McGahn, Trump’s Counsel Pick, Fought Regulation as FEC Member

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By Kenneth P. Doyle

Nov. 28 — President-elect Donald Trump, battling criticism about potential conflicts of interest even before he takes office, is set to be represented in the White House by a tough Washington lawyer whose fight against strict regulation of politics was a hallmark of his five-year tenure on the Federal Election Commission.

Donald McGahn, who was named Nov. 25 as Trump’s White House counsel, built his reputation as a Republican appointee on the FEC in repeated clashes with Democratic commissioners and FEC staff members. He battled to limit the extent of the agency’s authority to investigate and take enforcement action against candidates and others accused of violating campaign finance laws.

These clashes may have helped prepare McGahn for battles Trump could face as critics call on him to separate his business interests from his new job as president. So far, Trump has not announced any formal steps to guard against conflicts of interest and has maintained that laws barring such conflicts don’t apply to the president.

McGahn Sought to Limit FEC Staff

While at the FEC, McGahn insisted that agency staffers, in particular, were limited in their ability to enforce campaign finance laws without the support of a majority of FEC commissioners. The six-member commission—divided among three commissioners appointed by Democrats and three Republicans—frequently deadlocked along party lines in key enforcement and legal matters, leading to inaction.

Clashes with McGahn preceded the departure in July 2013 of the FEC’s general counsel, Anthony Herman. McGahn left the FEC two months later, shortly before the Senate confirmed his successor, Lee Goodman. McGahn said the timing of his departure was prompted by an opportunity to return to private law practice.

“I’ve accomplished everything I set out to do as a commissioner and more,” he said in a statement issued at the time.

McGahn returned to the law firm Patton Boggs, where he had worked prior to joining the FEC. Later, lawyers in the political law practice of Patton Boggs, including McGahn, moved to the firm Jones Day, where McGahn’s clients included Trump’s 2016 presidential campaign. McGahn now also serves as general counsel to Trump’s presidential transition team.

Trump Involved in Deadlocked FEC Case

McGahn maintained while at the FEC that he was motivated by a desire to bring transparency to the agency’s enforcement processes and to guard against what he viewed as the threat of unfair or partisan action by FEC staffers. Others suggested the FEC commissioners were more prone to partisanship than the agency’s professional staff and that the effect of McGahn’s actions often was to help protect both Republicans and Democrats from facing consequences for alleged illegal campaign finance activity.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

Statement Blasted FEC Staff

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

“Apparently, the scope of the investigation is left entirely to the discretion of individual OGC attorneys, as in some cases a voluminous amount of materials is sent to respondents, while in other cases, nothing is sent,” they added. “This practice creates an acute risk of exposure to accusations of partisanship and selective prosecution.”

One of Many Deadlocks

The Trump case was one of many enforcement matters that led McGahn to clash with FEC staff and join in deadlocked votes of the commissioners.

McGahn and the other FEC Republican commissioners serving with him frequently disagreed with Office of General Counsel staff recommendations in enforcement matters, requiring the commissioners and their executive assistants to write numerous statements of reasons over the five years McGahn served on the FEC. The commissioners sometimes took months or even years to file the statements, which are required under FEC rules and precedents.

The FEC Republicans proposed to eliminate the requirement for these statements in a controversial plan for a new enforcement manual that McGahn pushed while on the FEC, but the change was never finalized.

A Bloomberg BNA search of closed cases found nearly 90 enforcement matters in which statements were filed by the Republican commissioners between 2008 and 2013. Nearly all of the cases were dismissed on deadlocked votes of the commissioners.

Pocket Constitution

While many of these votes resulted in the dismissal of cases involving Republicans, some also ensured that Democrats would be saved from an FEC investigation or other enforcement action. McGahn and the other FEC Republicans insisted their actions were intended to prevent aggressive enforcement action against all political activity, which a series of Supreme Court decisions over the last decade held to be highly protected by the First Amendment.

In one of a spate of statements released by the FEC around the time of his departure, McGahn, wrote for only himself in a case the commissioners had voted unanimously to dismiss. He faulted language in an FEC general counsel’s report that suggested a candidate’s distribution of a pocket U.S. Constitution could be regulated.

The FEC counsel’s report on the case involving an unsuccessful Republican House candidate named Mike Moon (MUR 6627) noted the pocket Constitution distributed by the candidate had a “Mike Moon for Congress” sticker, along with the candidate’s website address, but did not have a disclaimer saying who paid for it. While recommending dismissal of the matter because of the apparently small amount of money involved, the FEC staff report said that disclaimers are required to say who paid for political messages, even if they are affixed to the Constitution.

McGahn’s statement suggested the FEC attorneys writing the counsel’s report were motivated by the fact that Moon was “a Tea Party candidate handing out pocket Constitutions” and not by the rules.

“The Constitution was written more than 200 years ago. Although certainly out of fashion in some modern circles, it is hard to imagine that it could be equated to a campaign pamphlet or flier, or that it is the sort of subversive speech that requires a government-approved disclaimer,” McGahn said.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

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