[00:00:00] Speaker 03: Case number 22-5339, Campaign Legal Center Appellants versus Federal Election Commission. [00:00:08] Speaker 03: Ms. [00:00:08] Speaker 03: McAllen for the appellants, Mr. Moeller for the appellee. [00:00:14] Speaker 04: Good morning, counsel. [00:00:21] Speaker 04: Ms. [00:00:21] Speaker 04: McAllen, please proceed when you're ready. [00:00:24] Speaker 02: Good morning, your honors. [00:00:26] Speaker 02: May it please the court, Megan McAllen for Appellant Campaign Legal Center. [00:00:30] Speaker 02: I'd like to reserve two minutes of my time for a bottle. [00:00:34] Speaker 02: This case involves the Federal Election Commission's dismissal of a complaint alleging that the 2020 Trump campaign and joint fundraising committees unlawfully concealed the true recipients and purposes of upwards of $750 million in campaign spending, a potential amount in violation that would have been the largest in the commission's history. [00:00:53] Speaker 02: The record showed that the committees had, in essence, funneled [00:00:58] Speaker 02: payments to staff and vendors through shell entities controlled by senior Trump campaign officials to avoid disclosing what the statute and FEC precedents require, who they were actually paying, how much they were paying them and what for. [00:01:12] Speaker 02: Nevertheless, against the advice of its office of general counsel, the commission deadlocked three to three on whether the committees had violated FECA's disclosure requirements and dismissed the complaint. [00:01:24] Speaker 02: The only issue presented here is whether the district court was barred from even considering the faulty legal conclusions in the controlling commissioner's statement of reasons, because in it, they purported to invoke the commission's prosecutorial discretion, even though they did so expressly in reliance on merits considerations. [00:01:45] Speaker 02: The district court's finding in the affirmative that judicial review is precluded by the true cases was wrong for at least two reasons. [00:01:53] Speaker 02: First, neither crude decision justifies the FEC's extreme position here, which would withhold congressionally mandated judicial review, even as to dismissals that purport to invoke discretionary rationales that directly rest on merits judgments. [00:02:09] Speaker 02: And second, then if they did apply, the crude decisions conflict with controlling Supreme Court and prior circuit precedent and should not be given effect. [00:02:17] Speaker 02: The dismissal here is reviewable either way. [00:02:22] Speaker 05: Can I ask a hypothetical question? [00:02:24] Speaker 05: So suppose that the enforcement authority, the way they explain, and we'll just say the controlling commissioners, the way the controlling commissioners explain a decision not to go forward is to say, we've had our budget cut significantly, and we're only gonna go forward in cases in which it's clearly correct [00:02:51] Speaker 05: the legal challenge is clearly correct. [00:02:54] Speaker 05: And so this may be a case in which actually we think the better argument is that it's correct. [00:03:00] Speaker 05: But we don't think it's clearly correct. [00:03:03] Speaker 05: And so as a matter of enforcement discretion and as a matter of an informed exercise of discretion in terms of how we're going to expend our resources, we're not going to go forward with this case because we just don't view this case to be a slam dunk. [00:03:17] Speaker 05: Do you think in that situation, there would be review, or do you think, and let's suppose they actually cite Heckler v. Cheney, they'd have the rise in class T's and they say, and therefore in an exercise of Heckler v. Cheney discretion, we opt not to go forward. [00:03:32] Speaker 05: Where does that case come out in your view? [00:03:34] Speaker 02: Well, for starters, we would submit that because the statute and controlling circuit precedent may be good dismissals, [00:03:43] Speaker 02: reviewable that the crew cases were wrongly decided, and that case would be subject to judicial review. [00:03:49] Speaker 05: And that doesn't answer the question. [00:03:51] Speaker 05: For our purposes, we're bound by the crew cases. [00:03:53] Speaker 05: And so under the crew cases, where do you think that comes out? [00:03:58] Speaker 02: Under the crew cases, I think that if there were no underlying legal analysis in the hypothetical as you posed it, that would potentially be covered by the rule of new models, depending on whether there were other indications [00:04:12] Speaker 02: pretext or again, a desire to insulate actual legal substantive conclusions from the review that clearly provides. [00:04:22] Speaker 05: But so you think there wouldn't be a review in that situation if that that's all that's all the controlling commissioners say is they say. [00:04:29] Speaker 05: We see the general counsel's argument. [00:04:31] Speaker 05: We think actually there's something to the general counsel's argument. [00:04:34] Speaker 05: There's a lot to it. [00:04:35] Speaker 05: But we're only going to go forward in an exercise of prosecutorial discretion in cases in which the argument is clearly correct. [00:04:41] Speaker 05: We don't think this rises to that. [00:04:43] Speaker 05: And therefore, we're not going to go forward. [00:04:44] Speaker 05: You think no review in that situation. [00:04:45] Speaker 02: Well, I think in that situation, that may be subject to a separate rule under the Crowley line of cases where the commission has completely abdicated its enforcement responsibilities if it's doing that. [00:04:57] Speaker 02: But under the rule of new models, again, in the world where we assume new models was correctly decided and applicable, I think that that scenario would likely be covered and not be reviewable. [00:05:07] Speaker 05: And why is that? [00:05:08] Speaker 05: Because I thought your argument was that if the exercise of prosecutorial tort of discretion turns on an assessment of the legal correctness of the position, then there is review. [00:05:18] Speaker 05: But in the hypo I just outlined, it would turn on an assessment of legal correctness. [00:05:24] Speaker 05: It's just that the overlay would be not only does it have to be correct, it has to be clearly correct. [00:05:29] Speaker 02: Well, if I'm understanding the hypothetical as you post it, I think the difference is that it sounds like they are agreeing that the Office of General Counsel's rationale was likely the correct view of the law and they're making [00:05:41] Speaker 02: evidentiary assessment, whereas here they were just saying, no, the law doesn't require disclosure. [00:05:46] Speaker 05: They're not making an evidentiary assessment. [00:05:47] Speaker 05: They're making a legal assessment. [00:05:48] Speaker 02: And they're saying, the assessment is the law likely was violated, but they declined to proceed. [00:05:55] Speaker 02: And that is very different than the scenario here where they're saying the law wasn't violated. [00:06:00] Speaker 02: This isn't what the law requires. [00:06:02] Speaker 02: And we're not going to exercise prosecutorial discretion. [00:06:06] Speaker 02: We're not going to proceed on the basis of prosecutorial discretion because the law wasn't violated. [00:06:12] Speaker 02: And that's a very different situation from a recognition that the law was violated and doesn't pose the same concerns as these cases where clearly erroneous legal interpretations are being permitted to escape review by the invocation of cross keep royal discretion at the very end. [00:06:37] Speaker 05: And what if the controlling commissioners say, this is a close case on whether the law is violated. [00:06:47] Speaker 05: There's some pretty good arguments that it is. [00:06:49] Speaker 05: There's some pretty good arguments that it isn't. [00:06:51] Speaker 05: But close cases aren't good enough. [00:06:53] Speaker 05: For me, I have to think that the law is violated. [00:06:58] Speaker 02: Now, again, assuming we're in the world again, the new model applies. [00:07:02] Speaker 02: Whereas I think that all commission dismissals are reviewable and clearly reviewable under FECA. [00:07:08] Speaker 02: The that scenario would be a closer question, I think. [00:07:11] Speaker 02: And again, it's not the world we're in. [00:07:14] Speaker 02: But if there are no underlying legal rationales for the court to assess, then it may not matter whether it's a highly differential standard or a [00:07:24] Speaker 02: prevention of review entirely under new models again, because that rule is inconsistent. [00:07:29] Speaker 05: I mean, we can have a hypothesis that there is a legal analysis. [00:07:32] Speaker 05: So suppose the controlling commissioners go through an assessment and they do 12 pages and they say, here's the arguments for why there is a violation. [00:07:40] Speaker 05: But then there's arguments for why there's not a violation too. [00:07:43] Speaker 05: And they spell that out for the next six pages. [00:07:45] Speaker 05: And then the conclusion is, [00:07:47] Speaker 05: It's close, and we just don't go forward in close cases. [00:07:51] Speaker 05: If a challenger thinks actually all the arguments for why there's not a violation are just totally wrong. [00:07:58] Speaker 05: They're just wrong. [00:07:58] Speaker 05: You said a bunch of stuff, but you're just wrong about those. [00:08:02] Speaker 05: Do you think there would be review? [00:08:04] Speaker 02: Yes, I think in that scenario there would definitely be review of the underlying substance legal analysis to ensure that it was not infected with errors of law, as well as the [00:08:16] Speaker 02: overall application of a standard that itself could be contrary to law at the reason to believe stage, in particular of commission enforcement actions, where it's just a threshold requirement that precedes several other steps in the enforcement process, including the necessity to find probable cause and then eventual enforcement. [00:08:34] Speaker 02: So this is by law and by statutory design, supposed to be a threshold preliminary determination, and that could itself be contrary to law. [00:08:44] Speaker 05: And you think then that would also apply in a case in which the controlling commissioners go through analysis and they say, here's all the arguments for why the general counsel is right and there is a violation. [00:08:55] Speaker 05: There's actually a couple that give me a little bit of pause. [00:08:58] Speaker 05: I think those are probably outweighed by the arguments that there's a violation, but I only go forward in cases because of our budgetary constraints in which I'm clearly right. [00:09:09] Speaker 05: And here I don't think we're clearly right. [00:09:12] Speaker 05: And so therefore we're not gonna go [00:09:14] Speaker 05: forward. [00:09:15] Speaker 02: Again, in that scenario, I think it would be reviewable because there are substantive conclusions of law for a court to assess and determine if they are indeed consistent with FECA and statute requires. [00:09:27] Speaker 05: Even though that's classic prosecutorial discretion is that it seems almost inevitable that when an enforcement authority is deciding whether to go forward, they think about [00:09:39] Speaker 02: the legal merits in some measure to decide whether this is a case worth bringing because that's just that's core prosecutorial discretion is this is this a case worth bringing it may be a core prosecutorial discretion rationale under heckler but again we're in a world where pika has expressly rebutted the presumption in heckler that non-enforcement decisions are unreviewable so we are in the position assuming we're applying new models of [00:10:06] Speaker 02: trying to parse agency determinations, non-enforcement determinations in action, which as the Supreme Court found in Akins, is clearly reviewable agency action for potentially unreviewable reasons. [00:10:20] Speaker 02: And I think that that needs to be construed consistent with, insofar as we're preserving new models with the statute and with controlling circuit precedent, which makes clear that all FEC non-enforcement dismissals are subject to review. [00:10:36] Speaker 05: So since we're in the world of new models, in new models on page 885, the court says, the statement expresses discretionary considerations at the heart of Cheney's holding, such as concerns about resource allocation, and then has a citation of Cheney and a parenthetical that includes the quote in describing what counsel's prosecutorial discretion, whether the agency is likely to succeed if it acts. [00:11:07] Speaker 05: it seems like concerns about resource allocation and whether the agency is likely to succeed if it acts, almost necessarily in the mind run of cases, take into account some assessment of the legal merits or demerits of the position or how strong the merits are. [00:11:23] Speaker 05: Do you think as long as that seeps in to some extent, the strength of the merits that there's review because of the way FICA works, notwithstanding what we said in new models? [00:11:32] Speaker 02: Yeah, I think there has to be review available because that is what the statute requires. [00:11:36] Speaker 02: And that's what this court's precedence and the Supreme Court's decision in Akins requires. [00:11:41] Speaker 05: And what about the footnote? [00:11:44] Speaker 05: Footnote four that says it's the nature of the decision not to prosecute that matters, not whether legal interpretation underlay the decision. [00:11:52] Speaker 02: Well, I think if you look at other language in the panel, majority opinion, new models, they make clear that they're interpreting [00:12:00] Speaker 02: exercise of discretion at issue there as distinct, quote unquote, they had two distinct bases for declining to move forward with Bruce's complaint. [00:12:12] Speaker 02: And then if you look at the actual substance of their invocation of prosecutorial discretion in that case, they rested it on considerations that would have been equally applicable, irrespective of whether they thought the law had or hadn't been violated or there was reason to believe. [00:12:27] Speaker 02: They based it on the defunct nature of the organization and the difficulty the commission might have in proceeding with any kind of enforcement action against it. [00:12:37] Speaker 02: For that reason, it wouldn't matter that they had already concluded in admittedly a very lengthy legal analysis for that, that the law was not violated or there was no reason to believe it was. [00:12:54] Speaker 04: I think the difficulty, [00:12:57] Speaker 02: that we're in is the fault of the new models and mission on hope decisions taking a wrong turn from the circuit's precedents and now trying to perform this enterprise of separating out unreviewable reasons from what is clearly a reviewable action puts courts in a difficult position as the district court below recognized. [00:13:18] Speaker 02: But the way to correct that would be to steer the ship to the right course and [00:13:27] Speaker 02: ensure that the crew decisions are no longer contributing to the inconsistency and disharmony in the circuit's precedents. [00:13:37] Speaker 02: In other words, to apply Sierra Club to find those decisions were wrongly decided and non-binding on the court. [00:13:46] Speaker 05: Yeah, that's a tall order because the panels, it's not as if we would be thinking about things that the panels that decided those cases didn't think about. [00:13:58] Speaker 05: And it seems like it's asking a lot of a sort of appeals panel to say that a prior panel actually understood the issue and analyzed it, but just they got it wrong. [00:14:08] Speaker 05: And therefore you're free to disregard what the prior panel said. [00:14:14] Speaker 05: Is that the upshot of what you're? [00:14:16] Speaker 03: Well, that's the upshot of our alternative argument. [00:14:18] Speaker 02: Yes. [00:14:19] Speaker 05: Yes. [00:14:19] Speaker 05: Yes. [00:14:20] Speaker 02: Yes. [00:14:20] Speaker 02: But we also think that new models is distinguishable and if it's to be salvaged, it must be read. [00:14:26] Speaker 02: Consistently with a rule that we don't assume we know what the agency is going to do on remand if it has two not clearly independent rationales where the justifications that are purportedly discretionary and legal are intertwined. [00:14:40] Speaker 02: And consistently with this court's other prior circuit precedents, DCCC, Chamber of Commerce, and certainly the Supreme Court's decision to make [00:14:52] Speaker 04: Make sure my colleagues don't have questions, additional questions for you and we'll give you time for rebuttal. [00:14:57] Speaker 04: Thank you. [00:14:58] Speaker 04: Thank you. [00:15:05] Speaker 04: Mr. Mueller, we'll hear from the commission now. [00:15:12] Speaker 01: May it please the court, Greg Mueller for the Federal Election Commission. [00:15:15] Speaker 01: The outcome here is controlled by application of new models and commission on hope. [00:15:20] Speaker 01: And cases rising. [00:15:22] Speaker 00: Mr. Mueller, is it possible for you to raise the podium? [00:15:26] Speaker 00: I'm so deaf, but you're tall. [00:15:29] Speaker 01: I'll speak louder and try to be closer. [00:15:32] Speaker 05: There's a switch to raise the podium. [00:15:33] Speaker 01: Yeah, no, the podium is already all the way up. [00:15:36] Speaker 01: Yeah, it's all the way up. [00:15:37] Speaker 01: Oh, OK. [00:15:41] Speaker 01: Cases arising under the Federal Election Campaign Act's judicial review provision fall into two categories. [00:15:49] Speaker 01: Category one are cases where there's statutory interpretation of FECA and the controlling group of commissioners reaches a conclusion that there is not reason to believe or in some cases probable cause to believe there was a violation. [00:16:04] Speaker 01: The statements issued by controlling groups of commissioners in those types of cases are subject to review under the contrary to law standard. [00:16:13] Speaker 01: And those are the cases like DCCC and Orlowski and Akins. [00:16:18] Speaker 01: I call those category one cases. [00:16:20] Speaker 01: Category two are cases where prosecutorial discretion is invoked by the controlling group of commissioners. [00:16:27] Speaker 01: These are not subject to review, permission and hope, new models, and this case fall into that second category, category two. [00:16:36] Speaker 01: And the district court properly found that the case for the court today was in that second category where the controlling group invocation of prosecutorial discretion is not revealed by this court. [00:16:51] Speaker 05: Why is that? [00:16:52] Speaker 05: Because suppose you have a controlling group of commissioners that issues a statement of reasons. [00:17:00] Speaker 05: A statement of reasons says, here's all the reasons that I think this claim would be non-meritorious as a matter of law. [00:17:09] Speaker 05: That I've got the general counsel's analysis, but I disagree with the general counsel's analysis. [00:17:14] Speaker 05: And here's all the reasons that I think that the general counsel got it wrong. [00:17:18] Speaker 05: And I only go forward in cases where I think we're right. [00:17:22] Speaker 05: In an exercise of prosecutorial discretion under Hecler versus Cheney, I choose not to go forward. [00:17:28] Speaker 05: Do you think that would be reviewable or no? [00:17:31] Speaker 01: It's not because I think it's an inherent part of the prosecutorial discretion analysis that there is conclusions about the assessment of the underlying matter. [00:17:43] Speaker 05: And I think what's important is- So in that situation, your answer is it would not be reviewable? [00:17:47] Speaker 05: Right. [00:17:47] Speaker 05: So then what's left? [00:17:49] Speaker 05: Because if all that happens is the controlling commissioner say, this is wrong as a matter of law. [00:17:57] Speaker 05: I just think that there's no legal argument here at the end of the day that carries the day. [00:18:01] Speaker 05: Yeah, I get what the general counsel says. [00:18:02] Speaker 05: There's something to it. [00:18:03] Speaker 05: But at the end of the day, I think it's doesn't work. [00:18:06] Speaker 05: If they just stop there, it's reviewable. [00:18:10] Speaker 05: Correct. [00:18:11] Speaker 05: They go on from there and they had one sentence that says, um, [00:18:16] Speaker 05: As I've explained, the general counsel has an argument about why there's a legally meritorious challenge that could be brought. [00:18:22] Speaker 05: I disagree with the general counsel's legal analysis. [00:18:25] Speaker 05: And therefore, in an exercise of my prosecutorial discretion under Hepler versus Cheney, I opt not to go forward because I only go forward in cases where I think I'm right. [00:18:34] Speaker 05: Then it's not for you. [00:18:36] Speaker 01: Yes, your honor. [00:18:37] Speaker 01: Accepting that hypothetical, I think our situation is different because it was kind of a classic. [00:18:42] Speaker 05: But just to understand the logical, [00:18:45] Speaker 05: expanse of your position, then all the controlling commissioners have to do to insulate completely insulate a legal analysis from judicial review is to tack on one sentence that says nothing other than therefore in an exercise of my prosecutorial discretion under heckler versus Cheney, I choose not to go forward. [00:19:06] Speaker 01: Your Honor, I think there's a notch of nuance to it beyond that. [00:19:09] Speaker 01: And I think that it is the controlling group of commissioners have to properly invoke prosecutorial discretion within the meaning of heckler v. Cheney. [00:19:18] Speaker 01: And I think that type of analysis is what took place here, a kind of a classic prosecutorial discretion analysis. [00:19:25] Speaker 05: So we can get to what took place here. [00:19:27] Speaker 05: But I just want to make sure I understand the commission's position because it matters. [00:19:30] Speaker 05: Whatever we say is going to govern a group of cases. [00:19:33] Speaker 05: And I want to understand the [00:19:35] Speaker 05: reach of the position. [00:19:38] Speaker 05: You said it has to be a legitimate exercise of prosecutorial discretion. [00:19:41] Speaker 05: What would be illegitimate? [00:19:42] Speaker 05: Because I think I agree with you that that's a totally legitimate exercise of prosecutorial discretion to say. [00:19:48] Speaker 05: I think the general counsel's analysis on balance, although there's some force to it, I think the general counsel's analysis on balance turns out to be incorrect. [00:19:56] Speaker 05: I think the better reading of the statute is that there's no violation here. [00:20:00] Speaker 05: Therefore, as an exercise of prosecutorial discretion, I choose not to go forward. [00:20:05] Speaker 05: That seems legitimate to me. [00:20:06] Speaker 05: I think a responsible prosecutorial official probably has to take into account legal correctness in deciding whether to go forward. [00:20:13] Speaker 05: And it seems eminently reasonable to decide not to go forward because you think. [00:20:17] Speaker 05: The position ultimately is not legally meritorious. [00:20:19] Speaker 05: So it would cross your legitimacy criterion, I think it would. [00:20:23] Speaker 05: But then the question would be, well, what's left? [00:20:25] Speaker 05: Because at that point, the statute does provide for judicial review of legal correctness in some situations. [00:20:32] Speaker 05: But if every single time the prosecutor understandably invokes legal correctness and deciding not to go forward as a matter of prosecutorial discretion, there's nothing left to review ever in any case. [00:20:44] Speaker 01: To answer that question, Your Honor, I think what remains is when the Commission is construing the statute and reaching a legal conclusion about whether there's reason to believe or not. [00:20:55] Speaker 01: And that is something that happens very regularly at the Commission. [00:20:59] Speaker 01: There are a lot of, that's what Akins, DCCC, there's been recent cases on that front. [00:21:05] Speaker 01: That is the, [00:21:07] Speaker 01: Heartland of the a provision the judicial review provision. [00:21:11] Speaker 01: That's that's what's left. [00:21:13] Speaker 01: But then there is prosecutorial discretion and agencies and Prosecutors have that and that That's at play here and is not reviewable when it's when it's invoked and I think there's good reason for that because the courts are well situated to review the [00:21:36] Speaker 01: the conclusions, the interpretations of FECA and the conclusions and apply a contrary to law standard. [00:21:42] Speaker 01: But when we're in a situation where they're making decisions as they were here about allocation of resources, relative strength of the evidence, the clarity of the [00:21:55] Speaker 01: legal standards, and they're evaluating all of that, that's kind of a classic prosecutorial discretion. [00:22:00] Speaker 05: Allocation of resources definitely is a classic prosecutorial discretion. [00:22:04] Speaker 05: There's no doubt about it. [00:22:05] Speaker 05: But suppose that the decision on whether to allocate resources turns entirely on the law. [00:22:11] Speaker 05: And that seems totally responsible to do, too. [00:22:13] Speaker 05: It seems totally responsible to say, I decide to allocate my resources in righteous cases. [00:22:19] Speaker 05: And what I define to be a righteous case is one that's right on the law. [00:22:22] Speaker 05: I decide not to expand my resources in cases in which I think were wrong under the law. [00:22:28] Speaker 05: So everything without question, just on the face of the statement of reasons, turns on a legal determination of whether the prosecution would be correct under the law. [00:22:38] Speaker 01: To answer that question, and initially I would note that the exercise in this case was rooted on assuming there may be a violation, not wanting to take an outsized portion of the agency's resources. [00:22:52] Speaker 01: And the district court here said that that was like an independently dispositive ground here and it should be upheld here. [00:22:57] Speaker 01: But to address the hypothetical, which is, [00:23:04] Speaker 01: that the discretionary analysis within the prosecutorial discretion context gets exercised all the time. [00:23:12] Speaker 01: And the courts aren't really in a position to follow the prosecutor in making these judgment calls on all of the cases that they confront each and every day. [00:23:23] Speaker 01: And I think that that's one of the reasons that the discretion exists. [00:23:27] Speaker 01: It's common for agencies to make these judgment calls all the time. [00:23:32] Speaker 01: And when they make a formal interpretation and reach a decision and issue statements of reasons, the controlling group of commissioners then is reviewable under this statute. [00:23:45] Speaker 01: And that A8 provision is a unique carve out in that respect. [00:23:49] Speaker 01: But when it's the day-to-day exercise of prosecutorial discretion, that's not reviewable. [00:23:56] Speaker 01: And that's what Heckler says. [00:23:59] Speaker 01: And in particular, I think new models really wrestled with that hypothetical pretty directly. [00:24:08] Speaker 01: that the new model's majority of the panel wrestled with that question and found that that's squarely within the prosecutorial discretion realm. [00:24:18] Speaker 05: And it's not going to evaluate that in part because- You think you read new models to say that that governs even if the exercise of prosecutorial discretion turns on nothing other than an assessment of the legal merits of the position? [00:24:33] Speaker 01: Well, I agree with that, but I do note that it's paired with the heckler body of law that talks about application of prosecutorial discretion. [00:24:46] Speaker 05: Yeah, I guess the question is, do you read new models to say that exercises of prosecutorial discretion are unreviewable? [00:24:56] Speaker 05: And by exercises of prosecutorial discretion that are unreviewable, we mean to include exercises of prosecutorial discretion that turn on nothing other than an assessment of the legal merits of a position. [00:25:10] Speaker 05: Yes, I mean, I don't see that as this case, but. [00:25:14] Speaker 05: And I do want to ask about this case too, but on what you think legal new models covers, you think it covers that situation too? [00:25:24] Speaker 01: Because prosecutorial discretion is apparently an evaluation of strengths and weaknesses. [00:25:29] Speaker 01: I agree with you. [00:25:32] Speaker 01: Right. [00:25:32] Speaker 01: So I don't see that the court wants to involve itself in what is a sort of threshold non-final complete analysis reaching a final conclusion. [00:25:44] Speaker 01: I think the prosecutorial discretion analysis [00:25:47] Speaker 01: begins and ends with an assessment of all of these factors, factoring them in together. [00:25:53] Speaker 01: I think that there's a balancing of those factors that are kind of inherent in the process. [00:25:58] Speaker 05: And I think that that is where we are with this. [00:26:02] Speaker 05: That all seems exactly right to me on what prosecutors discretion usually is. [00:26:06] Speaker 05: It's just that we have a statute that says sometimes [00:26:09] Speaker 05: The legal merits are renewable. [00:26:11] Speaker 05: And if every exercise of prosecutorial discretion is infused with an assessment of the merits, then that could have the capacity to render the judicial review provision negatory because you would just say every time there's an assessment of the merits that informs the exercise of prosecutorial discretion. [00:26:28] Speaker 01: Yes, and that's why at the outset I tried to draw the important distinction between the first category of cases where there's a conclusion that can be evaluated under the contrary to law statute or contrary to law standard in the statute. [00:26:42] Speaker 01: And then there's a second category where these balancing of factors considerations takes place. [00:26:47] Speaker 01: That's in the prosecutorial discretion realm. [00:26:49] Speaker 01: So there are definitely two types of cases that can be reviewed when the controlling group of commissioners [00:26:57] Speaker 01: puts forth a rationale. [00:27:00] Speaker 01: One is subject to the contrary to the law standard, and the other is an exercise of prosecutorial discretion that's not reviewed. [00:27:08] Speaker 01: Now, I agree with Ms. [00:27:14] Speaker 01: McAllen who just mentioned that there are a couple of [00:27:18] Speaker 01: Within Heckler, there are a couple of other references to areas that are adjacent to basket oil discretion that remain reviewable. [00:27:26] Speaker 01: The commission made a determination about its jurisdiction under footnote four of Heckler that remains reviewable. [00:27:34] Speaker 01: And also if the commission articulated a statement expressly announcing its intention not to enforce an area of the law [00:27:45] Speaker 01: that under Adams v. Richardson would remain reviewable. [00:27:49] Speaker 01: But the multifactor discussion of prosecutorial discretion that's at the core of Heckler and was at the core of new models is not reviewable. [00:27:59] Speaker 05: Can we look at this case then, the explanation given in this case? [00:28:05] Speaker 05: The key sentence that you invoked earlier and the district court understandably focused on is I think the sentence that says, [00:28:12] Speaker 05: This is especially the case because the general counsel's proposed theory is predicated upon factual assumptions about which, oh wait, is that the, no, this is particularly so here where the size and scope of the proposed investigation could quickly consume an outside share of the resources available to the commission. [00:28:30] Speaker 05: Yes, that was in the statement of reasons and was part of the rationale. [00:28:34] Speaker 05: And do you read that to mean that even if I thought [00:28:40] Speaker 05: this was 100% correct. [00:28:43] Speaker 05: That there's no doubt that the general counsel analysis of the laws correct. [00:28:48] Speaker 05: I still wouldn't go forward because the size of scope of the proposed investigation could put can consume an outside share of the resources available to the commission. [00:28:57] Speaker 01: The district court found that to be an independently dispositive rationale here. [00:29:02] Speaker 01: And I think that the statement of reasons itself had a number of factors. [00:29:06] Speaker 01: But I agree with the district court that that's an independently dispositive basis for addressing the case here. [00:29:12] Speaker 01: Just the enormity of the investigation resource considerations. [00:29:16] Speaker 01: I think they were listing a number of factors that compelled the conclusion. [00:29:20] Speaker 01: And I think that one does stand alone. [00:29:22] Speaker 05: Stand alone. [00:29:23] Speaker 05: Even though it starts out, the sentence starts out by saying, [00:29:25] Speaker 05: this is particularly so here. [00:29:28] Speaker 05: Because it kind of makes it sound like that's kind of sounds like the type of sentence you'd throw on as an add-on as opposed to, by the way, regardless of everything I've said so far, even if you thought everything I've said so far is exactly wrong, still wouldn't go forward because the size and scope of the proposed investigation could quickly assume an outsized share of the resources available to the commission. [00:29:48] Speaker 01: I think that particularly is relevant to the [00:29:53] Speaker 01: It's such a core consideration under prosecutorial discretion that I think the statement was noting that and emphasizing it in that way. [00:30:03] Speaker 01: And I do think that the, especially within the context of the statement itself and the district court's decision, they noted the scope of the matter here and challenges in investigating it and both the statement and the [00:30:22] Speaker 01: district court opinion laid out the complexity of the case. [00:30:27] Speaker 01: And so when you get to that conclusion, I think it does stand alone in that respect. [00:30:34] Speaker 05: As opposed to a circumstance in which the commission could say something, the controlling commission could say something like, particularly in light of the dubious legal bona fides of the challenge, [00:30:47] Speaker 05: we won't go forward in a case in which it would occupy outsized resources. [00:30:52] Speaker 05: Then the merits get seeped into the question of resource allocation. [00:30:58] Speaker 05: You still think that would be an exercised prosecutorial discussion that would be unreviewable, but it seems different from one in which there's a criterion that's stated to be totally independent of the merits that would itself be sufficient to persuade the commissioners not to go forward. [00:31:13] Speaker 01: Right, and I totally acknowledge that there's [00:31:17] Speaker 01: Certainly, prosecutorial discretion analysis is part of that decision, but what remains reviewable is legal interpretation of FECA reaching a conclusion. [00:31:29] Speaker 01: That first category is reviewable, but prosecutorial discretion analysis is different and not reviewable. [00:31:43] Speaker 05: And I think that that's a distinction that's important here. [00:31:47] Speaker 05: But you're not saying that in a case in which you have both of those in the statement of reasons, the part of it that's legal would be reviewable. [00:31:53] Speaker 05: Right, no. [00:31:54] Speaker 05: None of it's reviewable as long as there's a reference to prosecutorial discretion. [00:31:58] Speaker 05: Correct, yes. [00:31:59] Speaker 04: Let me make sure my colleagues don't have additional questions for you. [00:32:07] Speaker 05: Yes, for those reasons, the district court should be affirmed. [00:32:09] Speaker 05: Thank you. [00:32:10] Speaker 05: Thank you, Mr. Milaf. [00:32:13] Speaker 05: Ms. [00:32:14] Speaker 05: McKellen, we'll give you the two minutes. [00:32:15] Speaker 05: Yes, we're for rebuttal. [00:32:17] Speaker 03: Thank you. [00:32:17] Speaker 03: I appreciate it. [00:32:18] Speaker 02: I just want to make a couple of points. [00:32:21] Speaker 02: First, on the district court's concerns about the indication of discretion that supposedly stood apart from pure legal inquiry. [00:32:30] Speaker 02: I think it's not possible to disentangle even those concerns articulated in the statement of reasons from the underlying merits conclusions on which they quite explicitly rested. [00:32:42] Speaker 02: first on the size and scope of the investigation. [00:32:45] Speaker 02: I mean, that itself rested on the erroneous legal conclusion and imposition of a unduly stringent test for determining whether sub-vendor reporting was required under which they would demand proof that an only intended-to-disguise standard was met. [00:33:04] Speaker 02: So that would entail a much more onerous investigation and intent, et cetera. [00:33:09] Speaker 02: And then, of course, they would receive obstacles to [00:33:12] Speaker 02: enforcement in a case in which they had already conclusively determined that there was no reason to believe the law was violated. [00:33:18] Speaker 02: I mean, that would be a fairly simple case to defend against. [00:33:23] Speaker 02: And then finally, I just want to close by making clear the consequences of the broad legal rule that FEC is articulating and its interpretation of new models to preclude all review even of intertwined and mutually dependent invocations of discretion with conclusions of law. [00:33:41] Speaker 02: Under it, the FEC receives automatic and unconditional immunity basically upon a magic words test for citing the right elements of heckler and the right words about prosecutorial discretion resources to insulate what are clearly dispositive merits analyses from all review and the review that FECA explicitly provides. [00:34:00] Speaker 02: And even though in the deadlock scenario which we're in, these are not residential at the commission, they're treated as such by many commissioners. [00:34:10] Speaker 02: and they also constrain the activity of regulated parties. [00:34:13] Speaker 02: So this is preventing parties from receiving the judicial review that FECA explicitly provides in correcting erroneous interpretations of law in a matter that is extremely important to the health of our democratic function. [00:34:29] Speaker 05: Can I just ask you one question and that's on this key sentence about size and scope? [00:34:34] Speaker 05: You agree that if [00:34:37] Speaker 05: this sentence is independent of the merits. [00:34:41] Speaker 05: If it's a statement that is along the lines of what Mr. Mueller said it is, and what the district court appeared to think that it was, which is to say, regardless of the merits, the size and scope of the proposed investigation itself leads me to refrain from wanting to go forward in this case. [00:35:00] Speaker 05: And under new models, the entire statement of reasons, the entire decision is unreviewable. [00:35:06] Speaker 02: Assuming that we're entirely independent and we're also entirely clear that it would be independently sufficient, even apart from the merits, then yes, I think that is the new, the rule that reports to require. [00:35:18] Speaker 02: Yeah. [00:35:18] Speaker 05: Then what, what is it about this that leads you to think that the merits necessarily seep in just when I'm looking at the words? [00:35:26] Speaker 05: Why do you just think it's inherent that always whenever someone talks about an enforcement authority, he talks about size and scope and resources that they're necessarily thinking about merits, or do you think, unless they specifically say they're not, [00:35:37] Speaker 05: Or do you think there's something specific about the way it's done here that means that the district court and Mr. Merriller's interpretation of this is wrong? [00:35:45] Speaker 02: Well, if you look at the clause that begins the concluding part of the statement of reasons, they say for the reasons given above and their dependent clauses throughout that sort of refer back to their merits analysis as noted in the new models to opinion, concurring and denial for hearing on bank. [00:36:06] Speaker 02: The independence is demonstrated by the lack of a reference back to merits analysis. [00:36:14] Speaker 02: But when it's unclear, when it's even a little bit unclear, I think that because FECA provides for review and makes these actions reviewable, review must be provided. [00:36:24] Speaker 05: Do you think even if the tie goes to FECA, the tie goes to review, in other words, is part of what you're infusing into this? [00:36:31] Speaker 05: OK. [00:36:34] Speaker 04: Thank you, council. [00:36:35] Speaker 04: Thank you to both council. [00:36:36] Speaker 04: We'll take this case under submission.