NEW YORK ATTORNEY GENERAL
ABOUT THE INVESTIGATION
As a candidate for New York Attorney General in 2018, Letitia James (who, at the time, was a New York Public Advocate) announced a pledge to investigate the NRA, an organization she referred to as an “organ of deadly propaganda masquerading as a charity for public good.”
According to a New York Daily News article, dated July 12, 2018, James stated, “The NRA has an office here in New York State and what we want to do is investigate to see whether or not they have in fact complied with the not-for-profit law in the state of New York.”
In the months that followed, James made similar pledges on the campaign trail. In an article, dated September 6, 2018, she stated that “…we need to again take on the NRA, which holds itself out as a charitable organization. But, in fact, they are not. They are nothing more than a criminal enterprise. We are waiting to take on all of the banks that finance them, their investors.” Later, in an article published by Ebony, James referred to the NRA as a “terrorist organization.”
Just months after taking office, Attorney General James announced a sweeping investigation into the NRA, as reported in an article in The New York Daily News, dated April 27, 2019.
"The NRA will cooperate with any appropriate inquiry into its finances," says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. "The NRA is prepared for this, and has full confidence in its accounting practices and commitment to good governance."
Since the launch of the investigation, the NRA has complied with subpoenas. However, on October 1, 2019, the Attorney General’s office sued Ackerman McQueen, the NRA’s former advertising agency, seeking to enforce a subpoena issued in connection with the investigation into the NRA. At issue: the NRA’s contention that it has the right to redact privileged information in Ackerman McQueen's documents before such documents are turned over to the Attorney General.
As noted in an article from The Hill, dated October 1, 2019, the NRA believes the NYAG’s pursuit violates the NRA’s legal rights.
“Falsely and disingenuously, the Attorney General’s filing claims that the NRA is blocking access to documents possessed by its former ad agency,” says Brewer, counsel to the NRA. “In fact, the NRA told Ackerman McQueen to produce everything the AG sought — after giving the NRA a chance to redact privileged information. That, of course, is a tried and true approach routinely followed where, as here, a civil subpoena to a third party implicates a principal’s confidential documents.”
Brewer added, “This is not a dispute about whether Attorney General James can access NRA-related documents. It’s a dispute about whether she can do so secretly, in a manner designed to circumvent the NRA’s clear legal rights — including the right to protect our members’ personal information from a political witch hunt.”
On October 31, 2019, a hearing on these matters was conducted in New York County State Supreme Court. As reported by Bloomberg, the NRA and its counsel, Brewer, Attorneys & Counselor partner Sarah B. Rogers, argued that the NRA’s relationship with Ackerman McQueen was “far beyond the parameters of a normal client-publicist relationship,” allowing the NRA to assert attorney-client privilege. The court has yet to rule on the matter.
“The relief sought by the Attorney General is an unprecedented, alarming expansion of the government’s power,” says Brewer. “The Attorney General seeks the ability to upend legally formed, appropriate relationships between fiduciaries without any demonstration of need or an entitlement to do so. In practical terms, the Attorney General – in her zeal to attack the NRA – seeks to conduct a secret investigation in a situation never intended by the legislature or countenanced by any court. The NRA must protect its privileges and its members’ confidential information. We are confident in our legal position, and anxiously await the ruling from the court.”
On November 14, 2019, the NRA got a big boost from NYU Law School Professor Arthur R. Miller. The famed legal scholar submitted an affidavit that endorses the position of the NRA, writing, “…a secrecy order like the one sought by the OAG [Office of the Attorney General of New York] would depart radically from the statutory scheme of the CPLR, and would set a dangerous precedent diminishing the procedural and substantive rights of others who may come into disfavor with New York State authorities.”
“Without any indication that a shred of evidence is unavailable to her, the Attorney General seeks an order commanding a witness to produce potentially privileged documents in secret, in order to prevent the owner of the privilege from protecting it,” says Brewer. “As Professor Miller notes, the type of ‘secrecy order’ the Attorney General requests is not only unprecedented, but dangerous.”
Brewer added, “Secret, sweeping subpoenas targeting the Attorney General’s political enemies are the hallmark of a police state, not a free society. The NRA stands against such abuses. It’s no surprise that one of the preeminent scholars of American law stands with us.”