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 AMICI CURIAE FORMER REPUBLICAN
MEMBERS OF CONGRESS, FORMER MEMBERS
OF THE EXECUTIVE BRANCH UNDER
REPUBLICAN ADMINISTRATIONS, AND LEGAL
EXPERTS IN SUPPORT OF RESPONDENT
Justin Florence
Jamila G. Benkato
Counsel of Record
Cameron O. Kistler
Benjamin L. Berwick
Justin Vail
Protect Democracy Project Protect Democracy Project
15 Main Street, Suite 312
2020 Pennsylvania Avenue
Watertown, Massachusetts 02472 NW, Suite 163
(202) 579-4582
Washington, D.C. 20006
justin.florence@
protectdemocracy.org
Richard Primus
The University of
Steven A. Hirsch
Michigan Law School*
Protect Democracy Project 625 S. State Street
2120 University Avenue
Ann Arbor, Michigan 48109
Berkeley, California 94704
* Affiliation provided for
identification purposes only.
Counsel for Amici Curiae

 i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...................................... iii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT .............................................................. 5
I. Neither Article II nor the Supremacy
Clause precludes subpoenaing the
president for documents or testimony
related to unofficial actions ............................. 5
A. Article II does not grant the president
absolute immunity from process................ 5
1. As courts have recognized since the
Founding, the president—like every
American—is subject to judicial
process ................................................... 6
2. Article II does not require a
different approach—in the
criminal context .................................. 11
B. The Supremacy Clause does not grant
the president—let alone a nongovernmental party—immunity from
all process related to the president’s
unofficial affairs ....................................... 13
II. Any grant of presidential immunity
should come from Congress, not from this
Court .............................................................. 20

 ii
A. This Court should not rule on the basis
of a questionable prediction about the
future ........................................................ 20
B. This Court is ill-suited to make the
policy choices necessary to determine
the scope of a presidential immunity
from investigation .................................... 23
CONCLUSION ......................................................... 27
APPENDIX ............................................................... 1a

 iii
TABLE OF AUTHORITIES
Page(s)
Cases
Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004) ................................................6
Clinton v. Jones,
520 U.S. 681 (1997) ...................................... passim
Hancock v. Train,
426 U.S. 167 (1976) .............................................. 14
In re Tarble,
80 U.S. 397 (1871) ................................................ 14
Johnson v. Maryland,
254 U.S. 51 (1920) ................................................ 14
Jones v. Clinton,
36 F. Supp. 2d 1118 (E.D. Ark. 1999) ................. 11
Marbury v. Madison,
5 U.S. 137 (1803) ................................................ 2, 5
Mayo v. United States,
319 U.S. 441 (1943) .............................................. 14
McClung v. Silliman,
19 U.S. 598 (1821) ................................................ 14
McCulloch v. Maryland,
17 U.S. 316 (1819) .......................................... 13, 14
Mesa v. California,
489 U.S. 121 (1989) .............................................. 22

 iv
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) ............................ 7, 9
Nixon v. United States,
506 U.S. 224 (1993) .............................................. 12
Ohio v. Thomas,
173 U.S. 276 (1899) .............................................. 14
Printz v. United States,
521 U.S. 898 (1997) .............................................. 21
Tennessee v. Davis,
100 U.S. 257 (1879) .............................................. 14
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) .............................................. 22
United States v. Burr,
25 F. Cas. 30 (C.C.D. Va. 1807) ................... passim
United States v. Fromme,
405 F. Supp. 578 (E.D. Cal. 1975) ....................... 10
United States v. Nixon,
418 U.S. 683 (1974) .......................................... 9, 10
Constitutional Provisions
U.S. Const. art. I, § 3 ................................................. 11
U.S. Const. art. I, § 8, cl. 18 ...................................... 26
U.S. Const. art. II ........................................ 3, 5, 11, 12
U.S. Const. art. VI, cl. 2 ........................................... 13

 v
Treatises
1 R. Rotunda & J. Nowak, TREATISE ON
CONST. L. § 7.1(a) (2019) ............................. 6, 9, 10
Laurence Tribe, AMERICAN CONSTITUTIONAL
LAW (2d ed. 1988) ................................................ 14
Other Authorities
A Sitting President’s Amenability to Indictment
and Criminal Prosecution,
24 Op. O.L.C. 222 (2000) ..................................... 15
4 THE WORKS OF JEREMY BENTHAM
(J. Bowring ed. 1843) ............................................ 6
Archibald Cox, Executive Privilege,
122 U. PA. L. REV. 1383 (1974) ..............................6
Declaration of Independence pmbl.
(U.S. 1776) ............................................................. 5
Louis Fisher, Jefferson and the Burr
Conspiracy: Executive Power Against the
Law, 45 PRESIDENTIAL STUDIES Q. 157
(2015) ..................................................................... 8
Federalist No. 69 (Alexander Hamilton) ................... 2
Letter from President James Monroe to
George M. Dallas (Feb. 14, 1818),
Records of the Office of the Judge
Advocate General (Navy), Record Group
125, (Records of General Courts Martial
and Courts of Inquiry, Microcopy M-272,
case 282) ................................................................ 9

 vi
Frank Lester Pleadwell, William Paul
Crillon Barton (1786–1856), Surgeon,
United States Navy—A Pioneer in
American Naval Medicine, in The
Military Surgeon, 46 J. OF THE ASS’N OF
MILITARY SURGEONS OF THE U.S. 241
(James Robb Church ed., 1920) ........................ 8, 9
Ronald Reagan, Remarks at the ‘We the
People’ Bicentennial Celebration in
Philadelphia, Pennsylvania
(Sept. 17, 1987) ..................................................... 1
Ronald D. Rotunda, Presidents and ExPresidents as Witnesses: A Brief
Historical Footnote, 1975 U. OF ILL. LAW
FORUM (1975) .................................................... 8, 9
Select Comm. on Pres. Campaign Activities,
App. to the Hearings of the Select Comm.
on Pres. Campaign Activities of the U.S.
Sen.: Documents Related to the Select
Comm. Hearings, Pt. I (1974) ............................... 9

 1
INTEREST OF AMICI CURIAE1
Amici are former Republican members of
Congress, former members of the executive branch
under Republican administrations, and legal experts
who have been deeply involved in, or close observers
of, the relationship between the branches of
government in recent decades.2 They agree with
President Ronald Reagan that the “genius of our
constitutional system is its recognition that no one
branch of government alone could be relied on to
preserve our freedoms,” and that “the great
safeguard of our liberty is the totality of the
constitutional system” that ensures that no branch of
government gets “the upper hand.”3 They are
concerned that President Trump’s assertions of
absolute immunity from process while in office—and
more generally, his arguments against accountability
in any forum—could impose lasting damage on our
constitutional system of checks and balances as well
as on the rule of law.

The parties have consented to the filing of amicus briefs in
this case. No counsel for a party authored this brief in whole or
in part, and no party or counsel for a party made a monetary
contribution intended to fund the preparation or submission of
this brief. No such monetary contributions were made by
anyone other than amici and their counsel.
1

A complete list of amici curiae is appended to this brief.
Ronald Reagan, Remarks at the ‘We the People’ Bicentennial
Celebration in Philadelphia, Pennsylvania (Sept. 17, 1987),
available
at
https://www.reaganlibrary.gov/research/speeches/091787a.
2
3

 2
SUMMARY OF ARGUMENT
Since the Founding, it has been a bedrock
principle in this country that nobody is above the
law, not even the president. The king against whom
the Founders rebelled was immune from judicial
process, which was considered “incompatible with his
dignity.” United States v. Burr, 25 F. Cas. 30, 34
(C.C.D. Va. 1807) (No. 14,692d). In creating the
presidency, the Founders explicitly rejected this
model of leadership. See Federalist No. 69
(Alexander Hamilton) (“And it appears yet more
unequivocally, that there is no pretense for the
parallel which has been attempted between him and
the king of Great Britain.”). Instead, they created a
president who, like all Americans, is subject to the
law.
Recognizing the Founders’ intent, this Court
has been mindful of the principle that no one is
above the law when considering questions of
presidential immunity from legal process. People of
good faith may debate how to accommodate the
legitimate needs of the executive branch, but all
agree that it must be done in a way that ensures “a
government of laws, and not of men.” Marbury v.
Madison, 5 U.S. 137, 163 (1803).
Petitioner now asks this Court to depart
radically from that principle by holding that criminal
investigations may not touch the president’s affairs
in any way, even when those investigations require
nothing at all from the president. This extraordinary
assertion is not based on any specific claim of
privilege, but rather on a sweeping claim of absolute
immunity. There is no principled reason to depart
from the Court’s historical approach and create such

 3
a far-reaching, per se rule shielding all of the
president’s
unofficial
affairs
from
criminal
investigation. Such a categorical rule is certainly not
required by Article II. While there may be reasonable
arguments that certain criminal proceedings—such
as the actual indictment or prosecution of the
president—might so interfere with the president’s
duties under Article II that they should not be
imposed on a sitting president, it does not follow that
all criminal proceedings must always steer clear of a
sitting president’s affairs in every respect. In a case
like the present one, which concerns only a subpoena
to a third party, the criminal process need not
interfere with the president’s duties in any way,
because it does not ask him to do anything at all. The
burden on a president arising from a third-party
subpoena is certainly less than the burden imposed
by other types of legal process from which this Court
has refused to immunize the president.
For similar reasons, the Supremacy Clause
does not require absolute presidential immunity
from state criminal processes. The Constitution is
concerned with the supremacy of federal law, not the
supremacy of federal officials. There may be
circumstances where a state’s attempt to regulate
the conduct of a federal official interferes with the
execution of federal law. But this case does not
present such a circumstance. A subpoena for
documents that concern the president’s personal
affairs—rather than his official conduct—cannot
possibly implicate the Supremacy Clause, because it
does not impede federal law or the operations of the
federal government in any way. Nor is there any
basis for this Court to speculate that refusing to
provide the immunity that Petitioner seeks would

 4
lead to a deluge of state criminal subpoenas directed
at the president. The Court should not assume that
local prosecutors will abuse their power. Instead, it
should apply its usual presumption that government
officials will act in good faith.
If, in the future, state prosecutors use their
powers to harass presidents in unjustified ways,
reasonable people may conclude, as a matter of
policy, that presidents should have some immunity
broader than the existing immunity against
indictment, prosecution, and compulsory attendance.
If future circumstances made a broader presidential
immunity seem desirable, the decision to create such
an immunity and decisions about its scope should be
made in Congress. Congress is better positioned to
legislate the contours of any new immunity policy,
and Congress is accountable to those Americans who,
like amici, are deeply concerned about the specter of
an unaccountable president.
For these reasons, the Court should affirm the
Second Circuit.

 5
ARGUMENT
I.

Neither Article II nor the Supremacy
Clause
precludes
subpoenaing
the
president for documents or testimony
related to unofficial actions.
A. Article II does not grant the
president absolute immunity from
process.

Under the English Constitution, the king
could “do no wrong” and “no blame [could] be
imputed to him.” Burr, 25 F. Cas. at 34. As a result,
the king could neither be named in debate nor served
with process. See id. When creating the presidency,
our Founders rejected that view. They denounced the
king’s
“repeated
injuries
and
usurpations,”
Declaration of Independence pmbl. (U.S. 1776), and
then set out to build “a government of laws, and not
of men.” Marbury, 5 U.S. at 163.
Despite that history, Petitioner contends that
the Founders intended to place the president entirely
out of the reach of federal and state criminal law.
According to Petitioner, not only can the president
not be indicted or prosecuted, he cannot be subject to
criminal process in any way, including indirectly via
a subpoena to a third party for documents related to
the president’s purely private affairs. The absolute
investigative immunity that the president asserts is
wholly at odds with this Court’s functional approach
to claims of presidential immunity. Recognizing such
an immunity would abandon the principles
underlying that functional approach: that occupying
high office does not shield an individual from

 6
ordinary legal obligations; and that no person,
regardless of rank or station, can wholly exempt
himself and his affairs from the legal process.
1. As courts have recognized since the
Founding, the president—like every
American—is subject to judicial
process.
Article II does not alter the president’s
obligation—shared by every American—to provide
relevant, non-privileged evidence in judicial
proceedings. This Court has recognized “the
fundamental and comprehensive need for every
man’s evidence in the criminal justice system . . . .”
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 384
(2004) (internal quotations omitted). Indeed, “[t]he
best opinion at Anglo-American law has always been
that no man except the King is wholly free from the
testimonial duty to give evidence required in the
administration of justice.” Archibald Cox, Executive
Privilege, 122 U. PA. L. REV. 1383, 1385 (1974).
Jeremy Bentham employed a trenchant hypothetical
to frame the issue: “Were the Prince of Wales, the
Archbishop of Canterbury, and the Lord High
Chancellor, to be passing by . . . while a chimneysweeper and a barrow-woman were in dispute about
a halfpennyworth of apples,” could they later refuse
to testify about what they had seen? “No, most
certainly,” Bentham answered.4
4 THE WORKS OF JEREMY BENTHAM 321 (J. Bowring ed. 1843).
See also 1 R. Rotunda & J. Nowak, TREATISE ON CONST. L. §
7.1(a) (2019) (The president’s “temporary duties as an official
cannot overcome his permanent and fundamental duty as a
citizen and as a debtor to justice.”).
4

 7
Like
the
eminences
in
Bentham’s
hypothetical—and indeed “like every other [U.S.]
citizen”—the president “is under a legal duty to
produce relevant, non-privileged evidence when
called upon to do so.” Nixon v. Sirica, 487 F.2d 700,
713 (D.C. Cir. 1973). To be sure, the president should
be allowed to comply with that duty in ways that
accommodate his unique position. A court may not
compel the president to personally attend trial or to
give live testimony in open court. See Clinton v.
Jones, 520 U.S. 681, 692 n.14 (1997). But this case
involves no comparable imposition. Indeed, “[t]he
subpoena at issue . . . does not require the President
to do anything at all.” App. 20a. And as Chief Justice
Marshall explained in United States v. Burr,
although the president is entitled to “as guarded a
respect . . . as is compatible with [his] official duties,”
“go[ing] beyond” that would “exhibit a conduct which
would deserve some other appellation than the term
respect.” 25 F. Cas. at 37.
Thus, dating back to the early days of the
Republic, courts have balanced the legitimate need to
avoid interfering unduly with the president’s duties
against the recognition that justice may require that
the president be subject to some process. This
functional approach to official immunity—repeatedly
applied to sitting presidents—rests on the premise
that ours is a government of laws, not of men, and
that the mere holding of high office cannot excuse an
individual from the testimonial duties common to all
Americans. To the extent that the president bears
unique burdens, faces unique constraints, or harbors
unique concerns, courts have accommodated them as
part of their normal oversight of litigation.

 8
In 1807, Chief Justice Marshall issued
subpoenas to President Jefferson for evidence sought
by treason defendant Aaron Burr. Marshall reasoned
that the president was not a “king” exempt from
compulsory process; and he likewise discounted the
argument that the president was too busy and
important to be subject to process. Burr, 25 F. Cas.
at 34. Jefferson complied with the subpoena largely
without objection, “dr[awing] the line only at having
to personally attend [Burr’s] trial at Richmond.”5
Burr’s case served as precedent eleven years
later, when President Monroe became the second
president to be served with a subpoena while in
office. The case involved the court martial of Dr.
William C. Barton, a naval surgeon who had pressed
Monroe for an appointment to the Philadelphia
Naval Hospital.6 Barton eventually received an
appointment, replacing Dr. Thomas Harris.7 Harris
then brought charges of “intrigue and misconduct”
against Barton, and the court martial subpoenaed
Monroe to testify on the subject of his meetings with

Louis Fisher, Jefferson and the Burr Conspiracy: Executive
Power Against the Law, 45 PRESIDENTIAL STUDIES Q. 157, 169
(2015) (emphasis added).
6 Ronald D.
Rotunda, Presidents and Ex-Presidents as
Witnesses: A Brief Historical Footnote, 1975 U. OF ILL. LAW
FORUM 1, 5–6 (1975). See also Frank Lester Pleadwell, William
Paul Crillon Barton (1786–1856), Surgeon, United States
Navy—A Pioneer in American Naval Medicine, in The Military
Surgeon, 46 J. OF THE ASS’N OF MILITARY SURGEONS OF THE U.S.
241, 260–62 (James Robb Church ed., 1920).
5

Rotunda, supra note 6, at 5–6. See also Pleadwell, supra note
6, at 260–62.
7

 9
Barton.8 Advising Monroe, Attorney General William
Wirt cited Marshall’s Burr analysis as authority that
the president may be subpoenaed to testify.9 Wirt
believed that constitutional problems would arise
only if Monroe were forced to leave the seat of
government when presidential duties demanded his
presence there.10 Wirt therefore advised Monroe to
pursue a compromise: the president would remain in
Washington but respond via deposition.11 Monroe
followed Wirt’s advice and submitted written
answers to interrogatories in the case.12
Modern cases have reaffirmed that the
president is not absolutely immune from legal
process. In United States v. Nixon, this Court
unanimously upheld an order denying President
Nixon’s motion to quash a district court subpoena,
issued in the course of a criminal investigation,
directing Nixon to produce tapes of his Oval Office
Rotunda, supra note 6, at 5–6. See also Pleadwell, supra note
6, at 260–62; Nixon v. Sirica, 487 F.2d 700, 710 n. 42 (D.C. Cir.
1973).
8

See Select Comm. on Pres. Campaign Activities, App. to the
Hearings of the Select Comm. on Pres. Campaign Activities of
the U.S. Sen.: Documents Related to the Select Comm.
Hearings, Pt. I, at 740 (1974) (“A subpoena ad testificandum
may I think be properly awarded to the President of the U.S.”).
9

10

Id. at 742–43.

Id.
See Letter from President James Monroe to George M. Dallas
(Feb. 14, 1818), Records of the Office of the Judge Advocate
General (Navy), Record Group 125, (Records of General Courts
Martial and Courts of Inquiry, Microcopy M-272, case 282),
National
Archives
Building,
available
at
https://www.familysearch.org/ark:/61903/3:1:3Q9M-CS1G5QT8-6?i=831&cat=573135 (log-in required) (on file with
counsel); Rotunda & Nowak, supra note 4, at § 7.1(c)(ii).
11
12

 10
conversations. See 418 U.S. 683, 686–87, 714 (1974).
The Court held that “neither the doctrine of
separation of powers, nor the need for confidentiality
of high-level communications, without more, can
sustain an absolute, unqualified privilege of
immunity from judicial process under all
circumstances.” Id. at 706.
Additional examples of presidential testimony
abound. Indeed, “[s]itting Presidents have responded
to court orders to provide testimony and other
information with sufficient frequency that such
interactions between the Judicial and Executive
Branches can scarcely be thought a novelty.” Jones,
520 U.S. at 704. In 1975, a district court ordered
President Ford to sit for a videotaped deposition to
provide percipient-witness evidence bearing on
defenses raised by his would-be assassin. United
States v. Fromme, 405 F. Supp. 578 (E.D. Cal.
1975).13 President Carter gave videotaped testimony
twice while in office. Jones, 520 U.S. at 704–05.14
President Clinton testified under oath for several
hours before an independent counsel on issues
relating to the criminal investigation of the
Whitewater real estate deal.15 And after this Court
held that Paula Jones’s sexual harassment suit
against President Clinton would not be delayed until
after he left office, Jones, 520 U.S. at 705–08, the
president sat for a deposition and later was

The district court properly accommodated President Ford by
permitting him to choose the time and place of the deposition,
not by exempting him from the obligation to give testimony.
United States v. Fromme, 405 F. Supp. 583 (E.D. Cal. 1975).
13

14

See also Rotunda & Nowak, supra note 4, at § 7.1(b)(vi).

15

Id. § 7.1(b)(vii).

 11
sanctioned for giving false evidence. See Jones v.
Clinton, 36 F. Supp. 2d 1118, 1127–30, 1132 (E.D.
Ark. 1999).
2. Article II does not require a
different approach in the criminal
context.
Although “it is . . . settled that the President is
subject to judicial process in appropriate
circumstances,” Jones, 520 U.S. at 703, Petitioner’s
arguments suggest that the president must be
absolutely immune from any process that is labeled
“criminal.” But Petitioner provides no explanation
for why the functional approach adopted in other
contexts cannot adequately protect the president’s
prerogatives in the criminal context. Petitioner’s
argument boils down to a concern that subjecting the
president to criminal process will impede his ability
to carry out his duties. This same concern was
soundly rejected in Clinton v. Jones. See 520 U.S. at
705–06. However compelling the argument that a
sitting president should not be subject to indictment
or prosecution, nothing in Article II demands that
the president be immunized from all criminal
processes, no matter how minimal the burden or how
removed from his official duties.16
In an attempt to argue that the Constitution directs a per se
distinction between the burdens of criminal and non-criminal
processes, Petitioner cites the language of Article I, Section 3,
which specifies that “indictment, trial, judgment, and
punishment” are available after a federal officer subject to
impeachment, including the president, is impeached and
removed. Pet’r’s Br. 21–22. According to Petitioner, that
language shows that criminal processes touching the president
cannot begin until the president leaves office. Id. This
16

 12
The preceding examples demonstrate that
courts have required sitting presidents to comply
with legal process far more burdensome than the
process contemplated here. In the present case, the
subpoena was not even issued to the president, and
it requires him to do literally nothing. Moreover, the
subpoena seeks documents unrelated to and remote
from the president’s official duties. Nothing in
Article II bars a state from seeking such documents
in the course of a legitimate criminal investigation,
from a party who is not even the president.

argument fails on two grounds. First, it is clear that a federal
officer subject to impeachment can be indicted, tried, and
punished while in office. See, e.g., Nixon v. United States, 506
U.S. 224 (1993) (federal judge prosecuted and convicted and
only subsequently impeached). Second, even if the clause could
be read as Petitioner contends, it would draw the line in a place
that would leave Respondent Vance free to serve and enforce
the subpoena at issue in this case. After all, the clause speaks
not of all aspects of the criminal process but only of indictment
and the phases that follow. The clause does not encompass
earlier phases of the process, like investigation.

 13
B. The Supremacy Clause does not grant
the president—let alone a nongovernmental party—immunity from
all process related to the president’s
unofficial affairs.
Pointing to the Supremacy Clause and this
Court’s decisions, Petitioner argues that federal
supremacy bars a state from conducting a criminal
investigation touching the president’s affairs, even if
that investigation does not concern the president’s
official conduct. Pet’r’s Br. 23–25. This argument
misconceives federal supremacy. The Constitution
establishes the supremacy of federal law, not the
supremacy of the persons who hold federal office. See
U.S. Const. art. VI, cl. 2 (“This Constitution, and the
Laws of the United States . . . shall be the supreme
Law of the Land[.]”). By claiming otherwise,
Petitioner gives the Supremacy Clause a meaning
that its text does not support—and in a way that
transgresses the principle that ours is a government
of laws and not of men.
The cases that Petitioner cites to support his
supremacy argument all concern state attempts to
impede federal government operations authorized by
federal law. Those cases have no bearing on the
exercise of state power against people who happen to
be federal officials when federal government
operations are not at issue. Petitioner obscures this
distinction by quoting cases misleadingly. For
example, Petitioner presents McCulloch v. Maryland
as if it said that states may not “‘retard, impede,
burden, or in any manner control’ the President,
Congress, or the Judicial Branch.” Pet’r’s Br. 24
(quoting McCulloch, 17 U.S. 316, 436 (1819)). But

 14
McCulloch actually says that the states may not
“retard, impede, burden, or in any manner control,
the operations of the constitutional laws enacted by
congress[.]” McCulloch, 17 U.S. at 436 (emphasis
added). By substituting “the President” for “the
operations of the constitutional laws enacted by
congress,” Petitioner seeks to give an officeholder—a
person—a status that rightly belongs only to the law
of the land.
Petitioner’s other Supreme Court cases, see
Pet’r’s Br. 24–25, are all, like McCulloch, cases about
state attempts to control or impede the operations of
the federal government. In re Tarble and McClung v.
Silliman hold that a state may not order a federal
officer to take an official action. See Tarble, 80 U.S.
397, 411–12 (1871); McClung, 19 U.S. 598, 604–05
(1821). Tennessee v. Davis, Ohio v. Thomas, and
Johnson v. Maryland hold that a state may not
prosecute a federal officer for performing his federal
duties. See Davis, 100 U.S. 257, 263 (1879); Thomas,
173 U.S. 276, 285 (1899); Johnson, 254 U.S. 51, 57
(1920).17 But no case decided by this Court suggests
that federal officials are immune from generally
The Court’s discussion of federal supremacy in footnote 13 of
Clinton v. Jones is to the same effect. 520 U.S. at 691 n. 13. All
of the authorities cited in that footnote stand for the proposition
that states may not control or prevent the federal government’s
operations, not the proposition that states may not enforce their
laws against federal officials. See Hancock v. Train, 426 U.S.
167, 178–82 (1976) (state may not use its control of a permit
system to prohibit the federal government from operating a
federal facility); Mayo v. United States, 319 U.S. 441, 443–45
(1943) (state may not order cessation of a federal program);
Laurence Tribe, AMERICAN CONSTITUTIONAL LAW 513 (2d ed.
1988) (states may not “command federal officials . . . to take
action in derogation of their . . . federal responsibilities”).
17

 15
applicable state law when no official federal action is
concerned. And for good reason. Federal officials
must pay state sales taxes and obey local antishoplifting laws, just like everybody else. Like
everybody else, federal officials are subject to
criminal sanction if they break those laws. A
supremacy problem arises only when a state
purports to act on a federal officer in a way that
impedes or controls official federal action—the
execution of federal law or the carrying out of federal
government operations.
Thus, whether a state legal process touching
the president’s affairs is consistent with federal
supremacy depends on whether the burdens imposed
directly impede, or do not impede, the operations of
the federal government. Given the president’s
uniquely important role, there are obvious ways in
which criminal proceedings against him could
interfere with federal governance, even if the subject
matter of the proceedings concerned the president’s
personal affairs rather than his official conduct. To
exercise physical control over a president by
arresting or jailing him, or even by compelling him to
attend a trial at a certain time and place, could
impede the government’s operations. See A Sitting
President’s Amenability to Indictment and Criminal
Prosecution, 24 Op. O.L.C. 222, 229 (2000). But not
every imposition of legal process on a president has
that effect. And this Court has held that some
impositions on a president, including some that could
command nontrivial amounts of a president’s
attention, are consistent with the president’s ability
to do his job. See Jones, 520 U.S. at 703–08 (holding
that the president is not immune from some civil
suits and describing instances in which presidents

 16
gave testimony in legal proceedings, both voluntarily
and under court order, without compromising their
constitutional function).
Petitioner contends, as a per se matter, that
any criminal proceeding touching the president’s
affairs would impede the operations of the federal
government. Pet’r’s Br. 25, 29–30. That claim is too
broad. Criminal justice encompasses a wide
spectrum of proceedings, ranging from those that
take over people’s lives to those that are quickly
completed and left behind. And many of its demands
are considerably less burdensome than the burden of
being subject to civil suit, which this Court deemed
acceptable in Jones.
The present case is about a subpoena that
touches the president’s affairs but does not involve
any official conduct and was issued to a private
party. The subpoena does not direct the president to
do anything, so compliance need not consume a
minute of the president’s time. Certainly this
subpoena asks less of the president than has been
required of other presidents who responded
personally, in real time, to questions posed in
depositions or other testimonial settings. There is
simply no reason to think that any proceeding
touching the president’s affairs, no matter how little
it demands of him, impedes federal governance
simply because it is denominated “criminal.”
To be sure, the prospect of an eventual
criminal prosecution might distract any person,
including a president. But so might a state official’s
public announcement of the intention to investigate
and prosecute a president after he leaves office, or
similar announcements from private parties
campaigning for state office. Surely federal

 17
supremacy cannot prohibit state officials or
candidates for state office from articulating their
intentions to the public, no matter how distracting a
president would find it. Similarly, even though a
subpoena served on a third party demands nothing
from the president, he nevertheless might choose to
involve himself personally and even to spend
considerable time on the matter—as he might choose
to spend his time on any of dozens of projects that
interest him personally. One can easily imagine a
president choosing to spend time defending himself
in a civil suit, particularly if that suit featured
explosive or embarrassing allegations, as in Jones.
But the possibility that a president might choose to
spend his time in a particular way is not a reason to
think that the Constitution forbids a state from
enforcing its laws—and certainly not when all the
state has done is seek documents from a private
party who is not the president.
Petitioner also argues that the scope of
presidential immunity should reflect not the burden
that this subpoena would impose but the cumulative
burden that many similar proceedings might impose,
if state prosecutors began to investigate the
president en masse. Pet’r’s Br. 36–37. But a similar
concern could be raised about civil suits, too,
including for civil suits that clearly would be
permitted under Jones; and yet Jones held that the
president is not immune. In any event, Petitioner’s
argument is both speculative and overly pessimistic.
There is no way to know whether, and no basis for
confidently predicting that, scores of prosecutors will
use the criminal process to harass future presidents
if the present subpoena is enforced. Unpopular

 18
presidents are nothing new, but there has been no
such epidemic in the past.
In Jones, the president’s defenders warned
that a denial of immunity would open the floodgates
of civil litigation, harassing presidents in their
personal capacities. But the Clinton administration
was followed by four presidential terms in which no
president had to spend significant time on civil suits
brought against him in his personal capacity. Naïve
though it might sound, perhaps presidents whose
conduct is basically upstanding will usually not find
themselves being sued or investigated. To presume
otherwise—to say, without evidence, that this Court
expects American prosecutors to systematically
abuse their authority in order to harass presidents—
is to deny a whole class of democratically elected
officials the presumption of good faith that this Court
usually and properly affords to local public officials.
Petitioner’s argument that denying immunity
in this case would permit states to control federal
government operations is weak. Perhaps for that
reason, Petitioner also makes an argument of a very
different kind: he argues that criminal proceedings of
any sort must be off the table because of the stigma
they carry. Pet’r’s Br. 17, 29–30, 32. This is a deeply
troubling argument, and one that again reflects
Petitioner’s understanding of the presidency as a sort
of royal office. The idea that the president has a
distinctive claim to be protected against stigma, over
and above the legitimate practical demands of his
office, is more suited to the principles of an
aristocracy than those of a republic. A king, perhaps,
is entitled to be shielded from stigma: the person of
the king is sacred in a monarchical system, and the
law can be subordinated to protect his honor. But the

 19
Constitution knows no principle of lèse-majesté. To
argue that the Constitution shields the president
from even the suggestion of involvement in criminal
wrongdoing because that suggestion might call him
into disrepute is to afford him an aristocratic
privilege to which no American is entitled.18
To be sure, the Constitution protects
Americans against being unjustifiably stigmatized by
criminal accusations. We have probable cause
requirements and grand juries and libel laws, for
example. The president is as entitled to those
protections as anyone else. But under a government
of laws and not of men, the fact that a man is the
president does not immunize him from the opinions
that other citizens may form upon learning that a
legitimate investigation is proceeding against him.
The fact that citizens may come to think poorly of a
president if the law takes its course cannot be a
reason to prevent the law from operating. In essence,
this Court has already so held: being sued for sexual
harassment can be at least as stigmatizing as being
investigated for financial improprieties, yet this
Court has deemed sexual harassment suits
permissible against sitting presidents. See Jones.

See Resp’t Br. 34 (noting that “decades of this Court’s
precedents flatly reject the assumption . . . that state
prosecutors are likely to exercise their investigatory powers
irresponsibly”).
18

 20
II.

Any grant of presidential immunity
should come from Congress, not from this
Court.

Petitioner raises the prospect of presidents
harassed by local prosecutors seeking to score
political points. This concern is overstated. But even
if the concern were reasonable, the solution would
not be a judicially crafted grant of immunity. It
would be legislation from Congress, for two reasons.
First, the judgment that such an immunity
was needed would be based on a prediction about the
future, not the application of a principle required by
the Constitution. Indeed, the necessary prediction
would require this Court to abandon its normal
presumption that local officials act in good faith.
Second, it would not be possible to establish
the scope of such an immunity without making policy
and political decisions that courts are unsuited to
make.
A. This Court should not rule on the
basis of a questionable prediction
about the future.
Petitioner warns that denying immunity in
this case would bring on an epidemic of ginned-up
criminal
investigations
designed
to
harass
presidents. Pet’r’s Br. 25–28. But perhaps the sky is
not falling. Twenty years ago, a different president’s
defenders warned that permitting a civil suit against
a sitting president would open the floodgates to a
similar kind of harassing litigation. But the Court
decided Jones as it did, and the flood of harassing
litigation did not come. The next four presidential

 21
terms featured zero occasions on which presidents
were forced to spend significant time dealing with
civil lawsuits filed against them in their personal
capacities.19
It is not clear, therefore, why anyone should
confidently predict that denying immunity in this
case would bring on a flood of pretextual criminal
proceedings. Petitioner says that local politicians
whose constituents dislike any given president will
have incentives to engage in symbolic politics by
investigating those presidents. Pet’r’s Br. 26. That
may be. But local politicians have had those
incentives since the beginning of the Republic; yet, as
Petitioner acknowledges, the present case appears to
be the first of its kind. Pet’r’s Br. 28.20 Even in the
It is true that in the fifth presidential term after Jones—this
one—the sitting president has been sued several times. But
that is no evidence that the Jones warnings were right. This
president was the subject of many lawsuits even before
becoming president. That he continues to be sued while
president thus does not reflect anything about a general
tendency of presidents to face harassing litigation; it merely
means that whatever characteristics the current president
possesses that cause him to be sued frequently did not
disappear upon his assuming office. The counterexamples of
other administrations from 2001 to 2017 suggest that
presidents who are not regularly sued before becoming
president are also not regularly sued after becoming president,
even after Jones.
20 Citing cases in which this Court suggested that the federal
government’s declining to exercise a power over time raises
doubts about that power’s existence, Petitioner argues that the
fact that states have not previously subjected the president to
criminal process indicates that they lack the power to do so.
Pet’r’s Br. 28 (citing, e.g., Printz v. United States, 521 U.S. 898,
905–08 (1997) (holding that Congress’s history of not
commandeering state officials suggests the absence of a power
to commandeer)). But those cases are inapposite, because
19

 22
divisive climate of 2020, the number of local
prosecutors commencing investigations of an
unusually unpopular president is vanishingly
small.21 Thus, despite the obvious opportunity to
score political points, American prosecutors have not
attempted to do so by launching flimsy investigations
of locally unpopular presidents. To credit Petitioner’s
prediction that the future will be much worse, this
Court would need to believe that large numbers of
local prosecutors will begin to abuse their offices in a
new way. That speculation would contradict the
Court’s normal and appropriate presumption that
local elected officials act in good faith.22 This Court
should not abandon that stance to the denigration of
local officials as a class, especially when there is no
evidence of the relevant misbehavior.
In any event, this Court is not the right
institution for making predictions about how the
future will be different from the past; nor is it the
questions of state and federal power are fundamentally
dissimilar. The federal government always has the burden to
demonstrate affirmatively the existence of some power that it
claims; state governments are presumed to possess the power to
act and are denied such power only when some affirmative
prohibition applies. See U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 848 (1995) (Thomas, J., dissenting).
21 The current president has an extensive business empire,
giving prosecutors in many different jurisdictions the
opportunity to gin up harassing investigations if they were bent
on doing so. They have not. Whether the lack of other
investigations is due to the president’s having done nothing to
warrant investigation in those jurisdictions or to any other
cause, the important fact for present purposes is that
prosecutors are not engaged in widespread investigations for
the purpose of scoring political points with their constituents.
22 See Resp’t Br. 35 (citing Mesa v. California, 489 U.S. 121, 138
(1989)).

 23
right institution to design a legal regime aimed at
addressing a hypothetical problem. Within our
system, the institution for those projects is the
legislature. If Congress legislates based on its
expectations of the future and those expectations
turn out to be wrong, Congress can amend its
legislation. If Congress legislatively confers a broad
immunity from all criminal processes, and then two
or three consecutive presidents turn out to be crooks
whose immunity helped them get away with serious
wrongdoing, a reformist Congress can reduce or
eliminate the immunity for later presidents. But a
constitutional holding from this Court cannot be
corrected as easily.
In any event, a legislative scheme—wisely
crafted or not—is the choice of the people’s
democratically elected representatives. Congress is
entitled to make law based on its guesses, right or
wrong. This Court does not sit to predict changes in
American behavior and craft future-oriented
solutions.
B. This Court is ill-suited to make the
policy choices necessary to determine
the scope of a presidential immunity
from investigation.
The Constitution requires only that the
president be immune from state legal processes that
would control or frustrate the operations of the
federal government. Supra § I.23 But suppose that
lawmakers believed that a broader immunity would
be better. How far should that immunity extend?
23

See also Jones, 520 U.S. at 691 n. 13.

 24
Petitioner argues that states must not be able to
“distract, burden, and stigmatize the President.”
Pet’r’s Br. 29. What measures would have those
effects? The question is not easy. Criminal justice
features a broad array of practices, formal and
otherwise. “Investigation” is not just one thing: local
law enforcement authorities gather information,
interview witnesses, consult experts, make plans,
and communicate with the public, formally and
informally, with and without coercive legal
measures. Perhaps any of those measures could
distract or stigmatize a president, and perhaps only
under certain circumstances would that distraction
or stigma be worth worrying about. There is no way
to draw the necessary lines without making many
contestable policy choices. Legislatures resolve such
questions routinely, and properly so. But these
questions do not lend themselves to principled
judicial resolution as a matter of constitutional law.
Suppose that a given criminal investigation
might distract or stigmatize a president, even if no
further action were taken while the president
remained in office. If so, a prosecutor’s
announcement that a criminal investigation would
commence one day after the president left office
might be just as distracting or stigmatizing. Should a
local prosecutor be prohibited from announcing that
a criminal investigation would commence one day
after the president left office? From announcing that
he has enough information to justify opening an
investigation? From conducting those portions of an
investigation that can be conducted without formally
coercive measures like subpoenas? So long as a
president will not actually be prosecuted until he
leaves office, the prospect of trial and possible

 25
conviction is equally far in the future in all of these
scenarios—and all of them carry the potential for
distraction or stigma. How far, if at all, to grant the
president immunity so that he can focus his
attention on other matters is not a question that
admits of a principled answer on the basis of the
Constitution’s text, history, or structure—unless that
answer is “only far enough to prevent state
authorities from controlling or impeding the
operations of the federal government.”
The project of crafting a broader immunity
would also have to consider not only the potential for
presidential distraction but also the potential costs to
legitimate state law enforcement needs. Those costs
are hard to estimate. If current circumstances are
any guide, some number of future presidents are
likely to be people with extensive business holdings,
located in many jurisdictions. If so, the policy impact
of a blanket immunity against all criminal
investigations (whatever that might mean) could be
quite large. Suppose that a business in which a
president had a substantial interest were suspected
of being one of many businesses in an industry
engaging cooperatively in a course of illegal conduct.
A rational investigation of the scheme might involve
an investigation of the president’s business. Would
the whole group of businesses be shielded from
investigation because any investigation would
distract and stigmatize the president? These
questions raise complex matters of policy and politics
better suited for legislative than judicial resolution,
both because they involve guesses about costs and
benefits and because it is wise to make any solutions
revisable in light of experience.

 26
In attempting to answer questions like these,
Congress could carve and limit the world of potential
investigations in ways that a court could not. For
example, Congress might grant immunity against
investigations of the president personally but permit
the investigation of corporate entities connected to
the president. Congress might choose to shield
conduct occurring after the president took office but
not pre-presidential conduct. Congress could specify
immunity from state investigation for conduct that
was already the subject of investigation by Congress
itself. And so on. Moreover, Congress’s choice of tools
for addressing this set of issues is not limited to
grants of immunity. For example, much as Congress
has made legal actions against members of the
Armed Services removable to federal court, Congress
could create substantive federal law requiring state
prosecutors to show probable cause in federal court
before proceeding past a specified point in criminal
investigations touching the president’s affairs. In all
of these ways, Congress is better suited than this
Court to protect presidents against unwarranted
criminal investigations by state authorities—if any
such protection were needed. And it is Congress that
the Constitution charges in the first instance with
structuring the offices of the federal government and
deciding what each one needs to function. See U.S.
Const. art. I, § 8, cl. 18. (vesting in Congress the
power to make all laws necessary and proper for
carrying into execution the powers vested “in any
department or officer” of the United States).

 27
CONCLUSION
The Framers designed a system in which no
one is above the law, not even the president.
Historically, this Court has adhered to that principle.
It should do so again and affirm the decision of the
Second Circuit.
Respectfully submitted,
JUSTIN FLORENCE
Counsel of Record
BENJAMIN L. BERWICK
PROTECT DEMOCRACY
PROJECT
15 Main Street,
Suite 312
Watertown, Massachusetts
02472
(202) 579-4582
justin.florence@protectde
mocracy.org
JAMILA G. BENKATO
CAMERON O. KISTLER
JUSTIN VAIL
PROTECT DEMOCRACY
PROJECT
2020 Pennsylvania Avenue
NW, Suite 163
Washington, D.C. 20006
FEBRUARY 2020

STEVEN A. HIRSCH
PROTECT DEMOCRACY
PROJECT
2120 University Avenue
Berkeley, California 94704
RICHARD PRIMUS
THE UNIVERSITY OF
MICHIGAN LAW
SCHOOL*
625 S. State Street
Ann Arbor, Michigan
48109
* Affiliation provided for
identification purposes
only.

 APPENDIX

1a
APPENDIX: LIST OF AMICI—FORMER
REPUBLICAN MEMBERS OF CONGRESS,
FORMER MEMBERS OF THE EXECUTIVE
BRANCH UNDER REPUBLICAN
ADMINISTRATIONS, AND LEGAL EXPERTS
Donald Ayer
Principal Deputy Solicitor General, 1986–1988
Deputy Attorney General, 1989–1990
Steve Bartlett
U.S. House of Representatives (R-Texas), 1983–1991
Jack Buechner
U.S. House of Representatives (R-Missouri), 1987–
1991
Linda Chavez
White House Director of Public Liaison, 1985
Chairman, National Commission on Migrant
Education, 1988–1992
Tom Coleman
U.S. House of Representatives (R-Missouri), 1976–
1993
George T. Conway III
John Dean
White House Counsel, 1970–1973
David Durenberger
U.S. Senate (R-Minnesota), 1978–1995

 2a
Mickey Edwards
U.S. House of Representatives (R-Oklahoma), 1977–
1993
David Emery
U.S. House of Representatives (R-Maine), 1975–1983
Deputy Director, U.S. Arms Control and
Disarmament Agency, 1983–1988
Emil Frankel
Assistant Secretary for Transportation Policy, U.S.
Department of Transportation, 2002–2005
Charles Fried
Solicitor General of the United States, 1985–1989
Stuart M. Gerson
Acting Attorney General of the United States, 1993
Assistant Attorney General, Civil Division, 1989–
1993
Jimmy Gurulé
Assistant Attorney General, Department of Justice,
1990–1992
Assistant U.S. Attorney, 1985–1989
Under Secretary for Enforcement, Department of the
Treasury, 2001–2003
David Iglesias
U.S. Attorney for the District of New Mexico, 2001–
2007
Bob Inglis
U.S. House of Representatives (R-South Carolina),
1993–1999, 2005–2011

 3a
Leon Kellner
U.S. Attorney for the Southern District of Florida,
1985–1988
James Kolbe
U.S. House of Representatives (R-Arizona), 1985–
2007
Steven T. Kuykendall
U.S. House of Representatives (R-California), 1999–
2001
James Leach
U.S. House of Representatives (R-Iowa), 1977–2007
John LeBoutillier
U.S. House of Representatives (R-New York), 1981–
1983
Paul N. (Pete) McCloskey, Jr.
U.S. House of Representatives (R-California), 1967–
1983
John McKay
U.S. Attorney for the Western District of
Washington, 2001–2007
Mike Parker
U.S. House of Representatives (R-Mississippi), 1989–
1999
Thomas E. Petri
U.S. House of Representatives (R-Wisconsin), 1979–
2015

 4a
Trevor Potter
Chair, Federal Election Commission, 1994
Commissioner, Federal Election Commission, 1991–
1995
Reid J. Ribble
U.S. House of Representatives (R-Wisconsin), 2011–
2017
Paul Rosenzweig
Deputy Assistant Secretary for Policy, Department of
Homeland Security, 2005–2009
Claudine Schneider
U.S. House of Representatives (R-Rhode Island),
1981–1991
Christopher Shays
U.S. House of Representatives (R-Connecticut),
1987–2009
Peter Smith
U.S. House of Representatives (R-Vermont), 1989–
1991
Alan Steelman
U.S. House of Representatives (R-Texas), 1973–1977
J.W. Verret
Associate Professor of Law, George Mason University
Antonin Scalia Law School*

 5a
Kimberly L. Wehle
Assistant U.S. Attorney, Civil Division, 1997–1999
Associate Independent Counsel, Whitewater
Investigation, 1996–1997
Christie Todd Whitman
Administrator, Environmental Protection Agency,
2001–2003
Lawrence Wilkerson
Chief of Staff to U.S. Secretary of State, 2002–2005
Dick Zimmer
U.S. House of Representatives (R-New Jersey),
1991–1997
*Institutional affiliation listed for identification
purposes only.