Case 19-3204, Document 83, 10/11/2019, 2678811, Page1 of 36

No. 19-3204
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DONALD J. TRUMP,
Plaintiff-Appellant,
v.
CYRUS R. VANCE, JR., in his official capacity as District Attorney
of the County of New York, and MAZARS USA, LLP,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of New York
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
JOSEPH H. HUNT
Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
MARK R. FREEMAN
SCOTT R. MCINTOSH
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718

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TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE AND SUMMARY OF ARGUMENT ................1
ARGUMENT ............................................................................................................................5
I.

Subjecting The President To State Criminal Process Raises
Significant Constitutional Questions .......................................................................... 5
A.

The President’s office is unique in the constitutional structure ................. 5

B.

The Supremacy Clause bars States from interfering with
the President’s discharge of his duties ............................................................ 7

II.

The District Court Erred In Concluding That Younger Required It To
Abstain From Resolving The President’s Suit ..........................................................9

III.

The District Court Erred In Upholding A State Criminal Subpoena
Demanding The President’s Personal Records Without Requiring,
At A Minimum, A Heightened And Particularized Showing Of Need .............. 15
A.

Article II and the Supremacy Clause preclude a State from
arresting, indicting, prosecuting, or imprisoning an incumbent
President ............................................................................................................ 16

B.

Because a state criminal subpoena seeking the President’s
personal records poses a threat of unconstitutional state
interference, a state prosecutor must, at a minimum,
establish a demonstrated, specific need for the records ............................ 19

C.

The District Court failed to conduct the heightened and
particularized review that the Nixon standard demands ............................ 24

D.

This Court should stay enforcement of the subpoena as
to the President’s records .............................................................................. 27

CONCLUSION ..................................................................................................................... 28
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
Cases:

Page(s)

Cheney v. U.S. Dist. Court for Dist. of Columbia,
542 U.S. 367 (2004) ..............................................................................................5, 7, 11, 16
Clinton v. Jones,
520 U.S. 681 (1997) ....................................................................................... 2, 5, 6, 7, 8, 23
Commodities Exp. Co. v. Detroit Int’l Bridge Co.,
695 F.3d 518 (6th Cir. 2012) ..............................................................................................11
Davis v. Elmira Sav. Bank,
161 U.S. 275 (1896) ............................................................................................................... 8
Dennis v. Higgins,
498 U.S. 439 (1991) .............................................................................................................15
Diamond “D” Const. Corp. v. McGowan,
282 F.3d 191 (2d Cir. 2002) ...............................................................................................10
Franklin v. Massachusetts,
505 U.S. 788 (1992) ............................................................................................................... 6
Free Enter. Fund v. PCAOB,
561 U.S. 477 (2010) .......................................................................................................... 3, 6
Golden States Transit Corp. v. City of Los Angeles,
493 U.S. 103 (1989) .............................................................................................................15
Grand Jury Subpoena, In re,
93 N.Y.2d 729 (1999)..........................................................................................................19
Hancock v. Train,
426 U.S. 167 (1976) ............................................................................................................... 7
Helvering v. Davis,
301 U.S. 619 (1937) ............................................................................................................... 9
Illinois v. Allen,
397 U.S. 337 (1970) .............................................................................................................17
ii

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Judicial Watch, Inc. v. U.S. Secret Serv.,
726 F.3d 208 (D.C. Cir. 2013) ...........................................................................................13
Kugler v. Helfant,
421 U.S. 117 (1975) .............................................................................................................10
McClung v. Silliman,
19 U.S. (6 Wheat.) 598 (1821).............................................................................................. 8
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819)......................................................................................... 2, 7
Mesa v. California,
489 U.S. 121 (1989) .............................................................................................................13
Mitchum v. Foster,
407 U.S. 225 (1972) ...................................................................................................... 12, 15
Moore v. Sims,
442 U.S. 415 (1979) .............................................................................................................10
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ..................................................................................... 2, 5, 6, 7, 11, 26
Pearson v. Callahan,
555 U.S. 223 (2009) .............................................................................................................27
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ............................................................................................................... 9
Sealed Case, In re,
121 F.3d 729 (D.C. Cir. 1997) ......................................................................... 4, 20, 21, 22
Sprint Commc’ns, Inc. v. Jacobs,
571 U.S. 69 (2013) .......................................................................................................... 9, 10
State of Colorado v. Symes,
286 U.S. 510 (1932) ............................................................................................................... 8
Tarble, In re,
80 U.S. (13 Wall.) 397 (1871) ............................................................................................... 8

iii

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Tennessee v. Davis,
100 U.S. 257 (1880) ............................................................................................................... 8
Trump, In re,
No. 19-5196, 2019 WL 3285234 (D.C. Cir. July 19, 2019) ...........................................14
Trump v. Mazars USA LLP,
No. 19-5142, 2019 WL 5089748 (D.C. Cir. Oct. 11, 2019) ..........................................14
United States v. Belmont,
301 U.S. 324 (1937) ............................................................................................................... 7
United States v. Burr,
25 F. Cas. 187 (CC Va. 1807) ..................................................................................... 11, 22
United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304 (1936) ........................................................................................................ 6, 17
United States v. Gagnon,
470 U.S. 522 (1985) .............................................................................................................17
United States v. Morton Salt Co.,
338 U.S. 632 (1950) .............................................................................................................19
United States v. Nixon,
418 U.S. 683 (1974) ........................................................................................... 4, 21, 22, 24
United States v. R. Enters., Inc.,
498 U.S. 292 (1991) ...................................................................................................... 18, 19
Virag v. Hynes,
54 N.Y.2d 437 (1981)..........................................................................................................20
Younger v. Harris,
401 U.S. 37 (1971) .......................................................................................................... 3, 10

iv

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U.S. Constitution:
Art. I:
§ 2, cl. 5 ..............................................................................................................................16
§ 3, cl. 6 ..............................................................................................................................16
§ 3, cl. 7 ..............................................................................................................................16
§ 4 ......................................................................................................................................... 6
§ 5 ......................................................................................................................................... 6
Art. II:
§ 1 ......................................................................................................................................... 2
§ 2 ......................................................................................................................................... 6
Art. VI, cl. 2 (Supremacy Clause) ........................................................................................ 7

Statutes:
Anti-Injunction Act,
28 U.S.C. § 2283 ..................................................................................................................12
28 U.S.C. § 1442(a)(1) .............................................................................................................13
42 U.S.C. § 1983 ............................................................................................................... 12, 15

Other Authorities:
A Sitting President’s Amenability to Indictment & Criminal Prosecution,
24 U.S. Op. Off. Legal Counsel 222 (2000) ....................................................... 16, 17, 18
Memorandum for the U.S. Concerning the Vice President’s Claim of Constitutional
Immunity, In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965
(D. Md. Oct. 5, 1973)..........................................................................................................16
William J. Stuntz, The Pathological Politics of Criminal Law,
100 Mich. L.R. 505, 533 (2001) ........................................................................................... 8

v

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INTEREST OF AMICUS CURIAE AND SUMMARY OF ARGUMENT
This case involves the first attempt in our Nation’s history by a local prosecutor
to subpoena personal records of the sitting President of the United States. President
Trump, in his individual capacity, filed suit in federal district court against the District
Attorney for the County of New York—as well as the accounting firm that received
the subpoena—seeking emergency relief from the subpoena under Article II and the
Supremacy Clause.
The district court denied the President’s request for relief and dismissed his
suit. The court concluded that it was obligated to abstain from considering a federal
constitutional challenge to a state grand jury subpoena even at the behest of the
President asserting Article II prerogatives. In the alternative, the court rejected the
President’s challenge to the subpoena on the merits, giving essentially dispositive
weight to its view that the President’s tax returns and other personal financial records
may be relevant to the District Attorney’s investigation of third parties beyond the
President. The United States files this brief as amicus curiae because the court’s
procedural and substantive holdings reflect a fundamental misunderstanding of the
relationship between the President and the state criminal process under our
constitutional system of federalism.1

The United States has previously participated in cases that have presented
other issues concerning the President’s amenability to suit or compulsory process.
See, e.g., Trump v. Deutsche Bank AG, No. 19-1540 (2d Cir.) (Aug. 19, 2019) (whether a
1

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As an overarching matter, any assertion of state criminal jurisdiction over the
President raises significant constitutional issues. The President occupies a “unique
position in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
He alone is vested with “[t]he executive Power” of the United States, U.S. Const.
art. II, § 1, along with the myriad duties in the conduct of domestic and foreign affairs
that are assigned to him by Article II. State criminal process directed at him and his
personal records risks compromising his discharge of those constitutionally mandated
powers and duties. It also raises serious issues under the Supremacy Clause, which
prohibits states from interfering with the operations of the federal government
without consent. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). The
structure of state criminal justice systems, which place prosecutorial authority in the
hands of thousands of elected local officials, enhances the risk that a state official will
prioritize local concerns and disregard the burdens on federal interests imposed by a
grand jury subpoena directed at the President’s personal records. In light of these
principles, expanded upon below, the district court erred both in refusing to exercise
jurisdiction and in declining to halt the District Attorney’s enforcement of the
subpoena against the President’s personal records.

congressional subpoena seeking the President’s personal financial records from a
third-party custodian is enforceable); Clinton v. Jones, 520 U.S. 681 (1997) (whether civil
litigation in federal court against the President for pre-tenure conduct may proceed
during his tenure); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (whether the President is
immune from civil actions for damages based on official conduct).
2

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First, when a sitting President invokes the jurisdiction of a federal court to
challenge a state grand jury subpoena on federal constitutional grounds, a federal
court must resolve that challenge. Contrary to the district court’s conclusion, the
abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), does not require
a federal court to refrain from exercising jurisdiction. The comity interests underlying
that doctrine must give way to the concerns under Article II and the Supremacy
Clause posed by a state grand jury subpoena that demands the sitting President’s
personal records.
Second, Article II and the Supremacy Clause constrain a State’s ability to
invoke its criminal process against a sitting President. A State plainly could not arrest
or imprison a President during his term of office, which would incapacitate the single
officer in whom the executive power of the United States is vested. Even without
such detention, a state criminal indictment and prosecution would subject the
President to burdens that would impermissibly “impair [the Chief Executive] in the
performance of his constitutional duties.” Free Enter. Fund v. PCAOB, 561 U.S. 477,
500 (2010). Recognition of these principles does not place the President above the
law; it merely postpones initiation of any potential criminal prosecution until his term
of office ends.
In light of these profound Article II and federalism concerns, a federal court
must, at a minimum, require a heightened, particularized showing for any state
criminal subpoena for a President’s personal records. It is well established that, where
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a federal prosecutor or grand jury seeks privileged information from the President, a
“demonstrated, specific need” for the records requested must be established. United
States v. Nixon, 418 U.S. 683, 713 (1974); In re Sealed Case, 121 F.3d 729, 755 (D.C. Cir.
1997). It must be shown that the requested material is “essential” to the proceeding,
Nixon, 418 U.S. at 713, and that it cannot be obtained with “due diligence” elsewhere,
In re Sealed Case, 121 F.3d at 755. Given the threat to the operation of the Executive
Branch posed by state grand jury subpoenas directed at the President and his personal
records, state prosecutors should be required to make at least as rigorous a showing
for all such records, privileged or not.
Although the district court purported to apply the analytic framework set forth
in Nixon, the court’s conclusory analysis falls well short of the careful scrutiny that the
Nixon standard demands in this context. Among other things, the court failed to
evaluate whether the District Attorney had demonstrated a specific and immediate
need for the personal records of the President and whether any centrally important
information in those records could not be obtained elsewhere. For example, although
the court justified its decision to sustain the subpoena’s request for the President’s
records primarily on the ground that the requested records “may” reveal unlawful
conduct by parties other than the President, the court never explained why the
immediate production of the personal records of the President was essential to the
state grand jury’s investigation of those third parties.

4

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In light of the district court’s failure to undertake the requisite analysis, its
decision should be reversed. The court should be ordered to stay enforcement of the
subpoena as to the President’s personal records unless and until—at a minimum—the
District Attorney is able to make the required showing of particularized need.
ARGUMENT
I.

Subjecting The President To State Criminal Process Raises Significant
Constitutional Questions
A.

The President’s office is unique in the constitutional structure

The Supreme Court has long recognized that “the high respect that is owed to
the office of the Chief Executive . . . should inform the conduct of [an] entire
proceeding” implicating the autonomy of his office. Cheney v. U.S. Dist. Court for Dist.
of Columbia, 542 U.S. 367, 385 (2004) (quoting Clinton v. Jones, 520 U.S. 681, 707
(1997)). That respect is demanded by our constitutional design. The President
occupies a “unique position in the constitutional scheme.” Fitzgerald, 457 U.S. at 749.
While the Constitution vests the legislative and judicial powers in collective bodies, it
vests “[t]he executive Power” in the President alone. U.S. Cont. art. II, § 1. His
office, unlike those of other executive officers, does not depend on Congress for its
existence or its powers. The Constitution “entrust[s] [the President] with supervisory
and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald, 457 U.S. at
750. And it is he alone “who is charged constitutionally to ‘take Care that the Laws be
faithfully executed.’” Id. Among other critical responsibilities, the President serves as

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“the sole organ of the federal government in the field of international relations,”
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), and is the
Commander-in-Chief of the military, U.S. Const. art. II, § 2.
In constitutional and practical terms, the President’s power and responsibilities
under Article II are “so vast and important that the public interest demands that he
devote his undivided time and attention to his public duties.” Clinton, 520 U.S. at 697.
Our system of government presumes that the President will have ultimate authority
over the actions of officials within the Executive Branch. Free Enter. Fund, 561 U.S. at
496-97. In both the demands it places on its occupant and the accountability it
expects, the Presidency is a singular office. The unceasing nature of the President’s
duties is also reflected in the constitutional structure of his office. In contrast to the
Congress, which is required to assemble only “once in every Year” (U.S. Const. art. I,
§ 4) and which may adjourn on a regular basis (id. § 5), the President must attend to
his duties as Chief Executive and Commander-in-Chief continuously during his
tenure.
Finally, due to the “special nature of the President’s constitutional office and
functions” and “the singular importance of [his] duties,” the Constitution requires
particular “deference and restraint” in the conduct of litigation involving the
President. Fitzgerald, 457 U.S. at 751-56. The Supreme Court has held, for example,
that a court may not enjoin the President in the conduct of his official duties and that
Congress may subject the President to a statute’s dictates only if it states its intention
6

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to do so clearly. Franklin v. Massachusetts, 505 U.S. 788, 800-01, 803 (1992). Concerns
about the impact of litigation on the President’s ability to perform his constitutional
functions have likewise led the Supreme Court to hold that the President is absolutely
immune from civil damages liability for his official actions, Fitzgerald, 457 U.S. at 756,
and that he is entitled to special solicitude in discovery, Cheney, 542 U.S. at 385, even
in suits solely related to his private conduct, Clinton, 520 U.S. at 707. Constitutional
concerns also must guide a court’s assessment of the President’s entitlement to
judicial review and relief. Cheney, 542 U.S. at 385 (concerning mandamus relief from
discovery order).
B.

The Supremacy Clause bars States from interfering with the
President’s discharge of his duties

The Supremacy Clause, U.S. Const. Art. VI, cl. 2, mandates that “the activities
of the Federal Government [be] free from regulation by any state.” Hancock v. Train,
426 U.S. 167, 167 (1976). As Chief Justice Marshall long ago explained, “[i]t 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.” McCulloch, 17 U.S. at 427. The Supremacy
Clause thus deprives the States of power “to retard, impede, burden, or in any manner
control, the operations” of the federal government in executing its constitutional
functions. Id. at 436. Under our constitutional system, it is “inconceivable” that a
state law or policy could “be interposed as an obstacle to the effective operation of a

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federal constitutional power.” United States v. Belmont, 301 U.S. 324, 332 (1937); see
Davis v. Elmira Sav. Bank, 161 U.S. 275, 283 (1896) (any attempt by a State to “control
the conduct of the” national government or to “impair[] the efficiency of th[e]
agencies of the federal government to discharge the[ir] duties” is “absolutely void”);
Tennessee v. Davis, 100 U.S. 257, 263 (1880).
Those principles apply equally to a State’s invocation of its judicial process.
For example, as a result of the “distinct and independent character of the government
of the United States,” “State judges and State courts” lack authority to issue a writ of
habeas corpus directing federal officers to release persons held under federal
authority. In re Tarble, 80 U.S. (13 Wall.) 397, 407-12 (1871). So too, States lack
authority to issue writs of mandamus directed at federal officers. McClung v. Silliman,
19 U.S. (6 Wheat.) 598, 604-05 (1821).
Congress and the Supreme Court have long recognized the deep-rooted federal
interest in “safeguarding officers and others acting under federal authority against
peril of punishment for violation of state law or obstruction or embarrassment by
reason of opposing policy on the part of those exerting or controlling state power.”
State of Colorado v. Symes, 286 U.S. 510, 517 (1932) (discussing federal-officer removal
statute). The structure of state criminal justice systems exacerbates the risk that
“possible local prejudice,” Clinton, 520 U.S. at 691, may lead state criminal
investigations to interfere with locally unpopular federal authorities and priorities.
There are more than 2,300 district attorneys across the United States, the vast majority
8

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of whom are locally elected, often by voters in a single county. See William J. Stuntz,
The Pathological Politics of Criminal Law, 100 Mich. L.R. 505, 533 (2001). 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. He or she is thus far more susceptible
to the particularized interests and views of the local community—the same
community from which the grand jury is typically drawn, and one that may strongly
oppose the policies and priorities of the federal government in general and the
President in particular. Moreover, even setting aside the potential for local bias, state
officials are, as a structural matter, not tasked with considering the effects their actions
will have on the federal government and the Nation as a whole. Cf. Helvering v. Davis,
301 U.S. 619, 644 (1937) (States are not likely to take action that would “serve the
[national] interests of all” where doing so would “disadvantage” their citizens).
II.

The District Court Erred In Concluding That Younger Required It
To Abstain From Resolving The President’s Suit
The Supreme Court has described Younger abstention as an “exceptional”

departure from federal courts’ “virtually unflagging” “obligation” to exercise
jurisdiction conferred by Congress despite the pendency of related proceedings in
state court. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013). Like other federal
abstention doctrines, Younger ultimately rests on “the historic discretion exercised by
federal courts ‘sitting in equity.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 718

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(1996). In the case of Younger abstention, when a plaintiff asks a federal court to
enjoin a pending state criminal proceeding, principles of “comity” and “[f]ederalism”
generally call for the federal court to exercise that equitable discretion by declining to
intervene. Younger, 401 U.S. at 44.
But, reflecting its exceptional nature, Younger has important limitations. See
Sprint Commc’ns, Inc., 571 U.S. at 73. Even when a plaintiff seeks to enjoin an ongoing
state criminal proceeding, “a federal court may nevertheless intervene in [the] state
proceeding upon a showing of ‘bad faith, harassment or any other unusual
circumstance that would call for equitable relief.’” Diamond “D” Const. Corp. v.
McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (quoting Younger, 401 U.S. at 54); see Kugler
v. Helfant, 421 U.S. 117, 125 (1975) (federal court may intervene when there is “an
extraordinarily pressing need for immediate federal equitable relief”). Likewise, a
federal court may intervene if “the state proceedings [do not] afford an adequate
opportunity to raise constitutional claims.” Moore v. Sims, 442 U.S. 415, 430 (1979). In
each of these circumstances, principles of comity and federalism give way to
countervailing considerations in the exercise of the court’s equitable discretion. So
too here.
To be sure, the Supreme Court has generally described pending “state criminal
prosecutions” as one of the “exceptional” circumstances in which Younger abstention
is warranted. Sprint Commc’ns, Inc., 571 U.S. at 73. But neither that Court nor any
other has ever considered whether such abstention is warranted in the unique scenario
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in which the President of the United States invokes a federal court’s jurisdiction to
challenge a state criminal subpoena, asserting claims grounded in Article II and the
Supremacy Clause. In shutting the doors of the federal courts to such a claim by the
President himself, the district court erroneously extended Younger far into uncharted
territory.
The principles of federalism and comity that undergird Younger abstention
militate strongly in favor of ensuring that the President has a federal forum in which
to litigate federal claims that a state criminal subpoena is impermissibly trenching on
his constitutional role in violation of Article II and the Supremacy Clause. Remitting
the sitting President to state court would turn notions of federalism and comity on
their head and would ignore the “unique position [the President occupies] in the
constitutional scheme.” Fitzgerald, 457 U.S. at 749; see Cheney, 542 U.S. at 381-82 (“[I]n
no case . . . would a court be required to proceed against the president as against an
ordinary individual.” (quoting United States v. Burr, 25 F. Cas. 187, 192 (CC Va. 1807)
(Marshall, C.J.)).
Indeed, “[c]omity generally refers to the respect that [federal courts] accord a
state court[,] [b]ut comity is a two-way street.” Commodities Exp. Co. v. Detroit Int’l
Bridge Co., 695 F.3d 518, 527 (6th Cir. 2012). When a local tribunal takes the
extraordinary step of issuing compulsory process for the personal records of a sitting
President, comity calls for ensuring the availability of a federal forum for the President
to challenge enforcement of that subpoena, particularly given that the President’s
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constitutional claims implicate the very relationship between the federal and state
governments under the Supremacy Clause. And by the same token, the state’s interest
in litigating such an unusual dispute in a state forum is minimal.
Both the Supreme Court and Congress have recognized that the type of claims
the President has raised belong in federal rather than state court. With respect to the
Supreme Court, that conclusion follows from the manner in which it has interpreted
the Anti-Injunction Act, 28 U.S.C. § 2283, which generally prohibits suits seeking a
federal injunction against state court proceedings. The Anti-Injunction Act contains
certain express exceptions, including one where, as here, the plaintiff asserts a federal
constitutional claim under 42 U.S.C. § 1983 against a person acting under color of
state law. See infra p. 15 n.2. But even where none of the Act’s express exceptions
apply, the Court has recognized an implied exception for suits by the federal
government. Mitchum v. Foster, 407 U.S. 225, 235-36 & n.20 (1972). The same respect
for the federal government that caused the Court to recognize an implied exception to
the Act’s express prohibition strongly suggests that the Court would not extend
Younger abstention’s implied limitation to the President when seeking injunctive relief
against state criminal proceedings in order to vindicate the constitutional rights,
privileges, and immunities of his office under Article II.
Congress, for its part, has not only authorized Section 1983 suits, but also
authorized federal officers to remove from state court to federal court any “civil
action or criminal prosecution . . . against or directed to . . . any officer . . . of the
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United States for or relating to any act under color of such office,” so long as the
officer is asserting a federal defense to the action. 28 U.S.C. § 1442(a)(1); Mesa v.
California, 489 U.S. 121, 124-25 (1989). That is important because, if the state grand
jury had issued a subpoena to the President himself, the President could have taken
measures enabling him to invoke Section 1442 to contest the validity of the subpoena
in federal court—namely, by declining to comply on the basis of Article II and the
Supremacy Clause, waiting for the commencement against him of a subpoena
enforcement proceeding in state court, and then removing that proceeding under
Section 1442 on the ground that the subpoena enforcement action would “relate” to
his “act” of declining to comply with the subpoena “under color” of his assertion of
the constitutional authority of his office.
Although the state grand jury in this matter has sought the President’s records
by subpoenaing his third-party accountant rather than the President himself, that is
not a material distinction for purposes of Younger abstention. As just discussed, the
President would be entitled to review in federal court if the District Attorney had
sought his personal records directly from him. The President should not lose access
to that federal forum simply because the President’s records are sought from a thirdparty custodian. Cf. Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 225 (D.C. Cir.
2013) (White House visitor records in the possession of the Secret Service are not
agency records subject to FOIA.). The President has little practical choice but to rely
on third-party accountants and professionals to prepare and maintain his financial
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records. State criminal subpoenas directed to the President’s records in the hands of
such a custodian pose the same threat of distraction, harassment, and interference—
and thus raise the same fundamental federalism concerns—as subpoenas issued to
him personally, especially given that he would not be expected to personally compile
the requested records himself regardless. Cf. Trump v. Mazars USA LLP, No. 19-5142,
slip op. 24 (D.C. Cir. Oct. 11, 2019) (recognizing that a congressional subpoena issued
to the President’s accounting firm for financial documents created “in his prepresidential, private capacities” nonetheless implicates the separation of powers); In re
Trump, No. 19-5196, 2019 WL 3285234, at *1 (D.C. Cir. July 19, 2019) (recognizing
that third-party discovery requests by Members of Congress concerning President’s
alleged receipt of emoluments raised separation-of-powers concerns).
The district court suggested that a federal forum might be appropriate in cases
where “state prosecutors [were] more clearly target[ing the] President on politicized
grounds.” Op. 27 n.9. It is difficult to credit the suggestion either that the President
is not a principal focus of this subpoena (even if not the sole focus) or that its subject
matter is not “politicized,” given that (i) the President’s tax returns have been the
subject of intense political controversy since he became a candidate for office, and (ii)
the subpoena is, as the district court acknowledged, a virtual carbon copy of a
subpoena that the Committee on Oversight and Reform of the United States House
of Representatives has issued as part of a conceded investigation of the President. See
Op. 28-29; Tr. 76-77, Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir.).
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Moreover, the district court failed to appreciate the troubling position in which federal
courts would be placed if their abstention decisions required them to determine
whether there is sufficient basis to conclude that a local prosecutor is demanding the
President’s records for political reasons. Rather than wade into that minefield, this
Court should hold that, for all the reasons above, Younger abstention is simply not
warranted in this exceptional context.2
III.

The District Court Erred In Upholding A State Criminal Subpoena
Demanding The President’s Personal Records Without Requiring,
At A Minimum, A Heightened And Particularized Showing Of
Need
The unique and critical role of the President under Article II, and the

relationship between the federal government and the States under the Supremacy
Clause, constrain the application of state criminal processes to a sitting President.
Those limits are most obvious in the context of a criminal prosecution of the

The district court correctly concluded that the Anti-Injunction Act does not
independently bar the President’s suit under 42 U.S.C. § 1983. Op. 12-13 (citing
Mitchum, 407 U.S. at 243). The President validly invoked Section 1983, as he alleges a
deprivation by the District Attorney of “rights, privileges, or immunities secured by
the Constitution”—specifically, a freedom from enforcement of the subpoena that
the President claims Article II secures to him and him alone. Although the district
court mentioned “doubts” (Op. 13 n.4) as to whether the President’s asserted “rights,
privileges, or immunities” are “sufficiently specific and definite” to be within “the
competence of the judiciary to enforce,” Golden States Transit Corp. v. City of Los Angeles,
493 U.S. 103, 108 (1989), Article II is no more “vague and amorphous,” id. at 106,
than other constitutional provisions enforceable through Section 1983, such as the
dormant Commerce Clause, Dennis v. Higgins, 498 U.S. 439, 446-51 (1991).
2

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President himself, and they must inform the proper analysis of state criminal
subpoenas demanding the President’s personal records.
A.

Article II and the Supremacy Clause preclude a State from
arresting, indicting, prosecuting, or imprisoning an
incumbent President

Any attempt by a State to arrest, indict, prosecute, or imprison an incumbent
President in connection with a criminal prosecution would of course obstruct the
President’s execution of his constitutional duties. A Sitting President’s Amenability to
Indictment & Criminal Prosecution, 24 U.S. Op. Off. Legal Counsel 222, 247-48 (2000)
(2000 OLC Memo). Although the district court suggested that only a “lengthy”
imprisonment would necessarily interfere with the President’s ability to discharge his
constitutional functions, Op. 4, that qualifier is absurd, as imprisonment of any length
would unquestionably impede the President’s ability to address the unceasing
demands of his office. And the court’s remarkable suggestion underscores its more
general failure to take account of “[t]he high respect that is owed to the office of the
Chief Executive.” Cheney, 542 U.S. at 385.
Allowing a State to incapacitate a sitting President would also circumvent the
Constitution’s carefully crafted impeachment process. U.S. Const. art. I, § 2, cl. 5; id.
§ 3, cls. 6 & 7. The Framers “assumed the nation’s Chief Executive, responsible as no
other single officer 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.” Memorandum for the U.S. Concerning the Vice
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President’s Claim of Constitutional Immunity (Bork Memo) 17, In re Proceedings of the
Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965 (D. Md. Oct. 5, 1973).
Even absent detention, the filing of criminal charges and the initiation of
criminal proceedings against a sitting President would impermissibly interfere with the
President’s oversight of the Nation’s affairs. “The constitutional provisions governing
criminal prosecutions make clear the Framers’ belief that an individual’s mental and
physical involvement and assistance in the preparation of his defense both before and
during any criminal trial would be intense, no less so for the President than for any
other defendant.” 2000 OLC Memo, at 251. The Fifth and Sixth Amendments, for
example, guarantee a defendant the right to be present at trial and at all other critical
proceedings, to confront witnesses against him, and to the assistance of counsel (a
right necessarily premised on the defendant’s ability to communicate with such
counsel). See, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970); United States v. Gagnon, 470
U.S. 522, 526 (1985).
In short, the Constitution envisions active participation by the defendant in his
defense throughout a state criminal prosecution, and the President is no different.
The President’s defense would “inevitably entail a considerable if not overwhelming
degree of mental preoccupation.” 2000 OLC Memo, at 254.
A state criminal indictment would also impose a stigma on the President that
would undermine his standing and credibility both at home and abroad, impairing his
role as the Nation’s chief decisionmaker in domestic matters and “sole organ” in
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international affairs, Curtiss-Wright, 299 U.S. at 320. An indictment is an official
pronouncement, by a public body, that there is probable cause to believe that the
defendant has committed a crime. United States v. R. Enterprises, Inc., 498 U.S. 292,
297-98 (1991). “Indictment alone [thus] risks visiting upon the President the
disabilities that stem from the stigma and opprobrium associated with a criminal
charge.” 2000 OLC Memo, at 250-51.
Again exhibiting a fundamental misunderstanding of the nature of the
Presidency, the district court suggested that the President would not be unduly
burdened or stigmatized by a prosecution and conviction for not “very serious
offenses,” such as “failing to pay state taxes” or “driving while intoxicated.” Op. 5960. The suggestion that the crimes of tax evasion and driving while intoxicated are
not “very serious,” or that the Nation’s Chief Executive would be justified in treating
such charges as insignificant matters, is bizarre.
As the district court noted, the Department of Justice has previously set forth
its longstanding position that a President may not be arrested, indicted, prosecuted, or
imprisoned in the context of a federal criminal prosecution. Op. 48; 2000 OLC
Memo., at 223 n.2. The principles that underlie the Department’s longstanding
position apply a fortiori to a State’s attempt to prosecute or imprison a sitting
President. And the federalism principles discussed above provide even stronger
grounds for denying a State the power to arrest, indict, prosecute, or imprison an
incumbent President. See supra Part I.B. Given that, for example, a State cannot issue
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a writ of habeas corpus or mandamus directing even a single federal officer to take
official actions, it would be perverse if a State could prosecute, much less detain, the
President and thereby disable the entire Executive branch. And state interference
with the federal government’s operations, prohibited by the Supremacy Clause, would
be at its zenith if a State elected to criminally prosecute the President.
B.

Because a state criminal subpoena seeking the President’s
personal records poses a threat of unconstitutional state
interference, a state prosecutor must, at a minimum,
establish a demonstrated, specific need for the records

1. Even when a State has not indicted an incumbent President, any assertion of
its criminal jurisdiction over the President—including through the issuance of a grand
jury subpoena seeking the President’s personal records—raises profound
constitutional concerns.
State grand jury demands for the President’s personal records risk substantially
burdening the President and diverting him from the discharge of his constitutional
functions. The broad scope of a grand jury’s investigatory powers could lead locally
elected prosecutors to demand intrusive information from the President. A grand
jury “can investigate merely on suspicion that the law is being violated, or even just
because it wants assurances that it is not.” United States v. Morton Salt Co., 338 U.S.
632, 642–643 (1950). “As a necessary consequence of its investigatory function, the
grand jury paints with a broad brush.” R. Enterprises, 498 U.S. at 297; see also In re
Grand Jury Subpoena, 93 N.Y.2d 729, 740 (1999). In New York, “given the ranging,

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exploratory nature and operation of a Grand Jury,” a witness who seeks to quash a
subpoena “must demonstrate ‘that a particular category of documents can have no
conceivable relevance to any legitimate object of investigation by the . . . grand jury.’”
Virag v. Hynes, 54 N.Y.2d 437, 444 (1981).
The “necessary breadth of grand jury’s inquiries,” In re Sealed Case, 121 F.3d at
756, means that state grand jury subpoenas could impose substantial burdens on the
President’s time, attention, and discharge of his constitutional duties. This could
occur when the President is merely a third party from whom a state grand jury seeks
to obtain testimony or evidence that is remotely or tangentially related to the matter
under investigation. And the risk is particularly serious if the President is himself a
potential focus of the grand jury’s investigation. Just as an indictment and
prosecution could be expected to divert the President’s attention and energy from his
official duties to his personal legal jeopardy, a demand for the President’s own records
will necessarily be a distraction when the President himself is a possible focus of the
criminal investigation. See supra pp. 13-14 (explaining that subpoenaing a third-party
custodian of the President’s records does not eliminate the burdens on the President
himself).
As discussed (supra Part I.B), the structural incentive of locally elected
prosecutors to prioritize local concerns poses a serious risk that a local grand jury or
prosecutor may subject the President to demands that impermissibly burden his
performance of his unique and critical constitutional responsibilities. At a minimum,
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state prosecutors are ill positioned to place significant weight on the impact of their
local decisions on the functioning of the federal government. By contrast, structural
features of the federal criminal justice system, including the important role played in
grand jury proceedings by federal prosecutors within the Department of Justice,
mitigate the risk that federal grand juries will subject a sitting President to
inappropriately disruptive investigatory demands. When considering whether to
subpoena the President’s personal records, federal prosecutors are uniquely
positioned to evaluate and take account of both the benefits and burdens of such an
extraordinary demand. State prosecutors are not.
2. It is unprecedented for a sitting President’s personal records to be a subject
of a state criminal subpoena. And in the rare instances where courts have addressed a
federal criminal subpoena that has sought the President’s records, they have not done
so in connection with an investigation that squarely focused on the President in whole
or in part. See, e.g., Nixon, 418 U.S. at 687-89 (subpoena sought records from the
President, who was not indicted, in connection with the trial of six other individuals).
Yet even in those instances, courts have demanded that the federal prosecutors who
sought the President’s privileged records make a heightened and particularized
showing of need for the documents’ production. See id. at 713 (“demonstrated,
specific need”); In re Sealed Case, 121 F.3d at 754. Given the unprecedented nature of
the District Attorney’s actions in this case and the unique constitutional concerns that
those actions raise, the District Attorney must at a minimum meet the heightened
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requirements set forth in Nixon before obtaining the President’s personal records,
whether privileged or not.
In concluding that the standard “govern[ing] grand jury subpoenas is no more
lenient than the need standard enunciated for trial subpoenas in Nixon,” the D.C.
Circuit explained that “Nixon’s demonstrated, specific need standard has two
components.” In re Sealed Case, 121 F.3d at 754, 756. First, elaborating on Nixon’s
requirement that “the Presidential material [be] ‘essential to the justice of’” the case,
418 U.S. at 713 (quoting Burr, 25 F. Cas. at 192), the court stated that the “evidence
sought must be directly relevant to issues that are expected to be central” to the jury’s
decision to indict. In re Sealed Case, 121 F.3d at 754. And in considering whether a
prosecutor has made the requisite showing of a vital need for the production of the
President’s records, a court must evaluate the need for immediate production, as
opposed to after the President leaves office. Second, a prosecutor must also
demonstrate that the evidence specifically requested and immediately needed “is not
available with due diligence elsewhere.” Id. at 755. This requirement “reflects Nixon’s
insistence” that presidential materials “should not be treated as just another source of
information.” Id. A subpoena directed at a President’s records should be permitted
only “as a last resort.” Id. at 761.
To be sure, the Supreme Court in Nixon articulated the foregoing requirements
in response to the separation-of-powers concerns with disrupting the functioning of
the Executive Branch when a federal prosecutor seeks to compel the President to
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produce privileged communications. See 418 U.S. at 707-08. But the need to protect
the President from the disruption risked by intrusive and burdensome demands for
information is at least as pressing in the context of a State’s criminal demand for a
President’s personal records. As discussed, the constitutional framework created by the
Supremacy Clause prohibits a State from interfering with the federal government’s
functions absent its consent. See supra Part I.B. The heightened standards set forth in
Nixon as a means of minimizing interference with the President’s constitutional
functions are no less appropriate—and indeed may be even more necessary—to
protect those functions from unwarranted demands for the President’s personal
records by state criminal investigations, whether deliberate or inadvertent.
The district court emphasized the statement in Clinton v. Jones that the Supreme
Court had “never suggested that the President, or any other official, has an immunity
that extends beyond the scope of any action taken in an official capacity.” Op. 69
(quoting 520 U.S. at 694). But the district court overread this statement. Clinton also
emphasized that an “immunity’s justifying purposes” define the “sphere of protected
action.” 520 U.S. at 694. Thus, while Clinton permitted a federal court action for the
President’s private conduct to go forward, the Court expressly acknowledged that a
different rule might apply to actions brought in state court, given the “federalism and
comity concerns” such a suit would raise and “the interest in protecting federal
officials from possible local prejudice.” Id. at 691. At a minimum, those interests

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justify applying Nixon’s heightened standard to a local subpoena demanding the
President’s personal records.
C.

The District Court failed to conduct the heightened and
particularized review that the Nixon standard demands

In concluding that the President was not likely to succeed on his claim that the
grand jury subpoena should be set aside, the district court purported to apply an
“analytic framework” derived from the Supreme Court’s decision in Nixon. Op. 7072. But the court’s cursory analysis falls well short of what the Nixon standard
properly demands when a state criminal tribunal subpoenas the President’s personal
records, in large part because the court again failed to take full account of the unique
status and singular duties of the Presidency.
Most significantly, the district court at no point required the District Attorney
to establish a “demonstrated, specific need” for the President’s personal records.
Nixon, 418 U.S. at 713. Rather than evaluate whether the records were “essential” to
the grand jury’s investigation, the district court concluded that the records should be
disclosed merely because they “may” reveal “unlawful conduct by third persons and
possibly the President.” Op. 72. The court never analyzed, much less found, that the
President’s personal records were central to the alleged illegal conduct being
investigated; that any centrally important information in those records needed to be
obtained immediately rather than after the President’s term ends; or that such
information could not be obtained from another source. Insofar as the President is

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the principal focus of this state investigation, requiring the immediate production of
his own records is unlikely, absent unusual circumstances, to be essential to the grand
jury’s investigation, given that the state grand jury may not indict him while he
remains in office. See supra Part III.A. And insofar as a third party is the focus, the
prosecutor would have to establish that the immediate disclosure of the President’s
personal tax returns was somehow vital to the state grand jury’s function of
determining whether that third party committed a state crime.
The district court identified a number of factors that it believed could affect
whether immediate production of the President’s records should be compelled, but
then failed to apply those factors. For example, the court noted that the running of
the statute of limitations could weigh in favor of immediate disclosure. Op. 62. But
the court never found that any applicable statute of limitations would expire before
the President’s term ends, Op. 72, and it failed to take account of the possibility of
tolling. Likewise, to the extent the District Attorney may fear spoliation of evidence
(notwithstanding that the President’s records are in the custody of a third-party
accountant), a preservation order until the President’s term comes to an end could
suffice to meet the grand jury’s needs.
The district court’s analysis was flawed in additional respects. The court
concluded, for example, that the “burdens and interference the President describes in
this case” would not “substantially impair the President’s ability to perform his
constitutional duties.” Op. 72 (emphasis added). But the Supreme Court has stressed
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that courts are not to view the potential burden imposed on the President by a single
proceeding in isolation, but rather to evaluate the potential burden on the President of
allowing litigation of a particular type to proceed. See Fitzgerald, 457 U.S. at 751-53. It
is not difficult to imagine that a federal court decision permitting a local grand jury to
take the unprecedented step of subpoenaing the President’s personal records would
open the door to additional, burdensome requests. Indeed, the district court
recognized as much. Op. 27 n.9 (acknowledging that a ruling in the District
Attorney’s favor “might embolden state-level investigation of future Presidents”).
Ultimately, the district court placed near-conclusive weight on the fact that the
records sought “relate to a time before [the President] assumed office” and might
reveal unlawful conduct by “third persons.” Op. 72. But the court did nothing to
dispel the unavoidable impression that the President is himself at least a focus of this
carbon-copied criminal subpoena seeking his personal tax returns and other financial
records, if not the principal focus. See supra p. 14. And regardless, while the criminal
investigation of third parties is undoubtedly an important interest that warrants
consideration under the Nixon standard, it remains the case that this subpoena of the
President’s personal records raises substantial Article II and Supremacy Clause
concerns that the court’s perfunctory analysis entirely failed to accommodate.

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D.

This Court should stay enforcement of the subpoena as to
the President’s records

For the reasons explained above, the district court erred in concluding that the
District Attorney was entitled to immediate production of the President’s personal
records. The court’s decision should therefore be reversed and further enforcement
of the subpoena stayed as to the President’s records.
Contrary to the district court’s conclusion (Op. 40-43), the President will be
irreparably harmed absent a stay, even assuming that there will not be any improper
public disclosure of grand jury materials. If the President were required to comply
with state grand jury subpoenas first and litigate their validity second, his entitlement
under Article II and the Supremacy Clause to be unburdened by such state criminal
process over his personal records would be “effectively lost.” Cf. Pearson v. Callahan,
555 U.S. 223, 231 (2009).

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CONCLUSION
The district court’s judgment should be reversed, and the court should be
ordered to stay enforcement of the state grand jury subpoena as to the President’s
personal records unless and until, at minimum, the District Attorney makes the
required showing of particularized need.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
MARK R. FREEMAN
SCOTT R. MCINTOSH

/s/ Gerard Sinzdak
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
gerard.j.sinzdak@usdoj.gov

October 2019

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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 29 and Local Rule 29.1 because it contains 6,963 words. This brief also
complies with the typeface and type-style requirements of Federal Rule of Appellate
Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in
Garamond 14-point font, a proportionally spaced typeface.

s/ Gerard Sinzdak
Gerard Sinzdak

 Case 19-3204, Document 83, 10/11/2019, 2678811, Page36 of 36

CERTIFICATE OF SERVICE
I hereby certify that on October 11, 2019, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the
Second Circuit by using the appellate CM/ECF system. Participants in the case are
registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
s/ Gerard Sinzdak
Gerard Sinzdak