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.