Amicus Curiae Brief — Donald J. Trump, Applicant v. New York, et al.

Supreme Court briefJan 9, 2025

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No. 24A666

In the Supreme Court of the United States

PRESIDENT DONALD J. TRUMP,

Applicant,

PEOPLE OF THE STATE OF NEW YORK BY ALVIN L. BRAGG, JR., AND

ACTING JUSTICE JUAN M. MERCHAN, A.J.S.C., OF THE

SUPREME COURT OF NEW YORK COUNTY, NEW YORK,

Respondents.

On Application for Stay of Criminal Proceedings in the

Supreme Court of New York County, New York, Pending the Resolution

of President Trump’s Interlocutory Appeal on Presidential Immunity

BRIEF FOR FORMER ATTORNEY GENERAL EDWIN MEESE III

AND PROFESSOR STEVEN G. CALABRESI AS AMICI CURIAE IN

SUPPORT OF APPLICANT AND GRANTING STAY

JESSICA HART STEINMANN

MICHAEL D. BERRY

RICHARD P. LAWSON

AMERICA FIRST POLICY INSTITUTE

1635 Rogers Road

Fort Worth, Texas 76107

(571) 348-1802

GENE C. SCHAERR

Counsel of Record

H. CHRISTOPHER BARTOLOMUCCI

KENNETH A. KLUKOWSKI

JUSTIN A. MILLER

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amici Curiae

JANUARY 9, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

INTRODUCTION AND INTEREST OF AMICI CURIAE........................................... 1

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

II.

Under OLC’s longstanding view, with Trump’s imminent ascension

to the presidency, presidential immunity requires dismissing the

current prosecution. ....................................................................................... 4

Under longstanding Department precedent, the Constitution

does not permit the prosecution of a sitting President. .................... 5

This prohibition extends to the unusual circumstance of a

prosecution of a sitting President that is being held in

abeyance or on appeal. ........................................................................ 7

The Department recently concluded that holding a

prosecution in abeyance would still be unconstitutional. ............... 13

Even if the Constitution does not require dismissal here, prudence

counsels in favor of dismissing the case in the national interest. ............. 16

Although States have a legitimate interest in criminal

prosecutions, there is also a compelling national interest in a

President’s being able to devote his full attention to his

duties. ................................................................................................ 16

New York’s interest is dwarfed by the interests of the United

States as a whole in a President who is not distracted by an

ongoing prosecution. ......................................................................... 20

CONCLUSION............................................................................................................. 24

TABLE OF AUTHORITIES

Cases

Page(s)

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) .................................................................................................. 22

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................................................................. 17

Cheney v. U.S. Dist. Ct. for D.C.,

542 U.S. 367 (2004) .................................................................................................. 14

Chicago & Southern Air Lines v. Waterman S.S. Corp.,

333 U.S. 103 (1948) .................................................................................................. 24

Clinton v. Jones,

520 U.S. 681 (1997) .................................................................................. 6, 11, 12, 19

Ferri v. Ackerman,

444 U.S. 193 (1979) .................................................................................................. 18

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ...................................................................................... 23

Gonzales v. Raich,

545 U.S. 1 (2005) ...................................................................................................... 22

Klopfer v. North Carolina,

386 U.S. 213 (1967) .................................................................................................. 11

Leiter Minerals, Inc. v. United States,

352 U.S. 220 (1957) .................................................................................................. 20

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................................................................ 15, 22

Mitchell v. Forsyth,

472 U.S. 511 (1985) .................................................................................................. 14

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) .............................................................................................. 6, 21

Nixon v. Fitzgerald,

457 U.S. 731 (1982) .......................................................................... 12, 16, 17, 18, 19

Pierson v. Ray,

386 U.S. 547 (1967) .................................................................................................. 18

Trump v. Mazars USA, LLP,

591 U.S. 848 (2020) .................................................................................................... 9

Trump v. United States,

603 U.S. 593 (2024) .................................................................... 10, 12, 13, 14, 21, 24

Trump v. Vance,

591 U.S. 786 (2020) ................................................................................... 3, 13, 15-23

United States v. Arizona,

641 F.3d 339 (9th Cir. 2011) ...................................................................................... 3

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) .................................................................................................. 24

United States v. Gilliam,

994 F.2d 97 (2d Cir. 1993)........................................................................................ 17

United States v. Lee,

106 U.S. 196 (1882) .................................................................................................. 16

United States v. Louisiana,

363 U.S. 1 (1960) ...................................................................................................... 24

United States v. Nixon,

418 U.S. 683 (1974) .................................................................................................. 21

United States v. R. Enterprises, Inc.,

498 U.S. 292 (1991) .................................................................................................. 24

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .................................................................................................... 8

Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1 (2015) ........................................................................................................ 9

Constitutional Provisions

U.S. Const. art. I, § 7 ................................................................................................... 10

U.S. Const. art. II, § 2, cl. 1 ....................................................................................... 3, 8

U.S. Const. art. II, § 2, cl. 2 ........................................................................................... 9

U.S. Const. art. II, § 2, cl. 3 ......................................................................................... 10

U.S. Const. art. II, § 3 .............................................................................................. 9, 24

U.S. Const. art. VI, cl. 2 ............................................................................................... 22

iii

Statutes

18 U.S.C. § 3282 ............................................................................................................. 5

Judiciary Act of 1789, Pub. L. No. 1-20 § 35, 1 Stat. 73 ............................................... 3

NY CPL § 30.10.2........................................................................................................... 5

Regulation

28 C.F.R. § 0.25 .............................................................................................................. 3

Other Authorities

A Sitting President’s Amenability to Indictment and

Criminal Prosecution, 24 OLC Op. 222 (2000) ........ 4-8, 11-13, 15-17, 19, 21, 22, 24

Akhil Amar & Neal Katyal,

Executive Privileges & Immunities: The Nixon and Clinton Cases,

108 Harv. L. Rev. 701 (1995) ................................................................................... 18

Amenability of the President, Vice President and

Other Civil Officers to Federal Criminal Prosecution

While in Office (Sept. 24, 1973) ........................................................... 4, 6, 10, 12, 16

The Constitutional Separation of Powers Between

the President and Congress, 20 Op. OLC 124 (1996) ................................................ 6

Gov’t Mot. to Dismiss,

United States v. Trump, No. 1:23-cr-257-TSC

(filed D.D.C. Nov. 25, 2024) ..................................................................... 4, 13, 14, 20

Mem. from David J. Barron, Acting Ass’t Att’y Gen.,

to Att’ys of Off. Legal Counsel,

Best Practices for OLC Legal Advice & Written Ops. (July 16, 2010) ...................... 3

Op. of Att’y Gen. Wirt (Jan. 13, 1818)......................................................................... 22

People’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss,

New York v. Trump, Ind. No. 71543-23

(N.Y. Sup. Ct., N.Y. County, Dec. 9, 2024) ........................................................ 17, 21

INTRODUCTION AND INTEREST OF AMICI CURIAE 1

This continued prosecution of President Trump violates core constitutional

principles long recognized by the Department of Justice’s Office of Legal Counsel

(OLC), which issues opinions on behalf of the Attorney General that are the formal

legal position of the Federal Government and binding on the Executive Branch. OLC

has issued three opinions—in 1972, 2000, and 2024—on prosecuting a sitting

President of the United States. And, under OLC’s consistent view, given President

Trump’s imminent return to the White House, presidential immunity requires that

the prosecution brought against him in New York County by District Attorney Alvin

Bragg be dismissed and the jury verdict vacated. President Trump’s request for a

stay is therefore well-grounded.

OLC holds that the Constitution forbids a sitting President being indicted or

prosecuted, granting him unique immunity. This presidential immunity arises from

the separation of powers at the federal level, and exists at the state level because of

federalism and comity rooted in the Supremacy Clause. It extends to all stages of

criminal proceedings, including sentencing and appeals. Criminal prosecutions are

of a different species from civil litigation because of the greater burden they impose.

Although a particular prosecution might not burden a President to an

unconstitutional extent, the lack of certainty ex ante on that score necessitates a

categorical rule against indictment and prosecution. The scope and gravity of a

1 No party or counsel for party authored this brief in whole or in part, and no entity, aside from

amici and their counsel, made any monetary contribution toward the preparation or submission of this

brief.

President’s duties are such that the practical demands of the presidency are allconsuming, whether as Commander in Chief or Chief Executive. And the risk that

the stigma attending criminal proceedings would impair the President’s performance

both at home and abroad is intolerable under the Constitution. Given that, it is

unsurprising that OLC recently concluded that the Constitution does not even permit

a prosecution to be held in abeyance during a President’s term in office. Presidential

immunity extends to the outer perimeter of his responsibilities, so a categorical rule

best captures the core of immunity that its holder need not answer to a court.

Even if the Constitution did not definitively require dismissal, prudence

counsels it. While a state has a legitimate interests in each criminal prosecution to

vindicate its sovereign right to define societal harms and pursue violators, the United

States has a compelling public interest in the sitting President’s devoting his full

attention to his duties, unburdened and undistracted by ongoing prosecutions.

President Trump is already engaged in official duties as President-Elect and

besmirching his standing as he performs those duties would be noxious to the

Constitution. No President can be impaired in that fashion by a county prosecutor.

Even if the charges were well-founded and the continued prosecution consistent with

the Constitution, New York’s interests in any single criminal prosecution is dwarfed

by the interests of the Nation as a whole.

Given their interest in and demonstrated commitment to the rule of law, the

immunity issue this brief addresses is particularly important to amici. Edwin Meese

III served as the seventy-fifth Attorney General of the United States after having

served as Counselor to the President, and is now the Ronald Reagan Distinguished

Fellow Emeritus at the Heritage Foundation. And Steven G. Calabresi is one of the

Nation’s foremost constitutional scholars and advised Attorney General Meese

during his time in office. And, as explained below, amici fully agree with OLC’s

conclusions on the scope of presidential immunity.

ARGUMENT

Consistent with Article II, § 2, cl. 1 of the Constitution, Attorneys General have

provided legal opinions to Presidents since the Judiciary Act of 1789, which provided

for an “attorney-general for the United States … to give his advice and opinion upon

questions of law when required by the President of the United States, or when

requested by the heads of any of the departments, touching any matters that may

concern their departments.” Pub. L. No. 1-20 § 35, 1 Stat. 73, 93. The Attorney

General has delegated that function to the Assistant Attorney General for the Office

of Legal Counsel (OLC). 28 C.F.R. § 0.25. While the Attorney General can still issue

opinions—and does so—typical Department practice is that OLC publishes an

opinion pursuant to this delegated authority. These opinions are binding upon the

Executive Branch. Mem. from David J. Barron, Acting Ass’t Att’y Gen., to Att’ys of

Off. Legal Counsel, Best Practices for OLC Legal Advice & Written Ops. 1-2 (July 16,

2010), https://tinyurl.com/mryehzhm; accord United States v. Arizona, 641 F.3d 339,

385 n.16 (9th Cir. 2011), aff’d in part, rev’d in part on other grounds, 567 U.S. 387

(2012). OLC opinions speak for the Department of Justice and this Court frequently

takes note of their position. See, e.g., Trump v. Vance, 591 U.S. 786, 803 (2020).

OLC has issued three published opinions directly on-point here. The first two

are Amenability of the President, Vice President and Other Civil Officers to Federal

Criminal Prosecution While in Office (Sept. 24, 1973) (“1973 OLC Op.”) and A Sitting

President’s Amenability to Indictment and Criminal Prosecution, 24 OLC Op. 222

(2000) (“2000 OLC Op.”). Although OLC is nonpartisan, it is noteworthy that the

1973 opinion was issued under Republican leadership (Attorney General Elliot

Richardson under President Nixon), and the 2000 opinion was issued under

Democratic leadership (Attorney General Janet Reno under President Clinton). And

current Attorney General Garland’s OLC reaffirmed those opinions. See Gov’t Mot.

to Dismiss at 6, United States v. Trump, No. 1:23-cr-257-TSC (filed D.D.C. Nov. 25,

2024) (“DOJ MTD”). These opinions thus represent the longstanding nonpartisan

(and bipartisan) view of the Department of Justice on what presidential immunity

requires regarding prosecutions of a sitting President of the United States. And, as

shown below, they require dismissal of the prosecution at issue here.

UNDER OLC’S LONGSTANDING VIEW, WITH TRUMP’S IMMINENT ASCENSION TO

THE PRESIDENCY, PRESIDENTIAL IMMUNITY REQUIRES DISMISSING THE

CURRENT PROSECUTION.

“In 1973, the Department concluded that the indictment or criminal

prosecution of a sitting President would unconstitutionally undermine the capacity

of the executive branch to perform its constitutionally assigned functions.” 2000 OLC

Op. 222. As OLC stated it in that initial opinion, “to wound [the President] by a

criminal proceeding is to hamstring the operation of the whole governmental

apparatus, both in foreign and domestic affairs.” 1973 OLC Op. 30. The Department

of Justice continues to “believe that the conclusion reached by the Department in

1973 still represents the best interpretation of the Constitution.” 2000 OLC Op. 222.

Notwithstanding that opinion, the trial court held that “whatever threat of

public stigma from [this] criminal prosecution that might have existed is long past.”

Stay App. 331a. It also concluded that OLC’s opinion to Special Counsel Smith that

the Constitution required all federal prosecutions of President Trump to be ended

prior to the President’s Inauguration on January 20, 2025, would not apply to this

state prosecution. Id. at 330a. But OLC’s three opinions for the Department compel

the opposite conclusion.

Under longstanding Department precedent, the Constitution

does not permit the prosecution of a sitting President.

Under longstanding Department precedent, the Constitution does not permit

the prosecution of a sitting President. For 52 years, the Department’s position has

been that “the President is uniquely immune from” both prosecution and even from

indictment. The latter is significant because an indictment must be brought before

the statute of limitations runs.

See 18 U.S.C. § 3282(a); NY CPL § 30.10.2(b).

Therefore, a President’s immunity from indictment is immunity from being placed

under the shadow of prosecution, an immunity that would be violated by pending

charges even if those charges are not being actively pursued during the President’s

tenure in office.

This prohibition extends both to federal prosecutions and state prosecutions.

The former raises a separation-of-powers issue. 2000 OLC Op. 226-228. The latter

turns on considerations of “federalism and comity.” Clinton v. Jones, 520 U.S. 681,

691 (1997). Just as this Court “employ[s] a balancing test to preserve the opposing

interests” of coequal branches of the federal government, so too courts must balance

federal sovereign interests against state sovereign interests when a state prosecution

is at issue. 2000 OLC Op. 245. But whether a jury is federal or state, “in wellpublicized cases involving high officers, it is virtually impossible to insure a fair trial.”

1973 OLC Op. 25. In the case of a President—either sitting or a former President

who at the time of trial was the presumptive opposition party nominee to return as

President—that level of improbability rises to a level that is constitutionally perilous

to such an extent that “it might be impossible to impanel a neutral jury.” Id. The

Department correctly noted that the “passions and exposure that surround the most

important office in the world” are such that the American people are unlikely to “have

faith in the impartiality and sound judgment of twelve jurors selected by chance out

of a population of more than [340 million].” Id. at 25 n.22.

The Department’s constitutional analysis covers all criminal proceedings,

“whether for official or unofficial wrongdoing.” 2000 OLC Op. 247. In all cases, “‘the

proper inquiry focuses on the extent to which [a prosecution] prevents the Executive

Branch from accomplishing its constitutionally assigned functions.’”

The

Constitutional Separation of Powers Between the President and Congress, 20 Op. OLC

124, 133 (1996) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977)).

The burden imposed by a criminal prosecution is so much more profound than

a civil action that the constitutional calculus shifts against ongoing prosecution of a

sitting President, even when incarceration is off the table or the case is on appeal.

“Once criminal charges are filed, the burdens of responding to those charges are

different in kind and far greater in degree than those of responding to civil litigation.”

2000 OLC Op. 251. As the Department explains:

To be sure, in Clinton v. Jones the Supreme Court rejected the argument

that a sitting President is constitutionally immune from civil suits

seeking damages for unofficial misconduct. But the distinctive and

serious stigma of indictment and criminal prosecution imposes burdens

fundamentally different in kind from those imposed by the initiation of

a civil action, and these burdens threaten the President’s ability to act

as the Nation’s leader in both the domestic and foreign spheres.

Id. at 249. The Constitution does not countenance such a threat.

This prohibition extends to the unusual circumstance of a

prosecution of a sitting President that is being held in abeyance

or on appeal.

The threat posed by these burdens infects all stages of prosecution, including

a prosecution that is being held in abeyance or is on appeal.

The Department

reasoned:

It is conceivable that, in a particular set of circumstances, a particular

criminal charge will not in fact require so much time and energy of a

sitting President so as materially to impede the capacity of the executive

branch to perform its constitutionally assigned functions. It would be

perilous, however, to make a judgment in advance as to whether a

particular criminal prosecution would be a case of this sort. Thus a

categorical rule against indictment or criminal prosecution is most

consistent with the constitutional structure, rather than a doctrinal test

that would require the court to assess whether a particular criminal

proceeding is likely to impose serious burdens upon the President.

2000 OLC Op. 254. Consequently, “a sitting President is immune from indictment as

well as from further criminal process,” id. at 259, which includes pauses and appeals.

This follows from the all-consuming nature of the presidency.

As the

Department explains, “the practical demands on the individual who occupies the

Office of the President, particularly in the modern era, are enormous. President

Washington wrote that ‘the duties of my Office at all times unremitting attention. In

the two centuries since the Washington Administration, the demands of government,

and thus of the President’s duties, have grown exponentially.’” Id. at 247 (cleaned

up).

This accords with Justice Robert Jackson’s observation that “[i]n drama,

magnitude and finality [the President’s] decisions so far overshadow any others that

almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 653 (1952) (Jackson, J., concurring). Surveying the President’s various

duties makes it evident why the prohibition on prosecuting a sitting President

extends to prosecutions being held in abeyance or on appeal.

For example, the President is Commander in Chief. U.S. Const. art. II, § 2, cl.

1. As such, he commands the entire national security apparatus, including the

military and Intelligence Community. The Presidential Daily Brief contains the stuff

of which nightmares are made, and the Nation needs a President whose mind is

undivided as he engages on those issues. That role entails literally life-and-death

matters for both those who serve and for civilians, and also requires being fully

present when catastrophic events happen without notice—such as the terrorist attack

on this Nation on September 11, 2001—where the Commander in Chief must respond

with incredible force and clarity to protect and unify the Nation. The Commander in

Chief occasionally must even defend against existential threats to the United States,

which at its most extreme may even require deploying the Nation’s nuclear arsenal.

The Commander in Chief’s duties may be the most consequential of any person on

earth.

The President is also Chief Executive, “the only person who alone composes a

branch of government.” Trump v. Mazars USA, LLP, 591 U.S. 848, 868 (2020). While

the President’s duties as Head of State are often ceremonial in nature and perhaps

could be adequately performed by a distracted President, his managerial duties and

leadership role as Chief Executive are a different story. As the Chief Diplomat, under

the Reception Clause the President must delicately manage global affairs in a

perilous world every day, dovetailing with his Commander in Chief role. America

“must speak with one voice” on the world stage. Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1, 14 (2015) (cleaned up). That voice is the President’s. It is essential that

the President at all times be able to act with “decision, activity, secrecy, and

dispatch.” Id. (cleaned up). The President is irreplaceable on the world stage, and

often when his use of American “soft power” succeeds, the President need not resort

to using his “hard power” as Commander in Chief.

But the President also has an inexhaustible list of domestic obligations. The

Constitution’s Take Care Clause requires the President to faithfully execute the laws,

U.S. Const. art. II, § 3, which includes the Constitution and federal statutes. Per the

Appointments Clause, id. art. II, § 2, cl. 2, in addition to nominating Supreme Court

Justices and lower federal judges, the President must fill and continually replenish

over 4,000 politically appointed positions. The President must then lead the team

that he has assembled to address the Nation’s needs and implement his agenda in an

ever-fluctuating environment. The President must lead and manage 2.4 million

civilian employees in a series of departments and agencies covering a divergent

portfolio.

And he must constantly evaluate which legislation to recommend to

Congress, id. art. II, § 2, cl. 3, which legislation to approve, id. art. I, § 7, cls. 2-3, and

which legislation to oppose, id. His days are a never-ending series of meetings,

briefings, and making decisions. He is on-duty twenty-four hours a day, 365 days a

year. The livelihoods and wellbeing of 340 million people within the United States

are impacted each day by the President’s performance each day. The President’s

“innumerable functions” entail responsibilities that span “a broad variety of areas,

many of them highly sensitive.” Trump v. United States, 603 U.S. 593, 618 (2024)

(cleaned up). The American people cannot afford their President being preoccupied

by a prosecution, as that would interfere with the execution of these duties.

Exploring as one option that a prosecutor could “indict a sitting President but

defer further proceedings until he is no longer in office,” the Department reasoned:

While this approach may have a claim to be considered as a solution to

the problem from a legalistic point of view, it would overlook the political

realities… [A]n indictment hanging over the President while he

remains in office would damage the institution of the Presidency

virtually to the same extent as an actual conviction… It also may be

noted that the possibility that a President may escape all prosecution by

the running of the statute of limitations is not a constitutional matter.

The policy regarding statutes of limitations is within legislative control.

1973 OLC Op. 29.

The Department added that “[t]he spectacle of an indicted President still trying

to serve as Chief Executive boggles the imagination.” Id. at 30. Accordingly, the

Department concluded that “the President’s ability to perform his constitutional

functions would be unduly burdened by the mere pendency of an indictment against

which he would need to defend himself after leaving office.” 2000 OLC Op. 259.

The OLC opinions explain that the Constitution does not countenance certain

burdens remaining on the President during his time in office because they could

impermissibly interfere with his duties. The Department identifies as one such

burden “the public stigma and opprobrium” attending prosecutions, citing the risk

that the cloud of criminality “could compromise the President’s ability to fulfill his

constitutionally contemplated leadership role with respect to foreign and domestic

affairs.” Id. at 246. While the Department spoke of this burden arising from the

“initiation of criminal proceedings,” any such opprobrium does not attach only to the

day an indictment is handed down; it persists for as long as the prosecution is

ongoing, attended by recurring media coverage and public discussions.

Other

burdens are “the mental and physical burdens of assisting in the preparation of a

defense for the various stages of the criminal proceedings,” reasoning that such

burdens “might severely hamper the President’s performance of his official duties.”

Id. Sentencing and appeals are two such stages of proceedings. Pending criminal

matters subject defendants to “public scorn” and “indefinitely prolong[] this

oppression, as well as the anxiety and concern accompanying public accusation.”

Klopfer v. North Carolina, 386 U.S. 213, 222 (1967) (cleaned up). Until this case is

over, President Trump will bear an ongoing burden. That burden “must be assessed

in light of the Court’s ‘long recognition of the “unique position in the constitutional

scheme” that this office occupies.’” 2000 OLC Op. 247 (quoting Clinton, 520 U.S. at

698 (quoting in turn Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982))) (brackets

omitted). The Constitution does not permit that burden on a sitting President.

The Court noted “that a President, like any other official or private citizen,

may become distracted or preoccupied by pending litigation.” Clinton, 520 U.S. at

705 n.40. But the weight of criminal penalties vastly exceeds those of civil liability,

and so, while the latter does not transgress constitutional limits, the former does.

Consequently, as OLC put it in 2000:

We continue to believe that the better view of the Constitution accords

a sitting President immunity from indictment by itself. To some degree,

indictment alone will spur the President to devote some energy and

attention to mounting his eventual legal defense. The stigma and

opprobrium attached to indictment … far exceed that faced by the civil

litigant defending a claim. Given “the realities of modern politics and

mass media, and the delicacy of the political relationships which

surround the Presidency both foreign and domestic,” there would, as

[OLC] explained in 1973, “be a Russian roulette aspect to the course of

indicting the President but postponing [sentencing], hoping in the

meantime that the power to govern could survive.”

2000 OLC Op. 259 (quoting 1973 OLC Op. 31).

This conclusion finds support in this Court’s conclusion that the rationale for

presidential immunity is “to ensure that the President can undertake his

constitutionally designated functions effectively, free from undue pressures or

distortions.” Trump, 603 U.S. at 615-616. And obviously, just the stigma from

prosecution at any stage presents an impermissible threat “of severely damaging the

President’s standing and credibility in the national and international communities,”

2000 OLC Op. 251, one that “would seriously interfere with his ability to carry out

his constitutionally assigned functions,” id. at 249. Hence, any prosecution, at any

stage—including an appeal—imposes an unconstitutional burden on the President.

The Department recently concluded that holding a prosecution

in abeyance would still be unconstitutional.

Current Attorney General Garland continues to adhere to the Department’s

longstanding position, and moreover apparently agrees that the Constitution

requires dismissal here.

As the Department recently recognized in another

prosecution against President Trump, OLC’s “categorical prohibition on the federal

indictment of a sitting President … even if the case were held in abeyance … applies

in this situation.” DOJ MTD 6. Accordingly, a sitting President cannot be under

indictment even “where a federal indictment was returned before the defendant takes

office.” Id. This is unsurprising, as immunity “extends to the outer perimeter of the

President’s official responsibilities.” Trump, 603 U.S. at 618 (internal quotation

marks omitted).

To be sure, “[i]n our system of government, as this Court has often stated, no

one is above the law. That principle applies, of course, to a President. At the same

time, in light of Article II of the Constitution, this Court has repeatedly declared—

and this Court indicates again today—that a court may not proceed against a

President as it would against an ordinary litigant.”

Vance, 591 U.S. at 812

(Kavanaugh, J., concurring in judgment) (internal quotation marks omitted).

Because this Court has “long recognized the unique position in the constitutional

scheme” the President occupies, the Court has made explicit the “paramount

necessity of protecting the Executive Branch from vexatious litigation that might

distract it from the energetic performance of its constitutional duties.” Cheney v. U.S.

Dist. Ct. for D.C., 542 U.S. 367, 382 (2004) (internal quotation marks omitted). And

nothing in OLC opinions or this Court’s precedent supports Bragg’s argument that

the constitutional impetus for dismissal should vary based on which stage the

prosecution is at when a court is considering dismissal.

Examining whether the Constitution would permit holding a federal

prosecution in abeyance until President Trump leaves office in 2029, “OLC concluded

that its 2000 Opinion’s ‘categorical’ prohibition on the federal indictment of a sitting

President—even if the case were held in abeyance—applies to this situation, where a

federal indictment was returned before the defendant takes office.” DOJ MTD 6. And

that rule “does not turn on the gravity of the crimes charged, the strength of the

government’s proof, or the merits of the prosecution.” Id. at 1. Underlying all this is

the principle that “[t]he essence of immunity ‘is its possessor’s entitlement not to

answer for his conduct in court.” Trump, 603 U.S. at 630 (quoting Mitchell v. Forsyth,

472 U.S. 511, 525 (1985)).

“Special considerations applicable to the President,” moreover, militate that

“all courts should be mindful of the burdens imposed on the Executive Branch in any

further proceedings.” Cheney, 542 U.S. at 391-392. This is because:

unlike anyone else, the President is a branch of government, and the

Constitution vests in him sweeping powers and duties. Accounting for

that reality—and ensuring that the President may exercise those

powers forcefully, as the Framers anticipated he would—does not place

him above the law; it preserves the basic structure of the Constitution

from which that law derives.

Trump, 603 U.S. at 640.

To be sure, Vance cabined its holding allowing process with the disclaimer that

there “the President [was] not seeking immunity from the diversion occasioned by the

prospect of future criminal liability,” but instead only from a subpoena for documents

for a grand jury that could consider charging him when he was not in office,

referencing OLC’s 2000 opinion. Vance, 591 U.S. at 803 (emphasis in original). The

Court thus noted that its holding “must be limited to the additional distraction

caused by the subpoena itself.” Id. (emphasis in original). So too Vance rejected the

President’s argument regarding avoiding stigma from association with a subpoena or

“risk of association with persons or activities under criminal investigation,” id. at 803804, not that of indictment, conviction, or sentencing. Instead, the Court concluded

that the “receipt of a subpoena would not seem to categorically magnify the harm to

the President’s reputation.” Id. at 804.

Vance also reasoned that the subpoena did not rise to the level of harassment

that would cross a legal line. Id. at 805. But the Court did so by reasoning that there

were adequate protections in the law to prevent that, including explicitly noting that

federal injunctive relief is available if the President is unable to obtain in state court

relief to which he is entitled. See id. at 804-806. Efforts to manipulate the President

or retaliate against him are “an unconstitutional attempt to ‘influence’ a superior

sovereign ‘exempt’ from such obstacles.” Id. at 806 (quoting McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 427 (1819)); accord Vance, 591 U.S. at 809-810.

In short, this Court has instructed that “the high respect that is owed to the

office of the Chief Executive should inform the conduct of the entire proceeding,”

Vance, 591 U.S. at 809 (cleaned up), which would include the appellate phase. And

that principle requires terminating the prosecution at issue here.

II.

EVEN IF THE CONSTITUTION DOES NOT REQUIRE DISMISSAL HERE, PRUDENCE

COUNSELS IN FAVOR OF DISMISSING THE CASE IN THE NATIONAL INTEREST.

Even if specific and concrete constitutional violations did not require dismissal

here, prudential principles weigh heavily in favor of dismissal, and thus reversing

the trial court and dismissing this prosecution is in the interests of justice. Some of

those principles turn on the unique place that a sitting President occupies in the life

of the Nation. “In times of peace or war, prosperity or economic crisis, and tranquility

or unrest, the President plays an unparalleled role in the execution of the laws, the

conduct of foreign relations, and the defense of the Nation.” 2000 OLC Op. 247.

Although States have a legitimate interest in criminal

prosecutions, there is also a compelling national interest in a

President’s being able to devote his full attention to his duties.

The denial below “reflects a conflict between a State’s interest in criminal

investigation and a President’s Article II interest in performing his or her duties

without undue interference.” Vance, 591 U.S. at 811 (Kavanaugh, J., concurring in

judgment). The trial court misjudged that conflict, and should be reversed.

New York certainly has an interest in this prosecution. “No man in this

country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220

(1882). And “[t]he Framers of the Constitution made it abundantly clear that the

President was intended to be a Chief Executive, responsible, subject to the law, and

lacking the prerogatives and privileges of the King of England.” 1973 OLC Op. 20

n.14. There is thus a public interest in “criminal prosecutions,” Fitzgerald, 457 U.S.

at 754 n.37, which the Department has referred to this as a “legitimate government

objective.” 2000 OLC Op. 245. And that is how this Court should categorize that

interest.

To be sure, District Attorney Bragg says the public interest is compelling. See

People’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss at 1, 21, New York v. Trump,

Ind. No. 71543-23 (N.Y. Sup. Ct., N.Y. Cnty., Dec. 9, 2024) (BIO). But the cases cited

do not include controlling authority that elevates the State’s interest to that highest

category. See, e.g., United States v. Gilliam, 994 F.2d 97, 101 (2d Cir. 1993). Instead,

the District Attorney inserts the word “compelling” just outside the quotation marks

of cases it cites for that proposition. See, e.g., BIO 21 (quoting Vance, 591 U.S. at

808). But compelling interests are few and far between, are delineated in targeted

fashion, and are usually examined on an individualized basis, not on a broad and

generalized basis. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726

(2014) (impositions on religious liberty). Bragg’s argument thus proves too much, as

his sweeping claim would mean that every single criminal prosecution vindicates a

compelling interest. That goes too far.

By contrast, there is a truly compelling public interest in an optimally

functioning President.

“The President occupies a unique position in the

constitutional scheme.”

Fitzgerald, 457 U.S. at 749.

As such, even when the

Constitution does not definitively command special exemptions for the Commander

in Chief, courts should carefully consider whether prudence militates for judicial

restraint. “Because of the singular importance of the President’s duties, diversion of

his energies by concern with private lawsuits would raise unique risks to the effective

functioning of government.” Id. at 751. It is imperative to furnish the President with

“‘the maximum ability to deal fearlessly and impartially’” with all the challenges he

faces on a daily basis, id. at 752 (quoting Ferri v. Ackerman, 444 U.S. 193, 203 (1979)),

always mindful that each “President must concern himself with matters likely to

‘arouse the most intense feelings,’” id. (quoting Pierson v. Ray, 386 U.S. 547, 554

(1967)), and indeed does so constantly.

Prosecution by a District Attorney who is also a political opponent casts in

stark relief a threat to the President’s performance. “Cognizance of this personal

vulnerability frequently could distract a President from his public duties, to the

detriment of not only the President and his office but also the Nation that the

Presidency was designed to serve.” Id. at 753. And this vulnerability is ubiquitous:

“‘Constitutionally speaking, the President never sleeps.

The President must be

ready, at a moment’s notice, to do whatever it takes to preserve, protect, and defend

the Constitution and the American people.’”

Vance, 591 U.S. at 828 (Alito, J.,

dissenting) (quoting Akhil Amar & Neal Katyal, Executive Privileges & Immunities:

The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 703 (1995)). And this conclusion

coincides with the Court’s observation in Nixon that courts must consider the

“President’s constitutional responsibilities and status as factors counseling judicial

deference and restraint.” Fitzgerald, 457 U.S. at 753.

Moreover, Clinton’s seemingly inconsistent reasoning that interactions

between the President and the judiciary do not “necessarily rise to the level of

constitutionally forbidden impairment of the Executive’s ability to perform its

constitutionally mandated functions,” Clinton, 520 U.S. at 702, referred to civil

proceedings, id. at 692-694.

This Court—and the Department—consistently

distinguish between civil and criminal proceedings, and so the Constitution’s lesser

concern regarding civil burdens does not extend to the burden of criminal

prosecutions.

See 2000 OLC Op. 244 n.16.

“And, notwithstanding Clinton’s

conclusion that civil litigation regarding the President’s unofficial conduct would not

unduly interfere with his ability to perform his constitutionally assigned functions,

we believe that Clinton and other cases do not undermine our earlier conclusion that

the burdens of criminal litigation would be so intrusive as to violate the separation

of powers.” 2000 OLC Op. 244 (emphasis in original).

As the Court itself reasoned when balancing the compelling interests of a

President against the public interest in criminal prosecutions:

No one doubts that Article II guarantees the independence of the

Executive Branch. As the head of that branch, the President occupies a

unique position in the constitutional scheme. His duties, which range

from faithfully executing the laws to commanding the Armed Forces, are

of unrivaled gravity and breadth. Quite appropriately, those duties

come with protections that safeguard the President’s ability to perform

his vital functions.

Vance, 591 U.S. at 800 (internal quotation marks omitted). Every occupant of the

Oval Office is “entrusted with supervisory and policy responsibilities of utmost

discretion and sensitivity.” Fitzgerald, 457 U.S. at 750. Those who have served in

senior White House staff positions or in the President’s Cabinet have a perspective of

the awesome weight of the presidency. Even under the best of circumstances it is a

weight that very few people have the strength to bear. To do so while grappling with

an ongoing prosecution is unthinkable, and the Nation would suffer as a result.

New York’s interest is dwarfed by the interests of the United

States as a whole in a President who is not distracted by an

ongoing prosecution.

This Court’s precedent clearly holds “that Article II and the Supremacy Clause

of the Constitution supply some protection for the Presidency against state criminal”

proceedings. Vance, 591 U.S. at 811-812 (Kavanaugh, J., concurring in judgment).

“The question here, then, is how to balance the States interests and the Article II

interests.” Id. at 812. The Court has ruled in favor of national interests against even

significant countervailing state interests when doing otherwise would result in “[t]he

frustration of superior federal interests that would ensue from” ruling in favor of the

State. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226 (1957). And it should

do so here as well.

As Special Counsel Jack Smith explained to the federal district court in

Washington, D.C., in seeking dismissal of his prosecution of President Trump, in 2000

“OLC concluded that, because a pending prosecution would impair the President’s

ability to carry out [his] responsibilities to the detriment of the Nation, the

constitutional interest in the President’s unfettered performance of his duties must

take precedence over the immediate enforcement of the criminal law against a sitting

President.” DOJ MTD 4. This is despite the fact that OLC’s opinions “recognized the

critical national interest in upholding the rule of law, and stated that the President

is not above it.” Id.

Thus, even though a former President can be “subject to criminal prosecution

for unofficial acts committed while in office,” Trump, 603 U.S. at 606, there can be no

initiation (i.e., indictment) or continuation of criminal prosecution while the

President remains in office. A sitting President may be charged only “after the

completion of his term.” Vance, 591 U.S. at 803. This “temporary immunity,” 2000

OLC Op. 238, includes the President’s immunity from being under indictment,

awaiting sentencing, or contesting a conviction on appeal during his term in office.

Bragg is thus incorrect that this “Court has consistently allowed the criminal

process to go forward during a sitting President’s term.” BIO 15. In the facts from

Nixon discussed by Bragg, the sitting President was an unindicated co-conspirator,

for which the criminal subpoena was not part of prosecuting the President. United

States v. Nixon, 418 U.S. 683, 687 (1974). So too in Vance, the President can be

investigated and be required to comply with criminal subpoenas as part of that

investigation, 591 U.S. at 803, 810, but cannot be under indictment or be prosecuted

as a defendant.

The burden here is not distraction of investigation alone, nor future criminal

liability, but finality of a judgment of conviction in a current criminal matter with the

need to appeal it. “Having identified the burdens imposed by indictment and criminal

prosecution on the President’s ability to perform his constitutionally assigned

functions, we must still consider whether these burdens are ‘justified by an overriding

need to promote’ legitimate governmental objectives,” 2000 OLC Op. 255 (quoting

Adm’r of Gen. Servs., 433 U.S. at 443). And there is no such justification here: The

remaining phases of this proceeding would be Bragg’s attempt to finalize and

preserve criminal convictions of a sitting President. And “[t]he magnitude of this

stigma and suspicion, and its likely effect on presidential respect and stature both

here and abroad, cannot fairly be analogized to that caused by initiation of a private

civil action.” Id. at 250.

That is one reason Attorneys General of the United States have long

held that normal and otherwise-legitimate public interests in criminal prosecutions

must give way to the national interests in the presidency. In 1818, Attorney General

Wirt advised President Monroe that a:

subpoena ad testificandum may [be served on] the President of the U.S.

But if the presence of the chief magistrate be required at the seat of

government by his official duties, I think those duties paramount to any

claim which an individual can have upon him, and that his personal

attendance on the court from which the summons proceeds ought to be,

and must, of necessity, be dispensed with.

Op. of Att’y Gen. Wirt (Jan. 13, 1818), reproduced in 2000 OLC Op. 253 n.29.

Even important state interests must give way to superior federal interests

under the Supremacy Clause, U.S. Const. art. VI, cl. 2. “The Supremacy Clause

unambiguously provides that if there is any conflict between federal and state law,

federal law shall prevail.” Gonzales v. Raich, 545 U.S. 1, 29 (2005). “States have no

power … to retard, impede, burden, or in any manner control the operations of the

constitutional laws enacted by Congress.” McCulloch, 17 U.S. (4 Wheat.) at 436;

accord Boyle v. United Techs. Corp., 487 U.S. 500 (1988). “It follows that States also

lack power to impede the President’s execution of those laws.” Vance, 591 U.S. at

801. Accordingly, when state interests conflict with federal interests in the proper

functioning of the Federal Government, rather than treating those two spheres of

government “like equal opposing powers,” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

210 (1824), superior federal interests prevail, see id. at 209-211. Accordingly, “[t]he

Supremacy Clause prohibits state judges and prosecutors from interfering with the

President’s official duties.” Vance, 591 U.S. at 806.

Here, moreover, Congress certified President Trump’s election on

January 6, 2025, and he is hard at work picking a Cabinet, sub-Cabinet Officers, and

White House Staff. He has received emissaries and is negotiating with such foreign

governments as Canada, Ukraine, and Russia. President Trump is also busy drafting

orders that he will start issuing in 11 days when he is sworn in. It is intolerable that

one county prosecutor in one State could besmirch a President’s reputation and

reduce his effectiveness in carrying out his extensive duties at this time.

Indeed, the issue of whether one State, on its own, can burden a federal officer

or instrumentality was decided in McCulloch, where Chief Justice Marshall held in

the second half of his legendary opinion that Maryland could not tax a branch of the

Bank of the United Sates differently than all other banks doing business in Maryland

were being taxed at that time. Chief Justice Marshall held that singling out a federal

officer or instrumentality for a unique burden would be a power to destroy that officer

or instrumentality, which is preempted by the Constitution itself.

Today, moreover, there are fifty states with roughly 2,300 county prosecutors,

some of them quite partisan. This Court should not allow such a prosecutor to impair

the President’s or congressionally certified President-Elect’s ability to perform his

duties. The Constitution itself preempts such an outcome. As OLC opined:

In sum … criminal litigation uniquely requires the President’s personal

time and energy, and will inevitably entail a considerable if not

overwhelming degree of mental preoccupation. Indictment also exposes

the President to an official pronouncement that there is probable cause

to believe he committed a criminal act, see, e.g., United States v. R.

Enterprises, Inc., 498 U.S. 292, 297-98 (1991), impairing his credibility

in carrying out his constitutional responsibilities to “take Care that the

Laws be faithfully executed,” U.S. Const. art. II, § 3, and to speak as the

“sole organ” of the United States in dealing with foreign nations. United

States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936); see

also Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S.

103, 111 (1948) (describing the President “as the Nation’s organ for

foreign affairs”); United States v. Louisiana, 363 U.S. 1, 35 (1960) (“The

President … is the constitutional representative of the United States in

its dealings with foreign nations.”). These physical and mental burdens

imposed by an indictment and criminal prosecution of a sitting

President are of an entirely different magnitude than those imposed by

the types of judicial process previously upheld by the Court.

2000 OLC Op. 254. In applying those principles, all courts must be mindful that “the

interests that underlie Presidential immunity seek to protect not the President

himself, but the institution of the Presidency.” Trump, 603 U.S. at 632.

CONCLUSION

For these reasons, if the New York Court of Appeals denies a stay, or if it

becomes evident that the Court of Appeals will not grant a stay, this Court should

grant the application for a stay of sentencing pending President Trump’s

interlocutory appeal claiming presidential immunity.

Respectfully submitted,