Former FEC Chairman Brad Smith wrote today that it is time for FEC Commissioner Ellen Weintraub to resign, because her political attacks against President Trump and White House Counsel Don McGahn are jeopardizing the FEC's ability to perform its legitimate function:

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . .

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard. 

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

Prof. Smith detailed Weintraub's recent partisan excesses: how she used her FEC position and FEC resources to engage in partisan activity, namely criticizing President Trump; how she is engaged in a constant campaign of personal attacks against former FEC Commissioner and current White House Counsel Don McGahn; and how she seeks to expand the FEC's -- and therefore her -- jurisdiction to every aspect of federal elections.  Further, Prof. Smith details how just a few weeks ago, Weintraub's public comments may have jeopardized her impartiality on any matter regarding President Trump and his re-election and violated restrictions on FEC employees:

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” . . . First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? . . . Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. . . . Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations.

We will continue to follow Commissioner Weintraub's partisan excesses and hope that she resigns soon so that a commissioner who takes his or her position at the FEC seriously can be appointed to replace her.