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) pledged to investigate the NRA, which she referred to as an “organ of deadly propaganda masquerading as a charity for public good.”
In an amazing bit of candor, James admitted that, because the "NRA has an office here in New York State," she would "investigate to see whether or not they have in fact complied with the not-for-profit law in the state of New York.” (See New York Daily News, July 12, 2018.)
In the months that followed, James made it clear that her motivation for the promised investigation was political. In an article, dated September 6, 2018, then candidate James 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, candidate James referred to the NRA as a “terrorist organization.”
Therefore, it was no surprise when, after taking office, Attorney General James announced the much-promised 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 NYAG’s investigation, the NRA has faced an adversary masquerading as an independent regulator. However, on October 1, 2019, the Attorney General’s office threw all of that pretense aside when it sued Ackerman McQueen, the NRA’s former multipurpose agent, seeking to enforce a subpoena issued in connection with the investigation into the NRA.
At issue: whether the NYAG may contrive a dispute over the production of documents – none of which are being withheld – in order to obtain a court ruling enabling her office to proceed without notice to the NRA by its own agents. In sum, the Attorney General wants a court to overrule the NRA’s contention that it has the right to review potentially privileged information in Ackerman McQueen 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.
On October 31, 2019, a hearing on these matters was conducted in New York County State Supreme Court. We noted then that 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.
“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 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.” News of Professor Miller’s position captured front-page headlines in The New York Law Journal.
“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.”
On February 24, 2020, a judge ruled that Ackerman McQueen has no contractual obligation to allow the NRA to conduct a privilege review prior to document production. However, the ruling does allow for in camera review of documents prepared by counsel in anticipation of litigation.
“We are pleased to see the court agree with the NRA on a critical issue: there should be protection via in camera review of certain privileged materials,” says Brewer. “That said, we believe the procedural protections afforded to the NRA should go further – and we are exploring our options in response to a perplexing opinion.”
Brewer added, “Unfortunately, the court ignores, with no evidentiary support, the true nature of the relationship between the NRA and Ackerman McQueen, and misapprehends the full protections that should be afforded to the NRA under the law. The world knows that Ackerman was not only an advertising and PR firm to the Association. The agency was involved in a broad range of legislative, legal and business issues, and the Association believes all privileged and confidential information to which Ackerman was exposed should be protected. The NRA will continue to seek protection for that information.
On May 15, 2020, the NRA filed a motion in the Supreme Court of the State of New York, County of New York, that argues that the court failed to appreciate the confidential and attorney-client privileged nature of material being sought by the NYAG. The NRA seeks to reargue the court ruling. The NRA is joined by Professor Miller in its efforts to overturn the court’s decision.
In an affidavit, Professor Miller recognizes the NRA’s position that Ackerman “served as one of its closest, most trusted collaborators for more than thirty years on matters of strategic importance, entered into contracts on its behalf, represented it in public fora and business transactions, and produced public communications that needed to be collaborated to reflect legal considerations, such as donor-privacy, intellectual property, and Second Amendment matters.” He adds, “The NRA should be given the opportunity to review the documents at issue and assemble its privilege log.”