Commission to hold in abeyance an
administrative Commission enforcement matter during a parallel criminal
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investigation. The Commission will consider any such written request
and may agree to abate designated Commission enforcement proceedings
for an appropriate period of time when deemed appropriate by the
Commission. The Department recognizes that periods of abatement of
Commission enforcement proceedings have the potential to adversely
affect the Commission's interests in such matters. Accordingly, in such
instances the Department shall assist the Commission in furthering its
independent mission within applicable limitations periods by providing
the Commission with information it collects during the course of its
criminal investigation relating to an abated matter or matters, subject
to any applicable legal prohibitions and handling requirements, at the
earliest reasonable opportunity, consistent with the integrity of the
criminal investigation and any resulting prosecution. During an
abatement, the Department and the Commission will confer as necessary
and appropriate in order to keep the Commission apprised about the
ongoing need for the abatement, including whether the abatement can be
concluded or whether the Department requests that it be maintained.
11. The Department recognizes that open Commission enforcement
matters are subject to the requirements of 52 U.S.C. 30109(a)(12)(A),
which provides that any notification or investigation made under 52
U.S.C. 30109 shall not be made public by the Commission or by any
person without the written consent of the person receiving such
notification or the person with respect to whom such investigation is
made. In addition, 52 U.S.C. 30109(a)(4)(B)(i) provides that no action
by the Commission or any person, and no information derived, in
connection with any conciliation attempt by the Commission under 52
U.S.C. 30109(a)(4)(A) may be made public by the Commission without the
written consent of the respondent and the Commission. Unlike 52 U.S.C.
30109(a)(12)(A), the application of 52 U.S.C. 30109(a)(4)(B)(i) remains
in effect even after the Commission closes a matter and makes it
public. The Department will establish and maintain necessary and
appropriate safeguards to protect information provided by the
Commission falling within the scope of information that shall not be
made public in accordance with this paragraph. The Commission
recognizes that the Department has obligations under Brady v. Maryland,
373 U.S. 83 (1963); the Jencks Act, 18 U.S.C. 3500; and Federal Rule of
Criminal Procedure 16 that may require it to provide information about
an open Commission matter in conjunction with a criminal matter. Prior
to revealing in open court or publicly available court filings, or
providing to any person outside of the Department, any information
protected by 52 U.S.C. 30109(a)(12)(A) as described in this paragraph,
the Department will call to the court's attention any potential
conflict between the Department's obligations under Brady v. Maryland,
the Jencks Act, and Federal Rule of Criminal Procedure 16 and the
requirement under 52 U.S.C. 30109(a)(12)(A) that open Commission
enforcement matters not be made public. Any pleadings containing
information protected by 52 U.S.C. 30109(a)(12)(A) shall be filed by
the Department under seal, unless otherwise directed by the court. To
any extent that the Department must transmit material protected by 52
U.S.C. 30109(a)(12)(A) outside the Department in connection with a
criminal matter, it will seek to maintain the non-public nature of such
information by seeking protective orders or other comparable measures.
12. Unless prohibited by law, the Department and the Commission
will each endeavor to notify the other, in writing, of any legally
enforceable demand or request made through a subpoena or court order
for nonpublic information or documents in the possession of one agency
but created by the other. If the request is made pursuant to the
Freedom of Information Act (``FOIA''), 5 U.S.C. 552, or is subject to
the Privacy Act, 5 U.S.C. 552a, the Department and the Commission will
endeavor to refer the records to the agency that created the documents
or consult with that agency before releasing its documents, as
appropriate. The Department and the Commission also agree to assert all
applicable FOIA or Privacy Act exemptions, litigation privileges, and
any other applicable privileges on behalf of the other agency to the
extent permitted by law.
13. If a matter pending before the Commission involves a finding by
the Commission under 52 U.S.C. 30109(a)(2) that there is reason to
believe there has been a knowing and willful violation of the Federal
Election Campaign Act of 1971, as amended, exceeding the monetary
thresholds for criminal enforcement, see 52 U.S.C. 30109(d)(1), the
Commission will consider whether the matter also raises possible
criminal violations outside of the Commission's jurisdiction, such as
those identified in paragraph 4 above, that should be reported to the
Department pursuant to 52 U.S.C. 30107(a)(9). In cases in which the
Commission determines that such reporting is appropriate, it will
promptly inform the Department of the existence of the Commission's
matter or matters, inform the Department that the Commission has made a
reason to believe finding covered by this paragraph, and also report
the existence of the possible criminal violations. Following receipt of
such notice, and consistent with paragraph 6, above, the Department may
request that the Commission provide the Department information it has
collected relating to such matter, subject to any applicable legal
prohibitions, at the earliest reasonable opportunity. The Commission
and the Department mutually recognize that all violations of the Acts,
even those committed knowingly and willfully, may not be proper
subjects for prosecution as criminal offenses. For the most beneficial
and effective enforcement of the Acts, those knowing and willful
violations which are significant and substantial, and which may be
described as aggravated in the intent in which they were committed, or
in the monetary amount involved should be referred by the Commission to
the Department for criminal prosecution review. Within this framework,
numerous factors will frequently affect the Commission's determination
to share information with the Department or make a report or referral,
including the repetitive nature of the acts, the existence of a
practice or pattern, prior notice, and the extent of the conduct in
terms of geographic area, persons, and monetary amounts, among many
other proper considerations.
14. If the Department publicly charges a violation of the Acts, or
a conspiracy to violate the Acts, or another crime relating to the
Commission such as making a false statement to the Commission, in any
court, it shall promptly alert the Commission of the pendency of the
matter. Following receipt of such notice, and consistent with paragraph
7, above, the Commission may request that the Department provide
information about the matter obtained during the Department's criminal
investigation or prosecution.
Related Offenses
15. Materially false information, records, or statements that are
intentionally made or submitted to the Commission may constitute
violations of federal criminal law under 18 U.S.C. 371, 1001, 1505,
1519, 1621, and other statutes. If the Commission receives or
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develops information related to the making or submission of materially
false information, records, or statements in a matter within the
Commission's jurisdiction through a Commission function, administrative
proceeding, investigation, or otherwise, the Commission may report such
apparent violations to the Department pursuant to 52 U.S.C.
30107(a)(9), including as set forth above in paragraphs 6 and 2. In the
case of such reporting, the Department will evaluate and, in its
discretion, prosecute potential criminal offenses arising from that
conduct. In the event that the Department requests additional
information in furtherance of any such criminal investigation or
prosecution by the Department, it may request that the Commission
provide such information, consistent with and as set forth above in
paragraph 6.
Settlements and Dispositions
16. The Department and the Commission recognize the benefits of
global settlements, that is, settlements that simultaneously resolve
related criminal and civil violations of the Acts concerning the same
underlying unlawful conduct, and may seek to enter into global
settlements when appropriate under procedures consistent with the
interests and ethical obligations of the Department and the Commission.
17. If a subject or defendant in a criminal investigation or
prosecution requests a global settlement, the Department and the
Commission may confer as appropriate to determine whether criminal and
civil liability arising from the same or related transactions can be
resolved in a global settlement.
18. In cases in which no global settlement is reached, the
Department will seek to include in any plea agreement concerning
conduct that may constitute a violation of the Acts a provision
acknowledging that nothing in the agreement waives or limits in any way
the Commission's authority to seek civil penalties or other
administrative remedies for violations of the Acts. The Commission and
the Department agree, however, that the absence of any such disclaimer
in a plea agreement is not intended to constitute a waiver of, or
otherwise limit the Commission's ability to engage in, any civil
enforcement activity concerning an applicable violation of the Acts.
Points of Contact
19. The Chief of the Public Integrity Section, the Principal Deputy
Chief of the Public Integrity Section, and the Director and the Deputy
Director of the Election Crimes Branch of the Public Integrity Section,
all of the Criminal Division of the Department, shall be the
Commission's points of contact for the Department's obligations under
this MOU, with the Director of the Election Crimes Branch being the
primary contact.
20. The General Counsel for the Commission, the Associate General
Counsel and the Deputy Associate General Counsels for Enforcement, and
the Associate General Counsel for Litigation in the Office of General
Counsel shall be the Department's points of contact for the
Commission's obligations under this MOU, with the Associate General
Counsel for Enforcement being the primary contact.
Repeal of 1977 Memorandum
21. This MOU repeals and supersedes the 1977 Memorandum of
Understanding between the Commission and the Department regarding the
handling of violations of the federal campaign finance laws.
Effective Date
22. The effective date of this MOU will be the date the executed
MOU is published in the Federal Register.
Limitation; No Reliance
23. This MOU applies only to the relationship between the
Commission and the Department. It is not intended to confer, nor does
it confer, any procedural or substantive rights on any person in any
matter before the Department, the Commission, or any court or agency
and may not be relied upon for that purpose, or any other purpose, by
any person not a party to this MOU.
Dated: April 14, 2023.
For the United States Department of Justice.
Kenneth A. Polite, Jr.,
Assistant Attorney General, Criminal Division.
Dated: April 19, 2023
For the Federal Election Commission.
Lisa J. Stevenson,
Acting General Counsel.
Dated: April 19, 2023.
On behalf of the Commission,
Dara Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2023-08639 Filed 4-24-23; 8:45 am]
BILLING CODE 6715-01-P
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</html>Indexed from Federal Register on April 25, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.