Time for Weintraub to Step Down?

June 5, 2017   •  By Brad Smith   •    •  

Federal Election Commissioner Ellen Weintraub’s actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner. She should recognize this predicament and do the honorable thing, which is to resign.

Back in February, Commissioner Weintraub created a bit of a stir when she issued a public statement, on FEC letterhead, demanding that President Trump present any evidence that he had supporting the claim that voter fraud prevented him and Senator Kelly Ayotte from winning in New Hampshire. Just a few days before, the President had accused Democrats of bussing voters from Massachusetts into New Hampshire. Initially, Weintraub responded to criticism that her comments were on matters outside her jurisdiction by claiming a general right to speak out on matters of election integrity. When the activist group Cause of Action formally asked the FEC’s Inspector General to investigate whether Weintraub had improperly used government resources[1] for political matters outside the scope of her agency, she began to argue that her demand was within her jurisdiction, claiming that expenditures to bus illegal voters into New Hampshire would have to be reported to the FEC. And, a little too eagerly, she defiantly announced that she would “not be silenced,” although no one had suggested she should be, at least not when speaking on matters pertaining to the FEC, or on any matters at all if not using FEC resources.

The dean of the Democratic election law bar, Bob Bauer, offered a tepid defense, arguing that Weintraub did have a right to voice her opinion, even on matters outside her authority, and that any use of government resources was trivial — surely far less than would be used to investigate whether government resources were improperly used. That argument has merit, so far as it goes. But it goes only to the question of an IG investigation and the narrow legality of the Commissioner’s letter. The underlying problem is not merely the trivial amount of government resources used, perhaps in violation of statutes and ethics rules by Commissioner Weintraub, or her claim that she is being “silenced.” Rather, Weintraub’s insertion of herself, using her official imprimatur, into the President’s comments raises questions as to her judgment, impartiality, and ability to properly carry out her duties at the FEC.

Federal Election Commissioners are to be appointed in part based on their “impartiality, and good judgment.” 52 U.S.C. §30106(a)(3). They are subject to the Standards of Ethical Conduct for Employees of the Executive Branch, set forth in 5 C.F.R. §2635 (See 11 C.F.R. §7.1(b)). §2635.501 requires, in turn, that an employee should use the process of §2635.502 when there should be concern that “other circumstances would raise a question regarding his impartiality.” That process, in turn, requires the employee to seek a determination from the Agency’s ethics officer “as to whether a reasonable person with knowledge of the relevant facts would be likely to question the employee’s impartiality in the matter.” If the ethics officer makes that determination, the employee is disqualified from further participation. And employees should further “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.” 5 C.F.R. §2635.101(b)(14).

These standards leave a good deal of leeway to individual employees, and of course Federal Election Commissioners are entitled to their opinions, in most circumstances entitled to air those opinions, and sometimes expected to comment publicly on policies within the Commission. But these are, nonetheless, the standards by which FEC commissioners are expected to abide.

Commissioner Weintraub has, as they say, “jumped the shark.” Her most egregious violation may have been on display last December. On December 9, Weintraub published in The Washington Post a lengthy diatribe denouncing former FEC Commissioner — and at the time President Trump’s White House Counsel designee — Don McGahn. Weintraub’s obsession with McGahn — who repeatedly bested her when the two disagreed, as they often did, at the FEC — is well known around the campaign finance bar. Literally for years she has publicly criticized McGahn, usually in harsh, personal terms, and often in ways that are grossly misleading. But The Post op-ed was particularly nasty in its rhetoric and misleading in its facts. Calling McGahn “disquieting,” “intransigent,” “hostile to other points of view,” and “determined to undermine the law” (among other things), she suggested that McGahn intentionally violated his oath of office to uphold the Constitution and laws, using disingenuously selective and partial information.[2] She argued that McGahn should not be appointed White House Counsel, accusing him of not “aspir[ing] to the highest ethical standards” or viewing public office as a “trust.”

Given that Commissioner Weintraub has played Captain Ahab to McGahn’s Great White Whale for some time, this might be overlooked. But note that one day before this article appeared in The Post — that is to say, assuredly within a day or two after it was written — Weintraub voted in MUR 6961[3] to reprimand the Trump for President campaign because, she believed, it had failed to report a $12,000 campaign bill quickly enough. The Commission ultimately voted, over the objection of Commissioner Weintraub and one of her fellow Democratic Commissioners, Ann Ravel, to dismiss the matter. But here’s where it gets interesting: the Counsel of Record for the Trump campaign was the Campaign’s General Counsel, Don McGahn.

Let’s leave aside the substantive merits of Weintraub’s position one way or the other: imagine you were before a judge who had just written an op-ed for a newspaper personally attacking your lawyer as “intransigent,” “determined to undermine the law,” “hostile to other points of view,” and generally as one who does not behave “ethically and honorably?” Would you, or a reasonable person, view that judge’s ability to be impartial in your case with some suspicion?

Most people, I think, would answer “yes,” which raises the question of recusal. It is true that recusal is usually triggered by animus against the party, not the party’s lawyer, but particular animus against a lawyer can trigger disqualification. See Sentis Group v. Shell Oil, 559 F. 3d 888 (8th Cir. 2009) (recusal required where judge directed repeated profanities at counsel); see also United States v. Ritter, 540 F.2d 459, (10th Cir. 1976), cert. denied sub nom. Olson Farms v. U.S., 429 U.S. 951 (1976).

Moreover, Weintraub has demonstrated her animus against both McGahn and the President with numerous indiscreet outbursts. For example, on March 23, she sent a letter to the President again insisting, in a lecturing, condescending tone, that the President provide more support for his comments, made six weeks prior, regarding the New Hampshire vote. She included the rather curious argument that there should be no investigation of voter fraud, while simultaneously repeating her new position that it would be a matter for a FEC investigation because expenses for transporting illegal voters to New Hampshire from Massachusetts would have to be reported.

To take another example, when the President announced the appointment of a commission to review and advise him on issues of “election integrity” in May, Weintraub fired off a statement expressing her “concern,” including an ad hominem attack on the commission vice-chair, Kansas Secretary of State Kris Kobach, and stating that there should be no investigation because there is “vanishingly little voter fraud.”

The idea that Commissioner Weintraub intended either of these statements as actual advice to the President is not intended to be taken seriously. Whether one agrees with Commissioner Weintraub or not, these are simply political statements, using her position at the FEC to comment on issues outside the FEC’s jurisdiction. Framing them as missives to the President is a cheap political prop.

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” But there are three problems with this rather dubious disclaimer. In ascending order of difficulty:

First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? Trump has already filed re-election papers, and under FEC regulations he is a candidate for re-election. So if something now comes before Commissioner Weintraub, does she really pass the impartiality test?

Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. Thus, it would appear that she would have to recuse herself from any FEC vote to open an investigation into whether Russian agents bought ads on Facebook.

Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations. The Politico article in which she called for an investigation reminds us that in fact Free Speech for People and Campaign for Accountability had already filed complaints with the FEC alleging that “the Government of the Russian Federation (Russian Government) deliberately attempted to influence the 2016 U.S. presidential election in order to assist the candidacy of Donald J. Trump ” and adds that “if the investigation proceeds apace, agency staff could be expected to incorporate the recent revelations about Facebook ads into their fact-finding.”

The day after the Politico piece was published, in an interview on CNN, Commissioner Weintraub renewed her pursuit of McGahn, calling him a “chaos agent,” accusing him again of “trying to obstruct investigations … obstruct enforcement of the rules, and making it very difficult to enforce the laws.” After ritually stating that she didn’t know what advice McGahn was giving the President, she then speculated that McGahn was advising the President to ignore government ethics rules, an implicit attack on the President as well as the White House Counsel. And, as usual, she repeatedly accused McGahn of failing to enforce the law.

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. See Stivers v. Pierce, 71 F. 3d 732 (9th Cir. 1995) (bias on part of one single member of tribunal taints proceedings and violates due process); Cinderella Career & Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583 (D.C. Cir. 1970) (“Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.”).

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard.

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

[1] See 5 C.F.R. §2635.101(b)(9); 5 C.F.R. §2635.704-705.

[2] A full treatment of the lack of merit behind Weintraub’s allegations would require a far longer post, but a review of one point in particular will give a flavor of the flagrant frivolity of Weintraub’s criticisms. One of Weintraub’s claims is that McGahn refused “to enforce laws adopted by Congress,” citing as support a McGahn statement that “I’m not enforcing the law as Congress passed it.” She truncates the quote to omit McGahn’s specific statement that he was interpreting the law as passed by Congress and interpreted by the Supreme Court, saying, “the court has said certain [portions of McCain-Feingold] are unconstitutional.” McGahn was making the point that no Commissioner doing his or her job could rightfully “enforce the law as Congress passed it” — because much of that law “as passed” has been invalidated by the courts. Weintraub’s knowing use of a selective quotation cannot be described as anything but fundamentally dishonest.

Having criticized McGahn for interpreting the statute in accordance with Supreme Court precedent, Weintraub, in a remarkable bit of jujitsu, shifts gears and implicitly accuses McGahn of ignoring the Supreme Court, suggesting he disregarded the Court’s ruling in Citizens United v. FEC by “block[ing] all attempts to rein in unreported dark-money spending.” This allegation took some real chutzpah, given that it is Weintraub, not McGahn, who has been relentlessly critical of the Citizens United decision, and given that nothing in Citizens United required the FEC or Congress to amend or write new disclosure rules to “rein in unreported dark-money spending.” In fact, the FEC’s statute almost certainly precludes the Commission from writing new disclosure rules that Weintraub has consistently tried to get the Commission to write. In short, it is Weintraub whose tenure has been marked by hostility to both the Supreme Court’s decisions and Congress’s statutory limits.

[3] For non-campaign finance geeks, a “MUR” — “Matter Under Review” — is FEC-speak for an enforcement action.

Brad Smith

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