Markus v. Mukasey

On March 10, 2008, the U.S. District Court for the District of Arizona granted the Commission's motion to dismiss the suit filed by Jon Marcus against the U.S. Attorney General and the Chairman of the FEC, and denied the plaintiff's motion for declaratory judgment, holding that the Attorney General has discretion over whether to investigate and prosecute criminal violations of the Federal Election Campaign Act (the Act) and is not required to wait for a referral of a case from the Commission.

Background

This case, which stems from the alleged activity of a specific Michigan law firm, is related to other similar lawsuits: Barry Bialek v. Gonzales, et al., Geoffrey N. Fieger, et al. v. Gonzales, et al. and Beam v. Gonzales, et al. Each of these plaintiffs made contributions to the John Edwards 2004 Presidential campaign. According to the complaints, the plaintiffs are being investigated by the Department of Justice for violations of the Act. In each case, the plaintiffs alleged, among other things, that the Commission must refer, by a vote of the majority of the Commission, a matter to the Attorney General prior to the Attorney General investigating or prosecuting a violation of the Act.

Court decision

In this case, the court agreed with the court decisions in Barry Bialek v. Gonzales, et al. and Geoffrey N. Fieger, et al. v. Gonzales, et al. that the plain language of the Act does not "infring[e] the Attorney General's plenary power to enforce criminal violations of the Act." The court further found that the Act's legislative history "demonstrates that Congress did not intend to limit or displace the Attorney General's independent authority to pursue criminal violations of the Act, and that prior case law has held that criminal enforcement may either originate with the Attorney General or stem from a referral by the Commission to the Attorney General."(1)

The court denied the plaintiff's motions for a hearing and oral arguments and for declaratory judgment and granted the Commission's motion to dismiss the complaint with prejudice.

The plaintiff filed a Notice of Appeal in this case on March 18, 2008.

U.S. District Court for the District of Arizona, CV 07-0398-PCT-EHC.