In one of its final acts before a de facto shutdown, the bipartisan Federal Election Commission unanimously dismissed a complaint by a pro-Donald Trump legal group that accused Manhattan District Attorney Alvin Bragg and the Biden-Harris presidential campaign of violating election laws.
In a 4-0 decision, the commissioners rejected America First Legal Foundation’s claim that President Joe Biden, while still running for reelection, had illegally “looked to lawfare to destroy” Trump. The commissioners also rejected the group’s allegation that Bragg pursued a “politically motivated prosecution against Trump” that constituted an “excessive” campaign contribution and expenditure, according to a case file released Thursday.
America First Legal Foundation — founded in 2021 by current White House deputy chief of staff for policy Stephen Miller — cited numerous examples that it said supported the assertion that “Bragg’s prosecution of Trump was coordinated with Biden and made for the purpose of influencing the 2024 presidential election.”
Among them was billionaire Democratic mega-donor George Soros making a $1 million contribution to the pro-Biden Color of Change super PAC, which in turn supported Bragg’s campaign for Manhattan district attorney.
The FEC’s two Republican commissioners, Trey Trainor and Allen Dickerson, wrote that the complaint failed in part because “government action cannot form the basis for a [Federal Election Campaign Act] violation.”
“Even if it did, so-called ‘lawfare’ is outside the Act’s definitions of ‘contribution’ and ‘expenditure’,” they wrote.
Democratic commissioners Shana Broussard and Dara Lindenbaum did not explain their dismissal votes.
Biden’s attorneys derided America First Legal Foundation’s complaint as a “completely unsubstantiated legal argument” that Bragg’s prosecution of Trump amounted to an in-kind contribution to Biden’s presidential campaign that the Biden campaign accepted and failed to publicly report.
“The weakness in the complaint demonstrates that the complainants’ concern is not a campaign finance issue at all and is instead an attempt to abuse the commissioner’s complaint process to achieve political ends,” Biden campaign attorneys Derek Lawlor and Andrew D. Garrahan wrote to FEC commissioners last year.
Bragg did not formally defend himself to the FEC.
Bragg’s prosecution ultimately led to Trump’s conviction on 34 felony counts of falsifying business records in connection with so-called “hush money” payments to former porn actress Stormy Daniels, for which Trump in January received no punishment beyond the conviction itself.
In a recommendation of dismissal to the FEC’s commissioners, the agency’s general counsel concluded that “the available information does not indicate that there was any coordination between Bragg and the Biden respondents concerning the prosecution of Trump.”
“Even if Bragg’s prosecution of Trump is a thing ‘of value,’ there is insufficient information to indicate that the purpose of Bragg’s prosecution was to influence a federal election,” the FEC’s general counsel’s office wrote.
In recent weeks, the FEC also unanimously dismissed high-profile complaints by other conservative interests that separately accused NPR and The Washington Post of campaign finance violations.
But as of the end of Wednesday, the six-member FEC is no longer able to make such rulings, which require a quorum of at least four commissioners. Dickerson resigned on Wednesday at the end of his six-year term, meaning the FEC only has three commissioners left.
It is up to Trump alone to nominate new commissioners, and the U.S. Senate, in turn, must confirm them.
This process is likely to take weeks, if not months. The remaining commissioners acknowledged this week that it’s unlikely the agency will be legally capable of attending to its higher-level responsibilities until at least this summer.
The White House has not indicated when Trump plans to fill the three vacancies, which were in part caused by the resignation in January of Republican Sean Cooksey and Trump’s removal in February of Democrat Ellen Weintraub under disputed circumstances.
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Dave Levinthal is a Washington, D.C.-based investigative journalist.