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.

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 Writ of Certiorari to the United States

Court of A ppeals for the Second Circuit

BRIEF AMICUS CURIAE OF Eugene H.

Goldberg in support of Respondent

Eugene H. Goldberg

Counsel of Record

686 Harrison Avenue

East Meadow, New York 11554

(516) 695-2035

eman352@optonline.net

Counsel for Amicus Curiae

294799

A

(800) 274-3321 • (800) 359-6859

i

ii

TABLE OF CONTENTS

Page

. . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

IDENTIFICATION OF AMICUS . . . . . . . . . . . . . . . . . 1

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. TWO BASIC PRINCIPLES . . . . . . . . . . . . 3

B. A CENTURY OLD NISI PRIUS

PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 4

C. IMMU N I T Y FOR FOREI G N

H EA D S OF S T A T E — A

S H OR T I N T ER N A T IO N AL

COMPARISON . . . . . . . . . . . . . . . . . . . . . . . 5

D. T H E KI NG ’ S IMMU N I T Y I N

ENGLAND . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii

Table of Contents

Page

E. IMMUNIT Y OF THE PRINCE

OF WALES BEFORE BECOMING

KING AND THE QUESTION OF

IMMUNITY AFTER BECOMING

KING FOR CONDUCT BEFORE

BECOMING KING . . . . . . . . . . . . . . . . . . . . 9

II DISTRACTION –THE DEMAND OF

OFFICE IS NOT UNREMITTING . . . . . . . . . 11

III. DISCRIMINATORY ENFORCEMENT:

A DEFENSE TO CRIMINAL CHARGES

BUT NOT AN INVESTIGATION . . . . . . . . . . 15

IV. CONST I T U T ION ART ICLE I § 3

C LAUSE 7 C ONC ER N S HOUSE

IMPEACHMENT AND SENATE TRIAL,

NOT A STATE INVESTIGATION . . . . . . . . . 15

V. SUPREMACY ISSUES . . . . . . . . . . . . . . . . . . 17

VI. ENFORCEMENT IS NOT AN ISSUE . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

iv

TABLE OF CITED AUTHORITIES

Page

UNITED STATES CONSTITUTION

Article I § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Article I § 3 clause 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Article II § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Article IV § 2 clause 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Article VI clause 2 (Supremacy Clause) . . . . . . . . . . . . 17

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

UNITED STATES TREATIES

Vienna Convention on Diplomatic Relations

Article 29 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Vienna Convention on Diplomatic Relations

Article 36 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

UNITED STATES STATUTES

18 U.S.C. § 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

18 U.S.C. § 660 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

v

Cited Authorities

Page

28 U.S.C. § 1442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

UNITED STATES REGULATIONS

41 CFR § 102-34.235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

41 CFR § 102-34.245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

MISCELLANEOUS UNITED STATES

DOCUMENTS

Declaration of Independence . . . . . . . . . . . . . . . . . . . . . 20

UNITED STATES SUPREME COURT CASES

Reno v. American-Arab Anti-discrimination

Committee,

525 U.S. 471 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Clinton v. Jones,

520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 14, 20

Cunningham v. Neagle,

135 U.S. 1 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Gamble v. United States,

139 S. Ct. 1960 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

Glidden Co. v. Zdanok,

370 U.S. 530 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Johnson v. State of Maryland,

244 U.S. 51 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McCulloch v. Maryland,

17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mississippi v. Johnson,

71 U.S. 475 (1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Murphy v. NCAA,

138 S. Ct. 1461 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 23

Texas v. New Mexico,

482 U.S. 124 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Kirby,

74 U.S. 482 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Nixon,

418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

Virginia v. West Virginia,

246 U.S. 565 (1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Wayte v. United States,

470 U.S. 598 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

Cited Authorities

Page

UNITED STATES CASES

Jones v. Clinton,

72 F.3d 1354 (8th Cir. 1996), rev’d on other grounds,

520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Burr,

25 F. Cas. 30 (D. Va. 1807) . . . . . . . . . . . . . . . . . . . . . 14

United States v. Hart,

26 Fed. Cas. 193 (Cir. Ct. Pa. 1817) . . . . . . . . . . . . . . 18

Wei Ye v. Zemin,

383 F.3d 620 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 5

NEW YORK STATUTES AND CONSTITUTION

New York Constitution Article 13 § 13(b) . . . . . . . . . . . . 1

New York Criminal Procedure Law § 190.85 . . . . . . . . . 7

New York Penal Law § 60.27 . . . . . . . . . . . . . . . . . . . . . 22

STATE CASES

People v. Small, (Illinois Sangamon County

Circuit Court July 27, 1921), The Chicago Daily

News Almanac and Year-Book for 1922 . . . . . . . . . . . 4

People v. Small,

319 Ill. 437, 150 N.E. 435 (1925) . . . . . . . . . . . . . . 5, 11

viii

Cited Authorities

Page

Trump v. Zervos,

171 A.D.3d 110, 94 N.Y.S.3d 75 (2019) . . . . . . . . . . . . 19

FOREIGN CONSTITUTIONS AND STATUTES

English Bill of Rights, 1 William & Mary Sess. 2 c 2 . . 9

Nigeria Constitution § 308(1) (1999) . . . . . . . . . . . . . . . . . 6

FOREIGN CASES

Fawehinmi v. Inspector-General,

(2002) 5 S.C. (Pt. 1) 63 (Sup. Ct. Nigeria) . . . . . . . . . 6

Pirrie v. McFarlane,

36 Commw. L. Rep. 170

(High Court Australia 1925) . . . . . . . . . . . . . . . . . . . 19

Thomas v. Sorrell,

124 Eng. Rep. 1098 (K.B. 1674) . . . . . . . . . . . . . . . . . . 9

AMERICAN TEXTS

Bell, The Presidency: Office of Power (1967) . . . . . . . . 18

Calendar of the Papers of Martin Van Buren . . . . . . . . 12

Channing, IV A History of the United States (1917) . . 12

The Constitutions of the Several Independent

States of America (1786) . . . . . . . . . . . . . . . . . . . . . . . 20

ix

Cited Authorities

Page

Hannaford, Presidential Retreats (2012) . . . . . . . . . . . 12

Henderson, George Washington’s Southern Tour

1791 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Madison, Federalist Papers No. 51 . . . . . . . . . . . . . . . . 23

Nenner, By Colour of Law (1975) . . . . . . . . . . . . . . . . . . . 9

Paine, Common Sense (1776) . . . . . . . . . . . . . . . . . . . . . .20

Rawle, A View of the Constitution (1829) . . . . . . . . . . . 16

Rosenfeld, American Aurora (1997) . . . . . . . . . . . . . . . . 12

Story, 2 Commentaries on the Constitution of the

United States §782 (1833) . . . . . . . . . . . . . . . . . . . . . 16

Story, 2 Commentaries on the Constitution of the

United States §794 (1833) . . . . . . . . . . . . . . . . . . . . . 17

Story 2 Commentaries on the Constitution

of the United States §799 (1833) . . . . . . . . . . . . . . . . 16

Spence, Andrew Jackson Donelson:

Jacksonian and Unionist (2017) . . . . . . . . . . . . . . . . . 12

Waldo, The Tour of James Monroe (1818) . . . . . . . . . . . 12

Watson, II Constitution of the United States

(1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11, 13

x

Cited Authorities

Page

Wigmore, Evidence § 2371(d) . . . . . . . . . . . . . . . . . . . . . 21

ENGLISH TEXTS

Blackstone, Commentaries on the Law of England

(1753) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Chitty, The Law of The Prerogative

of the Crown (1820) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Coke, Third Institutes of the Law of England . . . . . . . . 9

Dicey, Introduction to the Law of the

Constitution (1885) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gardiner, Notes of the Debates in the

House of Lords (1889) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Locke, A n Essay Concerning the

T r ue Or ig i na l Ex t ent and End of

Civil Government § 205 (4th ed. 1713) . . . . . . . . . . . . . 8

Lowndes, H.R.H. The Prince of Wales (1898) . . . . . . . . 9

Mackintosh, 1 The History of England (1830) . . . . . . . . 9

Schwoerer, The Declaration of Rights 1689 (1981) . . . . . 9

xi

Cited Authorities

Page

MISCELLANEOUS

Kantorowicz, The King’s Two Bodies (1985) . . . . . 11, 19

Shakespeare, Henry IV, Part II, Act V. Scene II

Lines 64-122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

LAW ARTICLES

93 Central L. J. 111 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . 4

93 Central L. J. 149 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . 4

93 Central L. J. 237 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . 4

54 Chicago Legal News 51 (1921) . . . . . . . . . . . . . . . . . . . 4

54 Chicago Legal News 54 (1921) . . . . . . . . . . . . . . . . . . . 4

Dixon, Limiting The Doctrine of

I nt e r g o ve r n m e nt a l I m mu n it y,

9 Queensland Univ. Tech. L.J. 1 (1993) . . . . . . . . . . . 17

Note, Immunity of Stat e Executive f rom

Arrest, 35 Harv. L. Rev. 185 (1921) . . . . . . . . . . . . . . 4

Olasunkanmi and Agulanna, Interrogating

t he Im mu n it y Clause a nd Democ rat ic

Governance in Nigeria, 4(7) Journal Advances

in Social Science and Humanities 181 (2018) . . . . . . . 6

xii

Cited Authorities

Page

Quigley, Immunity, Italian Style: Silvio Berlusconi

Versus The Italian Legal System, 34 Hastings

Internat’l & Comp. L. Rev. 435 (2011) . . . . . . . . . . . . 8

Seidma n, T he Or ig i ns of Account abi l ity:

Everything I Know About The Sovereign’s

Immunity, I Learned From King Henry

III, 49 St. Louis U.L.J. 393 (2005) . . . . . . . . . . . . . . . 8

Smith, The Missing Witness? George V, Competence

a nd Compel labi l it y a nd T he Cr i m i na l

Libel Trial of Edward Frederick Mylius,

33 Journal of Legal History 209 (2012) . . . . . . . . . . 11

MISCELLANEOUS ARTICLES

A n Open Season for Governors,

The New Republic, August 24, 1921 . . . . . . . . . . . . . 21

Green, On Tour with President Andrew Jackson,

36 New England Quarterly 209 (1963) . . . . . . . . . . . 12

INTERNET AUTHORITY

British History Online, Historical Collection;

1626, May, https://w w w.br itish-histor y.

ac.uk/rushworth-papers/vol1/pp248-302 . . . . . . . . . 10

Ferrell, The Coolidge Summer White Houses, https://

www.coolidgefoundation.org/blog/6661/ . . . . . . . . . . 13

xiii

Cited Authorities

Page

Immunity From Prosecution for Former Presidents,

Library of Congress, https://www.loc.gov/law/

help/immunity-from-prosecution/index.php . . . . . 5-6

Rotunda, May 13 1998 Memorandum to Kenneth Starr,

https://digitalcommons.unl.edu/cgi/viewcontent.

cgi?article=1032&contect=usjusticematls . . . . . . . . . 7

Telecommunications History Group, https://

www.telcomhistory.org/santee.shtml . . . . . . . . . . . . 13

Travels of President Rutherford B. Hayes,

Ohio History Journal, https://resources.

ohiohistory.org/ohj/browse/displaypages.php?

display[]=0080&display[]=60&display[]=72 . . . . . 13

US Department of State Office of the Historian,

Travels of the President Woodrow Wilson,

https://history.state.gov/departmenthistory/

travels/president/wilson-woodrow . . . . . . . . . . . . . . 13

Wo o d r o w W i l s o n , S t a t e o f t h e Un i o n

A d d r e s s D e c e m b e r 2 , 1 9 1 8 , h t t p : //

w w w.let.rug.nl /usa /presidents/woodrowwilson/state-of-the-union-1918.php . . . . . . . . . . . . . . 13

WTOP News October 6, 2012, https://wtop.

com/news/2012/10/dc-police-once-arrested-aus-president-for-speeding/ . . . . . . . . . . . . . . . . . . . . . 18

1

IDENTIFICATION OF AMICUS1

Eugene H. Goldberg, an attorney admitted to the

bar of this court, has no interest or relationship with any

party to this appeal. He specializes in construction law

and insurance coverage. He is a student of common law

federal constitutional separation of power jurisdictions,

their roots in 17th-18th Century England and America, and

American history.

This appeal is submitted in support of Respondent

Cyrus R. Vance, Jr.

DEFINITIONS

Many words in this brief are used repeatedly. They

are defined and/or described below.

“Constitution” means the United States Constitution.

“DA” means the New York County District Attorney,

an officer created by New York Constitution Article 13

§13(b) separate from New York’s Attorney General.

“Federal” refers to a governmental system with

independent states/provinces and a national government,

as opposed to a unitary system in which the national

government delegates powers to local or regional

subsidiary governments. The United States, Canada,

1. No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than the amicus curiae made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of this brief.

2

and Australia are, for example, federal governmental

systems. The United Kingdom is a unitary government,

even though it has devolved powers to Scotland, Wales,

and Northern Ireland.

“Foreign Head of State” means a president, Prime

Minister or King of a Foreign State.

“Foreign State” means another country.

“Head of Government” means a President, a Foreign

Head of State, or a State governor.

“President” means the US chief executive pursuant

to the United States Constitution.

“State” means one of the original 13 states in 1776

and/or one of the 50 states in the United States.

Trump is the individual, as opposed to his official

capacity as President.

“US” refers to the national government in the United

States.

SUMMARY OF ARGUMENTS

The public has a right to every man’s evidence, even

the President’s.

A President, before taking office, may have evidence

regarding a State crime. His becoming President has no

bearing on his duty in his personal capacity to present his

evidence in a State criminal investigation. Postponing his

presentation of evidence until the President leaves office

can have an effect on a State criminal justice system.

3

While the President may be on call every day to

perform his Presidential functions, the demand of office

is not unremitting. Presidents take vacations, make

long speaking tours, and relax. Under proper time

management, the President can respond to a State

criminal investigation. A court would use docket control

techniques to prevent impairing Presidential functions.

State prosecution of State crime is expressly

recognized in the Constitution. Congress by statute allows

State prosecution of a State crime against a US officer.

The US officer has a defense, if he can show his actions

were in the course of performing a US function.

There is no executive Presidential prerogative to

postpone giving evidence until the President is out of

office. The Revolution rejected executive prerogative, in

favor of equality of application of the law.

The State criminal justice system is part of a double

security created by the Constitution. The independent

State criminal justice system, a bulwark against abuse,

would be threatened if Trump’s appeal is upheld.

ARGUMENT

I.

INTRODUCTION

A. TWO BASIC PRINCIPLES

First, the public has a right to every man’s evidence,

except where protected by privilege. United States v.

Nixon, 418 U.S. 683, 709 (1974). This applies in State and

US courts.

4

Second, a President was not always the Head of

Government.

B. A CENTURY OLD NISI PRIUS PRECEDENT

Before taking office, a Head of Government may

commit crimes. 2

Lennington Small, then sitting Illinois governor, was

indicted by an Illinois grand jury in 1921 for alleged crimes

committed when he was Illinois State Treasurer. 3 Small

unsuccessfully asserted temporary immunity because

he was the sitting governor. People v. Small, (Illinois

Sangamon County Circuit Court July 27, 1921). The facts,

argument, and nisi prius decision are reported in The

Chicago Daily News Almanac and Year-Book for 1922 at

522-526, https://books.google.com/books?id=JQ8fAQA

AMAAJ&pg=PA522&lpg=PA522&dq=%22purchasers

+of+the+notes+large+profits%22&source=bl&ots=

WuUaMcAZQl&sig=ACfU3U1w1yhcVR7KgD7h5QG

UGY2R6sGitw&hl=en&sa=X&ved=2ahUKEwjv3db98TnAhVOl3IEHWW4DgAQ6AEwBXoECAYQAQ#v

=onepage&q=%22purchasers%20of%20the%20notes%20

large%20profits%22&f=false.

The case generated academic writing. Note, Immunity

of State Executive from Arrest, 35 Harv. L. Rev. 185

(1921); 93 Central L. J. 111, 149, 237 (1921); 54 Chicago

Legal News 51, 54 (1921). Periodicals commented.

2. Lesotho’s Thomas Thabane, prime minister since June

2017, was indicted on February 20, 2020. He was charged with

involvement in the murder of his estranged wife 2 days before he

assumed office.

3. The crimes involved misuse of State funds.

5

Small was acquitted. Illinois then sued Small, still

in office, to account for interest earned on Illinois funds.

People v. Small, 319 Ill. 437, 150 N.E. 435 (1925).

The Harvard Law Review Note analyzes well many

issues on this appeal.

C.

IMMUNITY FOR FOREIGN HEADS OF

STAT E —A SHORT I NT ER NAT IONA L

COMPARISON

In courts in the United States, temporary immunity

is accorded a Foreign Head of State; Wei Ye v. Zemin,

383 F3d 620, 625-627 (7th Cir. 2004); Foreign State

ambassadors; Vienna Convention on Diplomatic Relations

Article 29 (1961); and their families.4 Vienna Convention

on Diplomatic Relations Article 36 (1961). This is based

on international comity.

No comity exists between the US and the States. The

US has indicted 8 sitting State governors. 5 No State has

indicted a sitting President.

Temporary immunity is conferred by at least 32

Foreign State constitutions on current and former Foreign

Heads of State. Immunity From Prosecution for Former

4. Here, protection is sought for family, business affiliates,

and trusts. If Trump succeeds personally, the Court must

determine whom else is protected.

5. John Quitman, 1851, Mississippi; Warren McCray, 1924,

Indiana; Richard Leche, 1939, Louisiana; Marvin Mandel, 1977,

Maryland; Jim Guy Tucker, 1996, Arkansas; Fife Symington, 1997,

Arizona; Rod Blagojevich, 2009, Illinois.

6

Presidents, Library of Congress, https://www.loc.gov/law/

help/immunity-from-prosecution/index.php.

Not mentioned is Nigeria Constitution §308(1)

(1999).6 Applying a narrow construction, the Nigerian

Supreme Court held the section did not bar investigation.

Fawehinmi v. Inspector-General, (2002) 5 S.C. (Pt. 1) 63

(Sup. Ct. Nigeria). Policy reasons offered deserve mention.

That a person protected under Section 308 …,

going by its provisions, can be investigated by

the police for an alleged crime or offence is, in

my view, beyond dispute. To hold otherwise

is to create a monstrous situation whose

manifestation may not be fully appreciated

until illustrated. I shall give three possible

instances. Suppose it is alleged that a Governor,

in the course of driving his personal car,

recklessly ran over a man, killing him; he

sends the car to a workshop for the repairs

of the dented or damaged part or parts. Or

that he used a pistol to shoot a man dead and

threw the gun into a nearby bush. Or that he

stole public money and kept it in a particular

bank or used it to acquire property. Now, if the

police became aware, could it be suggested in

an open and democratic society like ours that

they would be precluded by Section 308 from

6. Appendix A. §308 grants temporary immunity to

sitting governors and presidents. Nigerians debate the merits

and demerits of the section. E.g., Olasunkanmi and Agulanna,

Interrogating the Immunity Clause and Democratic Governance in

Nigeria, 4(7) Journal Advances in Social Science and Humanities

181 (2018).

7

investigating to know the identity of the man

killed, the cause of death from autopsy report,

the owner of the car taken to the workshop and

if there is any evidence from the inspection

of the car that it hit an object recently, more

particularly a human being; or to take steps to

recover the gun and test for ballistic evidence;

and generally to take statements from eyewitnesses of either incident of killing. Or to

find out (if possible) about the money lodged

in the bank or for acquiring property, and to

get particulars of the account and the source

of the money; or of the property acquired? The

police clearly have a duty …to do all they can

to investigate and preserve whatever evidence

is available. The evidence or some aspect of it

may be the type which might be lost forever

if not preserved while it is available, and in

the particular instances given it can be seen

that the offences are very serious ones which

the society would be unlikely to overlook if it

had its way. The evidence may be useful for

impeachment purposes … It may no doubt

be used for prosecution of the said incumbent

Governor after he has left office. But to do

nothing under pretext that a Governor cannot

be investigated is a disservice to the society. 7

7. Accord, Rotunda, May 13 1998 Memorandum to Kenneth

Starr at 49-51, https://digitalcommons.unl.edu/cgi/viewcontent.cg

i?article=1032&contect=usjusticematls . A New York grand jury,

under New York Criminal Procedure Law §190.85, could petition/

report findings to Congress under Constitution First Amendment.

8

Temporary immunity is sometimes conferred, by

domestic statute, on Foreign Heads of State. Some statutes

have been struck down. Quigley, Immunity, Italian Style:

Silvio Berlusconi Versus The Italian Legal System, 34

Hastings Internat’l & Comp. L. Rev. 435 (2011).

D. THE KING’S IMMUNITY IN ENGLAND

Immunity from being a witness and arrest is part

of the King’s prerogative. “The King can do no wrong.”8

Blackstone opined the King in the exercise of his

prerogative was irresistible and absolute. If prerogative

were exercised to the “grievance or dishonor of the

kingdom”, he was immune. Blackstone, Commentaries on

the Law of England *243(1753) citing Locke, An Essay

Concerning the True Original Extent and End of Civil

Government §205 at 344-345 (4th ed. 1713). Locke felt

it is better for a few to suffer than to allow the head of

government to be exposed. According to Blackstone, the

King’s exercise of prerogative was unreviewable.

A later text opined that the King’s immunity was

based on the “dignity of the sovereign and the safety of

the state…” Chitty, The Law of The Prerogative of the

Crown 374 (1820).

“Dignity” reflected the King’s place in government.

The King is the fount of justice. Criminal prosecution is

in the King’s courts and in the King’s name. “Safety”

reflected police and/or defense powers.

8. The maxim has four meanings. Seidman, The Origins

of Accountability: Everything I Know About The Sovereign’s

Immunity, I Learned From King Henry III, 49 St. Louis U.L.J.

393, 396 (2005).

9

Prerogative is construed narrowly. It does not abridge

third party rights. Thomas v. Sorrell, 124 Eng. Rep. 1098

(K.B. 1674); Nenner, By Colour of Law 90-99 (1975). After

1689, prerogative did not permit statute to be suspended

or dispensed with (unless allowed by statute). Schwoerer,

The Declaration of Rights 1689 at 59-64 (1981); English

Bill of Rights, 1 William & Mary Sess. 2 c 2.

E. IMMUNITY OF THE PRINCE OF WALES

BEFORE BECOMING KING AND THE

Q U E ST I O N O F I M M UN I T Y A F T E R

BECOMING KING FOR CONDUCT BEFORE

BECOMING KING

Until the Prince of Wales became King, he had no

immunity. In the early 15th Century, the Prince of Wales

(the future Henry V) was jailed for contemptuous conduct

in the immediate presence of William Gascoyne, the Chief

Justice of England. Mackintosh, 1 The History of England

351 (1830); Coke’s Third Institutes of the Law of England

at 225; Shakespeare, Henry IV, Part II, Act V. Scene II

Lines 64-122.

The Prince of Wales testified in 1891 in the Baccarat

Case. Lowndes, H.R.H. The Prince of Wales 131 (1898).

He became King in 1901.

10

All, peers and commoners, are equal before the law 9

--except for the King.

The King’s special status raises an interesting

question. What of his conduct before becoming King, not

raised until after becoming King? The issue arose (as to

witness immunity) because in 1623 (regarding the Spanish

Match), the Prince of Wales (the future Charles I) secretly

traveled to Madrid to woo the King of Spain’s daughter.

The Earl of Bristol, England’s ambassador to Spain, tried

to negotiate a marriage contract with Spain. The Prince

refused to become a Catholic. His romantic suit failed.

The Prince became King in 1625. In 1626, the Earl was

indicted (during Parliament) in the House of Lords for

treason for trying to convert the Prince. The Earl asked

if Charles I (the principal accuser) would testify, or would

royal prerogative bar this. After debating the issue, the

House of Lords asked the English judges to rule. Gardiner,

Notes of the Debates in the House of Lords 185-186 (1889);

British History Online, Historical Collection; 1626, May,

https://www.british-history.ac.uk/rushworth-papers/vol1/

pp248-302. Charles I ordered the judges to abstain as it

would affect royal prerogative. Gardiner, Notes of the

Debates in the House of Lords 191 (1889). See generally

Watson, II Constitution of the United States 1021-22

9. Dicey, Introduction to the Law of the Constitution at 198

(1885) says:

[The rule of law] means … equality before the law, or

the equal subjection of all classes to the ordinary law

of the land administered by Law Courts; the ‘rule of

law’ in this sense excludes the idea of any exemption of

officials or others from the duty of obedience to the law

which governs other citizens or from the jurisdiction

of the ordinary tribunals….

11

(1910). The indictment abated when Charles I dissolved

Parliament.

The Earl’s case, viewed from an American lens,

involved capacity. The Prince had one capacity as a natural

human being. When King, he had two capacities: one body

natural and one body politic. Kantorowicz, The King’s Two

Bodies at 7-23 (1985). The Earl faced a treason charge

punishable by death based upon the unsworn statement

of his accuser--the Prince of Wales in 1623, then King

Charles I in 1626. This involved the natural body. The

body politic required dignity—it would be unseemly for

the King, the source of justice, to descend from the throne

to testify under oath, subject to prosecution in the King’s

name for perjury. The judges ought to have weighed the

competing policies.10

The President has two capacities: official and

personal/unofficial. Jones v. Clinton, 72 F.3d 1354, 1359

(8th Cir. 1996), rev’d on other grounds, 520 U.S. 681 (1997).

The President is not the source of justice, especially not

in State courts. Conduct before becoming President is

within his unofficial capacity. Id.; cf. People v. Small, 319

Ill. 437, 150 N.E. 435 (1925).

II DISTRACTION –THE DEMAND OF OFFICE IS

NOT UNREMITTING

Beginning with George Washington, Presidents

absented the seat of government for months. Henderson,

10. For a 1909 case raising King as witness issues, see Smith,

The Missing Witness? George V, Competence and Compellability

and The Criminal Libel Trial of Edward Frederick Mylius, 33

Journal of Legal History 209 (2012).

12

George Washing ton’s Southern Tour 1791 (192 3)

(Philadelphia departure March 21, 1791, return to Mt.

Vernon June 12, 1791). Mail did not reach him for a month.

Air conditioning not being invented, fear of disease

(e.g., Philadelphia’s yellow fever in summers in the 1790s,

cholera in Washington in the 1830s and thereafter)

persuaded Congress to adjourn for summer months.

Presidents also left. Examples follow.

John Adams--left Philadelphia July 25, 1798,

Rosenfeld, American Aurora at 199-200 (1997),

arrived in Newark on July 27, 1798, id. at 200,

returning November 1798, Channing, IV A

History of the United States 194 (1917);

James Monroe--June 1, 1817 to September 15,

1817, Waldo, The Tour of James Monroe (1818);

Andrew Jackson--trips to Tennessee in 1830,

1832, 1834, and 1836, Hannaford, Presidential

Retreats 42 (2012), Green, On Tour with

President Andrew Jackson, 36 New England

Quarterly 209 (1963), Spence, Andrew Jackson

Donelson: Jacksonian and Unionist 48-50, 67, 73

(2017) (trip to Hermitage each way 3-4 weeks);

Martin Van Buren--left about July 1, 1839

returned mid-October 1839 from trip to

Kinderhook, NY, Calendar of the Papers of

Martin Van Buren 387-392;

Rutherford B. Hayes--left home in Canton, Ohio

for western tour September 1, 1880-October

13

30, 1880 returning to Canton, Ohio, Davison,

Travels of President Rutherford B. Hayes, Ohio

History Journal, https://resources.ohiohistory.

org/ohj/browse/displaypages.php?display[]=00

80&display[]=60&display[]=72;

Warren G. Harding--left Washington on June

20, 1923 for a western tour including a trip to

Alaska, Telecommunications History Group,

https://www.telcomhistory.org/santee.shtml,

expecting to return in late August, 1923, died

in San Francisco on August 2, 1923;

Calvin Coolidge--1924, 1925, 1926, 1927, 1928,

Ferrell, The Coolidge Summer White Houses,

https://www.coolidgefoundation.org/blog/6661/.

Early Presidents, absenting from the seat of

government, transacted government business by mail.

Means of communication changed. For example, Woodrow

Wilson departed the United States for the Versailles Peace

Conference on December 4, 1918, returned on February

24, 1919, departed again on March 5, 1919, and returned

finally on July 8, 1919. US Department of State Office of

the Historian, Travels of the President Woodrow Wilson,

https://history.state.gov/departmenthistory/travels/

president/wilson-woodrow. While away, Wilson dealt with

government business by wireless and cable. Woodrow

Wilson, State of the Union Address December 2, 1918,

http://www.let.rug.nl/usa/presidents/woodrow-wilson/

state-of-the-union-1918.php. The President’s absence from

the seat of government does not interrupt his undertaking

the business of government. Watson, II Constitution of the

United States 1010-11(1910).

14

When away, Presidents relaxed. Andrew Jackson rode

his horse at the Hermitage. Grover Cleveland fished in the

Adirondacks. Lyndon Johnson drove his car in the Texas

foothills.11 Others golfed.

John Marshall stated

If, upon any principle, the president could be

construed to stand exempt from the general

provisions of the constitution, it would be,

because his duties as chief magistrate demand

his whole time for national objects. But it is

apparent that this demand is not unremitting…

United States v. Burr, 25 F. Cas. 30, 34 (D. Va.

1807)12

The nation may require the President be available

every day to perform Presidential functions; it does

not require he perform Presidential functions every

minute. Time management permits response to a State

investigation.

11. There is a story, attributed to Robert Caro, that President

Lyndon Johnson was stopped in the Texas foothills outside of

Austin for speeding, but was not ticketed. When realizing who

he stopped, the policeman said “My God!” LBJ said “You better

remember that.”

12. Clinton v. Jones, 520 U.S. 681, 689 (1997) commented but

neither rejected nor accepted the remark.

15

III. DI S C R I M I NAT ORY E N F OR C E M E NT : A

DEFENSE TO CRIMINAL CHARGES BUT NOT

AN INVESTIGATION

Politically motivated prosecution is a rare defense

after indictment. Clear and convincing evidence must be

shown to displace the presumption that a prosecutor acted

lawfully. Reno v. American-Arab Anti-discrimination

Committee, 525 U.S. 471, 489 (1999); Wayte v. United

States, 470 U.S. 598, 607-08 (1985).

The DA’s statutory authority to investigate is neutral

in content, not aimed at any sitting US official much less

aimed at the President. Trump argues discrimination in

application. This requires a greater factual showing than

Trump provided.

After the subpoenaed documents are produced, the

State grand jury may indict conspirators. The indictment

may refer to Trump as a co-conspirator obliquely.13 Trump

may not be indicted.

The discrimination defense is therefore not ripe.

IV. CONSTITUTION ARTICLE I §3 CLAUSE 7

CONCERNS HOUSE IMPEACHMENT AND

SENATE TRIAL, NOT A STATE INVESTIGATION

Constitution Article I §3 clause 7 deals with the US

Senate. It also deals with a partial overlapping of US

judicial power. The US House and US Senate are granted

a small aspect of US judicial power—impeachment and

13. Presidents have been described obliquely as coconspirators in US indictments, but not indicted.

16

trial of US officers. The Senate is somewhat analogous to

the House of Lords in the process. But the House of Lords,

after conviction at the impeachment trial, can also impose

fines, imprisonment and death. Story, 2 Commentaries

on the Constitution of the United States §782 (1833).

Constitution Article I §3 clause 7 denies the Senate such

power; US judicial power is otherwise committed to courts

pursuant to US Constitution Article III.

There is little mention of States in Constitution Article

I §3 except in State election of Senators. Clause 7 does not

discuss States in the impeachment process.

There is a reason why States are not mentioned: a

US officer committing a State crime is not necessarily

committing an impeachable offense. Story, 2 Commentaries

on the Constitution of the United States §799 at 270

(1833) citing Rawle, A View of the Constitution 215 (1829)

describes this stating:

In general, those offenses, which may be

committed equally by a private person,

as a public officer, are not the subjects of

impeachment. Murder, burglary, robbery, and

indeed all offenses not immediately connected

with office, except the two expressly mentioned,

are left to the ordinary course of judicial

proceeding.14

For crimes which are not subject to impeachment, State

courts can take cognizance. Prosecution of such State

crimes need not await until the President left office.

14. Professor Dershowitz’s argument at the 2020 President’s

impeachment trial.

17

History supports this conclusion. When Story and

Rawle wrote, the US Criminal Code was thin. See Story

2, Commentaries on the Constitution of the United States

§794 at 264 (1833). States prosecuted most crimes. Since

the Civil War, the US Criminal Code ballooned. Cf.

Gamble v. United States, 139 S. Ct. 1960, 1980 n.1 (2019)

(Thomas, J., concurring).

V. SUPREMACY ISSUES

The issue revolves around intergovernmental

immunity (overlapping jurisdictions) between US and

a State. McCulloch v Maryland, 17 U.S. 316, 426-27

(1819). This issue arises in federal Foreign States; Dixon,

Limiting The Doctrine of Intergovernmental Immunity, 9

Queensland Univ. Tech. L.J. 1, 10-13 (1993); but does not

arise in modern unitary Foreign States.

The Supremacy Clause addresses the issue of

overlap. The Constitution and law passed by Congress

prevail over State law. As to temporary immunity, there

is no law passed by Congress. The Constitution does not

contain express language giving the President temporary

immunity.

On the other hand, there is express constitutional

language that a State can prosecute State crimes. The

fugitive clause in Constitution Article IV § 2 clause 2

provides “A person charged in any State with treason,

felony, or other crime…” The greater power, prosecution,

implies the lesser, investigation.

Congress has not generally exempted US officers

from State court criminal process for State crimes.

18

United States v. Kirby, 74 U.S. 482, 486 (1868). Thus,

President Grant was arrested in the District of Columbia

for speeding while driving his horse and buggy. Grant

posted a bond and did not defend. Bell, The Presidency:

Office of Power 75 (1967); WTOP News October 6, 2012,

https://wtop.com/news/2012/10/dc-police-once-arresteda-us-president-for-speeding/

The question is whether the US officer is charged

for a crime while performing a US function. If US law

authorized the US officer’s action, US law excused him

(the “Excuse Defense”). Another defense flows from

Cunningham v. Neagle, 135 U.S. 1 (1890): the defense

is that US law authorized the US officer to perform the

actions and they were necessary and proper to fulfilling

his US duties. Municipal traffic offense cases contain the

best analysis. United States v. Hart, 26 Fed. Cas. 193 (Cir.

Ct. Pa. 1817) (Bushrod Washington, J.); see Johnson v.

State of Maryland, 244 U.S. 51 (1920).

The Excuse Defense (as expanded by Congress)

is found today in 28 U.S.C. §1442. After the US officer

pleads the Excuse Defense, a criminal prosecution can

be removed to US District Court for trial on the Excuse

Defense. The removal statute is Congress’s judgment on

when and under what circumstances a State investigatory

subpoena to a US official becomes reviewable.

US regulation (regarding municipal traffic offenses)

recognizes the Excuse Defense. 41 CFR §§102-34.235,

102-34.245 (US official use of US owned vehicles).15

15. Appendix B.

19

Trump does not assert the Excuse Defense. He

contends that his current US office accords temporary

immunity for past personal acts. This is without basis.

Before taking the Presidential oath, Trump was a New

York citizen, duty bound to comply with New York criminal

law. See Pirrie v. McFarlane, 36 Commw. L. Rep. 170, 219

(High Court Australia 1925). The Presidential oath is not

like baptismal holy water; the oath does not temporarily

immunize from prior sins.16

Trump argues that threat of State investigation for

past personal conduct will divert his attention and cause

hesitancy in the fearless performance of Presidential

duties. Cf. Nixon v. Fitzgerald, 457 US 731 (1982). He

confuses personal/private conduct with official conduct.

Conduct occurring before becoming President was on his

own behalf and benefitted him personally. After assuming

office, Trump’s official conduct is on behalf of and benefits

the nation. Undampened ardor in performing arguably

official actions is therefore protected.17 Trump v. Zervos,

171 A.D.3d 110, 121-22, 94 N.Y.S.3d 75, 83 (2019), appeal

pending (immunities are grounded in nature of function

performed, not identity of actor who performed it).

There is another policy reason for denying Trump’s

implied form of immunity. Trump resurrects absolute

executive prerogative.

16. Cf. Kantorowicz, The King’s Two Bodies 12 n.9 (1985)

describing apologia for Byzantine Emperor John Tzimisces (929976) who assumed office by murdering predecessor.

17. Conduct on behalf of the US while President-elect might

be retroactively ratified.

20

There is a historical presumption in America against

any form of constitutional executive prerogative, unless

expressly stated. Thomas Paine’s Common Sense, first

published in late 1775, decried the King.18 The Declaration

of Independence denounced prerogative exercised

by royal governors and the King. Between 1776 and

1786, New York, Maryland, and Virginia in their new

constitutions abolished all executive prerogatives.19 Other

States severely curtailed executive prerogatives. The

Constitution expressly stated few executive prerogatives,

abolished others or blended them by involving the US

Senate and/or US House in the checking process or by

allowing executive action to be overruled.

The court in which the State crime is prosecuted must

manage the case with due respect to the office and the

circumstances using its inherent docket control power. See

Clinton v. Jones, 520 U.S. 681, 706-07 (1997). The court

must assess, inter alia, the charge (e.g., misdemeanor,

felony, malum prohibitum, traffic offense, parking ticket,

littering) against the possible punishment (e.g., penalty,

fine, injunction, imprisonment).

Management requires awareness that Presidential

functions may be affected. A President can only be

removed from office by the Senate. One State by

prosecution cannot displace the President. Therefore, a

18. “[T]hat so far as we approve of monarchy, that in America

THE LAW IS KING.” Paine, Common Sense 67 (1776).

19. The Constitutions of the Several Independent States

of America published by order of Congress 94 (New York), 166

(Maryland), 178 (Virginia) (1786).

21

State cannot imprison 20, impose corporal punishment 21,

nor execute a sitting President.

Presidential functions affecting the “safety of the

[nation]” may be involved. George Washington, as

Commander in Chief, led troops to put down the 1794

Whiskey Rebellion. A pending war or police action may

require Presidential oversight. On the other hand, Wilson

attended the Versailles Peace Conference in 1919 while

American doughboys skirmished with Bolsheviks in

Archangel, Russia.

Other Presidential functions can be postponed.

Constitution Article II §3 provides the President shall

from time to time give information to Congress as to the

state of the union. Presidents today personally address

Congress. Past Presidents submitted a written address.

The Constitution omits any particular date.

The factors considered w ill depend upon the

circumstances. See Wig more, Ev idence §2 371(d)

(testimony of executive).

Amicus will not repeat other policy reasons recited in

Respondent’s merits brief, but will add a few additional

ones. A State has a compelling interest in the speedy

prosecution of its criminal laws. Justice delayed may be

justice denied. Court ordered restitution and reparation

20. To the contrary, An Open Season for Governors, The New

Republic, August 24, 1921, at 339 (“[P]rison as a seat of government

has great advantages in a democracy…”).

21. To the contrary, England’s Henry II voluntarily subjected

himself to scourging by Canterbury’s bishops and monks in 1174.

This was penance for Saint Thomas Becket’s death in 1170.

22

to third parties under New York Penal Law §60.27 may

be delayed. To the extent that third parties depend upon

adjudged criminal findings to pursue their own remedies

against Trump and others, remedies will be delayed. The

interplay between State and US crime, if any, cannot

be explored until an indictment is filed. E.g., 18 U.S.C.

§§659-660.

VI. ENFORCEMENT IS NOT AN ISSUE

A deep issue lurks. If a US Court issues an order

against Trump, can the order be enforced? Some believe

the judicial function involves, at its most basic, declaring

the law. Compliance and enforcement are two further

aspects. Compare Glidden Co. v. Zdanok, 370 U.S. 530,

568-571 (1962) (Harlan, Brennan, Stewart, concurring);

Texas v. New Mexico, 482 U.S. 124, 131 (1987); and Virginia

v. West Virginia, 246 U.S. 565 (1918); with Mississippi v.

Johnson, 71 U.S. 475, 499 (1866).

Unlike United States v. Nixon, 418 U.S. 683 (1974), the

records are in the possession of a third party, Mazars USA

LLP. Mazars USA LLP agreed to comply with an order.

Trump, the plaintiff, sought the aid of a US Court.

Trump, in Complaint and Amended Complaint ¶8, sought

a declaratory judgment under 28 U.S.C. §2201. Trump

also sought an injunction. He who seeks Equity must be

prepared to do Equity. In Mississippi v Johnson, 71 U.S.

475 (1866), the President was defendant.

Whether a US Court’s order is enforceable against

Trump is not an issue here.

23

CONCLUSION

The Constitution created checks and balances between

the 3 US branches of government. It also created checks

and balances between the US and the States.

In the compound republic of America, the

power surrendered by the people is first divided

between two distinct governments, and then

the portion allotted to each subdivided among

distinct and separate departments. Hence

a double security arises to the rights of the

people, the different governments will control

each other, at the same time that each will be

controlled by itself.

Madison, Federalist Papers No. 51

This Court recognizes the States’ role in checks and

balances. “A healthy balance of power between the States

and the federal government [reduces] the risk of tyranny

and abuse from either front”. Murphy v. NCAA, 138 S.

Ct. 1461, 1477 (2018).

A State justice system’s independence is a bulwark

against abuse.

The DA is a State officer. The President does not

appoint and the US Senate does not confirm the DA. The

DA, not the US Attorney, investigates State crimes. The

DA, not the US Attorney, empanels and presents evidence

of State crimes to a State grand jury.

24

The President has no control over a State’s investigation

of a purely State crime.

The President does not appoint and the Senate does

not confirm a State judge. The President (and Congress)

cannot reduce or increase a State judge’s salary to

punish or reward. The US House cannot impeach and

the US Senate cannot try a State judge. A State judge is

independent of the President and Congress.

The President cannot unilaterally suspend State

enforcement of, or dispense with State prosecution of,

State criminal laws.

If a New York grand jury indicts, the DA, not the US

Attorney, prosecutes an accused for a New York crime

before a State jury or a State judge. The State judge

imposes sentence.

The President has no control over a State’s prosecution

of a purely State crime.

The President has no temporary immunity from a

State investigation of a State crime arising out of his

personal conduct before he was President. His prior

conduct is not absolved by the Presidential oath.

If a President is indicted for a purely State crime, he

can assert as a defense the excuse that he was authorized

by the Constitution or US law. The issue will be tried by

the United States District Court.

If Trump’s appeal were granted, it would upset

this “healthy balance between the States and federal

25

government.” The President’s invoking temporary

immunity could block State prosecution of State crimes

committed by the President’s associates before the

President took office.

The District Attorney for New York County should

therefore be allowed to proceed with his investigation

pursuant to a duly authorized grand jury subpoena issued

to Mazars USA LLP.

Respectfully submitted,

Eugene H. Goldberg

Counsel of Record

686 Harrison Avenue

East Meadow, New York 11554

(516) 695-2035

eman352@optonline.net

Counsel for Amicus Curiae

March 4, 2020

APPENDIX

1a

AppendixAppendix

— statutes and

other regulations

NIGERIA CONSTITUTION (1999) §308

(1) Notwithstanding anything to the contrary in this

Constitution, but subject to subsection (2) of this section

- (a) no civil or criminal proceedings shall be instituted or

continued against a person to whom this section applies

during his period of office; (b) a person to whom this

section applies shall not be arrested or imprisoned during

that period either in pursuance of the process of any court

or otherwise; and (c) no process of any court requiring

or compelling the appearance of a person to whom this

section applies, shall be applied for or issued: Provided

that in ascertaining whether any period of limitation has

expired for the purposes of any proceedings against a

person to whom this section applies, no account shall be

taken of his period of office.

(2) The provisions of subsection (1) of this section shall not

apply to civil proceedings against a person to whom this

section applies in his official capacity or to civil or criminal

proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office

of President or Vice-President, Governor or Deputy

Governor; and the reference in this section to “period of

office” is a reference to the period during which the person

holding such office is required to perform the functions

of the office.

2a

Appendix

41 CFR § 102–34.235 Am I bound by State and local

traffic laws?

Yes. You must obey all motor vehicle traffic laws of the

State and local jurisdiction, except when the duties of your

position require otherwise. You are personally responsible

if you violate State or local traffic laws. If you are fined

or otherwise penalized for an offense you commit while

performing your official duties, but which was not required

as part of your official duties, payment is your personal

responsibility.

41 CFR § 102–34.245 Who pays for parking fines?

If you are fined for a parking violation while operating a

Government motor vehicle, you are responsible for paying

the fine and will not be reimbursed.