NRA Says It Doesn't Have to Comply With New York AG if It Doesn't Think It is Getting in Her Way

National Rifle Association Holds Its Annual Conference In Dallas, Texas
NRA Executive Vice President, Wayne LaPierre speaks at the NRA-ILA Leadership Forum during the NRA Annual Meeting & Exhibits at the Kay Bailey Hutchison Convention Center on May 4, 2018 in Dallas, Texas. The NRA and the New York Attorney General are engaging in a new dispute over a subpoena. Justin Sullivan/Getty

New York Attorney General Letitia James has sued the National Rifle Association and its former public relations firm, Ackerman McQueen, over what she alleges is a pattern of obstruction and interference from the nation's largest gun-rights group as part of her office's ongoing investigation into its tax-exempt status.

James served a subpoena to Ackerman in early July for documents related to her investigation, which includes allegations that the NRA has been lax in its oversight of financial transactions benefiting NRA insiders. Ackerman responded with concerns that its longstanding services agreement with the NRA might prohibit it from disclosing documents responsive to the subpoena.

The services agreement includes provisions that require Ackerman to return all documents in its possession related to the NRA account once the agreement is terminated. The NRA also maintains the right of first refusal before documents are provided to third parties.

But, as New York courts have consistently upheld and as is generally the case in courts nationwide, private contracts which interfere with the statutory duties of government officials are "illegal, void, and unenforceable," as one Brooklyn court noted.

The NRA's objection to Ackerman complying with an official subpoena from the New York State Attorney General would purport to override her authority in this case, the complaint said. In fact, James' office alleged that the NRA's involvement with Ackerman's response is "impeding the investigation" and said that her office must "take measures to protect the integrity" of its probe. The legal filing noted the unusual nature of the subject of an investigation, the NRA, dictating the terms on which that investigation may proceed.

"Falsely and disingenuously, the Attorney General's filing claims that the NRA is blocking access to documents possessed by its former ad agency," William A. Brewer III, the NRA's outside counsel, said in a statement. "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."

The attorney general's office said that the NRA confessed it understood the limitations of its right to protect confidential documents from the attorney general's investigation. But, in a remarkable claim, the NRA apparently argued that private non-disclosure agreements should be upheld when the "subject of [a government] investigation"—in this case, the NRA—decides that it is not obstructing the investigation. According to the attorney general, the NRA self-certified that its own confidentiality agreement was not getting in her way.

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New York Attorney General Letitia James speaks during a press conference, June 11, 2019 in New York City. James announced that New York, California, and seven other states have filed a lawsuit seeking to block the proposed merger between Sprint and T-Mobile. Drew Angerer/Getty

But the exact nature of the NRA's current relationship with Ackerman is in dispute, and this could complicate claims made by either party as to what obligations are still owed between the two.

Ackerman has previously claimed that the NRA "constructively terminated" the services agreement. And in a June 26 letter to James, the NRA revealed that it "formally terminated" its relationship with Ackerman the day before and demanded that the firm return all NRA-related documents in its possession, an event that only occurs once the services agreement is no longer in effect.

"This is not a dispute about whether Attorney General James can access NRA-related documents," Brewer contended. "It's a dispute about whether she can do 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."

It remains unclear how the NRA claims to enforce the "right to review" provision of the non-disclosure clauses if the broader agreement is purportedly no longer in effect. According to the lawsuit, the NRA has also requested that Ackerman first return all confidential documents to the gun-rights group, at which point the attorney general can serve its subpoena directly upon them.

The NRA and Ackerman are engaged in costly legal battles seeking damages in the tens of millions of dollars, and the New York Attorney General's foray into their dispute not only promises to further roil the bad blood between the two organizations, but marks a significant step in the progress of her investigation. Her probe could yield reforms in NRA governance, penalties for officers or potentially lead to the organization's dissolution upon the order of a New York judge.

This article has been updated to reflect comments from the NRA's outside counsel.