Way back in the 1970s, the FEC and the Department of Justice signed a Memorandum of Understanding (the “MOU”) outlining how they would manage their concurrent jurisdiction for violations of the Federal Election Campaign Act. The FEC has civil jurisdiction and the DOJ has criminal jurisdiction. But over the years, the relationship between the two agencies broke down. The MOU hasn’t been updated since the 1970s, and attempts a few years ago to revise and renew the MOU failed. While there have been isolated cases in which the FEC and DOJ have cooperated over the years, there have also been many cases where they did not, especially in recent years.
That may be changing now. We are seeing a host of signs that the two agencies are once again on speaking terms. Publicly, the clearest evidence of this trend is reflected in recent hiring decisions by the FEC. A key example is the agency’s decision to appoint Dan Petalas, a federal prosecutor fresh out of DOJ’s Public Integrity Section (“PIN”), as the FEC’s new head of enforcement. Petalas’s formal title is Associate General Counsel for Enforcement. Coming straight from PIN, which has a lead role on federal criminal campaign finance prosecutions, and which includes the Election Crimes Section, Petalas is well-positioned to bridge the gap that emerged over the years between the FEC and DOJ. The FEC also recently hired Lisa Stevenson, a white collar criminal litigation partner at Washington-DC based Zuckerman Spader, to serve as a special counsel to the FEC’s General Counsel, Tony Herman. Stevenson brings significant white collar experience to the agency, which will dovetail with Petalas’s background. These and other factors suggest an emerging détente between the two agencies, and the likelihood of closer cooperation, perhaps on joint FEC/DOJ investigations.