Trump Asks Court for Help in Applying Mazars in Records Case 

August 26, 2020

By CM/ECF

Catherine O'Hagan Wolfe
Clerk of Court
U.S. Court of Appeals for the Second Circuit
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007

Re: Donald J. Trump, et al. v. Deutsche Bank, AG, et al., No. 19-1540

On August 11, the Court instructed the parties to submit letters concerning “the appropriate action this Court should take to comply with the Supreme Court's opinion, including the possibility of our remanding the case to the District Court, with or without specific directions.”¹ Doc. 269 at 2. Plaintiff-Appellants respectfully submit that a remand to district court is required. At least one of the Committees intends to issue a new subpoena, based on new justifications and new evidence. Litigation over that new or “revised” subpoena will need to proceed in the district court. Moreover, remand to the district court following a Supreme Court decision is this Court's ordinary practice, it is consistent with this Court's own decision in this case, and it will facilitate further efforts to negotiate or narrow the differences between the parties.

To begin, the question of whether to remand this case is now an easy one, given the memorandum that the Chairman of the House Permanent Select Committee on Intelligence issued yesterday. That memorandum explains that the Committee intends to issue a “revised subpoena” to Deutsche Bank that will significantly alter the scope of the documents it seeks concerning Plaintiffs' financial records. Exhibit A, Memorandum from Chairman Schiff to HPSCI Members (Aug. 25, 2020) (“Memo”) at 11-14, 17. And the Committee's asserted support for this new subpoena references evidence that long postdates the subpoena that was the subject of this litigation. See, e.g., Memo 5 n.10 & 22 (citing U.S. and United Kingdom government reports from 2020); id. at 6 (citing evidence allegedly developed in impeachment proceedings conducted in February 2020); id. at 7 (citing evidence from book published in June 2020); id. at 9-10 (citing financial disclosure reports from 2020). Because the Committee cannot engage in “retroactive rationalizations,” Watkins v. United States, 354 U.S. 178, 204 (1957), this new evidence cannot be used to justify the previous subpoena. The district court will need to review the parties' evidence, justifications, and arguments, and ultimately, decide whether this subpoena is valid.²

But even setting aside the Committee's intention to issue a “revised” subpoena, remand is the proper course. The Supreme Court's opinion in this case announced a new test (including four non-exclusive factors) to be applied to congressional subpoenas that target the private financial documents of the President and his family. See Mazars, 140 S.Ct. 2019. The Court's test requires courts to “perform a careful analysis that takes adequate account of the separation of powers principles at stake.” Id. at 2035. This Court's ordinary procedure in such cases is to remand “for the district court to determine, in the first instance,” whether the test can be satisfied. Bishop v. Wells Fargo & Co., 870 F.3d 104, 107 (2d Cir. 2017); see id. at 106 (remanding case to district court after Supreme Court “set out a materiality standard for FCA claims that has not been applied in the present case”); Duran v. Beaumont, 622 F.3d 97 (2d Cir. 2010) (remanding case to district court to apply in the first instance new Supreme Court decision concerning exceptions to the Hague Convention on the Civil Aspects of International Child Abduction); Rinehart v. Lehman Bros. Holdings Inc., 817 F.3d 56 (2d Cir. 2016) (remanding ERISA case for application of intervening Supreme Court precedent).³

Remand also permits the district court to consider, in the first instance, the relevance of any new evidence the Committees intend to offer to support their forthcoming subpoena. They certainly cannot further develop the record on appeal. See Fed. R. App. Proc. 10; see, e.g., Eng v. New York Hosp., 1999 WL 980963, at *1 (2d Cir. 1999) (denying motion to supplement the record on appeal as improperly “presenting evidence to this Court that was not before the trial judge”); Knopf v. Esposito, 803 Fed.Appx. 448, 457 (2d Cir. 2020) (denying attempt to supplement record on appeal with “newly discovered” evidence). Allowing parties to “rely on appeal . . . on materials [not] furnished to the district judge” would “deprive the opposing party of an opportunity to comment on them and the district judge of an opportunity to evaluate their significance.” Henn v. National Geographic Soc., 819 F.2d 824, 831 (7th Cir. 1987). None of the limited exceptions to this rule apply. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). “The only proper function of a court of appeals is to review the decision below on the basis of the record that was before the district court.” Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir. 1986).

Remand is also consistent with this Court's prior decision, which left to the district court the process of sorting through the particular documents that may be responsive to the subpoena or beyond its permissible bounds. See Trump v. Deutsche Bank AG, 943 F.3d 627, 668 (2d Cir. 2019). And remand would also allow the parties to continue their discussions about narrowing or resolving their disputes. See Memo at 15 (noting that the Committee “will continue to engage[ ] in good-faith negotiations with counsel for President Trump and the other named plaintiffs”). As the Supreme Court recognized, Congress and the President have “maintained [a] tradition of negotiation and compromise — without the involvement of this Court — until the present dispute.” See Mazars, 140 S. Ct. at 2031; see also United States v. AT&T, 551 F.2d 384, 390 (D.C. Cir. 1976). Thus, “efforts at negotiation in this context are to be encouraged, since they may narrow the scope of these subpoenas, and thus avoid judicial pronouncement on the broad confrontation now tendered.” Deutsche Bank, 943 F.3d at 680 (Livingston, J., concurring in part and dissenting in part) (citation and quotation omitted)). Whether or not a compromise is ultimately reached, remand to the district court would at least facilitate negotiation and leave open the possibility of settlement.

The potential expiration of the subpoena at the end of this Congress is not a justification for charting a different course. The Supreme Court rejected this argument in denying the Committee's request to expedite issuance of the judgment. See Committees of U.S. House of Rep. v. Trump, ___ S. Ct. ___, 2020 WL 4044628 (2020). If this isn't a basis for accelerating that purely ministerial step, it surely isn't a basis for rushing to judgment on the critical separation-of-powers questions that the Supreme Court has remanded for consideration anew. Such “serious constitutional questions . . . presented by this litigation . . . require more time” for careful resolution — not less. U.S. Servicemen's Fund v. Eastland, 488 F.2d 1252, 1256 (D.C. Cir. 1973).

But the argument would also fail on its own terms. In Committee on Judiciary of U.S. House of Representatives v. Miers, for example, the Court of Appeals stayed a congressional subpoena notwithstanding that “this controversy will not be fully and finally resolved by the Judicial Branch . . . before the 110th Congress ends.” 542 F.3d 909, 911 (D.C. Cir. 2008). Since resolution of the interbranch dispute would have “potentially great significance for the balance of power between the Legislative and Executive Branches,” the Court saw an “additional benefit of permitting . . . the new House an opportunity to express their views on the merits of the lawsuit.” Id. The separation-of-powers at issue here are no less significant.

In the event that this Court elects to proceed with consideration of the Supreme Court's new test in the first instance (notwithstanding all the reasons set forth above), Plaintiff-Appellants respectfully suggest that this Court adopt the same schedule that the D.C. Circuit did in the companion case to this one, Trump v. Mazars, No. 19-5142 (D.C. Cir. August 10, 2020). There, the Court ordered the parties to file simultaneous opening briefs within 21 days, and simultaneous replies within fourteen days. Id. Doc. No. 1855776. That is a substantially expedited schedule from ordinary appellate briefing, and would sufficiently address any concerns about the pace of further proceedings.

Respectfully submitted,

Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square, 8th Floor
South PMB #706
Boston, MA 02109
(617) 227-0548
patrick@consovoymccarthy.com

Counsel for Plaintiff-Appellants