Amicus Curiae Brief — Donald J. Trump, Petitioner v. Cyrus R. Vance, Jr., in His Official Capacity as District Attorney of the County of New York, et al.
Supreme Court briefFeb 3, 2020
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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.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
VIVEK SURI
Assistant to the Solicitor
General
MARK R. FREEMAN
SCOTT R. MCINTOSH
GERARD SINZDAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether Article II and the Supremacy Clause of the
United States Constitution allowed a state grand jury
to issue the subpoena here to a third-party custodian for
the personal financial records of the sitting President of
the United States.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 5
Argument....................................................................................... 7
A. The Constitution protects the independence of
the Office of the President from the States .................. 8
1. Article II guarantees the independence of
the Office of the President ...................................... 8
2. The Constitution grants the Office of the
President heightened protection from the
States ...................................................................... 11
B. State grand-jury subpoenas for a sitting
President’s personal records threaten the
independence of the Office of the President ............... 15
1. State grand-jury subpoenas expose the
President to the prospect of harassment
and threaten to divert his time and energy
from his official duties ........................................... 15
2. Subpoenas for a President’s personal records
pose particularly serious risks when issued
by States ................................................................. 17
3. The lack of historical precedent for the
subpoena here underscores the constitutional
concerns it poses .................................................... 22
4. State grand-jury subpoenas continue to pose
risks to the Office of the President when they
seek personal records in the hands of a thirdparty custodian ...................................................... 23
C. At a minimum, state grand-jury subpoenas for
the President’s personal records must satisfy a
heightened standard of need, which the District
Attorney has not met here ............................................ 25
(III)
IV
Table of Contents—Continued:
Page
1.
Precedent supports requiring a heightened
showing of need before a state grand jury
may issue a subpoena for the President’s
personal records .................................................... 26
2. The District Attorney has not satisfied the
minimum constitutional standard ........................ 29
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Bellis v. United States, 417 U.S. 85 (1974) .......................... 24
Cheney v. United States District Court, 542 U.S. 367
(2004) .................................................................. 10, 11, 19, 23
Citizens for Responsibility & Ethics in Washington
v. Trump, 939 F.3d 131 (2d Cir. 2019) .............................. 30
Clinton v. Jones, 520 U.S. 681 (1997) ......................... passim
Covell v. Heyman, 111 U.S. 176 (1884)................................ 12
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868) ................. 21
Dawson v. Steager, 139 S. Ct. 698 (2019) .............................. 2
Farmers & Mechanics Savings Bank v. Minnesota,
232 U.S. 516 (1914).............................................................. 12
Ford v. United States, 273 U.S. 593 (1927) ......................... 24
Free Enterprise Fund v. Public Co. Accounting
Oversight Board, 561 U.S. 477 (2010) ............................... 22
Gade v. National Solid Wastes Management Ass’n,
505 U.S. 88 (1992) ............................................................... 14
Galicia v. Trump, 109 N.Y.S.3d 857 (Sup. Ct. 2019) ......... 21
Gravel v. United States, 408 U.S. 606 (1972) ...................... 24
Hancock v. Train, 426 U.S. 167 (1976) ................................ 13
International Longshoremen’s Ass’n v. Davis,
476 U.S. 380 (1986).............................................................. 20
V
Cases—Continued:
Page
Jefferson County v. Acker, 527 U.S. 423 (1999) .................... 2
Judicial Watch, Inc. v. United States Secret Service,
726 F.3d 208 (D.C. Cir. 2013) ............................................. 24
Lindsey, In re, 158 F.3d 1263 (D.C. Cir.),
cert. denied, 525 U.S. 996 (1998) ....................................... 24
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304
(1816) .................................................................................... 20
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) ................................................................................ 5, 12
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475
(1867) .............................................................................. 10, 22
Morrison v. Olson, 487 U.S. 654 (1988) ......................... 17, 18
Myers v. United States, 272 U.S. 52 (1926) ........................ 13
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ................... passim
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ................... 27
Patterson v. Padilla, 451 P.3d 1171 (Cal. 2019) ................. 30
Salazar v. Buono, 559 U.S. 700 (2010) ................................ 25
Sealed Case, In re, 121 F.3d 729
(D.C. Cir. 1997) ............................................26, 27, 29, 32, 33
Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F.2d 725
(D.C. Cir. 1974) ................................................. 26, 28, 29, 32
Trump, In re, 874 F.3d 948 (6th Cir. 2017) ......................... 31
Trump, In re, 928 F.3d 360 (4th Cir.),
reh’g en banc granted, 780 Fed. Appx. 36
(4th Cir. 2019) ...................................................................... 30
Trump, In re, 781 Fed. Appx. 1 (D.C. Cir. 2019) ............... 30
United States v. Belmont, 301 U.S. 324 (1937) ................... 14
United States v. Burr :
25 F. Cas. 30 (C.C.D. Va. 1807) ...................................... 26
25 F. Cas. 187 (C.C.D. Va. 1807) .................. 26, 27, 29, 33
United States v. Morton Salt Co., 338 U.S. 632 (1950) ...... 16
VI
Cases—Continued:
Page
United States v. Nixon, 418 U.S. 683 (1974).............. passim
United States v. R. Enterprises, Inc., 498 U.S. 292
(1991) .................................................................................... 16
Virag v. Hynes, 430 N.E.2d 1249 (N.Y. 1981) .................... 16
Younger v. Harris, 401 U.S. 37 (1971)................................... 3
Constitution and statutes:
U.S. Const.:
Art. I:
§ 4, Cl. 2 ........................................................................ 8
§ 5, Cl. 1 ........................................................................ 8
§ 6, Cl. 1 ...................................................................... 23
Arrest Clause ....................................................... 23
Speech or Debate Clause .................................... 24
§ 7, Cls. 2-3 ................................................................... 8
§ 9, Cl. 8 (Foreign Emoluments Clause) ................. 30
Art. II ............................................................... 5, 7, 8, 9, 23
§ 1 ................................................................................. 8
Cl. 7........................................................................ 13
§§ 2-3 ............................................................................. 8
Art. VI, Cl. 2 (Supremacy Clause) ................... 5, 7, 12, 14
Freedom of Information Act, 5 U.S.C. 552 ......................... 24
28 U.S.C. 1442(a) ................................................................... 20
N.Y. Tax Law (McKinney Supp. 2020):
§ 697(f-1)(1) ...................................................................... 31
§ 697(f-1)(2) ...................................................................... 31
VII
Miscellaneous:
Page
Jacques Billeaud, Sheriff Joe Arpaio Closes Probe
of Obama Birth Certificate, Associated Press,
Dec. 15, 2016, https://foxbaltimore.com/news/
nation-world/sheriff-joe-arpaio-closes-probe-ofobama-birth-certificate ...................................................... 19
Bureau of Justice Statistics, U.S. Dep’t of Justice,
Prosecutors in State Courts, 2007—Statistical
Tables (Dec. 2011), https://www.bjs.gov/content/
pub/pdf/psc07st.pdf ......................................................... 15
Congressional Committee’s Request for the
President’s Tax Returns Under 26 U.S.C.
§ 6103( f ) (O.L.C. June 13, 2019) ........................................ 30
The Federalist (Jacob E. Cooke ed., 1961):
Alexander Hamilton:
No. 65 .......................................................................... 17
No. 73 .......................................................................... 13
James Madison:
No. 51 .................................................................... 23, 25
Journal of William Maclay (Edgar S. Maclay ed.,
1890) ....................................................................................... 9
Philip B. Kurland, Watergate and the Constitution
(1978) ...................................................................................... 8
Letter from Thomas Jefferson, U.S. President,
to George Hay, U.S. Dist. Att’y for Va.
(June 20, 1807), reprinted in 10 The Works of
Thomas Jefferson (Paul Leicester Ford ed., 1905) ........... 9
Jeffery C. Mays, N.Y.’s New Attorney General Is
Targeting Trump. Will Judges See a ‘Political
Vendetta?,’ N.Y. Times, Dec. 31, 2018,
https://www.nytimes.com/2018/12/31/nyregion/
tish-james-attorney-general-trump.html ......................... 19
VIII
Miscellaneous—Continued:
Page
Memorandum from Robert G. Dixon,
Assistant Att’y Gen., Office of Legal Counsel,
Re: Amenability of the President, Vice President
and Other Civil Officers to Federal Criminal
Prosecution While in Office (Sept. 24, 1973) ................... 11
Martha Neil, Vice President Cheney, Ex-AG
Gonzales Indicted in South Texas Prison Abuse
Case, A.B.A. J. Daily News, Nov. 19, 2008,
http://www.abajournal.com/news/article/vice_
president_cheney_ex_ag_gonzales_indicted_
in_south_texas_prison_abuse/........................................... 18
Emma Platoff, America’s Weaponized Attorneys
General, The Atlantic, Oct. 28, 2018,
https://www.theatlantic.com/politics/archive/
2018/10/both-republicans-and-democrats-haveweaponized-their-ags/574093/ ........................................... 19
1 The Records of the Federal Convention of 1787
(Max Farrand ed., 1911)..................................................... 13
S.B. 8217, 2015-2016 Leg., Reg. Sess. (N.Y. 2016) ............. 31
S.B. 5572B, 2017-2018 Leg., Reg. Sess. (N.Y. 2017) .......... 31
A Sitting President’s Amenability to Indictment
and Criminal Prosecution, 24 Op. O.L.C. 222
(2000) ........................................................................ 11, 17, 23
Joseph Story, Commentaries on the Constitution
of the United States (1833):
Vol. 2 ................................................................................. 20
Vol. 3 ................................................................................... 9
William J. Stuntz, The Pathological Politics of
Criminal Law, 100 Mich. L. Rev. 505 (2001) ................ 18
Andy Sullivan, Vermont Towns Vote to Arrest
Bush and Cheney, Reuters, Mar. 4, 2008,
https://www.reuters.com/article/us-usa-politicsvermont/vermont-towns-vote-to-arrest-bush-andcheney-idUSN0454699420080305 ..................................... 18
In the Supreme Court of the United States
No. 19-635
DONALD J. TRUMP, PETITIONER
v.
CYRUS R. VANCE, JR., IN HIS OFFICIAL CAPACITY
AS DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK,
ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case involves a subpoena issued by a state grand
jury to a third-party custodian for the personal records
of the sitting President of the United States. The
United States has a substantial interest in safeguarding
the prerogatives of the Office of the President. The
United States has participated as amicus curiae in other
cases that have presented related issues concerning the
President’s amenability to suit or compulsory process.
E.g., Clinton v. Jones, 520 U.S. 681 (1997); Nixon v.
Fitzgerald, 457 U.S. 731 (1982). The United States also
has a substantial interest in protecting the autonomy of
the federal government from potential interference by
the States, and it has participated as amicus curiae in
other cases that have presented issues concerning the
(1)
2
immunity of federal officials from action by the States.
E.g., Dawson v. Steager, 139 S. Ct. 698 (2019); Jefferson
County v. Acker, 527 U.S. 423 (1999). In this case, the
United States participated as an amicus curiae in the
courts below.
STATEMENT
1. The New York County District Attorney has
opened a grand-jury investigation into potential crimes
under New York law. Pet. App. 3a-4a. Although the
scope of that investigation is secret, the District Attorney’s statements indicate that President Donald J. Trump
is a subject of that investigation. In the court of appeals,
the District Attorney represented “that the grand jury
is investigating not only the President, but also other
persons and entities.” Id. at 22a (emphasis added). And
in this Court, the District Attorney states (Br. in Opp.
26) that, while his “investigation extends beyond [the
President],” “the President could * * * also be implicated in wrongdoing.”
On August 29, 2019, the District Attorney served a
subpoena on behalf of the grand jury on Mazars USA,
LLP, President Trump’s personal accounting firm. Pet.
App. 4a-5a. The subpoena demands that Mazars produce
a wide range of financial records relating to the President and organizations affiliated with him—including
personal “[t]ax returns and related schedules, in draft,
as-filed, and amended form,” with respect to “Donald J.
Trump.” Id. at 5a n.5. The subpoena copies, almost word
for word, a subpoena issued by the Committee on Oversight and Reform of the U.S. House of Representatives—
the subpoena at issue in Trump v. Mazars USA, LLP,
cert. granted, No. 19-715 (Dec. 13, 2019). Pet. App.
3
123a-126a. The principal difference between the subpoenas is that the District Attorney’s subpoena also expressly seeks the President’s tax returns. See id. at 124a.
2. On September 19, 2019, the President, in his personal capacity, sued the District Attorney and Mazars
in federal district court, seeking declaratory and injunctive relief on the ground that the President’s records
are immune from state criminal process while he remains in office. Pet. App. 6a-7a. The district court dismissed the complaint. Id. at 30a-95a.
The district court first declined to exercise jurisdiction over the suit. Pet. App. 41a-61a. The court relied
on Younger v. Harris, 401 U.S. 37 (1971), under which
federal courts ordinarily abstain from hearing suits to
enjoin ongoing state criminal proceedings. Pet. App.
41a-43a. The court stated that the President could instead seek relief from “New York courts.” Id. at 60a.
The district court also “articulate[d] an alternative
holding” rejecting the President’s claim on the merits.
Pet. App. 61a. The court reasoned that the scope of the
President’s “immunity from criminal process” turned
on a “weighing of the competing interests” under the
circumstances at hand. Id. at 93a. The court explained
that, under its proposed balancing test, a “lengthy imprisonment” of a sitting President for “murder” would
“perhaps” violate the Constitution, but that, for example, a “charge of failing to pay state taxes” would not do
so. Id. at 33a, 82a. Applying that balancing test, the
court concluded that the President’s records are not immune from the subpoena in this case, because responding to it “would likely not create * * * catastrophic intrusions * * * or threaten the ‘dramatic destabilization’
of the nation’s government.” Id. at 82a.
4
3. The court of appeals affirmed in part, vacated in
part, and remanded the case for further proceedings.
Pet. App. 1a-29a.
The court of appeals vacated the dismissal of the
complaint under Younger. Pet. App. 13a-14a. The court
noted that Younger abstention reflects a policy of “comity” between federal and state courts. Id. at 9a (citation
omitted). It then explained that “Younger’s policy of
comity” has no application “where a county prosecutor
* * * has opened a criminal investigation that involves
the sitting President, and the President has invoked
federal jurisdiction to vindicate the superior federal interests embodied in Article II and the Supremacy
Clause.” Id. at 12a (citation and internal quotation marks
omitted). The President’s “novel and serious claims,”
the court summed up, are “more appropriately adjudicated in federal court.” Id. at 13a.
The court of appeals then construed the district
court’s discussion of the merits “as an order denying the
President’s motion for a preliminary injunction,” and it
affirmed that decision. Pet. App. 14a. The court of appeals concluded 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.” Id. at 15a. The court first
rejected the President’s claim of absolute immunity
from the subpoena, emphasizing that “[t]he subpoena at
issue is directed not to the President, but to his accountants.” Id. at 20a. The court also rejected the United
States’ argument that, at a minimum, the District Attorney “must make a heightened showing of need for
the documents sought.” Id. at 27a. The court reasoned
that the United States drew that standard “from cases
5
concerning when a subpoena can demand the production of documents protected by executive privilege,”
and the standard “has little bearing on a subpoena that,
as here, does not seek any information subject to executive privilege.” Ibid. Although the District Attorney
also had argued that the subpoena satisfied the heightened standard proposed by the United States, the court
did not adopt that alternative argument. See id. at 27a28a; Vance C.A. Br. 35.
SUMMARY OF ARGUMENT
A. “The President occupies a unique position in the
constitutional scheme.” Nixon v. Fitzgerald, 457 U.S.
731, 749 (1982). The Constitution vests the entirety of
the executive power in the President, and it entrusts
him with vast and vital public responsibilities. This
Court has long understood that, to enable the President
to discharge his critical constitutional duties, Article II
provides an immunity from any process that would risk
impairing the independence of his office or interfering
with the performance of its functions.
This Court’s cases on presidential immunity have involved federal judicial process, but under both Article
II and the Supremacy Clause, the President’s immunity
from state judicial process must be even broader. In
Article II, the Framers contemplated that the President would exercise his nationwide powers in the interests of the whole Nation, without any risk of interference by individual States. And in the Supremacy
Clause, the Framers denied the States any power whatever “to retard, impede, burden, or in any manner control” the activities of the federal government. McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819).
6
B. State grand-jury subpoenas for a sitting President’s personal records pose serious risks to the independent functioning of the Office of the President.
State prosecutors could use such subpoenas to harass
the President in retaliation for the President’s official
policies. Such subpoenas could also subject the President to significant burdens, threatening to divert the
President’s time and energy from his singularly important public duties.
The structural features of state criminal justice systems heighten those dangers. Local prosecutors, who
represent local electorates, have strong incentives to
respond to the interests of their own communities, but
no comparable incentives to consider the effects of their
subpoenas on the Nation as a whole. And unlike federal
prosecutors, local prosecutors are not subject to the
centralized supervision of the Attorney General. Allowing state grand-jury subpoenas for the President’s personal records thus opens the door for communities to
use such subpoenas to register their disapproval of the
President’s policies.
C. In United States v. Nixon, 418 U.S. 683 (1974),
this Court held that a federal criminal trial subpoena for
a sitting President’s official records must satisfy a
heightened standard of need. Id. at 713. This Court
should, at a minimum, apply the same standard to a
state grand-jury subpoena for a sitting President’s personal records. A heightened showing of need is necessary to diminish the risks that state grand-jury subpoenas pose to the Office of the President.
The District Attorney has not made that heightened
showing in this case. The District Attorney has copied
his subpoena, almost word for word, from one issued by
the Committee on Oversight and Reform of the U.S.
7
House of Representatives. Pet. App. 123a-126a. The
District Attorney fails to explain why exactly the same
information demanded by a congressional committee,
ostensibly for the purpose of investigating federal legislation, also happens to be essential to the investigation
of a state crime. Nor has he detailed his efforts to obtain the evidence elsewhere or explained why evidence
covered by the presidential immunity is still needed.
The District Attorney’s subpoena therefore violates the
Constitution.
ARGUMENT
This case involves the first attempt in our Nation’s
history by a local prosecutor to subpoena personal records of the sitting President of the United States. The
court of appeals blessed that attempt, holding that a
court should treat a subpoena for such records no differently than a subpoena for any other private records.
In the court’s view, the District Attorney was not even
required to show that he had a particularized need for
the President’s personal records or that he could not obtain the desired evidence elsewhere.
The court of appeals’ decision is incorrect. The Constitution protects the Office of the President against the
risk of interference by the States. Local grand-jury
subpoenas seeking a sitting President’s personal records pose a serious risk of such interference, because
they could both harass the President and distract him
from his constitutional duties. Local prosecutors have
structural incentives to respond to the interests of their
own electorates, and lack structural incentives to account for the compelling constitutional interests of the
Presidency. If Article II and the Supremacy Clause allow subpoenas for a sitting President’s personal records
8
at all, they do so only where prosecutors make a heightened showing of need for the information sought. And
in this case, the District Attorney has not made any
such showing.
A. The Constitution Protects The Independence Of The
Office Of The President From The States
1. Article II guarantees the independence of the Office
of the President
“The President occupies a unique position in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731,
749 (1982). The Constitution vests the legislative power
in a plural Congress and the judicial power in a plural
Judiciary, but the entirety of the executive power in a
single President. U.S. Const. Art. II, § 1. The Constitution entrusts the President with vast and vital public
responsibilities, including taking care that the laws are
faithfully executed; commanding the Armed Forces;
nominating, appointing, and removing officers; making
treaties; recommending, signing, and vetoing bills;
sending and receiving ambassadors; and granting pardons and reprieves. Art. I, § 7, Cls. 2-3 and Art. II,
§§ 2-3. The Constitution vests the President with unremitting official responsibilities; by contrast, Congress is
required to assemble only “once in every Year,” Art. I,
§ 4, Cl. 2, may “adjourn from day to day,” Art. I, § 5,
Cl. 1, and retains “a Quorum to do Business” even in the
absence of up to half its membership, ibid. And the
President must speak and act not just for a single district or State, but for all the people of the United States.
The President is, in short, the “sole indispensable man
in government.” Philip B. Kurland, Watergate and the
Constitution 135 (1978).
9
The Founders understood Article II to protect the
“independent functioning” of the President’s unique office, “free from risk of control, interference, or intimidation by other branches.” Fitzgerald, 457 U.S. at 760761 (Burger, C.J., concurring). For example, during the
First Congress, Vice President John Adams and Senator Oliver Ellsworth argued that “the President, personally, was not the subject to any process whatever,”
for that would “put it in the power of a common justice
to exercise any authority over him and stop the whole
machine of Government.” Journal of William Maclay
167 (Edgar S. Maclay ed., 1890). President Thomas Jefferson likewise argued that the federal courts had no
authority to issue subpoenas to a sitting President:
“would the executive be independent of the judiciary, if
he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could
bandy him from pillar to post, keep him constantly
trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?” Letter from Thomas Jefferson, U.S. President, to George
Hay, U.S. Dist. Att’y for Va. (June 20, 1807), reprinted
in 10 The Works of Thomas Jefferson 404 n.1 (Paul
Leicester Ford ed., 1905). And Justice Joseph Story
wrote that the President holds certain “incidental powers” that “are necessarily implied from the nature of
[his] functions”; that “[a]mong these, must necessarily
be included the power to perform them, without any obstruction or impediment whatsoever”; and that, as a result, the President is not “liable to arrest, imprisonment,
or detention” while in office. 3 Joseph Story, Commentaries on the Constitution of the United States § 1563,
at 418-419 (1833) (Story).
10
Although this Court has not gone as far as some of
those sources suggest, it has accepted “the essence of
the constitutional principle,” Clinton v. Jones, 520 U.S.
681, 714 (1997) (Breyer, J., concurring in the judgment),
and has relied on those sources in concluding that the
President enjoys a constitutional immunity from actions
of federal courts that would threaten to undermine his
independence or interfere with his functions, Fitzgerald, 457 U.S. at 750 n.31. The Court has described that
immunity as “a functionally mandated incident of the
President’s unique office, rooted in the constitutional
tradition of the separation of powers and supported by
our history.” Id. at 749.
For example, the Court has observed that “in no case
would a court be required to proceed against the president as against an ordinary individual.” Cheney v.
United States District Court, 542 U.S. 367, 381-382
(2004) (brackets, citation, and ellipsis omitted). It has
held that a court may not enjoin the President in “the
performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1867). It also has recognized the President’s “absolute immunity from damages liability predicated on his official acts.” Fitzgerald, 457 U.S. at 749. It has recognized a qualified presidential privilege protecting the confidentiality of presidential communications, holding that a sitting President may be required to respond to a federal criminal
trial subpoena for such communications only where
there is a “demonstrated, specific need” for the requested records. United States v. Nixon, 418 U.S. 683,
713 (1974). And it has recognized that, although a sitting President is not absolutely immune from a civil suit
in federal court for purely private conduct, “[t]he high
respect that is owed to the office of the Chief Executive
11
* * * should inform the conduct of the entire proceeding, including the timing and scope of discovery.” Clinton, 520 U.S. at 707; see Cheney, 542 U.S. at 385-386
(similar). Further, although this Court has never confronted the question, the Department of Justice has
long understood that a President is absolutely immune
from arrest, indictment, and criminal prosecution while
he remains in office. A Sitting President’s Amenability
to Indictment and Criminal Prosecution, 24 Op. O.L.C.
222 (2000); Memorandum from Robert G. Dixon, Assistant Att’y Gen., Office of Legal Counsel (Sept. 24, 1973).
The Court has repeatedly explained that immunity
“will not place the President ‘above the law.’ ” Fitzgerald, 457 U.S. at 758; see Cheney, 542 U.S. at 382; Nixon,
418 U.S. at 715. Rather, the law itself grants the President immunity in order to promote “the public interest” and to account for “the paramount necessity of protecting the Executive Branch” from acts “that might
distract it from the energetic performance of its constitutional duties.” Cheney, 542 U.S. at 382. Presidential
immunity leaves in place a wide range of “alternative
remedies and deterrents” to presidential wrongdoing,
including “constant scrutiny by the press,” “the need to
maintain prestige as an element of Presidential influence,” the “desire to earn reelection,” and, ultimately,
“impeachment.” Fitzgerald, 457 U.S. at 757-758. Indeed, the immunity at issue in this case expires when
the President leaves office.
2. The Constitution grants the Office of the President
heightened protection from the States
The President’s immunity from state judicial process
must provide greater protection than his immunity
from federal judicial process. That follows from the
12
general rule that the States may not burden the operations of the federal government, from the nature of the
Presidency in particular, and from this Court’s cases.
In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819), this Court announced the “great principle” that
“the States have no power” to “retard, impede, burden,
or in any manner control” the operations of the federal
government. Id. at 426, 436. That principle derives
from the Supremacy Clause, U.S. Const. Art. VI, Cl. 2;
“[i]t is of the very essence of supremacy to remove all
obstacles to its action within its own sphere, and so to
modify every power vested in subordinate governments,
as to exempt its own operations from their own influence.” McCulloch, 17 U.S. (4 Wheat.) at 427. That principle also flows from the structure of the Constitution.
“[T]he government of the Union * * * is the government of all; its powers are delegated by all; it represents
all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow
others to control them.” Id. at 405.
Time and again, this Court has reaffirmed that elementary rule. For instance, the Court has explained
that “the sphere of action appropriated to the United
States is as far beyond the reach of judicial process issued by a State judge or a State court as if the line of
division was traced by landmarks and monuments visible to the eye.” Covell v. Heyman, 111 U.S. 176, 183
(1884) (citation omitted). It has explained that the Constitution guarantees “the entire independence of the
General Government from any control by the respective
States.” Farmers & Mechanics Savings Bank v. Minnesota, 232 U.S. 516, 521 (1914). And it has emphasized
the “fundamental importance” of the “seminal principle
of our law” that protects the federal government from
13
“regulation by a subordinate sovereign.” Hancock v.
Train, 426 U.S. 167, 178-179 (1976).
That principle applies with unique force to state action that burdens the President. The President is “elected
by all the people.” Myers v. United States, 272 U.S. 52,
123 (1926). He speaks for all, acts for all, and “is rather
more representative of them all than are the members
of either body of the Legislature whose constituencies
are local and not countrywide.” Ibid. No one State may
properly burden the President of the whole United
States.
Founding-era sources confirm that the Framers
were especially concerned about protecting the Presidency from interference by the States. James Wilson
urged the Constitutional Convention to make “the Executive * * * as independent as possible * * * of the
States.” 1 The Records of the Federal Convention of
1787, at 69 (Max Farrand ed., 1911). He and James
Madison successfully opposed a proposal to vest the
power to impeach the President in state legislatures, on
the ground that it “would open a door for intrigues agst.
[the President] in States where his administration tho’
just might be unpopular, and might tempt him to pay
court to particular States whose leading partizans he
might fear.” Id. at 86. And the Framers ultimately
adopted a provision barring the President from receiving any “Emolument” from any State, U.S. Const. Art.
II, § 1, Cl. 7—a unique restriction imposed on no other
federal official—so that the States could not compromise “the independence intended for him by the Constitution,” The Federalist No. 73, at 494 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Those concerns make
it all the more important to protect the Presidency from
the risk of interference by the States.
14
This Court’s cases reinforce that view. In cases involving the President’s protection from federal process,
the Court has emphasized that the federal courts constitute a coordinate branch of the federal government.
For example, in Nixon, the Court stated that the Presidency and the Judiciary are “co-equal branches” and
that resolution of a claim of executive privilege required
the Court to “balance” the “competing interests” of
both branches. 418 U.S. at 707. In Clinton, the Court
again emphasized that the Presidency and the Judiciary
are “coequal branches” and that “interactions between
the Judicial Branch and the Executive, even quite burdensome interactions,” do not “necessarily rise to the
level of constitutionally forbidden impairment.” 520 U.S.
at 699, 702. A state judiciary, by contrast, is not coordinate or coequal to the Presidency. There is no occasion
to balance the state courts’ competing interests, for
even “vital state interests must give way” to “paramount”
federal ones under the Supremacy Clause. Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88,
108 (1992) (citation omitted). And a burdensome interaction between a state judiciary and the President does
amount to a forbidden impairment, for it is “inconceivable” that state law could “be interposed as an obstacle
to the effective operation of a federal constitutional
power.” United States v. Belmont, 301 U.S. 324, 332
(1937).
Clinton, in particular, supports that analysis. Although the Court rejected a sitting President’s claim of
absolute immunity from civil litigation in federal court,
it expressly reserved judgment regarding whether “a
comparable claim might succeed in a state tribunal.”
Clinton, 520 U.S. at 691. The Court observed that “any
direct control by a state court over the President” might
15
raise “quite different” concerns under “the Supremacy
Clause,” as well as concerns about “protecting federal
officials from possible local prejudice.” Id. at 691 &
n.13. The Court’s opinion thus confirms that presidential immunity from state process may exceed presidential immunity from federal process.
B. State Grand-Jury Subpoenas For A Sitting President’s
Personal Records Threaten The Independence Of The
Office Of The President
Allowing state grand-jury subpoenas for a sitting
President’s records would expose the President to the
risk of harassment and diversion of his time and energy
from his official duties. That is so even when the subpoenas seek personal rather than official records and
when they are directed to the President’s third-party
custodian rather than the President himself.
1. State grand-jury subpoenas expose the President to
the prospect of harassment and threaten to divert his
time and energy from his official duties
This Court’s cases on presidential immunity have
emphasized two risks that are pertinent here: harassment and diversion. The Court has explained that, because the President “must make the most sensitive and
far-reaching decisions” on “matters likely to ‘arouse the
most intense feelings,’ ” he is “an easily identifiable target” for harassment. Fitzgerald, 457 U.S. at 752-753
(citation omitted). The Court also has explained that,
“[b]ecause of the singular importance of the President’s
duties, diversion of his energies” from his official functions “would raise unique risks to the effective functioning of government.” Id. at 751.
There are more than 2300 district attorneys across
the United States. Bureau of Justice Statistics, U.S.
16
Dep’t of Justice, Prosecutors in State Courts, 2007—
Statistical Tables 1 (Dec. 2011). Allowing each of them
to issue grand-jury subpoenas for a President’s personal records would pose a serious risk of both harassment and diversion. A grand jury “can investigate
merely on suspicion that the law is being violated, or
even just because it wants assurance that it is not.”
United States v. Morton Salt Co., 338 U.S. 632, 642-643
(1950). “As a necessary consequence of its investigatory
function, the grand jury paints with a broad brush.”
United States v. R. Enterprises, Inc., 498 U.S. 292, 297
(1991). In New York, for example, “given the ranging,
exploratory nature and operation of a Grand Jury,” a
witness who seeks to quash a grand-jury subpoena
“must demonstrate ‘that a particular category of documents can have no conceivable relevance to any legitimate
object of investigation.’ ” Virag v. Hynes, 430 N.E.2d
1249, 1253 (N.Y. 1981) (citation omitted). Given those
features, a state prosecutor could easily deploy a grandjury subpoena to harass the President. And even where
a prosecutor acts in good faith, a broad subpoena could
still impose substantial burdens on the President’s time
and attention, diverting him from his constitutional
duties.
The risk of harassment is particularly serious when,
as here, a State uses criminal process for the President’s personal records to investigate the President
himself, not just to obtain evidence for use in the prosecution of another. In routine criminal investigations, a
prosecutor’s legal and ethical obligations provide a sufficient check against the prospect of abuse. And those
checks remain important when a prosecutor targets a
sitting President. Even so, a criminal investigation of a
17
sitting President is far from routine. The Framers understood that the prosecution of “public men” may well
“agitate the passions of the whole community,” “divide
it into parties, more or less friendly or inimical, to the
accused,” “connect itself with the pre-existing factions,”
and “inlist all their animosities, partialities, influence
and interest on one side, or on the other.” The Federalist No. 65, at 439 (Alexander Hamilton). Further,
“[n]othing is so politically effective as the ability to
charge that one’s opponent and his associates are not
merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks,’ ” and “nothing so effectively gives an
appearance of validity to such charges as a [criminal]
investigation.” Morrison v. Olson, 487 U.S. 654, 713
(1988) (Scalia, J., dissenting).
The risk of diversion is likewise particularly serious
when the State investigates the President himself.
“The constitutional provisions governing criminal prosecutions make clear the Framers’ belief that an individual’s mental and physical involvement and assistance in
the preparation of his defense * * * would be intense,
no less so for the President than for any other defendant.” 24 Op. O.L.C. at 251. Criminal investigations
would consume the President’s time and distract him
from his duties to the American people, to the detriment
of the Nation he serves.
2. Subpoenas for a President’s personal records pose
particularly serious risks when issued by States
The criminal-justice systems of the several States
differ in important ways from the federal system.
Those differences magnify the risks that state grandjury subpoenas pose to the Office of the President.
a. Although the federal criminal-justice system is
run by officials accountable to the Attorney General,
18
who in turn is accountable to the President, state systems are run by officials accountable to local constituencies. The Attorney General and U.S. Attorneys are
appointed and removable by the President. They form
part of the Executive Branch, “a forum attuned to the
interests and the policies of the Presidency.” Morrison,
487 U.S. at 712 (Scalia, J., dissenting). As a matter of
constitutional structure, they likely would be neither
willing nor able to issue subpoenas the purpose of which
is to harass or unduly distract a sitting President.
In contrast, the vast majority of the more than
2300 district attorneys across the United States are
elected—usually by small, localized electorates. See William J. Stuntz, The Pathological Politics of Criminal
Law, 100 Mich. L. Rev. 505, 533 (2001). Those electorates might strongly oppose the policies of the sitting
President. A state prosecutor in a community where the
President is unpopular thus would have significant incentives to win votes by investigating the President. Today,
the District Attorney has sought to subpoena President
Trump’s tax returns. Tomorrow, prosecutors in other
communities might seek to subpoena a President’s college transcripts, job applications, health records, birth
certificates, private emails, or cellphone logs.
Concerns about local officials and local politics are
far from idle. In 2008, two towns in Vermont passed
measures calling on police to arrest President George
W. Bush and Vice President Dick Cheney. Andy Sullivan, Vermont Towns Vote to Arrest Bush and Cheney,
Reuters, Mar. 4, 2008. The same year, a grand jury in
Willacy County, Texas indicted Vice President Cheney
for abusing inmates in private prisons—on the theory
that he held stock in a company that ran private prisons.
Martha Neil, Vice President Cheney, Ex-AG Gonzales
19
Indicted in South Texas Prison Abuse Case, A.B.A. J.
Daily News, Nov. 19, 2008. During President Barack
Obama’s term, a sheriff in Arizona opened a police investigation into the authenticity of the President’s birth
certificate, “going so far as to send a deputy * * * to
question officials.” Jacques Billeaud, Sheriff Joe Arpaio Closes Probe of Obama Birth Certificate, Associated Press, Dec. 15, 2016. In the most recent election
for Attorney General of New York, candidates “practically tripped over one another promising to take [President] Trump to court.” Emma Platoff, America’s
Weaponized Attorneys General, The Atlantic, Oct. 28,
2018. The winning candidate explained that her decision to run for office was “about that man in the White
House” and promised to use “every area of the law to
investigate President Trump and his business transactions.” Jeffery C. Mays, N.Y.’s New Attorney General
Is Targeting Trump. Will Judges See a ‘Political Vendetta?,’ N.Y. Times, Dec. 31, 2018.
b. In addition, although federal courts supervise federal grand-jury subpoenas, state courts supervise state
grand-jury subpoenas. This Court has expressed “confidence in the ability of our federal judges” to protect
the interests of the Nation and the Nation’s Executive
Branch in cases involving a sitting President. Clinton,
520 U.S. at 709. “Accepted mandamus standards are
broad enough to allow a court of appeals to prevent a
lower court from interfering with a coequal branch’s
ability to discharge its constitutional responsibilities.”
Cheney, 542 U.S. at 382. If all else fails, this Court can
step in to ensure that “appellate review, in deference to
a coordinate branch of Government, [is] particularly
meticulous.” Nixon, 418 U.S. at 702.
20
In contrast, the Framers feared that “state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration
of justice” in state courts. Martin v. Hunter’s Lessee,
14 U.S. (1 Wheat.) 304, 347 (1816). They rejected proposals to empower state judges to try presidential impeachments, precisely because they feared that such
“state functionaries” might pursue “local policy” and
become “deeply interested in the * * * ruin of rivals”
of their States. 2 Story § 769, at 242. Congress, sharing
such fears, has authorized the removal, from state to
federal court, of any “civil action or criminal prosecution” against a federal officer for acts under color of office. 28 U.S.C. 1442(a). This Court has cited the risk of
“local prejudice” motivating that statute as a justification for the prospect of heightened protection of the
President against process issued by state courts. Clinton, 520 U.S. at 691. Further, in the absence of a federal
standard for immunity, this Court would have limited
ability to police the state courts’ decisions. In general,
federal courts have “no authority to review state determinations of purely state law.” International Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 387 (1986).
Again, those concerns are far from idle. During
President Obama’s term, activists in Georgia who contested the authenticity of his birth certificate obtained
a subpoena ordering him to appear at an administrative
hearing regarding his eligibility for the ballot. Order
on Mot. to Quash Subpoenas at 2, Farrar v. Obama,
No. 1215136-60 (Ga. Office of State Admin. Hr’gs, Jan.
20, 2012). President Obama moved to quash the subpoena on the ground that it “ ‘require[d] him to interrupt
duties as President of the United States’ to attend a
21
hearing in Atlanta, Georgia.” Ibid. But a state administrative law judge denied the motion, stating that President Obama had “fail[ed] to provide any legal authority” showing that a President could not “be compelled
to attend a Court hearing.” Ibid. The President disregarded the subpoena, prompting a (failed) request to
hold him in contempt. 1/26/12 Tr. at 44, Farrar, supra
(No. 1215136-60).
Similarly, during President Trump’s term, a New
York state court refused to quash a subpoena for the
President’s testimony in a state civil trial. See Galicia
v. Trump, 109 N.Y.S.3d 857 (Sup. Ct. 2019). The court
acknowledged that, in Clinton, this Court had said:
“We assume that the testimony of the President, both
for discovery and for use at trial, may be taken at the
White House at a time that will accommodate his busy
schedule.” Id. at 860 (quoting Clinton, 520 U.S. at 691692). But the court continued: “[T]his remark upon
which [the President] rel[ies], given that it was prefaced
with ‘we assume’ * * * must be interpreted as dicta and
not a rigid procedural requirement for the taking of a
president’s deposition.” Ibid. (brackets and citation omitted). It ordered the President to “appear for a videotaped deposition prior to the trial,” id. at 861—which
was slated to start a week later, id. at 859. The President was forced to obtain a stay from an appellate court.
24973/2015 Docket cmt. No. 9, Galicia v. Trump (N.Y.
Sup. Ct. Sept. 26, 2019).
c. Finally, there is only one federal government, but
there are 50 States. “If one State can do this, so can every
other State.” Crandall v. Nevada, 73 U.S. (6 Wall.) 35,
46 (1868). And so can every political subdivision. The
cumulative burdens that could be imposed by 2300 district attorneys, each possessing the power to target the
22
President with criminal process, would pose a grave
risk to the Presidency. The sheer number of district attorneys also increases the likelihood of finding at least
one who is willing to target the President, or who simply
gives inadequate weight to the extraordinary burdens
imposed by a subpoena to the President.
3. The lack of historical precedent for the subpoena
here underscores the constitutional concerns it poses
This Court has observed that “the lack of historical
precedent” for an action intruding on the President’s
prerogatives provides a “telling indication” of the action’s unconstitutionality. Free Enterprise Fund v.
Public Co. Accounting Oversight Board, 561 U.S. 477,
505 (2010) (citation omitted). For example, in Johnson,
“[i]t was admitted in the argument that the application
[for an injunction against the President was] without a
precedent; and this [wa]s of much weight against it,” because “[t]he fact that no such application was ever before
made in any case indicate[d] the general judgment of
the profession that no such application should be entertained.” 71 U.S. (4 Wall.) at 500. And in Fitzgerald, “the
actual history of private lawsuits against the President”—
“fewer than a handful of damages actions” before the
1970s—provided “powerful support” for absolute immunity from damages actions for the President’s official
acts. 457 U.S. at 752 n.31.
Here, the United States is unaware of any precedent
for the issuance of a state criminal subpoena for a sitting President’s personal records. Past Presidents have
faced allegations of wrongdoing to which their personal
records could have been relevant. For instance, President Ulysses Grant faced persistent allegations of corruption, President Richard Nixon faced Watergate, and
President Bill Clinton faced Whitewater. Yet it appears
23
that no state prosecutor has ever thought to issue a subpoena for a sitting President’s personal records. That
is a strong signal that such a subpoena raises serious
constitutional problems.
4. State grand-jury subpoenas continue to pose risks to
the Office of the President when they seek personal
records in the hands of a third-party custodian
a. State grand-jury subpoenas pose constitutional
concerns even when they involve the President’s personal rather than his official records. As the Framers
understood, “[t]he interest of the man” is often “connected with the constitutional rights of the place.” The
Federalist No. 51, at 349 (James Madison). Acts taken
against an individual as a private person can impair that
individual’s exercise of a public office. For example, the
Arrest Clause protects legislators from civil arrests for
private conduct while attending and traveling to and
from sessions of Congress. U.S. Const. Art. I, § 6, Cl. 1.
Article II similarly protects a sitting President from arrest, indictment, and criminal prosecution for private
conduct. 24 Op. O.L.C. at 247-248. And this Court has
recognized that “the Executive’s ‘constitutional responsibilities and status are factors counseling judicial deference and restraint’ in the conduct of litigation against
it,” Cheney, 542 U.S. at 385 (brackets and citation omitted), including in civil suits against the President in his
personal capacity, Clinton, 520 U.S. at 707.
Demands for a President’s personal records similarly risk interfering with the President’s official functions. A subpoena for personal records can be deployed
to harass a President in response to his official policies,
or have the effect of subjecting a President to unwarranted burdens, diverting his time, energy, and attention from his public duties. That is especially true
24
“[b]ecause the Presidency is tied so tightly to the persona of its occupant,” making “the line between official
and personal * * * both elusive and difficult to discern.”
In re Lindsey, 158 F.3d 1263, 1286 (D.C. Cir.) (Tatel, J.,
concurring in part and dissenting in part), cert. denied,
525 U.S. 996 (1998).
b. State grand-jury subpoenas also pose constitutional concerns even when (as here) they are directed to
the President’s agents rather than to the President himself. “The general rule of the law is, that what one does
through another’s agency is to be regarded as done by
himself.” Ford v. United States, 273 U.S. 593, 623
(1927) (citation omitted). A person who holds records
“in a representative capacity as custodian” thus usually
“ ‘assume[s] the rights, duties and privileges’ ” of his
principal with respect to those records. Bellis v. United
States, 417 U.S. 85, 89-90 (1974) (citation omitted). Indeed, the Court has held that “a Member [of Congress]
and his aide are to be ‘treated as one’ ” for purposes of
determining whether a grand-jury subpoena directed to
a congressional aide violates the Speech or Debate
Clause. Gravel v. United States, 408 U.S. 606, 616 (1972)
(citation omitted). So too, the D.C. Circuit has explained that interpreting the Freedom of Information
Act, 5 U.S.C. 552, to cover requests for records of visitors
to the White House would raise “serious separation-ofpowers concerns,” irrespective of whether the requester
seeks the records from the President himself or attempts an “end run[]” by directing the request to the
federal agency that is the custodian of the records.
Judicial Watch, Inc. v. United States Secret Service,
726 F.3d 208, 216, 225 (2013).
25
The same reasoning applies here. The risks that
subpoenas could harass the President and divert his attention from his official duties are just as real when the
subpoenas are directed to the President’s agents as
when they are directed to the President himself. That
is especially so when, as here, the President necessarily
must rely on expert third parties to oversee, manage,
and report on his financial holdings. Indeed, even if he
were the personal recipient of the subpoena, he would
not personally compile the requested documents; instead, he would rely on third-party agents like those at
issue in this case. As a practical matter, therefore, the
subpoenas are indistinguishable from ones directed to
the President, and should be treated as such for federalism and separation-of-powers purposes. “The Constitution deals with substance, not shadows.” Salazar v.
Buono, 559 U.S. 700, 723 (2010) (Roberts, C.J., concurring) (citation omitted).
C. At A Minimum, State Grand-Jury Subpoenas For The
President’s Personal Records Must Satisfy A Heightened
Standard Of Need, Which The District Attorney Has Not
Met Here
Because no state prosecutor has ever before issued a
subpoena for a sitting President’s personal records, this
Court has never had occasion to determine the precise
scope of a President’s immunity from such a subpoena.
In discerning the scope of that immunity, the Court
should ensure that the “provision for defence” is “made
commensurate to the danger of attack.” The Federalist
No. 51, at 349. Although the dangers just discussed may
well support an absolute immunity from state criminal
process, this Court need not resolve that question to decide this case. At a minimum, a state grand-jury subpoena for a sitting President’s personal records must
26
satisfy a heightened standard of need—a standard the
District Attorney has not satisfied here.
1. Precedent supports requiring a heightened showing
of need before a state grand jury may issue a subpoena
for the President’s personal records
A series of precedents—Chief Justice Marshall’s decisions while presiding over the federal criminal trials
of Aaron Burr, this Court’s decision in United States v.
Nixon, supra, and the D.C. Circuit’s decisions in In re
Sealed Case, 121 F.3d 729 (1997), and Senate Select
Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d 725 (1974) (en banc)—provide benchmarks for determining the appropriate scope of the
President’s immunity from the state grand-jury subpoena in this case. Although those decisions rejected
the proposition that the President enjoyed absolute immunity from a federal subpoena for privileged official
records, they made clear that such a subpoena must satisfy a higher standard than a subpoena to a private
individual—a principle that also applies to state criminal process for the President’s private records.
During two federal criminal trials of Aaron Burr,
Chief Justice Marshall issued subpoenas for the production of confidential official letters in President Jefferson’s possession. United States v. Burr, 25 F. Cas. 187,
192 (C.C.D. Va. 1807) (No. 14,694); United States v.
Burr, 25 F. Cas. 30, 30 (C.C.D. Va. 1807) (No. 14,692d).
But in doing so, Chief Justice Marshall stated that “[i]n
no case of this kind would a court be required to proceed
against the president as against an ordinary individual,”
because “[t]he objections to such a course are so strong
and so obvious, that all must acknowledge them.” Burr,
25 F. Cas. at 192. He continued: “[O]n objections being
made by the president to the production of a paper, the
27
court would not proceed further in the case without such
an affidavit as would clearly shew the paper to be essential to the justice of the case.” Ibid. In the end, President Jefferson never fully complied with the subpoenas.
Nixon v. Sirica, 487 F.2d 700, 781-788 (D.C. Cir. 1973)
(Wilkey, J., dissenting).
In Nixon, a federal prosecutor sought to subpoena
President Nixon’s White House tapes for use in a criminal trial of the President’s associates. 418 U.S. at 686687 & n.3. The Court repeated Chief Justice Marshall’s
assurance that “in no case of this kind would a court be
required to proceed against the president as against an
ordinary individual.” Id. at 708 (brackets and citation
omitted). It held that the subpoena at issue was permissible only because the prosecutor had shown that the
materials sought were “essential to the justice of the
pending criminal case.” Id. at 713 (brackets and citation
omitted).
In Sealed Case, the Independent Counsel sought to
enforce a federal grand-jury subpoena seeking privileged materials from the White House Counsel. 121 F.3d
at 734. The D.C. Circuit explained that, under Nixon,
“overcoming the presidential privilege require[s] something more” than the showing needed for an “ordinary”
subpoena; it requires a “demonstrated, specific need”
for the materials sought. Id. at 754. The court continued that the “standard which governs grand jury subpoenas” must be “no more lenient than the need standard enunciated for trial subpoenas in Nixon.” Id. at
756. The court explained that “[t]he necessary breadth
of the grand jury’s inquiries * * * means that grand
jury subpoenas may well represent a much more frequent threat” to the Presidency. Ibid.
28
Meanwhile, in Senate Select Committee, a Senate
committee sought to subpoena President Nixon’s White
House tapes for use in a congressional investigation.
498 F.2d at 726-729. The D.C. Circuit concluded that,
in order to obtain those privileged materials, the committee was required to show that “the subpoenaed evidence [wa]s demonstrably critical to the responsible fulfillment of the Committee’s functions”—a showing the
committee failed to make. Id. at 731; see id. at 733.
This case, of course, presents the risk of a different
type of intrusion than the type of intrusion emphasized
in Burr, Nixon, Sealed Case, and Senate Select Committee. Those cases primarily involved the risk that a
federal subpoena for a President’s privileged official
records would compromise the confidentiality of the
President’s communications with his advisors. This
case, by contrast, involves the risk that a state criminal
subpoena for a President’s personal records could harass the President or impose unwarranted burdens upon
him, diverting him from his official duties.
But either way, the threat of debilitating the President in office requires a heightened showing of need. A
heightened standard would mitigate the risk of harassment: the stronger the prosecutor’s showing of need,
the lower the likelihood that the prosecutor has issued
the subpoena for an improper purpose. A heightened
standard also would reduce the risk of subjecting the
President to unwarranted burdens: it ensures that a
prosecutor may take the extraordinary step of seeking
evidence from the President only when that evidence is
essential. Further, a heightened standard would ensure
that the protection of the President is not left to state
courts and state prosecutors applying state-law standards: it provides a basis for federal courts to intervene
29
upon the issuance of an improper subpoena. And to the
extent it is appropriate to weigh state interests against
federal interests, a heightened standard accommodates
the state interest in administering criminal laws.
2. The District Attorney has not satisfied the minimum
constitutional standard
Courts have formulated heightened standards for
subpoenas to the President in different ways: “essential
to the justice of the case,” Burr, 25 F. Cas. at 192;
“demonstrated, specific need,” Nixon, 418 U.S. at 713;
“strict standard of need,” Sealed Case, 121 F.3d at 756;
and “demonstrably critical,” Senate Select Committee,
498 F.2d at 731. In the context of state grand-jury subpoenas for the President’s personal records, this Court
should at least require a stringent showing. The prosecutor must show that the evidence is “directly relevant
to issues that are expected to be central to the trial.”
Sealed Case, 121 F.3d at 754. The prosecutor must identify “specific [charging] decisions that cannot responsibly be made without access to materials uniquely contained in the [requested records]”; it is not enough to
show only that the materials “may possibly have some
arguable relevance to the subjects [the grand jury] has
investigated.” Senate Select Committee, 498 F.2d at
733. In addition, the prosecutor must show that sufficient evidence is “not available from any other source.”
Nixon, 418 U.S. at 702. “Efforts should first be made
to determine whether sufficient evidence can be obtained elsewhere,” “the subpoena’s proponent should be
prepared to detail these efforts,” and a subpoena for the
President’s records is appropriate only as a “last resort.” Sealed Case, 121 F.3d at 755, 761.
In his filings so far in this Court, the District Attorney has not argued that he has satisfied a heightened
30
standard of need. See Br. in Opp. 31-32. And although
he argued to the court of appeals that he had made such
a showing, the court did not adopt his argument. See
Pet. App. 27a-28a. That is no surprise, because the circumstances surrounding the issuance of the subpoena
raise serious questions about the subpoena’s purpose.
The subpoena seeks President Trump’s financial
records—documents that others have demanded on a variety of grounds. One congressional committee claims
to need them so that it can consider federal tax legislation;
another, so that it can consider legislation on money
laundering; yet another, so that it can investigate foreign interference in our elections; and a fourth, so that
it can investigate whether the President has violated
federal laws. See Congressional Committee’s Request
for the President’s Tax Returns Under 26 U.S.C. § 6103( f )
(O.L.C. June 13, 2019), slip op. 2; U.S. Amicus Br. at 2-4,
Trump v. Mazars USA, LLP, No. 19-715 (filed Feb. 3,
2020). California has (unsuccessfully) tried to require
the disclosure of the President’s tax returns as a condition of ballot access. See Patterson v. Padilla, 451 P.3d
1171, 1172-1173, 1191 (Cal. 2019). Members of Congress, state officials, and private litigants have all sued
the President under the Foreign Emoluments Clause,
U.S. Const. Art. I, § 9, Cl. 8, sometimes with the avowed
purpose of obtaining the returns in discovery. Citizens
for Responsibility & Ethics in Washington v. Trump,
939 F.3d 131, 140 (2d Cir. 2019); In re Trump, 928 F.3d
360, 362-363 (4th Cir.), reh’g en banc granted, 780 Fed.
Appx. 36 (4th Cir. 2019); In re Trump, 781 Fed. Appx.
1, 2 (D.C. Cir. 2019) (per curiam). And in one case,
plaintiffs who allegedly suffered injuries while disrupting a campaign rally sought “expansive discovery” that
encompassed the President’s “tax returns” (as well as
31
the President’s “medical records” and a “deposition” of
the President “in Kentucky”). In re Trump, 874 F.3d
948, 952 (6th Cir. 2017).
Officials in New York have similarly targeted the
President’s financial records in a variety of ways. In
2016, soon after the presidential election, state legislators introduced a bill—the Tax Returns Uniformly
Made Public Act, or TRUMP Act—to require disclosure
of tax returns as a condition of ballot access. S.B. 8217,
2015-2016 Leg., Reg. Sess. (N.Y. 2016). In 2017, state
legislators introduced a bill to require state officials to
publish the President’s state income tax returns from
the last five years. S.B. 5572B, 2017-2018 Leg., Reg.
Sess. (N.Y. 2017). And the state legislature has enacted
a bill authorizing state officials to disclose the returns
to congressional committees. N.Y. Tax Law § 697(f-1)(1)
and (2) (McKinney Supp. 2020).
Now, the District Attorney claims that he needs the
President’s financial records for still another purpose—
a criminal investigation. The District Attorney, however, has not tailored his subpoena to a criminal investigation. He has instead copied his subpoena, almost
word for word, from one issued by the Committee on
Oversight and Reform of the U.S. House of Representatives. Pet. App. 123a-126a. The Committee insists that
it needs that information to investigate potential federal
legislation that it might enact in the future. See Br. in
Opp. at 4-5, Mazars USA, LLP, supra (No. 19-715)
(filed Dec. 11, 2019). The District Attorney, however,
insists that he needs exactly the same information to reconstruct state crimes that occurred in the past. That
carbon-copy subpoenas are claimed to serve two markedly divergent purposes strongly suggests that neither
is the real object.
32
At a minimum, the District Attorney has failed to explain how each of the subpoenaed personal records of
the President is “critical” to “specific” charging decisions. Senate Select Committee, 498 F.2d at 732-733. To
the extent the District Attorney’s investigation focuses
on the President himself, the District Attorney in all
events lacks the power to indict the President before
the end of the President’s term. See pp. 9-11, supra.
The District Attorney has never shown why, given that
lack of authority, the immediate production of the President’s records is critical to the grand jury’s investigation. And to the extent the District Attorney’s investigation focuses on third parties, the District Attorney
has failed to demonstrate that the President’s records
are critical to an investigation into a third party.
Relatedly, the District Attorney has failed to show
why he needs the President’s personal records now, rather than at the end of the President’s term. The District Attorney has not identified any applicable statute
of limitations that would expire before the President’s
term ends. To the extent that any such statute of limitations exists, the District Attorney has not addressed
the possibility of tolling the limitations period until the
end of the term. Nor has the District Attorney shown
any risk of spoliation of evidence. The records sought
by the District Attorney are in the hands of a thirdparty accountant. And in any event, an order to preserve the evidence would presumably satisfy any concerns about spoliation.
Nor, finally, has the District Attorney shown that he
is seeking the President’s personal records as a “last resort.” Sealed Case, 121 F.3d at 761. He has not detailed
his efforts to obtain sufficient evidence elsewhere, and
he has not “explain[ed] why evidence covered by the
33
presidential [immunity] is still needed.” Id. at 755. In
short, the subpoena is not “essential to the justice of the
case.” Burr, 25 F. Cas. at 192.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
VIVEK SURI
Assistant to the Solicitor
General
MARK R. FREEMAN
SCOTT R. MCINTOSH
GERARD SINZDAK
Attorneys
FEBRUARY 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.