Rep. Troy E. Nehls Sends Letter to Judge Merchan Urging Him to Issue a Stay in Bragg’s Prosecution of President Trump and Refer to FEC

WASHINGTON, D.C. —Today, Congressman Troy E. Nehls (R-TX-22), a member of the House Judiciary Committee,sent a letter to Judge Juan Merchan urging him to issue a stay in Manhattan District Attorney (DA) Alvin Bragg’s case against President Donald J. Trump currently before a court in Manhattan and refer it to the Federal Election Commission (FEC), as a result of the “primary jurisdiction doctrine.”

President Trump is being charged with 34 felony counts of falsifying business records for allegedly disguising “hush money payments” issued to Stormy Daniels, an adult film star. Specifically, prosecutors allege that President Trump’s former attorney, Michael Cohen, a now-convicted perjurer, and disbarred attorney, paid $130,000 to Ms. Daniels in exchange for her silence about an alleged affair, which President Trump denies. Prosecutors say President Trump then reimbursed Mr. Cohen in a series of 12 monthly payments from the Trump Organization that were logged and characterized as checks for ongoing legal services instead of repayments for the “hush money.”

Mr. Bragg's prosecution of President Trump alleges that Mr. Cohen's payments to Ms. Daniels were unlawful federal political contributions. Mr. Bragg, however, doesn’t get to prosecute federal election cases. Congress has charged the FEC and the U.S. Department of Justice (DOJ), not the Manhattan DA, with enforcing federal campaign laws.

The letter asserts a United States Supreme Court doctrine, known as the “primary jurisdiction doctrine,” which states that a court should stay a case when it implicates issues that are within the special competence of a federal administrative agency. In Mr. Bragg’s case, federal campaign finance violations are indisputably within the special competence of the FEC, not the New York County District Attorney’s Office. Congressman Nehls’ letter argues Judge Merchan should stay the case or refer it to the FEC.

“If the former President of the United States can be subject to criminal penalties when state prosecutors take federal law into their own hands, then all Americans are at risk,” said Congressman Nehls. “If Judge Merchan does not stay the Bragg prosecution and refer the underlying charges to the FEC, a Manhattan jury will make a decision about federal law enforcement that was never actually enforced by the agency Congress authorized. To allow the prosecution to move forward without considering whether the court lacks jurisdiction to decide a federal election law question would undermine Congress’s lawmaking authority. This entire “case” is a complete sham. I will always support President Donald J. Trump.”

Read the full letter HERE or below:

Dear Judge Merchan:

Pending before your court are closing arguments concerning the prosecution of President Donald J. Trump by Manhattan District Attorney Alvin Bragg (Bragg case) for alleged unlawful federal political contributions and the subsequent concealment of those contributions. This prosecution suffers from numerous fatal flaws, but most notably, it is premised upon the baseless contention that a formal final finding that a violation of federal law occurred, which the federal government has not affirmatively established within the contours of a final adjudication with proper procedural safeguards. This proves fatal to the case at hand.

As a member of the House Committee on the Judiciary of the U.S. House of Representatives (House Judiciary Committee), I write because the Federal Election Commission (FEC), not the Manhattan District Attorney, is charged by Congress with enforcing federal campaign laws and determining in the first instance whether those laws are being followed. The FEC has not established that a violation of federal law has occurred. The House Judiciary Committee has jurisdiction over administrative law and constitutional rights, and I write out of concern that a judgment in the Bragg case – for either side – raises the prospect that state and local prosecutors can take federal law into their own hands.

Indeed, the gravamen of the indictment is the claim that former President Trump “falsif[ied] business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” Notable legal experts, including a former Attorney General of the United States, have commented that the Bragg case faces problems concerning the applicable statute of limitations, the conversion of a misdemeanor into a felony, and difficulties proving an actual intent to commit fraud by the former president. Former FEC Chairman Bradley A. Smith has opined that the former president did not commit the essential predicate crime required under New York Penal Law §175.10 (requiring that former President Trump concealed the commission of a crime, i.e., “hush money,” as political contribution). But most importantly, the FEC has not established in the form of a final agency adjudication that a violation of federal law has occurred. This is not just some small technicality, but rather, it is based upon a doctrine intertwined with respect between the vertical and horizontal separation of powers created by our Constitution, which serves to protect abuses of power by public officials.

1. The Federal Administrative Law Doctrine of “Primary Jurisdiction”

A vital United States Supreme Court doctrine exists to prevent the prosecutorial overreach apparent in the Bragg case. This rule, known as the “primary jurisdiction doctrine,” states that a court should stay a case when it implicates issues that are within the special competence of a federal administrative agency. In the Bragg case, federal campaign finance violations are indisputably within the special competence of the FEC, not the Manhattan District Attorney’s Office. The Supreme Court of the United States, in first articulating the primary jurisdiction doctrine in the context of state courts, expressed concern about state courts invading the authority of the federal government. If a state court instructs a jury about a federal enforcement scheme that was never actually enforced, it undermines Congress’s–and my Committee’s–authority to exercise our constitutional function in deciding what laws are appropriate for the limited sphere of federal enforcement.

2. The Important Constitutional Interests Served Through the Consideration of Primary Jurisdiction

It is vital that you ask the parties before you in this case to opine on whether you must stay the case before you and refer to the FEC the underlying fact question of whether former President Trump violated the Federal Election Campaign Act (FECA) by engaging in unlawful campaign contributions. Such a referral would neither disrupt the People of New York’s authority to try alleged wrongdoers nor your Court’s authority to adjudicate questions of New York law.

In 2019, in response to a FEC complaint led by Common Cause alleging that Michael Cohen’s payments to Stormy Daniels were improper political contributions, the FEC General Counsel determined that there was reason to believe a FECA violation occurred. As relevant here, the General Counsel found that former President Trump violated 52 U.S.C. § 30116(f) and 52 U.S.C. § 30122 by knowingly accepting excessive contributions  and 52 U.S.C. § 30118(a) by knowingly accepting prohibited corporate contributions in connection with the payment to Ms. Daniels. Notwithstanding the General Counsel’s report, the FEC exercised its prosecutorial discretion to not adjudicate allegations related to the complaint; however, that prosecutorial discretion was only applied to allegations against Mr. Cohen due to his criminal plea in the Southern District of New York.  The FEC did not adjudicate the General Counsel’s conclusion that President Trump violated FECA. And, further, the Commission lacked the votes of the full board: there was one absence and one recusal leading only four commissioners to vote, split evenly between partisan membership and thus leading to a deadlock. 

If, upon full consideration today, the FEC decided that no federal campaign finance violation occurred, you would retain sole jurisdiction to decide whether an underlying crime existed, notwithstanding claims of concealment. If the FEC were to determine that the former president did commit campaign finance violations, then it would be up to the Department of Justice’s (DOJ) Public Integrity Section to decide whether to indict him in federal court. Only after exhausting the federal process would it be constitutionally appropriate for the Bragg case to proceed to a jury.

3. Prudential Justifications Exist for Applying the Primary Jurisdiction Doctrine Here

The FEC is not a law enforcement agency, and its ability to function depends entirely upon complaints from the public to adjudicate FECA violations. Consider that on May 10, 2024, Noah Bookbinder, the President of Citizens for Responsibility and Ethics in Washington (CREW), filed a complaint before the FEC against the Make America Great Again Political Action Committee (PAC), alleging that the PAC “hid the source of funds used to pay settlements and related expenses” by “falsely reporting on statements filed with the FEC that conduct entities were the ultimate recipients of the funds.” CREW specifically requested that the FEC refer the matter to DOJ for prosecution. Given the FEC’s present adjudication of the CREW complaint, it would be inappropriate for a state prosecutor to rely on a theory of concealment to prosecute the PAC before the FEC–or, subsequently, DOJ–could adjudicate the matter.

Yet that is precisely what is occurring in the Bragg case. District Attorney Bragg could have filed a complaint before the FEC. He chose not to. And that choice is effectively an end-run around Congress’s carefully crafted scheme for adjudicating federal election law violations. It also threatens the uniformity, consistency, and integrity of the regulatory scheme behind FECA–one that is traditionally enforced before campaign crimes are indicted. Initial adjudication by the FEC, the opportunity to enter a conciliation agreement, and the FEC majority vote to authorize a referral for criminal investigation all act as procedural prerequisites designed to protect would-be FECA violators. Your Court should, at a minimum, consider these contentions.

The fact that a state criminal trial is underway would not prevent a judicial stay to refer the matter to the FEC. The Supreme Court of the United States has recognized that the doctrine of primary jurisdiction can permit a stay of criminal proceedings for a relevant federal agency to determine whether an underlying issue violates a law Congress charged it to administer. And lower courts have recognized the doctrine to authorize federal agency referrals during state criminal cases. Several federal cases support this proposition. In United States v. Alaska Steamship Co., the court ruled that “[a]ll the arguments in favor of letting an experienced administrative board exercise its primary jurisdiction applies with equal force in a criminal case as in a civil case.” In another case, Sprint Corporation, the former telecommunications business, was under criminal investigation by former Alabama Attorney General Jimmy Evans for violating a state anti-obscenity statute but used the primary jurisdiction doctrine to argue that a threatened criminal indictment should be stayed until the relevant agency, the Federal Communications Commission, could review whether federal communications laws preempt state laws and were violated by Sprint.

And therefore, under the primary jurisdiction doctrine combined with fundamental fairness and due process considerations, this case cannot move forward without a final agency adjudication or referral. The Supreme Court has held in other contexts in criminal cases that sentence enhancements cannot be applied to defendants without proper safeguards to establish that the past crimes in fact qualified. Those cases were all premised upon Sixth Amendment considerations. Here, the underlying alleged federal offense was not established with proper procedural safeguards, and it would be improper for a criminal case to proceed and for the former president’s Sixth Amendment rights to be violated based on some novel application of federal law by a state prosecutor or judge.

The Bragg case presents a substantial risk to the Constitution’s balance between federal and state authority. Failure to consider the propriety of a stay in this case means that any individual, let alone a former president, could be convicted for an underlying federal crime without the FEC or DOJ having exercised prosecutorial review. This threatens due process by allowing state prosecutors to enforce federal law without the procedural protections afforded by the federal government. Without appropriate consideration of the primary jurisdiction doctrine, the case before you could mean that Congress’s legislative process is nullified, for our laws can be enforced by state prosecutors without federal oversight.

Whether the New York County Supreme Court stays Bragg’s criminal proceeding and refers the allegations to the FEC is within your discretion. But failing to consider the question and allowing a verdict and judgment to become final risks abrogating the discretion of my Committee and the United States Congress as a whole.

Thank you for your attention to this important matter.

Sincerely,