[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Notices]
[Pages 24986-24989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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