NRA Pushes Broad Privilege Claims Against State Subpoena

Illinois gun owners and supporters fill out National Rifle Association applications while participating in an Illinois Gun Owners Lobby Day convention before marching to the Illinois state Capitol in Springfield, Ill., on March 7, 2012. (AP Photo/Seth Perlman, File)

MANHATTAN (CN) – Fighting for a seat at the table in a state investigation of the gun group’s practices, lawyers for the National Rifle Association argued in court Thursday over the right to review documents that a subpoena could unearth. 

“We’re not saying, ‘Never disclose anything to the government,’” said Sarah Rogers of Brewer Attorneys & Counselors, arguing for the NRA. “We’re saying, ‘tell us.” 

The NRA claims that a nondisclosure agreement signed by its longtime advertising-agency-turned-adversary, Ackerman McQueen, allows it to first review documents Ackerman might turn over to New York state investigators.

“Show us documents so we can review them for privilege, redact and log them as we’ve done before,” Rogers said. 

The New York Attorney General’s Office has an ongoing investigation of the NRA’s nonprofit status and petitioned the Manhattan Supreme Court on Sept. 30 to compel Ackerman McQueen’s subpoena compliance without any NRA interference.

Articulating the state’s main argument Thursday, Assistant Attorney General John Oleske said the target of an investigation should not learn what the investigators are about to learn before those investigators learn it. 

New York says Ackerman wants to comply with its subpoena but purportedly fears legal retribution if it turns over documents without letting the NRA see them first. 

“All of it is an attempt to allow the NRA, through contractual means, to get a seat at the conference table at our office,” Oleske said in court.

The NRA says it doesn’t know what privileged documents Ackerman might have, but Assistant Attorney General Monica Connell argued Thursday that no one is trying to stop the NRA from asserting privilege on a case-by-case basis.

“They’re asserting this extreme version of privilege that would completely shield their conduct from regulators,” she said.

For the NRA, Rogers characterized Ackerman McQueen’s relationship with the gun-rights group as unique.  

“The fact is that there is no publicist relationship that is actually factually comparable to this one,” she said.

She noted the example that Ackerman wrote public-relations copy for the NRA while  also maintaining its websites and serving as a translator of sorts. Ackerman was classified as an independent contractor for tax purposes, Rogers added later, but said the company functionally served a bigger purpose. The Attorney General’s Office countered that the NRA had not adequately explained or proven these purportedly special functions. 

The NRA also, Rogers continued, needs to protect the First Amendment rights and identifying information of its members and donors, data she conceded Ackerman might have. 

New York insists it had made no requests for bulk donor information and that the NRA was merely speculating. Connell did say, however, that donor information could be on the line in the future, which is standard “as part of the regulatory oversight of a nonprofit.”

Oleske said the NRA should not have the right to see every piece of paper before it comes to the state in case it contains the name of a donor.

“This blanket invocation of the First Amendment is an effort to try and shield the NRA’s conduct,” said Connell, and is a totally separate argument from the nondisclosure agreement.

Connell also said that no matter the outcome of Thursday’s proceedings, the NRA had been partially successful in its tactics. 

“It had the desired effect,” she said. “The NDA has inhibited the investigation.”

In August, the NRA attempted to sit in on a state deposition of its former chief Oliver North, but was stymied by two judges.

Judge Melissa Crane reserved her decision.

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