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 Writ of Certiorari to the United States
Court of A ppeals for the Second Circuit

Brief of Respondent
Caitlin Halligan
Ryan W. A llison
David A. Coon
Selendy & Gay PLLC
1290 Sixth Avenue
New York, NY 10104
Walter Dellinger
Duke University Law School
Science Drive &
Towerview Road
Durham, NC 27706

Carey R. Dunne
Counsel of Record
Christopher Conroy
Solomon B. Shinerock
James H. Graham
Sarah Walsh 
A llen J. Vickey
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.

 i
QUESTION PRESENTED
Whether a state grand jury subpoena directing a
third party to produce material that pertains only to
unofficial and non-privileged conduct by a President
and various private parties must be quashed under
Article II or the Supremacy Clause of the Constitution.

 ii
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................... 1
A. Factual Background .................................... 2
B. The Current Controversy ............................ 5
SUMMARY OF ARGUMENT................................... 8
ARGUMENT ........................................................... 12
I. A PRESIDENT HAS NO
CATEGORICAL IMMUNITY FROM A
SUBPOENA FOR DOCUMENTS
UNRELATED TO OFFICIAL DUTIES......... 12
A. Article II And The Supremacy Clause
Provide Immunity Only From
Subpoenas That Interfere With A
President’s Official Functions................... 12
B. The Mere Risk That A Subpoena
Duces Tecum May Interfere With
Official Presidential Functions Does
Not Afford A President Categorical
Immunity ................................................... 17
C. A Subpoena Seeking Non-Privileged
Evidence About A President’s Private,
Unofficial Conduct May Be
Challenged As Applied If The
President Shows An Impermissible
Burden On Article II Functions................ 22

 iii
TABLE OF CONTENTS
(continued)
Page
II. THE PROPHYLACTIC IMMUNITY
RULES PROPOSED BY PETITIONER
AND THE SOLICITOR GENERAL ARE
UNSOUND ..................................................... 23
A. The Considerations Asserted To
Justify Presidential Immunity From
Prosecution Do Not Justify Immunity
From Investigation For Unofficial
Conduct ...................................................... 24
B. Absolute Immunity From State
Criminal Investigation Would Strike
Deeply Into Principles Of
Accountability And Federalism ................ 31
C. The Solicitor General’s HeightenedNeed Standard Applies Only To
Privileged Materials .................................. 38
D. The Prophylactic Rules Proposed By
Petitioner And The Solicitor General
Would Impose Severe And
Unwarranted Negative Consequences
On The Criminal Justice System ............. 45
III.PETITIONER HAS NOT SHOWN THAT
THIS SUBPOENA IMPERMISSIBLY
BURDENS HIS ABILITY TO PERFORM
OFFICIAL FUNCTIONS OR WAS
ISSUED IN BAD FAITH................................ 47
CONCLUSION ........................................................ 53

 iv
TABLE OF AUTHORITIES
Page(s)
Cases
Berger v. United States,
295 U.S. 78 (1935)................................................34
Blair v. United States,
250 U.S. 273 (1919) ..............................................28
Branzburg v. Hayes,
408 U.S. 665 (1972) ........................................43, 46
Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010) ..............................................35
Cheney v. U.S. Dist. Ct.,
542 U.S. 367 (2004) ........................................34, 40
Clinton v. Jones,
520 U.S. 681 (1997) ...................................... passim
Connick v. Thompson,
563 U.S. 51 (2011)................................................36
Cunningham v. Neagle,
135 U.S. 1 (1890)..................................................16
Dombrowski v. Pfister,
380 U.S. 479 (1965) ..............................................35
Douglas Oil Co. v. Petrol Stops Nw.,
441 U.S. 211 (1979) ..............................................29

 v
TABLE OF AUTHORITIES
(continued)
Page(s)
Gamble v. United States,
139 S. Ct. 1960 (2019)..........................................32
In re Grand Jury Proceedings
Harrisburg Grand Jury 79-1,
658 F.2d 211 (3d Cir. 1981) .................................28
In re Grand Jury Subpoenas for Locals
17, 135, 257, & 608 of the United
Bhd. of Carpenters & Joiners,
72 N.Y.2d 307 (1988) ...........................................44
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010)..................................................25
Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975) ..............................................37
Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844 (1982) ..............................................52
Johnson v. Trump for Pres., Inc.,
2019 WL 2492122 (M.D. Fla. June
14, 2019) ...............................................................33
Kendall v. United States ex rel. Stokes,
37 U.S. (12 Pet.) 524 (1838) .................................14
Malley v. Briggs,
475 U.S. 335 (1986) ..............................................36

 vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Maryland v. Soper,
270 U.S. 9 (1926)..................................................16
McClung v. Silliman,
19 U.S. (6 Wheat.) 598 (1821) .............................15
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) .............................15
In re McShane’s Petition,
235 F. Supp. 262 (N.D. Miss. 1964) ....................15
Mesa v. California,
489 U.S. 121 (1989)..............................................35
Mississippi v. Johnson,
71 U.S. (4 Wall.) 475 (1867).................................13
Nixon v. Admin. of Gen. Servs.,
433 U.S. 425 (1977) ..............................................14
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ...................................... passim
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) ..............................21
O’Shea v. Littleton,
414 U.S. 488 (1974) ..............................................36
RJR Nabisco, Inc. v. European Cmty.,
136 S. Ct. 2090 (2016)..........................................34

 vii
TABLE OF AUTHORITIES
(continued)
Page(s)
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ........................14, 39
Sibley v. Obama,
866 F. Supp. 2d 17 (D.D.C. 2012) ........................33
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ..............................................34
In re Tarble,
80 U.S. (13 Wall.) 397 (1871).........................15, 16
Tennessee v. Davis,
100 U.S. 257 (1879) ..............................................14
United States ex rel. Drury v. Lewis,
200 U.S. 1 (1906)..................................................15
United States v. Burr,
25 F. Cas. 187 (C.C.D. Va. 1807)
(No. 14,694) ....................................................20, 42
United States v. Burr,
25 F. Cas. 30 (C.C.D. Va. 1807)
(No. 14,692D) ..................................... 18, 19, 41, 43
United States v. Cohen,
366 F. Supp. 3d 612 (S.D.N.Y. 2019) ....................3

 viii
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Cohen,
2019 WL 3226988 (S.D.N.Y. July 17,
2019) .......................................................................3
United States v. Dionisio,
410 U.S. 1 (1973)..................................................28
United States v. Doe,
457 F.2d 895 (2d Cir. 1972) .................................29
United States v. Goodwin,
457 U.S. 368 (1982) ..............................................43
United States v. McLeod,
385 F.2d 734 (5th Cir. 1967)................................36
United States v. Morrison,
529 U.S. 598 (2000) ..............................................32
United States v. Nixon,
418 U.S. 683 (1974) ...................................... passim
United States v. Owlett,
15 F. Supp. 736 (M.D. Pa. 1936) .........................36
United States v. Proctor & Gamble,
356 U.S. 677 (1958) ..............................................29
United States v. R. Enters., Inc.,
498 U.S. 292 (1991) .......................................42, 43

 ix
TABLE OF AUTHORITIES
(continued)
Page(s)
Virag v. Hynes,
54 N.Y.2d 437 (1981) ............................... 37, 42, 43
Wood v. Georgia,
370 U.S. 375 (1962) ........................................28, 46
Younger v. Harris,
401 U.S. 37 (1971) ............................................5, 37
Constitutional Provisions
U.S. CONST. art. I, § 3, cl. 7 .......................................26
U.S. CONST. art. VI, cl. 2 ...........................................14
U.S. CONST. art. VI, cl. 3 ...........................................33
U.S. CONST. amend. VI .............................................48
U.S. CONST. amend. X ...............................................32
Statutes and Other Authorities
18 U.S.C. § 242 ..........................................................36
FED. R. CRIM. P. 6 ......................................................29
FED. R. CRIM. P. 17 ........................................ 40, 42, 44
N.Y. CRIM. PROC. LAW § 190.25...........................29, 49
N.Y. CRIM. PROC. LAW § 190.50.................................25

 x
TABLE OF AUTHORITIES
(continued)
Page(s)
MODEL RULES OF PROF’L CONDUCT r. 3.8
(AM. BAR ASS’N) ....................................................35
CAL. RULES OF PROF’L CONDUCT r. 3.8 ......................36
Randolph D. Moss, Asst. Atty. Gen., A
Sitting President’s Amenability to
Indictment and Criminal
Prosecution,
24 O.L.C. Op. 222 (Oct. 16, 2000)............... passim
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
United States v. Cohen,
No. 18-cr-602 (S.D.N.Y. Dec. 7,
2018), Gov’t Sentencing Submission .....................3
United States v. Cohen,
No. 18-cr-602 (S.D.N.Y. Aug. 21,
2018), Tr. of Plea Hr’g ...........................................3
Ronald Rotunda, Presidents and ExPresidents as Witnesses: A Brief
Historical Footnote, 1975 U. ILL. L.
FORUM 1 (1975) ..............................................18, 19

 xi
TABLE OF AUTHORITIES
(continued)
Page(s)
Debra Cassens Weiss, Judge Tosses
Indictments of Vice President
Cheney, Ex-AG Gonzales, A.B.A. J.
DAILY NEWS, Dec. 2, 2008,
http://bit.ly/2SSNVPW .........................................33

 INTRODUCTION
This case involves a novel claim of presidential
immunity from a state grand jury investigation that
implicates no official presidential conduct or communications. Petitioner contends that Article II and the
Supremacy Clause make him absolutely immune
from providing evidence of private, potentially criminal acts that largely predate his presidency—even if
the investigation is necessary to preserve evidence of
purely private wrongdoing by petitioner and others—
so long as he occupies office. That immunity exists,
he says, even though he offers no case-specific showing of prosecutorial abuse or cognizable burden on his
official functions.
Petitioner’s sweeping and unprecedented contention is unfounded, and the reasoning underlying it is
flawed. Relying on a Department of Justice (DOJ)
opinion finding that a President has constitutional
immunity from indictment and prosecution during his
term of office, petitioner reasons that he necessarily
has parallel immunity from investigation by state authorities. Yet prosecution and investigation implicate
significantly different concerns, and the reasons offered by DOJ to support immunity from prosecution
provide no support for petitioner’s claim of per se immunity from investigation. To the contrary, immunity from investigation for private conduct runs counter to precedent, the structure and operation of the
Constitution, and the bedrock principle that no person is above the law.
A President may of course invoke applicable evidentiary privileges when asked to disclose privileged
official communications. A President may also seek

 2
to make a case-specific showing that a state grand
jury subpoena impermissibly interferes with the ability to perform Article II functions or was issued in bad
faith. But petitioner has made no such showing here,
nor could he. The grand jury is conducting an investigation into potential criminal conduct by multiple
individuals and corporate entities, and its gathering
of information does not intrude on petitioner’s ability
to perform his official duties. If the novel constitutional immunity proposed by petitioner were accepted, it not only could defeat the ordinary processes
of the criminal law as to him but also could unjustifiably insulate private parties who have no immunity
to assert. No principle of constitutional law justifies
that outcome.
STATEMENT OF THE CASE
A. Factual Background
This case arises from an investigation commenced in summer of 2018 by the New York County
District Attorney’s Office (Office) into business transactions involving multiple individuals whose conduct
may have violated state law. It is based on information derived from public sources, judicial admissions, confidential informants, and the grand jury
process.1
1. In recent years, multiple public reports have
appeared of possible criminal misconduct in activities
connected to the Trump Organization. BIO 2-3. The
reports described transactions and tax strategies—
The scope and foundation of the investigation is detailed in
redacted portions of the Shinerock Declaration, filed under seal.
C.A. Dkt. 101.
1

 3
spanning more than a decade—involving individual
and corporate actors based in New York County, and
raised the prospect that criminal activity might have
occurred in the Office’s jurisdiction within applicable
statutes of limitations, particularly if (as the reports
suggested) the transactions involved a continuing
pattern of conduct over many years.
One of the issues raised 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
counselor, pleaded guilty to campaign finance violations arising from payments to one of those women.
United States v. Cohen, 366 F. Supp. 3d 612, 618
(S.D.N.Y. 2019). Cohen admitted that he violated
campaign finance laws in coordination with, and at
the direction of, an individual later identified as petitioner. Tr. of Plea Hr’g 23, United States v. Cohen,
No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018), ECF No. 7;
Gov’t Sentencing Submission 11, United States v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 7, 2018), ECF No.
27; Hearing with Michael Cohen, Former Attorney to
President Donald Trump: Hearing Before the H.
Comm. on Oversight and Reform, 116th Cong. 1, 11
(Feb. 27, 2019).
Around the time Cohen entered his guilty plea, at
the request of federal prosecutors and to avoid potential disruption of the ongoing federal investigation,
the Office agreed to defer its own investigation pending resolution of the federal matter. In July 2019, the
Office learned that the federal investigation had concluded without any further charges. See United
States v. Cohen, 2019 WL 3226988, at *2 (S.D.N.Y.

 4
July 17, 2019). The Office resumed its investigation
shortly thereafter.2
2. The Office then issued grand jury subpoenas
duces tecum for records including financial statements and tax returns, as well as the working papers
necessary to prepare and test those records.
On August 1, 2019, the Office served the Trump
Organization with a grand jury subpoena seeking records and communications concerning specific financial transactions, their treatment in the Trump Organization’s books and records, and the personnel involved in determining that treatment. Soon after, the
Office informed the Trump Organization’s counsel
that the subpoena required production of certain tax
returns. From August 2019 through December 2019,
the Trump Organization produced certain responsive
documents—but not tax returns.
On August 29, 2019, the Office served petitioner’s
accounting firm, Mazars USA LLP (Mazars), with a
grand jury subpoena (Mazars Subpoena or Subpoena)
seeking financial and tax records—including for petitioner and entities he owned before he became President—from January 1, 2011 to the date of the Subpoena. The Office largely patterned the Mazars Subpoena on a subpoena for some of the same materials
issued by the Committee on Oversight and Reform of
the U.S. House of Representatives, with the aim of
minimizing the burden on Mazars and facilitating expeditious production of responsive documents. The
2 Contrary to petitioner’s suggestion (Petr. Br. 6), the Office’s investigation did not begin in summer 2019 but resumed
then.

 5
Mazars Subpoena does not seek any official communications, involve any official presidential conduct, or
require petitioner to produce anything.
B. The Current Controversy
1. After the Mazars Subpoena was served, counsel for the Trump Organization informed the Office
that they believed the request for production of tax
records implicated constitutional considerations, and
the Office agreed to temporarily suspend the tax portion of the Mazars Subpoena to allow petitioner to
challenge it.
Petitioner then filed a complaint against Mazars
and respondent in federal court and sought emergency injunctive relief, claiming that the Constitution
provides a sitting President absolute immunity from
any form of “criminal process” or “investigation,” including a subpoena to a third party for records unrelated to petitioner’s official conduct. D. Ct. Dkt. 1, at
1-2.
Respondent 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; and that petitioner had failed to establish irreparable harm. D.
Ct. Dkt. 16.3 Briefing and argument were highly expedited, and the Office agreed to temporarily forbear

3 Mazars has taken no position on the legal issues presented in this case, viewing the dispute as solely between petitioner and respondent.

 6
enforcement of the Mazars Subpoena. D. Ct. Dkt. 28.4
DOJ filed a Statement of Interest asserting that abstention was inappropriate but taking no position on
the merits. D. Ct. Dkt. 32.
2. The district court abstained and ruled in the
alternative that petitioner was not entitled to injunctive relief. Pet. App. 36a-37a.
The court not only found that the balance of factors favored abstention but also rejected petitioner’s
contention that Younger’s bad-faith exception applied. Pet. App. 58a. The court observed that petitioner “fail[ed] to show that [respondent] could not
reasonably expect to obtain a favorable outcome in
[the] criminal investigation” furthered by the Mazars
Subpoena, and after considering an in camera submission, found no basis to “impute bad faith to [respondent] in relation to these proceedings.” Id.
On the merits, the district court rejected petitioner’s “extraordinary claim” that “the person who
serves as President, while in office, enjoys absolute
immunity from criminal process of any kind.” Pet.
App. 31a. That position, the court explained, “finds
no support in the Constitution’s text or history” or in

4 Respondent did not “express[] concern” at any point “that
he would run out of time to bring ‘charges’ against ‘the president
himself’ before he ‘is out of office.’” Petr. Br. 9 (quoting D. Ct.
Dkt. 38, at 40). Respondent merely requested the district court
resolve this matter expeditiously to prevent a procedural delay
of the Office’s investigation until after statutes of limitations expire, at which point the Office would “have no charges available”
against any potential defendant. D. Ct. Dkt. 38, at 40.

 7
this Court’s precedent. Id. at 34a. While “some aspects of criminal proceedings could impermissibly interfere with … the President’s ability to discharge
constitutional functions,” “that consequence would
not necessarily follow every stage of every criminal
proceeding.” Id. at 33a. And it “would not apply to
the specific set of facts presented here,” id.—i.e., a
state grand jury subpoena calling for a third party to
produce petitioner’s “personal and business records,”
id. at 62a.
3. The Second Circuit vacated the district court’s
determination that Younger abstention applied. Pet.
App. 13a-14a. But the court of appeals affirmed on
the immunity question, holding that “any presidential
immunity from state criminal process does not extend
to investigative steps like the grand jury subpoena at
issue here.” Id. at 2a.
The Second Circuit focused in particular on
United States v. Nixon, 418 U.S. 683 (1974), which
held that neither absolute presidential immunity nor
executive privilege barred enforcement of a subpoena
directing President Nixon to produce materials “relating to his conversations with aides and advisers for
use in a criminal trial against high-level advisers to
the President.” Pet. App. 16a (internal quotation
marks omitted). Given that “executive privilege did
not preclude enforcement of the subpoena issued in
Nixon,” the court saw no reason why “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.” Id.
at 17a. Regardless of any constitutional issues that
might arise if a court sought to compel a President to

 8
appear at a particular time and place, the court explained, compliance with the Mazars Subpoena “does
not require the President to do anything at all.” Id.
at 20a. Furthermore, that President Nixon was required to produce “documents for a trial proceeding on
an indictment that named him as a conspirator
strongly suggests that the mere specter of ‘stigma’ or
‘opprobrium’ … is not a sufficient reason to enjoin a
subpoena—at least when, as here, no formal charges
have been lodged.” Id. at 22a.
The court of appeals also rejected DOJ’s argument—made for the first time on appeal and not embraced at the time by petitioner—that “while the
President may not be absolutely immune from a state
grand jury’s subpoena power, any prosecutor seeking
to exercise that power must make a heightened showing of need for the documents sought.” Pet. App. 27a.
The cases cited by DOJ, the court observed, all address “documents protected by executive privilege”
and thus have “little bearing on a subpoena that, as
here, does not seek any information subject to executive privilege.” Id. “Surely the exposure of potentially
sensitive communications related to the functioning
of the government is of greater constitutional concern
than information relating solely to the President in
his private capacity and disconnected from the discharge of his constitutional obligations,” the court
reasoned. Id. at 28a.
SUMMARY OF ARGUMENT
I. A President has no categorical immunity from
a state grand jury subpoena for documents unrelated
to official duties.

 9
A. This Court’s precedents make clear that a
President’s Article II immunity extends only to official acts. See Clinton v. Jones, 520 U.S. 681 (1997);
Nixon v. Fitzgerald, 457 U.S. 731 (1982). The same is
true for qualified evidentiary privileges.
The Supremacy Clause likewise provides no immunity as to private conduct, instead precluding
States from directly interfering with a President’s official acts.
B. The mere risk of interference with official
functions does not afford a President categorical immunity against subpoenas for documents concerning
private conduct. Presidents throughout history have
been subject to judicial process in appropriate circumstances. Recognizing as much, this Court in Clinton
held that the possibility that private litigation would
distract a President from official functions does not
warrant categorical immunity. And Clinton built on
precedent including United States v. Nixon, 418 U.S.
683 (1974), in which the Court required the President
to disclose Oval Office conversations that implicated
official conduct and executive privilege.
C. These principles preclude petitioner’s assertion of absolute immunity, as the Mazars Subpoena
implicates only private, unofficial documents. A President may of course challenge a particular subpoena
based on a case-specific showing of impermissible Article II burden, but the mere potential for such interference does not justify categorical immunity.
II. That conclusion is not altered by any of petitioner’s or the Solicitor General’s arguments in favor

 10
of a categorical, prophylactic rule of presidential immunity from investigation.
A. Even assuming a sitting President is immune
from indictment, the considerations that might justify
such a rule do not support immunity from investigation, as the Office of Legal Counsel (OLC) has recognized. Responding to a grand jury subpoena is far less
burdensome than facing indictment or prosecution,
and an investigation protected by grand jury secrecy
does not impose any stigmatic harm comparable to
that of an official, public accusation of wrongdoing.
Indeed, this Court has upheld judicial process accompanied by much greater burdens and stigmatic
harms, and its analysis in Nixon confirms that the indictment and subpoena immunity inquiries are distinct.
B. Petitioner’s speculation that state prosecutors
cannot be trusted to investigate responsibly provides
no basis for an absolute immunity rule. This Court in
Clinton rejected a claim of immunity from private
suits based on similar speculation, and the imagined
risks are even less probable here. The States are central to the Nation’s criminal justice system, and state
prosecutions are cloaked with a presumption of regularity that makes federal interference particularly inappropriate. Existing structural constraints—including jurisdictional limitations, ethical rules, and the
prohibition on state investigation of official presidential conduct—further mitigate any risk of harassing
or overly burdensome state investigations.
In the event that a President can make a credible
showing that a particular subpoena is overly burdensome or harassing, state and federal courts are well-

 11
equipped to address such claims. Such case-by-case
checks are consistent with this Court’s precedent; petitioner’s proposed blanket immunity rule is not.
C. The Solicitor General does not expressly adopt
petitioner’s absolute immunity rule but contends that
any state criminal subpoena must satisfy a heightened-need standard, under which a prosecutor would
have to show that the subpoena seeks important evidence unavailable from any other source. Courts
have applied that standard in the face of claims of executive privilege, but the requirement makes no sense
where the subpoenaed materials are not privileged
and do not otherwise implicate official conduct. Nor
does the risk of overly burdensome or harassing subpoenas justify a heightened standard. Existing procedures afford a President fully adequate means for
pressing case-specific claims of burden or harassment, to be reviewed with all of the sensitivity and
respect due a Chief Executive.
D. The rules petitioner and the Solicitor General
propose come with substantial harms that further
counsel against them.
The costs of the absolute immunity advocated by
petitioner are severe. Immunizing a President from
criminal investigation while in office could effectively
provide immunity from indictment and prosecution
after a presidential term due to the loss of evidence.
Absolute presidential immunity from investigation
could also impede criminal investigation of other parties. Even if evidence could eventually be gathered
after a President’s term ends, the statutes of limitations as to third parties may well have expired, and

 12
there is no plausible argument that a President’s immunity from investigation would toll the limitations
period for indicting others.
A heightened-need standard would likewise impose substantial costs. Not only would it unduly hamper the States’ traditional authority to enforce criminal laws through the grand jury’s investigatory process but, if applied in the manner the Solicitor General suggests, it would in practice amount to the absolute immunity petitioner seeks.
III. Although a President may show that a particular subpoena is overly burdensome or issued in
bad faith, petitioner has made neither showing here.
The Mazars Subpoena is substantially less burdensome than the judicial process ratified in Clinton and
Nixon. And the district court already considered the
evidence petitioner cites and rejected a claim of bad
faith in the context of Younger abstention, foreclosing
any case-specific showing of harassment here.
ARGUMENT
I.

A PRESIDENT HAS NO CATEGORICAL IMMUNITY FROM A SUBPOENA FOR DOCUMENTS UNRELATED TO OFFICIAL DUTIES
A. Article II And The Supremacy Clause
Provide Immunity Only From Subpoenas
That Interfere With A President’s Official Functions

Petitioner contends that, during his term of office, Article II and the Supremacy Clause provide
complete and categorical immunity from any criminal

 13
process that implicates his conduct. Petr. Br. 19-39.
He is incorrect. Both provisions protect a President
only against interference with official conduct. Neither provides broad immunity from scrutiny of private acts.
1. Article II vests in a President the federal government’s executive power but does not immunize a
President for acts taken as a citizen. This Court’s
precedents have thus consistently limited any Article
II-based presidential immunities or privileges from
judicial process to circumstances that directly implicate or otherwise substantially interfere with a President’s official duties. The Court has “never suggested
that the President ... has an immunity that extends
beyond the scope of any action taken in an official capacity.” Clinton v. Jones, 520 U.S. 681, 694 (1997).
Presidential immunity against civil suit reflects
this dichotomy. In Nixon v. Fitzgerald, 457 U.S. 731
(1982), this Court held that the President’s “unique
position in the constitutional scheme” requires “absolute immunity from damages liability predicated on
… official acts.” Id. at 749. But this absolute immunity extends only to “liability for acts within the ‘outer
perimeter’ of [a President’s] official responsibility.”
Id. at 756; see also Mississippi v. Johnson, 71 U.S. (4
Wall.) 475, 501 (1867) (barring injunction of President’s “performance of … official duties”).
Private conduct is subject to a different rule. This
Court has held that immunity for official conduct
“provides no support for an immunity for unofficial
conduct.” Clinton, 520 U.S. at 694. The “character of
the office that was created by Article II of the Constitution” does not alone justify immunity for private

 14
conduct, id. at 697, because the “doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our
Government,” id. at 699 (emphasis added).5
The same restriction applies to qualified evidentiary privileges. A President may assert privilege
against disclosure of communications that reflect
presidential deliberations and decision-making. See,
e.g., United States v. Nixon, 418 U.S. 683, 708-13
(1974). But that privilege encompasses only internal
deliberations and decision-making about public or official acts. See Nixon v. Admin. of Gen. Servs., 433
U.S. 425, 449 (1977) (presidential privilege “is limited
to communications ‘in performance of (a President’s)
responsibilities … of his office’” (quoting Nixon, 418
U.S. at 711, 713)); In re Sealed Case, 121 F.3d 729,
752 (D.C. Cir. 1997) (presidential privilege encompasses only communications specifically related to advice to a President on “official government matters”).
It does not extend to a President’s discussions with
private citizens concerning private conduct.
2. The Supremacy Clause likewise does not immunize a President from the everyday obligations of
citizenship. See U.S. CONST. art. VI, cl. 2. It precludes the States from directly interfering with a
President’s (and other federal officials’) official acts.
See, e.g., Tennessee v. Davis, 100 U.S. 257, 263 (1879)
5 Petitioner’s reference (Petr. Br. 22) to Kendall v. United
States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838), is inapt for the
same reason. There, the Court suggested only that a President
is “beyond the reach of any other department … as far as his
powers are derived from the constitution.” Id. at 610 (emphasis
added).

 15
(States cannot “affix penalties to acts done under the
immediate direction of the national government” and
“within the scope of [the officer’s] authority”); In re
Tarble, 80 U.S. (13 Wall.) 397, 409-10 (1871) (States
cannot “interfere[] with” or “control[]” acts “under the
authority … of the United States”); McClung v. Silliman, 19 U.S. (6 Wheat.) 598, 605 (1821) (state court
cannot compel federal officer to take governmental action); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
436 (1819) (States “have no power … to retard, impede, burden, or in any manner control, the operations of the” federal government); see also Petr. Br. 3132 (citing additional cases). Absent such interference,
the Supremacy Clause does not supplant the States’
authority to regulate the conduct of a President (or
any other federal official) as a private citizen. See,
e.g., United States ex rel. Drury v. Lewis, 200 U.S. 1, 8
(1906) (refusing to grant habeas corpus to federal official in advance of his state criminal trial where evidence raised a genuine issue about whether official
federal conduct was involved).
It follows that someone’s status as a federal officer does not by itself trigger Supremacy Clause immunity. See In re McShane’s Petition, 235 F. Supp.
262, 273 (N.D. Miss. 1964) (“[I]t cannot be said that
any federal official is absolutely immune merely because of his official standing and his official purpose.”). Instead, such immunity turns on whether a
State is attempting to dictate how a federal officer
carries out an official function. As petitioner concedes, the doctrine immunizes federal officers from
state regulation “only when they undertake official

 16
acts.” Petr. Br. 25 (emphasis added); see, e.g., Cunningham v. Neagle, 135 U.S. 1, 75 (1890) (Supremacy
Clause protects federal officer from state punishment
only if federal law “authorized” officer to do the challenged act, “which it was his duty to do as [an officer]
of the United States”). An officer is not entitled to Supremacy Clause immunity, by contrast, for acts “other
… than official acts.” Maryland v. Soper, 270 U.S. 9,
35 (1926).
This dichotomy reflects the structural purpose of
the Supremacy Clause. The Clause establishes that
“[w]henever, therefore, any conflict arises between
[federal and state] enactments … , or in the enforcement of their asserted authorities,” those of the federal government prevail. In re Tarble, 80 U.S. at 407.
When a State attempts to regulate a federal official’s
exercise of federal powers, its actions necessarily conflict with supreme federal authority, and the Supremacy Clause resolves the conflict in favor of the federal
government. But when a State regulates the private,
unofficial conduct of individuals who are also federal
officials, no such conflict arises, and the Supremacy
Clause does not apply.6

6 In Clinton, the Court reserved the question whether the
Supremacy Clause might apply if a state court exercised “direct
control ... over the President” in a civil action, presumably in a
way that interfered with the performance of official responsibilities. 520 U.S. at 691 n.13. Nothing in that reservation implied
a wholesale exemption of a President from the ordinary responsibilities of a citizen with respect to a state grand jury subpoena
for private records, absent any showing of interference with official duties, much less that such an exemption would apply
where, as here, a subpoena was issued to a third party.

 17
Petitioner contends that, although this is the general rule, under Fitzgerald, a President’s Supremacy
Clause protection is broader than that afforded other
federal officials and must extend to unofficial conduct.
Petr. Br. 25. That is incorrect. Fitzgerald was a federal case that had nothing to do with the Supremacy
Clause. And if Fitzgerald has any relevance at all, it
undercuts petitioner’s argument. The cited passage
explained that even though federal officials have only
qualified immunity for official acts, the unique position of the presidency requires absolute immunity for
action within the outer bounds of official presidential
duties. See 457 U.S. at 750-51, 756. But the Court
was careful to explain that, for any official, the immunity extends only to official conduct. See supra at
13-15. No case has ever held that the Supremacy
Clause’s scope extends to a President’s conduct as a
private citizen.
B. The Mere Risk That A Subpoena Duces
Tecum May Interfere With Official Presidential Functions Does Not Afford A
President Categorical Immunity
Historical practice and this Court’s precedent establish that the mere risk that a documentary subpoena seeking evidence of private conduct might interfere with official presidential functions does not
justify a rule of categorical presidential immunity.
The possibility that a President may have to expend
effort to comply with judicial process or may experience incidental burdens has never been enough to demand Article II immunity. See Randolph D. Moss,
Asst. Atty. Gen., A Sitting President’s Amenability to
Indictment and Criminal Prosecution, 24 O.L.C. Op.

 18
222, 254 (Oct. 16, 2000) (Moss Memo) (no general immunity from “subpoenas for documents or testimony”
or civil suits despite risk of interference with a President’s time and energy and mental burdens).
1. Petitioner and the Solicitor General cite various writings of the Framers, which they contend show
that the Framers uniformly believed a sitting President could not be subject to any criminal process
whatsoever. Petr. Br. 22-23; U.S. Br. 9. But this
Court considered the same historical evidence in Clinton and, after surveying conflicting statements from
other Framers, concluded that these historical
sources do not provide a definitive answer, and in fact
“largely cancel each other” out. 520 U.S. at 696-97.
The Court accordingly has looked to longstanding
practice from our Nation’s earliest years, which confirms that nothing in the Constitution prohibits a
President from being “subject to judicial process in appropriate circumstances.” Id. at 703.
Throughout American history, many Presidents
not only have voluntarily participated in but also
have been involuntarily compelled to comply with
various forms of judicial process, including subpoenas
to testify and produce documents in both civil and
criminal cases. The earliest example involved Aaron
Burr’s treason trial, in which Chief Justice Marshall
ruled that President Jefferson could be required to respond to a subpoena duces tecum. Clinton, 520 U.S.
at 703-04 (citing United States v. Burr, 25 F. Cas. 30
(C.C.D. Va. 1807) (No. 14,692D)). President Monroe
later “responded to written interrogatories,” id. at 704
(citing Ronald Rotunda, Presidents and Ex-Presidents
as Witnesses: A Brief Historical Footnote, 1975 U. ILL.

 19
L. FORUM 1, 5-6 (1975)), after soliciting an opinion
from the Attorney General, who concluded, based on
Burr, that a subpoena ad testificandum could be issued to a President, see Rotunda, 1975 U. ILL. L. FORUM at 5-6. President Ford “complied with an order
to give a deposition in a criminal trial.” Clinton, 520
U.S. at 705. President Clinton “twice g[ave] videotaped testimony in criminal proceedings.” Id. And
“President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides” for use in
a criminal trial. Id. at 704 (citing Nixon, 418 U.S. at
706).
2. Based in part on this established historical
practice, this Court has repeatedly held that a President is subject to ordinary judicial process, even
where there is a substantial risk that complying will
distract a President or otherwise indirectly burden
the ability to perform official presidential functions,
or when a particular subpoena directly implicates
privileged communications.
Clinton, for example, rejected a claim of temporary presidential immunity from a private lawsuit for
unofficial conduct even though the Court understood
that such a lawsuit would impose burdens on a President, requiring him to produce documents and even
provide sworn testimony. Id. at 691-92. The Court
also specifically rejected President Clinton’s contention that, if denied immunity, the President would be
the target of politically motivated, harassing, and
frivolous litigation. Id. at 708-10. And it rejected the
suggestion that courts would be unable to weed out

 20
such claims, noting that sanctions would be a “significant deterrent to litigation directed at the President
in his unofficial capacity for purposes of political gain
or harassment.” Id. at 708-09. As the Court explained, the threat that such litigation would distract
a President in the exercise of official Article II duties
is simply not the type of interference that triggers
constitutional immunity. See id.; see also id. at 705
n.40 (the distractions of pending litigation, however
“vexing,” “do not ordinarily implicate constitutional
separation-of-powers concerns”).
Clinton was itself based in large part on this
Court’s longstanding view that a sitting President
may be subject to a subpoena in a criminal proceeding
without impermissibly intruding on a President’s official functions. As noted, Chief Justice Marshall first
considered the issue more than 200 years ago while
overseeing the trial of Aaron Burr. President Jefferson contended that the Constitution immunized him
from having to comply with a subpoena duces tecum
in a criminal proceeding. But Chief Justice Marshall
rejected that contention, holding that the fact 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.D. Va. 1807) (No. 14,694).
The full Court in Nixon later unanimously, “unequivocally[,] and emphatically endorsed Marshall’s
position.” Clinton, 520 U.S. at 704 (citing Nixon, 418
U.S. at 706). Nixon obligated the President 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

 21
was in office, of conversations between himself and
White House aides in the Oval Office, that by nature
implicated official conduct and privileged communications. Nixon, 418 U.S. at 686, 687 n.3.
President Nixon moved to quash the subpoena,
asserting a “claim of absolute privilege.” Id. at 705.
The President cited the “need for protection of communications between high Government officials and
those who advise and assist them in the performance
of their manifold duties,” id., arguing that separationof-powers principles “insulate[] a President from a judicial subpoena in an ongoing criminal prosecution,”
id. at 706. This Court rejected that contention, 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.7
In reaching that conclusion, the Court acknowledged the “need for confidentiality in the communications of [a President’s] office” and “the public interest
in candid, objective, and even blunt or harsh opinions
in Presidential decisionmaking.” Nixon, 418 U.S. at
708, 712-13. But that interest was not the only im-

7 Petitioner contends that Nixon “did not consider (let alone
deny) a claim of presidential immunity.” Petr. Br. 43. But 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 argue … that, so long as he remains
in office, the President is absolutely immune from the compulsory process of a court”).

 22
portant public interest at stake and had to 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. “The need to develop all relevant facts in 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 presidential communications. Id.
at 713.
C. A Subpoena Seeking Non-Privileged Evidence About A President’s Private, Unofficial Conduct May Be Challenged As Applied If The President Shows An Impermissible Burden On Article II Functions
These principles preclude petitioner’s assertion of
categorical immunity, as it is undisputed that the
grand jury investigation at issue here concerns only
unofficial, private conduct, and none of the materials
sought reflects confidential communications subject
to a claim of executive privilege. See Pet. App. 17a18a; Petr. Br. 15, 19, 32-33, 47, 48 (subpoena seeks
only “personal” information); Cert. Reply 3, 8 (subpoena involves merely “unofficial” action); U.S. Br. 1,
6-7, 15-16, 23, 26, 28 (similar).
That does not mean, of course, that a President
would have no remedy against a subpoena or other
form of judicial process upon showing that it in fact

 23
materially interferes with the ability to perform official presidential functions. While “potential burdens”
on a President do not provide immunity, “those burdens are appropriate matters for [a court] to evaluate
in its management of the case.” Clinton, 520 U.S. at
707. And the “high respect that is owed to the office
of the Chief Executive, though not justifying a rule of
categorical immunity, is a matter that should inform
the conduct of the entire proceeding, including the
timing and scope of discovery.” Id.
Thus, if a court is faced with a factually supported
claim of actual interference with Article II functions—for example, unreasonably burdensome process that unduly distracts a President—it should
ameliorate such problems on a case-by-case basis. As
explained in Part III, petitioner has made no showing
of case-specific burdens here. But categorical immunity based only on potential interference with the ability to perform official presidential functions has no
basis in constitutional text, practice, or precedent,
and should be rejected by this Court.
II. THE PROPHYLACTIC IMMUNITY RULES
PROPOSED BY PETITIONER AND THE SOLICITOR GENERAL ARE UNSOUND
Both petitioner and the Solicitor General resist
the lesson from history, precedent, and logic that a
subpoena for documents in a criminal investigation
involving a President’s private, non-privileged conduct raises no constitutional issue, unless the President makes a case-specific showing that the process
will interfere with Article II functions. They instead
contend that considerations that might favor presi-

 24
dential immunity from indictment, as well as the potential for politically motivated or harassing subpoenas, justify prophylactic, across-the-board rules that
impose absolute or highly restrictive barriers to criminal investigations of unofficial conduct while a President occupies office. Nothing in the Constitution justifies such barriers, which would for the first time immunize a President from the ordinary responsibilities
of citizenship in the context of private, unofficial conduct and impede the investigation of criminal conduct
under state law.
A. The Considerations Asserted To Justify
Presidential Immunity From Prosecution Do Not Justify Immunity From Investigation For Unofficial Conduct
Petitioner’s principal argument is that he must
be absolutely immune from criminal investigation
into unofficial conduct because such an investigation
raises the same concerns that OLC has identified as
precluding indictment and prosecution of a sitting
President. See Moss Memo 246-54. Reasoning from
the premise that a sitting President is immune from
indictment and prosecution because of the burden,
distraction, and stigma from facing potential loss of
liberty after a criminal trial, petitioner asserts that
he must necessarily be immune from criminal investigation. Petr. Br. 29.
For the purpose of this case, the Court may assume the validity of OLC’s position that a sitting

 25
President is not amenable to criminal prosecution.8
Certainly, a criminal trial and incarceration would infringe Article II. But the concerns that drove OLC’s
finding of an implied constitutional immunity from
formal accusation do not extend to the investigation of
unofficial, potentially criminal conduct during a President’s term. Thus, even while finding an immunity
from indictment and prosecution, OLC also concluded
that “[a] grand jury could continue to gather evidence
throughout the period of immunity [for a sitting President], even passing this task down to subsequently
empaneled grand juries if necessary.” Moss Memo
257 n.36.
Gathering evidence is all the grand jury seeks to
do here. And that task is vital to ensure that a President may be held accountable for criminal violations
upon leaving office—which all agree is basic to our
constitutional scheme. Indeed, any constitutional
rule of temporary immunity from prosecution during
a President’s term should not be transformed into a
rule of permanent immunity simply because investigatory leads have grown stale or because the statute

8 This case does not involve the question whether a sitting
President may be indicted by a state or local grand jury for unofficial conduct, and accordingly, it presents no opportunity for
resolving that issue. The Court may proceed on the assumption
that such immunity exists, however, coupled with the knowledge
that respondent—who has made no determination on the ultimate merits—would be obligated under state law in this case to
provide notice and, by extension, an opportunity to seek judicial
review before any grand jury vote on an indictment. See N.Y.
CRIM. PROC. LAW § 190.50(5)(a)-(b); cf. Holder v. Humanitarian
Law Project, 561 U.S. 1, 16 (2010).

 26
of limitations has run.9 To guarantee that a President, along with individuals and entities connected to
him, are not permanently above the law, the grand
jury must be permitted to collect evidence and follow
leads when memories are fresh and relevant evidence
is available. Nothing in the Constitution requires
otherwise.
Moreover, the concerns asserted to justify temporary presidential immunity from prosecution do not
apply to grand jury investigations into unofficial conduct.
1. As an initial matter, petitioner incorrectly asserts that the text of the Impeachment Judgment
Clause, U.S. CONST. art. I, § 3, cl. 7, establishes that
a President may be criminally indicted “only after he
is ‘convicted’ by the Senate.” Petr. Br. 21. As the
Moss Memo explains, that is not so; the Clause does
not differentiate among federal officers who may be
impeached, and history and the original understanding settle that prosecution may precede removal. See
Moss Memo 223-25. But even if that were not so for
the President, the Clause says nothing to preclude investigation.

9 For this reason, unless state law provides for tolling, or a
federal immunity rule had the constitutional corollary of tolling
the statute of limitations during a President’s term of office, see
Moss Memo 256 & n.33; Petr. Br. 33; U.S. Br. 32, the filing of a
sealed indictment, with a stay of proceedings, might be a necessary and appropriate procedure. It is unnecessary to confront
those difficult issues here, however, because—regardless of the
breadth of any immunity from prosecution—the rationale for
such a rule does not extend to investigation.

 27
2. As a functional matter, responding to a grand
jury subpoena does not impose the kinds of burdens
on a President’s time and effort associated with criminal indictment or prosecution. A grand jury subpoena does not “make it physically impossible for the
President to carry out” official duties by restraining a
President’s liberty as a sentence of incarceration
would. Id. at 246. Nor does responding to a grand
jury subpoena for documents require a President to
choose between exercising constitutional rights—to
attend trial, to confront witnesses, to have a public
and speedy trial—and fulfilling Article II functions.
See id. at 251-54. A grand jury subpoena is not an
accusation that demands a defense; it is an investigative step that generally unfolds behind closed doors.
Presidents have routinely responded to much
more burdensome requests for evidence than that at
issue here without any disruption of their Article II
functions. See supra at 18-19. And responding to a
grand jury subpoena duces tecum for documents related to unofficial conduct would not even impose the
kinds of burdens that this Court has found acceptable
in prior cases, including requiring a President to testify under oath and disclose tape recordings of privileged Oval Office communications with close advisors.
See supra at 19-22 (discussing Clinton and Nixon).
Responding to such a subpoena is an incident of citizenship that does not, absent some special case-specific showing, impose burdens cognizable under Article II.
3. Unlike a criminal indictment or prosecution, a
grand jury subpoena does not impose any cognizable

 28
stigmatic burdens on a President either. An “indictment and criminal prosecution,” the Moss Memo reasoned, creates a “distinctive and serious stigma” that
would “threaten the President’s ability to act as the
Nation’s leader in both the domestic and foreign
spheres.” Moss Memo 249. A grand jury subpoena
does not implicate any remotely similar stigmatic
harm, for at least three reasons.
First, a criminal indictment and subsequent prosecution is uniquely stigmatizing because it is a “public
… allegation of wrongdoing,” id. at 250—an “official
pronouncement that there is probable cause to believe
[the defendant] committed a criminal act,” id. at 254.
A grand jury subpoena, in contrast, is not an “official
pronouncement” of wrongdoing; it signals only that an
investigation is underway. Grand jury investigations
are “necessarily broad,” United States v. Dionisio, 410
U.S. 1, 13 (1973), and while they seek to discover possible criminal conduct, they also serve the “invaluable
function in our society of standing between the accuser and the accused” and protecting “the innocent
against hasty, malicious, and oppressive prosecution,” Wood v. Georgia, 370 U.S. 375, 390 (1962).
Thus, it is “clearly recognized” that giving evidence as
part of a grand jury investigation is a “public dut[y]
which every person within the jurisdiction of the government is bound to perform upon being properly
summoned.” Blair v. United States, 250 U.S. 273, 281
(1919). And that notion—that it is every person’s civic
obligation to participate fully in a grand jury investigation—“in itself removes any stigma” from the participation. In re Grand Jury Proceedings Harrisburg
Grand Jury 79-1, 658 F.2d 211, 214 (3d Cir. 1981); see

 29
also United States v. Doe, 457 F.2d 895, 898 (2d Cir.
1972) (“A [grand jury] subpoena is served in the same
manner as other legal process; it involves no stigma
whatever … and it remains at all times under the control and supervision of a court.”), cert. denied, 410
U.S. 941 (1973).
Second, unlike criminal indictments and prosecutions, a core feature of grand jury investigations is secrecy: “Since the 17th Century, grand jury proceedings have been closed to the public, and records of
such proceedings have been kept from the public eye.”
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218
n.9 (1979); see also United States v. Proctor & Gamble,
356 U.S. 677, 681-82 (1958). Today, federal and state
rules guarantee secrecy in grand jury proceedings.
See, e.g., FED. R. CRIM. P. 6(e)(2); N.Y. CRIM. PROC.
LAW § 190.25(4)(a).
Petitioner contends that he is nonetheless subject
to stigma because he is not merely a witness but the
“target” of the grand jury’s criminal investigation.
That is not so. The only person who has ever described petitioner as a “target” of the grand jury investigation at issue is petitioner himself.10 But even
if petitioner were a “target,” grand jury secrecy prevents any stigma by ensuring “that persons who are
accused but exonerated by the grand jury will not be
held up to public ridicule.” Douglas Oil Co., 441 U.S.
at 219.
10 The Mazars Subpoena does not identify petitioner (or anyone else) as a “target” of the investigation but was issued as a
part of the grand jury’s fact-gathering process into conduct that
involves petitioner and multiple other persons and entities.

 30
Third, to the extent that a grand jury subpoena
for a President’s records of unofficial conduct raises
any stigmatic concerns, the Court has already rejected far more serious stigmatic harms as a basis to
avoid judicial process. Nixon required the production—and, depending on relevance, public disclosure—of the President’s privileged, sensitive Oval Office conversations that would implicate him in a criminal conspiracy. Clinton envisioned civil proceedings
that could result in a jury verdict determining that
the President had acted improperly or unlawfully in
his private conduct. An investigatory subpoena for
documents in the sanctity of the grand jury threatens
no remotely comparable stigma.
4. Nixon confirms that the prospect of temporary
presidential immunity from indictment does not imply immunity from a criminal subpoena. Nixon held
that a sitting President could be required to produce
confidential communications from the Oval Office.
418 U.S. at 703, 713. Yet at the same time, the Court
expressly declined to address whether the grand jury
acted within its authority in naming President Nixon
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 a President could be
named as an unindicted coconspirator because the
President could be issued a trial subpoena either way.
Petitioner overlooks this aspect of Nixon and instead relies on Fitzgerald, which he contends held

 31
that a President is immune from civil suits stemming
from official conduct because “personal vulnerability”
to such suits would “distract [the President] from …
public duties.” Petr. Br. 30 (quoting Fitzgerald, 457
U.S. at 753). If a civil suit is too distracting, petitioner
reasons, a criminal investigation must also be. Id.
But the Court’s immunity holding in Fitzgerald was
not based on distraction caused by the litigation itself.
If it were, then Clinton would have come out the other
way. Rather, Fitzgerald recognized that liability for
official conduct would “render [a President] unduly
cautious in the discharge of his official duties.” 457
U.S. at 752 n.32; see Clinton, 520 U.S. at 694 n.19.
And, as explained, this Court has recognized that the
Constitution does not immunize a President from the
general burden of responding to legal process involving private conduct. Clinton, 520 U.S. at 694, 701706.
Criminal investigation of a President’s private
conduct, in short, does not come with such inherent,
serious burdens as to justify a categorical rule of absolute immunity.
B. Absolute Immunity From State Criminal
Investigation Would Strike Deeply Into
Principles Of Accountability And Federalism
Beyond his arguments for immunity from any
and all criminal process (including investigation), petitioner asserts that such immunity is especially important where state or local grand jury investigations
are concerned. See Petr. Br. 16, 23. If state prosecutors are permitted to ask grand juries to investigate a

 32
President, he argues, thousands of vexatious and harassing investigations will “embroil the sitting President in criminal proceedings,” making it impossible to
fulfill Article II functions. Id. at 26. Those speculative concerns cannot justify an unprecedented new
rule of immunity that would flip constitutional notions of federalism and accountability on their head.
1. It is a fundamental tenet of our system of federalism that “both the Federal government and the
States wield sovereign powers.” Gamble v. United
States, 139 S. Ct. 1960, 1968 (2019). The federal government’s powers are limited and expressly delineated, while the Constitution reserves any remaining
powers for the States and the people. See U.S. CONST.
amend. X. In particular, our system “reserv[es] a generalized police power to the States,” in recognition of
the States’ unique interest in investigating and prosecuting crimes within their borders. United States v.
Morrison, 529 U.S. 598, 618 n.8 (2000).
Despite the centrality of the States to the Nation’s criminal justice system, petitioner contends
that the presidency requires a blanket immunity from
state investigations because state prosecutors cannot
be trusted to exercise their investigatory power responsibly when it comes to a President. Yet petitioner
cannot identify a single instance of state prosecutors
abusing that power.11 He insists that a lack of abusive investigations or prosecutions is evidence that
11 The Solicitor General’s catalogue of examples of purportedly harassing behavior by state officials, see U.S. Br. 18-21,
demonstrates the opposite of what he suggests. Only one of
these examples involved a state or local prosecutor. In the lone

 33
state prosecutors did not previously understand
themselves to have such power, and that once they do,
“the floodgates will open.” Petr. Br. 28. That is a remarkably thin reed on which to rest a claim of prophylactic constitutional immunity, which is why this
Court rejected a virtually identical argument in Clinton. There, the President argued that a decision denying immunity would “engulf the Presidency” in a “deluge” of private litigation. Clinton, 520 U.S. at 702.
But that prediction did not convince the Court to recognize an immunity from civil suits for private conduct, and moreover, the prediction turned out to be
wrong: In the two decades since Clinton was decided,
only a handful of private suits have been filed against
Presidents, many of which have been quickly dismissed by courts, minimizing any potential interference with the presidency. See, e.g., Johnson v. Trump
for Pres., Inc., 2019 WL 2492122 (M.D. Fla. June 14,
2019); Sibley v. Obama, 866 F. Supp. 2d 17 (D.D.C.
2012).
The Court’s refusal to credit speculative claims of
harassing civil litigation in Clinton applies a fortiori
to state criminal investigations. If anything, such investigations by officials who take an oath to support
the Constitution give rise to substantially less cause
for concern. U.S. CONST. art. VI, cl. 3 (requiring state
exception, an outgoing district attorney indicted Vice President
Cheney and other federal officials, not President Bush, and a
state court promptly dismissed the indictment, demonstrating
that courts are fully capable of checking any prosecutorial misconduct. See Debra Cassens Weiss, Judge Tosses Indictments of
Vice President Cheney, Ex-AG Gonzales, A.B.A. J. DAILY NEWS,
Dec. 2, 2008, http://bit.ly/2SSNVPW.

 34
officers to “be bound by Oath or Affirmation, to support this Constitution”). A state prosecutor, unlike a
private plaintiff, is “under an ethical obligation, not
only to win and zealously to advocate for his client but
also to serve the cause of justice.” Cheney v. U.S. Dist.
Ct., 542 U.S. 367, 386 (2004). Thus, the “responsible
exercise of prosecutorial discretion” serves as a check
on potentially vexatious or harassing criminal litigation that has no counterpart in the civil system. Id.
This Court has repeatedly explained that the lack of
“the check imposed by prosecutorial discretion” is a
reason to reject or narrow the scope of private actions.
RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090,
2106 (2016) (quoting Sosa v. Alvarez-Machain, 542
U.S. 692, 727 (2004)). The presence of that same
check provides ample reason here to refrain from immunizing a President against criminal investigation
of private conduct.
Indeed, decades of this Court’s precedents flatly
reject the assumption implied in petitioner’s prophylactic rule—viz., that state prosecutors are likely to
exercise their investigatory powers irresponsibly. As
“representative[s] not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all,” prosecutors’ “interest … in a criminal
prosecution is not that [they] shall win a case, but
that justice shall be done.” Berger v. United States,
295 U.S. 78, 88 (1935). Accordingly, state prosecutors, like their federal counterparts, are cloaked in a
presumption of regularity: “It is generally to be assumed that state courts and prosecutors will observe
constitutional limitations as expounded by this

 35
Court.” Dombrowski v. Pfister, 380 U.S. 479, 484
(1965). Thus, this Court has recognized that “federal
interference with a State’s good-faith administration
of its criminal laws is peculiarly inconsistent with our
federal framework,” id., and cautioned against “denigrat[ing] the independent judgment of state prosecutors to execute the laws of those sovereigns,” Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010).
This Court, in sum, has been “unwilling to credit
… ominous intimations of hostile state prosecutors
and collaborationist state courts interfering with federal officers.” Mesa v. California, 489 U.S. 121, 138
(1989). Yet that is exactly what petitioner asks this
Court to do, based on unwarranted generalizations
and rampant speculation without even a hint of evidence in history or actual practice. No constitutional
principle authorizes a rule of prophylactic immunity
from the ordinary incidents of citizenship premised on
such unfounded fears.
2. Petitioner’s argument for a special rule of immunity from state investigation also ignores the substantial structural and practical limitations on state
prosecutors. State prosecutors generally may only
bring prosecutions within their jurisdictions and so
are inherently limited in the investigations they can
launch. Every state jurisdiction also has adopted a
rule requiring prosecutors to refrain from prosecuting
baseless charges unsupported by probable cause,12
12 Forty-nine States and the District of Columbia have
adopted the American Bar Association’s Model Rule of Professional Conduct 3.8(a), which provides that prosecutors “shall refrain from prosecuting a charge that the prosecutor knows is not

 36
and a prosecutor who violates that rule can be subject
to professional discipline. Connick v. Thompson, 563
U.S. 51, 66 (2011). The “development and enforcement of [these] professional standards for prosecutors
… lessen the danger … [of] prosecutorial misconduct.”
Malley v. Briggs, 475 U.S. 335, 343 n.5 (1986). And if
these professional disciplinary mechanisms were not
enough, prosecutors can be punished criminally under 18 U.S.C. § 242 for “willfully depriv[ing] [a] citizen
of … constitutional rights.” O’Shea v. Littleton, 414
U.S. 488, 503 (1974).
As petitioner himself points out and the cases he
cites show, moreover, state grand juries are already
precluded from targeting federal officials for official
acts. Petr. Br. 30-31 (citing United States v. McLeod,
385 F.2d 734, 750-52 (5th Cir. 1967) (state grand jury
precluded from investigating DOJ activities); United
States v. Owlett, 15 F. Supp. 736, 741 (M.D. Pa. 1936)
(state legislative committee barred from investigating
operations of Federal Works Progress Administration)). That result follows from the protections for the
exercise of official duties granted by the Supremacy
Clause. See supra at 13-15. This prohibition against
state prosecutors’ investigating a President’s official
conduct minimizes any risk of prosecutorial interference with Article II duties. No basis exists to extend
such an immunity to cover purely private acts.
3. Finally, petitioner fails to explain why existing
judicial checks on harassing or overly burdensome
subpoenas do not suffice to ameliorate any harm that
supported by probable cause.” California has an analogous rule.
See CAL. RULES OF PROF’L CONDUCT r. 3.8(a).

 37
might occur in a particular case. State courts, like
federal courts, have tools to protect the presidency
from grand jury abuse and harassment. See, e.g., Virag v. Hynes, 54 N.Y.2d 437, 443-44 (1981) (explaining grounds to quash grand jury subpoena duces tecum); infra at 42-43. And a President can seek to
make a credible factual showing in federal court that
a subpoena seeking evidence of unofficial, unprivileged conduct is issued in bad faith or actually threatens Article II interests. Cf. Huffman v. Pursue, Ltd.,
420 U.S. 592, 611 (1975) (federal intervention in a
state proceeding may be appropriate if “the state proceeding is motivated by a desire to harass or is conducted in bad faith”); Younger v. Harris, 401 U.S. 37,
45 (1971) (“[W]hen absolutely necessary for protection
of constitutional rights, courts of the United States
have power to enjoin state officers from instituting
criminal actions.”).13 Federal and state courts are required to approach any case-specific allegation of harassment or burden on a President’s Article II functions with the “high respect that is owed to the office
of the Chief Executive.” Clinton, 520 U.S. at 707. Petitioner provides no reason to believe that, in the unlikely event that a state prosecutorial office abuses its
authority, both state and federal courts will fail to
protect the presidency from a well-founded showing of
harassment or burden.
Such case-by-case checks are consistent with this
Court’s prior treatment of judicial process against a
13 Respondent did not challenge in this Court the Second
Circuit’s holding that Younger abstention does not preclude such
federal court review.

 38
President, especially when it comes to unofficial conduct. See supra at 19-22. In contrast, a prophylactic
immunity protecting a President from the ordinary
duties of citizenship with respect to purely private
conduct would be unprecedented. Congress could, of
course, enact such a prophylactic immunity if it believed it necessary to provide a President more protection than the Constitution requires. See Clinton,
520 U.S. at 709. But no constitutional provision or
principle authorizes this Court to adopt such a novel
rule.
C. The Solicitor General’s Heightened-Need
Standard Applies Only To Privileged Materials
The Solicitor General stops short of supporting petitioner’s claim of absolute, unqualified immunity.
But the Solicitor General puts forth his own categorical, prophylactic rule, arguing that a state prosecutor
must in every case “satisfy a heightened standard of
need.” U.S. Br. 26. Nothing justifies applying such a
rule to state grand jury subpoenas across the board.
The heightened-need standard derives principally from Nixon, where the Court held that when a
subpoena seeks material over which a President
makes an “assertion of privilege,” the government
must show a “demonstrated, specific need” for the evidence to overcome that claim. 418 U.S. at 713. Nixon
involved a trial subpoena, but the D.C. Circuit later
applied this standard in the grand jury context, concluding that “to overcome [a] presidential privilege it
is necessary to demonstrate with specificity why it is
likely that the subpoenaed materials contain important evidence and why this evidence, or equivalent

 39
evidence, is not practically available from another
source.” In re Sealed Case, 121 F.3d at 756.
The Solicitor General contends that respondent
“has not satisfied” that standard here. U.S. Br. 26.
But respondent never attempted to satisfy any
heightened-need standard in the district court because petitioner argued only for categorical immunity—not a heightened standard—until his petition for
certiorari in this Court.14 In any event, nothing justifies applying such a heightened threshold standard
when the materials sought are not privileged or confidential official documents but rather purely private
ones pertaining only to acts taken by a President as
an ordinary citizen.
1. The Solicitor General acknowledges that, in
every case applying the heightened-need standard,
the subpoena at issue involved “the President’s [confidential] communications with his advisors.” U.S.
Br. 28. There has never been any real dispute on this
point, see, e.g., In re Sealed Case, 121 F.3d at 753
(heightened-need standard concerns the “type of
showing of need the [prosecutor] must make in defense of the grand jury subpoena in order to overcome
the privilege”), but petitioner—who advances a
heightened-need standard as a fallback—disputes it
anyway, arguing that Nixon’s heightened-need holding was independent of President Nixon’s claim of
privilege, Petr. Br. 46.
14 DOJ raised its proposed heightened-need standard for
the first time on appeal in the Second Circuit—also after respondent would have had any opportunity to demonstrate that
he can satisfy it.

 40
Petitioner is wrong. Nixon announced the heightened-need standard in the section of the opinion labeled “The Claim of Privilege” and explained that the
government must show a “demonstrated, specific
need” for the evidence when there has been an “assertion of privilege” based on “confidentiality.” 418 U.S.
at 703, 713. The portion of Nixon on which petitioner
relies that is not specifically addressed to a claim of
privilege concerned Federal Rule of Criminal Procedure 17, id. at 702, and had nothing to do with the
heightened-need standard.
Petitioner also seeks to expand heightened need
beyond executive claims grounded in confidentiality
interests, based on a distorted reading of Cheney. He
cites that case for the proposition that “‘[s]pecial considerations control’ … whenever the ‘autonomy’ of the
President’s office is at stake—which is always the
case ‘in the conduct of litigation against’ the Chief Executive.” Petr. Br. 46 (quoting Cheney, 542 U.S. at
385). What this Court actually said was that “special
considerations control when the Executive Branch’s
interests in maintaining the autonomy of its office
and safeguarding the confidentiality of its communications are implicated.” Cheney, 542 U.S. at 385 (emphasis added). The Vice President did not formally
invoke executive privilege in Cheney, but this Court
held that facially overbroad requests for information
about a task force that advised the President could
nonetheless be narrowed to avoid unnecessary interference with official Executive Branch functions. Id.
at 387. Even interpreting Cheney to impose some type
of heightened burden when a civil plaintiff seeks discovery of official materials, no case from this or any

 41
other Court suggests that a heightened showing is required when the evidence sought is unofficial, purely
private, and implicates no interest in government
confidentiality or privilege.
2. Requiring a prosecutor to make a showing of
special need for evidence makes sense in the context
of privilege: Article II provides a qualified privilege
to protect the confidentiality of official communications. See supra at 14, 38. But that privilege (like any
qualified privilege) must be balanced against other
important public interests, such as the public’s interest in “the fair adjudication of a particular criminal
case in the administration of justice.” Nixon, 418 U.S.
at 713. Otherwise said, because a President’s confidential communications in furtherance of official
presidential duties are presumptively protected, a
prosecutor must make a special showing to overcome
the presumption. No such across-the-board rule
makes sense, however, when the materials in question are not confidential communications with Executive-Branch advisers but are instead a President’s
purely private records.
The Solicitor General nevertheless argues that a
heightened-need standard is required to “mitigate the
risk of harassment” of a President by prosecutors and
“reduce the risk of subjecting the President to unwarranted burdens.” U.S. Br. 28. But this argument fails
for the same reason that petitioner’s similar argument for absolute immunity fails: The Solicitor General offers no basis for an across-the-board rule based
on a risk of such harms when courts can (and should)
remedy those harms if and when they actually arise
in a particular case. Cf. Burr, 25 F. Cas. at 34 (“The

 42
guard, furnished to [a President], 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; not in any circumstance
which is to precede their being issued.”).
In fact, the ordinary procedures for challenging
grand jury subpoenas already provide for quashing or
modifying subpoenas on harassment and excessiveburden grounds. See, e.g., FED. R. CRIM. P. 17(c)(2)
(“[A] court may quash or modify [a] subpoena if compliance would be unreasonable or oppressive.”);
United States v. R. Enters., Inc., 498 U.S. 292, 299
(1991) (“Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass.”); Virag, 54 N.Y.2d at 443-44 (grand jury subpoena duces tecum may be quashed if the “materials
sought have no relation to the matter under investigation” or upon showing of “bad faith”).
Article II, moreover, requires courts to be especially sensitive to the unique position occupied by a
sitting President, making clear that they are not “required to proceed against the president as against an
ordinary individual.” Nixon, 418 U.S. at 708 (quoting
Burr, 25 F. Cas. at 192). Thus, if a President showed
in a particular case that complying with a grand jury
subpoena would unduly impede Article II functions, a
court could narrow the subpoena, extend the time to
comply, or, in extreme cases, quash it. As this Court
explained in Clinton, “[i]f and when” a President
shows that judicial process would interfere with official presidential functions, a court should respond “in
such fashion … that interference with the President’s

 43
duties would not occur.” 520 U.S. at 708. But in a
case when “no such impingement upon the President’s” official conduct is shown, id., no basis exists
for requiring a heightened showing.
The same is true for harassing subpoenas.
Courts already must quash grand jury subpoenas issued “out of malice or an intent to harass,” R. Enters.,
498 U.S. at 299; see Virag, 54 N.Y.2d at 443-44, and
the same protections would apply with special force to
a President, in light of the office’s unique position as
the head of the Executive Branch, cf. Nixon, 418 U.S.
at 702 (appellate review of a subpoena to a President
should be “particularly meticulous” (citing Burr, 25 F.
Cas. at 34)). Beyond that review, a President could
invoke constitutional principles grounded in Article II
if the President could make a factual showing that an
investigative demand for private documents was intended as retaliation for official policies. Cf. United
States v. Goodwin, 457 U.S. 368, 380 n.12 (1982) (defendant may establish claim for vindictive prosecution by “prov[ing] through objective evidence an improper prosecutorial motive”); Branzburg v. Hayes,
408 U.S. 665, 707-08 (1972) (First and Fifth Amendments prohibit grand jury subpoenas that constitute
“[o]fficial harassment”). But the Solicitor General has
offered no ground for special scrutiny where, as here,
the President has made no prima facie showing of
malice, harassment, or politically motivated conduct.15

15 Because all subpoenas, state or federal, are ultimately
constrained by constitutional principles, see Branzburg, 408 U.S.

 44
The Solicitor General also errs in suggesting that
a prophylactic, across-the-board rule is required to ensure federal-court review of allegedly overly burdensome or harassing subpoenas issued to a President.
U.S. Br. 28-29. A President may address objections to
grand jury subpoenas in state or federal court if a viable constitutional claim is put forward based on a
case-specific showing. See supra at 36-37.
There is, in sum, no constitutional basis for requiring state prosecutors to satisfy a heightened-need
standard in every case based on the risk of impermissibly burdensome or harassing subpoenas, when a
President will have every opportunity to show that a
particular subpoena in a particular case in fact interferes with the ability to carry out official presidential
duties or was issued in bad faith or to harass. As explained in Part III, however, petitioner has made neither showing in this case, which requires affirming
the decision below.

at 707-08; In re Grand Jury Subpoenas for Locals 17, 135, 257,
& 608 of the United Bhd. of Carpenters & Joiners, 72 N.Y.2d 307,
312-17 (1988), the fact that Rule 17(c) does not apply in state
proceedings does not leave a President with inadequate protection, nor does it suggest that a heightened-need standard must
be universally applied in Rule 17(c)’s place. Contra Petr. Br. 47.

 45
D. The Prophylactic Rules Proposed By Petitioner And The Solicitor General Would
Impose Severe And Unwarranted Negative Consequences On The Criminal Justice System
Apart from lacking any constitutional basis, the
prophylactic, across-the-board rules pressed by petitioner and the Solicitor General will substantially
harm the public’s interest in the proper administration of criminal justice.
1. The costs of an absolute rule of presidential
immunity during a President’s term of office are obvious and severe.
To start, petitioner concedes that a President is
amenable to criminal indictment and prosecution after leaving office. Petr. Br. 16. Yet immunizing a
President from investigation during a presidential
term risks effectively providing permanent immunity
from indictment and prosecution, because delay “increase[s] the danger of prejudice [to the State] resulting from the loss of evidence.” Clinton, 520 U.S. at
707-08. And “the constitutional need for production
of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular
criminal case in the administration of justice”—
“[w]ithout access to specific facts a criminal prosecution may be totally frustrated.” Nixon, 418 U.S. at
713. This is presumably why OLC has concluded that
while a President is not amenable to indictment while
in office, “[a] grand jury could continue to gather evidence throughout the period of immunity.” Moss
Memo 257 n.36.

 46
The immunity petitioner seeks would also profoundly affect criminal investigations into conduct by
other parties. Complex financial relationships, such
as those being investigated here, often have multiple
members, and a President’s records may be (and are
in this case) essential to evaluating the actions of
other individuals and entities. Not only would petitioner’s absolute immunity rule frustrate investigation of such third parties but it could well immunize
them altogether. Absent the gathering of sufficient
evidence, no indictment could be filed—and any rule
that might toll a limitations period during the term of
a President’s immunity, see supra at 25-26 & n.9,
would provide no basis for tolling the limitations period for third parties who are not legally immune from
prosecution. A delay in the ability to investigate such
third parties for the length of a presidential term may
well result in the running of the relevant limitations
period and thus de facto immunity.
All of that assumes that the evidence in a President’s possession would inculpate third parties. But
such evidence could also exonerate them. Shielding
exculpatory evidence during a President’s term could
lead to wrongful indictment or even conviction, eroding the grand jury’s “invaluable function” in “standing
between the accuser and the accused.” Wood, 370
U.S. at 390.
2. The Solicitor General’s alternative heightened-need rule would likewise impose serious costs on
the administration of criminal justice. After all, the
grand jury’s “right to every man’s evidence” yields
only as to “those persons protected by a constitutional,
common-law, or statutory privilege.” Branzburg, 408

 47
U.S. at 688; see supra at 14, 38. And as the Court
explained in Nixon, such “exceptions … are not lightly
created nor expansively construed, for they are in derogation of the search for truth.” 418 U.S. at 710.
The impediment to criminal accountability for
private conduct would be especially severe if the
Court were to adopt the Solicitor General’s expansive
view of the heightened-need standard. According to
the Solicitor General, respondent cannot satisfy the
standard because respondent “in all events lacks the
power to indict the President before the end of the
President’s term,” and so “the immediate production
of the President’s records” is not “critical to the grand
jury’s investigation.” U.S. Br. 32. On that view, there
would be no difference between the heightened-need
standard and the absolute immunity that petitioner
seeks. The heightened-need standard would thereby
implicate all the same severe harms to the criminal
justice system as petitioner’s absolute immunity rule.
When a subpoena seeks confidential official records
that implicate Article II concerns, a countervailing
constitutional interest may justify limited costs to the
administration of criminal justice. But there is no
constitutional or other justification for imposing such
costs on criminal justice when the subpoena concerns
only a President’s private, unofficial records.
III. PETITIONER HAS NOT SHOWN THAT
THIS SUBPOENA IMPERMISSIBLY BURDENS HIS ABILITY TO PERFORM OFFICIAL FUNCTIONS OR WAS ISSUED IN BAD
FAITH
Although petitioner is not entitled to any prophylactic immunity rule, a President could move to quash

 48
or narrow a subpoena in a particular case upon a
showing of either an actual (not theoretical) burden
that interferes with the ability to perform official Article II duties, or actual bad faith or harassment. But
petitioner has not demonstrated any cognizable burden here. And while he has suggested that the
Mazars Subpoena was issued in bad faith, that contention lacks support, as the district court has already
found.
A. Petitioner has not shown that responding to
the Mazars Subpoena would unduly interfere with his
ability to carry out his official duties. To the contrary,
the potential burdens of the Subpoena are minimal,
particularly when compared with the judicial processes this Court has ratified in prior cases.
First, the Mazars Subpoena seeks only petitioner’s personal documents. It does not require him
to appear at a hearing or testify under oath. Yet this
Court in Clinton concluded that requiring a President
to prepare for deposition and give sworn testimony
did not warrant even a stay of that proceeding, let
alone full immunity. See 520 U.S. at 704-06. Even
setting aside that this subpoena is not directed at petitioner himself, see infra at 50, the burden imposed
by the requirement to disclose readily available financial records is far less than the already-approved burden of preparing for and providing sworn testimony
at a civil deposition.
Second, the Nixon subpoena required the production of documents that would be used in a criminal
trial, which would be open to the public. 418 U.S. at
688, 711; see U.S. CONST. amend. VI. Public disclosure of a President’s communications with top-level

 49
advisers in the Oval Office clearly would have had a
substantial impact on the President’s interest in confidentiality and would have been a major distraction
from official presidential functions. Here, in contrast,
the records sought by the Mazars Subpoena will be
directed to a state grand jury proceeding, the secrecy
of which is mandated by New York law. See N.Y.
CRIM. PROC. LAW § 190.25(4)(a). Only if a prosecution
were instituted and the records constituted evidence
of the crimes charged would they be offered in a public
trial, and even then, confidentiality concerns could be
addressed through routine court orders, for example
to redact sensitive identifying information. Cf. Nixon,
418 U.S. at 714-16.16
Third, the information sought by the Mazars
Subpoena is far less sensitive than the material subpoenaed in Nixon. The financial information, such as
tax returns, sought by the Mazars Subpoena has
nothing to do with presidential functions. In fact, tax
returns are routinely submitted to federal and state
agencies, presidential candidates and Presidents routinely release them publicly, and petitioner himself
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.” Petr. Br. 43 n.7. But petitioner offers
no plausible argument for why that matters. The truth-finding
interests that compelled enforcement of the trial subpoena in
Nixon are just as weighty in the grand jury context. See supra
at 22. That a criminal defendant has greater constitutional protections than the subject of a grand jury investigation does not
somehow make a grand jury subpoena more burdensome or less
necessary than a trial subpoena.

 50
has asserted that he would do so if his returns were
not under audit. There is no additional burden to
providing those same documents to a secret grand
jury by court order.
Fourth, 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.”
Pet. App. 20a. Petitioner objects that, because the underlying documents are his, he has standing to challenge a subpoena seeking them. Petr. Br. 17, 35. But
the question here is not standing. It is whether having to comply with the Mazars Subpoena will interfere with petitioner’s ability to perform official functions because of distraction. And the fact that the
Mazars Subpoena is not directed at petitioner, even if
his lawyers consult with him before production,
makes clear that the judicial process here will impose
no direct, cognizable burden on petitioner.17
B. Petitioner has also failed to make a threshold
showing that the Mazars Subpoena was issued in bad
faith or with the intent to harass. Despite having had
17 Petitioner contends that it is not any direct burden but
the indirect “distractions and mental burdens” associated with
the Mazars Subpoena that “matter.” Petr. Br. 38. But as explained above, if the mere fact that a President might be required to “consult with his attorneys, consider the need to assert
available privileges, and otherwise participate in his defense,”
Petr. Br. 38 (footnote omitted), were a cognizable burden, Clinton would have been decided differently. See supra at 19-20, 48.
And petitioner does not and cannot identify any more specific
imposition that exists in this case.

 51
the opportunity to adduce any relevant evidence before the district court, see D. Ct. Dkt. 38, petitioner
continues to rely principally on two facts to show harassment—viz., (i) that the Mazars Subpoena was
largely patterned on congressional subpoenas, Petr.
Br. 48; and (ii) that various officials in New York unaffiliated with respondent have made statements regarding efforts to investigate petitioner and his tax
returns, id. at 26-27. Yet the district court rejected
these very arguments when evaluating petitioner’s
contention that the bad-faith exception to Younger abstention applied and concluded that they did not suffice to demonstrate bad faith.
As the district court recognized, there is nothing
suspect about the Office’s decision to pattern the
Mazars Subpoena on the congressional subpoenas,
because those subpoenas “encompass documents relevant to the state’s investigation,” and mirroring the
congressional subpoenas would “enable Mazars to
produce those documents promptly.” Pet. App. 56a.
That respondent sought to facilitate the production of
documents by streamlining the process is certainly
not evidence of bad faith.
Meanwhile, the vast majority of the statements
petitioner cites as supposed evidence of the motives
behind this investigation were not made by respondent or anyone else associated with the Office or the
investigation, and therefore (as the district court
found) “do not reveal the ‘subjective motive’ of [respondent] in initiating these particular proceedings.”
Pet. App. 56a. The only statements petitioner cites
that were actually made by the Office are badly mis-

 52
characterized: Each was a direct response to or summary of petitioner’s or DOJ’s position, not a description of the true motivation for the investigation or the
Mazars Subpoena. See C.A. Dkt. 99, at 4, 6 (summarizing petitioner’s and DOJ’s position that any state
investigation of a President must come after impeachment); D. Ct. Dkt. 33, at 1-2 (responding to DOJ’s position that compliance with the Subpoena would result in irreparable harm); D. Ct. Dkt. 38, at 43 (responding to argument that the grand jury might not
preserve the secrecy of the subpoenaed documents).
Having considered these facts, the district court
found no basis to “impute bad faith to [respondent].”
Pet. App. 58a. Petitioner has offered this Court no
basis to second-guess that conclusion, which is plainly
correct. See, e.g., Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844, 857 (1982) (“[a]n appellate court cannot
substitute its interpretation of the evidence for that of
the trial court simply because the reviewing court
might give the facts another construction [or] resolve
the ambiguities differently” (internal quotation
marks omitted)).
Petitioner has failed, in short, to demonstrate
that the Mazars Subpoena imposes a burden that
would unduly interfere with his ability to perform his
official duties or that it is a bad faith effort at presidential harassment.

 53
CONCLUSION
For the foregoing reasons, the decision below
should be affirmed.
Respectfully submitted,
CAITLIN HALLIGAN
RYAN W. ALLISON
DAVID A. COON
SELENDY & GAY PLLC
1290 Sixth Avenue
New York, NY 10104
WALTER DELLINGER
DUKE UNIVERSITY LAW
SCHOOL
Science Drive &
Towerview Road
Durham, NC 27706

CAREY R. DUNNE
Counsel of Record
CHRISTOPHER CONROY
SOLOMON B. SHINEROCK
JAMES H. GRAHAM
SARAH WALSH
ALLEN J. VICKEY
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.

February 26, 2020