Trump v. Vance, Docket No. 20-2766

• Decision Date: 07 October 2020
• Docket Number: August Term, 2020,Docket No. 20-2766
• Citation: 977 F.3d 198
• Parties: Donald J. TRUMP, Plaintiff-Appellant, v. Cyrus R. VANCE, Jr., in his official capacity as District Attorney of the County of New York, Mazars USA, LLP, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

977 F.3d 198

Donald J. TRUMP, Plaintiff-Appellant,

v.Cyrus R. VANCE, Jr., in his official capacity as District Attorney of the County of New York, Mazars USA, LLP, Defendants-Appellees.

Docket No. 20-2766

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: September 25, 2020

Decided: October 7, 2020

William S. Consovoy, Consovoy McCarthy PLLC, Arlington, VA (Cameron T. Norris, Alexa R. Baltes, Consovoy McCarthy PLLC, Arlington, VA; Patrick Strawbridge, Consovoy McCarthy PLLC, Boston, MA; Marc L. Mukasey, Mukasey Frenchman & Sklaroff LLP, New York, NY; Alan S. Futerfas, Law Offices of Alan S. Futerfas, New York, NY, on the brief), for Plaintiff-Appellant.

Carey R. Dunne, General Counsel, New York County District Attorney's Office, New York, NY (Christopher Conroy, Julieta V. Lozano, Solomon B. Shinerock, James H. Graham, Allen J. Vickey, Sarah A. Walsh, New York County District Attorney's Office, New York, NY; Caitlin Halligan, Ryan W. Allison, David A. Coon, Selendy & Gay PLLC, New York, NY; Walter E. Dellinger III, Duke University Law School, Durham, NC, on the brief), for Defendant-Appellee Cyrus R. Vance, Jr.

Before: Leval, Katzmann, and Lohier, Circuit Judges.

Per Curiam:

Plaintiff-appellant President Donald J. Trump appeals from a judgment of the United States District Court for the Southern District of New York (Marrero, J .) granting a motion of defendant-appellee Cyrus R. Vance., Jr., the District Attorney of the County of New York (the "District Attorney"), to dismiss the second amended complaint ("SAC") for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, we affirm.

I. Background

In 2018, the District Attorney opened a grand jury investigation into certain business transactions involving the Trump Organization and affiliated entities and individuals.¹ The Trump Organization is owned by The Donald J. Trump Revocable Trust, of which the President is the grantor and beneficiary. In the course of that investigation, on August 1, 2019, the grand jury issued a subpoena to the Trump Organization seeking documents from 2015 through 2018 relating to (1) payments made to certain individuals and (2) Michael Cohen's work for the President and for the Trump Organization. The Trump Organization produced documents in response to this subpoena. When the District Attorney expressed his view that the subpoena required the production of the Trump Organization's tax returns, however, the Trump Organization refused, arguing that the subpoena could not be read to encompass tax returns.

Four weeks later, on August 29, 2019, the grand jury issued another subpoena, this one directed to Mazars USA LLP ("Mazars"), the President's accounting firm. This subpoena (the "Mazars subpoena") directed Mazars to produce a host of financial documents—including tax returns—relating to the President, the Trump Organization, and affiliated entities, dating back to 2011.²

The President quickly filed suit in federal court to block enforcement of the Mazars subpoena, arguing that he was absolutely immune from state criminal process during his term in office. See Trump v. Vance , 395 F. Supp. 3d 283 (S.D.N.Y. 2019). The district court dismissed the President's complaint, concluding that the doctrine of Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required it to abstain from exercising jurisdiction over a challenge to an ongoing state grand jury investigation. See Trump , 395 F. Supp. 3d at 293–301. In the alternative, the district court denied the President's motion for a preliminary injunction, concluding that the President had not demonstrated a likelihood of success on the merits or that he would suffer irreparable harm if the subpoenaed documents were produced to the grand jury. See id. at 302–16.

On appeal, this Court affirmed in part and vacated in part. We affirmed the district court's holding that the President was not entitled to preliminary injunctive relief, concluding that a state grand jury "may lawfully demand production by a third party of the President's personal financial records for use in a grand jury investigation while the President is in office." Trump v. Vance , 941 F.3d 631, 646 (2d Cir. 2019).³ We also rejected the argument of the United States as amicus curiae that any such subpoena for the President's papers must satisfy a "heightened showing of need," reasoning that this standard applies only when a subpoena "demand[s] the production of documents protected by executive privilege." Id. at 645. We vacated the district court's order insofar as it dismissed the complaint on abstention grounds, reasoning that Younger abstention was not warranted under the unique circumstances of this case. See id. at 639.

The Supreme Court affirmed, holding that "absolute" presidential immunity from compliance with a state grand jury subpoena was neither "necessary [n]or appropriate under Article II or the Supremacy Clause." Trump v. Vance , ––– U.S. ––––, 140 S. Ct. 2412, 2429, 207 L.Ed.2d 907 (2020). And the Supreme Court likewise refused to impose a "heightened" standard for subpoenas seeking the President's papers, holding that such a standard was not "necessary for the Executive to fulfill his Article II functions." Id.

But the Supreme Court stressed that the rejection of a heightened standard "does not leave Presidents with no real protection." Id. at 2430. Rather, "a President may avail himself of the same protections available to every other citizen[,] ... includ[ing] the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth." Id. Moreover, "[a] President can raise subpoena-specific constitutional challenges," such as "challeng[ing] the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause," or "argu[ing] that compliance with a particular subpoena would impede his constitutional duties." Id. Because the arguments on appeal focused solely on categorical immunity, the Supreme Court remanded the case so that the President could "raise further arguments as appropriate." Id. at 2431.

On remand, the President filed the SAC in district court, alleging that the Mazars subpoena is overbroad and was issued in bad faith. On overbreadth, the SAC alleges that many of the requested documents bear no relation to the payments made by Michael Cohen in 2016—which the SAC, relying on a contemporaneous New York Times article and the earlier subpoena to the Trump Organization, characterizes as the "focus" of the grand jury investigation. The SAC also notes the broad scope and timeframe of the Mazars subpoena to argue that the subpoena exceeds the District Attorney's jurisdiction. Finally, the SAC alleges that the Mazars subpoena is overbroad and must have been issued in bad faith because it largely mirrors a legislative subpoena issued to Mazars by the House Committee on Oversight and Reform.

In a comprehensive opinion, the district court granted the District Attorney's motion to dismiss the SAC for failure to state a claim, holding that the SAC did not allege sufficient facts to render the allegations of bad faith or overbreadth plausible. See Trump v. Vance , No. 19-cv-8694 (VM), ––– F.Supp. 3d ––––, 2020 WL 4861980 (S.D.N.Y. Aug. 20, 2020). This appeal followed.⁴

II. Discussion

A. Legal Standards

We review de novo the district court's order dismissing the SAC for failure to state a claim. See Elder v. McCarthy , 967 F.3d 113, 123 (2d Cir. 2020).

The President asserts that the subpoena is unenforceable on two grounds: first, because it is overbroad, and second, because it was issued in bad faith. See Joint App'x 28 ¶¶ 53–63.

These defenses are well established under New York and federal law.⁵ A subpoena duces tecum is overbroad if "the materials sought have no relation to the matter under investigation." Virag v. Hynes , 54 N.Y.2d 437, 446 N.Y.S.2d 196, 430 N.E.2d 1249, 1253 (1981). This standard of relatedness is necessarily looser in the context of a grand jury investigation than that applicable to evidence to be introduced at trial. See id. , 446 N.Y.S.2d 196, 430 N.E.2d at 1252–53. Because a grand jury has the authority and duty to "inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred," United States v. R. Enterprises, Inc. , 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991), it need not "designate or call for what its exact needs may ultimately turn out to be," Virag , 446 N.Y.S.2d 196, 430 N.E.2d at 1252. To prevail on an overbreadth challenge in practice, then, the moving party must show that "a particular category of documents can have no conceivable relevance to any legitimate object of investigation by the grand jury." Id., 446 N.Y.S.2d 196, 430 N.E.2d at 1253 ; accord In re Grand Jury Proceeding , 971 F.3d 40, 54 (2d Cir. 2020) ("[A] grand jury subpoena is unreasonably broad only if there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject of the grand jury's investigation.").

Similarly, with respect to the defense of bad faith, "[g]rand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass." R. Enterprises , 498 U.S. at 299, 111 S.Ct. 722. However, a grand jury subpoena "enjoys a presumption of validity" against these and other defenses to enforcement, Virag , 446 N.Y.S.2d 196, 430 N.E.2d at 1253, a presumption that stems from the grand jury's unique and long-standing role in evaluating the sufficiency of a prosecutor's evidence against the accused and from the strong public interest in the just enforcement of the criminal laws, see United States v. Johnson , 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed....