At 4:53pm on May 6th of 2021, FEC Commissioner Ellen Weintraub tweeted: “GOP commissioners kill @FEC case against former Pres. Trump for knowingly and willfully accepting a $130k contribution to spike the Stormy Daniels story just before Election Day 2016”

Attached to the tweet was a link to a statement of facts outlining a situation where Republican appointees on the Federal Election Commission decided against pursuing an investigation of the Trump campaign right before election day 2016, claiming that criminal charges against Trump’s lawyer Michael Cohen vindicated the inquiry and therefore, no additional action was taken. 

Weintraub’s statement declares: “The Commission received a series of complaints alleging that Cohen,Trump, and others committed various violations of the Federal Election Campaign Act of 1971,as amended (the “Act”) in connection with Cohen’s payment to Clifford. The complaints, along with the government record of Cohen’s criminal prosecution for these allegations and his sworn testimony before Congress, provided the Commission with a robust factual record.”  Weintraub also states: “the Commission’s Office of the General Counsel (“OGC”) recommended finding reason to believe that Cohen and the Trump Organization made, and Trump and Donald J. Trump for President, Inc. (the “Committee”) accepted and failed to report, illegal contributions.”  Yet in spite of this  information, Republican appointees decided that: “Despite Trump’s apparent role in the transaction, the Trump Committee argues in its response to the complaints that there was no violation because the payment to Clifford alleged in the complaints was not campaign-related and therefore not an impermissible contribution. To conclude that a payment, made 13 days before Election Day to hush up a suddenly newsworthy 10-year-old story, was not campaign-related, without so much as conducting an investigation, defies reality.”

The questions this raises for the Justice Department are: Does a refusal by Republican administrators of the FEC to pursue an investigation, when said refusal appears to be motivated by a partisan political interest, constitute a violation of the “take care” clause of the Constitution, thereby becoming an “unconstitutional action” subject to the limits on immunity for Federal Executive Officers outlined in Butz v. Economou?  Also, does that unconstitutional action warrant filing charges under 18 USC§ 371: Conspiracy to defraud the United States, on the grounds that the violation of the “Take Care Clause” meets the standard for prosecution described in Haas v. Henkel because the refusal to investigate the matter frustrates the function of government by failing to faithfully execute Federal election law? We’ll just have to wait and find out what Merrick Garland has to say.