No. 19-635
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP,
`
`Petitioner,
`
`v.
`
`CYRUS R. VANCE, JR., IN HIS OFFICIAL CAPACITY
`AS DISTRICT ATTORNEY OF THE COUNTY
`OF NEW YORK, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`BRIEF IN OPPOSITION
`
`new York CountY
`DIstrICt AttorneY’s offICe
`One Hogan Place
`New York, NY 10013
`(212) 335-9000
`dunnec@dany.nyc.gov
`
`CAreY r. Dunne*
`General Counsel
`ChrIstopher ConroY
`solomon B. shIneroCk
`JAmes h. GrAhAm
`sArAh wAlsh
`Allen J. VICkeY
`Assistant District
`Attorneys
`Counsel for Respondent Cyrus R. Vance, Jr.
`
`* Counsel of Record
`
`
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP,
`
`Petitioner,
`
`v.
`
`CYRUS R. VANCE, JR., IN HIS OFFICIAL CAPACITY
`AS DISTRICT ATTORNEY OF THE COUNTY
`OF NEW YORK, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`BRIEF IN OPPOSITION
`
`new York CountY
`DIstrICt AttorneY’s offICe
`One Hogan Place
`New York, NY 10013
`(212) 335-9000
`dunnec@dany.nyc.gov
`
`CAreY r. Dunne*
`General Counsel
`ChrIstopher ConroY
`solomon B. shIneroCk
`JAmes h. GrAhAm
`sArAh wAlsh
`Allen J. VICkeY
`Assistant District
`Attorneys
`Counsel for Respondent Cyrus R. Vance, Jr.
`
`* Counsel of Record
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`the
`immunity bars
`Whether presidential
`enforcement of a state grand jury subpoena directing
`a third party to produce material which pertains to
`the President’s unofficial and non-privileged conduct.
`
`
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`
`QUESTION PRESENTED ......................................... i
`
`TABLE OF CONTENTS ............................................ ii
`
`TABLE OF CITED AUTHORITIES ......................... iv
`
`INTRODUCTION .......................................................1
`
`STATEMENT OF THE CASE ....................................2
`
`A. Factual Background .........................................2
`
`B. Procedural History ...........................................6
`
`REASONS FOR DENYING THE WRIT .................. 11
`
`Is
`Intervention
`Court’s
`A. This
`Unwarranted Because The Decision
`Below Correctly Resolved A Narrow
`Question Controlled By This Court’s
`Precedents ...................................................... 11
`
`1. This Court’s Precedents Establish
`That A President’s Records May Be
`Subpoenaed In The Circumstances
`Here ........................................................... 12
`
`2. Petitioner’s Contrary Arguments Are
`Meritless .................................................... 20
`
`a. The Question Whether A
`President May Be Indicted Or
`Detained Is Irrelevant To The
`Issue Here ............................................ 20
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`b. That The President May Be
`Among Several Potential Subjects
`Of The Grand Jury’s Investigation
`Does Not Distinguish Nixon ................ 24
`
`c. That The Subpoena Was Issued
`By A State Rather Than Federal
`Grand Jury Only Confirms Its
`Propriety .............................................. 26
`
`d. There Is No Basis For Applying A
`Heightened Need Standard In
`The Circumstances Here ..................... 31
`
`Additional
`No
`Are
`B. There
`Considerations That Counsel
`In
`Favor Of This Court’s Review .................. 32
`
`C. This Court Should Expeditiously
`Resolve The Petition For Certiorari
`And, If Necessary, The Merits Of This
`Dispute ...................................................... 34
`
`CONCLUSION .......................................................... 36
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF CITED AUTHORITIES
`
`Page(s)
`
`Cases:
`
`Branzburg v. Hayes,
`408 U.S. 665 (1972) .............................................. 18
`
`Cheney v. U.S. Dist. Ct. for D.C.,
`542 U.S. 367 (2004) ........................................ 29, 32
`
`Clinton v. Jones,
`520 U.S. 681 (1997) ...................................... passim
`
`Committee on Ways & Means v.
`U.S. Department of Treasury,
`No. 19-cv-1974 (D.D.C. Sept. 6, 2019) ........... 35, 36
`
`Gamble v. United States,
`139 S. Ct. 1960 (2019) .......................................... 30
`
`In re Sealed Case,
`121 F.3d 729 (D.C. Cir. 1997) ........................ 31, 32
`
`Lockerty v. Phillips,
`319 U.S. 182 (1943) .............................................. 30
`
`M’Clung v. Silliman,
`19 U.S. 598 (1821) ................................................ 27
`
`Nixon v. Fitzgerald,
`457 U.S. 731 (1982) ...................................... passim
`
`Nixon v. Sirica,
`487 F.2d 700 (D.C. Cir. 1973) .................. 14, 23, 24
`
`North Dakota v. United States,
`495 U.S. 423 (1986) .............................................. 27
`
`Office of President v. Office of Indep. Counsel,
`521 U.S. 1105 (1997) ............................................ 34
`
`
`
`
`
`
`
`
`
`v
`
`Office of the President v. Office of the Indep.
`Counsel,
`525 U.S. 996 (1998) .............................................. 34
`
`Rubin v. United States,
`525 U.S. 990 (1998) .............................................. 34
`
`Toussie v. United States,
`397 U.S. 112 (1970) .............................................. 35
`
`Trump v. Mazars USA, LLP,
`No. 19-5142 (D.C. Cir.) ........................................ 35
`
`United States v. Armstrong,
`517 U.S. 456 (1996) .............................................. 29
`
`United States v. Burr,
`25 F. Cas. 30 (C.C. Va. 1807)............................... 29
`
`United States v. Burr,
`25 F. Cas. 187 (C.C. Va. 1807)............................. 13
`
`United States v. Cohen,
`366 F. Supp. 3d 612 (S.D.N.Y. 2019) ....................3
`
`United States v. Cohen,
`No. 18-cr-602, 2019 WL 3226988
`(S.D.N.Y. July 17, 2019) ........................................4
`
`United States v. Lee,
`106 U.S. 196 (1882) .............................................. 36
`
`United States v. McLeod,
`385 F.2d 734 (5th Cir. 1967) ................................ 27
`
`United States v. Morrison,
`529 U.S. 598 (2000) ........................................ 30-31
`
`United States v. Nixon,
`418 U.S. 683 (1974) ...................................... passim
`
`
`
`
`
`
`
`
`
`vi
`
`United States v. R. Enterprises, Inc.,
`498 U.S. 292 (1991) .................................. 18, 31, 32
`
`Younger v. Harris,
`401 U.S. 37 (1971) ...................................... 6, 10, 30
`
`
`
`Statutes and Other Authorities:
`
`U.S. Const. amend. VI ........................................ 17, 35
`
`U.S. Const. amend. X ................................................ 30
`
`U.S. Const. art. I, § 3, cl. 7 ........................................ 22
`
`U.S. Const. art. II .................................... 10, 18, 19, 33
`
`U.S. Const. art. VI, cl. 2 ............................................ 27
`
`A Sitting President’s Amenability to Indictment
`and
`Criminal
`Prosecution,
`24 Op. O.L.C. 222 (2000) ......................... 21, 22, 23
`
`David A. Fahrenthold & Jonathan O’Connell,
`After Selling Off His Father’s Properties,
`Trump Embraced Unorthodox Strategies To
`Expand His Empire, WASH. POST,
`Oct. 8, 2018 ............................................................3
`
`Fed. R. Crim. P. 17(c) .......................................... 31, 32
`
`Hearing with Michael Cohen, Former Attorney
`to President Donald Trump: Hearing Before
`the H. Comm. on Oversight and Reform,
`116th Cong. 1 (Feb. 27, 2019) ............................ 3-4
`
`Memorandum for the U.S. Concerning the Vice
`President’s Claim
`of Constitutional
`Immunity, In re Proceedings of the Grand
`Jury Impaneled Dec. 5, 1972, No. 73-965 (D.
`Md.) ...................................................................... 21
`
`
`
`
`
`
`
`
`
`vii
`
`N.Y. Crim. Proc. Law § 190.25(4)(a) ......................... 17
`
`N.Y. Crim. Proc. Law § 190.50(5)(a) ......................... 24
`
`Robert G. Dixon, Jr., Asst. Att’y Gen., O.L.C.,
`Re: Amenability of the President, Vice
`President and other Civil Officers to Federal
`Criminal Prosecution while in Office (Sept.
`24, 1973) ......................................................... 21, 23
`
`Tr. of Plea Hr’g United States v. Cohen, No. 18-
`cr-602 (S.D.N.Y. Aug. 21, 2018), ECF No. 7 .........3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`INTRODUCTION
`
`Petitioner’s main argument for review is that
`when the President seeks a writ of certiorari asserting
`immunity, this Court should grant it. But the petition
`provides no compelling basis
`for this Court’s
`intervention here.
`
`Petitioner is correct that this Court has in the past
`granted review to decide important and unanswered
`questions of presidential
`immunity,
`including
`whether the President can be subject to a subpoena
`(yes), United States v. Nixon, 418 U.S. 683, 713
`(1974), and whether the President can be sued while
`in office (yes), Clinton v. Jones, 520 U.S. 681, 684
`(1997). But this case presents only a narrow question
`that is readily resolved by those very precedents:
`whether a state may issue a subpoena to a third party
`seeking financial records of the sitting President
`when those records are relevant to a secret grand jury
`investigation and have no relation to official actions
`taken by the President during his time in office. The
`court of appeals answered that question in the
`affirmative, and that answer is plainly correct under
`a straightforward application of
`this Court’s
`precedent. The circumstances that counseled in favor
`of review in cases like Nixon and Clinton—the
`existence of a substantial open question regarding the
`contours of presidential immunity relevant to the
`public interest—simply do not exist here.
`
`Indeed, there is no real public interest at stake
`here at all; this case instead involves Petitioner’s
`private interest in seeking his own and others’
`immunity from an ordinary investigation of financial
`improprieties independent of official duties. That is
`
`
`
`
`
`
`
`
`
`2
`
`not the kind of interest that warrants this Court’s
`intervention, particularly in the absence of any
`genuine
`controversy over
`the
`legal question
`presented.
`
`The petition should be denied.
`
`STATEMENT OF THE CASE
`
`A. Factual Background
`
`This case arises from an investigation commenced
`in 2018 by the New York County District Attorney’s
`Office (the “Office”). The investigation concerns a
`variety of business transactions, and is based on
`information derived from public sources, confidential
`jury process.1
`informants, and the grand
` In
`connection with the investigation, the Office has
`issued subpoenas on behalf of a sitting grand jury for
`financial and other records of Petitioner, among many
`other individuals and entities.
`
`The subpoenas seek records, dating from 2011 to
`the present, concerning transactions that are
`unrelated to any official acts of the President, and
`that occurred largely before Petitioner assumed office.
`The subpoenas do not identify Petitioner (or anyone
`else) as a “target” of the investigation, but were issued
`as a routine part of the grand jury’s fact-gathering
`process. The grand jury has not indicted Petitioner,
`nor called for his detention, arrest, or prosecution.
`
`1. During the course of the Office’s investigation,
`there were multiple public reports of possible criminal
`
`
`1 A summary overview of the scope and foundation of the
`investigation is further detailed in the redacted portions of the
`Shinerock Declaration, filed under seal. C.A. Dkt. 101.
`
`
`
`
`
`
`
`
`
`3
`
`misconduct by employees of Petitioner’s New York
`County-based Trump Organization. See, e.g., David
`A. Fahrenthold & Jonathan O’Connell, After Selling
`Off His Father’s Properties, Trump Embraced
`Unorthodox Strategies To Expand His Empire, WASH.
`POST, Oct. 8, 2018, https://wapo.st/35iWaId (reporting
`on possible financial misconduct at the Trump
`Organization dating back to at least 2005). The
`reports described transactions—spanning more than
`a decade—involving individual and corporate actors
`who were based in New York County, but whose
`conduct at times extended outside the County. The
`reports raised the prospect that criminal activity had
`occurred within the jurisdiction of the Office, and
`within
`the applicable statutes of
`limitations,
`particularly if the transactions involved a continuing
`pattern of conduct. One of the issues reported on
`related to “hush money” payments made on behalf of
`Petitioner to two women with whom Petitioner
`allegedly had extra-marital affairs.
`
`In August 2018, Michael Cohen, Petitioner’s
`longtime counselor, pleaded guilty in federal court to,
`among other things,
`federal campaign
`finance
`violations arising from the “hush money” payments to
`one of the women. United States v. Cohen, 366 F.
`Supp. 3d 612, 618 (S.D.N.Y. 2019). Mr. Cohen
`admitted that he violated campaign finance laws in
`coordination with, and at the direction of, an
`unindicted coconspirator he
`later
`identified as
`Petitioner. Tr. of Plea Hr’g at 23, United States v.
`Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018), ECF
`No. 7; Hearing with Michael Cohen, Former Attorney
`to President Donald Trump: Hearing Before the H.
`Comm. on Oversight and Reform, 116th Cong. 1, 11
`
`
`
`
`
`
`
`
`
`4
`
`(Feb. 27, 2019). Around that time, in response to a
`request from federal prosecutors, and in the interest
`of ensuring that the ongoing federal investigation was
`not unduly disrupted, the Office deferred
`its
`investigation pending the outcome of the federal
`matter.
`
`Nearly a year later, on July 17, 2019, the Office
`learned
`for
`the
`first
`time
`that
`the
`federal
`investigation had concluded without any further
`federal charges. See United States v. Cohen, No. 18-
`cr-602, 2019 WL 3226988, at *2 (S.D.N.Y. July 17,
`2019). Shortly thereafter, the Office resumed its
`investigation into potential violations of state law,
`including issues beyond those involved in the Cohen
`matter.
`
`2. Once its investigation resumed, the Office, on
`behalf of the grand jury, began issuing subpoenas
`duces tecum for financial and other records, including
`financial statements and tax returns, and the
`working papers necessary to prepare—and test—
`those records.
`
`On August 1, 2019, the Office served the Trump
`Organization with a
`subpoena
`(the
`“Trump
`Organization Subpoena”). That subpoena seeks
`records and communications relating to, among other
`transactions, the “hush money” payments made on
`behalf of Petitioner, how those payments were
`reflected in the Trump Organization’s books and
`records, and who was involved in determining how
`those payments would be reflected in the Trump
`Organization’s books and records. Shortly after
`service of the Trump Organization Subpoena, the
`Office
`conveyed
`to
`counsel
`for
`the Trump
`
`
`
`
`
`
`
`
`
`5
`
`Organization its belief that tax returns are responsive
`to the subpoena. The Trump Organization produced
`certain documents (not including tax returns) on
`August 15 and 29, September 13, October 4 and 31,
`and November 12 and 20.
`
`On August 29, 2019, the Office served Petitioner’s
`accounting firm, Mazars USA LLP (“Mazars”), with a
`subpoena (the “Mazars Subpoena”) that was likewise
`issued on behalf of the grand jury. The Mazars
`Subpoena seeks financial and tax records of several
`individuals and entities, including Petitioner and
`entities owned by Petitioner before he became
`President, from January 1, 2011 to the present. The
`records sought by the Mazars Subpoena are not
`related to any official act of Petitioner in his capacity
`as President of the United States, nor does the
`subpoena require Petitioner himself to produce any
`records.2
`
`On September 17, 2019, counsel for the Trump
`Organization requested a suspension of compliance
`with
`the Mazars Subpoena pending
`further
`negotiations or litigation. Although the Office
`declined
`to
`suspend
`the Mazars Subpoena
`indefinitely, on September 18, 2019, the Office agreed
`to suspend the tax-related portion of that subpoena
`for five days to allow counsel to challenge it.
`
`
`2 The Mazars Subpoena was patterned in part on a subpoena
`already issued for some of the same records by the Committee on
`Oversight and Reform of the United States House of
`Representatives. This practice minimizes the burden on third
`parties and enables expeditious production of responsive
`documents.
`
`
`
`
`
`
`
`
`
`6
`
`B. Procedural History
`
`1. On September 19, 2019, Petitioner (represented
`by private counsel) filed a civil lawsuit against
`Mazars and Respondent Vance in federal district
`court and simultaneously moved for emergency
`injunctive relief, asserting that the Constitution
`wholly exempts the President from any form of
`“criminal process” or “investigation,” including a
`subpoena for records held by a third party that are
`unrelated to the President’s official conduct.
`
`for
`opposed Petitioner’s motion
`Respondent
`emergency relief and cross-moved to dismiss, arguing
`that the court should abstain under Younger v. Harris,
`401 U.S. 37 (1971); that Petitioner’s sweeping claim of
`immunity is contrary to settled precedent, including
`Nixon; and that Petitioner had failed to establish
`irreparable harm.3 Briefing and argument was highly
`expedited pursuant to an agreement between the
`parties, and the Office agreed to temporarily forbear
`enforcement of the Mazars Subpoena.
`
`2. On October 2, 2019, one week after oral
`argument before the court, the Department of Justice
`(the “DOJ”) filed a Statement of Interest, asserting
`that abstention was inappropriate but taking no
`position on Petitioner’s preliminary
`injunction
`motion. On October 7, 2019, the district court issued
`its decision abstaining under Younger and, in the
`alternative,
`rejecting Petitioner’s
`request
`for
`injunctive relief based on his claim of absolute
`immunity. Pet. App. 30a-95a.
`
`
`3 Mazars took no position on the motion.
`
`
`
`
`
`
`
`
`
`7
`
`3. Minutes later, Petitioner appealed to the
`Second Circuit and moved to prevent the Office from
`enforcing the Mazars Subpoena while the appeal was
`pending. Respondent cross-moved for expedited
`briefing and argument, and the Second Circuit set a
`highly expedited schedule. The briefing included a
`submission by the DOJ as amicus curiae, which did
`not endorse Petitioner’s claim of “temporary absolute
`immunity,” but instead asserted that, under Nixon, a
`President can indeed be compelled to respond to a
`subpoena in a criminal case, so long as the prosecutor
`makes a “heightened and particularized showing of
`need.”4 The Second Circuit heard argument on
`October 23, 2019.5
`
`On November 4, 2019, a Second Circuit panel
`unanimously affirmed the district court’s decision
`that Petitioner is not entitled to injunctive relief. The
`court held that “presidential immunity does not bar
`the enforcement of a state grand jury subpoena
`directing a third party to produce non-privileged
`material, even when the subject matter under
`investigation pertains to the President.” Pet. App.
`15a. Emphasizing the narrow question presented—
`
`
`4 The DOJ stated that Petitioner brought this litigation in
`his “individual capacity,” disagreeing with Petitioner’s assertion
`that he had brought it both in his personal capacity and in his
`capacity as President.
`
`5 After the Second Circuit imposed a brief administrative
`stay, the Office informed Petitioner that it would voluntarily
`forbear enforcement of the Mazars Subpoena pending any final
`determination by this Court, in exchange for Petitioner’s
`agreement to expeditiously brief his petition for a writ of
`certiorari and to ask this Court to hear and decide the case this
`Term, should certiorari be granted.
`
`
`
`
`
`
`
`
`
`8
`
`namely, “when, if ever, a county prosecutor can
`subpoena a third-party custodian for the financial and
`tax records of a sitting President, over which the
`President has no claim of executive privilege,” Pet.
`App. 2a—the court held that Petitioner’s claim of
`“temporary absolute presidential immunity” lacks
`any basis in “historical and legal precedent,” Pet.
`App. 15a.
`
`The court recognized “the long-settled proposition
`that ‘the President is subject to judicial process in
`appropriate circumstances,’” pursuant to which
`“presidents have been ordered to give deposition
`testimony or provide materials in response to
`subpoenas.” Pet. App. 15a-16a (citing Clinton, 520
`U.S. at 703-05). “In particular, ‘the exercise of
`jurisdiction [over the President] has been held
`warranted’ when necessary ‘to vindicate the public
`interest in an ongoing criminal prosecution.’” Pet.
`App. 16a (quoting Nixon v. Fitzgerald, 457 U.S. 731,
`754 (1982)).
`
`Examining this Court’s precedent, the Second
`Circuit held that Petitioner had failed to explain
`“persuasively ... why, if executive privilege did not
`preclude enforcement of the subpoena issued in
`Nixon, the Mazars [S]ubpoena must be enjoined
`despite seeking no privileged information and bearing
`no relation to the President’s performance of his
`official functions.” Pet. App. 17a. “[T]hat Nixon was
`ordered
`to comply with a subpoena seeking
`documents for a trial proceeding on an indictment
`that named him as a conspirator,” the court observed,
`“strongly suggests that the mere specter of ‘stigma’ or
`‘opprobrium’ from association with a criminal case is
`
`
`
`
`
`
`
`
`
`9
`
`not a sufficient reason to enjoin a subpoena—at least
`when, as here, no formal charges have been lodged.”
`Pet. App. 22a.
`
`The court explained that it was “not faced ... with
`the President’s arrest or imprisonment, or with an
`order compelling him to attend court at a particular
`time or place, or, indeed, with an order that compels
`the President himself to do anything.” Pet. App. 20a.
`The Mazars Subpoena “is directed not to the
`President, but to his accountants,” id., and “seek[s] no
`privileged information and bear[s] no relation to the
`President’s performance of his official functions,” Pet.
`App. 17a. Especially given these circumstances, the
`court held, Petitioner failed to “explain why any
`burden or distraction the third-party subpoena causes
`would rise to the level of interfering with his duty to
`faithfully execute the laws.” Pet. App. 21a (internal
`quotation marks and alterations omitted).
`
`At the same time, it would “exact a heavy toll on
`our criminal justice system to prohibit a state from
`even investigating potential crimes committed by [a
`President] for potential later prosecution, or by other
`persons ... simply because the proof of those alleged
`crimes involves the President.” Pet. App. 23a-24a.
`The “‘twofold aim’ that ‘guilt shall not escape or
`innocence suffer,’ Nixon, 418 U.S. at 709, would be
`substantially frustrated if the President’s temporary
`immunity were interpreted to shield the conduct of
`third parties from investigation,” the court explained.
`Pet. App. 24a.
`
`The Second Circuit saw “no obvious reason why a
`state could not begin to investigate a President during
`his term and, with the information secured during its
`
`
`
`
`
`
`
`
`
`10
`
`search, ultimately decide to prosecute him after he
`leaves office.” Pet. App. 24a. It noted that
`memoranda from the DOJ’s Office of Legal Counsel
`(the “OLC”) cited by Petitioner “are directed almost
`exclusively to the question of whether the President
`may be indicted,” an issue “that is not presented by
`this appeal,” and observed that, in any event, one of
`those memoranda “explicitly approves of a grand jury
`continuing to gather evidence throughout the period
`of” any presidential immunity from indictment. Pet.
`App. 25a (internal quotation marks and alterations
`omitted).
`
`Finally, the court rejected the DOJ’s argument as
`amicus curiae that a heightened showing of need is
`required to subpoena documents relating to a
`President, determining that cases cited by DOJ in
`support of that argument address whether “a
`subpoena can demand the production of documents
`protected by executive privilege,” which “has little
`bearing on a subpoena that, as here, does not seek any
`information subject to executive privilege.” Pet. App.
`27a. Accordingly, the court held, “any presidential
`immunity from state criminal process does not bar the
`enforcement” of a subpoena “demand[ing] production
`by a third party of the President’s personal financial
`records for use in a grand jury investigation while the
`President is in office.” Pet. App. 28a.6 The court,
`
`
`6 The court reversed the district court’s Younger abstention
`ruling, reasoning that because a sitting President had invoked
`federal jurisdiction to press federal interests arising out of
`Article II and the Supremacy Clause, Petitioner’s claims “are
`
`
`
`
`
`
`
`
`
`
`11
`
`construing the district court’s decision as a denial of
`Petitioner’s motion for a preliminary injunction,
`therefore affirmed that denial on the ground that
`Petitioner’s immunity claim fails on the merits.7 Pet.
`App. 2a.
`
`REASONS FOR DENYING THE WRIT
`
`Petitioner contends that certiorari is warranted
`because this case presents an
`important and
`unsettled question that the Second Circuit answered
`incorrectly. Petitioner is wrong on both points:
`resolution of this case follows directly from this
`Court’s established precedent, and the Second Circuit
`correctly applied
`that precedent
`in rejecting
`Petitioner’s sweeping theory of absolute presidential
`immunity. Whatever interests might counsel in favor
`of review where there are substantial, open questions
`regarding presidential
`immunity, they are not
`present here.
`
`A. This Court’s Intervention Is Unwarranted
`Because The Decision Below Correctly
`Resolved A Narrow Question Controlled
`By This Court’s Precedents
`
`The only question here is whether a third-party
`custodian of the President’s financial records may be
`subpoenaed for those records when they are relevant
`to a secret grand jury investigation and completely
`
`more appropriately adjudicated in federal court.” Pet. App. 13a.
`Respondent does not seek this Court’s review of that ruling.
`
`7 Should this Court deny the petition, or affirm the decision
`of the Second Circuit, no further proceedings will be necessary
`beyond the district court’s entry of final
`judgment for
`Respondent on the ground identified by the Second Circuit.
`
`
`
`
`
`
`
`
`
`12
`
`unrelated to any official action (and in fact were
`largely created before the President took office). The
`court of appeals answered that question in the
`affirmative by applying this Court’s longstanding
`precedent, which makes clear that the President may
`be subject to a subpoena in a criminal proceeding
`under circumstances that implicate substantially
`greater interference with official functions than is
`true in the circumstances here.
`
`in
`exercise
`an
`is
`response
`Petitioner’s
`misdirection. He contends that a sitting President
`cannot be subject to criminal process of any kind
`because he cannot be indicted—a non sequitur that
`this Court rejected in Nixon. He argues that a
`President’s records cannot be subpoenaed if the
`President is a subject of the investigation—another
`argument foreclosed by Nixon. He says that such a
`subpoena is particularly inappropriate when issued
`by a state or local prosecutor, rather than the federal
`government—a proposition
`that
`flips ordinary
`principles of federalism on their head. And he argues
`for a “heightened need” standard that applies only to
`claims of official privilege conspicuously absent from
`this case.
`
`The court of appeals, in short, correctly resolved
`the narrow question presented here, and there is no
`basis for this Court’s review.
`
`1. This Court’s Precedents Establish That A
`President’s Records May Be Subpoenaed In The
`Circumstances Here
`
`a. Under this Court’s precedent, it is “settled that
`the President is subject to judicial process in
`
`
`
`
`
`
`
`
`
`13
`
`appropriate circumstances.” Clinton, 520 U.S. at 703.
`More specifically, and of central importance here, this
`Court has long recognized that a sitting President
`may be subject to a subpoena in a criminal
`proceeding.
`
`Chief Justice Marshall first considered the issue
`more than 200 years ago, while overseeing the trial of
`Aaron Burr. Faced with the question whether a
`subpoena duces tecum could be directed to President
`Jefferson, Chief Justice Marshall held, over objection:
`“That the president of the United States may be
`subpoenaed ... and required to produce any paper in
`his possession is not controverted.” United States v.
`Burr, 25 F. Cas. 187, 191 (C.C. Va. 1807).
`
`“unequivocally and
`in Nixon
`This Court
`emphatically endorsed Marshall’s position.” Clinton,
`520 U.S. at 704 (citing Nixon, 418 U.S. 683). The
`Court held that the President was obligated to comply
`with a subpoena directing him to produce “tape
`recordings
`and documents
`relating
`to his
`conversations with aides and advisers”—i.e., tapes
`created while he was in office, of conversations
`between himself and White House aides—for use in a
`criminal trial against several individuals who had
`“occupied either a position of responsibility on the
`White House staff or the Committee for the Re-
`election of the President.” Nixon, 418 U.S. at 686, 687
`n.3.
`
`Nixon moved to quash the subpoena, asserting a
`“claim of absolute privilege.” Id. at 705. In support of
`that assertion, Nixon cited the “need for protection of
`communications between high Government officials
`and those who advise and assist them in the
`
`
`
`
`
`
`
`
`
`14
`
`performance of their manifold duties,” id., and argued
`that separation-of-powers principles “insulate[] a
`President from a judicial subpoena in an ongoing
`criminal prosecution,” id. at 706.
` This Court
`disagreed, holding that “neither the doctrine of
`separation of powers, nor the need for confidentiality
`of high-level communications, without more, can
`sustain an absolute, unqualified Presidential
`privilege of immunity from judicial process under all
`circumstances.” Id.8
`
`the Court
`conclusion,
`that
`reaching
`In
`acknowledged the “need for confidentiality in the
`communications of [the President’s] office” and “the
`public interest in candid, objective, and even blunt or
`harsh opinions in Presidential decision making.” Id.
`at 712-13. But the President’s need for confidentiality
`in his communications, the Court reasoned, was not
`the only important public interest at stake, and it
`must be evaluated “in
`light of our historic
`commitment to the rule of law” and “the twofold aim
`(of criminal justice) ... that guilt shall not escape or
`innocence suffer.” Id. at 708-09 (internal quotation
`omitted). “The need to develop all relevant facts in
`
`
`8 Petitioner strangely contends that Nixon “neither
`considered nor decided a claim of presidential immunity.” Pet.
`29. Yet that is exactly what this Court considered and rejected:
`an “unqualified Presidential privilege of immunity from judicial
`process.” Nixon, 418 U.S. at 706; cf. Nixon v. Sirica, 487 F.2d
`700, 708 (D.C. Cir. 1973) (“Counsel for the President contend on
`two grounds that Judge Sirica lacked jurisdiction to order
`submission of the tapes for inspection. Counsel argue, first, that,
`so long as he remains in office, the President is absolutely
`immune from the compulsory process of a court….” (emphasis
`added)).
`
`
`
`
`
`
`
`
`
`15
`
`the adversary system,” the Court emphasized, “is
`both fundamental and comprehensive.” Id. at 709.
`Barring enforcement of the subpoena would therefore
`“cut deeply into the guarantee of due process of law
`and gravely impair the basic function of the courts.”
`Id. at 712. Such an impediment to the fair
`administration of criminal justice could not be
`justified, the Court concluded, solely by “the
`generalized
`interest
`in
`confidentiality” of a
`President’s communications. Id. at 713.
`
`b. Denial of the petition here follows a fortiori
`from Nixon. As in Nixon, the Mazars Subpoena calls
`for production of documents for use in a criminal
`proceeding, and therefore implicates the “powerful
`interest,” Clinton, 520 U.S. at 704 n.39, in the “full
`disclosure of all the facts,” Nixon, 418 U.S. at 709.
`And the countervailing interests identified in Nixon
`that were insufficient to overcome this fundamental
`criminal-justice interest are even less weighty here,
`for at least three reasons.
`
`First, unlike in Nixon, none of the materials
`sought by the Mazars Subpoena “implicate, in any
`way, the performance of [the President’s] official
`duties.” Pet. App. 18a. Rather, “[t]he subpoena seeks
`only the President’s private tax returns and financial
`information relating to the businesses he owns in his
`capacity as a private citizen.” Pet. App. 17a-18a.
`
`This Court’s precedent draws a distinction
`between a President’s official acts and acts as a
`private citizen in assessing matters of privilege and
`immunity. In Nixon v. Fitzgerald, the Court held that
`a former President “is entitled to absolute immunity
`from damages liability predicated on his official acts.”
`
`
`
`
`
`
`
`
`
`16
`
`457 U.S. at 749 (emphasis added). But as this Court
`made clear in Clinton, the reasoning underlying that
`rule “provides no support for an immunity for
`unofficial conduct.” 520 U.S. at 694. And even
`though
`the President’s
`official
`acts
`c
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
