The Federal Election Commission’s 3-3 deadlock on a prior complaint from December 2016 effectively shields the Russian government and Trump’s 2016 presidential campaign from accountability for violating federal election laws.

WASHINGTON, D.C. (Mar. 10, 2022) – Nonpartisan, nonprofit organizations Free Speech For People and Campaign for Accountability today filed a federal lawsuit against the Federal Election Commission (FEC) seeking declaratory and injunctive relief for the Commission’s deadlock and failure to investigate a five-year-old complaint regarding the Russian government’s political spending in the 2016 election and coordination with former President Trump’s campaign.

In December 2016, Free Speech For People and Campaign for Accountability filed a complaint with the Federal Election Commission (FEC) against the Russian Federation and the Trump campaign. The 2016 administrative complaint alleged that the Russian government paid for computer hacks, social media posts, and paid political advertisements to influence the 2016 election, and that the Trump campaign engaged in “coordination” with the Russian government.

The FEC’s nonpartisan professional career staff in its General Counsel’s office recommended that the FEC find “reason to believe” that the Trump campaign violated the Federal Election Campaign Act (“the Act”) by coordinating with the Russian government, and soliciting and receiving illegal in-kind donations from the Russian government. This misconduct included soliciting Russian assistance in hacking and disclosing emails associated with Trump’s political opponents, as well as soliciting hacked documents from WikiLeaks. The staff also recommended finding reason to believe that the Russian government itself violated the Act, by engaging in an illegal influence campaign in the 2016 election, failing to disclose the money spent on that campaign, and making prohibited in-kind contributions to the Trump campaign, including expending resources to hack Clinton-related servers at Trump’s request. But the FEC split 3-3 on the staff recommendation, and thus blocked the investigation from proceeding.

“Coordination” and “solicitation” are specific legal standards under the Act and the FEC’s regulations, which do not require an agreement between the parties. The findings of the FEC staff underscore the significance of the still unexplained failure of the Mueller investigation and report to consider whether the Trump campaign engaged in criminal coordination and solicitation of unlawful contributions for the conduct alleged in the administrative complaint.  

In December 2021, Free Speech For People and the CfA sued the FEC for unlawful delay. The organizations argued that the FEC’s nearly five-year delay in acting on their initial complaint was contrary to the law and deprived the plaintiffs and the American public of vital information regarding campaign financing in 2016 and potential use of online platforms to corrupt our democracy–information not revealed by the Mueller investigation or other investigations of the 2020 election.

In response to the delay lawsuit, the FEC finally closed its file and released its records in late February 2022. The documents finally released by the FEC showed that the nonpartisan staff of the FEC’s Office of General Counsel identified reason to believe that both the Trump campaign and the Russian government had violated the Act. The staff also noted that “the Special Counsel’s decision not to criminally prosecute individuals associated with the Trump Committee does not govern the Commission’s course of action in these civil matters,” because that decision was “based on considerations that are materially distinct from the Commission’s consideration of these matters in an administrative and civil context.” Among these differences, the staff cited a lower burden of proof, a lower intent requirement, a lower threshold to proceed in the investigative stage, and the absence of a specific monetary threshold for administrative or civil (as opposed to criminal) proceedings. The staff specifically cited multiple instances where the Department of Justice was unable to secure criminal convictions, but the FEC developed a sufficiently strong civil case to induce violators to settle.  

The documents also reveal that the decision to squelch the investigation fell squarely along partisan lines. The three Republican members of the Commission, Vice Chair Allen Dickerson and Commissioners Sean Cooksey and James “Trey” Trainor, argued that the FEC’s own delay in addressing the complaint brought the statute of limitations into play, and that it would be superfluous to take action on top of the investigations conducted by other departments of the federal government. A statement of reasons from Democratic Commissioners Shana Broussard and Ellen Weintraub emphasized the findings of the General Counsel, the aberrant decision by the FEC to not hold Russia accountable for its interference, and the party-line vote, noting, “The Commission’s response to foreign threats should transcend partisan politics.”

“The FEC’s nonpartisan career staff in its General Counsel’s office agreed that, in the 2016 election the Trump campaign committed illegal coordination with the Russian government,” said Ron Fein, Legal Director of Free Speech For People and lead counsel in the lawsuit against the FEC. “The FEC’s shameful 3-3 deadlock missed an important opportunity to hold the Trump campaign accountable for its illegal coordination with the Russian government, and to deter Trump or other politicians from doing it again. Our lawsuit seeks to hold the FEC—and, ultimately, the Trump campaign and its partner in the Russian government—accountable for this shameful episode in American history, and help prevent it from happening again in coming elections.”

Campaign for Accountability Executive Director Michelle Kuppersmith stated, “The FEC never fails to disappoint. Even when it comes to Russian interference in an American election, three commissioners couldn’t bring themselves to vote to uphold campaign finance law. Congress needs to reform this broken agency.” 

After this deadlocked vote, the Commission voted to dismiss the claims against the Russian Federation as a matter of prosecutorial discretion, but rejected an attempt to dismiss the claims against the Trump campaign on that basis.

Today’s lawsuit challenges the FEC’s dismissal of the complaint as “contrary to law” under the Federal Election Campaign Act. The earlier lawsuit over the FEC’s delay was voluntarily dismissed after the FEC released its records.

Read our lawsuit here.

The following documents from the FEC’s files are available on the FEC website:

1. This Office of General Counsel’s First General Counsel’s Report: https://www.fec.gov/files/legal/murs/7207/7207_17.pdf
2. This statement of reasons by Commissioners Broussard and Weintraub re: our complaint: https://eqs.fec.gov/eqsdocsMUR/7207_47.pdf
3. This statement of reasons by Vice Chair Dickerson and Commissioners Cooksey and Trainor: https://eqs.fec.gov/eqsdocsMUR/7207_48.pdf
4. This supplemental statement of reasons by Vice-Chair Dickerson: https://eqs.fec.gov/eqsdocsMUR/7207_49.pdf
5. Links to all of the publicly-posted documents in this matter can be found here: https://www.fec.gov/data/legal/matter-under-review/7207/