Uninterrupted argument and then that would be questioning in order of with meet and then judge laurier. Mr. Constable, you will begin and you have reserved three minutes for rebuttal. Thank you, your honor, and good morning. May it please the court. And may it please the court. On remand the president filed an amendment complaint raising two claims. First, that the subpoena at issue is an overbroad fishing expedition, and second, that it was issued in bad faith in order to arrest the president. The District Attorney concedes that the Supreme Court has authorized the president to bring these claims in federal court. The only issue then on appeal is whether the allegation of bad faith are possible. The District Court termination they are not to be reversed for several reasons. First, the court stack the deck against the president by asserting that these claims are a disguised attempt to relitigate category and 90. As a distant turn it also concedes they cleanly are not. Second, the court violated binding president by turning the clause of the extended into requirement by growing interest against the president by crediting one allegation over another and by allowing the District Attorney to deploy extrinsic evidence at the pleading stage. Third and last, the court dend the present a fair chance to contest the legality of the subpoena via streamlined evidentiary process. Thats a subpoena challenges which are intensely factual are typically adjudicated. The president child should be no exception. And had the District Attorney added as he should have, that mightve already been completed. For all these reasons the judgment below should be reversed and the case should be remanded for further proceedings. Thank you. Judge lavelle. Im a little puzzled because, because conventionally in order to quash a subpoena or to escape the obligation to perform the subpoena, one must make a showing come one must make a showing that would support the proposition that the subpoena was issued in bad faith or was whatever the ground is. Here it seems to me as a result of the District Attorneys im not sure whether its as result of the District Attorneys concession that he will not enforce the subpoena until the case is terminated. Here we are pondering the question that seems to be irrelevant. The question whether the complaint plausibly pleads the claim is not the issue that we should be addressing. The issue we should be addressing is whether the plaintiff in effort to avoid compliance with subpoena has shown that there is a defect of overbreadth or bad faith. I would like to combine that with the question of why isnt, on the issue of plausibility of meeting the standard, and what i see in twombly and iqbal, you dont meet that standard if theres an obvious alternative explanation which is not illegality. So you want to address that, please . Yes, sir honor. Thank you for both questions. Let me begin with the first one first. I mostly agree that i wouldnt say plausible is irrelevant. I say dash at which a rather straightforward. I think what is different here and will help explain how we are where we are is we agree ultimately there is an evidentiary burden that has to be met to show that faith and overbreadth. But this is 1983 action in federal court under the federal rules of civil procedure, and the Supreme Court and this court have both held at the District Attorney concedes that is appropriate posture for this case to be in right now. Therefore the ordinary rules have to apply it as an agent in my opening i think the District Attorney should have answered this is an obvious factual dispute and had a dental we would be in a proceeding that looks mostly like press exactly like motion or to quash proceeding only a Summary Judgment. I agree you have made such a motion. You havent set forth, you havent set forth evidence that could justify staying the subpoena or quashing it. So far as i could see, so far as i can see, the staying at the subpoena is sold by virtue of the District Attorneys decision that theres never been a court ruling that the subpoena is state. Doing thing is the District Attorney is not undertaking to quash it of its own volition. It is true, your honor would not have to litigate on appeals in relief because of the agreement of the District Attorney. A whether the spin is ultimately quashed is a mayor to question that ought to be resolved in Summary Judgment am not in front of plausibility that changes the rules of rule eight and would create a there are no heightened standard under rule eight. Your question obvious alternatives i think with the District Attorney of the District Court left after the question is those alternatives have to come from the four corners of the complaint, not based on speculation and extrinsic evidence the District Attorney would like to introduce at the pleading stage and nothing in this complaint renders the president s allegation as to the scope and propriety of this subpoena implausible. There may be i i dont think what you said is legally accurate because twombly and iqbal are talking about what is contained in the complaint and if im reading the complaint one sees there is an obvious alternative not consistent with the unlawfulness being claimed in the complaint, that the complaint fails to make out, fails to make up the illegality. Consistent with the plausibility standard. It seems to me just reading your complaint, of course you are alleged a lot of things but when a grand jury subpoenas tax returns to say, well, we think that grand jury is an interest in tax returns at all. They are only interested in Something Else that they subpoenaed in the past, and we think, or we argue that the subpoena is in bad faith because it was copied, because it was largely copied in substance from another governmental subpoena seeking the same material. There are such obvious alternatives, their silver no reason to go speculating into the accuracy of these highly contrived allegations. I dont think the allegations are contrived. Weve alleged investigation has a certain scope. That allegation has to be tested as true and once it is, not even the District Attorney asserts that the claims are implausible, nor could he. If the investigation is limited to the 2016 payment that the District Attorney concedes are part of, lease part of the investigation, then theres no dispute on appeal. It is overbroad and of bad faith. You agree, do you not, that the president is being judged in the standard exactly like an ordinary citizen . We dont agree with that but it but i dont think it matters on appeal here. With respect to Supreme Court has said with respect, with respect to bad faith or overbreadth, the president is not wielding any special privilege as president of the United States. Hes in the posture of an ordinary citizen arguing those things. Isnt that the gist of the Supreme Courts holding . Not in my view, your honor. The court also said in cheney, in a case with the president be considered like an ordinary litigant. But again i dont think it matters for appeal if the court were to adopt what that view, he still wins. This is just plausibility. I just think its hard, impossible for the District Attorney to argue it is impossible that a subpoena copied from congress that is alleged to be when issue from one year is not overbroad. They shouldve just been resolved through Summary Judgment on the merits. I would yield to judge cabranes. Thank you. Counselor, how would you respond to the argument that the allegation that the scope of the grand juries investigation is limited only to certain payments made by Michael Cohen in 2016. Is undermined by the very news article from which is allegation is drawn. A New York Times article which i understand, and correct me if i miss understanding, is the main basis for that allegation that the scope of the grand jury investigation is limited only to the 2016 Michael Cohen payment, and a quote, that it was unclear if the broad scope of the subpoena indicated the District Attorney had expanded his investigation beyond actions taken during the 2016 campaign. Doesnt it article on its own terms, that New York Times article on its own terms, significantly undermine the plausibility of your assertion . No, your honor. I think it confirms it as we explained in detail and our reply brief. Let me begin by saying its not the prime basis for the allegation. I would point the courts to paragraph 1215 of the Second Amendment complaint. The basis for it being to the colon payments are one, that was [inaudible] to become the sole subject of the subpoena to the Trump Organization, and third, this subpoena was only issued after there was dispute over whether tax returns were included in that subpoena. We think theres an obvious relationship between the two. As to the article the article said exactly what your honor described as saying, and as weve explain, we think it goes beyond the record to quote the parcel included in the complaint. Even accepting that is appropriate, it says exactly what allegations say. This was about the calling payments and then it is unclear whether it has expanded beyond that, meaning it may be possible for it to expand but is also possible that it is not. Thats what unclear needs. This court has held time and again in cases like phelps and the en banc ashcraft case and others recite that complaint cannot be dismissed because you are competing plausible explanations and thats it most what we have here. In paragraph 11 of the Second Amendment complaint, the allegation is made that the District Attorneys office open an investigation at issue in the summer of 2018. In paragraph 17 speaking, the allegation is that the District Attorney issued a grand jury subpoena in august 29, 2019. Is it plausible to assume the scope of the investigation remains limited only to the 2016 Michael Cohen payments for more than a year . It is if you look back one paragraph, paragraph 13, the subpoena to the Trump Organization was august 1, 2019, and that when is limited solely to the cohen payments and theres no disagreement. Its on the face of the subpoena pages three and four of the Second Amendment complaint. 30 days later the subpoena goes out. Again is a possible could summon create constructive arguments that it is broader . Im sure the District Attorney can but that doesnt defeat the possibility of having not succeeded. Now, one of your theories of bad faith is that the District Attorney issued the maze are subpoena as you put it retaliation for the president s refusal to reduce his tax returns. Response to the Trump Organizations subpoena. But why is it a natural interpretation of these events at the District Attorney contested the president interpretation of the first subpoena and then issued a new one . Why is this, why is that possibly construed as retaliation . Its plausible retaliation that because that the District Attorney after that dispute sought tax returns but i will say first its concerning that he didnt simply reissue the subpoena to the parties directly which could have been over that. State, 2027370002 said he didnt want to confront the respondent directly and try to go around and, of course, that led to an entire issue of litigation that your honor is quite familiar with about who has standing to challenge subpoenas and so on and so forth. What makes it retaliatory though primarily is the scope of the subpoena. Wasnt just over dispute i depict the disputed item last tax on issue with otherwise entirely federally based subpoena from the House Oversight committee. The idea that because of the subpoena over tax returns, the District Attorney thought is appropriate to simply photocopy a congressional subpoena about hotels in washington, d. C. And businesses in indonesia and ireland is totally unacceptable and it is at least plausible pot was done in bad faith. Grand juries as you know argue in Broad Authority to do the work. And are you asking us to change the way grand juries have done their work in time immemorial just because we did it was somebody who is president of the United States . We are not, your honor. We are asking for the ordinary rules of when a subpoena challenge at least be extended to the president as he not be deprived of the basic protections that all other citizens receive. Once this case gets past what i think is frankly and overdone plausibility debate we will have a proceeding and the subpoena would be challenged, and that challenge is measured against a broad standard. We dont disagree that the president does at least have the right like any other ordinary citizen to have that process play out in an appropriate way and not to be by the District Court that he is relitigating immunity when he is not which is in independent basis for reversal and to be told his claims are implausible when they are, in fact, not implausible. One last question, if i might. Looking at the case law, subpoenas are found to be overbroad when the time period covers stretches ten, 15 years or so. Subpoena here covers not more than nine years. Why should we will definitely . Your honor, because that has to be measured against what the scope of the investigation is, and again the president has alleged plausibly that the investigation is limited to a certain payments made in a certain year, and it is quite plausible that it is overbroad based on that limited investigation to seek records for this length of time. But even if the investigation is understood to be broader than just those payments, overbreadth is not just measured on the we think it appears to suggest overbreadth here but also the Geographic Reach and as judge walker pointed out in the prior hearings on this day also the number of different entities involved. If you look up the definition of a fishing expedition, this is it. District attorney has been focused anything. He said heres caucus watch everything you have, let me have it, too, please, and thats just not how this works. George weah . Thank you, judge katzmann, and good morning, mr. Consovoy. Good morning, your honor. Im interested in further exploring what you just ended with this concept of overbreadth. It appears that we may have some power based on the horwitz decision to limit the scope of subpoena as a panel of the court of appeals under certain circumstances. Do you agree or disagree with that . Trench are not familiar with the horwitz decision so i would forget the decision. Do you probably agree if we determine there some problem, that we agree with you at some level theres a problem with the scope of subpoena that we draw some limitation . Your honor, that might be correct. If i could raise i think, the reason i havent fully explore the question is because i think theres a procedural hurdle that, why the court couldnt reach that. On the merit its possible. As this court has noted, when a case is dismissed at the pleading stage that it cant be converted to a marriage ruling before the plaintiff has been given a chance to submit a request for discovery and had that request ruled upon under rule 56. We have submitted that motion to the District Court because we saw this concern arising here that motion was denied as moot as i dont think this court is position procedures under controlling precedent to blue pencil at this stage. Potential in the marriage, yes. Setaside those procedural possible procedural rules come understand what youre saying, but again im trying to understand the real locus of your argument about overbreadth. So if you were to limit compassing we have procedural and substantive ability to do this, if we were to limit the subpoena to tax returns that are for domestic transactions between 20112016, would that be something that you could live with . I dont think so, your honor,. Why not . You just told me, you just told us that a big part of the problem with the overbreadth issue is that it ask for statements all around the world and offering a possible solution of tax returns for a limited period of time, no narrower than talk about four or five years and all domestically based. I understand, your honor. That would be far narrower, theres no question. Its our last overbroad. I dont disagree and understand where youre coming from, and, of course, which would still no no, no. Just focus on overbreadth. So the question becomes when you say domestically of course that encompasses numerous enterprises that i think are far beyond anything the District Attorney could be investigating. I which is give one an exampled they use this one because i think its the most obvious. That subpoena that was copied included i soon returns for hotels in washington which was potentially or purporting being basket for federal lease issues in washington, d. C. I just dont think it is overbroad to include is there a request for documents in this case . Lets assume that we just talk about is there a request for documents that would not be overbroad . Well, i have to know, think with you probably know, and heres why. Go back to the problem. You see the problem . I see why your concern. Id like to try to we go back to the basis for the investigation which is alleged is at the come when payments. The District Attorney served a broad cohen payments. A new event but broad in terms of encompassing that. The trump subpoena didnt litigate that. The Trump Organization begin to comply. It was at that time that the District Attorney said would also like the tax returns. There was a true to if the court which we determined the relevant than that would be one thing. But it has to be reasonably related anything thats my concern. Thats what unhesitating. Understand your offering a much more narrower hypothetical case than the one presented here, but i do think it to go back and look at the story from the perspective speedy when you say reasonably related, i thought i understand im harking back to the own days as a prosecutor with no conceivable relevance for the matters under investigation. I think if theres no conceivable relevance, then that is yes as a matter of law is invalid. I do think that were times when did we problems that fall short of that and it is crossing the line into overbreadth. But here i think the position was and remains is no conceivable relevance of the tax returns to that particular issue. But again this to of been sorted out between the Trump Organization and the District Attorneys office when these concerns were raised. Instead, the District Attorney transboundary with that continuing through that process turned around and fisa congressional subpoena and thats why we are where we are. I want to turn briefly back into some the questions that my colleagues have engaged in about plausibility standard. I saw in your brief you cited alliance, which i thank you, mr. Consovoy in which i said the possibility threshold is extremely low. But i think that subsequent decisions, particularly this last term and the stern may have overtaken us so that the plausibility standard is a little higher than what i might have announced instead was in the last. If thats true, that is, the plausibility standard is a little bit higher and, for example, as judge leval suggested, equally plausible explanation is enough to render the allegations in the complaint implausible or allegations that we can reject, then what is your argument . Assumed that is true because i think your argument rests on an exceedingly low threshold of plausibility, which i agree but i dont think it exists anymore. Your honor, if i could just clarify one passage of your question. So i dont understand any member of this court or any part or to be asserting that it start two equally plausible alternatives that simply feel. Not just under your concurrence but any decision interpreting i think the argument was that the alternative has to be so obviously the only plausible explanation that well played allegation. If you are saying if there are two equally plausible alternatives we lose, i think theres no case that supports that come not from this term, last term, or any other. But if the question is you lose you disagree with that . Yes, i do. I do. Yes, this decision and ashcroft that is law, and every circuit has so held. If there completing plausible alternatives and that happens in many, many cases, did the person run the stop sign or not . The complaint pleads the personal and the stop sign the defendant thinks there plausible reason for just and he didnt. Why we have okay. But the question, if it so obvious this one of the other, but i dont think the decision attorney can get home on that. I dont think its close. Why shouldnt we require an allegation if we do require like that, that the grand jury investigation is, was not only limited may be at the beginning of the 2016 cohen payments but is term limited and only can be limited for those payments . Your honor, we played it is a limited most specifically in paragraph 1215 of the Second Amendment complaint. The factual inference im sorry. Go ahead. The factual inference of that come again the Trump Organization subpoena was issued only one month before this subpoena was issued. The District Attorney wants to point basically i think was an internet search for every article you could find about alleged wrongdoing about the president , then it adopts what you think is why shouldnt we require as a matter of plausibility matter of reality, an allegation, specific allegation that the scope of the investigation is not only limited, but its frozen in time . I have not seen that. Because as i think we all knew, grand jury investigations, over time as more information comes in, and i think thats a natural conclusion that every grand jury investigation, particularly of this importance, will start to grow both in terms of the nature of the possible charges of the grand jury investigating, and in terms of the documents and witnesses and so on that may be of interest to the grand jury. Thats the natural presumption in the ordinary course, in my experience. And given that, why should we require a specific outreach and that this is the one grand jury investigation that is unique in that it stuck, it did not expand beyond the 2016 cohen payments . Your honor, i think that would create a problem, as a short and plain statement of case and no heightened pleading standard. That amounts to a height pleading standard that would create a sea change in the law. Its far better position than me certainly to know how grand juries work, but i would be deeply concerned if there was a presumption in the law that every investigation always expands, that the grand jury always looks for more and doesnt ever confined itself to the subject matter for which it was convened to investigate. And here i think i would encourage the court not to make this kind of change in the law through what is a rather artificial plausibility debate between the parties. Had the District Attorney answered, we wouldnt be kind of guess what is behind door number two. We would be having a donor process and we wouldnt need to think about making major legal changes because of District Attorney decide to file a motion to dismiss. One final point, mr. Consovoy and then im done. I take it that you do not agree with the presumption of validity associate with the grand jury investigation and subpoenas rather . We think its supported in the law. Its an evidentiary presumption, not a legal pleadings requirement. It does go ahead. What i dont want any relevance at all. When you look at the standard for challenging grand jury subpoenas on the merit, theres a question the presumption of validity has been infused into that as you pointed out in the terms of the test we need to meet. What it doesnt create, doesnt override it and thats really all thats in before the court right now. Thank you. I do very much, judge katzmann. Thank you very much, judge katzmann. I have a further question, judge leval. I can understand the proposition that request or documents that cover a number of years and cover operations in many places is in any way suggested of overbreadth. When one is investigating tax returns, at least in many, most circumstances, a u. S. Taxpayer is responsible for worldwide income. I mean, it could turn out especially when there are corporations involved, it could turn out to be otherwise. It could turn out that some foreign operations are not covered by a u. S. Parent or a u. S. Owners tax obligations. But when one is investigating the lawfulness impropriety of the tax returns of an individual or an organization that operates worldwide, all of the worldwide operations are pertinent to the accuracy of the tax returns. So i dont see any basis for the assumption that attacks, that a subpoena seeking the tax returns of a taxpayer is overbroad because it seeks operations and results in foreign countries. The same is true with respect to years, because theres an important linkage. Theres a strong linkage, spatial in real estate where depreciation is such an important matter, theres a very big linkage between what is reported for certain heres and what is reported for subsequent years. Someone needs to go back to prior years to look for consistency with respect to appreciation of things of that sort. The problem with the for my point of view with those propositions are they assume a factually controverted understanding of the nature of this investigation. I think with that proposition reduces tooth what the District Court held and at a time the District Attorney argues on appeal which is as follows investigation is definitively quite broad because the subpoena is quite broad. That gets everything back. You cant measure overbreadth both in time or in geographic scope, or in categories of documents until you understand what the nature of the investigation is. Though the District Attorney badly wants to resist it, the president has factual alleged, possibly so, this investigation is limited to certain issues from one year. And not about actresses, about payment and theres a dispute over the relevancy of this tax returns. Lets say what is your answer to my question if we dont accept your proposition that the grand jury was investigating only the business transactions in 2016 . But if we take it that the grand jury was investigating tax issues and we dont accept your argument as plausible that the grand jury was only investigating the payments to the women to cover up the Sexual Affairs . Your honor, it would still be overbroad. There are still entire categories of documents that can have no relevance of anything that District Attorney has any jurisdiction to investigate. He is limited to new york towns. I will use this one simply because its just the most obvious. The hotel in washington and its returns and its relationships with the federal Leasing Office have nothing to do with anything isnt he a new york taxpayer . He was then, but the law is clear and District Attorneys do not have worldwide jurisdiction over anything in new york taxpayer does or go into in the world. It is plausibly so the accuracy and the validity of the tax returns filed in new york is a subject matter of a tax investigation. And to say that, to say that a District Attorney in grand jury investigating fraud in tax returns can only look at Business Operations that were conducted on manhattan and not queens, not washington, d. C. , not indonesia, not any of the places covered by the tax returns, that seems to me to be farfetched. I respectfully disagree, your honor. I think the Supreme Court said that the cant be fishing expeditions. I dont not to distinct what your honor is referring to as anything other than fishing expedition. How is it a fishing expedition to the taxpayers tax return covers operations nationwide, worldwide, outside of Manhattan Island to investigating the accuracy of those tax returns to look for the documents that the tax returns cover . Your honor, because a District Attorney is not authorized nor is her any allegation that he is engaged even on his own terms in it worldwide audit of the president tax returns. Whether it is limited to the colon payment of whether what s about some other specific allegation, the returns would have to be relevant to that. I am not aware of any i worldwide audit and on that basis alone a grand jury can every piece of paper on every tax issue for anyone in the world that individual does business. I think that is how does come is a grand jury and the New York CountyDistrict Attorney is investigating fraud with respect to the operations f an indonesian subsidiary or indonesian operations of a new york taxpayer where those operations were covered in the tax return that was filed in new york, how do those get investigated if you say it is a not allowed to subpoena the documents that on the basis of the tax return that is filed in new york . Im sorry for interrupting. Go ahead. I think your question defines it and highlights the key point in the final iteration your honor said the new District Attorney and facing certain actions by new york company in indonesia and, therefore, it would want or need indonesian returns. But that no, its investigating the accuracy, if it is investigating fraud with respect to a tax return filed in new york via a new york taxpayer, it needs to investigate all the documents upon which net tax return will be based and theres no reason why that wouldnt include Business Operations outside the county of new york, even as far as indonesia. Right. I may have given my best answer which is the one i want to make some clear when not conceding that is what is alleged or is occurring here but even accepting the hypothetical on its own terms they would still need to be a specific investigation of certain fraud. And if the subpoena goes beyond that, even in the same category of documents they go so far beyond that, that it engages in a fishing expedition i do think that crosses the line. I think that is probably my best answer. Unless the court has for the questions, i will reserve whatever remaining time i have for rebuttal. Im sorry come have i been disconnected . Im not hearing anything. Judge katzmann, are you there . We may have lost hello . Judge katzmann . Yes. Can you hear me. Yes, we can you now. Yes. Yes. We will now hear from thank you, your honor. May it please the court. I am mr. Dunne representing near county. Whats before the court court e two gardenvariety commonlaw claims in 16 page complete. A rather routine analysis of whether the words in the complaint satisfied 12 b 6 . In that regard i like to bring us back to the simplicity of it is of course an analysis which its core focus on the four corners of the complaint and in the lack of any facts to support the inferences the court is not being asked to draw. Yes, the complaint contains a litany of other inflammatory assertion and inferences but at some of the questions have already indicated under the twombly and iqbal line of cases the court must look past that. Here if you search for the operative facts and the complaint use their only three and i proposed rancid and quickly to to show why this court need not go any further that. First, it says published reports indicate initially at our investigate was limited to the 2016 hush money payment. The complaint doesnt identify a single article that says that and a mixed to say the one article quotes from was on the point out as judge katzmann indicated the full scope of infestation was unclear. Second, the complaint says the grand jury first issued a narrow subpoena to Trump Organization prior to issuing the mazars subpoena. From this they argued the second mazars subpoena must not be overbroad but a sum the question has indicated this is a non sequitur. Thats a logical reason to assume the earlier subpoena to find the scope with investigation as opposed to the later subpoena. Third, it says that mazars subpoena doctor lankershim earlier congressional spinney. Spin. They argue the documents requested from mazars can have no conceivable relevance to the grand jury inquiry. That is a non sequitur. It doesnt support an inference that are subpoena didnt itself have distinct good goodfaith e of its own. In short the complete complainn a variety of conclusory inferences about the investigation, about politics, of our retaliation and someone, but none of the insupportable what the Supreme Court referred to as factual content. Thats why the court should uphold the dismissal under 12 b 6 . Im happy to take questions. Judge leval. So my first question is, did the District Attorney ever issue a statement to the effect, make statement to the effect that the grand juries investigation at the start was limited to the hush payments . It is a anything that could conceivably be interpreted as saying that was the scope, that was what the grand jury was investigating . No, your honor. I would say two reactions. One, of course during the initial parts of investigation including in the wake of the subpoena we of course made no statements publicly about the scope of investigation given the concerns about grand jury secrecy. But second, if your question includes during this litigation which i think is relevant because it was before the issuance of the Second Amendment complaint, yes, we have at least generically consistent with grand jury secrecy, cited in our briefs the first is from our recent merits brief at page 30 we assert the Office Investigation goes down the scope of the Trump Organization subpoena. That society october 29, 19 Second Circuit brief. Next from page 11 of her memorandum in opposition to the most recent stay application we had represented the appellant has been put a notice throughout this litigation that the grand jury investigation was not limited to the colon payments. The officers did the grand jury investigation quote potential violations of state law including issues beyond those involved in the Michael Cohen matter. To answer question can we have not a friendly described the extent and details of investigation but we have affirmatively asserted on the record consistently that its not limited to the 2016 payments. At no time, at no time does it District Attorney state that the grand jury investigation at its start was limited to those payments, or even was addressed to those payments . Correct, your honor. I note in the Second Amendment complaint theres a reference to suggest our office has admitted, quote, admitted the subpoena was not designed to meet the needs of the grand jury. Thats the complaint at paragraph five. There is no such no citation. Because its not true i cannot accept you like we are through the Looking Glass year. So the inferences drawn that that was the subject and the sole subject of the grand juries concerns is solely of the subject matter of the first subpoena obviously on its face concern itself with those payments. That use as a sole basis for the inference as to what the grand jury was intending to investigate, or the d. A. Was intending to investigate. Correct, your honor. My point is that inference is not possible on its face and, of course, as i think you indicated under the twombly and iqbal cases the court may, must use its own judicial experience of common sense and on that basis alone there is no basis whatsoever to support that inference and it should be rejected by the court. So it was suggested earlier that the grand jury investigation, like maybe grand jury investigates, might well expanded from its initial concern to a different concern. It seems to me theres no reason to even engage in the question whether it expanded, because i subpoena was issued in august seeking records that relate that obviously on the face related to the hush money payments. And a month later it issued a a subpoena which its face addresses a very different subject matter of tax returns and the document that justifies the tax returns for a large period of years. I dont see any reason to draw the inference that the investigation necessarily expanded. Its just that one startup doing one thing and then one looks at another thing, and theres no reason to assume that both were not part of investigation as initially planned. Is i couldnt put it better, putting it differently. The assertion and inference that the first subpoena must necessary define and limit the scope of investigation violates again judicial experience and common sense in a way that doesnt just winter the inference implausible. I suggest it renders the inference preposterous. Now, i was asking your adversary, mr. Consovoy, some questions a few minutes ago about the scope of the subpoena, the tax focused subpoena, and he was arguing that its a fishing expedition if the subpoena addressed to a New York County taxpayer asks for documents that relate to business conducted outside of New York County, as in washington, d. C. Or in foreign countries, or guess in queens. I asked why that should be the case when presumably a new york tax returns cover all those Business Operations that are conducted outside of New York County, what is the basis of any inference that its overbroad if it seeks the documentation that the courts business deduction, business income is derived from operations outside of New York County . Would you address that . Yes, sir honor. It comes back to the courts ability to plot its own judicial expense and common sense as i think Everybody Knows theres nothing unusual about our Office Seeking information about outofstate and foreign transactions. That Data Elements or facts in manhattan, both tax laws and otherwise, involves either tax return or providing Financial Statements to potential lenders et cetera if there are falsities that stem from ms. Stated income come for excel from some foreign business or transaction or whatever. Since newark city city is a sin of worldwide commerce theres lots of International Financial activity over which we have jurisdiction because of either a facts or activity within manhattan. Even more so as with the Trump Organization the company at the center of that activity has its headquarters in manhattan, tht happens all the time nest just a matter of experience and common sense. Am i correct in my understanding that there is no stay on the enforcement of these subpoenas, that the nonenforcement of the subpoena spends entirely voluntary on the part of the District Attorney . No, your honor, let me correct that. There were. In the past where we had consented to the state for various periods for reasons of getting rapid schedule and i can think and addressing the constitutional questions involved. The fact is in this case since the filing of the Second Amendment complaint we did not agree to and for the state because we frankly think it is not warranted given the fact the complaint does not meet the 12 piece extent and is basically achieving to labor for that reason we did not agree to a stay prior to the motion being made. That led to briefing and argument on this day question before this court on september 1 and on september 1 this court issued a stay during the pendency of this appellate question and the status that in place therefore having been opposed by the Court Extends through the period in which the court issued a decision on the argument we are having today. I dont think i agree with that. This day was a state of the dismissal of the complaint. That was not a stay on the enforcement of the subpoena. As i read it. I dont have it in front of me right now, but my understanding was that this day was the state of the dismissal of the complaint. But the existence of the complaint doesnt stop the District Attorney from enforcing the subpoenas. Am i wrong on that . I was not involved. It was my understanding when it argued that issue before this court on september 1 that is arguing in favor of denial of a state of the subpoena and that decision which was issued that afternoon i believe stayed the second which was not acted. Do you have the order in front of you . The words of the order, i looked at in the past and i got the impression, at least thats my recollection, that the stay was a stay of the District Court order of dismissal of the complaint. Thats a very different thing from staying the enforcement in the subpoenas, isnt it . You may, i do understand and am corrected that i know that you have on certain occasions agreed to stay the enforcement of the subpoena for certain times. For example, i think you agreed to stay it on september first, i guess it was, until two days after this court rules on the stay motion, which passed a few days later. But i dont think the stay order that was issued by the stay motion panel said that it was staying enforcement of the subpoenas. It was staying dismissal of the complaint, and the existence of the complaint doesnt stop the enforcement of the subpoenas. So as i understand it, unless you point to be something that makes it incorrect, as i understand it the only stay that is in effect right now on the enforcement of the subpoenas is the voluntary nondoing so of the District Attorney. Your honor, im afraid i dont have a look in front of me. It was issued as admitted entry, very brief, but if it helps i can add that one of the questions addressed in the litigation over the stay question was whether a stay was even the appropriate vehicle to prevent the enforcement of subpoena as opposed to prisoner injunction. That was one of the arguments that was i think for most in the discussions with the court. That illustrates we were talking about staying the enforcement of the subpoena and thats what i believe the court held, but we can check on that, of course. Just to be clear we have not 4 born at this point, we dont think that is an appropriate step. I have finished the questions. Thank you. In your opposition brief you make references to numerous news articles, talk about the scope of the grand jury investigation. Other than a New York Times article which the complainant still quotes, why should any of these articles matter at this stage when they are not cited or otherwise incorporated by reference. Just to explain under that line of cases, to understand the context, the inferences they are being asked to draw, whereas here, obviously that is not what you are addressing but it is important for court to know what the full report says in the New York Times article. With regard to other articles we believe it was appropriate for the court to be aware of those articles and take notice of them to see those assertions are unreasonable. The court is wellpositioned to take notice of the articles but i dont think that is necessary for purposes of affirming the District Court decision. The articles corroborate what is done in the plausibility of inferences being adjusted here. They dont need to be considered further in reaching the decision which the District Court did as well. Another question. A referential scope of the grand jury investigation to assess that. A grand jury subpoena is by design, reflects the presumption of regularity, the adversarial proceeding, to demand what the investigation is all about. And the Challenging Party to be given a frame of reference, the overbreadth can never be reviewed by a court. I say what is here is issued by a local prosecutor with no apparent connection to the company or transactions at issue. A question was raised to overcome the presumption, at that stage the appropriate vehicle. Regardless whether it is likely, to say it is implausible that any elected prosecutor might use the grand jury subpoena process for improper political process. That is nothing but speculation, if there were facts alleged that supported the notion of a political motivation here, public statements by a prosecutor, my goal is to put this company out of business or tie into electoral politics are possibilities, that will overcome the presumption and raise a question that will require further inquiry. It is not a fullblown discovery but absent those facts, sometimes prosecutors act with political motivations and that supports inquiry here. That is not how it works. Another line of questioning, the District Attorney with congressional subpoenas with the sake of efficiency rather than needs of investigation, had we not found the president stated an overbreadth claim if i understand the question, the fact that one of the reasons to adopt language in the house subpoena, the same material we were seeking, that is not inconsistent with the notion it is a good faith basis to do it and using judicial experience, something that does happen all the time, the inference that demonstrates bad faith is not plausible. The explanation we have given the court can take notice of the experience, proposed inference implausible here. The last question, the Supreme Court decision, what does that mean . The same point that goes along with the phrase particularly meticulous which the court was talking about earlier, all it means, there is no hyper Legal Standard that gets applied in a situation like this where the president is being treated as an ordinary litigant in terms of pleading purposes and Legal Standard, but all those instances talking about respect for the president or the fact that hes not ordinary, all those concepts boiled down to you have to realize this person has an important and unique job and you need to pay special attention not to interfere with this timetable or schedule so it doesnt disrupt his day job but otherwise legally he is treated as an ordinary citizen. Thank you. Just to follow up, it appears to me this was the subject of the notion argument on early september. Another way in which the court is solicitous dealing with the president of the United States, filing a motion to dismiss, is that correct . It is atypical. But here he has been permitted to bring civil litigation to challenge a grand jury subpoena which is difficult if not improper and arguably that is a higher standard or a different standard no other cities pursue but nonetheless they say it is what it is, the proceeding is converted into a motion to quash, with the presumption of regularity with the litigant. The same standard applies. Even under the 126 standard the same result would ensue the grand jury subpoena would not be caution. You hopefully refer us to common sense judicial periods which is important in any concept assessing these allegations and the possibility of those allegations, pointing to the allegations, two things, when you use the judicial experience and some people employ the judicial notice, how does that square with the possibility standards, i think we agree the standard doesnt permit a court with financial inferences that are implausible and the courts have held a higher standard. Where a competing obvious inference based on the record, competing inference is more reasonable so much so that it renders proper inference implausible. That is found to ignore the implausible one and that is the situation that answers the question. I have no further questions. Do you have any further questions . I dont. Thank you, mister dunne. We will hear from mister con v consovoy in rebuttal. I want to clear up the issue of the day. It was not intentional, in District Court on page 9 and 10, the different courts judgment, that is final. This court suspended that judgment which is why there is a stay of subpoena right now. That happens in the other cases when the Supreme Court issued states. He agreed to do what . To forebear on enforcing the subpoena after the date of the decision of this court, that decision is suspended by the issuance of the court. And briefly turned to the court. Dont understand where that leaves us. Is there in effect an agreement by the da to stay the enforcement of subpoenas . That is tied, what happened pending, the Supreme Court that is unenforceable. What does this day issued by courts stay . The District Courts subject like any other. Staying the enforcement . The issuance of that judgment. With your permission would respond briefly . I would like to add and ask parties to submit promptly within three days or four days addressing this issue, exactly addressing whether there is a stay in effect by the consent of the District Attorney or resistant to any court order that stays the enforcement so Everybody Knows what we are talking about. Whether it is a voluntary or mistaken assumption for the District Attorney. This court issues on any issue. On the merits i would note the District Attorney has not attempted to send the district course a confusion of immunity and these new claims on rehab. This is an error that takes it below. If the court already decided and dismissed it is preordained that error infected the entire analysis and should be correct. Discussion of my friends, highlights what to do to rewrite all of this, before and after. It could be broader and whether it is broader Everybody Knows the stand, we told you elsewhere about the complaints, the press reports, not inconsistent with, these are not the worst allocations. With the District Attorney is inviting the court to do, most of which come from outside the record over allegations of the complaint. Judicial experience and common sense, dont make the president s claims implausible. It is plausible the only subject of the partisan investigation is focused. Summary judgment, the District Attorney has an opportunity to litigate the fact that this stage and the idea a subpoena like this from the House Oversight committee from the office of a local prosecutor that happens all the time is remarkable. Do you actually allege improper political motivation . We do allege it. We thought focused on appeal. We allege motivation done for at least efficiency reasons. Being civil about that but other than efficiency some other improper motivation . We allege that it was done i dont want to hop on the word political but we have alleged in retaliation for the Trump Organizations unwillingness to produce the tax return this. Is you point out, political in the context of any case. There are concerns about getting to the fever pitch, interest in getting tax returns as we point out but very difficult to please. At the lowest end was required because it is intensive. Once the case past the pleading stage issues of motive will be litigated but at the minimum retaliation reasons, not a basis to engage efficiency. Just so i understand with respect to your ultimate position the extremely limited scope you allege of the investigation. Your view is the investigation limited to the 2016 there was no other investigation at the time of statements made that you rely on and that is not correct. Those payments of not expanded and as pointed out, that is represented in the complaint and the District Attorney tries to walk away from that by saying it is unclear whether you can rely on statements in the article in the context of motion to dismiss. We cite portions of the article. That was entirely appropriate. We are talking about complaints. If i might briefly elaborate in other parts of the article. Thank you, well argued. Before we end i would like to ask if judge katzman will direct the parties for the presiding judge finds appropriate but should be very soon to give us a brief letter setting forth the question whether there is anything in effect right now that stays the enforcement of a subpoena whether the District Attorney stated on the record or whether it is order of the court so there can be clarity, the nonenforcement of the subpoena Going Forward is voluntary on the part of the District Attorney or is pursuant to the prior agreement or an order of the court. I so direct and i think tuesday at noon should be plenty of time. For your office. It should be accompanied for the exact text of statements or orders for which they are argued. Thank you all for your arguments. The court will reserve a decision, the other cases on the calendar are on submission, the clerk will adjourn. Court stands adjourned. You are watching cspan2, your unfiltered view of government created by americas Cable TelevisionCompany Brought to you by your television provider. Donald trump speaks in atlanta about his plan to boost Economic Opportunities for black americans, live coverage begins at 1 30 eastern on cspan2. Watch booktv coverage of the National Book festival this weekend, this Virtual Event hosted by library of congress features online author discussion for us live call in segments at 7 00 pm eastern, author gail collins with her book no stopping us now. Since the 1970s, since the transformation of the economic role of women in america. She joins us for live discussion taking your phone calls. At 8 00 pm historian john meacham with his book his truth is marching on. Man born in 1940 who repeatedly in the American South 50 and 60 years ago acted in the tradition of an early christian saint. Followed by a live call in the segment that takes your questions. Sunday at 7 00 pm eastern, cosmos. 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