My prior post examined the often-overlooked and extremely strict requirements for establishing criminal violations under the Federal Election Campaign Act (FECA). Although ignorance of the law usually provides no defense to criminal liability, in FECA, it does. That is, under 52 U.S.C. 30109(d)(1)(A), criminal violations arise only when someone “knowingly and willfully” violates FECA’s requirements.
Under the Department of Justice’s historical approach, the “knowingly and willfully” language meant that FECA’s criminal provisions reached only those who specifically knew “what the law required” and violated the law “notwithstanding that knowledge.” U.S. DOJ, Federal Prosecution of Election Offenses, p.135 (7th Ed.) (May 2007). In other words, the defendant must have “acted in conscious disregard of a known statutory duty or prohibition.” Id. As a practical matter, this high mens rea standard made successful FECA criminal prosecutions unlikely, except in relatively straightforward circumstances.* Unless the government could show that the defendant knew about the specific FECA provision at issue and openly flaunted it, the defendant would escape criminal liability. My prior post suggested it was highly unlikely that Donald Trump Jr. had the relevant campaign finance law expertise necessary to establish a FECA criminal violation.
However, the DOJ recently relaxed its standards for FECA prosecutions. Under the new DOJ Manual, defendants no longer need to exhibit specific knowledge about FECA. Rather, a defendant can satisfy the “knowingly and willfully” standard when she generally knows that her conduct violated the law. See U.S. DOJ, Federal Prosecution of Election Offenses, p.152 (8th Ed.) (Dec. 2017) (relying on Bryan v. United States, 524 U.S. 184 (1998)). See also United States v. Whittemore, 944 F. Supp. 2d 1003, 1007 (D. Nev. 2013), aff’d, 776 F.3d 1074 (9th Cir. 2015) (Under FECA, the “‘[g]overnment must prove that [the defendant] intended to violate the law (whatever the law was); but it need not prove awareness of the specific law’s commands.’”) (citations omitted); United States v. Starnes, 583 F.3d 196, 211-12 (3d Cir. 2009) (adopting similar approach for the “knowingly and willfully” requirement under 18 U.S.C. 1001).
Under the new DOJ Manual, successful FECA prosecutions still face major hurdles, because ignorance of the law remains a defense. See DOJ Manual at 123 (FECA “creates an elevated scienter element requiring, at the very least, that application of the law to the facts in question be fairly clear. When there is substantial doubt concerning whether the law applies to the facts of a particular matter, the offender is more likely to have an intent defense.”) But it is surely easier to show that the defendant knew about the law generally than about the law specifically, especially where the defendant is not a lawyer. Thus, the new DOJ standards will allow some prosecutions to move forward that the prior standards did not.
Of course, that a prosecution moves forward does not mean it will be successful. The new DOJ Manual finds support in the case law but, as the manual itself acknowledges, the law in this area remains under development. Additionally, the new DOJ Manual does not discuss Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012). In that case, the court, in dicta, concluded that establishing criminal penalties for FECA violations “require[s] proof of the defendant’s knowledge of the law.” 800 F. Supp. 2d at 292. It also strongly implied that the absence of knowledge about specific provisions would defeat a prosecution.
Whatever the theoretically correct mens rea standard might be, the new DOJ Manual governs Special Counsel Robert Mueller and allows further flexibility in his prosecution decisions. See 28 C.F.R. 600.7(a) & (d) (Special Counsel governed by DOJ policies and failure to follow those policies establishes grounds for dismissal). Additionally, as discussed by Professor Rick Hasen at Slate, Michael Cohen may have committed FECA violations in connection with his payment to Stormy Daniels. The new DOJ Manual would also lower the bar to prosecution in that matter.
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This post may be updated.
- If Trump Jr. Didn’t Know Campaign Finance Law, He Didn’t Break It
- Michael Cohen, Hush Money, and Trump’s Potential Criminal Liability
*See id. at 151 (“In light of the limitation of FECA’s criminal provision to offenders who flout a known statutory duty or prohibition, any situation when the application of the law to the facts is unclear does not easily produce a prosecutable FECA crime.”).