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"One of the first things new prosecutors at the Justice Department learn is that cover-ups are rarely singular. There is often a cover-up of the cover-up.
Allegations of one cover-up, then another, emerged last week. Officials in the Trump administration tried to “lock down” the phone call memo between President Trump and Volodymyr Zelensky of Ukraine (the first cover-up), and then officials in the executive branch made efforts tokeep this information from reaching Congress(the second cover-up).
Now we have discovered what may be a third cover-up. In its handling of the investigation and a potential campaign-finance violation, the Department of Justice appears to have ignored arulethat a matter under investigation must be referred to the Federal Election Commission. Critically, if the department had followed the rule, the Ukraine affair would have been disclosed to the Americanpublic.
Were it not for the efforts of the whistle-blower, everything about this would have been hidden from the F.E.C. and the American people.
Here’s how the Justice Department failed to followtherule. As part of the scramble in the executive branch caused by the whistle-blower’s complaint, the Justice Departmentsecretly investigatedMr. Trump for a potential campaign-finance violation. The department reportedly cleared him because the contributions solicited from a foreign government to his campaign were not quantifiable “things of value.” That’sthe key phrase in one of the most important campaign-finance laws.
Remember that Mr. Trump’s own intelligence community inspector general — a former federal prosecutor — determined that the whistle-blower complaint was an “urgent concern.” Further, the complaint set out facts suggesting that Mr. Trump had indeed violated thefederal statutethat criminalizes soliciting any “thing of value” from a foreign citizen in connection with an election. A thorough investigation seemed warranted.
After it looked into the complaint,the Justice Department disagreed — it said that because the amount of the contribution couldn’t be quantified, the department would not even bother opening a criminal investigation (which would still have been short of bringing an actual prosecution).
Those are indeed valid criticisms, but an overlooked problem is that a federal government memorandum required the Justice Department to refer this complaint to the Federal Election Commission. And by all publicly available information, the department failed to do so.
For over 40 years, a memorandum of understanding has stood between the Justice Department and the Federal Election Commission, and it has beenduly entered into The Federal Register. It’s a guide for how Justice and the F.E.C. should interact inadministeringfederal election law. The document recognizes that some election law violations, for whatever reason, “may not be proper subjects for prosecution as crimes” under key criminal provisions of the federal election law statutes. The document then explains how the two agencies should interact when one or the other learns of potential violations.
Here’s the key part for our purpose: When information comes to the attention of the Justice Department indicating a “probable violation” of the Federal Election Campaign Act, the document says, “the department will apprise the commission of such information at the earliest opportunity.”
Note the standard for when the Justice Departmentmustnotify the F.E.C.: when there’s a “probable violation,” a low bar compared with the standard for actually bringing a criminal prosecution that must be proven beyond a reasonable doubt.
So again, as far as anyone knows, the Justice Department never provided that notification. And there’s more. The memo further explains that when the Justice Department determines that a probable violation “does not amount to a significant and substantial knowing and willful violation” — presumably what happened when the department decided not to continue investigating the matter described in the whistle-blower complaint — then “the department will refer the matter to the commission as promptly as possible.”
This, too, the Justice Department appearsnotto have done.
Why does it matter? Because the F.E.C. has a host of tools available to it to enforce federal election law that are distinct from the prosecutorial tool that the Justice Department declined to exercise here. The memo makes this, too, very clear.
It says that the Justice Department’s referral of such matters to the F.E.C. will facilitate the latter’s “consideration of the wide range of appropriate remedies available to the commission.” Those include, for example, the imposition of civil penalties for certain election-law violations — which would have been made public.
And establishing acivilviolation doesn’t require that violation to have required a standard of knowing and willful. It also doesn’t require proof beyond a reasonable doubt, only the much lower standard of a preponderance of the evidence. What’s more, there’s no monetary threshold for a civil violation, meaning that the Justice Department’s apparent inability to quantify the “thing of value” the president was soliciting is irrelevant to the Justice Department’s duty to notify the commission and not a bar to that agency’s potential imposition of a civil penalty.
Underlying this F.E.C. enforcement mechanism is a deep desire for transparency: When candidates break the rules, they need to be held accountable. Reflecting that, a Justice Department publication from December 2017 notes that the F.E.C.’s enforcement jurisdiction over noncriminal violations of the Federal Election Campaign Act “cannot be compromised or waived by the Department of Justice.”
So what went wrong at the Justice Department? It’s possible that it simply didn’t do a civil analysis, which the memorandum requires it to do in order to determine whether there was a “probable violation” that must be referred to the F.E.C. Or it’s possible that the department did do a civil analysis and inexplicablydecidedthat Mr. Trump’s phone conversation with the Ukrainian president didn’t rise to even aprobableviolation of election law under the much lowercivilstandards. It’s hard to know which would be more damning.
It’s worth emphasizing that this memorandum remains in full effect, though there have beendiscussions between the Justice Department and the F.E.C.about augmenting it with specific details on exactly how each agency should follow the memorandum’s guidance in situations like this one — discussions that seem well worth resuming when, in years to come, the Justice Department begins to care again about enforcing such laws.
One indication that the memo’s dictates remain required protocol? Just six years ago, it was cited ina public memorandumwritten by the F.E.C.’s vice chairman at the time.
His name? Mr. Trump’s own former White House counsel — Don McGahn.