When federal election officials announced this month that they closed an investigation into the Trump campaign allegedly coordinating with foreign nationals, they may have unintentionally opened the door to another case.
On Nov. 4, the FEC’s office of general counsel published its final report on its three-year investigation into whether a number of political committees, including the Trump campaign, had illegally coordinated with Cambridge Analytica’s foreign employees in the 2014 and 2016 elections.
Cambridge, a British data firm which worked for Donald Trump’s campaign in 2016, employed Steve Bannon as the director of U.S. operations before he became a top adviser to Trump. The firm was widely accused by watchdogs, employee whistleblowers, and governments around the world of illegally harvesting Facebook data for “psychological profiling” services it provided to help campaigns target digital ads—allegations the company denies.
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The FEC wanted to find out whether Cambridge’s campaign work included foreign nationals not just providing services but helping campaigns make decisions, which is illegal.
But after agency investigators reported they had found “reason to believe” there was illegal coordination in both 2014 and 2016, the Republican FEC commissioners voted to proceed only with the 2014 case—ignoring the allegations involving Trump. The probes were then stymied by a slate of evasive respondents, and the lawyers eventually recommended dropping both investigations.
Still, some of the information that surfaced in the investigation—including a response from Cambridge’s billionaire backer, Rebekah Mercer—offers a tantalizing glimpse into a closely related complaint involving the same players, which is still very much open and has been lingering unanswered for more than four years.
That complaint, filed in 2016 by the nonpartisan Campaign Legal Center, alleges that the Trump campaign and a pro-Trump super PAC run by Bannon illegally coordinated through Cambridge to pump out millions of dollars in political ads for Trump.
Brendan Fischer, director of reform at CLC, said the evidence generated in the closed investigation specifically strengthens their case against Bannon, who was named in the foreign national probe but was never questioned.
“Part of what’s so striking is the revolving door between the Trump campaign, Bannon’s super PAC, and Cambridge Analytica, in some cases all at the same time,” Fischer told The Daily Beast.
Bannon, who served briefly in the Trump White House, worked for all three entities: He ran U.S. operations at Cambridge while helming the super PAC in question (Make America Number 1), then moved over to the Trump campaign. Federal election filings show the Trump campaign paid Cambridge Analytica $5.9 million in the 2016 cycle, and MAN1 reported paying another $5 million to the firm after the super PAC began backing Trump. It is illegal for campaigns and outside groups to coordinate election-related activity through a common vendor without appropriate firewalls in place.
Fischer pointed out that Mercer, Bannon’s former business partner and billionaire Cambridge financier, appears to have betrayed Bannon, with the right-wing megadonor pinning the blame for any illicit activity on him.
“The response from Mercer’s attorney was that Bannon was running the show, so the idea that he’d also been running both the super PAC and the Trump campaign, and that both of them were contracting with the firm Bannon had also been running just boggles the mind,” Fischer said.
“These are not novel issues,” he continued. “It’s anticipated in the law that a shared vendor might act illegally as a conduit between campaigns. But this is something we haven’t really seen before.”
In Mercer’s response, her attorney Mark Hansen wrote that any alleged illegality would lie not with Mercer, but with Bannon and former Cambridge CEO Alexander Nix, both of whom Mercer relied on to “properly and lawfully manage the affairs of CA,” and “in particular to comply in all respects” of campaign finance laws.
While Hansen acknowledged that Mercer worked at “a high level” in the organization, she had been “simply swept in” with Bannon and Nix, he said. As the company’s top executives, Hansen continued, it was Bannon and Nix who “directed what CA employees did or did not do in their US campaign work for US political campaigns.”
Bolstering the CLC’s case even further is that FEC lawyers have already cited as credible a number of news reports indicating the campaign and super PAC made little effort, if any, to draw a line between the operations.
For instance, the lawyers pointed to a 2018 Channel 4 report of Nix saying, on tape, that for Trump, Cambridge did “all the research, all the data, all the analytics, all the targeting, we ran all the digital campaign, the television campaign and our data informed all the strategy.”
Another Cambridge executive, also speaking on tape in that report, said the firm distributed “positive” messages through the Trump campaign while “negative material was pushed out through outside organizations,” specifically the [Bannon-run] super PAC, which “created the ‘Defeat Crooked Hillary’ brand of attack ads . . . funded by the Make America Number 1 super-PAC and watched more than 30 million times during the campaign.”
That acknowledgement, the FEC said, “plainly indicates that Cambridge was integrally involved in the decision-making process for both committees.” The report also dismissed the super PAC’s written response, calling it “self-serving” and “not sufficient, without additional information, to refute the allegations.”
Still, evidence alone may not be enough. Democrats have long accused the Republican commissioners on the FEC of stonewalling investigations into Trump. And that concerns Fischer.
“The FEC is a notoriously dysfunctional agency, and the GOP commissioners in particular have found every excuse they can to avoid enforcing the law. Here, even they couldn’t deny the evidence, but narrowed the inquiry to effectively kill the investigation before it could reach fruition,” he said.
He’s not alone. Democratic Commissioner Ellen Weintraub told The Daily Beast “it’s no secret the FEC is not doing a serious job enforcing laws”—conspicuously so when it comes to the former president.
“The 2016 allegations were more serious, involving two presidential campaigns, and we didn’t even have the votes. They were bigger players, and we also had more time on the clock, but they refused to move forward, and didn’t even say why,” said Weintraub, who released a joint dissent with fellow Democratic FEC chair Shana Broussard when the final report was published earlier this month.
She expressed acute frustration with her agency’s continued inaction against Trump, explaining that “about a half-dozen cases,” ranging from fundraising to “hush money” paid to Stormy Daniels, never went forward due to a lack of votes this year alone.
“That’s disheartening,” Weintraub said. “It’s not the way an investigative agency should work, and it’s a big problem when you have alleged wrongdoing at the very highest levels of government. No one is above the law.”
Paul Ryan, vice president of policy and litigation at Common Cause, filed the initial 2018 complaint against Cambridge and Trump. He also blamed the GOP.
“It’s more of the same, with the FEC’s Republican commissioners dragging their feet, allowing the statute of limitations to expire, and hobbling or blocking investigations entirely,” Ryan said. “The result is no enforcement of the law.”
Caleb Burns, campaign finance law expert and partner at Wiley Rein, said it was “significant” that a bipartisan majority of commissioners voted to proceed on the 2014 allegations, noting the difficulties of seeing through such a sprawling international investigation.
“Investigations of foreign national involvement in campaign activities can be extremely difficult if the relevant evidence is overseas. The government no longer has its usual tools to collect the evidence and that can present significant hurdles to enforcement,” Burns said.
Fischer expressed confidence their case would not suffer the same fate.
“In some ways the FEC would not face the same challenges with our complaint,” he said. “They would not necessarily have to obtain evidence from overseas to prove coordination that happened here, because Cambridge was incorporated in the U.S. and the players involved were based in the U.S.”
