Trump Needs To Re-Open The FEC Right Now

This analysis was updated on the afternoon of October 9th, a few hours after it was posted. 

While it is hard to keep track of the flood of malevolence flowing from the White House these days, I want to draw folks' attention to one action from Trump world that looks increasingly sinister - the shuttering of the Federal Election Commission, an independent regulatory body which enforces American election law. 

The FEC has six commissioners, with no more than three from one party. This past summer the Commission was already in a depleted state, as the White House and Senator McConnell had left the FEC with only four Commissioners, three of whom were already serving past the expiration of their term.  On August 26th, one of the two remaining Republican commissioners abruptly resigned, giving just five days notice before his departure, a highly unusual move in this process obsessed town.  This left the FEC with only three commissioners (again all serving past their terms), not enough to achieve a quorum.  More than a month later neither the White House nor Senator McConnell have announced plans to re-open nominations or bring to a vote any new nominee.  The FEC appears to have been taken off line permanently by Trump and McConnell just as the 2020 campaign ramps up. 

For some perspective, here is how the New York Times covered the departure of the 4th FEC commissioner in its August 26th edition:

The resignation of Vice Chairman Matthew S. Petersen, announced on Monday and scheduled for the end of August, will effectively freeze the F.E.C.’s governance, leaving it one person short of a quorum and thus unable to take on some of its most basic actions, including holding board meetings, starting audits, making new rules and levying fines for campaign finance violations.

“Voters should be extremely concerned,” said Ann M. Ravel, a Democrat and former F.E.C. chairwoman who stepped down in 2017 and who has not been replaced. “If you do not have the ability to do any kind of enforcement, then there isn’t any kind of respect for the law.”

It is course scandalous that the White House would allow our election watchdog agency to be taken offline given Russia's successful undermining of our elections in 2016 and judgments from all, including the new Senate Intel Committee report, that these activities haven't ceased and that our elections are in danger again this time.  But a review of new reporting and a timeline of recent events suggests something more venal and permicious about the timing of the FEC's shuttering - for the FEC was shut down on the very same day that the White House learned that credible allegations the President broke felony level election laws here in the US would become public, and just 12 days after a criminal referral of the President was made to the DOJ by the CIA's general counsel.  Let's review:

July 26 - Original whistleblower memo written, quotes US official who had been on the Trump-Zelensky call this way - "the official stated that there was already a conversation underway with White House lawyers about how to handle the discussion because, in the official's view, the President had clearly committed a criminal act by urging a foreign power to investigate a U.S. person for the purposes of advancing his own reelection bid in 2020."

Aug 12 – Ukraine whistleblower complaint filed with the Intelligence Community Inspector General.

Aug 14 – CIA General Counsel makes criminal referral to Department of Justice about the President’s actions based on the whistleblower report.  Among possible laws broken include election laws.  How the White House and DOJ became aware of the potential legal problems for the President and other senior Administration staff. One would assume significant efforts to mitigate potential damages began on this date. 

Aug 22 - In a somewhat suprising turn of events, the President announces he will force a debate at the upcoming G7 about lifting sanctions against Russia for its invasion of Ukraine.  Demonstrates how front of mind Ukraine is to the President at this moment, and how extensive the explicit and implicit threats to Zelensky were during this period.  Indeed the G7 meeting which runs from Aug 24-26 features a very public and spirited debate about forgiving Russia for its invasion of Ukraine. 

Aug 26 – DNI Maguire officially notified of "credible" and "urgent" whistleblower complaint by the IC Inspector General.  Initiates process which guarentees that at some point the complaint will become public. 

Aug 26 – Also on this day, the FEC is hastily taken off line by the unanticipated resignation of Commissioner Petersen.

Sept 26 - Whistleblower complaint released, first time we learn of Attorney General Barr's direct involvement in the scandal.  DOJ admits they reviewed whether the President broke any laws, and importantly, cleared him of breaking US election law (NDN believes this argument, like so many legal arguments emenating from the WH and DOJ these days is absurd on its face, and any official public or private who pressured Ukraine for information on Biden committed felony level election law violations).

Reviewing the timeline, WH/DOJ learn on Aug 14th of potential election law violations by the President and other senior advisors, including potentially the Attorney General himself.  DOJ, after an unserious review of the charges, rules the President broke no laws.  However, in the interim, the independent regulatory body overseeing US election law is hastily taken off line in a move that can now only be understood as preventing any kind of investigation into these charges outside the control of the President's compliant DOJ. 

Calls for the re-opening of the Federal Election Commission should be very loud now.  It is bad enough Trump and McConnell have blocked several common sense bills which would have made our elections far more secure.  But it cannot be that they get away with taking the FEC offline this cycle, particularly as the issue of whether there was a huge criminal conspiracy to violate US election laws by Trump, his Administration, and his advisors has already become central to the 2020 campaign; and Russia, Iran, and other nations are likely to attack our democracy once again. 

As I wrote in this essay a few months ago, crimes which undermine our elections and our democracy more broadly are the gravest "high crimes" a President can commit while in office, and need to be understood that way.