Top FEC official's undisclosed ties to Trump raise concerns over agency neutrality

Debbie Chacona oversees the division of the Federal Election Commission that serves as the first line of defense against illegal flows of cash in political campaigns. Its dozens of analysts sift through billions of dollars of reported contributions and expenditures, searching for any that violate the law. The work of Chacona, a civil servant, is guided by a strict ethics code and long-standing norms that employees avoid any public actions that might suggest partisan leanings.

But Chacona's open support of President Donald Trump and her close ties to a former Republican FEC commissioner, Donald McGahn, who went on to become the 2016 Trump campaign's top lawyer, have raised questions among agency employees and prompted at least one formal complaint. Chacona, a veteran agency staffer who has run the FEC's Reports Analysis Division, or RAD, since 2010, has made her partisan allegiance clear in a series of public Facebook posts that include a photo of her family gathered around a “Make America Great Again" sign while attending Trump's January 2017 inauguration.

The public display of partisanship bewildered some FEC staffers, according to a former agency employee. For decades, the agency expressly banned employees from engaging in such partisanship, a cultural ethos that has stuck even after those rules were relaxed in 2011. Chacona's duties included discerning whether the inaugural committee's disclosures of donor information appeared to contain any “serious violations" of the law, an FEC procedures manual states.

Tyler Culberson, who worked under Chacona as a senior campaign finance analyst from 2010 to 2015, told ProPublica that staffers were trained to never betray political preferences that could call into question their division's “neutrality."

“Any public display of support or opposition to any candidate, campaign, anything on the federal level — we didn't do it," Culberson said. “When you are regulating partisan committees, the display of partisanship suggests the possibility of preferential treatment to that committee or candidate. So the mere appearance of it is problematic."

The inaugural committee, a nonprofit distinct from Trump's presidential campaign, filed its initial 510-page report in April 2017, detailing a record-breaking $107 million raised from more than 1,000 contributors. Within two weeks, a news story and then a watchdog complaint filed with the FEC highlighted a host of misidentified and shady donations. Several months later, when the committee amended its filing to address the issues, Chacona ultimately signed off on it, records show. But the updated report continues to list donors whose addresses don't exist in public records. The committee has had other problems too: State prosecutors have accused it of spending lavishly on Trump properties, and federal investigators subpoenaed the nonprofit for donor records in an effort to track down any illegal contributions made by foreign nationals.

Separately, emails and other records obtained by ProPublica show Chacona had frequent, friendly interactions on matters professional and personal with McGahn. The two worked together at the agency from 2008 through September 2013, when McGahn briefly entered private practice then went to work in 2015 as counsel for Trump's presidential campaign. After the election, he served as White House counsel.

Chacona did not respond to requests for comment. McGahn said, “I don't comment on nonsense."

Over the course of McGahn's FEC tenure, concerns over his ties with Chacona were relayed through official agency channels: at least one colleague complained directly to Chacona's supervisor that her closeness to the attorney could undermine the agency's nonpartisan credibility, and the relationship was the backdrop for a 2011 inspector general report that was shared with commissioners.

The emails between Chacona and McGahn, obtained by ProPublica through the Freedom of Information Act, show that Chacona sought McGahn's advice on fine points of campaign finance law and regulation, and engaged in derogatory exchanges about Ellen Weintraub, a Democratic FEC commissioner, and Fred Wertheimer, one of the country's leading advocates for campaign finance reform. Democracy 21, Wertheimer's nonprofit, helped file the FEC complaint against Trump's inaugural committee.

Larry Noble, a former FEC general counsel who served in Republican and Democratic administrations, told ProPublica that an official in Chacona's position must be “fair" to all commissioners, and that expressing negative views to a commissioner about someone with business before the agency “raises questions about whether the person will get a fair shake."

Noble added that, overall, it's “inappropriate for the head of a division to have such a relationship with just one commissioner. It makes you wonder in what ways she's steered RAD toward that ideological view in both subtle and obvious ways — what kind of things the division went after, and what kinds of things it didn't."

Chacona's division provides the public's only window into how money is spent and raised on elections. She manages a staff of 70 employees, a portion of whom flag irregular contributions and potential spending violations that can prompt audits, civil penalties and, in rare cases, criminal prosecutions.

Culberson said that Chacona is “ultimately the one who will say, 'We're not going to question this; we are going to question this.' There is a level of putting her finger on the scale if she wanted to."

It is unclear whether the Trump campaign has received favorable treatment from Chacona. The FEC declined to address detailed questions from ProPublica, including whether Chacona and McGahn communicated about campaign finance issues during the 2016 election cycle, interactions that would introduce the prospect of favoritism.

Ann Ravel, a Democrat who served on the commission, said Chacona's show of support for the president and the emails detailing her consultations with McGahn warrant an internal investigation to determine if there was any wrongdoing.

“You assume everything Debbie is saying is based solely on her expertise and knowledge," she said. “At the very least, she should never, at any point, be involved in any decisions relating to Trump."

Chacona's contacts with McGahn may have run afoul of a government ethics regulation meant to address circumstances in which close relationships can call into question an employee's decision-making, said Kathleen Clark, a government ethics expert at the Washington University School of Law in St. Louis. That rule requires that employees get approval from a designated agency official in cases where a “reasonable person with knowledge of the relevant facts" might question the federal employee's “impartiality."

McGahn is not involved in the president's 2020 campaign, according to Tim Murtaugh, the campaign's communications director. He is now a partner at Jones Day, a Washington, D.C., law firm that has been paid millions of dollars this cycle by the campaign.

Murtaugh declined to say whether the campaign was aware of McGahn and Chacona's relationship in 2016, if the two were in touch over disclosure filings that year or if the campaign is in communication with Chacona now.

“As Usual, You Schooled Me"

The tenure of McGahn, appointed to the FEC by President George W. Bush, was punctuated by discord between Republican and Democratic commissioners. Known as pugnacious and relentlessly partisan, McGahn led the agency's GOP wing as it regularly pushed back on campaign finance regulation. Votes on possible violations often resulted in a 3-3 deadlock as commissioners split along party lines, a lasting legacy that has earned him the reputation as one of the panel's most influential members of all time.

The acrimonious dynamic was exacerbated by the Supreme Court's controversial 2010 Citizens United decision, which laid the foundation for removing essentially all limits on corporate and nonprofit election spending, as well as lifting restrictions on individual contributions to political action committees.

As elections were flooded with far more money than ever before, the importance of Chacona's division grew.

In this uncharted regulatory terrain, she looked to McGahn for guidance.

“Wondering if a Super PAC that contributes to another Super PAC is still held to the contribution limit," Chacona asked McGahn in the summer of 2012, her email including a smiley face. “Your thoughts please."

“No limit," he responded.

Part of the exchange is redacted, so it's unclear where Chacona landed on the matter, but in her final response to him she said that “I even thought of some of what you said on my own (probably from reading all of your stuff over the years)."

The trove of emails shows that she shared McGahn's negative view of those who saw Citizens United as a potential danger to democracy.

In early 2010, Chacona and McGahn privately mocked Wertheimer, whose watchdog group, Democracy 21, often files FEC complaints. In a press release, Wertheimer contended that the Citizens United decision was “out of touch with the American people."

Chacona forwarded the quote to McGahn, wondering if Wertheimer “ever talked with anyone outside the beltway about this stuff," because, she said, “they pretty much don't have a clue." Chacona concluded, “Sounds like he's the one out of touch," ending the sentence with another smiley face.

McGahn replied that Wertheimer has “zero intellectual honesty, and will say anything about anyone."

The contempt extended to Weintraub. In one 2011 exchange, the two discussed a Politico article that quoted Weintraub as saying she considered the Republican panelists “colleagues" and “not pals," prompting Chacona to ask, with her customary smiley face, “How broken up are you that Ellen doesn't consider you a pal?"

Chacona told McGahn, who was quoted in the story deriding “superficial compromise," that he came across as “sensible and sincere."

McGahn responded that to Weintraub a deadlocked commission vote is “a failure to give guidance, but [to] everyone else, it's a green light."

A year later, early in what would become a more than $2 billion presidential contest between Mitt Romney and President Barack Obama — then the most expensive race in American history — Chacona and McGahn were critical of journalists scrutinizing FEC disclosure reports. She wrote to him decrying a “media frenzy" over the issue. McGahn characterized the intense interest as “disclosuremania."

The emails show Chacona held McGahn in high regard. “As usual, you schooled me," she wrote in one exchange about the Supreme Court and campaign finance. In an email about disclosure rules, she told him, “I should know by now you are always a step (or 2, 3, 4…) ahead."

“A Bit Too Cozy"

Chacona's closeness to McGahn prompted at least one top FEC official to complain to Chacona's supervisor, Patricia Orrock, about the appearance of a potential conflict of interest that could jeopardize the agency's integrity.

Lynn Fraser, who retired in May 2017 as the head of the FEC's Alternative Dispute Resolution program, told ProPublica that she was troubled by interactions between the RAD official and the commissioner, which she described as “a bit too cozy."

Fraser said she spoke up because the appearance that the head of RAD had a personal or political bias for McGahn, a staunch Republican, could hurt the division's promise of neutrality and might unintentionally influence RAD analysts worried about challenging a boss with a clear point of view.

“Conflicts of interest are tricky little things because sometimes people don't even realize they have a conflict, they don't perceive it as such," Fraser added. “And that's actually more dangerous. It can color your worldview without you even being really aware of it. And Don was persuasive. He's really smart. And he knows campaign finance."

In a closed door meeting, while McGahn was still a commissioner, Fraser said she asked Orrock to explain to Chacona that her relationship with the commissioner “looks really bad."

“It's the appearance of impropriety that starts raising peoples' concerns," Fraser said she remembers telling Orrock, who remains Chacona's supervisor. “I got the assumption, and that's all it was, that she would say something to Debbie."

It's not clear whether Orrock, who did not respond to a request for comment, ever talked with Chacona.

Fraser's concerns did not come in a vacuum. In 2011, Chacona's husband, Marcus, lodged a complaint with the FEC's inspector general. The complaint included allegations that he had received anonymous calls relating to his wife and McGahn.

“The nature of this contact is to apparently alert me about the nature of their relationship and they expressed that it is more than professional," he wrote.

The resulting report, which was shared by commissioners, was unable to determine who was behind the calls because Marcus Chacona, who declined to comment, stopped cooperating and refused to turn over his phone records.

A Look at the Trump Inaugural Committee's Filing

Almost as soon as Trump was inaugurated on Jan. 20, 2017, reporters noted the crowd size at the event was smaller than it was for Obama's first inauguration in 2009. The accurate assessment touched off days of blustery pushback from the White House, which took on the media over its inaugural coverage. Chacona posted an image on Facebook of the event showing a packed crowd on the National Mall. “Here's a real picture from yesterday," she wrote.

But while the dispute played out publicly, more significant problems faced the 58th Presidential Inaugural Committee.

The nonprofit group had raised more than double what Obama's inaugural committee collected in 2009, and the FEC required it to account for its donors. When Trump's committee filed its initial FEC disclosure form in April 2017, the Huffington Post created a public spreadsheet to crowdsource its effort to vet the names, companies and addresses.

Within days, the news outlet detailed hundreds of reporting mistakes, such as obscuring the true buyer of inaugural tickets and disclosing inaccurate donor addresses.

A week after the story was published, Wertheimer's Democracy 21 and other watchdog groups filed a formal FEC complaint, arguing that inaugural officials had recklessly filed reports “they knew or should have known did not include required information."

Trump's committee amended its filing to address some problems and asserted that the complaint raised mostly “technical reporting issues" and should be dismissed. To support its argument, the committee noted that RAD had sent both of Obama's inaugural committees formal requests for more information — inquiries the Obama committees satisfied by amending their filings.

The FEC general counsel sided with Trump's committee in an October 2017 report and recommended the commission dismiss the complaint. While acknowledging that “we do not know the full extent of the Inaugural Committee's inaccurate reporting," the report concluded that the Trump committee had made “analogous errors" to those of Obama. “We do not believe it is an efficient use of Commission resources to pursue this matter," it said.

In a footnote, the report explicitly states that Chacona had “discretion" over the Trump committee's amended report, and that RAD chose not to formally request more information.

Years later, the Trump inaugural has still not resolved all of its reporting problems, and the committee continues to list donors with questionable addresses, according to an examination by CNBC. One $25,000 donation, for example, came from a Singapore address that does not appear in public records. It is illegal for an inaugural to accept donations from a foreign national, but in its report, the Trump committee asserted that the donor was an American citizen. An additional $100,000 came from a contributor whose Anaheim, California, address also could not be verified. Both discrepancies were confirmed by ProPublica.

An inaugural committee spokesman said that if “additional corrections" to its report “are ever required, they will be addressed." He also said that McGahn played no role in responding to Democracy 21's complaint.

Wertheimer, who had been ridiculed by McGahn and Chacona years earlier, told ProPublica that he “can't see any reasonable explanation" for why RAD hasn't asked the inaugural committee to resolve these discrepancies. He said the FEC should “look at whether this was a political decision or a policy decision that can be justified."