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 briefMar 4, 2020

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No. 19-635

IN THE

Supreme Court of the United States

d

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 APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE NEW YORK CIVIL

LIBERTIES UNION, IN SUPPORT OF RESPONDENTS

Samuel Shapiro

EMERY CELLI BRINCKERHOFF

& ABADY LLP

600 Fifth Avenue, 10th Floor

New York, NY 10020

Arthur Eisenberg

Christopher Dunn

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

(202) 675-2330

dcole@aclu.org

Steven R. Shapiro

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI ............................................... 1

STATEMENT OF THE CASE.................................... 1

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT ............................................................... 6

I.

II.

THIS COURT’S WELL-SETTLED

PRECEDENT DOES NOT SUPPORT

THE PRESIDENT’S CLAIM TO ABSOLUTE

IMMUNITY ......................................................... 6

A.

No Person, Including the President,

Is Above the Law ........................................ 8

B.

The Absolute Immunity That the President

Seeks Goes Beyond Anything That This

Court Has Previously Recognized ............ 10

THE PRESIDENT HAS NOT MADE ANY

PARTICULARIZED SHOWING TO JUSTIFY

IMMUNIZING HIS PERSONAL RECORDS

FROM THE MAZARS SUBPOENA................. 19

A.

Whatever Immunity the President May

Have From Criminal Prosecution Does

Not Warrant the Relief He Seeks Here ... 20

B.

The Mazars Subpoena Imposes No Burden

On the President’s Constitutional Duties,

and Certainly None That Is Sufficient

to Support the Absolute Immunity He

Claims ....................................................... 23

i

C.

The President Is Not Immune from the

Grand Jury Subpoena Because It Was

Issued by a New York Grand Jury ........... 28

CONCLUSION.......................................................... 32

ii

TABLE OF AUTHORITIES

CASES

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .......... 16

Burns v. Reed, 500 U.S. 478 (1991) .......................... 16

Clinton v. Jones, 520 U.S. 681 (1997) ............... passim

Davis v. Passman, 442 U.S. 228 (1979) ................... 15

Dennis v. Sparks, 449 U.S. 24 (1980) ....................... 22

Doubles Oil Co. of Ca. v. Petrol Stops Nw.,

441 U.S. 211 (1979) ............................................... 26

Ex Parte Virginia, 100 U.S. 339 (1880) .................... 14

Ferri v. Ackerman, 444 U.S. 193 (1979) ................... 16

Forrester v. White, 484 U.S. 219 (1988) ............. 14, 15

Imbler v. Pachtman, 424 U.S. 409 (1976) ................ 17

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ......................... 28, 29

Missouri v. Holland, 252 U.S. 416 (1920) ................ 28

Nixon v. Fitzgerald, 457 U.S. 731 (1982) .......... passim

Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) .. 10, 23

Pierson v. Ray, 386 U.S. 547 (1967) ......................... 16

Stump v. Sparkman, 435 U.S. 349 (1978) ............... 16

Tenney v. Brandhove, 341 U.S. 367 (1951) .............. 15

Trump v. Vance,

395 F. Supp. 3d 283 (S.D.N.Y. 2019) ...................... 2

Trump v. Vance, 941 F.3d 631 (2d Cir. 2019) ... passim

United States v. Burr,

25 Fed. Cas. 187 (C.C.D. Va. 1807) ..... 12, 13, 18, 24

iii

United States v. Burr, 25 Fed. Cas. 30 (C.C.D. Va

1807) ....................................................................... 11

United States v. Lee, 106 U.S. 196 (1882) .................. 8

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

Younger v. Harris, 401 U.S. 37 (1971) ....................... 2

CONSTITUTION

U.S. Const. art II, § 3 .................................................. 3

OTHER AUTHORITIES

3 Joseph Story, Commentaries on the Constitution of

the United States, § 1563 (1st ed. 1833) ............... 21

Anne E. Marimow & Jonathan O’Connell, In Court

Hearing, Trump Lawyer Argues A Sitting President

Would Be Immune From Prosecution Even If He

Were To Shoot Someone,

Wash, Post (Oct. 23, 2019) ...................................... 9

Brief for Petitioner, Clinton v. Jones, 520 U.S. 681

(1997) (No. 95-1853), 1996 WL 448096................. 30

Jan Ransom, E. Jean Carroll, Who Accused Trump of

Rape, Sues Him for Defamation,

N.Y. Times (Nov. 4, 2019) ..................................... 27

Katie Reilly, Donald Trump Says He “Could Shoot

Somebody” and Not Lose Voters,

Time (Jan. 23, 2016) ................................................ 9

Oral Argument, Trump v. Vance, 941 F.3d 631 (2019)

(No. 19-3204) ............................................................ 9

Randall D. Moss, Ass’t Att’y Gen., A Sitting

President’s Amenability to Indictment and

Criminal Prosecution, 24 O.L.C. Op. 222

(Oct. 16, 2000) .................................................. 21, 22

iv

Raoul Berger, The President, Congress, and the

Courts, 83 Yale L.J. 1111 (1974) ........................... 12

Robert G. Dixon, Jr., Ass’t Att’y Gen., O.L.C., Re:

Amenability of the President, Vice-President, and

Other Civil Officers for Federal Criminal

Prosecution While in Office (Sept. 24, 1973) ... 21, 22

Sharon LaFraniere, Benjamin Weiser & Maggie

Haberman, Prosecutors Say Trump Directed Illegal

Payments During Campaign,

N.Y. Times (Dec. 7, 2018) ..................................... 27

T. Carpenter, The Trial of Colonel Aaron Burr

(1807) ..................................................................... 12

v

INTEREST OF AMICI1

The American Civil Liberties Union (ACLU) is

a nationwide, nonprofit, nonpartisan organization

with nearly 2 million members and supporters

dedicated to the principles of liberty and equality

embodied in the Constitution and our nation’s civil

rights laws. The New York Civil Liberties Union

(NYCLU) is a statewide affiliate of the national

ACLU.

This case raises a fundamental question under

the rule of law: Whether the President is entitled to

absolute immunity from a grand jury subpoena

directed to his accountants for his personal financial

records, when those records are unrelated to any

official duties of the President but are directly

relevant to the grand jury’s investigation.

Founded in 1920, the ACLU has long taken

the position that no person is above the law,

including the President, and has participated in all of

the Court’s most important cases on presidential

immunity. See Clinton v. Jones, 520 U.S. 681 (1997);

Nixon v. Fitzgerald, 457 U.S. 731 (1982); United

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

STATEMENT OF THE CASE

This case follows the issuance of two

subpoenas duces tecum by the Manhattan District

Attorney in August 2019 as part of an ongoing grand

jury investigation. The first subpoena sought

1 The parties have submitted blanket letters of consent to the

filing of amicus curiae briefs. No counsel for any party has

authored this brief in whole or in part, and no party or its

counsel has made a monetary contribution intended to fund the

preparation or submission of this brief.

1

“documents and communications” from the Trump

Organization related to the alleged payment of “hush

money” to two women. The second subpoena was

served on Mazars USA, an accounting firm that

worked for the President and his business entities

(the “Mazars subpoena”), and sought a variety of

financial records, including “tax returns and related

schedules, in draft, as filed, and amended form.”

See generally Trump v. Vance, 941 F.3d 631, 635 n.5

(2d Cir. 2019). One month later, the President filed

this action in federal district court asserting a broad

presidential immunity from state judicial process.

The complaint sought a declaratory judgment that

the Mazars subpoena is “invalid and unenforceable”

while the President is in office, and a permanent

injunction staying the subpoena for the remainder of

the President’s term. Id. at 636.2

Citing Younger v. Harris, 401 U.S. 37 (1971),

the district court dismissed the complaint on

abstention grounds, noting the pendency of state

grand jury proceedings. Trump v. Vance, 395 F.

Supp. 3d 283 (S.D.N.Y. 2019). The Second Circuit

reversed that ruling. The panel unanimously noted

that Younger abstention rests on principles of comity

and that “comity is a two-way street.” Trump, 941

F.3d at 638. The court then concluded, on balance,

that abstention was inappropriate when “a county

prosecutor, however competent, has opened a

criminal investigation that involves the sitting

2 After initially turning over some documents to the grand jury,

the Trump Organization has likewise declined to produce any of

the President’s personal tax records in response to the subpoena

it received. The President has nonetheless sought relief only

from the Mazars subpoena in this case. Id. at 635.

2

President, and the President has invoked federal

jurisdiction.” Id.3

On the merits, the Second Circuit found the

President’s claim of absolute immunity unsupported

by history or reason. Rejecting the President’s effort

to distinguish United States v. Nixon, 418 U.S. 683

(1974), “[t]he most relevant precedent for present

purposes,” the court wrote:

The President has not persuasively

explained why, if executive privilege did

not preclude enforcement of the

subpoena issued in Nixon, the Mazars

subpoena must be enjoined despite

seeking no privileged information and

having no relation to the President’s

performance of his official duties.

Trump, 941 F.3d at 640-41.

Like other courts to consider issues of

presidential immunity, the Second Circuit accepted

as given the President’s unique role in the

constitutional order. But again, it noted, the

President has failed to explain “why any burden or

distraction the third-party subpoena causes would

rise to the level of interfering with the duty to

‘faithfully execute[]’ the laws,” U.S. Const. art II, § 3,

or otherwise subordinate federal law in favor of state

process.” Id. at 643.

The court ended its opinion by emphasizing

the narrowness of the issue before it:

This appeal does not require us to

decide whether the President is immune

3 That determination has not been questioned in this Court.

3

from indictment and prosecution while

in office, nor to consider whether the

President may lawfully be ordered to

produce documents for use in a state

criminal proceeding. We accordingly do

not address those issues. The only

question before us is whether a state

may lawfully demand production by a

third party of the President’s personal

financial records for use in a grand jury

investigation while the President is in

office.

Id. at 646. On that narrow question, the

court’s unequivocal answer was yes.

SUMMARY OF ARGUMENT

The President’s resistance to the Mazars

subpoena cannot overcome centuries of this Court’s

precedent. This is a narrow case involving a state

grand jury subpoena issued to the President’s

accounting firm seeking the President’s personal

records, which are relevant to a criminal

investigation targeting third-parties and, possibly,

the President. The President asks this Court to

insulate his personal records from discovery by

recognizing a nearly boundless version of

presidential immunity that would allow a sitting

President to refuse to provide relevant evidence in a

criminal investigation and that would immunize not

only a President’s official conduct, but his purely

personal conduct as well. The Court has never

interpreted presidential immunity so expansively.

To the contrary, the Court has repeatedly limited

presidential immunity in ways that are inconsistent

with the President’s position in this case.

4

The Court has repeatedly reaffirmed the basic

principal that no person—not even the President—is

above the law. This guiding principle led Chief

Justice Marshall to reject President Jefferson’s

resistance to a subpoena duces tecum in connection

with the prosecution of Aaron Burr. It led the Court

unanimously to reject President Nixon’s attempt to

shield his official communications from a subpoena

that was issued in connection with a criminal

investigation arising from the Watergate scandal.

And it caused the Court, again unanimously, to reject

President Clinton’s effort to defer while in office a

civil proceeding filed against him for conduct outside

of his official duties. Many sitting Presidents have

provided evidence in criminal proceedings, both

voluntarily and in response to subpoena or court

order.

In the rare circumstances in which the Court

has recognized presidential immunity, it has engaged

in a functional balancing of interests, weighing

litigants’ interest in fair trials against the public’s

interest in ensuring government officials are free to

exercise their public duties. This is consistent with

the approach the Court has taken in immunity cases

involving other government officials, such as judges,

legislators, and prosecutors. Because the Court’s

immunity analysis considers only the chilling effect

on a government actor’s official duties, the Court has

never once found that a sitting President, or any

other government official, enjoys immunity with

respect to conduct that is beyond the scope of his

official duties.

The President offers no compelling reason to

depart from this precedent and history. His claimed

immunity from prosecution has no bearing here—he

5

has not been arrested, indicted, or imprisoned. The

sole issue is whether his accounting firm may be

compelled to turn over his personal records. His

conclusory assertions about the burdens the Mazars

subpoena will place on him—none of which he

identifies with any particularity—are insufficient to

justify granting him immunity, as the Court made

clear when it rejected President Nixon’s similarly

“generalized” assertions of burden. And because this

case involves only personal records, there is no basis

for imposing a higher standard of need.

Finally, it is immaterial that the Mazars

subpoena was issued by a state grand jury, rather

than a federal grand jury. The Supremacy Clause

does not bar a state from seeking a President’s

personal records if they are relevant to a state

criminal investigation. The President’s fears about

rogue prosecutors are purely speculative and, as the

Court recognized in Clinton v. Jones, insufficient to

justify granting him immunity.

The decision of the United States Court of

Appeals for the Second Circuit should therefore be

affirmed.

ARGUMENT

I.

THIS COURT’S WELL-SETTLED

PRECEDENT DOES NOT SUPPORT THE

PRESIDENT’S CLAIM TO ABSOLUTE

IMMUNITY.

This Court has carefully defined the scope and

limits of presidential immunity in a series of cases

dating back more than two hundred years. The

expansive view of presidential immunity that

6

President Trump now asserts is unsupported by this

Court’s controlling precedent.

As the Second Circuit noted, this case does not

involve the indictment and prosecution of the

President; it does not involve a civil proceeding

against the President; it does not involve official acts

by the President; it does not even involve a subpoena

directed to the President. The only issue presented is

whether evidence relating to the President’s private

affairs can be discovered in connection with a

criminal investigation by a state grand jury. It is

unknown at this point whether the President is a

target of that grand jury and what that might mean

while the President remains in office. What is

known is that the grand jury is investigating possible

criminal activity by other individuals and entities.4

Given that fact, the President does not

challenge the grand jury investigation as such, nor

could he. He does not and cannot claim that other

potential targets of the grand jury are immune from

indictment and prosecution because of their personal

association with him. And he does not claim that the

financial records maintained by his accountants are

irrelevant to the grand jury’s investigation. Instead,

he claims that the grand jury may not obtain those

records simply because he is President. Advancing a

boundless view of absolute presidential immunity, he

contends that nothing about his private life is subject

to state judicial process while he is in office,

regardless of the purpose for which the evidence will

4 “The parties agree for purposes of this case that the grand jury

is investigating whether several individuals and entities have

committed violations of New York law.” Trump, 941 F.3d at

635.

7

be used and against whom. The Second Circuit

properly rejected this unprecedented claim.

A.

No Person, Including the President,

Is Above the Law.

This Court has repeatedly held that no person

is above the law. “All the officers of the government,

from the highest to the lowest, are creatures of the

law and are bound to obey it.” United States v. Lee,

106 U.S. 196, 220 (1882).

The President nonetheless argues that his

“unparalleled responsibilities” grant him absolute

immunity from any “state criminal process while in

office,” Pet. Br. at 16, 20, even where that “process”

consists only of a subpoena for records directed to his

accountant. According to the President, this claimed

immunity is a function of his office and its “unique

status” within our constitutional framework. Id. at

25. It therefore applies categorically in his view. The

needs of the criminal justice system are irrelevant

and the burdens on the President can simply be

presumed to prevail in all cases, without any need for

a particularized showing.

Under the President’s theory, it does not

matter that the records that were subpoenaed

involve his personal finances rather than his

presidential duties. It does not matter that the

subpoena was served on a third-party custodian

rather than the President himself. And it does not

matter that the grand jury that issued the subpoena

is investigating others beside the President. Indeed,

on President Trump’s theory, it would not matter

how grave the crimes being investigated are, or how

essential his evidence is to bringing the perpetrators

to justice. None of that matters because the

8

President’s proposed rule does not contemplate any

balancing of interests. The President claims he can

ignore, and direct his agents to ignore, any and all

efforts by a state grand jury to gather evidence

relevant to a presumptively legitimate criminal

investigation regardless of facts or circumstances,

simply because he is President.

The implications of that position are striking.

During the 2016 campaign, the President famously

predicted that he would not lose a single vote if

he shot someone in the middle of Fifth Avenue.

See Katie Reilly, Donald Trump Says He “Could

Shoot Somebody” and Not Lose Voters, Time (Jan.

23, 2016), https://time.com/4191598/donald-trumpsays-he-could-shoot-somebody-and-not-lose-voters/.

That observation prompted a member of the Second

Circuit panel below to ask whether the President

could be prosecuted in office for a murder committed

before assuming office.

The President’s lawyer

responded that he could not be. See Anne E.

Marimow & Jonathan O’Connell, In Court Hearing,

Trump Lawyer Argues A Sitting President Would

Be Immune From Prosecution Even If He Were

To Shoot Someone, Wash, Post (Oct. 23, 2019),

https://www.washingtonpost.com/local/legal-issues/

ny-based-appeals-court-to-decide-whethermanhattan-da-can-get-trumps-tax-at-returns/2019/

10/22/8c491346-ef6e-11e9-8693f487e46784aa_story.

html.5

The President’s theory in this case goes far

beyond his claimed immunity from prosecution.

See also Oral Argument, Trump v. Vance, 941 F.3d 631

(No. 19-3204), http://www.ca2.uscourts.gov/decisions/isysquery/

452596aa-90cc-4a01-97ed-b3ceeedd66f8/197/doc/19-3204.mp3.

5

9

Even if evidence of his personal records were

necessary to bring another person to justice for

murder, the President insists that his asserted

absolute immunity would prevail. But see United

States v. Nixon, 418 U.S. at 713 (rejecting claim of

executive privilege where evidence of White House

deliberations was relevant to a criminal trial); Nixon

v. Sirica, 487 F.2d 700, 711 (D.C. Cir. 1973) (holding

that “the President is not above the law’s

commands”).

Donald Trump’s current status as President of

the United States does not per se place him beyond

the law’s reach. The law has said otherwise for more

than two centuries.

B.

The Absolute Immunity That the

President Seeks Goes Beyond

Anything That This Court Has

Previously Recognized.

Two clear principles emerge from this Court’s

past cases on presidential immunity, and each is

inconsistent with the President’s claims here. First,

the President, like any other citizen, can be required

to produce relevant evidence in a criminal proceeding

subject to appropriate safeguards that acknowledge

the special nature of his office. Second, the doctrine

of presidential immunity is intended to protect the

office of the presidency, not the President himself for

acts taken purely in his personal capacity. Whether

or not immunity is justified in a particular case

depends on a functional analysis. And that means

that the President, like other officials who enjoy

functional immunity, is not entitled to immunity for

acts taken outside the scope of his official duties.

10

Over 200 years ago, Chief Justice Marshall

upheld a subpoena duces tecum to President

Jefferson in connection with the prosecution of Aaron

Burr. United States v. Burr, 25 Fed. Cas. 30 (C.C.D.

Va 1807). Burr, who was then on trial for treason,

sought a letter written to President Jefferson that he

thought would exonerate him by calling into question

the credibility of his principal accuser. Jefferson

resisted, even though he had acknowledged the

existence of the letter in a communication to

Congress.

Marshall began his opinion by noting that only

the king was exempt under common law from the

general requirement binding on everyone else to

provide relevant evidence in a judicial proceeding

pursuant to court order. Writing a mere three

decades after the Declaration of Independence,

Marshall explained why a rule applicable to the king

did not apply to the President. In particular, he

noted, the English maxim that the “king can do no

wrong” was inconsistent with the founding principles

of the American republic. Id. at 34.

George Hay, the United States Attorney

prosecuting the Burr case, agreed:

I never had the idea of clothing the

President . . . with these attributes of

divinity . . . . That high officer is but a

man; he is but a citizen; and, if he

knows anything in any case civil or

criminal, which might affect the life,

liberty, or property of his fellow citizens

. . . it is his duty to . . . go before a

Court, and declare what he knows.

11

T. Carpenter, The Trial of Colonel Aaron Burr 90-91

(1807), cited in Raoul Berger, The President,

Congress, and the Courts, 83 Yale L.J. 1111, 1111 n.1

(1974). Even counsel for President Jefferson in the

Burr case admitted: “We do not think that the

President is exalted above legal process . . . if the

President possesses information of any nature which

might tend to serve the cause of Aaron Burr, a

subpoena should be issued to him, notwithstanding

his elevated position.” Id. at 75.

Summarizing this legal consensus in a second

opinion written several months later (when Burr was

facing misdemeanor charges), Chief Justice Marshall

wrote: “That the president of the United States may

be subpoenaed, and examined as a witness, and

required to produce any paper in his possession, is

not controverted.” United States v. Burr, 25 Fed. Cas.

187, 191 (C.C.D. Va. 1807).

Closer to our own time but in an equally

fraught

political

environment,

the

Court

unanimously rejected President Nixon’s claim of

absolute privilege in response to a subpoena duces

tecum from the Watergate Special Prosecutor

seeking, inter alia, designated recordings of Oval

Office conversations that were deemed material to an

ongoing grand jury investigation. United States v.

Nixon, 418 U.S. 683. As in Burr, the Court

acknowledged the President’s ability to assert

particularized privilege claims subject to judicial

review if he chose to do so. But reaffirming that “the

public . . . has a right to everyman’s evidence,” id. at

709 (internal citations omitted), the Court held that

“neither the doctrine of separation of powers, nor the

need for confidentiality of high-level communications,

without more, can sustain an absolute, unqualified

12

Presidential privilege of immunity from judicial

process under all circumstances,” id. at 706.6

Indeed, sitting Presidents have provided

evidence in criminal proceedings throughout

American history, both voluntarily and in response to

court order. As the Court has previously chronicled:

“President

Monroe

responded

to

written

interrogatories . . . President Ford complied with an

order to give a deposition in a criminal trial . . .

President Clinton [] twice [gave] videotaped

testimony in criminal proceedings . . . and President

Grant gave a lengthy deposition in a criminal case.”

Clinton v. Jones, 520 U.S. 681, 704-05 (1997).

A President’s duty to respond to a subpoena in

connection with a pending criminal proceeding

against a third-party is thus firmly established as a

matter of both principle and practice. Here, of course,

the Mazars subpoena was not directed to the

President—it was directed to his accountants. If the

President can be subpoenaed directly to provide

evidence in a criminal proceeding, surely his

accountants may be as well.

6 The President contends that Nixon is distinguishable because

it involved a “claim of privilege” and did not address the “claim

of presidential immunity” raised here. Pet. Br. at 43-44. That

President Nixon failed to raise a “claim of presidential

immunity” that had been definitively rejected more than a

century and a half earlier by Chief Justice Marshall’s opinion in

Burr hardly bolsters President Trump’s legal position.

President Nixon advanced a claim grounded in an executive

privilege doctrine that this Court has recognized. See United

States v. Nixon, 418 U.S. at 703-07. President Trump’s

immunity claim is tethered to nothing, because there is no basis

even to assert executive privilege for private records having

nothing to do with the President’s official duties.

13

In Nixon v. Fitzgerald, 457 U.S. 731 (1982),

this Court first recognized the President’s absolute

immunity from civil damages arising from his official

acts in a suit brought against then-former President

Nixon by a whistleblower who claimed he had been

unconstitutionally fired. In Clinton, 520 U.S. at 695,

the Court held that the broad immunity conferred by

Fitzgerald nonetheless had its limits, and those

limits are defined by the scope of the President’s

official duties. The Court, therefore, unanimously

rejected President Clinton’s contention that he

should be immune from civil proceedings for actions

taken in his personal capacity as long as he was in

office.

It is true that Fitzgerald and Clinton v. Jones

were both civil cases that did not involve criminal

investigations, but the Court’s approach to immunity

has not materially differed between the civil and

criminal contexts. The substantial weight that the

President places on this distinction is thus

unwarranted. For example, in Ex Parte Virginia, 100

U.S. 339 (1880), the Court considered a claim of

absolute judicial immunity raised by a county judge

who had been indicted for racial discrimination in

jury selection. In rejecting that claim, the Court

focused on the fact that the act of jury selection was

not quintessentially judicial in nature. In later

describing that decision, the Court observed that “the

reach of the . . . analysis [in Ex Parte Virginia] was

not in any obvious way confined” by the fact that it

involved a criminal proceeding rather than a civil

suit. Forrester v. White, 484 U.S. 219, 228 (1988).

Any grant of immunity necessarily involves a

balancing of interests. On the one hand, there is the

litigant’s interest in a fair trial—whether it is a civil

14

plaintiff, a criminal defendant, or a public

prosecutor—in which relevant evidence is not

unnecessarily withheld. On the other hand, there is

the public’s interest in ensuring that government

officials are not unduly chilled in the exercise of their

public duties by the fear of civil liability or criminal

prosecution. In striking that balance, the Court has

been careful to caution that “immunities are

grounded in the nature of the function performed,

not the identity of the actor who performed it.”

Clinton, 520 U.S. at 695 (internal quotation marks

omitted).

The Court’s approach to presidential immunity

in this regard is not fundamentally different than its

approach to other types of official immunity. Thus,

the Court’s decision in Nixon v. Fitzgerald referenced

the absolute immunity previously granted to

legislators and judges, see 457 U.S. at 751-52, and

the limits on those official immunities are instructive

in understanding the limits that the Court has

placed on presidential immunity.

Legislators are entitled to absolute immunity

for their “legislative acts,” but that immunity does

not extend to non-legislative acts. See Davis v.

Passman, 442 U.S. 228, 246 (1979) (Congressman’s

termination of employee regarded as administrative,

not legislative act under the Speech and Debate

Clause); Tenney v. Brandhove, 341 U.S. 367, 376

(1951) (legislators are entitled to absolute immunity

when “acting in the sphere of legitimate legislative

activity”).

Judges are entitled to absolute immunity for

official acts within their statutory jurisdiction, but

not for non-judicial acts. Forrester, 484 U.S. at 229

15

(judge was acting in an administrative capacity, and

thus not entitled to absolute judicial immunity, when

he demoted and dismissed a parole officer); Stump v.

Sparkman, 435 U.S. 349, 362 (1978) (“the factors

determining whether an act by a judge is a ‘judicial’

one relate to the nature of the act itself”); Pierson v.

Ray, 386 U.S. 547, 554 (1967) (absolute immunity for

judges applies “for acts committed within the judicial

jurisdiction”).

Prosecutors likewise enjoy absolute immunity

for activities that are intimately associated with the

judicial phase of criminal process, but not for

investigative activities, and, a fortiori, not for acts in

their personal capacity. See Buckley v. Fitzsimmons,

509 U.S. 259, 277 (1993) (prosecutors not entitled to

absolute immunity when performing investigative

functions); Burns v. Reed, 500 U.S. 478, 496 (1991)

(prosecutor’s absolute immunity does not apply when

giving advice to the police).

“The point of immunity for such officials is to

forestall an atmosphere of intimidation that would

conflict with their resolve to perform their designated

functions in a principled fashion.” Clinton, 520 U.S.

at 693 (quoting Ferri v. Ackerman, 444 U.S. 193, 202

(1979)). So, too, this Court has cited the risk that a

President might become “unduly cautious in the

discharge of his official duties,” Nixon v. Fitzgerald,

457 U.S. at 752 n.32, as the “central concern,”

underpinning a President’s absolute immunity from

civil damages for official acts, Clinton, 520 U.S. at

693-94.

Because the President occupies a unique

position in our constitutional scheme, the Court’s

decision in Nixon v. Fitzgerald extended the

16

President’s absolute immunity to acts that fall

“within the outer perimeter of his official

responsibility.” 457 U.S. at 756. The Court has also

recognized, however, that even those expansive

boundaries have meaningful limits. Id. When called

on to define those limits, the Court applied the same

functional approach to analyzing the President’s

claim of absolute immunity in Clinton v. Jones that it

had previously applied when analyzing the scope of

other absolute immunities. See, e.g., Imbler v.

Pachtman, 424 U.S. 409, 423 (1976). As with

legislators, judges, and prosecutors, the Court ruled

that the President’s immunity is tied to his official

acts, and does not reach conduct in his personal

capacity. Clinton, 520 U.S. at 694.

While there may be difficult cases at the

margins, this case is not one of them. The Court has

never once “suggested that the President, or any

other official, has an immunity that extends beyond

the scope of any action taken in an official capacity.”

Clinton, 520 U.S. at 694. Here, as in Clinton v. Jones,

there can be no credible claim that the records

subpoenaed from the President’s accountant have

anything to do with his official duties. The complaint

in Clinton v. Jones rested on allegations of sexual

harassment by President Clinton before he was

President. The grand jury subpoena in this case

seeks only President Trump’s personal financial

records unrelated to any official activities. Indeed, it

is far from clear that a functional analysis is even

necessary under these circumstances. Clinton, 520

U.S. at 694 (“when defining the scope of an immunity

for acts clearly taken within an official capacity, we

have applied a functional approach” (emphasis in

original)).

17

Likewise, there is no basis for imposing a

heightened standard of need for the personal records

sought by the Mazars subpoena. In United States v.

Nixon, the Court suggested that official presidential

records are presumptively protected from disclosure

by executive privilege that may be overcome only

upon a showing that they are “essential to the justice

of the (pending criminal) case.” 418 U.S. at 713

(citing United States v. Burr, 25 Fed. Cas. at 192).

Both the President and the United States, as amicus

curiae, urge the Court to require such a showing in

this case. But there is no basis for requiring a

heightened showing where, as here, the materials

sought are beyond the scope of the President’s official

duties and therefore neither privileged nor immune

from disclosure. See Clinton, 520 U.S. at 694.

In Nixon, the need for a heightened showing

was justified by “the necessity for protection of the

public interest in candid, objective, and even blunt or

harsh opinions in Presidential decisionmaking.”

United States v. Nixon, 418 U.S. at 708. Those

concerns are not present where the materials sought

relate solely to personal activities. Indeed, the Court

did not require any heightened showing to defeat

President Clinton’s claimed immunity from a lawsuit

involving his personal conduct. Instead, the fact that

President Clinton was being sued for acts taken

beyond the scope of his official duties ended the

analysis. There was no need for a more vigorous

standard because there was no immunity or privilege

to overcome.

The United States argues that “the threat of

debilitating the President in office requires a

heightened showing of need.” U.S. Br. at 28. But the

Court has specifically rejected the notion that such

18

an amorphous, generalized assertion is sufficient to

invoke executive privilege, even where, unlike here,

the records concerned Oval Office deliberative

communications. United States v. Nixon, 418 U.S. at

713 (“We conclude that when the ground for

asserting privilege as to subpoenaed materials

sought for use in a criminal trial is based only on the

generalized interest in confidentiality, it cannot

prevail over the fundamental demands of due process

of law in the fair administration of criminal justice.”).

At the very least, the President has the burden of

showing that the absolute immunity he seeks—and

the heightened standard he asks the Court to

apply—is necessary to protect the Office of the

Presidency and not his personal self-interest.

President Clinton did not meet that burden in

Clinton v. Jones, and President Trump has not met it

here for reasons set forth more fully below.

II.

THE PRESIDENT HAS NOT MADE ANY

PARTICULARIZED SHOWING TO

JUSTIFY IMMUNIZING HIS PERSONAL

RECORDS FROM THE MAZARS

SUBPOENA.

Generalized assertions about the President’s

unique constitutional status and responsibilities are

insufficient to justify the absolute immunity

President Trump seeks. Yet, that is the sum and

substance of the President’s claim on this record.

Were that enough, the Court would not have reached

the unanimous outcomes it did in Clinton v. Jones

and United States v. Nixon.

The

President

offers

three

principal

arguments in support of his claimed immunity.

First, he maintains that a President’s purported

19

immunity from indictment and prosecution while in

office—an immunity question that this Court has

never addressed—necessarily means that his

personal records can never be subpoenaed from a

third-party custodian as part of a grand jury

investigation into other individuals and entities if

there is any possibility that the investigation might

also involve the President at some future

undetermined point in some future undetermined

way. Next, he contends that the Mazars subpoena

will impermissibly interfere with his presidential

duties. And finally, he argues that the Mazars

subpoena is unenforceable because it was issued by a

state grand jury.

None of these arguments is

persuasive.

A.

Whatever Immunity the President

May Have From Criminal

Prosecution Does Not Warrant the

Relief He Seeks Here.

The President’s legal argument begins with

the proposition that a sitting President cannot be

criminally prosecuted. Pet Br. at 19-23. Regardless

of the validity of that proposition, this case does not

involve a criminal prosecution and the arguments for

recognizing a President’s immunity from prosecution

do not apply here, where the only issue is whether a

grand jury may obtain a President’s relevant

personal records to aid a valid criminal investigation

implicating others.

The President relies on a quote from Joseph

Story, who wrote in his Commentaries on the

Constitution that the President “cannot, therefore, be

liable to arrest, imprisonment, or detention, while he

is in the discharge of his duties.” See 3 Joseph Story,

20

Commentaries on the Constitution of the United

States, § 1563, 418-19 (1st ed. 1833), quoted in Nixon

v. Fitzgerald, 457 U.S. at 749. He also cites two

memos from the Department of Justice’s Office of

Legal Counsel (“OLC”) that similarly assert that a

sitting President is immune from indictment and

trial. See Randall D. Moss, Ass’t Att’y Gen., A

Sitting President’s Amenability to Indictment and

Criminal Prosecution, 24 O.L.C. Op. 222 (Oct. 16,

2000) (“Moss Memo”); Robert G. Dixon, Jr., Ass’t

Att’y Gen., O.L.C., Re: Amenability of the President,

Vice-President, and Other Civil Officers for Federal

Criminal Prosecution While in Office (Sept. 24, 1973)

(“Dixon Memo”).

Those authorities might be relevant if the

President had been arrested, detained, imprisoned,

indicted, or put on trial. He has not been. This case

involves only a subpoena for documents from a third

party, and nothing more. The difference is

dispositive. Story reasoned that the powers granted

to the President in Article II of the Constitution

“necessarily included the power to perform them,” §

1563, which would be substantially hindered if the

President were arrested, imprisoned or detained

while in office, id. His concern was one of

incapacitation. The OLC memos echo that concern.

See Dixon Memo at 28 (“A necessity to defend a

criminal trial and attend court in connection with it

. . . would interfere with the President’s unique

official duties.”); Moss Memo at 253 (“[A] criminal

prosecution would require the President’s personal

attention and attendance at specific times and

places.”).

In addition, the OLC memos argue that

impeachment is a more appropriate response to

21

allegations of wrongdoing by a sitting President

because the Constitution expressly provides for

impeachment, and because the political judgment to

remove an elected President from office is more

appropriately made by the people’s political

representatives than by a randomly selected criminal

jury. See Dixon Memo at 32; Moss Memo at 258.

None of these concerns is present here. The

Mazars subpoena does not threaten the President

with removal from office and it is not incapacitating.

The President attempts to obscure these critical

distinctions by treating the grand jury subpoena as a

form of criminal prosecution. That tautology breaks

down, however, once removal and incapacitation are

taken out of the equation.

Indeed, the most remarkable thing about the

President’s reliance on the OLC memos is his

disregard of OLC’s most pertinent conclusion.

Seemingly anticipating the issue presented in this

case,

OLC

carefully

distinguished

between

indictment of a sitting President and pre-indictment

investigation when it observed that “a grand jury

could continue to gather evidence throughout the

period of immunity, even passing this task down to

subsequently empaneled grand juries if necessary.”

Moss Memo at 257 n.36.

If that is true with regard to a criminal

investigation of the President, it is even more true

with regard to an investigation of the President’s

associates and business entities, who have no

plausible claim to any immunity. See Dennis v.

Sparks, 449 U.S. 24, 30 (1980) (judicial immunity

does not extend to a judge’s alleged co-conspirators).

The President’s interests are not the only interests at

22

stake here. If there is evidence bearing on the

potential criminal liability of other targets, the grand

jury is entitled to receive it so that, if appropriate,

charges can be filed and tried in a timely fashion

before memories become stale and the statute of

limitation lapses. Equally important, the grand jury’s

deliberations will be necessarily compromised if it is

denied access to potentially exculpatory evidence.

Under either scenario, “[w]ithout access to specific

facts a criminal prosecution may be totally

frustrated.” United States v. Nixon, 418 U.S. at 713.

Article II of the Constitution does not grant

the President unilateral power to shape the course of

judicial proceedings in this manner. “[L]ike every

other citizen, [the President] is under legal duty to

produce relevant, non-privileged evidence when

called upon to do so,” a duty that even President

Nixon recognized in the midst of the Watergate

investigation. Nixon v Sirica, 487 F.2d at 713.

B.

The Mazars Subpoena Imposes No

Burden

On

the

President’s

Constitutional Duties, and Certainly

None That Is Sufficient to Support

the Absolute Immunity He Claims.

The President argues that compliance with the

Mazars subpoena “will inevitably distract, burden,

and stigmatize the President in ways that justify

affording him immunity while he is in office.” Pet. Br.

at 29-30. This Court should reject that conclusory

claim, just as it rejected an equally generalized claim

of absolute privilege in United States v. Nixon:

To read the Art. II powers of the

President as providing an absolute

privilege as against a subpoena

23

essential to enforcement of criminal

statutes on no more than a generalized

claim of the public interest in

confidentiality of nonmilitary and

nondiplomatic discussions would upset

the constitutional balance of “a

workable government” and gravely

impair the role of the courts under Art.

III.

418 U.S. at 708.

Like anyone else whose records have been

subpoenaed, the President has standing to challenge

the Mazars subpoena. See Trump, 941 F.3d at 642

n.15. He can assert that the documents sought are

privileged or that the scope of the subpoena is

unreasonable. The courts can then evaluate those

specific defenses on a case-by-case basis. That is the

process prescribed in Burr, Nixon, and Clinton v.

Jones. But it is not the process that the President

has pursued in this case, which begins and ends with

his claim of absolute immunity.7

7 The President highlights this Court’s statement that “[i]n no

case of this kind would a court be required to proceed against

the president as against an ordinary individual.” United States

v. Nixon, 418 U.S. at 715 (quoting United States v. Burr, 25 F.

Cas. at 192). Contrary to the President’s suggestion, however,

that statement is not an endorsement of absolute presidential

immunity from criminal process. The Court explained that its

statement “cannot be read to mean in any sense that a

President is above the law, but relates to the singularly unique

role under Art. II of a President’s communications and

activities, related to the performance of duties under that

Article.” Id. The statement thus has no bearing here, since the

materials the Mazars subpoena seeks do not relate to the

performance of the President’s constitutional duties.

24

In considering whether to recognize even a

limited claim of presidential privilege, the courts

must weigh the “inroads of such a privilege on the

fair administration of criminal justice.” United States

v. Nixon, 418 U.S. at 711-12. Some burdens on the

President’s time are an inescapable and tolerable

“byproduct” of any litigation, even for the President.

Clinton, 520 U.S. at 705-06.

Here, the scale tips decidedly against

immunity. The President does not identify any

specific burden imposed by the Mazars subpoena. He

admits that he “would never personally undertake

the laborious task of compiling, indexing, and

producing responsive documents” even if the

subpoena was served on him personally, Pet. Br. at

37, and he will of course have even less responsibility

for his accounting firm’s response. As the Second

Circuit succinctly noted: “The subpoena at issue is

directed not to the President, but to his accountants;

compliance does not require him to do anything.”

Trump, 941 F.3d at 642. He need not respond; he

need not appear; he need not even collect documents.

Nor can the President explain how the

unspecified “distractions and mental burdens,” Pet.

Br. at 38, that purportedly accompany this subpoena

intrude “on the authority and functions of the

Executive Branch,” Nixon v. Fitzgerald, 457 U.S. at

754. The Court has already held that generalized

concerns about the disclosure of official presidential

communications do not sufficiently affect the

President’s authority and functions to warrant

immunity. United States v. Nixon, 418 U.S. at 706.

The Mazars subpoena seeks only personal records. It

does not require exposing any official presidential

documents; it will not reveal any military,

25

diplomatic, or national security secrets; and it will

not chill the President’s ability to speak candidly

with his advisors. The President does not identify a

single aspect of his job that will be affected by the

Mazars subpoena.

The President’s concerns about stigma are

woefully deficient as well. People, corporations, and

governments are routinely compelled to provide

evidence in connection with a criminal investigation.

There is no stigma associated with such compulsion.

Nor is a grand jury subpoena “a public allegation of

wrongdoing,” as the President contends. Pet. Br. at

42. The President has not been accused of any

wrongdoing —he has been asked (through his

accounting firm) to provide evidence that is relevant

to a criminal investigation.

To the extent that there may be stigma

attached to the fact that President’s personal records

are being sought by a criminal grand jury, that fact

is already known. Preventing the grand jury from

seeing the evidence will not make it disappear. And

allowing the grand jury to see his personal records

will not make them public. Grand juries are

shrouded in secrecy precisely “to assure that persons

who are accused but exonerated by the grand jury

will not be held up to public ridicule.” Doubles Oil

Co. of Ca. v. Petrol Stops Nw., 441 U.S. 211, 219

(1979).

In any event, the Constitution does not

guarantee the President freedom from any stigma

that may arise from allegations contained in civil and

criminal filings. See Clinton v. Jones, supra.

President Trump is not the first sitting President to

face the prospect of such litigation-related stigma.

26

President Nixon, for example, was named as an

unindicted

co-conspirator

in

the

Watergate

indictment. United States v. Nixon, 418 U.S. at 687

n.2. Nor is this the first instance in which President

Trump’s connection to a court case has created the

potential of stigma. Federal prosecutors accused

President Trump of directing “illegal payments to

ward off a potential sex scandal that threatened

his chances of winning the White House in 2016,”

as part of a sentencing memo submitted in the case

of Michael Cohen, the President’s former personal

lawyer. Sharon LaFraniere, Benjamin Weiser

& Maggie Haberman, Prosecutors Say Trump

Directed Illegal Payments During Campaign,

N.Y. Times (Dec. 7, 2018), https://www.nytimes.com/

2018/12/07/nyregion/michael-cohen-sentence.html.

And President Trump has been named as a

defendant in an ongoing defamation lawsuit related

to an alleged sexual assault. See Jan Ransom, E.

Jean Carroll, Who Accused Trump of Rape, Sues Him

for Defamation, N.Y. Times (Nov. 4, 2019),

https://www.nytimes.com/2019/11/04/nyregion/jeancarroll-sues-trump.html.

Most important, if documents produced in

response to the subpoena in this case either contain

evidence of criminal behavior by the President or

lead to such evidence, any associated stigma would

be a product of the criminal acts themselves, not the

grand jury’s investigation.

27

C.

The President Is Not Immune from

the Grand Jury Subpoena Because

It Was Issued by a New York Grand

Jury.

Given this Court’s unanimous rejection of

absolute immunity to the production of documents

even when they recorded the President’s official

deliberations in the White House, United States v.

Nixon, supra, the President is ultimately reduced to

arguing that the Supremacy Clause compels a

different result here because the Mazars subpoena

was issued by a state grand jury rather than a

federal grand jury. Pet. Br. at 23-39; see also Brief

for United States as Amicus Curiae. It does not.

The purpose of the Supremacy Clause is to

ensure that state action does not frustrate federal

law. U.S. Const., art VI. Accordingly, under the

Supremacy Clause (and the related preemption

doctrine), states may not adopt policies or practices

that are inconsistent with federal law, interfere with

the enforcement of federal law, or regulate in areas

where the federal government has demonstrated an

intent to occupy the field. See e.g., Missouri v.

Holland, 252 U.S. 416 (1920) (state may not prevent

U.S. officials from enforcing a federal treaty). None

of those concerns are implicated here.

Indeed, the distance between this case and the

proper application of the Supremacy Clause is best

illustrated by the President’s misplaced reliance on

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819). In holding that the Bank of the United States

was not subject to state taxation, Chief Justice

Marshall emphasized that the Bank had been

chartered by federal law, that the adoption of the

28

charter was a proper exercise of the federal

government’s lawmaking power under the Necessary

and Proper Clause, that the power to tax was the

power to destroy, and that the state’s effort to tax the

Bank therefore violated the Supremacy Clause. In

short, McCulloch involved a state attempt to directly

undermine an official act of the United States

government. The same is true of every other

Supremacy Clause case cited by the President, see

Pet. Br. at 24-25, as his own descriptions of those

cases make clear. It is not, however, an even

remotely apt description of the facts in this case,

which involve no interference with any federal

program or law, but only a routine subpoena for

personal records in connection with a presumptively

legitimate state law investigation.

The President’s assertion that the Supremacy

Clause forbids state officials from taking any action

that would impede his ability to fulfill his Article II

responsibilities, either directly or indirectly, is

similarly unpersuasive. First, as the Second Circuit

correctly observed, this third-party subpoena does

not involve any “direct control by a state court over

the President.” Trump, 941 F.3d at 642 (internal

quotations omitted). Second, as explained above, see

supra, pp. 23-27, this third-party subpoena does not

impose any direct burdens on the President that

might prevent him from performing his official

duties.

The President does not even seriously contend

otherwise. Instead, he argues that this subpoena

should be quashed because it will otherwise

encourage other prosecutors in other jurisdictions to

initiate criminal proceedings that begin with

subpoenas but might lead to indictment, and that the

29

cumulative effect of that speculative domino effect

will cripple this and future Presidents absent a

prophylactic grant of absolute immunity. President

Trump is not the first President to raise such dire

warnings about a slippery slope. See Brief for

Petitioner, Clinton v. Jones, 520 U.S. 681 (1997) (No.

95-1853), 1996 WL 448096, at *23 (“if the Court

allows private civil damages litigation to proceed

against a sitting President . . . Presidents likely

would become easily identifiable target[s] for private

civil damages actions in the future. Those seeking

publicity, financial gain or partisan political

advantage would be altogether too willing to use the

judicial system as an instrument to advance their

private agendas at the expense of the public’s

interest in unimpeded constitutional governance.”

(internal quotation marks and citation omitted)

(alteration in original)). But as in Clinton v. Jones,

the President’s “predictive judgment finds little

support in either history or the relatively narrow

compass of the issues raised in this particular case.”

520 U.S. at 702.

The President points out, with apparent

alarm, that there are 2300 local prosecutors across

the nation who are not subject to any centralized

control, ignoring the fact that only a handful of those

prosecutors will have jurisdiction over a President’s

private acts (all that this case involves), even for a

President like this one with extensive business

holdings. Furthermore, President Trump asks this

Court to disregard the presumption of regularity

generally afforded government officials and assume,

as a universal proposition, “that politics [will] infect

state and local decisionmaking,” Pet. Br. at 26,

despite the oath that all prosecutors take to uphold

30

the Constitution. This Court should not indulge that

assumption.

His floodgates argument rests on a single

press release from the New York State Attorney

General, Pet. Br. at 26-27, who did not even issue the

subpoena in this case. It is also undercut by the

President’s acknowledgement that “this case appears

to be the first time a state or local prosecutor . . .

[has] issued a grand jury subpoena for [the] personal

records” of a sitting President. Id. at 28.

Finally, the President’s request for absolute

immunity cannot be justified based on a hypothetical

fear that local courts may be infected by political

bias. The Second Circuit’s discussion of Younger

abstention makes clear that this and future

Presidents will be able to seek appropriate relief

from the federal courts where they can make a

particularized showing of actual harm to the ability

to function as President. That showing has simply

not been made on this record.

In short, President Trump asks for

extraordinary relief here—the right to block a

request for evidence of his personal records, relevant

to a bona fide criminal investigation of others. The

last two times Presidents have asserted anything

even remotely like the immunity the President seeks

here, this Court unanimously rejected the claims,

confirming that Presidents are not above the law.

This Court should do the same.

31

CONCLUSION

The judgment below should be affirmed for the

reasons stated herein.

Respectfully Submitted,

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

(202) 675-2330

dcole@aclu.org

Steven R. Shapiro

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Samuel Shapiro

EMERY CELLI BRINCKERHOFF

& ABADY LLP

600 Fifth Avenue, 10th Floor

New York, NY 10020

Arthur Eisenberg

Christopher Dunn

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Date: March 4, 2020

32

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.

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