As we have chronicled, Democratic FEC Commissioner Ellen Weintraub has used her position to attack President Trump (along with Majority Leader Mitch McConnell, other Republicans, and supporters of free speech) in a variety of ways, including through the altFEC Twitter account operated by her staff and writing a letter to President Trump on FEC letterhead questioning his claims about voter fraud in New Hampshire and asking him to produce evidence. At the request of the Cause of Action Institute, headed by RNLA member John Vecchione, the FEC Inspector General inquired as to whether Commissioner Weintraub had violated any ethical standards with her letter or not. Unfortunately, it concluded she had not.
Cause of Action Institute wrote yesterday:
Although we disagree with the IG’s conclusions, the most troubling aspects of the report are Commissioner Weintraub’s statements defending her actions. The IG reports Weintraub as saying:
- “Commissioner Weintraub stated that she is not limited to the Federal Election Campaign Act regarding her ability to speak on different matters.”
- “Also, Commissioner Weintraub claimed that her statements were public statements not letters to the President directly. Commissioner Weintraub reiterated that she did not ask for the President to send the documents to her, but asked him to share them with the public. Thus, she was not asking the documents to be sent to the FEC for review. Weintraub stated she is sure the President, and his lawyers, did not think she was asking for the information on behalf of the Commission thus they would have responded.”
- “Commissioner Weintraub stated her authority to look into the issue is not the point, because as a Commissioner and public figure, she had the authority to speak on the matter.”
We strongly disagree with Commissioner Weintraub. The FEC is a creature of statute. The agency, its commissioners, and employees are only permitted to take the actions permitted by its authorizing statute. Being an FEC commissioner is not a roving license to use the office for any purpose one deems appropriate. Of course, Ms. Weintraub is free to speak on any matter in her personal capacity. But she may not use FEC resources in whatever manner she wishes.
They make a critical distinction. As a citizen, Ellen Weintraub can--and should--speak her opinion freely. As a member of the FEC, Commissioner Weintraub cannot use FEC resources and her FEC position to speak on any issue she chooses; only on issues within the FEC's jurisdiction. The Inspector General's report concluded:
5 C.F.R. Part 2635 prohibits misuse of public office for private gain (5 C.F.R § 2635.702), government property (5 C.F.R. § 2635.704), and time (5 C.F.R. § 2635.705). The OIG found no evidence that Commissioner Weintraub obtained a private gain from issuing her statement. The OIG found that: Commissioners have been given the latitude to speak and make statements on all aspects of elections, and not just campaign finance issues; the allegations by President Trump if true, would have involved possible campaign finance issues under the FEC’s jurisdiction; and there is no current rule prohibiting a Commissioner from using FEC letterhead to publish a public statement. As a result, the OIG found no evidence of Commissioner Weintraub or her staff misusing time in violation of 5. C.F.R. § 2635.705.
Yet 5 C.F.R. § 2635.704 specifically prohibits the use of government property "for other than authorized purposes" and 5 C.F.R. § 2635.705 requires that government employees use "official time in an honest effort to perform official duties." There is broad agreement, even from Commissioner Weintraub herself, that voter fraud and election administration are outside the FEC's jurisdiction.
While the details of this particular situation can be argued, there is no dispute that Commissioner Weintraub is using her position to "resist" President Trump.