Marcus v. US Attorney and FEC Chairman [formerly Marcus v. Mukasey; Marcus v. Gonzales]

Background

During February and March 2007, Barry Bialek, Jon Marcus and Jack and Renee Beam filed separate, but substantially similar complaints with district courts in Colorado, Arizona and Northern Illinois, respectively, alleging that the Commission violated the Federal Election Campaign Act (the Act) by "tacitly cooperating and conspiring with" Attorney General Alberto Gonzales to circumvent the Act.

According to the complaint filed February 14, 2007, Plaintiff Barry Bialek made contributions towards John Edwards’ 2004 Presidential campaign. In November 2005, the U.S. Attorney General began an investigation into possible violations of the Act by the plaintiff. See April 2007 Record. The plaintiff filed a complaint with the District Court in Colorado, alleging that the Commission must refer, by a vote of the majority of the Commission, a matter to the Attorney General prior to the Attorney General investigating or prosecuting a violation of the Act.

These cases are related to the Fieger v. Gonzales case currently pending in the Eastern District of Michigan, in which Geoffrey Fieger alleges that the Act grants the Commission exclusive jurisdiction over criminal violations and bars the Department of Justice from conducting any grand jury investigations unless and until the Commission makes a referral. See March 2007 Record.

Complaints

The plaintiffs made contributions to John Edwards’ 2004 presidential campaign. According to the complaints, the plaintiffs are being investigated by the Department of Justice for violations of the Act. Mr. Bialek was summoned before a grand jury in November 2006 and Mr. Marcus was summoned before a grand jury in October 2006.

The plaintiffs assert that by giving "exclusive jurisdiction" over the Act to the Commission, Congress determined that no criminal investigation can take place unless the Commission has formally referred the criminal matters to the Attorney General. The plaintiffs claim that the Attorney General’s investigations are unlawful and unconstitutional since the Commission did not refer the plaintiffs’ alleged violations to the Attorney General.

In addition to those allegations, the Beam plaintiffs allege that Attorney Gonzales intentionally interfered with the Commission’s investigation and that the Commission’s failure to conduct its own investigation violates the Act and the Administrative Procedures Act.

The Bialek and Marcus complaints seek a declaration that the defendants’ actions are unlawful and the award of costs and attorneys’ fees. In addition to this relief, the Beam complaint asks the court to declare the that the Commission has failed to uphold the Act and to issue a Writ of Mandamus requiring the Commission to conduct its own investigation into the matter prior to any investigation by the Attorney General.

Plaintiff Marcus

On March 10, 2008, the U.S. District Court for the District of Arizona granted the Commission’s motion to dismiss the suit filed by Jon Marcus against the U.S. Attorney General and the Chairman of the FEC, and denied the plaintiff’s motion for declaratory judgment, holding that the Attorney General has discretion over whether to investigate and prosecute criminal violations of the Federal Election Campaign Act (the Act) and is not required to wait for a referral of a case from the Commission.

In this case, the court agreed with the court decisions in Barry Bialek v. Gonzales, et al. and Geoffrey N. Fieger, et al. v. Gonzales, et al. that the plain language of the Act does not "infring[e] the Attorney General’s plenary power to enforce criminal violations of the Act." The court further found that the Act’s legislative history "demonstrates that Congress did not intend to limit or displace the Attorney General’s independent authority to pursue criminal violations of the Act, and that prior case law has held that criminal enforcement may either originate with the Attorney General or stem from a referral by the Commission to the Attorney General."[1]

The court denied the plaintiff’s motions for a hearing and oral arguments and for declaratory judgment and granted the Commission’s motion to dismiss the complaint with prejudice.

The plaintiff filed a Notice of Appeal in this case on March 18, 2008.

FOOTNOTES:

[1] The court specifically rejected the plaintiff’s assertion that 1980 amendments to the Act had overturned United States v. International Union of Operating Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979).

• Bialek v. Mukasey [formerly Bialek v. Keisler; Bialek v. Gonzales], U.S. District Court for the District of Colorado, 07-CV-00321-WYD-PAL.
• Marcus v. US Attorney and FEC Chairman (08-15643, 9th Cir.) [formerly Marcus v. Mukasey; Marcus v. Gonzales, U.S. District Court for the District of Arizona, CV070398-PCT-EHC].
• Beam v. US Attorney and FEC Chairman [formerly Beam v. Gonzales], U.S. District Court for the Northern District of Illinois, 07CV1227.

Source:   FEC Record — August 2008; May 2008; August 2007; April 2007

Appeals Court (9th Circuit) (08-15643)

Court decisions:

• Opinion (07/30/2009)

Related documents:

• Brief of the Attorney General (07/25/2008)
• Appellant Marcus's Response in Opposition to Defendants' Motion for Summary Affirmance and Stay of Briefing Schedule (05/06/2008)
• Motion of the Attorney General for Summary Affirmance and Stay of Briefing Schedule (04/28/2008)

Appeals Court (9th Circuit) (07-1284)

Related documents:

• Plaintiff-Appellant's Reply Brief on Appeal (08/07/2008)
• Plaintiff-Appellant's Brief on Appeal (04/25/08)

District Court (District of AZ) (CV07-0398-PCT-EHC)

Court decisions:

• Order (03/10/2008)

Related documents:

• Reply in Support of Defendant Federal Election Commission's Motion to Dismiss (06/18/2007)
• Defendant Attorney General's Reply Memorandum in Support of His Motion to Dismiss (06/01/2007)
• Plaintiff's Reply in Support of Motion for Declaratory Judgment and Response in Opposition to Defendant Gonzales's Motion to Dismiss (05/24/2007)
• Defendant Federal Election Commission's Motion to Dismiss and Its Combined Brief in Support of That Motion and in Opposition to Plaintiff's Motion for Declaratory Judgment (05/04/2007)
• Defendant Attorney General Gonzales's Motion to Dismiss; Memorandum in Opposition to Plaintiff's Motion for Declaratory Judgment and in Support of His Motion to Dismiss (05/04/2007)
• Complaint for Declaratory Relief (02/21/2007)