Trump Asks Supreme Court to Review Tax Return Subpoena Decision

DONALD J. TRUMP, President of the United States,
Petitioner,
v.
CYRUS R. VANCE, JR., in his official capacity as District Attorney of the County of New York; MAZARS USA, LLP.
Respondents.

IN THE
Supreme Court of the United States

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

William S. Consovoy
Alexa R. Baltes
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com

Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
patrick@consovoymccarthy.com

Jay Alan Sekulow
Counsel of Record
Stuart J. Roth
Jordan Sekulow
CONSTITUTIONAL LITIGATION AND ADVOCACY GROUP, P.C.
1701 Pennsylvania Ave, NW, Ste. 200
Washington, DC 20006
(202) 546-8890
jsekulow@claglaw.com

Counsel for President Donald J. Trump

QUESTIONS PRESENTED

The District Attorney for the County of New York is conducting a criminal investigation that, by his own admission, targets the President of the United States for possible indictment and prosecution during his term in office. As part of that investigation, he served a grand-jury subpoena on a custodian of the President's personal records, demanding production of nearly ten years' worth of the President's financial papers and his tax returns. That subpoena is the combination — almost a word-for-word copy — of two subpoenas issued by committees of Congress for these same papers. The Second Circuit rejected the President's claim of immunity and ordered compliance with the subpoena.

The question presented is: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution.

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Petitioner is Donald J. Trump, President of the United States. He was the plaintiff in the district court and appellant in the court of appeals.

Respondents are Cyrus R. Vance, Jr., in his official capacity as District Attorney of the County of New York, and Mazars USA, LLP. Respondents were defendants in the district court and appellees in the court of appeals.

The related proceedings below are:

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TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

CONCLUSION

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED NOVEMBER 4, 2019 1a

APPENDIX B — DECISION AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, DATED OCTOBER 7, 2019

APPENDIX C — EMERGENCY NOTICE OF APPEAL TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, DATED OCTOBER 7, 2019

APPENDIX D — ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED OCTOBER 7, 2019

APPENDIX E — ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED OCTOBER 7, 2019

APPENDIX F — MEMORANDUM IN SUPPORT OF EMERGENCY MOTION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED OCTOBER 18, 2019

APPENDIX G — AGREEMENT TO RESOLVE MOTION FOR STAY, DATED OCTOBER 21, 2019 

APPENDIX H — LETTER WITHDRAWING MOTION FOR STAY, DATED OCTOBER 21, 2019 

APPENDIX I — SUBPOENA TO THE TRUMP ORGANIZATION, DATED AUGUST 1, 2019

APPENDIX J — SUBPOENA TO MAZARS USA LLP, DATED AUGUST 29, 2019

APPENDIX K — EXCERPTS OF COMPLAINT, FILED SEPTEMBER 24, 2019

APPENDIX L — CONSTITUTIONAL PROVISIONS INVOLVED

TABLE OF AUTHORITIES

Cases:

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004)

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

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1975)

Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010)

In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)

Kendall v. U.S. ex rel. Stokes, 37 U.S. 524 (1838)

M'Clung v. Silliman, 19 U.S. 598 (1821)

M'Culloch v. Maryland, 17 U.S. 316 (1819)

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

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

North Dakota v. United States, 495 U.S. 423 (1986)

Trump v. Hawaii, 138 S. Ct. 2392 (2018)

Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019)

United States v. AT&T Co., 551 F.2d 384 (D.C. Cir. 1976)

United States v. Burr, 25 F. Cas. 187 (C.C.D. Va. 1807)

United States v. McLeod, 385 F.2d 734 (5th Cir. 1967)

United States v. Morton Salt Co., 338 U.S. 632 (1950)

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

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

Statutes and Other Authorities:

U.S. Const. art. I, § 3, cl. 7

U.S. Const. art. II, § 1, cl. 1

U.S. Const. art. II

U.S. Const. art. II, § 2

U.S. Const. art. II, § 3

U.S. Const. art. II, § 4

U.S. Const. art. VI, cl. 2  

28 U.S.C. § 1254(1) 

2 Farrand, Records of the Federal Convention (rev. ed. 1966) 

3 J. Story, Commentaries on the Constitution of the United States § 1563 (1st ed. 1833) 

9 The Writings of Thomas Jefferson 60 (Paul Leicester Ford ed., 1898)

A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 O.L.C. Op. 222 (Oct. 16, 2000) 

Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2-SPG NEXUS: J. Opinion 11 (1997)

Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701 (1995)

Akhil Reed Amar, Nixon's Shadow, 83 Minn. L. Rev. 1405 (1999)

Alberto R.Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. U. L. Rev. 905 (2019)

Congressional Committee's Request for the President's Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. __ (June 13, 2019)

Dan Mangan & Chris Eudaily, Trump's Ex-Lawyer Michael Cohen Cooperating with New York Prosecutors in Probe of Whether Trump Organization Falsified Records, CNBC (Sept. 11, 2019)

Federalist No. 65 (Alexander Hamilton) (Rossiter ed., 1961)

Federalist No. 69 (Alexander Hamilton) (Rossiter ed., 1961)

Federalist No. 77 (Alexander Hamilton) (Rossiter ed., 1961)

Jay S. Bybee, Who Executes the Executioner?, 2-SPG NEXUS: J. Opinion 53 (1997)

Journal of William Maclay (Edgar S. Maclay ed., 1890) 

Lisa Hagen, Congress Returns, Trump Investigations Resume, U.S. News & World Report (Sept. 9, 2016)

Memorandum for the U.S. Concerning the Vice President's Claim of Constitutional Immunity 17, In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No.73-cv-965 (D. Md.)

Memorandum from Robert G. Dixon, Jr., Asst. Att'y Gen., O.L.C., Re: Amenability of the President, Vice President, and Other Civil Officers to Federal Criminal Prosecution While in Office 30 (Sept. 24, 1973)

William K. Rashbaum & Ben Protess, 8 Years of Trump Tax Returns Are Subpoenaed by Manhattan D.A., New York Times (Sept. 16, 2019)

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President Donald J. Trump respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the Second Circuit is not yet reported, but it is available at 2019 WL 5687447 and is reproduced in the Appendix (“App.”) at 1a-29a. The opinion of the Southern District of New York is reported at 395 F. Supp. 3d 283 and is reproduced at App. 30a-95a.

JURISDICTION

The judgment of the Second Circuit was entered on November 4, 2019. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent constitutional provisions involved in this case are listed below and reproduced at App. 127a-29a.

U.S. Const. art. I, § 3, cl. 7

U.S. Const. art. II, § 1, cl. 1; § 2; § 3; § 4

U.S. Const. art. VI, cl. 

INTRODUCTION

For the first time in our nation's history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. The subpoena issued by the New York County District Attorney seeks reams of President Trump's private financial records for the express purpose of deciding whether to indict him for state crimes. The Court should grant certiorari to decide the important and unsettled issue this dispute raises: whether the District Attorney's issuance of criminal process demanding the President's records violates the immunity that he holds under Article II and the Supremacy Clause of the Constitution.

This immunity question is plainly important. Every time a President has asked the Court to review an unprecedented use of legal process against the occupant of the office, it has done so. The Supreme Court has stressed the “importance” of questions concerning presidential immunity. Clinton v. Jones, 520 U.S. 681, 689 (1997). It has granted certiorari to decide these questions even in “'one-of-a-kind cases'” in which there was no “conflict among the Courts of Appeals.” Id. The Court has even taken the rare step of granting certiorari before judgment to review the President's claim “because of the public importance of the issues presented.” United States v. Nixon, 418 U.S. 683, 686-87 (1974). The Court, in short, does not “'proceed against the president as against an ordinary individual'” and extends him the “high degree of respect due the President of the United States.” Id. at 708, 715.

Thus, when the President argues that novel legal process directed at him will lead to the “diversion of his energies,” the Court takes the claim quite seriously given “the singular importance of the President's duties.” Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982). The Court's approach to cases of this type is not out of concern for any “particular President,” but for “the Presidency itself.” Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018). When the Executive Branch argues that legal process raises “serious risks for the institution of the Presidency,” as it has argued here, the Court grants certiorari to give those “representations” the “respectful and deliberate consideration” they indisputably deserve. Jones, 520 U.S. at 689-90.

The Court should follow that approach in this case. The Department of Justice supported the President below. The Second Circuit acknowledged that this dispute raises “novel and serious claims,” Appendix (“App.”) 13a, and that “the Supreme Court has not had occasion to address this [immunity] question,” App. 21a. Indeed, the Court's previous immunity cases identified the key elements of this case — targeting a President for criminal investigation through coercive process issued by a local official — as an unresolved issue, and carefully reserved the question. The Court should decide it now.

The decision below is not only important, however. It is incorrect. There has been broad bipartisan agreement, for decades if not centuries, that a sitting President cannot be subjected to criminal proceedings. That consensus follows from the Constitution's text, history, and structure, as well as from precedent. The Framers recognized the clear need for a strong Chief Executive, and they fashioned a process for investigating and removing him in a manner that would embody the will of the people. A lone county prosecutor cannot circumvent this arrangement. That the Constitution would empower thousands of state and local prosecutors to embroil the President in criminal proceedings is unimaginable. State criminal process interferes with the President's ability to execute his duties under Article II, violates the Supremacy Clause, and is irreconcilable with our constitutional design.

This subpoena subjects the President to criminal process under any reasonable understanding of the concept. It demands the President's records, names him as a target, and was issued as part of a grand-jury proceeding that seeks to determine whether the President committed a state-law crime. That the grand-jury subpoena was issued to a third-party custodian does not alter the calculus. If it did, every local prosecutor in the country could easily circumvent presidential immunity.

Whether compliance with this subpoena will burden the President is the wrong question. The Court has always taken a categorical approach to presidential immunity. The Court asks whether this kind of legal process violates the Constitution. But the President should prevail even under a case-specific approach. The subpoena is highly intrusive to the President, as it seeks nearly a decade of his sensitive financial records. And the District Attorney cannot explain why this subpoena — which he admits to copying from two unrelated congressional investigations — is relevant to the allegations he is investigating. Indeed, politically motivated subpoenas like this one are a perfect illustration of why a sitting President should be categorically immune from state criminal process.

In other words, the subpoena cannot come close to the heightened-need showing that United States v. Nixon requires. The Second Circuit incorrectly held that Nixon only applies to executive-privilege claims. In all presidential-immunity cases — not just those where privilege is invoked — “a court . . . must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U.S. at 754. In this context, that balance is struck by requiring the prosecutor to show, at a minimum, that the “evidence sought” is “directly relevant to issues that are expected to be central” and “not available with due diligence elsewhere.” In re Sealed Case, 121 F.3d 729, 754-55 (D.C. Cir. 1997). This subpoena fails that standard as a matter of law.

STATEMENT OF THE CASE

A. Background

In April 2019, following hearings regarding the President's financial holdings and business ventures, the Oversight Committee of the U.S. House of Representatives issued a subpoena to the President's accounting firm, Mazars USA, LLP. See Trump v. Mazars USA, LLP, 940 F.3d 710, 716 (D.C. Cir. 2019). Mazars was responsible for, among other things, preparing financial statements for businesses owned by President Trump, as well his personal tax returns. Id. at 716. The Committee claimed to be investigating a number of issues, including the President's past financial transactions, possible violations of the Emoluments Clauses of the U.S. Constitution and federal financial disclosure laws. Id. The legality of the Mazars subpoena quickly became embroiled in litigation, and the subpoena has been stayed ever since. Id. at 717-18.¹

During that same timeframe, the House Ways and Means Committee subpoenaed the President's federal tax returns from the Treasury Department. The Treasury Department declined to disclose the President's returns, citing previous statements suggesting that the Committee lacked a legitimate legislative purpose. See Congressional Committee's Request for the President's Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. __, __ (June 13, 2019). That subpoena's legality is similarly embroiled in litigation. See Doc. 1, Comm. on Ways & Means v. U.S. Dept. of Treasury, No. 19-cv-1974 (D.D.C.). The Committee therefore has been unable, to date, to secure these tax documents.

News subsequently broke that the District Attorney of New York County had opened its own investigation into the President's business dealings, including certain payments made in 2016. See Dan Mangan & Chris Eudaily, Trump's Ex-Lawyer Michael Cohen Cooperating with New York Prosecutors in Probe of Whether Trump Organization Falsified Records, CNBC (Sept. 11, 2019), cnb.cx/2pgvfh4. The District Attorney's investigation came a year after the Democrats had taken “back the majority” of the House of Representatives and in the face of dismay over their failure “to get their hands on the long-sought after documents.” Lisa Hagen, Congress Returns, Trump Investigations Resume, U.S. News & World Report (Sept. 9, 2016), bit.ly/2NGeLIt. There was optimism that “it may be more difficult to fend off a subpoena in a criminal investigation with a sitting grand jury.” William K. Rashbaum & Ben Protess, 8 Years of Trump Tax Returns Are Subpoenaed by Manhattan D.A., New York Times (Sept. 16, 2019), nyti.ms/34YW4FN.

As part of that investigation, the District Attorney served a grand jury subpoena on the Trump Organization that demanded documents and communications concerning the President. App. 110a-16a. The subpoena was entitled “Investigation into the Business and Affairs of John Doe (2018-00403803).” App. 110a. The Trump Organization began complying. But a dispute arose over the subpoena's scope.

The District Attorney declined to resolve the dispute by negotiation and compromise. He instead sought to bypass the President by subpoenaing Mazars. App. 117a-22a. That subpoena — also entitled “Investigation into the Business and Affairs of John Doe (2018-00403803)” — names the President personally and demands production of his personal records (including his tax returns). Id.

The District Attorney's subpoena to Mazars is copied, virtually word-for-word, from the one the Oversight Committee issued to Mazars. App. 123a-26a. The only difference is that the Oversight Committee did not seek the President's tax returns. App. 124a. That portion of the District Attorney's subpoena instead mirrors the subpoena the House Ways and Means Committee sent to the Treasury Department. In other words, the District Attorney cut and pasted from two congressional subpoenas to craft his request to Mazars.

Unsurprisingly, then, the grand jury subpoena to Mazars is not tailored to the 2016 payments and business records he claims to be investigating. It seeks reams of the President's confidential information, reaches back to 2011, and asks for documents — like those relating to a hotel in Washington, D.C. — that have nothing to do with New York. App. 119a-20a. The District Attorney nevertheless refused to narrow the subpoena, allow more time for negotiations, or even stay its enforcement while the parties litigated its validity.²

B. Proceedings Below

On September 19, the President filed this federal action. The complaint challenges the Mazars subpoena as violating the temporary immunity a sitting President holds under Article II and the Supremacy Clause of the Constitution. The President also sought an emergency injunction to stay enforcement of the subpoena. See App. 37a-38a. The Executive Branch filed a statement of interest in support of the President.

The District Attorney agreed to stay enforcement of the Mazars subpoena until September 25 so that the parties could brief and argue the President's motion on a highly expedited basis. Ultimately, the parties agreed to stay enforcement of the subpoena until 1:00 pm on October 7. App. 38a-39a.

On October 7, at 8:47 am, the district court issued a 75-page opinion denying the President's requests for injunctive relief and dismissing his complaint. App. 30a. Specifically, the court held that the President's immunity claim must be pursued in state court under Younger v. Harris, 401 U.S. 37 (1971), and dismissed the complaint on that basis. App. 41a-61a.

As an “alternative” holding, the district court denied the President's immunity claim on “the merits.” App. 61a. According to the district court, the President's temporary immunity from criminal process — including indictment and imprisonment — while in office must be assessed on a case-by-case basis. App. 93a. As a result, although the President might be immune from “lengthy imprisonment” or “a charge of murder,” he might not be immune from a shorter prison sentence or prosecution for lesser crimes such as “failing to pay state taxes, or of driving while intoxicated.” App. 33a, 82a. In so holding, the court “reject[ed]” the contrary views of the Department of Justice over the last 50 years even though they “have assumed substantial legal force.” App. 70a-71a. Applying its novel balancing test, the district court held that the President is not immune from this subpoena while in office. App. 61a-62a, 93a.

Because Mazars was set to comply with the subpoena within hours of the district court's decision, the President filed a notice of appeal and an emergency motion for stay with the Second Circuit. App. 96a; CA2 Doc. 8. Within an hour, the Second Circuit granted the President's motion — highlighting the “unique issues raised by this appeal.” App. 98a-99a. The court issued an expedited briefing schedule, set oral argument for October 23, and informed the parties that the stay would only “remain[ ] in effect until argument is completed.” App. 100a-02a. The Executive Branch filed an amicus brief supporting the President's position, arguing that “the district court erred in . . . declining to halt the District Attorney's enforcement of the subpoena against the President's personal records.” CA2 Doc. 83 at 8.

On October 18, after briefing was complete and the District Attorney continued to oppose any further stay of the subpoena, the President filed an emergency motion for stay pending appeal. App. 103a-04a. As things stood, Mazars would have been required to comply with the subpoena immediately after oral argument ended, presumably before the Second Circuit could take the matter under submission and issue a ruling. The President asked the Second Circuit to stay the subpoena until it resolved the President's appeal. See id.

On October 21, the parties reached an agreement. The District Attorney would forbear enforcement of the Mazars subpoena between the date of oral argument in the Second Circuit and 10 calendar days after the Second Circuit issued its ruling so long as any petition for certiorari would be filed in the Supreme Court within that timeframe. The agreement also required the President to immediately withdraw all pending motions for a stay in the Second Circuit. The parties further agreed that, if the President petitioned for certiorari, the District Attorney would then continue to forbear enforcement of the subpoena until a final disposition from the Supreme Court, but only if the President asked for the case to be heard and decided this Term. App. 106a-08a. In accordance with this agreement, the President thus respectfully asks the Court to hear and decide the case this Term should certiorari be granted.

At oral argument, the District Attorney made clear that he is targeting the President in a criminal investigation for the purpose of possible indictment. Because, in the District Attorney's view, any presidential immunity is not triggered until indictment, there is “no basis to object at this point.” OA 31:35-37, cs.pn/2CAtWfM (emphasis added). But even if the investigation reaches the point of indictment, the District Attorney would not recognize absolute immunity for a sitting President:

It's hard for me to say that there could be no circumstance under which a President could ever imaginably be criminally charged or perhaps tried. . . . You can invent scenarios where you can imagine that it would be necessary or at least perhaps a good idea for a sitting President to be subject to a criminal charge even by a state while in office.

OA 30:12-21; 37:56-38:08.

On November 4 — twelve days after argument — the Second Circuit issued its opinion. App. 1a. It first disagreed with the district court's dismissal of the complaint under Younger and vacated that part of the judgment. The President's “novel and serious claims,” in the Second Circuit's view, “are more appropriately adjudicated in federal court.” App. 13a-14a. But the Second Circuit affirmed what it construed as the district court's denial of a preliminary injunction. In particular, it held that the President is unlikely to prevail on his claim that he is “absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation, and that the Mazars subpoena cannot be enforced in furtherance of any investigation into his activities.” App. 14a-15a.

The Second Circuit aligned itself with what it called the district court's “thorough and thoughtful decision” resolving the immunity issue against the President. App. 7a. “With the benefit of the district court's well‐articulated opinion,” it held “that any presidential immunity from state criminal process does not bar the enforcement of [this] subpoena.” App. 28a. According to Second Circuit, it thus had “no occasion to decide . . . the precise contours and limitations of presidential immunity from prosecution,” and was “express[ing] no opinion on the applicability of any such immunity under circumstances not presented here.” App. 15a. It instead framed the holding as “only that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the President.” App. 15a. The Second Circuit remanded the case “for further proceedings consistent with this opinion.” App. 29a.

REASONS FOR GRANTING THE PETITION

The Second Circuit “decided an important question of federal law that has not been, but should be, settled by this Court.” Sup. Ct. Rule 10(c). This petition presents a critically important question about the existence and scope of a sitting President's temporary immunity from state criminal process. The Constitution's text, structure, and history all confirm that the District Attorney's grand-jury subpoena for the President's records violates Article II and the Supremacy Clause. The Second Circuit erred in holding otherwise. The Court should grant review and reverse the decision below.

I. Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve.

This petition involves an indisputably important issue. The Court has “long recognized the 'unique position in the constitutional scheme'” that the Presidency occupies. Clinton v. Jones, 520 U.S. 681, 698 (1997). Article II vests “[t]he executive Power” in one “President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. Article II thus gives the President vast authority over foreign and domestic affairs. He must, among other things, command the armed forces, negotiate treaties, appoint and remove federal officers, and “take Care that the Laws be faithfully executed.” U.S. Const. art. II, §§ 2-3. In short, the President is “the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982).

The President, accordingly, is different from all other constitutional officers. He is “the only person who is also a branch of government.” Jay S. Bybee, Who Executes the Executioner?, 2-SPG NEXUS: J. Opinion 53, 60 (1997). “Unlike federal lawmakers and judges,” in other words, “the President is at 'Session' twenty-four hours a day, every day. 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.” Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 713 (1995).

The “'power to perform'” these critical tasks, in turn, is “'necessarily implied'” from the vesting of them in the President. Fitzgerald, 457 U.S. at 749 (quoting 3 J. Story, Commentaries on the Constitution of the United States § 1563 (1st ed. 1833)). It is therefore imperative that the President not be “distract[ed] . . .  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. In order to perform his constitutionally assigned functions, the President must be “free from risk of control, interference, or intimidation by other branches,” id. at 760-61 (Burger, C.J., concurring), as well as from such intrusion by the States. For these reasons, this Court has rigorously scrutinized legal process issued to the President to ensure that it does not result in the “diversion of his energies.” Id. at 751 (majority opinion).

To that end, the Court reviews presidential claims of immunity or privilege without concern for circuit splits, percolation, or other criteria that ordinarily inform its decision whether to grant certiorari. In United States v. Nixon, for example, the Court granted certiorari even in the absence of judgment from the court of appeals given “the public importance of the issues presented and the need for their prompt resolution.” 418 U.S. 683, 686-87 (1974). In Clinton v. Jones, the Court granted review even assuming that the dispute was a “'one-of-a-kind case'” that presented a “novel constitutional question.” 520 U.S. at 689-90. The decision to grant certiorari was a marker of the presidential immunity question's “importance” — it was not a “judgment concerning the merits of the case.” Id. at 689. The case's importance was bolstered by the “representations made on behalf of the Executive Branch” that the Eighth Circuit's ruling “was 'fundamentally mistaken' and created 'serious risks for the institution of the Presidency.'” Id. at 689-90.

The Court's solicitude is attributable to the fact that the President — both as a litigant and as a constitutional officer — is no “'ordinary individual.'” Nixon, 418 U.S. at 708 (quoting United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (Marshall, C.J.)). The Court has always understood the “high degree of respect due the President of the United States,” id. at 715, and it has consistently recognized the office's “singular importance” in maintaining “the effective functioning of government,” Fitzgerald, 457 U.S. at 751.

The Court should do the same here. For the first time in our Nation's history, a local prosecutor has issued criminal process — this grand-jury subpoena — directed at a sitting President, as part of a criminal investigation into the President himself. Whether the Constitution permits an assertion of this kind of authority over the Chief Executive raises a momentous question of first impression about the scope of Presidential immunity. The President's “novel and serious,” App. 13a, immunity claim is no less worthy of review than those raised in Nixon, Fitzgerald, and Jones.

If anything, the Court's intervention is more urgently needed here. The earlier cases all involved the imposition of federal process. But the concerns associated with exposing the President to state process are far more serious. That is true as a practical matter given the sheer number of state and local prosecuting offices. The potential for abuse is also graver given that, unlike their federal counterparts, state and local prosecutors are not under centralized control and, in many cases, have assumed office by local election. In fact, the District Attorney's criminal subpoena threatens the balance of power between the national and state governments. “Because the Supremacy Clause makes federal law 'the supreme Law of the Land,' Art. VI, cl. 2, any direct control by a state . . . over the President, who has principal responsibility to ensure that those laws are 'faithfully executed,' Art. II, § 3,” implicates concerns far beyond — and far more acute — than those raised in previous immunity cases. Jones, 520 U.S. 691 n.13. For state and local prosecutors, the President is an “easily identifiable” and often politically expedient target. Fitzgerald, 457 U.S. at 751-53.

In sum, as the Executive Branch explained in its amicus briefs below, the President's immunity claim involves “serious,” “significant,” and “weighty constitutional issues.” CA2 Doc. 83 at 8; D.Ct. Dkt. 32 at 6. Every time that a President has asked this Court to hear an important and unsettled claim of immunity under the Constitution, it has granted certiorari. The Court should do the same here.

II. The Second Circuit incorrectly decided this important immunity question.

A. The District Attorney's subpoena violates the absolute immunity that the President holds from state criminal process while in office.

Under Article II, the Supremacy Clause, and the overall structure of our Constitution, the President of the United States cannot be “subject to the criminal process” while he is in office. Memorandum for the U.S. Concerning the Vice President's Claim of Constitutional Immunity 17, In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965 (D. Md.) (Bork Memo). The requirement for immunity is especially clear when the criminal process originates, as it did here, from a state or local prosecutor. No court — until this case — has ever suggested otherwise.

That the President cannot be indicted, prosecuted, or imprisoned while in office should not be controversial. See Fitzgerald, 457 U.S. at 749 (citing 3 Story § 1536). As explained, the President has vast and ceaseless duties in domestic and foreign affairs. See supra 14-15. “It is his responsibility to take care that the laws be faithfully executed.” Free Enter. Fund v. PCAOB, 561 U.S. 477, 493 (2010). Because “the President is a unitary executive,” when “the President is being prosecuted, the presidency itself is being prosecuted.” Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2-SPG NEXUS: J. Opinion 11, 12 (1997).

Thus, as the Office of Legal Counsel has repeatedly explained, the criminal prosecution of a sitting President violates Article II. “To wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” Memorandum from Robert G. Dixon, Jr., Asst. Att'y Gen., O.L.C., Re: Amenability of the President, Vice President, and Other Civil Officers to Federal Criminal Prosecution While in Office 30 (Sept. 24, 1973) (Dixon Memo). Those wounds go beyond physical constraints on the President's liberty, diversion of the President's attention from his official duties, or demands on the President's time. Criminal prosecution comes with a “distinctive and serious stigma” — and the “stigma and opprobrium associated with a criminal charge” could “undermin[e] the President's leadership and efficacy both here and abroad.” A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 O.L.C. Op. 222, 249-51 (Oct. 16, 2000) (Moss Memo).

Other provisions of the Constitution bolster this understanding. By its terms, Article II only authorizes the President's “remov[al]” via “Impeachment.” U.S. Const. art. II, § 4. A sitting President “convicted” by the Senate can then be “liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Id. art. I, § 3, cl. 7. The Constitution's use of the past-tense “convicted” reinforces that the President cannot be subject to criminal process before that juncture. See Bybee 54-65.

Any other rule is untenable. It would allow a single prosecutor to circumvent the Constitution's specific rules for impeachment. See Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 610 (1838). The Constitution's assignment of the impeachment power to the House of Representatives, and its supermajority requirement for removal by the Senate, ensure that “the process may be initiated and maintained only by politically accountable legislative officials” who represent a majority of the entire nation. Moss Memo 246; see Dixon Memo 32; see also Amar & Kalt 12 (“The President is elected by the entire polity and represents all 260 million citizens of the United States of America. If the President were prosecuted, the steward of all the People would be hijacked from his duties by an official of few (or none) of them.”).

Moreover, the Framers' debates at the Philadelphia Convention “strongly suggest an understanding that the President, as Chief Executive, would not be subject to the ordinary criminal process.” Bork Memo 6. The Framers understood “that the nation's Chief Executive, responsible as no other single officer is for the affairs of the United States, would not be taken from duties that only he can perform unless and until it is determined that he is to be shorn of those duties by the Senate.” Id. at 17. Oliver Ellsworth and John Adams, for example, believed that “the President, personally, was not the subject to any process whatever. . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.” Journal of William Maclay 167 (Edgar S. Maclay ed., 1890). Later, Thomas Jefferson opined that if, through compulsory process, “the several courts could bandy [the President] from pillar to post, keep him constantly trudging from north to south & east to west,” they could “withdraw him entirely from his constitutional duties.” 9 The Writings of Thomas Jefferson 60 (Paul Leicester Ford ed., 1898).

When the Framers discussed the possibility of subjecting a President to criminal process, they agreed that it would occur after impeachment and removal from office. See, e.g., Federalist No. 69, at 416 (Alexander Hamilton) (Rossiter ed., 1961) (“The President . . . would be liable to be impeached, tried, and, upon conviction . . . would afterwards be liable to prosecution and punishment in the ordinary course of law.” (emphasis added)); 2 Farrand, Records of the Federal Convention 500 (rev. ed. 1966) (Gouverneur Morris: “A conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment.” (emphasis added)); Federalist No. 77, at 464 (Alexander Hamilton) (discussing impeachment and “subsequent prosecution in the common course of law” (emphasis added)).

The rationale for presidential immunity from indictment and prosecution applies equally when, as here, the President is targeted for criminal investigation and then served with compulsory process. Article II requires that “all aspects of criminal prosecution of a President must follow impeachment” and that “removal from office must precede any form of criminal process against an incumbent President.” Nixon v. Sirica, 487 F.2d 700, 757 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (emphasis added). Allowing the sitting President to be targeted for criminal investigation — and to be subpoenaed on that basis — would, like an indictment itself, distract him from the numerous and important duties of his office, intrude on and impair Executive Branch operations, and stigmatize the presidency.

Moreover, allowing a single prosecutor to investigate a sitting President through the issuance of criminal process no less invades Congress's impeachment authority than the filing of a criminal charge. Investigation of wrongdoing by the President is a “NATIONAL INQUEST.” The Federalist No. 65, at 397 (Alexander Hamilton). “If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves.” Id.; see also Mazars, 940 F.3d at 750 (Rao, J., dissenting).

The constitutional prohibition on subjecting a sitting President to criminal process is especially strong when applied to state and local governments. See Jones, 520 U.S. at 691 n.13. The Supremacy Clause exists to ensure that States are unable to “defeat the legitimate operations” of the federal government. M'Culloch v. Maryland, 17 U.S. 316, 427 (1819). “It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” Id. Subjecting a sitting President to state criminal process would “prostrat[e]” the federal government “at the foot of the states.” Id. at 432.

As the Fifth Circuit told an Alabama grand jury when it attempted to investigate a Justice Department lawyer:

Both the Supremacy Clause and the general principles of our federal system of government dictate that a state grand jury may not investigate the operation of a federal agency. . . . [T]he investigation . . . is an interference with the proper governmental function of the United States . . . [and] an invasion of the sovereign powers of the United States of America. If the [State] had the power to investigate . . ., it has the power to do additional acts in furtherance of the investigation; to issue subpoenas to compel the attendance of witnesses and the production of documents, and to punish by fine and imprisonment for disobedience. When this power is asserted by a state sovereignty over the federal sovereignty, it is in contravention of our dual form of government and in derogation of the powers of the federal sovereignty. The state having the power to subpoena . . . could embarrass, impede, and obstruct the administration of a federal agency. No federal agency can properly function if its employees are being constantly called from their duties

. . . .

United States v. McLeod, 385 F.2d 734, 751-52 (5th Cir. 1967). Giving every state and local prosecutor in the country the unfettered authority that the District Attorney claims here to issue criminal process to a sitting President implicates all these concerns.

This is true as a principle of sovereignty and without regard to the extent of the burden the state interference imposes on federal operations. See North Dakota v. United States, 495 U.S. 423, 437-38 (1986) (“States may not directly obstruct the activities of the Federal Government.”); M'Clung v. Silliman, 19 U.S. 598, 605 (1821) (a state court cannot issue a mandamus to an officer of the United States because that officer's “conduct can only be controlled by the power that created him”). That said, the practical threat that state criminal process poses to a President cannot be overstated. State and local prosecutors have massive incentives to target him with investigations and subpoenas to advance their careers, enhance their reelection prospects, or make a political statement. Unleashing all fifty states and thousands of local governments to conduct their own broad-ranging criminal investigations of a sitting President is unimaginable. It would overrun the right of the people to “a vigorous Executive.” Amar & Kalt 20-21.

The foregoing principles resolve this dispute in favor of immunity here. The District Attorney served the sitting President, through his custodian, with compulsory criminal process. There is no dispute that the President is a target of this grand jury investigation. See, e.g., App. 22a (explaining “that the grand jury is investigating not only the President, but also other persons and entities.” (emphasis added)); App. 117a-120a (naming the President and seeking his personal records). Indeed, the most that the Second Circuit would say is that “it is unclear whether the President will be indicted.” App. 22a. The district court was likewise only willing to say that the grand jury “may or may not ultimately target [i.e., indict] the President.” App. 53a.

As the record stands, then, the legal dispute must be resolved on the understanding that the District Attorney's subpoena was issued to support “a finding that it is probable that the President has committed a crime.” Sirica, 487 F.2d at 758 (MacKinnon, J., concurring in part and dissenting in part). That insinuation, even if it is made “obliquely,” would “vitiate the sound judgment of the Framers that a President must possess the continuous and undiminished capacity to fulfill his constitutional obligations.” Id. Granting a sitting President immunity from criminal process ensures that this does not happen.

The Second Circuit's reasons for reaching a different conclusion are misplaced. To begin, the Second Circuit made a key conceptual error by focusing on whether this subpoena interferes with the President's execution of his duties under Article II. App. 18a-19a & n.12, 21a. Presidential immunity does not turn on the idiosyncratic burdens (or lack thereof) of a particular subpoena. This Court always takes a categorical approach to presidential immunity.

This Court did not inquire, for example, whether Mr. Fitzgerald's suit alone “would raise unique risks to the effective functioning of government.” Fitzgerald, 457 U.S. at 751. The Court recognized that “the President would be an easily identifiable target for suits for civil damages” and, collectively, those civil suits “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. Similarly, this Court did not scrutinize whether the suit brought by Ms. Jones would — in and of itself — “create[ ] serious risks for the institution of the Presidency.” Jones, 520 U.S. at 689. Rather, the Court surveyed the “200-year history of the Republic” and then asked whether “this particular case — as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn — may impose an unacceptable burden on the . . . office.” Id. at 701-02 (emphasis added).

There is no basis for framing a narrower immunity inquiry here. The question, therefore, is not whether this criminal subpoena will burden or distract the President. It is whether allowing every state or local prosecutor to target the President for criminal investigation via the issuance of compulsory process would cross the constitutional barrier erected by Article II and the Supremacy Clause. It clearly would.

The Second Circuit's reliance on precedent to reject the President's immunity claim fares no better. App. 15a-16a. The court principally relies on United States v. Nixon. App. 16a-24a. But that reliance is misplaced. The kind of legal process at issue here is distinguishable from Nixon in several respects.

First, Nixon involved federal — not state — process. See 418 U.S. at 707 (stressing how presidential immunity would “gravely impair the role of the courts under Art. III”). The difference is material. The President's asserted privilege created a conflict between coequal branches of government. Nixon had no occasion to consider the “contravention of our dual form of government” or the “derogation of the powers of the federal sovereignty” that would result from a state exercising direct control over the President of the United States. McLeod, 385 F.2d at 752. Moreover, as the Executive Branch explained below: “In contrast to a United States Attorney, who is accountable to the Attorney General and to the President, who in turn is accountable to the Nation as a whole, a local prosecutor is accountable to a small and localized electorate.” CA2 Doc. 83 at 15.

Second, the subpoena upheld in Nixon asked the President to provide evidence in someone else's criminal proceeding; the President was not himself a target. 418 U.S. at 710. Indeed, the Nixon Court refused to decide whether a grand jury could name a sitting President as an unindicted coconspirator — an issue on which the Court had originally granted the United States' cross-petition for certiorari. See 418 U.S. at 687 n.2.

The differences between treating the President as a witness in a criminal proceeding and treating him as a target in a criminal proceeding are important. Only the latter carries the “distinctive and serious stigma,” the “public . . . allegation of wrongdoing,” and “the unique mental and physical burdens” that are “placed on a President facing criminal charges.” Moss Memo 249-52; see also Alberto R. Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. U. L. Rev. 905, 940 n.153 (2019). Those are the concerns that drive the inquiry into whether the President should be immune.

Third, the Nixon subpoena involved another person's criminal trial — not a grand jury investigation. The Second Circuit dismissed this distinction solely due to the comparable importance of trial juries and grand juries. App. 22a-24a. But the dispute is not over the important function served by grand juries. The point is that a trial triggers additional (and competing) constitutional rights held by the criminal defendant. That is why the Court stressed that criminal defendants enjoy Fifth and Sixth Amendment rights that stake a constitutional claim, even vis-à-vis the President, to the “production of all evidence at a criminal trial.” Nixon, 418 U.S. at 711. Those concerns are simply not present in a grand jury investigation.

Fourth, Nixon neither considered nor decided a claim of presidential immunity. App. 18a-19a & n.14. This Court labeled its analysis: “THE CLAIM OF PRIVILEGE.” Id. at 703. Under that heading, the Court briefly explained that the President was arguing that “the separation of powers doctrine precludes judicial review of a President's claim of privilege.” Id. Later, the Court noted that one argument supporting the President's claim for “absolute privilege rests on the doctrine of separation of powers . . . [, which] insulates the President from a judicial subpoena.” Id. at 706. The Second Circuit read this to be an assertion of immunity from criminal process separate from the claim of executive privilege — i.e., the argument that the President raises here. App. 19a n.14. But, especially given that the Court addressed the argument in a section concerning the President's “claim of privilege,” the better reading is that the only “immunity” claim raised was an argument that courts have no power to review the invocation of privilege; that is, as soon as a President asserts privilege, no court has the power to overcome that claim.

The President's reading is confirmed by the Court's treatment of the Government's cross-petition, which “raised the issue whether the grand jury acted within its authority in naming the President as a coconspirator.” 418 U.S. 687 n.2. The Court found resolution of the issue “unnecessary to resolution of the question whether the claim of privilege is to prevail,” and therefore dismissed the cross-petition as improvidently granted. Id. In other words, because the Court concluded that President Nixon was a mere third-party witness, only raising a claim of privilege, the Court did not need to decide any broader immunity question. That is why this “Court's analysis focused almost entirely on privilege.” App. 19a.

The Second Circuit also points to Jones and Burr. But neither case considered — let alone decided — this issue. In Jones, as the Second Circuit recognized, the Court merely reiterated that “'the President is subject to judicial process in appropriate circumstances.'” App. 15a (quoting Jones, 520 U.S. at 703). But it never decided whether subjecting the President to judicial process is appropriate in this kind of case. Indeed, the Court was careful to leave open whether a civil suit brought in state court would be constitutionally permissible, and it flagged the violation of the Supremacy Clause that the President raises here. See id. at 691 & n.13.

The Second Circuit also highlights that, as in Jones, the Mazars subpoena has no “relation to the President's performance of his official functions.” App. 17a; see also App. 18a (“These documents do not implicate, in any way, the performance of his official duties.”). But that cannot be a relevant consideration here unless the Second Circuit was deciding the issue it claimed to leave open, viz., “whether the President is immune from indictment and prosecution while in office.” App. 28a. If presidential immunity turns on official versus unofficial conduct, a sitting President could be indicted, prosecuted, and imprisoned for “failing to pay state taxes, or of driving while intoxicated.” App. 82a. Jones certainly did not decide that issue.

Burr also did not address the issue presented here. In that case, Chief Justice Marshall, sitting as a trial judge, subpoenaed President Jefferson to produce a private letter to prove the innocence of the criminal defendant (Aaron Burr) — not to prove Jefferson's guilt. See Burr, 25 F. Cas. at 32. Chief Justice Marshall explained that while “[t]he court would not lend its aid to motions obviously designed to manifest disrespect to the government,” it was appropriate to issue a subpoena “for papers to which the accused may be entitled, and which may be material in his defence.” Id. at 35; see also Akhil Reed Amar, Nixon's Shadow, 83 Minn. L. Rev. 1405, 1408 (1999). In a later opinion, the Chief Justice noted that, had President Jefferson himself objected to the subpoena, rather than delegate all authority over the task to an attorney, “all proper respect would have been paid” to the objection. 25 F. Cas. at 192.

To be sure, then, the Second Circuit is correct that Burr “upheld the issuance of a subpoena duces tecum to President Jefferson.” App. 15a. But, like Jones, it did not decide this kind of immunity case. That is why the Second Circuit ultimately, and correctly, acknowledges that “the Supreme Court has not had occasion to address this question.” App. 21a (emphasis added).

Finally, the Second Circuit determined that the fact that the subpoena was issued to the President's accountants instead of to him directly mattered to the immunity inquiry: “The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.” App. 20a. But that distinction is legally and factually untenable.

As an initial matter, the Second Circuit did not hold that issuing the subpoena to Mazars rendered the claim of immunity non-cognizable. It was clear that the “President has standing to challenge the Mazars subpoena.” App. 20a n.15. That is of course right. The District Attorney sent the subpoena to Mazars precisely because it is the President's custodian. Mazars is meant to function, at least for the District Attorney's purposes, as the President — just without the inconvenience of having the subpoena resisted or having its legality tested in court. Allowing this type of behavior to defeat immunity would “frustrate . . . judicial inquiry.” Eastland v. U.S Servicemen's Fund, 421 U.S. 491, 501 n.14 (1975); see United States v. AT&T Co., 551 F.2d 384, 385 (D.C. Cir. 1976).

Rather, the Second Circuit seized on the third-party nature of the subpoena to substantiate its conclusion that compliance will not burden the President because he will not have to physically “do anything.” App. 20a. But immunity does not turn on whether the President will personally take charge of compliance. If it did, state and local prosecutors from around the country could criminally subpoena a sitting President's medical, legal, banking, and countless other personal papers held by third-party custodians without implicating immunity. In all these instances, the President would not have “to do or produce anything.” For presidential immunity to mean anything, it cannot be so easily evaded. Subpoenas to custodians must be treated as though they were sent to the target directly.

It is also a hollow distinction. Even if the subpoena were sent to the President, it is unrealistic to assume that he would personally search through and compile documents responsive to this or any subpoena. And again, immunity does not turn on whether he would. In Fitzgerald, immunity turned on the burdens of “concern,” “fear[ ],” and “distract[ion].” 457 U.S. at 752-53. The same burdens should be decisive here. What matters is that the District Attorney is targeting the President for criminal investigation and issuing compulsory process for his personal papers in an effort to build a case against him. The issue is whether this criminal process will create a “burden or distraction” that “would rise to the level of interfering with his duty to 'faithfully execute[ ]' the laws, U.S. Const. art. II, § 3, or otherwise subordinate federal law in favor of a state process.” App. 21a. That issue cannot be avoided because the District Attorney sent the subpoena for the President's papers to his accountants, rather than to him.

B. The subpoena is unconstitutional even if Nixon controls this dispute.

As explained, the Second Circuit's reliance on Nixon was erroneous. But even if Nixon controls this case, the subpoena is still invalid. That is because, under Nixon, the District Attorney still must have a “demonstrated, specific need” for the requested material. 418 U.S. at 713. In other words, he must “demonstrate that the Presidential material [is] 'essential to the justice of the (pending criminal) case.'” Id. (quoting Burr, 25 F. Cas. at 192). Other courts have interpreted the standard to mean that the “evidence sought must be directly relevant to issues that are expected to be central” and “not available with due diligence elsewhere.” In re Sealed Case, 121 F.3d at 754-55. This stands in stark contrast to the ordinary rule that a grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950).

In the Second Circuit's view, however, the heightened Nixon standard applies only when a President asserts a claim of executive privilege. App. 27a-28a. That is incorrect. Nixon itself acknowledged that “'in no case of this kind would a court be required to proceed against the president as against an ordinary individual.'” 418 U.S. at 708 (quoting Burr, 25 F. Cas. at 192). That is a strong signal that the heightened standard applies without regard to the assertion of privilege.

Cheney v. U.S. District Court for D.C. illustrates the point. 542 U.S. 367 (2004). “Special considerations control,” the Court explained, when the “autonomy” of the President's office is at stake. Id. at 385. It matters to the analysis whether, as in Nixon, the subpoena “'precisely identified' and 'specifically enumerated' the relevant materials” or, as in Cheney, the discovery requests asked for “everything under the sky.” Id. at 387 (cleaned up). “The very specificity of the subpoena requests serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Id.

The District Attorney cannot satisfy the heightened showing required under Nixon. The subpoena to Mazars is not tailored to the needs of this grand jury investigation. Indeed, the District Attorney did not even try to tailor it to investigative needs. He just photocopied congressional subpoenas relating to federal issues that New York County has no authority to investigate, and sent it to Mazars. This subpoena is, by definition, grossly overbroad and the District Attorney's claim that it “mirrored certainly the scope of what [he] needed from Mazars,” D.Ct. Dkt. 38 at 30, is meritless on its face.

The District Attorney, moreover, has failed to even assert that his sweeping request for the President's private documents is particularly important or that the information he seeks is accessible only through those specific records — much less that he needs these documents in order to file a criminal charge. Cf. In re Sealed Case, 121 F.3d at 754-55. To be sure, duplicating a congressional subpoena may be more “efficient.” CA2 Doc. 99 at 46. But efficiency is no substitute for the demonstrated, specific need that is required of any subpoena that purports to compel production of documents from a sitting President. See Nixon, 418 U.S. at 713; Cheney, 542 U.S. at 387; see also Burr, 25 F. Cas. at 191-92.³

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

William S. Consovoy
Alexa R. Baltes
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com

Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
patrick@consovoymccarthy.com

Jay Alan Sekulow
Counsel of Record
Stuart J. Roth
Jordan Sekulow
CONSTITUTIONAL LITIGATION AND ADVOCACY GROUP, P.C.
1701 Pennsylvania Ave, NW, Ste. 200
Washington, DC 20006
(202) 546-8890
jsekulow@claglaw.com