No. 19-635
In the

Supreme Court of the United States
DONALD J. TRUMP,
Petitioner,
v.
CYRUS R. VANCE, JR., IN HIS OFFICIAL CAPACITY
AS DISTRICT ATTORNEY OF THE COUNTY
OF NEW YORK, et al.,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Second Circuit

BRIEF IN OPPOSITION
Carey R. Dunne*
General Counsel
Christopher Conroy
Solomon B. Shinerock
James H. Graham
Sarah Walsh 
A llen J. Vickey
Assistant District
Attorneys

New York County
District Attorney’s Office
One Hogan Place
New York, NY 10013
(212) 335-9000
dunnec@dany.nyc.gov

Counsel for Respondent Cyrus R. Vance, Jr.
* Counsel of Record

 i
QUESTION PRESENTED
Whether presidential immunity bars the
enforcement of a state grand jury subpoena directing
a third party to produce material which pertains to
the President’s unofficial and non-privileged conduct.

 ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
TABLE OF CONTENTS ............................................ ii
TABLE OF CITED AUTHORITIES ......................... iv
INTRODUCTION .......................................................1
STATEMENT OF THE CASE ....................................2
A. Factual Background .........................................2
B. Procedural History ...........................................6
REASONS FOR DENYING THE WRIT ..................11
A. This
Court’s
Intervention
Is
Unwarranted Because The Decision
Below Correctly Resolved A Narrow
Question Controlled By This Court’s
Precedents ......................................................11
1. This Court’s Precedents Establish
That A President’s Records May Be
Subpoenaed In The Circumstances
Here ...........................................................12
2. Petitioner’s Contrary Arguments Are
Meritless ....................................................20
a. The
Question
Whether
A
President May Be Indicted Or
Detained Is Irrelevant To The
Issue Here ............................................20

 iii
b. That The President May Be
Among Several Potential Subjects
Of The Grand Jury’s Investigation
Does Not Distinguish Nixon ................24
c. That The Subpoena Was Issued
By A State Rather Than Federal
Grand Jury Only Confirms Its
Propriety ..............................................26
d. There Is No Basis For Applying A
Heightened Need Standard In
The Circumstances Here .....................31
B. There
Are
No
Additional
Considerations That Counsel In
Favor Of This Court’s Review ..................32
C. This Court Should Expeditiously
Resolve The Petition For Certiorari
And, If Necessary, The Merits Of This
Dispute ......................................................34
CONCLUSION ..........................................................36

 iv
TABLE OF CITED AUTHORITIES
Page(s)
Cases:
Branzburg v. Hayes,
408 U.S. 665 (1972) ..............................................18
Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004) ........................................29, 32
Clinton v. Jones,
520 U.S. 681 (1997) ...................................... passim
Committee on Ways & Means v.
U.S. Department of Treasury,
No. 19-cv-1974 (D.D.C. Sept. 6, 2019) ...........35, 36
Gamble v. United States,
139 S. Ct. 1960 (2019)..........................................30
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ........................31, 32
Lockerty v. Phillips,
319 U.S. 182 (1943) ..............................................30
M’Clung v. Silliman,
19 U.S. 598 (1821) ................................................27
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ...................................... passim
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) .................. 14, 23, 24
North Dakota v. United States,
495 U.S. 423 (1986) ..............................................27
Office of President v. Office of Indep. Counsel,
521 U.S. 1105 (1997) ............................................34

 v
Office of the President v. Office of the Indep.
Counsel,
525 U.S. 996 (1998) ..............................................34
Rubin v. United States,
525 U.S. 990 (1998) ..............................................34
Toussie v. United States,
397 U.S. 112 (1970)..............................................35
Trump v. Mazars USA, LLP,
No. 19-5142 (D.C. Cir.) ........................................35
United States v. Armstrong,
517 U.S. 456 (1996) ..............................................29
United States v. Burr,
25 F. Cas. 30 (C.C. Va. 1807)...............................29
United States v. Burr,
25 F. Cas. 187 (C.C. Va. 1807).............................13
United States v. Cohen,
366 F. Supp. 3d 612 (S.D.N.Y. 2019) ....................3
United States v. Cohen,
No. 18-cr-602, 2019 WL 3226988
(S.D.N.Y. July 17, 2019) ........................................4
United States v. Lee,
106 U.S. 196 (1882)..............................................36
United States v. McLeod,
385 F.2d 734 (5th Cir. 1967)................................27
United States v. Morrison,
529 U.S. 598 (2000) ........................................ 30-31
United States v. Nixon,
418 U.S. 683 (1974) ...................................... passim

 vi
United States v. R. Enterprises, Inc.,
498 U.S. 292 (1991) .................................. 18, 31, 32
Younger v. Harris,
401 U.S. 37 (1971)...................................... 6, 10, 30
Statutes and Other Authorities:
U.S. Const. amend. VI ........................................17, 35
U.S. Const. amend. X ................................................30
U.S. Const. art. I, § 3, cl. 7 ........................................22
U.S. Const. art. II .................................... 10, 18, 19, 33
U.S. Const. art. VI, cl. 2 ............................................27
A Sitting President’s Amenability to Indictment
and
Criminal
Prosecution,
24 Op. O.L.C. 222 (2000) ......................... 21, 22, 23
David A. Fahrenthold & Jonathan O’Connell,
After Selling Off His Father’s Properties,
Trump Embraced Unorthodox Strategies To
Expand His Empire, WASH. POST,
Oct. 8, 2018 ............................................................3
Fed. R. Crim. P. 17(c) ..........................................31, 32
Hearing with Michael Cohen, Former Attorney
to President Donald Trump: Hearing Before
the H. Comm. on Oversight and Reform,
116th Cong. 1 (Feb. 27, 2019) ............................ 3-4
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. 73-965 (D.
Md.) ......................................................................21

 vii
N.Y. Crim. Proc. Law § 190.25(4)(a).........................17
N.Y. Crim. Proc. Law § 190.50(5)(a).........................24
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 (Sept.
24, 1973) .........................................................21, 23
Tr. of Plea Hr’g United States v. Cohen, No. 18cr-602 (S.D.N.Y. Aug. 21, 2018), ECF No. 7 .........3

 1
INTRODUCTION
Petitioner’s main argument for review is that
when the President seeks a writ of certiorari asserting
immunity, this Court should grant it. But the petition
provides no compelling basis for this Court’s
intervention here.
Petitioner is correct that this Court has in the past
granted review to decide important and unanswered
questions of presidential immunity, including
whether the President can be subject to a subpoena
(yes), United States v. Nixon, 418 U.S. 683, 713
(1974), and whether the President can be sued while
in office (yes), Clinton v. Jones, 520 U.S. 681, 684
(1997). But this case presents only a narrow question
that is readily resolved by those very precedents:
whether a state may issue a subpoena to a third party
seeking financial records of the sitting President
when those records are relevant to a secret grand jury
investigation and have no relation to official actions
taken by the President during his time in office. The
court of appeals answered that question in the
affirmative, and that answer is plainly correct under
a straightforward application of this Court’s
precedent. The circumstances that counseled in favor
of review in cases like Nixon and Clinton—the
existence of a substantial open question regarding the
contours of presidential immunity relevant to the
public interest—simply do not exist here.
Indeed, there is no real public interest at stake
here at all; this case instead involves Petitioner’s
private interest in seeking his own and others’
immunity from an ordinary investigation of financial
improprieties independent of official duties. That is

 2
not the kind of interest that warrants this Court’s
intervention, particularly in the absence of any
genuine controversy over the legal question
presented.
The petition should be denied.
STATEMENT OF THE CASE
A. Factual Background
This case arises from an investigation commenced
in 2018 by the New York County District Attorney’s
Office (the “Office”). The investigation concerns a
variety of business transactions, and is based on
information derived from public sources, confidential
informants, and the grand jury process.1
In
connection with the investigation, the Office has
issued subpoenas on behalf of a sitting grand jury for
financial and other records of Petitioner, among many
other individuals and entities.
The subpoenas seek records, dating from 2011 to
the present, concerning transactions that are
unrelated to any official acts of the President, and
that occurred largely before Petitioner assumed office.
The subpoenas do not identify Petitioner (or anyone
else) as a “target” of the investigation, but were issued
as a routine part of the grand jury’s fact-gathering
process. The grand jury has not indicted Petitioner,
nor called for his detention, arrest, or prosecution.
1. During the course of the Office’s investigation,
there were multiple public reports of possible criminal
A summary overview of the scope and foundation of the
investigation is further detailed in the redacted portions of the
Shinerock Declaration, filed under seal. C.A. Dkt. 101.
1

 3
misconduct by employees of Petitioner’s New York
County-based Trump Organization. See, e.g., David
A. Fahrenthold & Jonathan O’Connell, After Selling
Off His Father’s Properties, Trump Embraced
Unorthodox Strategies To Expand His Empire, WASH.
POST, Oct. 8, 2018, https://wapo.st/35iWaId (reporting
on possible financial misconduct at the Trump
Organization dating back to at least 2005). The
reports described transactions—spanning more than
a decade—involving individual and corporate actors
who were based in New York County, but whose
conduct at times extended outside the County. The
reports raised the prospect that criminal activity had
occurred within the jurisdiction of the Office, and
within the applicable statutes of limitations,
particularly if the transactions involved a continuing
pattern of conduct. One of the issues reported on
related to “hush money” payments made on behalf of
Petitioner to two women with whom Petitioner
allegedly had extra-marital affairs.
In August 2018, Michael Cohen, Petitioner’s
longtime counselor, pleaded guilty in federal court to,
among other things, federal campaign finance
violations arising from the “hush money” payments to
one of the women. United States v. Cohen, 366 F.
Supp. 3d 612, 618 (S.D.N.Y. 2019). Mr. Cohen
admitted that he violated campaign finance laws in
coordination with, and at the direction of, an
unindicted coconspirator he later identified as
Petitioner. Tr. of Plea Hr’g at 23, United States v.
Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018), ECF
No. 7; Hearing with Michael Cohen, Former Attorney
to President Donald Trump: Hearing Before the H.
Comm. on Oversight and Reform, 116th Cong. 1, 11

 4
(Feb. 27, 2019). Around that time, in response to a
request from federal prosecutors, and in the interest
of ensuring that the ongoing federal investigation was
not unduly disrupted, the Office deferred its
investigation pending the outcome of the federal
matter.
Nearly a year later, on July 17, 2019, the Office
learned for the first time that the federal
investigation had concluded without any further
federal charges. See United States v. Cohen, No. 18cr-602, 2019 WL 3226988, at *2 (S.D.N.Y. July 17,
2019). Shortly thereafter, the Office resumed its
investigation into potential violations of state law,
including issues beyond those involved in the Cohen
matter.
2. Once its investigation resumed, the Office, on
behalf of the grand jury, began issuing subpoenas
duces tecum for financial and other records, including
financial statements and tax returns, and the
working papers necessary to prepare—and test—
those records.
On August 1, 2019, the Office served the Trump
Organization with a subpoena (the “Trump
Organization Subpoena”).
That subpoena seeks
records and communications relating to, among other
transactions, the “hush money” payments made on
behalf of Petitioner, how those payments were
reflected in the Trump Organization’s books and
records, and who was involved in determining how
those payments would be reflected in the Trump
Organization’s books and records. Shortly after
service of the Trump Organization Subpoena, the
Office conveyed to counsel for the Trump

 5
Organization its belief that tax returns are responsive
to the subpoena. The Trump Organization produced
certain documents (not including tax returns) on
August 15 and 29, September 13, October 4 and 31,
and November 12 and 20.
On August 29, 2019, the Office served Petitioner’s
accounting firm, Mazars USA LLP (“Mazars”), with a
subpoena (the “Mazars Subpoena”) that was likewise
issued on behalf of the grand jury. The Mazars
Subpoena seeks financial and tax records of several
individuals and entities, including Petitioner and
entities owned by Petitioner before he became
President, from January 1, 2011 to the present. The
records sought by the Mazars Subpoena are not
related to any official act of Petitioner in his capacity
as President of the United States, nor does the
subpoena require Petitioner himself to produce any
records.2
On September 17, 2019, counsel for the Trump
Organization requested a suspension of compliance
with the Mazars Subpoena pending further
negotiations or litigation.
Although the Office
declined to suspend the Mazars Subpoena
indefinitely, on September 18, 2019, the Office agreed
to suspend the tax-related portion of that subpoena
for five days to allow counsel to challenge it.

The Mazars Subpoena was patterned in part on a subpoena
already issued for some of the same records by the Committee on
Oversight and Reform of the United States House of
Representatives. This practice minimizes the burden on third
parties and enables expeditious production of responsive
documents.
2

 6
B. Procedural History
1. On September 19, 2019, Petitioner (represented
by private counsel) filed a civil lawsuit against
Mazars and Respondent Vance in federal district
court and simultaneously moved for emergency
injunctive relief, asserting that the Constitution
wholly exempts the President from any form of
“criminal process” or “investigation,” including a
subpoena for records held by a third party that are
unrelated to the President’s official conduct.
Respondent opposed Petitioner’s motion for
emergency relief and cross-moved to dismiss, arguing
that the court should abstain under Younger v. Harris,
401 U.S. 37 (1971); that Petitioner’s sweeping claim of
immunity is contrary to settled precedent, including
Nixon; and that Petitioner had failed to establish
irreparable harm.3 Briefing and argument was highly
expedited pursuant to an agreement between the
parties, and the Office agreed to temporarily forbear
enforcement of the Mazars Subpoena.
2. On October 2, 2019, one week after oral
argument before the court, the Department of Justice
(the “DOJ”) filed a Statement of Interest, asserting
that abstention was inappropriate but taking no
position on Petitioner’s preliminary injunction
motion. On October 7, 2019, the district court issued
its decision abstaining under Younger and, in the
alternative, rejecting Petitioner’s request for
injunctive relief based on his claim of absolute
immunity. Pet. App. 30a-95a.

3

Mazars took no position on the motion.

 7
3. Minutes later, Petitioner appealed to the
Second Circuit and moved to prevent the Office from
enforcing the Mazars Subpoena while the appeal was
pending.
Respondent cross-moved for expedited
briefing and argument, and the Second Circuit set a
highly expedited schedule. The briefing included a
submission by the DOJ as amicus curiae, which did
not endorse Petitioner’s claim of “temporary absolute
immunity,” but instead asserted that, under Nixon, a
President can indeed be compelled to respond to a
subpoena in a criminal case, so long as the prosecutor
makes a “heightened and particularized showing of
need.”4 The Second Circuit heard argument on
October 23, 2019.5
On November 4, 2019, a Second Circuit panel
unanimously affirmed the district court’s decision
that Petitioner is not entitled to injunctive relief. The
court held 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.” Pet. App.
15a. Emphasizing the narrow question presented—
4 The DOJ stated that Petitioner brought this litigation in
his “individual capacity,” disagreeing with Petitioner’s assertion
that he had brought it both in his personal capacity and in his
capacity as President.

After the Second Circuit imposed a brief administrative
stay, the Office informed Petitioner that it would voluntarily
forbear enforcement of the Mazars Subpoena pending any final
determination by this Court, in exchange for Petitioner’s
agreement to expeditiously brief his petition for a writ of
certiorari and to ask this Court to hear and decide the case this
Term, should certiorari be granted.
5

 8
namely, “when, if ever, a county prosecutor can
subpoena a third-party custodian for the financial and
tax records of a sitting President, over which the
President has no claim of executive privilege,” Pet.
App. 2a—the court held that Petitioner’s claim of
“temporary absolute presidential immunity” lacks
any basis in “historical and legal precedent,” Pet.
App. 15a.
The court recognized “the long-settled proposition
that ‘the President is subject to judicial process in
appropriate circumstances,’” pursuant to which
“presidents have been ordered to give deposition
testimony or provide materials in response to
subpoenas.” Pet. App. 15a-16a (citing Clinton, 520
U.S. at 703-05). “In particular, ‘the exercise of
jurisdiction [over the President] has been held
warranted’ when necessary ‘to vindicate the public
interest in an ongoing criminal prosecution.’” Pet.
App. 16a (quoting Nixon v. Fitzgerald, 457 U.S. 731,
754 (1982)).
Examining this Court’s precedent, the Second
Circuit held that Petitioner had failed to explain
“persuasively ... why, if executive privilege did not
preclude enforcement of the subpoena issued in
Nixon, the Mazars [S]ubpoena must be enjoined
despite seeking no privileged information and bearing
no relation to the President’s performance of his
official functions.” Pet. App. 17a. “[T]hat Nixon was
ordered to comply with a subpoena seeking
documents for a trial proceeding on an indictment
that named him as a conspirator,” the court observed,
“strongly suggests that the mere specter of ‘stigma’ or
‘opprobrium’ from association with a criminal case is

 9
not a sufficient reason to enjoin a subpoena—at least
when, as here, no formal charges have been lodged.”
Pet. App. 22a.
The court explained that it was “not faced ... with
the President’s arrest or imprisonment, or with an
order compelling him to attend court at a particular
time or place, or, indeed, with an order that compels
the President himself to do anything.” Pet. App. 20a.
The Mazars Subpoena “is directed not to the
President, but to his accountants,” id., and “seek[s] no
privileged information and bear[s] no relation to the
President’s performance of his official functions,” Pet.
App. 17a. Especially given these circumstances, the
court held, Petitioner failed to “explain why any
burden or distraction the third-party subpoena causes
would rise to the level of interfering with his duty to
faithfully execute the laws.” Pet. App. 21a (internal
quotation marks and alterations omitted).
At the same time, it would “exact a heavy toll on
our criminal justice system to prohibit a state from
even investigating potential crimes committed by [a
President] for potential later prosecution, or by other
persons ... simply because the proof of those alleged
crimes involves the President.” Pet. App. 23a-24a.
The “‘twofold aim’ that ‘guilt shall not escape or
innocence suffer,’ Nixon, 418 U.S. at 709, would be
substantially frustrated if the President’s temporary
immunity were interpreted to shield the conduct of
third parties from investigation,” the court explained.
Pet. App. 24a.
The Second Circuit saw “no obvious reason why a
state could not begin to investigate a President during
his term and, with the information secured during its

 10
search, ultimately decide to prosecute him after he
leaves office.”
Pet. App. 24a.
It noted that
memoranda from the DOJ’s Office of Legal Counsel
(the “OLC”) cited by Petitioner “are directed almost
exclusively to the question of whether the President
may be indicted,” an issue “that is not presented by
this appeal,” and observed that, in any event, one of
those memoranda “explicitly approves of a grand jury
continuing to gather evidence throughout the period
of” any presidential immunity from indictment. Pet.
App. 25a (internal quotation marks and alterations
omitted).
Finally, the court rejected the DOJ’s argument as
amicus curiae that a heightened showing of need is
required to subpoena documents relating to a
President, determining that cases cited by DOJ in
support of that argument address whether “a
subpoena can demand the production of documents
protected by executive privilege,” which “has little
bearing on a subpoena that, as here, does not seek any
information subject to executive privilege.” Pet. App.
27a. Accordingly, the court held, “any presidential
immunity from state criminal process does not bar the
enforcement” of a subpoena “demand[ing] production
by a third party of the President’s personal financial
records for use in a grand jury investigation while the
President is in office.” Pet. App. 28a.6 The court,

The court reversed the district court’s Younger abstention
ruling, reasoning that because a sitting President had invoked
federal jurisdiction to press federal interests arising out of
Article II and the Supremacy Clause, Petitioner’s claims “are
6

 11
construing the district court’s decision as a denial of
Petitioner’s motion for a preliminary injunction,
therefore affirmed that denial on the ground that
Petitioner’s immunity claim fails on the merits.7 Pet.
App. 2a.
REASONS FOR DENYING THE WRIT
Petitioner contends that certiorari is warranted
because this case presents an important and
unsettled question that the Second Circuit answered
incorrectly. Petitioner is wrong on both points:
resolution of this case follows directly from this
Court’s established precedent, and the Second Circuit
correctly applied that precedent in rejecting
Petitioner’s sweeping theory of absolute presidential
immunity. Whatever interests might counsel in favor
of review where there are substantial, open questions
regarding presidential immunity, they are not
present here.
A. This Court’s Intervention Is Unwarranted
Because The Decision Below Correctly
Resolved A Narrow Question Controlled
By This Court’s Precedents
The only question here is whether a third-party
custodian of the President’s financial records may be
subpoenaed for those records when they are relevant
to a secret grand jury investigation and completely
more appropriately adjudicated in federal court.” Pet. App. 13a.
Respondent does not seek this Court’s review of that ruling.
Should this Court deny the petition, or affirm the decision
of the Second Circuit, no further proceedings will be necessary
beyond the district court’s entry of final judgment for
Respondent on the ground identified by the Second Circuit.
7

 12
unrelated to any official action (and in fact were
largely created before the President took office). The
court of appeals answered that question in the
affirmative by applying this Court’s longstanding
precedent, which makes clear that the President may
be subject to a subpoena in a criminal proceeding
under circumstances that implicate substantially
greater interference with official functions than is
true in the circumstances here.
Petitioner’s response is an exercise in
misdirection. He contends that a sitting President
cannot be subject to criminal process of any kind
because he cannot be indicted—a non sequitur that
this Court rejected in Nixon. He argues that a
President’s records cannot be subpoenaed if the
President is a subject of the investigation—another
argument foreclosed by Nixon. He says that such a
subpoena is particularly inappropriate when issued
by a state or local prosecutor, rather than the federal
government—a proposition that flips ordinary
principles of federalism on their head. And he argues
for a “heightened need” standard that applies only to
claims of official privilege conspicuously absent from
this case.
The court of appeals, in short, correctly resolved
the narrow question presented here, and there is no
basis for this Court’s review.
1. This Court’s Precedents Establish That A
President’s Records May Be Subpoenaed In The
Circumstances Here
a. Under this Court’s precedent, it is “settled that
the President is subject to judicial process in

 13
appropriate circumstances.” Clinton, 520 U.S. at 703.
More specifically, and of central importance here, this
Court has long recognized that a sitting President
may be subject to a subpoena in a criminal
proceeding.
Chief Justice Marshall first considered the issue
more than 200 years ago, while overseeing the trial of
Aaron Burr. Faced with the question whether a
subpoena duces tecum could be directed to President
Jefferson, Chief Justice Marshall held, over objection:
“That the president of the United States may be
subpoenaed ... and required to produce any paper in
his possession is not controverted.” United States v.
Burr, 25 F. Cas. 187, 191 (C.C. Va. 1807).
This Court in Nixon “unequivocally and
emphatically endorsed Marshall’s position.” Clinton,
520 U.S. at 704 (citing Nixon, 418 U.S. 683). The
Court held that the President was obligated to comply
with a subpoena directing him to produce “tape
recordings and documents relating to his
conversations with aides and advisers”—i.e., tapes
created while he was in office, of conversations
between himself and White House aides—for use in a
criminal trial against several individuals who had
“occupied either a position of responsibility on the
White House staff or the Committee for the Reelection of the President.” Nixon, 418 U.S. at 686, 687
n.3.
Nixon moved to quash the subpoena, asserting a
“claim of absolute privilege.” Id. at 705. In support of
that assertion, Nixon cited the “need for protection of
communications between high Government officials
and those who advise and assist them in the

 14
performance of their manifold duties,” id., and argued
that separation-of-powers principles “insulate[] a
President from a judicial subpoena in an ongoing
criminal prosecution,” id. at 706.
This Court
disagreed, holding that “neither the doctrine of
separation of powers, nor the need for confidentiality
of high-level communications, without more, can
sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all
circumstances.” Id.8
In reaching that conclusion, the Court
acknowledged the “need for confidentiality in the
communications of [the President’s] office” and “the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision making.” Id.
at 712-13. But the President’s need for confidentiality
in his communications, the Court reasoned, was not
the only important public interest at stake, and it
must be evaluated “in light of our historic
commitment to the rule of law” and “the twofold aim
(of criminal justice) ... that guilt shall not escape or
innocence suffer.” Id. at 708-09 (internal quotation
omitted). “The need to develop all relevant facts in
Petitioner strangely contends that Nixon “neither
considered nor decided a claim of presidential immunity.” Pet.
29. Yet that is exactly what this Court considered and rejected:
an “unqualified Presidential privilege of immunity from judicial
process.” Nixon, 418 U.S. at 706; cf. Nixon v. Sirica, 487 F.2d
700, 708 (D.C. Cir. 1973) (“Counsel for the President contend on
two grounds that Judge Sirica lacked jurisdiction to order
submission of the tapes for inspection. Counsel argue, first, that,
so long as he remains in office, the President is absolutely
immune from the compulsory process of a court….” (emphasis
added)).
8

 15
the adversary system,” the Court emphasized, “is
both fundamental and comprehensive.” Id. at 709.
Barring enforcement of the subpoena would therefore
“cut deeply into the guarantee of due process of law
and gravely impair the basic function of the courts.”
Id. at 712.
Such an impediment to the fair
administration of criminal justice could not be
justified, the Court concluded, solely by “the
generalized interest in confidentiality” of a
President’s communications. Id. at 713.
b. Denial of the petition here follows a fortiori
from Nixon. As in Nixon, the Mazars Subpoena calls
for production of documents for use in a criminal
proceeding, and therefore implicates the “powerful
interest,” Clinton, 520 U.S. at 704 n.39, in the “full
disclosure of all the facts,” Nixon, 418 U.S. at 709.
And the countervailing interests identified in Nixon
that were insufficient to overcome this fundamental
criminal-justice interest are even less weighty here,
for at least three reasons.
First, unlike in Nixon, none of the materials
sought by the Mazars Subpoena “implicate, in any
way, the performance of [the President’s] official
duties.” Pet. App. 18a. Rather, “[t]he subpoena seeks
only the President’s private tax returns and financial
information relating to the businesses he owns in his
capacity as a private citizen.” Pet. App. 17a-18a.
This Court’s precedent draws a distinction
between a President’s official acts and acts as a
private citizen in assessing matters of privilege and
immunity. In Nixon v. Fitzgerald, the Court held that
a former President “is entitled to absolute immunity
from damages liability predicated on his official acts.”

 16
457 U.S. at 749 (emphasis added). But as this Court
made clear in Clinton, the reasoning underlying that
rule “provides no support for an immunity for
unofficial conduct.” 520 U.S. at 694. And even
though the President’s official acts carry
substantially more weight than private ones, the
Court in Nixon—which also recognized that a
subpoena seeking recordings of conversations
between the President and his aides directly
implicates
the
sanctity
of
presidential
communications—nevertheless held that the interest
in fair and just criminal process outweighs this
presidential interest. Nixon, 418 U.S. at 713.
It necessarily follows that a criminal subpoena
that does not involve the President’s official duties is
likewise enforceable. After all, requiring production
of documents relating entirely to the President’s
activities as a private citizen and having no
relationship to his official duties poses no risk of
tempering his official communications, nor does it
threaten to render him unduly cautious in
discharging his official duties. If the subpoena in
Nixon was enforceable, the Mazars Subpoena must be
as well.
Petitioner contends that the fact that the Mazars
Subpoena “has no ‘relation to the President’s
performance of his official functions’ ... cannot be a
relevant consideration,” because if it was, it would
mean that “a sitting President could be indicted,
prosecuted, and imprisoned” for unofficial conduct.
Pet. 30-31. Not so. For the reasons explained below,
the questions whether a sitting President can be
indicted, prosecuted, or imprisoned are wholly

 17
distinct from whether the President can be the subject
of an investigatory subpoena. See infra at 20-24.
Petitioner’s argument, moreover, is entirely nonresponsive to Nixon:
if the President can be
subpoenaed even for communications related to
official acts, then he can certainly also be subpoenaed
for records unrelated to official conduct.
Second, the Nixon subpoena directed the
President to produce documents that would be used
in a criminal trial, which would be open to the public.
See U.S. Const. amend. VI. Public disclosure of
official communications clearly would have had a
substantial impact on the President’s interest in
confidentiality. Here, not only are the records sought
by the Mazars Subpoena unrelated to any official acts,
but they will be directed to a state grand jury
proceeding, the secrecy of which is mandated by New
York state law.
See N.Y. Crim. Proc. Law
§ 190.25(4)(a). Only if a prosecution is instituted and
the records constitute evidence of the crimes charged
would those records be offered in a public trial, and
even then confidentiality concerns could be addressed
through appropriate and routine court orders, for
example to redact sensitive identifying information.
Cf. Nixon, 418 U.S. at 714-16.
Petitioner asserts that the fact that this case
involves a grand jury investigation, rather than a
criminal trial, cuts against enforcement of the Mazars
Subpoena, because “a trial triggers additional (and
competing) constitutional rights held by the criminal
defendant.”
Pet. 29.
But Petitioner offers no
plausible argument for why that matters. The truthfinding interests that compelled enforcement of the

 18
subpoena in Nixon are just as weighty in a grand jury
as they are in a trial. The whole purpose “of the grand
jury is to inquire into all information that might
possibly bear on its investigation.” United States v.
R. Enterprises, Inc., 498 U.S. 292, 297 (1991); see
Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (“[T]he
longstanding principle that ‘the public ... has a right
to every man’s evidence,’ ... is particularly applicable
to grand jury proceedings.”). The fact that a criminal
defendant (who is in immediate danger of being
deprived of liberty) has more constitutional
protections than the subject of a grand jury
investigation (because he is in no such danger) does
not somehow make a subpoena issued during a grand
jury investigation more burdensome than one issued
during trial. Disclosure of the Nixon tapes for
introduction as evidence during a public trial
obviously interfered far more with that presidency
than disclosure to a secret grand jury would have.
Third, unlike the Nixon subpoena, which required
the President himself to produce documents and
recordings, the Mazars Subpoena “is directed not to
the President, but to his accountants,” and
“compliance does not require the President to do
anything at all.” Pet. App. 20a. Therefore, whatever
interest the President may have in avoiding the
hassle of responding to criminal process—which,
again, did not suffice to quash the subpoena in
Nixon—is not implicated here.
Petitioner contends that enforcing the Mazars
Subpoena will nonetheless “create a ‘burden or
distraction’ that ‘would rise to the level of interfering
with’” the President’s ability to fulfill his Article II

 19
duties. Pet. 33 (quoting Pet. App. 21a). But simply
asserting that judicial process will interfere with the
President cannot be enough, since this Court has
rejected the contention that subjecting a sitting
President to judicial process necessarily “impose[s] an
unacceptable burden on the President’s time and
energy, and thereby impair[s] the effective
performance of his office.” Clinton, 520 U.S. at 702.
And whatever the theoretical burden on the
President’s Article II functions that the Mazars
Subpoena might impose, that subpoena is
substantially less burdensome than the Nixon
subpoena for many of the reasons already discussed:
the Nixon subpoena was directed at the President
himself rather than a third party, and it involved
recordings of communications with White House
aides rather than financial records unrelated to any
official duties. See Nixon, 418 U.S. at 712. There is
no logic in enforcing the Nixon subpoena but quashing
this one.
Indeed, the claimed burden implicated here is
dwarfed by other judicial intrusions into the
presidency that this Court has ratified. There is, of
course, the Nixon subpoena, which was directed
squarely at the President’s private communications
with his aides. And there is Clinton, in which the
Court held that a sitting President is required to
defend against civil litigation, including by providing
sworn testimony. 520 U.S. at 691-92. To be sure, the
Court made clear that trial courts should make every
effort to “accommodate his busy schedule.” Id. But
the time and effort involved in preparing and sitting
for a sworn deposition dwarfs the effort involved in
responding to a document request. And it obviously

 20
dwarfs the effort Petitioner would need to expend to
respond to the document request here, since the
subpoena is not even directed to him.
Petitioner contends that the court of appeals below
wrongly “focus[ed] on whether this subpoena
interferes with the President’s execution of his duties
under Article II,” because, he says, “this Court always
takes a categorical approach to presidential
immunity.” Pet. 26. To the contrary, this Court’s
leading presidential immunity decisions were
resolved on the specific facts that they presented. See
Clinton, 520 U.S. at 701-02; Nixon, 418 U.S. at 71013; Fitzgerald, 457 U.S. at 756. And to whatever
extent the presidency is burdened by this “category”
of subpoenas—that is, subpoenas demanding
“production by a third party of the President’s
personal financial records for use in a grand jury
investigation while the President is in office,” Pet.
App. 28a—the burden plainly does not exceed the
burden imposed by (i) subpoenas directed to the
President himself for production of private Oval
Office communications, or (ii) lawsuits brought by
private parties.
2. Petitioner’s Contrary Arguments Are Meritless
Petitioner offers three basic arguments for why
this Court’s precedents do not squarely resolve the
narrow question at issue here. Each is wrong.
a. The Question Whether A President May Be
Indicted Or Detained Is Irrelevant To The
Issue Here
Petitioner’s front-line attack on the decision below
principally rests not on this Court’s precedent, but on

 21
three DOJ memoranda focused on presidential
immunity from indictment and prosecution. That
question is not presented here.
As their titles indicate (and the court of appeals
correctly recognized), two of the memoranda cited by
Petitioner consider whether a sitting President is
immune from indictment or criminal prosecution. See
A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 Op. O.L.C. 222 (2000)
(“Moss Memo”); 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 (Sept. 24, 1973) (“Dixon
Memo”). A third memorandum, filed by the Solicitor
General in litigation concerning a grand jury
investigation of Vice President Spiro Agnew, “brought
up the President’s immunity only for the sake of
contrast” in arguing against the Vice President’s
immunity claim.
Pet. App. 25a n.17; see
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. 73-965 (D. Md.) (“Bork Memo”). And even
then, the Bork Memo, in at least some instances,
specifically referred to the President’s immunity
“from indictment and trial,” aligning it with the DOJ
memoranda. Bork Memo at 20.
Whatever the merits of the analysis in the DOJ
memoranda, the question on which they focus—
whether a sitting President is absolutely immune
from indictment and trial—is irrelevant to the narrow
question “whether a state may lawfully demand
production by a third party of [a sitting] President’s

 22
personal financial records for use in a grand jury
investigation.” Pet. App. 28a. And neither the DOJ
memoranda nor any judicial authority supports
Petitioner’s claim of absolute immunity from mere
investigation.
Indeed, one of the memoranda on which Petitioner
relies cuts directly against his position as to the
question actually presented here. The Moss Memo
specifically contemplates that “[a] grand jury could
continue to gather evidence throughout” any period of
Presidential immunity from indictment and
prosecution, mitigating concerns about the potential
loss of evidence. Moss Memo at 257 n.36. That
conclusion makes perfect sense, as all agree that a
President may be indicted and prosecuted after
leaving office, and delaying investigation for a period
of up to eight years would obviously frustrate
prosecutors’ ability to preserve evidence and build a
case.
Petitioner nevertheless maintains not only that a
sitting President is immune from prosecution and
trial, but that this also means he is immune from
grand jury investigation (or any other criminal
process). Pet. 22.9 But that proposition is facially
Even the arguments on the broader question whether a sitting President is absolutely immune from criminal prosecution
or indictment are not as straightforward as Petitioner suggests.
According to Petitioner, the Constitution’s Impeachment
Judgment Clause, U.S. Const. art. I, § 3, cl. 7, makes clear that
a President cannot be indicted or convicted before he is
impeached. Pet. 20. But the very DOJ memoranda on which he
relies considered that argument and concluded “that the plain
terms of the Clause ... do not, by themselves, preclude the
9

 23
irreconcilable with Nixon. Nixon held that the
President could be required to produce confidential
communications from his time in office. 418 U.S. at
703, 713. Yet at the same time, the Court expressly
declined to address the question whether the grand
jury acted within its authority in naming the
President as an unindicted coconspirator, concluding
that resolution of that issue was “unnecessary to
resolution of the question whether the claim of
privilege [in resisting the subpoena] is to prevail.” Id.
at 687 n.2. That necessarily means that the subpoena
question is distinct from the indictment question—it
did not matter to the Nixon Court whether the
President could be named as an unindicted
coconspirator, because he could be issued a subpoena
either way.
Petitioner relies on a single judge’s opinion in
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973), to
argue that if a sitting President may not be indicted
or tried, he must also be immune from grand jury
subpoenas. Pet. 22 (citing Sirica, 487 F.2d at 757
(MacKinnon, J., concurring in part and dissenting in
part)). But the Sirica majority forecloses Petitioner’s
criminal prosecution of a sitting President.” Moss Memo at 223
(citing Dixon Memo at 7).
Petitioner also cites various writings of the Framers, which
he contends show that the Framers uniformly believed that a
sitting President could not be subject to criminal indictment or
prosecution. Pet. 21-22. Yet this Court considered the same
historical evidence in Clinton and, after surveying conflicting
statements from other Framers, concluded that the historical
sources do not provide a definitive answer, and in fact “largely
cancel each other” out. 520 U.S. at 696-97 (internal quotation
and citation omitted).

 24
theory. The majority concluded that a subpoena
directed at President Nixon as part of a criminal
proceeding was enforceable. And in reaching that
conclusion, the majority saw “no need to explore” the
question whether “impeachability precludes criminal
prosecution of an incumbent” because the subpoena
there—like the Mazars Subpoena—did not “compete
with the impeachment device by working a
constructive removal of the President from office.”
Sirica, 487 F.2d at 711.
Every relevant precedent, in other words, makes
clear that the President can be the subject of a
subpoena regardless of whether he can be indicted or
tried. The Court may one day be forced to confront
the question of presidential immunity from
indictment and prosecution, but the answer to that
question has no bearing on the resolution of
Petitioner’s claim in this case.10
b. That The President May Be Among Several
Potential Subjects Of The Grand Jury’s
Investigation Does Not Distinguish Nixon
Petitioner’s effort to distinguish Nixon relies
heavily on the assertion that “the President was not
himself a target” in that case. Pet. 28. That
contention understates the extent to which the
It bears noting that, as a practical matter under New York
law, an individual who becomes aware of a grand jury proceeding
involving himself or herself—as here—upon notice to the
prosecutor, has a right to testify before prosecutors ask the
grand jurors to weigh any criminal charges. N.Y. Crim. Proc.
Law § 190.50(5)(a). Here, this right has the practical effect of
ensuring that Petitioner could interpose any objections to, or
assert any rights against, a potential indictment.
10

 25
President was personally implicated in Nixon and
overstates the extent to which the President himself
is the central focus of the grand jury investigation
here.
As an initial matter, it is simply not true that the
President was not a subject of the grand jury
investigation in Nixon. There is no question that the
grand jury had named Nixon “as an unindicted
coconspirator” in the proceeding for which his records
were sought. Nixon, 418 U.S. at 687; see also Reply
Brief for the United States at 4, 7, Nixon, 418 U.S. 683
(“During the course of [the Nixon grand jury’s]
investigation, it received a considerable amount of
information concerning the President’s role in the
alleged conspiracy,” and so decided to “record[] ... its
determination of the identity of each of the known coconspirators, including ‘Richard M. Nixon.’”). And the
subpoenaed tapes recorded potentially unlawful
conversations the individuals targeted for criminal
prosecution had with the President. Nixon, 418 U.S.
at 686. Nixon’s conduct, then, was plainly within the
scope of the grand jury’s investigation, and it defies
credulity to suggest that those proceedings did not
expose the President to the “serious stigma”
associated with a “public ... allegation of wrongdoing.”
Pet. 28. Yet the Court nonetheless held that the
subpoena was enforceable.
Petitioner’s assertion that the Mazars Subpoena
imposes some kind of “stigma” on the President is in
any event overblown. As the Second Circuit observed,
“[t]he President has not been charged with a crime,”
and “[t]he grand jury investigation may not result in
an indictment against any person, and even if it does,

 26
it is unclear whether the President will be indicted.”
Pet. App. 22a. (Again, Petitioner has not been named
as a target.) Certainly, a grand jury investigation
does not impose a “stigma” greater than that imposed
by (i) a trial subpoena for potentially criminal
communications between the President and his
associates regarding official functions, or (ii) civil
lawsuits directly alleging that the President has
engaged in wrongdoing.
Finally, it warrants mention that the Office’s
investigation extends beyond Petitioner.
Thus,
Petitioner’s position would preclude subpoenas for
documents relevant to investigations of parties other
than the President just because the President could,
in theory, also be implicated in wrongdoing. This
Court rejected exactly that perverse result in Nixon,
and there is no reason to revisit that decision here.
c. That The Subpoena Was Issued By A State
Rather Than Federal Grand Jury Only
Confirms Its Propriety
Petitioner also attempts to distinguish Nixon and
Clinton on the ground that those cases concerned
federal judicial process against the President,
whereas this case involves a state’s judicial process.
But that distinction does not materially alter the
immunity analysis here.
If anything, ordinary
principles of federalism make this an easier case.
According to Petitioner, subjecting the President
to state judicial process runs afoul of the Supremacy
Clause. Pet. 23. In Petitioner’s view, when a state
issues a subpoena for the President’s documents, it
exercises control over the President—the individual

 27
responsible for faithfully executing federal law—and
thus it effectively subordinates federal law to state
law, in violation of the Supremacy Clause’s
pronouncement that federal law is “the supreme Law
of the Land.” U.S. Const. Art. VI, cl. 2. That
argument makes no sense—requesting documents
from the President that have no bearing on his official
acts does not in any respect subordinate federal law
to state law. Whatever concerns might exist if a state
sought to subpoena the President for documents
related to the exercise of his public duties are not
implicated here, as the Mazars Subpoena does
nothing of the sort.11
In any event, Petitioner’s argument rests on a
false premise, because the Mazars Subpoena does not
attempt to exercise any control over the President at
all—it has not “ordered the President to do or produce
anything.” Pet. App. 21a. The subpoena is directed
That distinguishes this case from United States v. McLeod,
385 F.2d 734 (5th Cir. 1967), on which Petitioner heavily relies.
Pet. 23-24, 27. McLeod, unlike this case, involved state
investigations into the official operations of a federal
government agency.
385 F.2d at 751 (state grand jury
investigating DOJ funding of Dr. Martin Luther King Jr.’s
transportation).
11

M’Clung v. Silliman, 19 U.S. 598 (1821), and North Dakota
v. United States, 495 U.S. 423 (1986), are even further afield.
See Pet. 24. M’Clung, like McLeod, dealt with official conduct:
specifically, whether a state court could compel a federal
government officer to discharge his official duties in a particular
way. 19 U.S. at 604-05. And in North Dakota, this Court
considered the validity not of a state investigation, but of a state
regulation. 495 U.S. at 435.

 28
at a third party whose compliance will in no way
implicate the balance of federal and state power.
Therefore, even if a subpoena for private documents
could count as “direct control by a state court over the
President” that may potentially “implicate concerns”
under the Supremacy Clause, Clinton, 520 U.S. at 691
n.13, no such concerns are raised here. And if the
concern is that courts should be especially wary of
allowing state courts to burden the federal executive,
that concern is simply not implicated in this case.12
Petitioner also warns of “the practical threat” that
enforcement of the Mazars Subpoena would pose,
asserting that “[s]tate 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.” Pet. 25. But that is exactly the same
argument President Clinton made:
if denied
immunity, he contended, the President would be the
target of politically motivated, harassing, and
frivolous litigation. Clinton, 520 U.S. at 708. Yet this
Court declined to simply accept that assertion,
instead considering whether history demonstrates
that there is a serious risk of such vexatious litigation
and concluding that it did not. Id.
Here, as in Clinton, history affords no support for
Petitioner’s speculative predictions. Indeed, history
suggests that the risk of vexatious litigation here is
substantially lower than in Clinton, because
Notably, the records sought by the Mazars Subpoena have
already been provided to state and federal agencies with their
own confidentiality obligations, and there has been no claimed
harm to the presidency as a result.
12

 29
government officials—and not private citizens—are
charged with enforcing criminal law. See Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 386 (2004) (“The
decision to prosecute a criminal case,” in contrast to a
civil case, “is made by a publicly accountable
prosecutor subject to budgetary considerations and
under an ethical obligation, not only to win and
zealously to advocate for his client but also to serve
the cause of justice.”). And as government officials,
local prosecutors are entitled to a “presumption of
regularity,” meaning that “in the absence of clear
evidence to the contrary, courts presume that
[prosecutors] have properly discharged their official
duties.” United States v. Armstrong, 517 U.S. 456,
464 (1996) (internal citation and quotation omitted);
see also Cheney, 542 U.S. at 386 (“The rigors of the
penal system are also mitigated by the responsible
exercise of prosecutorial discretion.”).
Moreover, as this Court noted in Clinton, even if
vexatious litigation does occur, our constitutional
system is equipped to stop it. State courts, like
federal courts, have tools to protect the President
from being harassed by unnecessary subpoenas.
United States v. Burr, 25 F. Cas. 30, 34 (C.C. Va.
1807) (“The guard, furnished to this high officer, to
protect him from being harassed by vexatious and
unnecessary subpoenas, is to be looked for in the
conduct of a court after those subpoenas have
issued.”); cf. Clinton, 520 U.S. at 708-09 (noting that
courts, through sanctions and scheduling, can
“accommodate the President’s needs” and give “the
utmost deference to Presidential responsibilities”
(internal citations omitted)). Indeed, the Constitution
originally deemed state courts the appropriate fora to

 30
adjudicate federal constitutional claims, with this
Court as a backstop to review and reverse any abuses
of federal rights. See Lockerty v. Phillips, 319 U.S.
182, 187 (1943). So state courts are fully capable of
enforcing principles of presidential immunity, and
any harassing subpoena that nonetheless somehow
passes muster in state courts would ultimately be
subject to review by this Court.13 And in the end, “if
Congress deems it appropriate to afford the President
stronger protection, it may respond with appropriate
legislation.” Clinton, 520 U.S. at 709.
Indeed, if anything, the federalism concerns
implicated by this case counsel in favor of—not
against—enforcing the Mazars Subpoena. As this
Court has recently reiterated, our constitutional
system is one of “dual sovereignty” in which “both the
Federal government and the States wield sovereign
powers.” Gamble v. United States, 139 S. Ct. 1960,
1968 (2019) (internal quotation omitted). The federal
government’s sovereign powers are limited and
expressly delineated in the Constitution, while the
remaining powers are reserved to the states or the
people. See U.S. Const. amend. X. Most relevant
here, the system “reserve[es] a generalized police
power to the States,” in recognition of the states’
unique interest in prosecuting crimes within their
borders. United States v. Morrison, 529 U.S. 598, 618
Even if state courts could not adequately enforce these
principles, the Second Circuit’s ruling on Younger, which the
Office has not asked this Court to review, allows for federal court
supervision of any such litigation and thus installs additional
safeguards against any threat of vexatious or harassing local
prosecutors.
13

 31
n.8 (2000).
Proper respect for this deliberate
reservation of power means that the states’ strong
interests in operating a fair and just criminal judicial
process should be respected no less than the federal
government’s parallel interests recognized in Nixon.
d. There Is No Basis For Applying A Heightened
Need Standard In The Circumstances Here
Next, and for the first time, Petitioner adopts the
DOJ’s position as amicus curiae below that, if
absolute immunity does not apply, a grand jury
subpoena for non-official records of the President is
subject to a “heightened need” standard derived from
Nixon and later applied in In re Sealed Case, 121 F.3d
729, 756 (D.C. Cir. 1997). Petitioner argues that
under those cases, the “evidence sought must be
directly relevant to the issues that are expected to be
central” and “not available with due diligence
elsewhere.” Pet. 34.
The heightened standard Petitioner invokes,
however, applies only in response to an assertion of
executive privilege over materials that “reflect
presidential decisionmaking and deliberations.” In re
Sealed Case, 121 F.3d at 744; cf. R. Enterprises, 498
U.S. at 299 (noting that “application of the Nixon test
in [the grand jury] context ignores that grand jury
proceedings
are
subject
to
strict
secrecy
requirements” (internal citation omitted)).14 Here, it
The heightened standard is at most a particular
application of the standards applicable to all federal subpoenas
issued under Federal Rule of Criminal Procedure 17(c). Sealed
Case, 121 F.3d at 754; see Pet. App. 27a (noting that this Court
has held that Nixon applied “the same ‘exacting standards’
14

 32
is undisputed that the records sought are neither
presidential communications nor in any way related
to the President’s official conduct. See R. Enterprises,
498 U.S. at 299 (“Requiring the Government to
explain in too much detail the particular reasons
underlying a subpoena threatens to compromise the
indispensable secrecy of grand jury proceedings.”). It
follows that there is no presumptive privilege over the
records, and therefore neither Sealed Case nor this
Court’s precedent provide a basis to require a
heightened showing of need for the records.15
In short, the Second Circuit applied the correct
standard, and reached the correct result under this
Court’s precedent. There is no basis for this Court’s
review of that decision.
B. There Are No Additional Considerations
That Counsel In Favor Of This Court’s
Review
Petitioner suggests that the importance of the
question presented warrants review independent of

applicable to all criminal subpoenas” (quoting Cheney, 542 U.S.
at 386)). By its own terms, Sealed Case only went beyond the
requirements of Rule 17(c) with respect to information over
which there was an assertion of presidential privilege. Sealed
Case, 121 F.3d at 754.
There is accordingly no need to grant Petitioner’s request
for further delay and remand on the question of “heightened
need,” Pet. 36 n.3, particularly because Petitioner has
challenged neither the scope nor the substance of the subpoena
and failed to raise the issue below. Once Petitioner’s claim of
absolute immunity is resolved, there is nothing more to review
below.
15

 33
the merits of the Second Circuit’s decision. It does
not.
This Court has granted certiorari in cases like
Nixon, Fitzgerald, and Clinton to answer broad and
important
questions
concerning
presidential
immunity. But the fact that the President has an
interest in the validity of the Mazars Subpoena does
not mean that this case presents a question of
substantial importance to the presidency. After all,
the grand jury here is performing a garden-variety
investigation of purely private conduct. This case
does not involve a state’s investigation of the
President’s exercise of his Article II duties. It does
not involve a subpoena for documents related to the
President’s (or anyone else’s) official conduct. It does
not involve a request for disclosure of privileged
communications. And it does not even involve
criminal process directed at the President himself. It
would be one thing if the validity of a subpoena in
these circumstances were an open question. But for
the reasons explained in the previous Section, it is
not.
Thus, the only real interest implicated here is
Petitioner’s private interest in avoiding a valid
investigation into private conduct unconnected to the
presidency. That is not the type of interest that
warrants this Court’s review, particularly when there
is no real controversy over the answer to the legal
question presented.16

Contrary to Petitioner’s suggestion, this Court frequently
denies certiorari in cases involving assertions of government
16

 34
C. This Court Should Expeditiously Resolve
The Petition For Certiorari And, If
Necessary, The Merits Of This Dispute
Expeditious resolution of the petition for
certiorari, and if necessary, the merits of this dispute,
is essential to avoid further disruption of the grand
jury’s ongoing investigation.
The Mazars Subpoena was issued by a grand jury
in an ongoing criminal investigation, and its
enforcement is essential for the grand jury to
complete its work. Given the dates of many of the
transactions at issue in the investigation, applicable
statutes of limitations could expire in a matter of
months. Each day that compliance with the Mazars
Subpoena is delayed increases the likelihood that—as
a result of this lawsuit—criminal conduct may go
unpunished, giving Petitioner a de facto victory on the
merits of his sweeping immunity claim and giving
other individuals under investigation similar
immunity from prosecution. Delay may also cause
physical evidence to be lost, memories to fade, or
witnesses to disappear—an outcome that would not
privilege that were designed to protect the President. See, e.g.,
Office of the President v. Office of the Indep. Counsel, 525 U.S.
996 (1998) (case involving extent to which communications of
White House Counsel are privileged against disclosure to a
federal grand jury); Office of President v. Office of Indep.
Counsel, 521 U.S. 1105 (1997) (case involving grand jury
subpoena of allegedly privileged documents created in meetings
between White House Counsel and First Lady); Rubin v. United
States, 525 U.S. 990 (1998) (case addressing whether federal law
recognizes a privilege that would permit a Secret Service agent
protecting the President to refuse to testify unless he saw or
heard conduct or statements that were clearly criminal).

 35
only undermine the Office’s duty to enforce New
York’s criminal laws, but could also work to the
detriment of those who may be charged in any
indictment returned by the grand jury and might
wish to use this evidence in their defense. See, e.g.,
Toussie v. United States, 397 U.S. 112, 114-15 (1970)
(statutes of limitations are “designed to protect
individuals from having to defend themselves against
charges when the basic facts may have become
obscured by the passage of time”); see also Nixon, 418
U.S. at 711 (rejecting claim of presidential privilege
to vindicate criminal defendants’ Sixth Amendment
rights).
Although, as Petitioner notes, there are other
cases currently pending in which Petitioner has
sought to prevent the enforcement of subpoenas
regarding his financial records (including tax
returns), those cases should not delay resolution of
this petition because they present different questions
than that presented here. Trump v. Mazars USA,
LLP, No. 19-5142 (D.C. Cir.), in which the D.C.
Circuit recently denied a petition for rehearing en
banc, raises three questions regarding the exercise of
congressional authority and separation of powers,
none of which is relevant to the Office’s issuance of a
subpoena to a third party regarding conduct
unrelated to the President’s official duties that
indisputably lies within the Office’s law enforcement
jurisdiction. And in Committee on Ways & Means v.
U.S. Department of Treasury, No. 19-cv-1974 (D.D.C.
Sept. 6, 2019), Petitioner contends that the district
court lacks jurisdiction to adjudicate a congressional
committee’s lawsuit to compel production of
information from the executive branch and should

 36
abstain from doing so. See No. 19-cv-1974 (D.D.C.
Sept. 6, 2019) (Dkt. 44) (Defendants’ and DefendantIntervenors’ Motion to Dismiss). Resolution of those
questions will in no way impact the Court’s
consideration of the petition here, which raises an
entirely distinct, narrow, and easily answered
question. Whatever the Court thinks about the
certworthiness of the questions raised in these other
cases, this petition should be denied.
CONCLUSION
Petitioner’s assertion of absolute presidential
immunity is foreclosed by this Court’s precedent,
which conclusively establishes that “[n]o [person] in
this country is so high that he is above the law.”
United States v. Lee, 106 U.S. 196, 220 (1882); see also
Nixon, 418 U.S. at 715; Clinton, 520 U.S. at 697. The
petition for a writ of certiorari should be denied.
Respectfully Submitted,
CAREY R. DUNNE*
General Counsel
CHRISTOPHER CONROY
SOLOMON B. SHINEROCK
JAMES H. GRAHAM
SARAH WALSH
ALLEN J. VICKEY
Assistant District
Attorneys

* Counsel of Record

NEW YORK COUNTY
DISTRICT ATTORNEY’S
OFFICE
One Hogan Place
New York, NY 10013
(212) 335-9000
dunnec@dany.nyc.gov