Law & the Courts

‘Deep FEC’ Goes After White House Counsel Don McGahn

McGahn during the presidential campaign, June 2016. (Reuters photo: Brendan McDermid)
Unnamed bureaucrats criticize Trump’s White House counsel for enforcing the law at the FEC.

The hot political buzz phrase in the early Trump administration is “Deep State.” The phrase was originally coined to refer to the government’s military and intelligence apparatus, which some believe dictates foreign policy and controls politicians through its access to classified information. Some speculate that it caused General Michael Flynn’s rapid fall from the post of national-security adviser: Career employees in the nation’s intelligence apparatus allegedly spied on the general and leaked information to bring him down.

These days many are also using the term to include the career bureaucracy that, it is argued, frustrates electoral control of government domestic policy. Recently, elements of this domestic Deep State may have supported, if not launched, an attack on President Trump’s White House counsel, Don McGahn. Last month a 2,500-word hit piece by Nancy Cook was published in Politico magazine with signs of Deep State intervention. Cook’s article explores McGahn’s tenure as a commissioner of the Federal Election Commission (FEC) from 2008 to 2013. The article asserts that this record shows that McGahn would be an “enabler” of unethical and possibly even illegal behavior in the Trump administration. In fact, the truth is the opposite. McGahn is a careful lawyer who insisted that the agency follow the law and its own regulations.

Cook builds her case on anonymous comments from “a former FEC lawyer,” “former FEC official[s],” “longtime staffers,” “former FEC staffer[s],” and “former senior official[s].” The quotes and anecdotes that follow those titles constitute nearly all the article’s negative comments about McGahn’s tenure at the FEC. The lone exception is the regurgitation of months-old public comments by the FEC’s most partisan commissioner, Democrat Ellen Weintraub, whose husband was, until January, a top staffer to then–Democratic Senate leader Harry Reid.

Since we don’t know how Cook uses the labels she gives to her anonymous sources, it’s pretty much impossible to say where the comments come from. I assume Cook would not make the quotes up, but for all the reader knows, they may simply be the comments of political aides to Democratic commissioners. To the extent that they come from career bureaucrats within the FEC, however — and Cook seems to imply that at least some of them do — they are quite troubling.

Many conservatives view the career bureaucracy as, if not their enemy, at least their pointed skeptic, and an obstacle to conservative policy goals. Though often overstated, there is almost certainly some truth in this. People who choose to make their career in a government agency will generally tend to look favorably on the regulatory activities of that agency. They will tend, on the whole, to be skeptical of efforts to deregulate, which are, more often than not, led by conservative political appointees. And they will tend to be more enthusiastic about expanding the agency’s role, which, beyond their own policy preferences, may offer greater opportunities for career advancement. With civil-service protection, poor performance — for example, foot-dragging on a deregulatory effort ordered by a Republican president and agency head — is difficult to weed out. This can occur without any conscious attempt to defy the agency head. We all naturally tend to be more enthusiastic when we agree with a mission, more grudging when we do not.

This natural tendency is tempered by the bureaucracy’s sense of professionalism. The best civil servants set aside their ideology, recognizing that the people have chosen their leaders. They see their role as serving the nation by doing the best possible job of implementing the directives and policies of the officials, appointed by the president, who run the agencies. In that way, responsible civil servants work to ensure that the democratic process functions as intended.

If career staffers at the FEC are now attempting to sabotage the work of the commissioners — who are, by law, entrusted with running the agency — that’s frightening. The establishment of a Twitter group called altFEC that claims to be “the unofficial resistance team of the U.S. Federal Election Commission” suggests exactly that. Current and future commissioners may, quite naturally, see the staff as an opposition that cannot be trusted. It only takes a few such bad eggs on the staff to taint the entire civil service.

Wherever these comments originate, the big clue that Cook and her anonymous sources are unserious is the nature of the attacks made on McGahn. He’s “a one-man wrecking crew,” “not going to be a truth-teller,” a “bomb-throwing enabler” — you get the picture. Yet conspicuously absent is any allegation that McGahn behaved unethically, failed to follow the law, or treated staff, investigative targets, or complainants unfairly. Rather, the sources offer the generic griping of people who did not agree with McGahn on policy and were frustrated by his success at the FEC.

Conspicuously absent is any allegation that McGahn behaved unethically, failed to follow the law, or treated staff, investigative targets, or complainants unfairly.

The few actual anecdotes Cook relays are rendered in tendentious and cartoonish form. For example, she tells us that “in a meeting with Ellen Weintraub,” McGahn “grew so frustrated that he ripped out the pages of a rule book and flung them toward her to make his point.” This is an almost comical description of the event. Far from “a meeting with” Weintraub, this event occurred at a regularly scheduled — and public — Commission meeting with all six commissioners present. One can listen here. (McGahn’s comments begin at 43:55.) McGahn did not “fling” anything at Weintraub. Rather, after Commissioner Weintraub admitted that she would ignore the agency’s regulations to rule against an advisory opinion requested by a conservative group, McGahn engaged in the theatrics of ripping three pages out of the FEC’s regulations, which he tossed on the table. (You can hear this at 57:52 of the tape.) Weintraub was doing exactly what McGahn’s anonymous accusers complain he did — she was ignoring the law to reach a desired result.

Another story relayed by Cook is that McGahn “wanted to prevent FEC lawyers from even Googling news stories about cases they were investigating” because “extra information from candidate websites, YouTube videos and business databases — sources many FEC believers felt were crucial to their work — overstepped the agency’s authority.” Those familiar with the FEC know the full story. Under the Federal Election Campaign Act, the FEC is supposed to open an investigation only if a majority of the Commission votes to do so. Unfortunately, the FEC’s legal staff had gotten in the habit of conducting unauthorized “pre-investigation investigations.” The staff would, without Commission approval, spend weeks or even months investigating and adding to complaints filed with the agency. This included reviewing the types of public sources identified by Ms. Cook. These pre-investigations were sometimes used to expand the complaint far beyond its original claims or targets. It was not uncommon for them to last over a year before the matter finally came before the Commission to formally launch an investigation.

For an agency that is already routinely criticized by so-called “reformers” for handling complaints too slowly, these pre-investigations were often a major choke point. McGahn thought this was an ineffective use of time and contrary to the law: The Commission, not staff, had to authorize an investigation. McGahn’s proposal, had it been adopted, would have reinstated the original statutory scheme in which an investigation did not begin without a Commission vote. McGahn also sought, as Cook notes, to instruct FEC staff not to refer matters to the Department of Justice for criminal prosecution without a Commission vote. Again, McGahn’s proposal merely sought to restore the Commission itself to its rightful position in the federal law that created the agency.

When Cook turns to actual cases at the FEC, things get even stranger. She notes that “McGahn and another Republican commissioner even once wrote an opinion in favor of Trump, arguing that one of the real estate mogul’s websites could accept money from corporations without limits during the 2012 campaign because Trump himself had never officially filed paperwork to run for office or become a candidate.” Most thinking people would find it strange to subject a person who never became a candidate to campaign-finance regulations on candidates. Indeed, it’s hard to find a better example of the FEC’s tendency to overreach, a tendency that McGahn worked to rein in. (And, for the record, a third commissioner also concurred in McGahn’s opinion.) Yet Cook bizarrely suggests that this shows McGahn’s unwillingness to vigorously enforce campaign-finance regulations.

As another example, Cook writes, “McGahn and his fellow Republicans argued that a complaint against Freedom’s Watch, a 501(c)4 founded by Bush administration alumni, should be dismissed — even though the group had failed to disclose its donors; the complaint, Republicans argued, did not contain enough evidence to show that the money had been donated expressly to influence elections.” Of course, money that is not donated to influence elections generally is not subject to campaign-finance laws, and therefore is not subject to donor disclosure under the law. The accusatory tone notwithstanding, the Republican commissioners’ position is aligned with both the law and common sense. Funds not contributed for campaigns are not subject to disclosure under the Federal Election Campaign Act.

In the end, one is left with the distinct impression that Cook and her sources simply disagreed with Don McGahn and other Republican commissioners on the proper interpretation of the law and facts. Perhaps they also hated the fact that McGahn was effective in winning these fights within the agency.

Meanwhile, if the nameless former FEC “staffers,” “lawyers,” and “officials” quoted by Cook were merely Democratic political appointees and their aides, she has done a disservice to the civil service. If, on the other hand, this is a “Deep FEC” operation of career staff, they do a disservice to their more professional colleagues, and to the republic they are supposed to serve.

— Bradley Smith is the chairman of the Center for Competitive Politics. He was previously the chairman of the Federal Election Commission.

Bradley A. Smith, former chairman of the Federal Election Commission, is chairman of the Institute for Free Speech and a visiting fellow in the James Madison Program at Princeton.

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