Republican Federal Election Commissioner Trey Trainor is expected to criticize the Justice Department for its “dangerous” failed intervention in Democratic Manhattan District Attorney Alvin Bragg’s prosecution of former President Donald Trump, according to congressional testimony obtained exclusively by the Daily Caller News Foundation.
House Judiciary Committee Hearing Regarding Bragg’s lawsuit against Trump, Trainor described the Justice Department’s decision not to intervene in the case as setting a “dangerous precedent for the expansion of local prosecutorial powers in matters of federal concern” and uncovered how Bragg “used federal jurisdiction that is clearly reserved to federal authorities” when attempting to enforce campaign finance laws, one of three crimes Bragg alleged Trump tried to conceal by falsifying business records.
Trainor argues that the Biden Justice Department should have stepped in when Bragg, the local prosecutor, was effectively trying to enforce federal campaign finance laws, and that failing to do so has made Trump’s trial a major focus of the 2024 election.
“Given that U.S. Supreme Court precedent has decisively favored strict protection of federal agencies’ ability to enforce federal law, we question why Attorney General Merrick Garland and the Department of Justice have not intervened in the prosecution of Donald Trump,” Trainor’s written testimony reads. “The Department frequently touts its memorandum of understanding regarding sensitive election-year issues as a reason for inaction on certain matters of a political nature, but the purpose of this policy is to mitigate the impact that legal action may have for or against a candidate or political party.”
“Had the Department of Justice intervened earlier to protect the jurisdiction of the Federal Election Commission and prosecute federal campaign finance laws, I believe we would not be here today debating this issue, and this issue would not have become a top issue in the 2024 presidential election,” he continued. (Related article: Annotating Garland’s Washington Post op-ed with facts)
Missouri Attorney General Andrew Bailey and Florida International University law professor Elizabeth Foley are also scheduled to testify Thursday.
A Manhattan jury last month convicted Trump on 34 counts of falsifying business records in connection with reimbursing Michael Cohen for a $130,000 non-disclosure agreement with porn actress Stormy Daniels.
In filing these charges as felonies, Bragg argued that the charges were made to conceal or commit another crime: conspiring to influence the 2016 election through unlawful means.
Thanks to Judge Marchan’s instructions that did not require the jury to agree on secondary offenses, the public still doesn’t know which of the three misconduct prosecutors allege Trump was guilty of covering up — campaign finance violations, tax violations or falsifying additional business records.
Leaving aside any due process issues that would arise on appeal, Trainor said the Justice Department did not intervene because it had already investigated campaign finance issues and failed to find any crimes committed by Trump, pointing to footnotes in two Federal Election Commission documents that were redacted at his request on May 31.
The unredacted documents show that “the Department of Justice had no problem intervening in eight ongoing FEC investigations into $130,000 payments that were allegedly falsely reported on campaign finance reports.”
In his testimony, Trainor explained that the commissioners faced a statute of limitations issue after the Justice Department’s investigation ended “because the Department of Justice fully intervened in the Federal Election Commission’s ongoing investigation.”
“Clearly, the Department of Justice is quite familiar with the federal campaign finance issues prosecuted by Alvin Bragg,” Trainor argues, “and its lawyers knew the extent to which they exercised federal jurisdiction, investigated, and found no illegal conduct by anyone other than Michael Cohen.”
In 2021, FEC Commissioner Stuck After Republican commissioners voted to dismiss a case against Trump over his non-disclosure agreement with porn star Stormy Daniels as an “exercise of prosecutorial discretion,” Democratic commissioners at the FEC were outraged, saying they had no other way to hold Trump accountable.
“In sum, the public record regarding the conduct at issue in these complaints is complete, and Mr. Cohen has been punished by the United States government for the conduct at issue in these complaints,” commissioners Trainor and Sean Cooksey said. I have written The reasons given at the time were as follows:
An unedited footnote in the document notes that the FEC’s delay in action was due in part to the Commission’s “compliance with a request from the U.S. Department of Justice to put these matters on hold.”
The Washington Post, May 2021 EditorialDemocratic FEC Commissioner Ellen Weintraub Hit She criticized her colleagues for their decision to “dismiss” the lawsuit, writing that under current law, “no court can overturn this decision.”
NEW YORK, NY – MAY 30, 2024: Manhattan District Attorney Alvin Bragg stands with staff during a press conference following the conviction of former U.S. President Donald Trump in his hush money trial on May 30, 2024 in New York City. (Photo by Spencer Pratt/Getty Images)
The Department of Justice did not respond to DCNF inquiries about why it did not intervene in the case. Other FEC commissioners did not respond to requests for comment.
Other legal experts told the DCNF that the law is clear about who has the authority to enforce federal campaign finance laws, and it’s not Alvin Bragg.
“The Department of Justice and the Federal Election Commission could have intervened in this case through letters of notice or motions to intervene, contesting the allegations of violations of federal campaign finance laws and explaining that the Federal Election Commission has exclusive civil jurisdiction and the Department of Justice has exclusive criminal jurisdiction over the enforcement of federal campaign finance laws,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Law and Judicial Studies, told DCNF. (Related article: Trump’s sentence shouldn’t involve prison time, but with this judge, anything is possible)
In a 1976 decision, the Supreme Court “interpreted the provisions of U.S. criminal law as giving the FEC primary oversight over enforcement and disclosure requirements for political contributions and expenditures by individuals, political organizations, and candidates.” Buckley vs. Valeo Daniel Epstein, vice president of the America First law firm, told DCNF the decision was the right one.
“Interestingly, the Buckley Court noted that Congress has granted individuals a public right to petition the Federal Election Commission for adjudication,” Epstein explained. “By taking federal law into his own hands, District Attorney Bragg has actually violated that public right afforded to U.S. citizens, because his enforcement plan circumvented the oversight Congress gave individuals to petition the federal government by circumventing their ability to oversee his enforcement.”
Similarly, Epstein noted that the Supreme Court has “made clear that federal election laws may only be criminally enforced by the Attorney General of the United States.” South Carolina v. Katzenbach.
Epstein said Congress could monitor Bragg’s office and the Supreme Court to hold him accountable for “violating its power to pass all laws necessary and proper to enforce the Commerce Clause and other powers giving Congress exclusive legislative power to enforce election laws that apply to interstate activities.”
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