943 F.3d 627 (2nd Cir. 2019), 19-1540-cv, Trump v. Deutsche Bank AG
|Citation:||943 F.3d 627|
|Opinion Judge:||JON O. NEWMAN, Circuit Judge:|
|Party Name:||Donald J. TRUMP, Donald J. Trump, Jr., Eric Trump, Ivanka Trump, Donald J. Trump Revocable Trust, Trump Organization, Inc., Trump Organization LLC, DJT Holdings LLC, DJT Holdings Managing Member LLC, Trump Acquisition LLC, Trump Acquisition, Corp., Plaintiffs-Appellants, v. DEUTSCHE BANK AG, Capital One Financial Corporation, Defendants-...|
|Attorney:||Patrick Strawbridge, Consovoy McCarthy PLLC, Boston, MA (William S. Consovoy, Cameron T. Norris, Consovoy McCarthy PLLC, Arlington, VA, Marc Lee Mukasey, Mukasey Frenchman & Sklaroff LLP, New York, NY, on the brief), for Plaintiffs-Appellants Donald J. Trump, Donald J. Trump, Jr., Eric Trump, Iva...|
|Judge Panel:||Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges. Debra Ann Livingston, Circuit Judge|
|Case Date:||December 03, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: August 23, 2019
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Appeal from the District Court for the Southern District of New York (Edgardo Ramos, District Judge).
Patrick Strawbridge, Consovoy McCarthy PLLC, Boston, MA (William S. Consovoy, Cameron T. Norris, Consovoy McCarthy PLLC, Arlington, VA, Marc Lee Mukasey, Mukasey Frenchman & Sklaroff LLP, New York, NY, on the brief), for Plaintiffs-Appellants Donald J. Trump, Donald J. Trump, Jr., Eric Trump, Ivanka Trump, Donald J. Trump Revocable Trust, Trump Organization, Inc., Trump Organization LLC, DJT Holdings LLC, DJT Holdings Managing Member LLC, Trump Acquisition LLC, Trump Acquisition, Corp.
Douglas N. Letter, General Counsel, U.S. House of Representatives, Washington, D.C. (Todd B. Tatelman, Dep. General Counsel, Megan Barbero, Josephine Morse, Assoc. General Counsel, Office of General Counsel, U.S. House of Representatives, Washington, D.C., on the brief), for Intervenor Defendants-Appellees Committee on Financial Services and Permanent Select Committee on Intelligence of the United States House of Representatives.
Parvin D. Moyne, Akin Gump Strauss Hauer & Feld LLP, New York, N.Y. (Thomas C. Moyer, Raphael A. Prober, Steven R. Ross, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.), for Defendant-Appellee Deutsche Bank AG.
James A. Murphy, Murphy & McGonigle, PC, New York, N.Y. (Steven D. Feldman, Murphy & McGonigle, PC, New York, NY), for Defendant-Appellee Capital One Financial Corporation.
(Dennis Fan, Mark R. Freeman, Scott R. McIntosh, Appellate Staff Attys., Joseph H. Hunt, Asst. Atty. General, Hashim M. Mooppan, Dep. Asst. Atty. General, Civil Division, U.S. Dept. of Justice, Washington, D.C., for amicus curiae United States of America.)
(Brianne J. Gorod, Elizabeth B. Wydra, Brian R. Frazelle, Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., for amicus curiae Constitutional Accountability Center, in support of Intervenor Defendants-Appellees.)
Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal raises an important issue concerning the investigative authority of two committees of the United States House of Representatives and the protection of privacy due the President of the United States suing in his individual, not official, capacity with respect to financial records. The specific issue is the lawfulness of three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence (collectively, "Committees" or "Intervenors") to two banks, Deutsche Bank AG and Capital One Financial Corporation ("Capital One") (collectively, "Banks"). The subpoenas issued by each of the Committees to Deutsche Bank ("Deutsche Bank Subpoenas") seek identical records of President Donald J. Trump ("Lead Plaintiff"), members of his family, The Trump Organization, Inc. ("Trump Organization"), and several affiliated entities (collectively, "Plaintiffs" or "Appellants"). The subpoena issued by the Committee on Financial Services to Capital One ("Capital One Subpoena") seeks records of the Trump Organization and several affiliated entities. The Capital One Subpoena does not list the Lead Plaintiff or members of his family by name, but might seek their records in the event they are a principal, director, shareholder, or officer of any of the listed entities.
The issue of the lawfulness of the three subpoenas arises on an expedited interlocutory appeal from the May 22, 2019, Order of the District Court for the Southern District of New York (Edgardo Ramos, District Judge) ("Order") denying Plaintiffs motion for a preliminary injunction to prevent the Banks compliance with the subpoenas and denying Plaintiffs motion for a stay pending appeal.
We affirm the Order in substantial part to the extent that it denied a preliminary injunction and order prompt compliance with the subpoenas, except that the case is remanded to a limited extent for implementation of the procedure set forth in this opinion concerning the nondisclosure of sensitive personal information and a limited opportunity for Appellants to object to disclosure of other specific documents within the coverage of those paragraphs of the Deutsche Bank Subpoenas listed in this opinion. We dismiss as moot the appeal from the Order to the extent
that it denied a stay pending appeal because the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.
In her partial dissent, Judge Livingston prefers a total remand of the case for "creation of a record that is sufficient more closely to examine the serious questions that the Plaintiffs have raised," Part Diss. Op. at 697, and to "afford the parties an opportunity to negotiate," id . at 680. We discuss at pages 660-62 of this opinion not only why such a remand is not warranted but why it would also run counter to the instruction the Supreme Court has given to courts considering attempts to have the Judicial Branch interfere with a lawful exercise of the congressional authority of the Legislative Branch.
The subpoenas .
The case concerns three subpoenas issued by committees of the United States House of Representatives. On April 11 of this year, the Committee on Financial Services and the Permanent Select Committee on Intelligence each issued identical subpoenas to Deutsche Bank, seeking a broad range of financial records of Donald J. Trump, members of his family, and affiliated entities. On the same date, the Committee on Financial Services issued a subpoena of narrower scope to Capital One Financial Corporation.1 We detail the scope of the subpoenas in Part II(C).
Litigation procedure .
On April 29, Donald J. Trump, his three oldest children, the Trump Organization, and six entities affiliated with either the Lead Plaintiff or the Trump Organization filed a complaint in the District Court seeking a declaratory judgment that the subpoenas are invalid and an injunction "quashing" the subpoenas and enjoining compliance with them.3 On May 3, the Plaintiffs filed a motion for a preliminary injunction,4 and the District Court granted the Committees joint motion to intervene.5 The Plaintiffs and the Committees then agreed to an expedited briefing schedule for the motion for a preliminary injunction.6 Deutsche Bank notified the District Court that it took no position on the Plaintiffs request for limited expedited discovery,7 and Capital One notified the District Court that it took no position on the Plaintiffs request for an order requiring the Committees to provide Plaintiffs with copies of the subpoenas.8
On May 22, the District Court held a hearing on the Plaintiffs motion for a preliminary injunction and denied it, reading into the record an extensive opinion.9 On May 24, the Plaintiffs filed a notice of an interlocutory appeal. On May 25, the parties submitted a joint motion to stay proceedings in the District Court pending the
appeal,10 which the District Court granted on May 28.11
On May 25, the parties jointly moved in this Court for an expedited appeal,12 which was granted on May 31.13 Thereafter, the Banks informed us that they take no position with respect to the appeal.14 Nevertheless, we requested counsel for the Banks to attend the oral argument to be available to respond to any questions the panel might have. We requested the Committees to provide unredacted copies of the Deutsche Bank subpoenas, which we have received under seal. We also inquired of the United States Solicitor General whether the United States would like to submit its view on the issues raised on this appeal.16 On August 19, the United States submitted a brief as amicus curiae, urging reversal of the District Courts order denying a preliminary injunction,17 to which the Committees and Appellants responded on August 21.18 On August 23, we heard oral argument.
The oral argument precipitated letters from the parties to this Court concerning tax returns sought pursuant to the subpoenas. These letters and subsequent procedural developments are discussed in Part II(B).
We emphasize at the outset that the issues raised by this litigation do not concern a dispute between the Legislative and Executive Branches. As to such a dispute, as occurs where the Justice Department, suing on behalf of the United States, seeks an injunction to prevent a third party from responding to a congressional committees subpoena seeking documents of a department or agency of the Executive Branch, see,
e.g., United States v. AT&T, 567 F.2d 121, 122 (D.C. Cir. 1977) ("AT&T II "), the Judicial Branch proceeds with caution, see id. at 123 (seeking to "avoid a resolution that might disturb the balance of power between the two branches"), sometimes encountering issues of justiciability in advance of the merits, see
United States v. AT&T, 551 F.2d 384, 390 (D.C. Cir. 1976) ("AT&T I ") ....
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