FEC Complaint Alleging Trump Election Fraud Revived on Appeal

An after-the-fact filing from the Federal Election Commission isn’t enough to dismiss claims Trump’s 2020 campaign violated election law, the DC Circuit ruled Friday.

The Trump campaign solicited funds for allied super PAC America First Action in violation of election law, alleged the End Citizens United PAC. With one member of the FEC recused, and despite the commission’s general counsel recommending an investigation, the vote to investigate the allegations deadlocked 3-2 and was closed.

End Citizens United sued for an explanation, but the Commission never defended itself in the US District Court for the District of Columbia, except for the two dissenting commissioners—then Vice Chair Allen Dickerson and Commissioner Sean J. Cooksey—who said in a statement they used their prosecutorial discretion to decline to investigate. The lower court determined that, though the statement came four days after the PAC filed their complaint, this was enough to dismiss a motion for default judgment.

But the commissioners “were obligated to issue a contemporaneous statement” explaining their votes, Judge Judith W. Rogers of the US Court of Appeals for the DC Circuit wrote, reversing the lower court.

The court rejected arguments that the failed vote should’ve been reason enough, and that the statement sent to the court should’ve served as an amplified explanation for the court.

As “judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action,’” contemporaneous explanation is crucial, the court said.

That Cooksey and Dickerson were “proper decisionmakers” didn’t exempt them from the judiciary’s usual prohibition on post hoc explanations, “where no rationalization exists” to amplify, Rogers ruled.

It doesn’t matter if the FEC may rightly dismiss the case on remand later, there are “important values of administrative law” like agency accountability at play in requiring the commission to follow regular procedure, the court said.

They cannot hide behind “convenient litigating positions” only to “invoke prosecutorial discretion when its silence is challenged,” Rogers wrote.

The court noted that “the Commission’s composition has apparently changed since its dismissal of ECU’s administrative complaint.”

Cooksey now serves as Vice Chair instead of Dickerson, and independent Steven T. Walther left the FEC, replaced by Democrat Dara Lindenbaum.

Judges Robert L. Wilkins and David S. Tatel joined in the opinion.

Gibson, Dunn & Crutcher LLP argued as amicus for an FEC that didn’t defend itself before the appeals court either.

Campaign Legal Center represented End Citizens United PAC.

The case is End Citizens United PAC v. FEC, D.C. Cir., No. 22-05176, 6/9/23.