Donald J. Trump v. Deutsche Bank AG, 943 F.3d 627

19-1540-cv

Donald J. Trump v. Deutsche Bank AG

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term

Argued: August Decided: December Docket No. ‐ cv

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐

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, DEUTSCHE BANK AG, CAPITAL ONE FINANCIAL CORPORATION,

Defendants  ‐  Appellees, COMMITTEE ON FINANCIAL SERVICES OF THE UNITED STATES HOUSE OF REPRESENTATIVES, PERMANENT SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES HOUSE

OF REPRESENTATIVES,

Intervenor Defendants  ‐  Appellees. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐

Before: NEWMAN, HALL, LIVINGSTON, Circuit Judges

Expedited interlocutory appeal May order District for Southern District New York (Edgardo Ramos, District Judge) denying Plaintiffs ‐ Appellants’ motion for preliminary injunction prevent Defendants ‐ Appellees’ compliance with issued them Intervenor Defendants Appellees denying Plaintiffs ‐ Appellants’ motion stay pending appeal.

Affirmed substantial part remanded part. Judge Livingston concurs part dissents part separate opinion.

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, brief ), 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, House Representatives, Washington, D.C. (Todd B. Tatelman, Dep. General Counsel, Megan Barbero, Josephine Morse, Assoc. General Counsel, Office General Counsel, U.S. House Representatives, Washington, D.C., on brief ), for Intervenor Defendants ‐ Appellees Committee on Financial Services Permanent Select Committee Intelligence United States House Representatives.

Parvin D. Moyne, Akin Gump Strauss Hauer & Feld LLP, New York, NY (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, NY (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, Dept. Justice, Washington, D.C., amicus curiae United States America.) (Brianne J. Gorod, Elizabeth B. Wydra, Brian R. Frazelle, Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., amicus curiae Constitutional Accountability Center, support Intervenor Defendants ‐

Appellees.)

JON O. NEWMAN, Circuit Judge:

This appeal raises important issue concerning investigative authority of two committees of United States House of Representatives and protection privacy due President United States suing his individual, official, capacity respect financial records. The specific issue lawfulness three subpoenas issued by House Committee on Financial Services House Permanent Select Committee on Intelligence (collectively, “Committees” or “Intervenors”) two banks, Deutsche Bank AG Capital One Financial Corporation (“Capital One”) (collectively, “Banks”). The issued by each Committees Deutsche Bank (“Deutsche Bank Subpoenas”) seek identical records President Donald J. Trump (“Lead Plaintiff”), members his family, The Trump Organization, Inc. (“Trump Organization”), several affiliated entities (collectively, “Plaintiffs” or “Appellants”). The subpoena issued by Committee Financial Services Capital One (“Capital One Subpoena”) seeks records Trump Organization several affiliated entities. Capital One Subpoena does list Lead Plaintiff or members his family name, but might seek their records event they principal, director, shareholder, officer listed entities. issue the lawfulness of the three subpoenas arises expedited

interlocutory appeal from the May 2019, Order the District for the Southern District New York (Edgardo Ramos, District Judge) (“Order”) denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas denying Plaintiffs’ motion for a stay pending appeal.

We affirm the Order substantial part the extent it denied a preliminary injunction order prompt compliance with subpoenas, except case remanded limited extent for implementation procedure set forth this opinion concerning nondisclosure sensitive personal information limited opportunity Appellants object disclosure other specific documents within coverage those paragraphs Deutsche Bank Subpoenas listed opinion. We dismiss moot appeal Order extent denied stay pending appeal because Committees agreed require compliance pending appeal, once appeal was expedited.

In her partial dissent, Judge Livingston prefers total remand case “creation record sufficient more closely examine serious questions Plaintiffs raised,” Part Diss. Op. ‒ “afford parties opportunity negotiate,” id . 11. We discuss pages ‒ of this opinion only why remand not warranted but why would run counter instruction Supreme given courts considering attempts Judicial Branch interfere with lawful exercise congressional authority Legislative Branch.

Background The subpoenas . The case concerns three subpoenas issued by committees United States House Representatives. On April year, Committee on Financial Services Permanent Select Committee on Intelligence each issued identical subpoenas Deutsche Bank, seeking broad range financial records Donald J. Trump, members his family, affiliated entities. On same date, Committee on Financial Services issued subpoena narrower scope Capital One Financial Corporation. We detail scope subpoenas Part II(C).

Litigation procedure On April Donald J. Trump, his three oldest children, Trump Organization, six entities affiliated either Lead Plaintiff the Trump Organization ^[2] filed a complaint the District Court seeking a declaratory judgment the subpoenas are invalid and an injunction “quashing” and enjoining compliance with them. ^[3] On May 3, Plaintiffs filed motion for a preliminary injunction, ^[4] and District Court granted Committees’ joint motion intervene. ^[5] Plaintiffs Committees then agreed an expedited briefing schedule for motion for preliminary injunction. ^[6] Deutsche Bank notified District Court it took no position on Plaintiffs’ request for limited expedited discovery, ^[7] Capital One notified District Court took no position on Plaintiffs’ request an order requiring Committees provide Plaintiffs copies subpoenas. ^[8]

On May 22, District held hearing Plaintiffs’ motion preliminary injunction denied it, reading into record an extensive opinion. ^[9] On May 24, Plaintiffs filed notice interlocutory appeal. On May 25, the parties submitted joint motion to stay proceedings the District Court pending the appeal, ^[10] which the District Court granted on May 28. ^[11]

On May 25, the parties jointly moved this for expedited appeal, ^[12] which was granted on May ^[13] Thereafter, the Banks informed us they take no position with respect to the appeal. ^[14] Nevertheless, we requested counsel the Banks to attend the oral argument to available to respond to any questions the panel might have. ^[15] We requested the Committees provide unredacted copies the Deutsche Bank subpoenas, received under seal. We inquired the United States Solicitor General whether the United States would like submit view the issues raised on appeal. ^[16] On August 19, United States submitted brief amicus curiae, urging reversal the District Court’s order denying a preliminary injunction, ^[17] Committees Appellants responded on August ^[18] On August 23, heard oral argument. oral argument precipitated letters from parties this concerning tax returns sought pursuant subpoenas. These letters subsequent procedural developments discussed Part II(B).

Discussion We emphasize outset issues raised litigation do concern dispute between Legislative Executive Branches. As a dispute, occurs where Justice Department, suing behalf United States, seeks injunction prevent third party responding congressional committee’s subpoena seeking documents department agency Executive Branch, see , e.g. , United States v. AT&T , 567 F.2d 121, 122 (D.C. Cir. 1977) (“ AT&T II ”), Judicial Branch proceeds caution, see id . 123 (seeking “avoid resolution might disturb balance power between two branches”) , sometimes encountering issues justiciability advance merits, see United States AT&T 384, (D.C. Cir. 1976) (“ AT&T I”) Although challenged seek financial records person who President, no documents are sought reflecting any actions taken by Donald J. Trump acting in his official capacity as President. Indeed, Complaint explicitly states “President Trump brings this suit solely in his capacity as private citizen.” Complaint ¶ Appellants underscore this point declining in this Court assert as barriers to compliance any privilege might be available President his official capacity, executive privilege. See Franchise Tax Board v. Hyatt , 139 S. Ct. 1499 (2019) (citing United States v. Nixon U.S. ‒ 06 (1974)). protection sought protection compelled disclosure alleged be beyond constitutional authority Committees, protection that, if validly asserted, would available private individual. Barenblatt v. United States U.S. (1959); Watkins United States (1957). For this reason, remainder this opinion we will refer President Trump “Lead Plaintiff”; formal title “President Trump” might mislead some think his official records sought, locution “Mr. Trump,” sometimes used litigation, might seem some disrespectful.

Also outset, note there no dispute Plaintiffs had standing District challenge lawfulness Committees’ seeking injunctive relief against Banks custodians documents. United States Servicemen’s Fund v. Eastland , 488 F.2d 1252, 1260 (D.C. Cir. 1973) (“[T]he plaintiffs have no alternative means vindicate their rights.”) (italics omitted), rev’d on other grounds without questioning plaintiffs’ standing , 421 U.S. 491 (1975).

We review denial preliminary injunction abuse discretion, see , e.g., Ragbir v. Homan 53, (2d Cir. 2019), but our review appropriately more exacting where action sought enjoined concerns President, even though he suing his individual, official, capacity, view “‘[t]he high respect owed office Chief Executive’” “‘should inform conduct [an] entire proceeding,’” Cheney v. United States District U.S. (2004) (first brackets original) (quoting Clinton Jones (1997)).

I. Preliminary Injunction Standard

In Circuit, repeatedly said district courts may grant preliminary injunction where plaintiff demonstrates irreparable harm meets either two standards: “(a) likelihood success merits, (b) sufficiently serious questions going merits make them fair ground litigation, a balance of hardships tipping decidedly in the movant’s favor.” ^[19] Kelly v. Honeywell International, Inc. , 933 F.3d 173, 184 (2d Cir. 2019) (quotation marks deleted); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. , 596 F.2d 70, 72 (2d Cir. 1979). The Committees contend that the likelihood ‐ ‐ success standard applies; Appellants contend that the serious ‐ questions standard applies. ^[20]

With respect irreparable harm, factor required under either standard, Appellants contend that compliance the will cause them its claims make them fair ground for litigation.” Id . at 580. Plaza Health Laboratories added the phrase “of its claims,” thereby creating the grammatical query considered in this footnote. Plaza Health Laboratories cited only Sperry International Trade, Inc. v. Government Israel , 670 F.2d 8 (2d Cir. 1982), and Jackson Dairy , but both those opinions had used the traditional formulation without the phrase “of claims.” See Sperry International Trade , 670 F. 2d at 110; Jackson Dairy , 598 F.2d at 11. A Westlaw search reveals that the Plaza Health Laboratories formulation has been used by this Court just fifteen times, the Jackson Dairy formulation has been used 226 times.

In view the evolution of, this Court’s clear preference for, the Jackson Dairy formulation, will use it in this opinion, thereby avoiding the grammatical query posed by the Plaza Health Laboratories formulation. We will also use the article “a” before “fair ground for litigation,” which Plaza Health Laboratories some the opinions citing omitted, but which is always included in the opinions using the Jackson Dairy formulation.

[20] In their reply brief, Appellants contend that “the Committees conceded [in the District Court] that the serious ‐ questions standard applies.” Reply Br. for Appellants They cite footnote 28 Committees’ memorandum opposition the motion preliminary injunction. We normally do not consider issue raised first time reply brief. McBride v. BIC Consumer Products Manufacturing Co. , 583 F.3d 92, 96 (2d Cir. 2009). In any event, Appellants’ claim is without merit. Committees’ footnote states, “To extent there is meaningful distinction

between Winter [ v. Natural Resources Defense Council, Inc. 555 7, 20 (2008)] standard ‘serious questions’ formulation, that has been used Second Circuit post ‐ Winter cases, see Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd. 598 F.3d 30, ‒ (2d Cir. 2010), need not consider that nuance here because Mr. Trump failed meet heavy burden required under either standard.” Dist. Ct. Dkt. No. 51, n.28 (citation omitted) (May 2019). Stating Lead Plaintiff had met either likelihood ‐ success standard serious ‐ questions standard concession lesser standard applies. Moreover, sentence text footnote appended, Committees explicitly contend higher standard applies, stating obtain preliminary injunction “a plaintiff ‘must establish he likely succeed merits.’” Id (quoting New York Progress & Protection PAC Walsh (2d Cir. 2003)).

harm. In the District Court, the Committees took the position that whether compliance would cause Appellants irreparable harm would depend on whether the Committees would make public the documents obtained. ^[21] The District Court ruled that compliance would cause irreparable harm because “plaintiffs have interest keeping their records private from everyone, including congresspersons,” “the committees have not committed one way or other to keeping plaintiffs’ records confidential public once received.” J. App’x 122 ‒ 23. We agree.

The issue therefore becomes whether Appellants seeking preliminary injunction had meet (1) more rigorous standard of likelihood of success on merits (2) less rigorous standard sufficiently serious questions going merits make them fair ground litigation plus balance hardships tipping decidedly their favor. ^[22]

With slightly different formulations, we have repeatedly stated serious ‐ questions standard cannot be used preliminarily enjoin governmental action. Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989) (applying more rigorous likelihood ‐ ‐ success standard affirming denial preliminary injunction against “governmental action taken public interest pursuant statutory or regulatory scheme”); Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980) (same, with respect “governmental action public interest”); Medical Society State New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977) (same, where “interim relief [enjoining governmental action] may adversely affect public interest”); see Able v. United States , 44 F.3d 128, 131 (2d Cir. 1995) (“As long action enjoined taken pursuant statutory regulatory scheme, even government action respect one litigant requires application ‘likelihood success’ standard.”).

Nevertheless, two decisions, affirmed preliminary injunctions against government action issued using less rigorous serious questions standard “more rigorous”); Red Earth LLC v. United States F.3d 138, (2d Cir. 2011) (same); Metropolitan Taxicab Board Trade v. City New York F.3d (2d Cir. 2010) (same); County Nassau Leavitt (2d Cir. 2008) (same).

standard. See Haitian Centers Council, Inc. v. McNary , 969 F.2d 1326, 1342 (2d Cir. 1992) (officials Immigration Naturalization Service enjoined), judgment vacated moot sub nom. Sale v. Haitian Centers Council, Inc. , 509 918 (1993); Mitchell v. Cuomo , 748 F.2d 804, 806 ‒ 08 (2d Cir. 1984) (state prison officials enjoined). We sometimes affirmed decisions issued or denied preliminary injunctions against government action using both standards. Hudson River Sloop Clearwater, Inc. v. Dep’t Navy 836 F.2d 760, 763 (2d Cir. 1988) (preliminary injunction denied under both standards); Patton v. Dole 806 F.2d 28 ‒ 30 (2d Cir. 1986) (preliminary injunction granted under both standards); Patchogue Nursing Center Bowen F.2d 1141 ‒ 42 (2d Cir. 1986) (preliminary injunction denied under both standards).

Haitian Centers noted “the ‘likelihood success’ prong need always be followed merely because movant seeks enjoin government action.” F.2d (emphasis added). Then, building on statement Plaza Health Laboratories less rigorous standard may used enjoin “governmental action taken public interest pursuant statutory regulatory scheme,” F.2d (emphasis added), Haitian Centers noted “no party exclusive claim public interest,” That point influenced our later decision Time Warner Cable New York City L.P. Bloomberg L.P. F.3d (2d Cir. 1997), where, noting that “there are public interest concerns on both sides” litigation, id . 923, we said that the serious ‐ questions standard “would be applicable,” id. even though we ultimately decided case under likelihood ‐ ‐ success standard, see id.

In Able noted that government action exception use serious ‐ questions standard “reflects idea governmental policies implemented through legislation regulations developed through presumptively reasoned democratic processes entitled higher degree deference should enjoined lightly,” likelihood ‐ ‐ success standard was appropriate case “where full play democratic process involving both executive branches produced policy name public interest embodied statute implementing regulations,” id . We pointed out Haitian Centers had approved use serious ‐ questions standard challenge action taken pursuant “policy formulated solely executive branch.” Id Based these statements, Appellants contend only serious questions standard applies to challenge action “taken pursuant to a policy formulated by one branch.” Reply Br. Appellants (quotation marks brackets omitted).

We think argument fails by endeavoring to make a requirement out of sentences we have quoted from Able The fact legislation developed by both branches of federal government entitled higher degree of deference does mean only action entitled deference reflected likelihood ‐ ‐ success standard. Supreme said high degree deference should be accorded actions taken solely by Congress, see United States v. Rumely U.S. (1953) (admonishing courts “tread warily” “[w]henever constitutional limits upon investigative power Congress have drawn”), we have often approved application more rigorous likelihood ‐ ‐ success standard enjoin action taken units government far less authority than combined force national Legislative Executive Branches. For example, ruled more rigorous likelihood ‐ success standard was applicable when preliminary injunction was sought prohibit municipal agency from enforcing regulation, see Central Rabbinical Congress Canada New York City Dep’t Health & Mental Hygiene (2d Cir. 2014); prohibit New York City’s Taxi & Limousine Commission enforcing changes lease rates, Metropolitan Taxicab Board of Trade v. City of New York , 615 F.3d 152, 156 (2d Cir. 2010); require one branch of state legislature undo expulsion state senator, see Monserrate v. New York State Senate , 599 F.3d 148, 154 (2d Cir. 2010); prohibit town from hiring police officers firefighters, see NAACP v. Town East Haven , 70 F.3d 219, 223 (2d Cir. 1995); prohibit Metropolitan Transit Authority from implementing staff reduction plan, see Molloy v. Metropolitan Transportation Authority , F.3d 808, (2d Cir. 1996); prohibit New York City Transit Authority from increasing subway bus fares, see New York Urban League, Inc v. State New York , F.3d n.7 (2d Cir. 1995); prohibit New York State’s Department Social Services from suspending health ‒ care services provider from participating State’s medical assistance program, see Plaza Health Laboratories , F.2d prohibit two commissioners New York state agencies enforcing provisions state law, see Medical Society 538.

In dissent, Judge Livingston questions significance decisions these two grounds. First, she suggests some them lacked sufficient analysis. Part. Diss. Op. However, exceptions relevant here, panels bound holdings prior panels, see e.g. Lotes Co. Hon Hal Precision Industry Co. F.3d 395, (2d Cir. 2014); Gelman Ashcroft F.3d 495, (2d Cir. 2004), those holdings not be disregarded by claimed insufficiency of opinion’s analysis. Second, she suggests we might have used more rigorous likelihood ‐ ‐ success standard these cases because federalism concerns. Part. Diss. Op. n.28. However, none eight decisions even hints federalism concerns influenced use likelihood ‐ ‐ success standard.

We previously had occasion consider whether enforcement congressional committee’s subpoena qualifies as, or sufficiently analogous to, “governmental action taken public interest pursuant statutory regulatory scheme,” Plaza Health Laboratories so preclude application less rigorous serious ‐ questions standard. Facing issue, we conclude those seeking preliminarily enjoin compliance issued congressional committees exercising, we conclude Part II(C), their constitutional duly authorized power subpoena documents aid both regulatory oversight consideration potential legislation must satisfy more rigorous likelihood ‐ success standard. Surely committees should enjoined accomplishing their tasks under less rigorous standard than applied plaintiffs seeking preliminarily enjoin state local units of government in Central Rabbinical Congress , Metropolitan Taxicab Board of Trade , Monserrate , Town East Haven , Molloy , New York Urban League , Plaza Health Medical Society discussed above. None those cases involved implementation policy ʺ developed through presumptively reasoned democratic processes ʺ  resulting   ʺ full play democratic process involving both executive branches, ʺ  were elements present in Able Yet in all eight cases, we applied likelihood ‐ ‐ success standard. Indeed, in Monserrate we applied more rigorous standard plaintiff seeking preliminarily enjoin action taken by just one body state legislature. We will therefore apply likelihood ‐ success standard Appellants’ motion preliminary injunction in case.

Before leaving issue applicable preliminary injunction standard, should reckon preliminary injunction standard formulated Supreme Winter Natural Resources Defense Council, Inc. (2008): “A plaintiff seeking preliminary injunction must establish he likely succeed merits, he likely suffer irreparable harm absence preliminary relief, balance equities tips his favor, injunction in the public interest.” Id. This formulation incorporates both irreparable injury requirement the likelihood ‐ ‐ success requirement from more rigorous standard been using, includes our less rigorous serious ‐ questions standard balance equities (similar hardships) tips in favor plaintiff (although including requirement sufficiently serious questions going merits make them fair ground litigation nor requirement balance hardships tips decidedly plaintiff’s favor), adds fourth requirement injunction public interest.

It clear whether Supreme intended courts require these four components Winter standard all preliminary injunction cases. Winter concerned military operations affecting national security, testing submarine detection, two three cases cited support Winter formulation concerned national security issues, Munaf v. Geren U.S. (2008) (transferring U.S. military prisoners foreign country country’s government), Weinberger v. Romero Barcelo (1982) (training Navy’s bomber pilots). third case, Amoco Production Co. Village Gambell 480 U.S. 531 (1987), concerned a matter unrelated to national security ‒‒ drilling for oil and natural gas. ^[23]

In event, two years after the Supreme Court’s decision in Winter , our Court explained why we did not believe that the Supreme Court had precluded our use the two preliminary injunction standards that had used for five decades. Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd. , 598 35–38 (2d Cir. 2010). However, Citigroup shed no light on which those standards was applicable plaintiffs seeking preliminarily enjoin governmental action. That case involved a motion a brokerage firm preliminarily enjoin hedge fund pursuing an arbitration. S ee id . at Although we have concluded likelihood ‐ of ‐ success standard applies in case have determined Appellants have established irreparable injury, requirement common to both our preliminary injunction standards Supreme Court’s Winter formulation, we will proceed consider only whether Appellants have met governing likelihood ‐ success standard but whether they satisfied other requirements one or more these three standards: sufficiently serious questions going merits their claims make them fair ground litigation, balance hardships tipping decidedly their favor, public interest favoring injunction. We turn first merits their statutory constitutional claims order determine what regard critical issue: likelihood success. II. Likelihood Success

A. Statutory Claim––RFPA Appellants contend invalid failure Committees comply with Right Financial Privacy Act (“RFPA” “Act”), U.S.C. §§ ‒ RFPA prohibits financial institution’s disclosure customer’s financial records “any Government authority” except accordance Act’s procedural requirements. § 3403(a). Committees acknowledge noncompliance with those requirements, but contend RFPA does not apply them because they “Government authority” within the meaning of section 3403(a). Because Act defines “Government authority” mean “any agency or department of United States, or any officer, employee, or agent thereof,” § 3401(3), precise statutory issue is whether Congress or one committees is “agency or department United States.”

We begin plain meaning “agency or department” time RFPA was enacted Appellants do argue “agency” could possibly refer Congress; sole dispute over word “department.” Appellants contend “department” used RFPA mean three branches government. Committees, other hand, contend word used mean some component Executive Branch.

Contemporary dictionaries support Committees’ interpretation. Webster’s Third New International Dictionary (1971) (defining “department” “an administrative division branch national or municipal government”) (emphasis added); Black’s Law Dictionary (5th ed. 1979) (defining “department” “[o]ne major administrative divisions executive branch government usually headed by an officer of cabinet rank; e.g. Department of State”) (emphasis added).

Moreover, other contextual clues RFPA indicate neither Congress nor its committees are an “agency or department of United States” within meaning RFPA, therefore Congress did not subject itself or its committees Act. Section permits “Government authority” request financial records “pursuant formal written request only if . . . request authorized regulations promulgated by head agency or department.” § 3408(2). Congress does promulgate regulations, leadership its committees considered “head” “agency department.” Supreme stated “[t]he term ‘head Department’ means . . Secretary charge great division [E]xecutive [B]ranch government, like State, Treasury, War, who member Cabinet.” Burnap United States U.S. (1920); accord Freytag v. Commissioner Internal Revenue (1991). several mechanisms for obtaining financial records all require

records sought are “relevant legitimate law enforcement inquiry,” ^[24] § 3405(1) (administrative summons or subpoena), § 3407(1) (judicial subpoena), § 3408(3) (formal written request), but, Appellants correctly point out Committees agree, Congress cannot exercise “any powers law enforcement” because “those powers assigned under our Constitution Executive Judiciary,” Quinn v. United States (1955).

RFPA directs Office Personnel Management (“OPM”) determine whether “disciplinary action is warranted against [an] agent or employee” “any agency or department” found have willfully violated Act. § 3417(b). However, OPM “the lead personnel agency civilian employees [E]xecutive [B]ranch.” United States Dep’t Air Force Federal Labor Relations Authority (D.C. Cir. 1991). It highly unlikely Congress would directed OPM take disciplinary action against congressional staff.

RFPA provides civil penalties, including punitive damages, any “agency or department” violates Act’s requirements. § 3417(a). It highly unlikely Congress would have subjected itself to penalties, especially the absence of clear indication of intent do so.

Although no one of these provisions alone conclusively establishes RFPA does not apply Congress, the aggregate they provide persuasive textual support reading of the Act. This conclusion strongly reinforced by the Act’s history. A draft bill submitted by the Departments of Justice and the Treasury would explicitly covered access financial records by Congress, distinguished Congress “any agency or department of the United States.” ^[25]

The rejection of provision of the Justice ‐ Treasury proposal by omitting Congress from the enacted definition of “government authority” is strong evidence of a deliberate decision by Congress apply Act itself. Although failure of Congress enact is often an unreliable indication of congressional intent, see Brecht Abrahamson 507 619, 632 (1993) (“As a general matter, are reluctant draw inferences from Congress’ failure act.”) (quotation marks omitted), omission of pertinent language from bill being considered by Congress far more probative such intent, especially when omission from draft bill submitted by Department Justice, principal source proposed legislation.

Hearings (emphasis added) (explaining definitional provision).

As explained by then ‐ Deputy Attorney General Benjamin R. Civiletti, “[O]ur proposal would extend these important procedures privacy rights cover investigations by Legislative well Executive Branch.” Hearings 194.

Hearings also includes analysis prepared by Congressional Research Service Library Congress, comparing what called “Draft Proposed by Justice Dept.” with S. S. Hearings 161. That analysis points out scope Justice Department draft protects financial records from unauthorized access “by Congress, Federal or State agents agencies,” whereas S. S. protect records unauthorized access “by Federal agents agencies.” Id draft Justice Treasury bill, along section ‐ by ‐ section analysis, record hearing held House Representatives subcommittee following

week, where Civiletti gave similar testimony. Right Privacy Proposals Privacy Protection Study Commission: Hearings on H.R. Before Subcomm. on Government Information & Individual Rights H. Comm. Government Operations 95th Cong. (1978).

Appellants present two arguments that Congress and its committees covered by RFPA’s definitional phrase “agency department.” First, they point out that in 1955 Supreme Court ruled false statement made former member Congress Disbursing Office House of Representatives was violation 18 U.S.C. § 1001 because “department,” used in section 1001, “was meant describe executive, and judicial branches Government.” United States v. Bramblett 348 U.S. 503, 509 (1955) (emphasis added). Committees respond that an interpretation “department” in section 1001 authoritative basis interpreting “department” in RFPA and Supreme overruled Bramblett Hubbard v. United States 514 U.S. 695, 715 (1995), after characterizing reading “department” “seriously flawed,” id . 702. To latter point, Appellants point out courts “assume Congress aware existing law when it passes legislation,” Miles v. Apex Marine Corp ., (1990), “was aware . . judicial background against was legislating,” DeKalb County Pension Fund Transocean Ltd ., ‒ (2d Cir. 2016) (“ DeKalb ”) (brackets quotation marks omitted), Congress enacted RFPA assumed aware Bramblett obviously did legislate light Hubbard decided

We acknowledge the assumption Congress legislates awareness “existing law,” Miles , 498 U.S. 32, the relevant “judicial background,” DeKalb F.3d 409. validity assumption, however, depends large part on the context which it invoked. Miles applied the assumption interpreting the damages provision the Jones Act, U.S.C. app. § 688. Noting Jones Act incorporated recovery provisions the older Federal Employers’ Liability Act (“FELA”), Supreme Court was willing assume Congress likely intended adopt Jones Act judicial gloss had placed on damages provision FELA, limiting pecuniary loss. Miles “When Congress passed Jones Act, [Court’s] gloss on FELA, hoary tradition behind it, were well established. Incorporating FELA unaltered into Jones Act, Congress must intended incorporate pecuniary limitation damages well.” Id

DeKalb applied assumption more elaborately determining statute repose applied suit under section 14(a) Securities Exchange Act U.S.C. § 78n(a). We had previously applied three ‐ year limitations period Ceres Partners GEL Associates (2d Cir. 1990). Thereafter, Congress enacted Sarbanes Oxley Act extending five years limitations period some implied private causes of action, but not the sort of action implied by section 14(a). DeKalb 817 at 398. We concluded:

Congress must have known that, by extending only the statute of repose applicable to private rights of action that involve claim of fraud, deceit, manipulation, or contrivance, the statutes repose applicable to Section 14(a) would remain intact. And from knowledge, we conclude that Congress affirmatively intended to preserve them. We therefore hold that the same three year statutes repose that we applied to Section 14 in Ceres . . . still apply to Section 14(a) today.

Id ‒ 10 (quotation marks, brackets, and footnotes omitted).

We encounter no circumstances comparable Miles DeKalb pending appeal. Whatever force might given assumption that Congress enacted RFPA awareness Bramblett is thoroughly undermined clear indicators contrary text history recounted. second argument Appellants reminds us that earlier time, word “department” was famously used refer what now called “branch” federal government. “It emphatically province duty judicial department say what law is.” Marbury Madison U.S. (1 Cranch) (1803) (Little, Brown & Co. 1855); ^[27] see also James Madison, Speech in First Congress (June 1789), in 5 The Writings of James Madison 395, 398 (Gaillard Hunt ed., 1904) (referring to “three great departments of Government”). Hubbard although not known to Congress enacting RFPA, provides important guidance for us when Supreme Court states that “while we occasionally spoken of three branches of our Government, including Judiciary, ‘departments,’” Hubbard 514 at 699 (brackets omitted) (citing Mississippi Johnson, 71 U.S. (4 Wall.) (1867)), “that locution not an ordinary one. Far more common use ‘department’ to refer to component of Executive Branch,” id

Considering all parties’ arguments, conclude that RFPA does apply Congress.

B. Statutory Claim––26 U.S.C. § 6103

The request for tax returns named individuals and entities in the Deutsche Bank Subpoenas encounters possible statutory claim under 26 U.S.C. § 6103. Deutsche Bank Subpoenas ¶ 1(vi)(e)(7), J. App’x 39. Because request because the parties had not said anything about tax returns in their briefs, we asked the Banks at oral argument whether they had in their possession tax returns within the coverage the subpoenas. The Banks offered reasons why they could not then respond question.

On August 26, we ordered Banks inform whether either one its possession any tax returns individuals or entities named in paragraph received from Committees. ^[29] On August 27, Each side makes opposing arguments based on section 3413(j) RFPA, provides: “This chapter shall apply when financial records are sought Government Accountability Office [‘GAO’] pursuant an authorized proceeding, investigation, examination or audit directed at government authority.” Appellants contend that, because GAO within Legislative Branch, “if . . RFPA limited [E]xecutive [B]ranch, then there was no need provide exemption for GAO.” Br. for Appellants Committees respond provision “differentiates GAO ‘a government authority’ thus supports opposite conclusion: GAO may obtain financial records proceedings investigations ‘ directed government authority.’” Br. Committees n.24 (emphasis original).

We deem none these arguments persuasive, especially light textual history support our conclusion, explained above, RFPA does apply Congress. No. ‒ Dkt. No. (Aug. 26, 2019). On August 27, entered an Order informing Banks if they filed unredacted letter under seal, redacted version letter served Committees should served on Appellants filed on public docket. Id. Dkt. No. (Aug. 2019).

Deutsche Bank submitted redacted letter stating it possession some tax returns responsive to subpoenas, with names taxpayers redacted, ^[30] submitted under seal an unredacted letter identifying taxpayers. ^[31] On same day, Capital One submitted letter stating it did possess tax returns responsive to subpoena received. ^[32]

Deutsche Bank’s filing unredacted letter under seal precipitated motions various news organizations for leave intervene seek unsealing unredacted letter. ^[33] On Sept. 18, we ordered parties respond those motions. ^[34] On Sept. 27, parties filed their responses. ^[35] On Oct. 4, Media Coalition filed reply memorandum. ^[36] On Oct. 10, we granted motions intervene denied motions unseal. See Trump Deutsche Bank , No. 19 ‒ 1540, 2019 WL 5075948 (2d Cir. Oct. 10, 2019).

Also oral argument, asked Committees whether their were compliance 26 U.S.C. § 6103(f), imposes some limits disclosure of tax returns. Committees partially responded and offered to submit a fuller explanation by letter. On August 27, the Committees submitted a letter stating application of section 6103 depends how Banks obtained returns. ^[37] On August 29, Appellants submitted a letter stating, among other things, Committees no authority request tax returns. ^[38]

Section 6103(a) of Internal Revenue Code provides: “ (a) General rule. — Returns return information shall be confidential . . . .” Sections 6103(c) ‒ (o) provide several exceptions general requirement of confidentiality. Subsection 6103(f)(3) makes specific exception for committees Congress. It provides:

“ (3) Other committees. —Pursuant action by, upon written request by chairman of, committee Senate or House Representatives (other than committee specified paragraph (1)) specially authorized inspect any return or return information resolution Senate or House Representatives . . Secretary shall furnish such committee, or duly authorized designated subcommittee thereof, sitting closed executive session, return or return information which resolution authorizes committee or subcommittee inspect. Any resolution described paragraph shall specify purpose return return information furnished such information cannot reasonably be obtained from other source.” U.S.C. § 6103(f)(3). ^[39]

Thus, Congress has protected confidentiality income tax returns, subject several exceptions, specified how returns may be obtained committee Congress.

Appellants contend disclosure prohibited (or, they phrase it, Committees “have no jurisdiction request tax returns” ) because requirements subsection not been met. They point out House has passed resolution specifically authorizing Committees inspect tax returns, specifying purpose for returns are sought, or specifying information cannot reasonably obtained from other sources. They suggest need resolve issue now, but should leave for resolution on remand.

Because Deutsche Bank Subpoenas require production tax returns motion preliminary injunction prohibit compliance been denied by District Court, absence of ruling on production of the returns risks their disclosure Committees. We therefore believe some ruling must be made.

The Committees do not dispute they not met requirements of section 6103(f), but they contend provision does apply any tax returns possession of Deutsche Bank unless bank obtained them IRS. text section does unambiguously resolve dispute. In addition citing requirements section 6103(f), Appellants rely section 6103(a). It states tax returns “shall confidential,” “except authorized by [the Internal Revenue Code]” no person within three specified categories “shall disclose any return . . obtained him . . . connection his service” within three categories. These include employees United States, employees state various local agencies, those who obtained access return pursuant various subsections section 6103(a). § 6103(a)(1) ‒ (3).

If introductory clause section 6103(a) blanket protection confidentiality tax returns, then prohibits disclosure returns possession Deutsche Bank. But if that clause is read conjunction with rest section 6103(a), then clause means only the returns protected from disclosure anyone within three categories, it does not prohibit disclosure pending appeal because Deutsche Bank is not within those categories. Arguably limiting coverage section 6103(a) section 6103(b). It defines “return” “[f]or purposes section” as a return “which filed with Secretary.” § 6103(b)(1). That provision could mean either document or digital file possession Secretary (including IRS), which Deutsche Bank does have, or a copy a paper or digitized return been submitted Secretary, Deutsche Bank does have.

Another provision section creates ambiguity as meaning. Section 6103(f) states a congressional committee may obtain a tax return “from Secretary” pursuant a House resolution meeting specified requirements, set forth above. This provision could mean either only way a committee may obtain tax return seek it from Secretary comply requirements section 6103(f), could mean those requirements apply only when committee seeks return from Secretary do apply when committee seeks return anyone else, Deutsche Bank.

Case law on these possible interpretations has evoked various rulings statements. The Seventh Circuit has ruled introductory clause of section 6103(a) not blanket protection confidentiality, but protects only against disclosure by those described in subsections 6103(a)(1) ‒ (3). Hrubec v. National Railroad Passenger Corp. , 49 F.3d 1269 (7th Cir. 1995). “The ban disclosure appears last, dangling, unnumbered portion § 6103(a), introductory phrase, ban linked scope identified subsections.” Id . 1270–71. Hrubec found no violation section 6103 by Amtrak employees who obtained copies other employees’ tax returns from IRS, but result request covered by categories identified section 6103(a). ^[41] The Ninth Circuit given narrow interpretation section In Stokwitz v. United States , 831 F.2d 893 (9th Cir. 1987), ruled “Section 6103 establishes comprehensive scheme controlling release by IRS information received taxpayers discrete identified parties.” Id 895 (emphasis original); accord Lomont v. O’Neill 285 F.3d 9, 14 ‒ 15 (D.C. Cir. 2002); Baskin v. United States F.3d 338, 342 (5th Cir. 1998); Ryan v. United States 74 (11th Cir. 1996). Stokwitz found no violation section where employees United States Navy seized taxpayer’s files copies tax returns, even though employees were covered by subsection 6103(a)(1). The relied definition “tax return” section 6103(b), see id . 895–96 (“[T]he statutory definitions ‘return’ ‘return information’ which entire statute relates, confine statute’s coverage information that passed through IRS.”), noted implementing “Treasury regulations . . . exclusively concerned with disclosure by IRS,” id. (citing Treas. Regs. §§ 301.6103(a) (p)(7) ‐ (1986)).

Other courts have expressed different views. In National Treasury Employees Union Federal Labor Relations Authority (D.C. Cir. 1986), D.C. Circuit referred section 6103(a) as “general rule ‘returns return information shall confidential.’” Id (brackets omitted) (quoting § 6103(a)). Court’s main point, however, was disclosure, had been made IRS employees, had been made compliance subsection 6103(l)(4)(A), even point, well “general rule” statement, were dicta because Court’s holding was employees should been disciplined.

A district court our Circuit stated a board licensing plumbers violated section 6103 by making disclosure license applicant’s tax forms condition obtaining license. Russell v. Board Plumbing Examiners 74 F. Supp. 2d (S.D.N.Y. 1999) (“The Board being unable get copies directly from Treasury should not permitted do so indirectly by coercion . . . .”), aff’d F. App’x (2d Cir. 2001). The District Court’s view, however, was most alternate holding an issue acknowledged had been briefed, see id our affirmance non ‐ precedential summary order made no reference issue, had been asserted ground for review, see Br. & Reply Br. for Appellants, Russell Board Plumbing Examiners F. App’x (2d Cir. 2001) (No. 9532).

We agree with Seventh Circuit section 6103(a) limits prohibition against disclosure tax returns returns requested three categories persons identified subsections 6103(a)(1)–(3). There remains possibility, however, subsection 6103(f)(3), applicable requests tax returns congressional committees other than those concerned explicitly taxes, provides exclusive means committees obtain returns. text subsection 6103(f)(3) refers committee requests “to Secretary.” We agree with Ninth Circuit plain language provision reflects Congress’s purpose enacting section 6103, “was curtail loose disclosure practices by IRS.” Stokwitz 831 Because there no claim by Appellants Deutsche Bank obtained IRS returns requested by Committees, neither subsection 6103(f)(3), nor section 6103 whole, precludes their production Committees.

Appellants also contend production tax returns prohibited by RFPA Gramm ‐ Leach ‐ Bliley Act, Pub. L. No. ‐ 102, Stat. 1338 (1999) . As ruled, however, RFPA does apply Congress. Gramm Leach ‐ Bliley no bar production tax returns because explicitly permits disclosure personal information “to comply . . . subpoena . . . Federal . . authorities.” U.S.C. § 6802(e)(8).

With respect tax returns, oral argument appeal precipitated further procedural developments, detailed Trump Deutsche Bank No. ‒ WL (2d Cir. Oct. 2019) (order granting news organizations’ motions intervene denying their motions unseal). Ultimately, Deutsche Bank informed us in August 27, 2019, letter it had two tax returns within the coverage of the Committees’ subpoenas submitted the names of the two taxpayers under seal.

If tax returns in the possession of Deutsche Bank were those of the Lead Plaintiff, we would consider whether their production Committees might encounter objection would distract Chief Executive in performance of official duties. That issue need not resolved, however, because Deutsche Bank informed us, in its response motions news organizations unseal Deutsche Bank’s letter August 27, only tax returns possession within coverage subpoenas are not those Lead Plaintiff.

Disclosure tax returns possession Deutsche Bank response Committees’ will not violate section 6103, fact that, when requested news organizations, did unseal names taxpayers whose returns possession Deutsche Bank reason exclude those returns from Deutsche Bank’s compliance subpoenas.

C. Constitutional Claim

Appellants’ constitutional claim does assert any constitutionally based privilege might protect their financial records production Banks to Committees, privileges secured in Bill Rights. Watkins (recognizing “the restraints Bill Rights upon congressional investigations”). Instead, Appellants contend Constitution places limits power Congress investigate, Committees’ subpoenas to Banks exceed those limits, they right prevent disclosure documents response subpoenas beyond Congress’s power investigation. subpoenas surely broad scope. Illustrating scope, Appellants specifically call our attention following requests Committees’ Deutsche Bank following:

“any document related account applications, opening documents, KYC [know your customer], due diligence, closing documents”;

“any monthly or other periodic account statement”; “any document related domestic or international transfer funds amount $10,000 or more”; “any summary or analysis domestic or international account deposits, withdrawals, transfers”;

“any document related monitoring for, identifying, evaluating possible suspicious activity”;

“any document related any investment, bond offering, line credit, loan, mortgage, syndication, credit or loan restructuring, or any other credit arrangement.”

Deutsche Bank Subpoenas ¶¶ 1(i) ‒ (vi), J. App’x 37 ‒ 38.

The documents sought are those Lead Plaintiff and his three oldest children, and “members their immediate family,” defined include child, daughter ‐ law, and son ‐ ‐ law, among others, and number entities affiliated with Lead Plaintiff and Trump Organization. Id. ¶ 1, 47 ¶ The documents concern financial transactions named individuals and their affiliated entities. time frame for most documents sought July 19, 2016, present for Capital One subpoena January 1, 2010, present Deutsche Bank subpoenas, but there no time limit two categories documents sought all three subpoenas. See id . intro., intro. These categories include documents related account openings, names those interests identified accounts, financial ties between named individuals entities foreign individual, entity, government. id ¶ 1(i), ‒ ¶ 6(i), ¶¶ 1(i), (ii).

Constitutional investigative authority Congress. An important line Supreme decisions, usually tracing back McGrain Daugherty 135 (1927), has recognized broad power of Congress and its committees obtain information in aid legislative authority under Article I of Constitution. Eastland v. United States Servicemen’s Fund , 421 U.S. 491, 504 (1975); Barenblatt , 360 U.S. at 111; Watkins , 354 U.S. at 187; Quinn , 349 U.S. at 160; Sinclair v. United States , 279 U.S. 297 (1929), overruled other grounds United States Gaudin , 515 U.S. 519 (1995). “[T]he power inquiry—with process enforce it—is an essential appropriate auxiliary legislative function.” McGrain , 273 U.S. at 174. “The scope power inquiry, short, as penetrating far ‐ reaching as potential power enact appropriate under Constitution.” Barenblatt , 360 U.S. at 111. “[T]he power investigate inherent power make laws because ‘a body cannot legislate wisely or effectively absence information respecting conditions legislation intended affect or change.’” Eastland U.S. (brackets omitted) (quoting McGrain U.S. 175). “The power Congress conduct investigations . . encompasses inquiries concerning administration existing laws well proposed or possibly needed statutes.” Watkins As the Committees recognize, however, Congress’s constitutional power to investigate not unlimited. The Supreme Court has identified several limitations. One concerns intrusion into the authority of the other branches of the government. In Kilbourn Thompson , 103 U.S. 168 (1880), which the Supreme Court identified the first case in which the Court considered a challenge to “the use of compulsory process a legislative device,” Watkins , 354 U.S. at the Court ruled Congress’s power to compel testimony was unconstitutionally used because the House of Representatives had “assumed power which could only be properly exercised by another branch government,” in case, Judicial Branch, Kilbourn , 103 U.S. at 192. ^[44]

In Quinn , Supreme Court identified other limits. The power to investigate “must be confused powers law enforcement.” Government” in order to inform public “concerning workings its government.” Watkins U.S. & n.33; see Rumely U.S. at 43 (“‘It proper duty representative body look diligently into every affair government talk much about what sees. . . informing function Congress should be preferred even legislative function.’”) (quoting Woodrow Wilson, Congressional Government: A Study in American Politics (1913)). We need consider potential source investigative authority because conclude Committees issued advance valid purposes. Kilbourn had been imprisoned by sergeant ‐ arms House Representatives contempt refusing respond House committee’s inquiries concerning matters

were then pending federal bankruptcy court. As Supreme later explained McGrain bankruptcy was matter “in respect no valid legislation could had” because case was “still pending bankruptcy court” “the United States other creditors were free press their claims proceeding.” U.S. 161. “Nor does extend to an area Congress is forbidden to legislate.” Id . “Still further limitations power to investigate found specific individual guarantees Bill Rights . . . .” Id. And, most pertinent to pending appeal, power to investigate “cannot be used to inquire into private affairs unrelated to valid legislative purpose.” Id . principal argument Appellants compliance

Committees’ should be preliminarily enjoined because subpoenas seek information concerning their private affairs. Unquestionably, disclosure financial records sought Committees will subject Appellants’ private business affairs Committees’ scrutiny. However, inquiry into private affairs always beyond investigative power Congress. In Quinn Court was careful state power investigate “cannot used inquire into private affairs unrelated valid purpose .” Id . (emphasis added). In Barenblatt Court stated similar qualification: “Congress may constitutionally require individual disclose . . private affairs except relation [a valid legislative] purpose.” U.S.

So, although had made clear before Barenblatt there “no congressional power expose sake exposure,” Watkins has stated that inquiry into private affairs permitted as long as the inquiry related “to a valid legislative purpose,” Quinn , 349 U.S. at 161; see Barenblatt , 360 U.S. at This potential tension between a permissible legislative purpose and an impermissible inquiry for sake exposure requires consideration role motive and purpose assessing validity congressional inquiry.

The Supreme Court spoken clearly to motive respect to congressional inquiry. Referring to congressional committee members questioning witness, Court said, “[T]heir motives alone would not vitiate investigation which had been instituted House Congress if assembly’s legislative purpose being served .” Watkins 354 U.S. at 200 (emphasis added). ^[45] More than years ago, Supreme candidly recognized difficulty court faces in considering how a legislative purpose is to be assessed when privacy interest is asserted to prevent legislative inquiry:

“Accommodation congressional need for particular information with individual personal interest privacy is an arduous delicate task any court. We do underestimate difficulties that would attend such an undertaking.” Id .

Requirement identifying legislative purpose . first task courts undertaking this “accommodation” is identification legislative purpose to which congressional investigation is asserted related.

“It is manifest that despite adverse effects follow upon compelled disclosure private matters, all such inquiries are barred. Kilbourn Thompson teaches that an investigation into individual affairs is invalid if unrelated legislative purpose.” Id Watkins provided further guidance how inquiry legislative purpose should least begin:

“An essential premise situation House Senate shall instructed committee members what they do with power delegated them. It responsibility Congress, first instance, insure compulsory process used only furtherance purpose. That requires instructions investigating committee spell out group’s jurisdiction purpose sufficient particularity. Those instructions are embodied in authorizing resolution. That document committee’s charter.”

Id .

It clear whether this passage can satisfied only by instruction House gives a committee pursuant a House rule defining a standing committee’s continuing jurisdiction, whether a specific “authorizing resolution” required for committee undertake an investigation on a particular subject within jurisdiction. During argument on July 12 of this year Appeals for District Columbia Circuit Trump v. Mazars USA, LLP , 940 F.3d 710 (D.C. Cir.), reh’g en banc denied , 941 F.3d 1180 (D.C. Cir.), mandate stayed , No. 19A545, 2019 WL 6328115 (U.S. Nov. 25, 2019) (“ Trump v. Mazars ”), challenge subpoena issued by House Committee on Oversight and Reform, ^[46] Mazars appellants, many whom Appellants here, contended clear statement from House authorizing standing committee investigate not just particular subject but the particular subpoena being challenged was required, least where the subpoena seeks papers of the President. Oral Arg. 8:35, 1:32:15, 2:03:15, Trump Mazars USA, LLP, No. 19 ‐ 5142 (D.C. Cir. July 12, 2019). ^[47]

Apparently responding contention, House Representatives on July 24 adopted resolution includes following language:

“ Resolved That House Representatives ratifies and affirms all current and future investigations, well as all subpoenas previously issued or issued in future, by any standing or permanent select committee House, pursuant its jurisdiction established Constitution United States rules X XI Rules House Representatives, concerning or issued directly or indirectly to—

(1) President in his personal or official capacity; (2) his immediate family, business entities, or organizations; . .

(9) any third party seeking information involving, referring, related individual or entity described paragraphs (1) through (7).”

H.R. Res. 116th Cong. (2019); see H.R. Res. 509, 116th Cong. § (2019) (“House Resolution hereby adopted.”). On July Committees informed us this resolution. ^[49]

On July 31, counsel for the Mazars appellants made two related arguments to D.C. Circuit rejecting the significance of Resolution 507. ^[50] First, he read the passage from Watkins , quoted above, to mean only House Rules initially outlining committee’s jurisdiction can provide valid source of authority for investigation. Second, he contended two decisions, United States v. Rumely 345 U.S. 41 (1953), Shelton v. United States 327 601 (D.C. Cir. 1963), establish Resolution 507 came “too late.” On August 1, counsel for Appellants in our appeal made same arguments our Court. ^[51]

full House lacked ‘clear statement’ of intent include President, President’s personal attorneys argued in Federal court necessary before committees may seek information related President;

“Whereas while these arguments plainly incorrect matter of law, nevertheless interest institution House of Representatives avoid doubt on matter unequivocally reject these challenges presented ongoing future litigation.” H.R. Res. 507.

[49] See Letter from Douglas N. Letter, General Counsel, House Representatives, Clerk Court, Second Circuit Court Appeals, No. 19 ‒ 1540, Dkt. No. 106 (July 26, 2019).

[50] See Letter from William S. Consovoy, counsel President Donald J. Trump, Mark Langer, Clerk Court, D.C. Circuit Court Appeals, Trump Mazars USA, LLP No. ‒ 5142, Doc. No. (D.C. Cir. July 31, 2019). Letter Patrick Strawbridge, counsel President Donald J. Trump, Clerk

Court, Second Circuit Appeals, No. ‒ Dkt. No. (Aug. 1, 2019).

On August United States filed Mazars appeal an amicus curiae brief, making additional arguments concerning alleged deficiency Resolution We need set forth those arguments because August United States filed amicus curiae brief

Although we agree there must be sufficient evidence authorization purposes enable meaningful judicial review, Appellants’ arguments seek limit evidence may consider are persuasive. Although Watkins examined the authorizing resolutions the committee whose authority compel answers inquiry was being challenged, see at 201–02 & nn. 35–36, the Supreme Court’s opinion reveals these resolutions are only sources considered determining whether committee’s investigation been validly authorized. As Court noted, “There several sources can outline ‘question under inquiry.’” Id . Among these, Court mentioned “the remarks [committee] chairman or members committee, even nature proceedings themselves.” Id . Indeed, considered opening statement chairman committee before whom defendant criminal contempt proceeding had refused answer, see id . 209–10, although finding statement impermissibly vague, see id . 210; see Shelton United States (D.C. Cir. 1968) (statements committee members relevant identification purposes congressional investigations).

pending appeal, making additional arguments concerning Resolution relates pending litigation. We consider those arguments infra

Rumely does not confine the search authorization of valid legislative purpose committee’s jurisdictional resolution. concluded the witness’s “duty answer must judged the time of his refusal.” Rumely , U.S. 48. Because regard the time the Banks’ compliance with the challenged in this case the equivalent the time the witness’s refusal in Rumely decision no bar examining materials existing before compliance.

Furthermore, Court’s point in Rumely was scope the resolution authorizing committee’s investigation could not “be enlarged subsequent action Congress.” U.S. In pending case, issue respect House Resolution whether Court, ascertaining House authorization Committees’ investigations, can consider evidence comes after issuance subpoenas. Including House Resolution our consideration results no unfairness Banks, not refused produce information requested. Moreover, House Resolution does suffer same “infirmity post litem motam self serving declarations” tainted post hoc debate Rumely because resolution does purport alter either interpretation Committees’ jurisdiction stated purposes the Committees’ investigations that existed the time the were issued. Rather, the resolution was passed to eliminate doubt regarding the support the House for the Committees’ investigations.

The D.C. Circuit’s decision Shelton states that the time contempt witness is entitled to know the purpose challenged legislative inquiry is “before the subpoena issued.” F.2d 607. Preliminarily, note that assertion dictum; holding the committee’s subpoena was invalid because procedural irregularity issuance. id . More important, dictum conflicts with what Supreme said Watkins The Court there made clear satisfy due process objection arising contempt imposed refusing answer committee’s question insufficiently shown be related valid purpose, purpose could be identified late immediately before witness was required answer. “Unless subject matter been made appear undisputable clarity, duty investigative body, upon objection witness on grounds pertinency, state record subject under inquiry time the manner which the propounded questions are pertinent thereto.” Watkins U.S. 214–15.

We therefore do confine our search the Committees’ purposes the House Rules alone, nor do exclude Resolution our inquiry.

Identifying Committees’ purpose . We next consider “legislative purpose” which Committees assert their investigations “related” “the weight ascribed to[] interest Congress demanding disclosures” order determine whether “a public need” investigation “overbalances private rights affected.” Id 198.

Our consideration begins Constitution, assigns each house Congress authority “determine Rules Proceedings.” Const. art. I, § 5, cl. In 2019, Congress adopted Rules House Representatives. See H.R. Res. 116th Cong. (2019); Rules House Representatives, 116th Cong. (prepared Karen L. Haas, Clerk House Representatives, Jan. 2019) (hereinafter “H. Rules”). House Rule X establishes standing committees House, including Financial Services Committee Permanent Select Committee Intelligence. H. Rules X(2)(h), X(11). Rule X assigns Financial Services Committee jurisdiction over bills concerning, among other things, banks and banking, international finance, and money and credit, see H. Rule X (1)(h)(1), (h)(5), (h)(7), and assigns Intelligence Committee jurisdiction over bills concerning, among other things, Nation’s intelligence agencies and their intelligence and intelligence related activities, see H. Rule X(11)(b)(1)(A), (B).

Rule X also assigns all standing committees “general oversight responsibilities . . . assist House its analysis, appraisal, and evaluation (A) application, administration, execution, and effectiveness Federal laws; and (B) conditions and circumstances may indicate necessity or desirability enacting new or additional legislation.” H. Rule X(2)(a)(1). In addition, Rule X assigns Intelligence Committee “[s]pecial oversight functions” “review study continuing basis laws, programs, and activities intelligence community.” H. Rule X(3)(m).

House Rule XI provides: “Each committee may conduct any time such investigations studies it considers necessary or appropriate exercise its responsibilities under [R]ule X.” H. Rule XI(1)(b)(1). Rule XI provides:

“For purpose carrying out functions duties under rule [R]ule X . . . committee subcommittee authorized . . require, subpoena . . . production . . . records . . . considers necessary.” H. Rule XI(2)(m)(1)(B).

On March 13, 2019, the House Representatives adopted resolution stating, among other things, that the House “supports efforts close loopholes that allow corruption, terrorism, and money laundering infiltrate our country’s financial system.” H.R. Res. 206, 116th Cong. (Mar. 13, 2019).

On April the House Committee on Oversight and Reform issued report summarizing the subjects several committees planned investigate during the 116th Congress. H.R. Rep. No. ‐ (2019). Because the date this report one day after issuance the challenged this case, note the text the report makes clear the plans submitted by the committees had been received prior date the report was issued.

The plan submitted Financial Services Committee includes purposes: “examining financial regulators’ supervision banking, thrift and credit union industries safety and soundness and compliance with laws and regulations,” id . at 78; “the implementation, effectiveness, and enforcement anti ‐ money laundering/counter ‐ financing terrorism laws and regulations,” id . at (abbreviation omitted); and “the risks money laundering and terrorist financing in real estate market,” id . Chair Financial Services Committee, Representative Maxine

Waters, identified principal purpose committee’s investigation. “The movement illicit funds throughout global financial system raises numerous questions regarding actors who are involved in these money laundering schemes where money going.” Cong. Rec. H2697, H2698 (daily ed. Mar. 2019) (statement Rep. Waters support H.R. Res. 206). Linking Committee’s inquiries Appellants, she explained her concerns “precisely why Financial Services Committee investigating questionable financing provided President Trump [t]he Trump Organization banks like Deutsche Bank finance its real estate properties.” Id In her statement, Rep. Waters noted Deutsche Bank was fined for its role $10 billion money ‐ laundering scheme, Cong. Rec. H2698, Committees note their brief, Br. Intervenors Capital One agreed pay fine $100 million failing correct deficiencies Bank Secrecy Act anti money ‐ laundering programs, see Capital One, N.A. Enforcement Action No. ‐ 080, 2018 WL 5384428, *1 ‒ (O.C.C. Oct. 23, 2018).

The Financial Services Committee has held hearings on these matters, and considered bills combat financial crimes, money laundering.

The Chair Intelligence Committee has identified several purposes of committee’s investigation. committee investigating “[t]he scope and scale Russian government’s operations influence political process”; “[t]he extent any links and/or coordination between Russian government, or related foreign actors, and individuals associated Donald Trump’s campaign, transition, administration, or business interests, furtherance Russian government’s interests”; “[w]hether foreign actor sought compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, his associates”; “[w]hether President Trump, his family, or his associates or were at time at heightened risk of, or vulnerable to, foreign exploitation, inducement, manipulation, pressure, coercion.” Press Release, House Permanent Select Committee on Intelligence, Chairman Schiff Statement House Intelligence Committee Investigation (Feb. 6, 2019). ^[56]

Linking these investigations Appellants, Committees cite public reports indicating Deutsche Bank extended loans Lead Plaintiff totaling more than $2 billion ^[57] his 2017 financial disclosure report showed liability least $130 million Deutsche Bank. ^[58] At oral argument, counsel Committees represented, without contradiction Appellants, Deutsche Bank only bank willing lend Lead Plaintiff. Oral Arg. Tr. p. 36, ll. ‒

On appeal, Committees contend Intelligence Committee’s investigations “will inform numerous proposals protect political process threat of foreign influence and strengthen national security.” Br. Committees 18. ^[59]

All foregoing fully identifies “the interest[s] of Congress demanding disclosures,” Watkins requires. U.S. The Committees’ interests concern national security and integrity elections, and, more specifically, enforcement anti money ‐ laundering/counter ‐ financing terrorism laws, terrorist financing, movement illicit funds through global financial system including real estate market, scope Russian government’s operations to influence U.S. political process, and whether Lead Plaintiff was vulnerable to foreign exploitation. Watkins requires legislative inquiry must fact be related to legislative purpose. id The Committees fully satisfied requirements Watkins.

We conclude our consideration of the Committees’ identification of valid legislative purposes by noting the significantly different purposes that were identified by the House Committee on Oversight and Reform in the Trump Mazars case in the District of Columbia, ^[61] to previously alluded. ^[62] The four subject matters being investigated by committee, set out in the margin, ^[63] all explicitly concerned whether the President was in compliance with legal requirements. Nevertheless, Judge Tatel’s opinion for the Mazars majority concluded the Oversight Committee, issuing the challenged subpoena, “was engaged ‘legitimate legislative investigation,’ rather than impermissible law enforcement inquiry.” Mazars (quoting Hutcheson United States (1962)) (citation omitted). On other hand, Judge Rao’s dissent contended because Oversight Committee was investigating whether President violated various laws, “investigations may be pursued exclusively through impeachment.” Id

In pending appeal, Committees are investigating whether Lead Plaintiff violated any law. To extent Committees looking into unlawful activity such money laundering, their focus on alleged misconduct Lead Plaintiff (they have made no allegation his misconduct); instead, existence activity banking industry, adequacy regulation relevant agencies, need legislation.

Whether legislative purpose “overbalances” private rights. Supreme can understood Watkins set out second requirement courts considering challenges inquiries.

“The critical element is the existence of, the weight be ascribed to, the interest the Congress demanding disclosures an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by public need that overbalances any private rights affected . To do so would be abdicate responsibility placed by Constitution upon judiciary insure that Congress does unjustifiably encroach upon an individual’s right privacy . . . .” 198–99 (emphasis added).

When Court said that “cannot simply assume, however, that every congressional investigation justified public need that overbalances private rights affected,” id inference available courts determine whether importance legislative interest outweighs an individual’s privacy interests.

Three considerations diminish force this possible inference. First, should hesitant conclude Supreme Court, always sensitive separation ‐ powers concerns, would want courts make sort balancing determination, outcome might impede Legislative Branch pursuing valid legislative purposes. Second, might simply meant courts should “assume” existence legislative purpose, but judicial task end once courts find congressional materials sufficient identification valid purposes Congress committee is pursuing. Third, the Court later cautioned “courts should go beyond the narrow confines determining committee’s inquiry may fairly be deemed within province.” Eastland U.S. (quotation marks omitted). On the other hand, likely the would have described minimalist approach as “an arduous delicate task.” Watkins

Encountering uncertainty task Watkins required courts undertake, we will assume, for argument, we should make least some inquiry whether “public need” investigate for valid legislative purposes we have identified “overbalances private rights affected.” That balancing similar comparison hardships make Part IV, one factors relevant two preliminary injunction standards.

We conclude that, even if Watkins requires balancing after valid purposes been identified, interests Congress pursuing investigations challenged were issued substantially “overbalance” privacy interests invaded disclosure financial documents, including non official documents Lead Plaintiff. “[T]he weight ascribed to” public need investigations Committees pursuing the highest order. The legislative purposes the investigations concern national security the integrity elections, detailed above. By contrast, the privacy interests concern private financial documents related businesses, possibly enhanced by risk disclosure might distract the President the performance his official duties.

Whether subpoenas seek information related legislative purposes. remaining issue whether information sought by subpoenas sufficiently related identified purposes supporting Committees’ investigations, whether overbroad, Appellants contend. Their challenge proceeds along three lines: (1) procedural objection concerning District Court, (2) several general substantive objections entire scope subpoenas, (3) more focused substantive objection several specific categories information sought by subpoenas.

Procedural objection ‒‒ District Court’s requiring negotiation. Appellants contend District erred procedurally “send[ing] parties back negotiating table” attempt narrow scope subpoenas. Br. Appellants 29. Judge Livingston favors disposition. Part. Diss. Op. Indeed, additional point her partial dissent, takes no position merits Appellants’ claims, deferring decision until such negotiation occurs. Judge Livingston favors total remand further development record.

Appellants cite two instances where courts have had at least partial success in encouraging negotiation. AT&T II F.2d at 124–25; Bean LLC John Doe Bank F. Supp. 3d 39–40 (D.D.C. 2018). Both cases arose significantly different circumstances, and neither one requires total remand here. The AT&T litigation involved what D.C. Circuit characterized as “a portentous clash between [E]xecutive [L]egislative [B]ranches,” AT&T I 385. In pending appeal, we noted, Lead Plaintiff suing only his individual capacity, President, no official documents sought. The only Executive Branch interest implicated possible distraction President performance his duties, consider pages ‒ 91. Furthermore, AT&T I concerned national security wiretaps, Executive Branch official documents obvious sensitivity. Finally, D.C. Circuit’s advice AT&T I was offered after parties had already “negotiated extensively came close agreement.” Id simply urged parties continue process they had successfully begun “requested” parties “to attempt negotiate a settlement,” id . at because the “precise details of the [earlier] negotiations . . . demonstrate[d] the proximity the parties to a workable compromise,” id at 386. The Bean litigation concerned a subpoena challenged violative First Amendment. F. Supp. 3d 37.

To extent request judicial assistance narrowing scope analogous role district court judges managing pretrial discovery, they have broad discretion determine extent they should intervene, see e.g. In re Fitch, Inc. (2d Cir. 2003), Judge Ramos did not exceed discretion this case by leaving negotiation hands experienced counsel prior his ruling. In favoring a total remand, Judge Livingston does not consider our limited standard review District Court’s decision require parties negotiate, nor does she suggest District Court’s discretion was exceeded. Moreover, Appellants have identified single category documents sought even a single document within category they might willing Banks produce if negotiation had been required. Finally, note likely futility ordering total remand negotiation, Judge prefers, Livingston fact view White House has prohibited members of the Administration from even appearing in response to congressional subpoenas and has informed Congress that “President Trump and his Administration cannot participate” in congressional inquiries. Judge Livingston suggests that total remand would be useful to afford the parties an opportunity for further development of the record. However, Appellants have given no indication of what additional materials they would seek to add to the record, and the existing record fully suffices for disposition of this appeal.

to Judge Livingston refers arose response to hypothetical inquiry from the Court as to whether certain sensitive documents such check for medical services should be excluded from disclosure. Counsel for Committees responded to any documents “that have nothing to do with Mr. Trump and his family and these other businesses, his various businesses, have nothing do with their real financial activities, we will direct Deutsche Bank produce those.” Oral Arg. Tr. at p. 41, ll. ‒ 15. When Court inquired further about Committees’ position if Court were insist exclusion documents, counsel for Committees responded, “[I]f this Court orders ‘these subpoenas enforceable but’   ‒‒  drew this exception, consistent with hypothetical your Honor raised, we would have no problem that.” Id . p. 41, ll. ‒ 25. Obviously, Committees’ willingness comply with an order from this concerning exclusion sensitive documents like check payment medical expenses does affirm Committees’ willingness engage negotiation. Later, Committees said “[i]f this court thinks there should be negotiation, . . . make really, really fast,” id p. 46, ll. ‒ 10, added, “Mr. Trump various other people have given no indication whatsoever they actually would willing negotiate over  ―  any way serious.” Id p. ll. ‒ Again, there no expression willingness negotiate.

In event, limited remand we order provides opportunity exemption from disclosure more documents than even those labeled “sensitive.” Letter A. Pat Cippolone, Counsel President, Speaker House Representatives, three House committee chairmen (Oct. 2019), https://www.nytimes.com/interactive/2019/10/08/us/politics/white house ‐ letter ‐ impeachment. html. One recipient this letter, Congressman Adam Schiff, chairman one committees issued litigation.

A total remand would simply further delay production of documents response to subpoenas that were issued seven months ago and would run directly counter the Supreme Court’s instruction that motions to enjoin a congressional subpoena should “be given the most expeditious treatment by district courts because one branch of Government is being asked halt the functions of a coordinate branch.” Eastland n.17.

General substantive objections scope of subpoenas One broad substantive challenge the scope the subpoenas is that they focus on the Lead Plaintiff. This point is made support the broader argument that the were issued with expectation that some the documents sought would embarrass the President, rather than advance legitimate legislative purpose. One answer the complaint about targeting the Lead Plaintiff and his family that the Committees have represented that the three subpoenas at issue this litigation are among group subpoenas “to seven other financial institutions, the majority which do not request documents specific to” the Lead Plaintiff. Br. for Committees 9. In fact, the Deutsche Bank Subpoenas themselves seek documents entities related Appellants. Deutsche Bank Subpoenas ¶¶ ‒ J. App’x ‒ Another answer targeting objection the significant relationship between Deutsche Bank and Lead Plaintiff. The Committees have relied information (not disputed by Appellants) indicating when no other bank would extend credit Lead Plaintiff, Deutsche Bank loaned him his affiliated entities least $130 million dollars. That unusual circumstance adequately supports requests for information determine whether proper banking procedures have been followed.

To whatever extent targeting objection is really a claim part of motive some members of Committees for issuing three was embarrass Lead Plaintiff, Supreme Court made clear determining lawfulness a congressional inquiry, courts “do look motives alleged prompted it.” Eastland , 421 U.S. 508. had earlier said, “So long Congress acts pursuance constitutional power, Judiciary lacks authority intervene on basis motives spurred exercise power.” Barenblatt U.S. 132 (citations omitted).

In this respect, guiding principle same applicable when arrest supported probable cause ruled valid despite arresting officer’s motive retaliate against suspect for exercising First Amendment right. Nieves Bartlett S. Ct. (2019); see Hartman v. Moore ‒ (2006) (absence probable cause required for valid claim initiating prosecution retaliate against defendant for exercising First Amendment right).

But Appellants disclaim objection based inquiry into motive. “No aspect inquiry involves search Congress’s hidden ‘motives.’” Br. Appellants Their point various statements some members Congress reveal that the purpose of the investigations to embarrass the President, not merely that embarrassment was the motive for the investigations. In this context (as some others ^[69] ), the distinction between motive, i.e. , the reason for acting, purpose, i.e. , the result sought, becomes somewhat blurred. We do not doubt that some members the Committees, even as they pursued investigations for valid legislative purposes, hoped that results their inquiries would embarrass President. ^[70] But long valid legislative purposes that Committees have identified are being pursued are not artificial pretexts ill motivated maneuvers, Committees have not exceeded their constitutional authority. The Supreme stated that there a “presumption” that stated purposes “real object” Committees’ investigation. McGrain , 273 U.S. 178. We need rely on that presumption where have evidence valid legislative purposes are being pursued “the purpose[s] asserted [are] supported by references specific problems which in past been which future could subjects appropriate legislation.” Shelton, 1297.

Appellants object extensive time frame covered subpoenas, especially absence any time limitations requests relating account applications identity those holding interests accounts. Appellants object disclosure financial records names family members, including Lead Plaintiff’s grandchildren. However, information, including documents dating back when accounts were opened, reasonably related investigation about money laundering.

Appellants contend subpoenas exceed valid legislative purpose because, their view, are intended discover evidence crimes, thereby indicating Committees pursuing law enforcement objective, beyond power Congress. Quinn 161. But, Appellants themselves recognize, “a permissible investigation does become impermissible because might reveal evidence crime.” Br. Appellants Any investigation into effectiveness relevant agencies’ existing efforts combat money laundering or need new legislation render such efforts more effective can be expected discover evidence crimes, discovery would not detract from legitimacy purpose in undertaking investigation. Supreme Court long ago rejected Appellants’ argument: “Nor do think it a valid objection investigation it might possibly disclose crime or wrongdoing [an executive branch official’s] part.” McGrain ‒ Sinclair U.S. (“[T]he authority [Congress], directly or through its committees, require pertinent disclosures aid own constitutional power abridged because information sought elicited may be use [criminal prosecutions].”).

Appellants fault Judge Ramos, who, they contend, “asserted Congress an independent ‘informing function’ allows . . . ‘publicize corruption . . agencies Government,’ even absent connection ‘contemplated legislation form bill or statute.’” Br. Appellants (quoting District opinion, J. App’x 127). Although phrases quoted Court’s opinion accurate, brief’s addition words “independent” “absent connection” mischaracterization what Judge Ramos said. He was asserting independent informing function investigative power absent connection a legislative purpose. He was careful to state that Congress’s legislative authority “ includes a more general informing function.” J. App’x 127 (emphasis added). This reflected the Supreme Court’s statement in Hutchinson Proxmire 443 U.S. 132 ‒ 33 (1979), “congressional efforts inform itself through committee hearings part of the legislative function.”

However, some of the Court’s statements in Watkins create uncertainty as whether, in what circumstances, an informing function permits public disclosure of information obtained as part of valid legislative inquiry. On the one hand, the Court said, “We no doubt there no congressional power expose sake exposure.” U.S. 200. On other hand, the Court said, “The public is, course, entitled be informed concerning workings its government.” Id . And, cautioning public’s right be informed about government “cannot be inflated into general power expose,” id. Court added same sentence, “where predominant result can only be an invasion of the private rights of individuals,” id. (emphases added). noted was “not concerned power the Congress inquire into publicize corruption, maladministration inefficiency agencies Government.” Id n.33. These latter statements make clear Congress can obtain information an investigation long information collected furtherance valid legislative purposes. In pending appeal, high significance valid purposes demonstrates “predominant purpose” Committees’ inquiries cannot be said be “only” invade private rights.

Specific substantive objections scope subpoenas. We next consider Appellants’ specific challenges scope subpoenas. Of three subpoenas, two identical subpoenas Deutsche Bank have broadest scope. These fill six single spaced pages describing eight categories documents, subdivided into paragraphs, many request several types items. If extensive document requests were made during discovery ordinary civil litigation, an initial response would likely requests too burdensome. In case, however, Banks made no claim compiling requested documents imposes excessive burden them. It Appellants whose privacy claimed unlawfully impaired by Banks’ compliance with subpoenas who challenge breadth of requests. To consider challenge examine detail.

We note eight categories documents sought by two Deutsche Bank Subpoenas, only categories 7, and request documents belonging to, or likely reveal information concerning, Appellants or entities they control or they alleged interests. The Committees confirmed fact during oral argument, without dispute Appellants. first category documents includes, respect individuals (including members their immediate families) and entities named: documents reflecting applications open accounts, due diligence, and related items, ¶ 1(i); account statements, ¶ 1(ii); transfers amounts excess $10,000, ¶ 1(iii); summaries or analyses account activity including destination checks (without limitation amount), ¶ 1(iv); suspicious activity, ¶ 1(v); investment, mortgage, credit arrangements related items, ¶ 1(vi), including appraisals assets, ¶ 1(vi)(d), financial information provided borrowers, ¶ 1(vi)(e), tax returns, ¶ 1(vi)(e)(7), bankruptcy records, ¶ 1(vi)(e)(8); information supplied pursuant §§ 314(a) 314(b) PATRIOT Act, Pub. L. No. ¶ 1(vii); records generated by named bank employees, ¶ 1(viii); documents kept customary record ‐ keeping systems related named individuals and entities, ¶ 1(ix); and matters discussed with Deutsche Bank’s boards, ¶ 1(x).

The seventh category covers documents reflecting periodic reviews identified individuals and entities. ¶ 7. The eighth category covers any communications by named employees Banks concerning identified individuals and entities. ¶ Many paragraphs categories and seek documents “including, but limited to, those involving any foreign individual, entity, or government” or similar language. E.g. ¶ 1(vi), ¶ 1(vi)(k). subpoena Financial Services Committee Capital One less

extensive, filling one one half single ‐ spaced pages describing one category documents, subdivided into fifteen paragraphs, two request several items. This category includes, with respect accounts held entities named their principals, directors, etc.: documents related applications open accounts due diligence, ¶ 1(i); documents identifying those interests accounts, ¶ 1(ii); documents identifying account manager, ¶ 1(iii); monthly statements cancelled checks excess $5,000, ¶ 1(iv); summaries analyses account activity including destination checks (without limitation amount), ¶ 1(v); transfers excess $10,000, ¶ 1(vi); documents concerning suspicious activity, ¶ 1(vii); reviews accounts pursuant to Capital One’s procedures related to Bank Secrecy Act, anti ‐ money ‐ laundering, compliance guidance “Politically Exposed Persons,” ¶ 1(viii); documents kept customary record keeping systems related any loan provided to named entities, ¶ 1(ix); documents related real estate transactions, ¶ 1(x); documents provided response any subpoena or request from any Federal or state agency, ¶ 1(xi)(a); notices administrative, civil, or criminal actions, ¶ 1(xi)(b); requests pursuant §§ 314(a) or 314(b) PATRIOT Act, ¶ 1(xi)(c); requests information third party, ¶ 1(xi)(d).

Sensitive personal information. A specific item raises serious concerns whether even valid purposes permit exposure matters entitled privacy protection request “analyses . . . transfers, including . . destination transfers . . ., including . . . check . . . .” Deutsche Bank Subpoenas, ¶ 1(iv); Capital One Subpoena, ¶ 1(v) (emphasis added). These items no dollar limitations, even though other provisions limit transfer information checks above specified amounts. Deutsche Bank Subpoenas, ¶ 1(iii) ($10,000); Capital One Subpoena, ¶ 1(iv) ($5,000). In addition “analyses” all checks, Deutsche Bank Subpoenas seek “monthly other periodic account statements” including “outgoing funds transfers,” ¶ 1(ii), might reveal recipients least some checks.

These provisions create risk some checks sought might reveal sensitive personal details having no relationship Committees’ legislative purposes. For example, if one entities decided pay for medical services rendered employee, check, any similar document disclosing sensitive personal information unrelated business transactions, should not be disclosed. The same would be true any check reflecting payment for anyone’s medical services. Committees have advanced no reason why legislative purposes they pursuing require disclosure such sensitive personal information. Indeed, counsel Committees oral argument appeared recognize such sensitive personal information need be disclosed. Oral Arg. Tr. p. ll. ‒ We located decision considered whether Congress entitled require disclosure sensitive personal information might swept up collection business related financial documents legitimately sought aid purposes. At least absence compelling reason disclosure, decline permit case.

Other possibly excludable documents. In addition to what we have described “sensitive documents,” recognize that there might be few documents within the coverage of the subpoenas that have such attenuated relationship to the Committees’ legislative purposes they need not be disclosed.

We have concluded coverage of following paragraphs of Deutsche Bank Subpoenas might include some documents warranting exclusion: paragraphs 1(ii), 1(iv), 1(vi)(e), 1(viii), We reach same conclusion to following paragraphs Capital One subpoena: paragraphs 1(iv), 1(v), 1(x), 1(xi)(d). We no such concerns with coverage any other paragraphs subpoenas. All documents within coverage these other paragraphs are sufficiently likely be relevant purposes. Even if within coverage these other paragraphs some documents turn out advance Committees’ investigations, would valid reason for excluding documents production. As Supreme observed reference another challenge congressional subpoena seeking private banking records, “The very nature investigative function––like research––is takes searchers up some ‘blind alleys’ and into nonproductive enterprises. To be valid legislative inquiry there need be no predictable end result.” Eastland

Any attempt identify for exclusion from disclosure documents within listed paragraphs must be done awareness principal purpose Committees seek information about adequacy banking regulators’ steps prevent money laundering, practice typically disguises illegal transactions appear lawful. Many documents facially appearing reflect normal business dealings will therefore warrant disclosure for examination and analysis skilled investigators assisting Committees determine effectiveness current regulation possible need improved legislation.

Procedure exclusion specific documents. To facilitate exclusion sensitive documents those few documents should be excluded coverage listed paragraphs, instruct District remand implement following procedure: (1) after each Banks promptly, no event beyond days, assembled all documents within coverage paragraphs 1(ii), 1(iv), 1(vi)(e), 1(viii), of the Deutsche Bank Subpoenas and paragraphs 1(iv), 1(v), 1(x), 1(xi)(d) of the Capital One Subpoena, counsel Appellants shall have days to identify to District Court all sensitive documents documents (or portions of documents) within coverage of listed paragraphs they contend should be withheld disclosure, under limited standard discussed above; (2) counsel Committees shall have seven days to object to nondisclosure such documents; (3) District Court shall rule promptly Committees’ objections; (4) Appellants Committees shall seven days seek review this District Court’s ruling respect disclosure nondisclosure documents pursuant this procedure. Any appeal ruling will be referred this panel. abbreviated timetable this procedure set recognition

Supreme Court’s instruction motions enjoin congressional subpoena should “be given most expeditious treatment by district courts because one branch Government being asked halt functions coordinate branch.” Eastland n.17.

All other documents. All documents within coverage paragraphs listed and those documents excluded pursuant to procedure outlined above shall be promptly transmitted to Committees daily batches as they are assembled, beginning seven days date opinion.

Except provided above, all three subpoenas seek documents Committees are entitled believe will disclose information pertinent legitimate topics within Committees’ authorized investigative authority, especially money laundering, inappropriate foreign financial relationships named individuals entities, Russian operations influence U.S. political process. As Supreme observed, documents subpoenaed by congressional committee need only “not plainly incompetent irrelevant lawful purpose [of committee] discharge duties.” McPhaul United States (1960) (quotation marks brackets omitted). The documents sought three easily pass test. subpoenas reasonably framed aid Committees fulfilling their responsibilities conduct oversight effectiveness agencies administering statutes within Committees’ jurisdiction obtain information appropriate consideration need new legislation.

Objections United States amicus curiae . The United States makes several additional arguments its amicus curiae brief. The amicus brief contends “the possibility a subpoena might transgress separation ‐ powers limits . . mandates House clearly authorize a subpoena directed [the President’s] records.” Br. for Amicus United States (citing Franklin v. Massachusetts ‒ (1992), Armstrong Bush (D.C. Cir. 1991)). First, case does not concern separation powers. Lead Plaintiff is not suing his official capacity, no action is sought against him his official capacity, no official documents Executive Branch issue, Congress has not arrogated itself any authority Executive Branch, Congress not sought limit any authority Executive Branch.

Second, cited cases, Franklin Armstrong do concern congressional requests information. Both require clear statement from Congress when statute claimed limit presidential power. In all numerous decisions concerning congressional information Executive Branch officials, including President, there even hint, much less ruling, House (or Senate) required authorize specific subpoena issued one committees. In event, materials cited above provide sufficient clarity, in light Supreme Court decisions concerning congressional investigations, authorize Lead Plaintiff’s unofficial business records in aid valid legislative purposes. amicus brief argues President is “entitled special solicitude in

discovery,” Br. Amicus United States (citing Cheney , 542 U.S. at In re Trump , ‒ (4th Cir. 2019)), “even in suits solely related his private conduct,” id (citing Jones , U.S. 707). As general proposition, we agree have endeavored recognize point in special procedure directed District Court follow limited remand. We note, however, in Cheney Supreme was careful point out “special considerations control when Executive Branch’s interests in maintaining autonomy office safeguarding confidentiality its communications implicated.” Cheney In pending appeal, Lead Plaintiff suing in his individual capacity, no confidentiality any official documents asserted, any concern arising risk distraction performance Lead Plaintiff’s official duties minimal light Supreme Court’s decision Clinton Jones and, event, far less substantial than importance achieving purposes identified Congress. In Jones the claimed distraction was that attending a deposition being subjected to a civil trial would divert some of the President’s time from performance of his official duties; in the pending case, there is no claim of diversion of any time from official duties. Jones although expressing concern with “the high respect that is owed to the office of the Chief Executive,” not only permitted discovery directed to the President but obliged him to be subjected to a civil trial. U.S. at 707. In re Trump ‒ 80, concerned a petition for mandamus directing a District Court to dismiss for lack of standing a complaint alleging violation of the Foreign Domestic Emoluments Clauses, Const. art I, § 9, cl. 8, art II, § 1, cl.

The amicus brief only repeats Appellants’ argument that House must identify legitimate legislative purpose seeking President’s information, but adds that it must do so “with sufficient particularity that courts can concretely review validity any potential legislation determine whether information requested pertinent necessary Congress’s consideration legislation.” Br. Amicus United States meaning sentence clear. If it means that legislative purpose must be sufficiently identified enable court now consider validity any legislation might be enacted future, it would encounter prohibition advisory opinions. Flast Cohen (1968) (“[T]he rule against advisory opinions implements separation powers prescribed by Constitution confines federal courts role assigned them Article III.”). On other hand, if sentence means legislative purpose must be sufficiently identified so will serve aid interpreting legislation might be enacted future, there no requirement legislative purpose sufficient support congressional subpoena must suffice aid court interpreting some statute yet enacted. In event, purposes Committees’ been sufficiently identified.

Refining Appellants’ argument that Committees’ valid legislative purposes been adequately identified, amicus brief argues “courts must assess ‘the connective reasoning whereby precise questions asked relate to’ legitimate legislative purpose.” Br. for Amicus United States at 14 (quoting Watkins , U.S. at 215). This quotation Watkins difficult square Supreme Court’s later statement McPhaul subpoenaed documents need only be “not plainly incompetent irrelevant lawful purpose [of committee] discharge duties.” McPhaul at (quotation marks brackets omitted). It would appear “connective reasoning” phrase Watkins if still valid all, limited context was said ‒ committee witness’s objection specific question ‒ subpoena for adequately described categories documents relevant adequately identified valid purposes investigation.

The amicus brief argues subpoenaed information “not ‘demonstrably critical’ should deemed insufficiently pertinent when directed President’s records.” Br. Amicus United States (quoting Senate Select Committee Presidential Campaign Activities Nixon (D.C. Cir. 1974) (in banc)). D.C. Circuit used phrase “demonstrably critical” standard overcoming claim executive privilege. Nixon 498 at President Nixon had asserted that tape recordings his conversations with senior staff “cannot made public consistent with the confidentiality essential to the functioning the Office the President.” Id . (internal quotation marks omitted). In the pending appeal, no claim executive privilege has been made, much less claim that withholding the subpoenaed documents “essential the functioning Office President.” Id .

The amicus brief asserts that “[c]ourts may require Committees first ‘to narrow scope subpoenas’ first seek critical information light President’s constitutional interests,” Br. Amicus United States at (ellipsis omitted) (quoting Cheney U.S. at 390), that “[c]ourts may require Congress first determine whether records relevant legitimate purpose not, fact, available other sources that would impinge constitutional interests,” id (citing Watkins 206). That argument no application many documents were generated Banks. Moreover, District Court was required do what it “may” do, President’s “constitutional interests” implicated when official documents are sought, Cheney , precipitating “a conflict between the [L]egislative [E]xecutive [B]ranches,” AT&T I , at 390. amicus brief contends H.R. insufficient authorization for

subpoenas to extent it authorizes only current subpoenas to named persons entities but future them. Br. for Amicus United States Because pending appeal concerns denial preliminary injunction prevent compliance with issued subpoenas, make no determination with respect future subpoenas.

In overarching argument endeavoring strengthen make decisive many arguments just considered, amicus brief urges principle constitutional avoidance. Confronting constitutional challenge statute uncertain meaning, courts sometimes interpret statute so clearly comports Constitution. e.g. Crowell Benson , U.S. (1932). Enlisting principle constitutional avoidance pending appeal, amicus brief contends principle should persuade require Committees “‘explore other avenues’” obtaining information, Br. Amicus United States (quoting Cheney 390); require District Court “to proceed in more tailored manner,” id . at 5; approach “with utmost caution” task “balanc[ing] Congress’s interest in information against constitutional interests party withholding it,” id . at 16; require District Court “to attempt avoid conflict between constitutional interests before can ‘intervene responsibly,’” id . at ‒ (quoting AT&T II at 131). The amicus brief reminds us Supreme Court’s statement Rumely suggesting “abstention adjudication unless no choice left. ” U.S. 46.

In circumstances case, we do believe constitutional avoidance adds persuasive force arguments amicus brief. First, question whether constitutional avoidance applies beyond context interpreting ambiguous statutes challenged unconstitutional. Supreme Court considered question analogous situation FCC Fox Television Stations, Inc. (2009). Broadcasters urged Court apply FCC more stringent arbitrary ‐ capricious standard review agency actions implicate constitutional liberties. id . In declining do so, said, “We know no precedent applying [the principle constitutional avoidance] limit scope authorized executive action.” Id 516. Similarly, least doubtful whether the principle should enlisted limit scope authorized congressional action.

Second, extent decisions like Cheney Rumely advised courts proceed caution, they did so in contexts quite different pending appeal. Cheney involved real confrontation between Legislative Executive Branches; Rumely involved “limitation imposed First Amendment,” By contrast, pending appeal involves solely private financial documents, Lead Plaintiff sues only his individual capacity. only defense even implicating office presidency possibility document disclosure might distract Lead Plaintiff performance his official duties, risk we concluded, light Supreme precedent, Clinton Jones, minimal best. Appellants make no claim Congress or committees purporting curb way powers Executive Branch.

For all these reasons, see no reason permit constitutional avoidance provide added strength arguments amicus Appellants themselves.

Having considered Appellants’ statutory constitutional claims, we conclude they have shown a likelihood success on them. In reaching this conclusion, recognize we are essentially ruling on ultimate merits Appellants’ claims. But, Supreme pointed out, “Adjudication merits is most appropriate if injunction rests question law it is plain plaintiff cannot prevail.” MuFnaf Geren (2008). That situation here. III. Sufficiently Serious Questions Make Them Fair Ground for Litigation

In considering less rigorous serious questions standard for preliminary injunction, important recognize first component this standard, addition balance hardships tipping decidedly favor moving party, “sufficiently serious questions going merits make them fair ground litigation .” Kelly F.3d (emphasis added); Jackson Dairy The meaning emphasized phrase rarely receives explicit consideration. Two interpretations possible. phrase could mean questions raised sufficiently serious

legal merit open reasonable debate. That view phrase would be especially appropriate those cases where need preliminary relief precipitously arose just prior to some impending event party seeking temporary relief had adequate opportunity to fully develop legal arguments. Alternatively, addition, phrase could mean that questions raised have sufficiently serious factual merit warrant further investigation discovery and, if summary judgment warranted, trial.

In pending appeal, District stated, “The word ‘serious’ relates question that both serious open reasonable debate.” J. App’x But Judge Ramos declined accept Appellants’ claim just raising constitutional objection sufficed render claim serious. As he observed, if sufficed, “every complaint challenging power one three coordinate branches government would result preliminary relief, regardless whether established law renders complaint unmeritorious.” Id

Our case law indicates phrase “make them fair ground for litigation” often refers those factual disputes can be resolved trial only after investigation facts. We stated questions raised plaintiff’s claims must “so serious, substantial, difficult doubtful make them fair ground litigation thus more deliberate investigation .” Hamilton Watch Co. Benrus Watch Co. (2d Cir. 1953) (emphasis added). emphasized words appear have originated in Hamilton Watch , but have been frequently repeated this Court. Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co. , 476 F.2d 687, 692, 93 (2d Cir. 1973); Checker Motors Corp. v. Chrysler Corp. 405 F.2d 323 (2d Cir. 1969); Unicon Management Corp. v. Koppers Co. F.2d (2d Cir. 1966). More recently, we pointed out Citigroup Global Markets a virtue serious ‐ questions standard “that permits entry an injunction cases where factual dispute renders a fully reliable assessment merits impossible.” F.3d (emphasis added). For example, Jacobson & Co. Armstrong Cork Co. (2d Cir. 1977), we affirmed preliminary injunction under serious ‐ questions standard because plaintiff had presented affidavits, depositions, exhibits sufficient contest factual issue reason employee’s termination, see id

We need not choose between these meanings “fair ground litigation.” Appellants not entitled preliminary injunction under serious questions standard because (1) standard, discussed, see Part I, does apply preliminary injunctive relief sought prevent governmental action, (2) even if applicable, standard requires balance hardships tips decidedly plaintiff, requirement met case, see Point IV. We point out that, extent that serious ‐ questions standard furnishes an opportunity develop legal arguments concerning a reasonably debatable question, Appellants have fully developed their positions pages briefs they have submitted. To extent that serious questions standard available for factual development issue, Appellants have identified single factual issue that might warrant trial single witness or document might add substance their claims at trial.

Furthermore, both their statutory constitutional claims, though serious least some sense, lack merit, and, because they both involve solely issues law, properly rejected this stage litigation, s ee Munaf ‒ except for limited remand we have ordered. IV. Balance Hardships/Equities hardship for Appellants if preliminary injunction denied would

result loss privacy their financial documents. We have recognized loss privacy irreparable. In assessing seriousness loss purposes determining balance hardships, we note loss will be somewhat mitigated extent sensitive personal information some documents will disclosed pursuant procedure ordered upon remand. The seriousness of the hardship arising from disclosure of the information called for by the subpoenas should be assessed light of the fact the Lead Plaintiff is already required expose for public scrutiny considerable amount personal financial information pursuant the financial disclosure requirement Ethics Government Act, U.S.C. app. §§ ‒ although considerably more financial information is required disclosed subpoenas. hardship for Committees if preliminary injunction granted

would result loss time consider act upon material disclosed pursuant their subpoenas, which will expire end 116th Congress. This loss irreparable. In assessing seriousness loss purposes determining balance hardships, note Committees already been delayed receipt subpoenaed material since April when were issued. They need remaining time analyze material, hold hearings, draft bills possible enactment.

Even if balance these hardships/equities tips favor Appellants, debatable, does do so “decidedly,” Kelly F.3d 184; Jackson Dairy our serious questions standard requires.

V. Public Interest

The public interest vindicating the Committees’ constitutional authority clear substantial. It the interest of two congressional committees, functioning under authority of resolution of the House of Representatives authorizing issue, obtain information enforcement of anti ‐ money laundering/counter ‐ financing of terrorism laws, terrorist financing, movement of illicit funds through global financial system including real estate market, scope Russian government’s operations influence U.S. political process, whether Lead Plaintiff was vulnerable foreign exploitation. opposing interests Appellants, suing only their private capacity, are primarily their private interests nondisclosure financial documents concerning their businesses, rather than intimate details someone’s personal life information disclosure might, Watkins ‒ chill someone’s freedom expression.

We recognize, however, privacy interests supporting nondisclosure documents reflecting financial transactions Lead Plaintiff should accorded more significance than those ordinary citizen because Lead Plaintiff President. Although documents official records Executive Branch, Lead Plaintiff not suing in his official capacity, no executive privilege has been asserted, disclosure of subpoenaed documents can be expected to risk least some distraction of Nation’s Chief Executive performance of his official duties. See Nixon v. Fitzgerald , 457 U.S. 731, 753 (1982) (noting risk distraction one reason establishing immunity of President from civil liability official actions). That concern, note, did dissuade Supreme Court requiring President Nixon to comply with district court’s subpoena produce tape recordings conversations with senior staff, see United States v. Nixon , 418 U.S. 683 (1974), requiring President Clinton submit discovery, including deposition, civil litigation involving pre ‐ presidential conduct, see Jones , 520 U.S. 697 ‒ 706. ^[78] Trump v. Vance , 941 F.3d 641 n. 12 (2d Cir. 2019) (concluding “the disclosure personal financial information, standing alone, unlikely impair President performing duties of his office”), petition for cert. filed No. ‐ (U.S. Nov. 2019).

The Committees’ interests in pursuing their constitutional function a far more significant public interest than whatever public interest inheres avoiding risk Chief Executive’s distraction arising from disclosure documents reflecting his private financial transactions.

Conclusion For all these reasons, conclude under applicable likelihood ‐ ‐ success standard, Appellants’ motion for preliminary injunction was properly denied, except disclosure documents might determined be appropriate withholding disclosure pursuant our limited remand. serious questions standard inapplicable, balance hardships does tip decidedly favor Appellants, public interest favors denial preliminary injunction.

We affirm District Court’s order substantial part extent denied preliminary injunction order prompt compliance subpoenas, except case remanded limited extent implementation procedure set forth opinion concerning nondisclosure sensitive personal information limited opportunity for Appellants object disclosure other specific documents within coverage those paragraphs subpoenas listed opinion. mandate shall issue forthwith, but compliance three procedure implemented remand stayed seven days afford Appellants an opportunity apply Supreme Justice thereof extension stay. D EBRA A NN L IVINGSTON , Circuit Judge , concurring in part and dissenting in part:

Although expressly provided for in the Constitution, Congress’s power to conduct investigations for the purpose of legislating is substantial, “as penetrating far reaching potential power enact appropriate under Constitution.” Eastland v. U.S. Servicemen’s Fund , 421 U.S. 491, 504 n.15 (1975) (quoting Barenblatt v. United States , 360 U.S. 109, 111 (1959)). Yet power unlimited. When Congress conducts investigations in aid of legislation, its authority derives from its responsibility legislate —to consider enactment of new laws or improvement existing ones for public good. ^[1] Congress no power expose personal information sake exposure, see Watkins v. United States 354 U.S. 178, 200 (1957) (expressing “ no doubt there no congressional power expose sake exposure” (emphasis added)), nor may it seek information enforce laws or punish their infraction— responsibilities belong executive and judicial branches respectively, and not it. Id. (noting Congress neither “a law enforcement [n]or trial agency,” “[t]hese are functions executive and judicial departments government”). As Supreme put it: “No inquiry end itself; must related to, furtherance of, legitimate task Congress. Investigations conducted solely personal aggrandizement investigators or ‘punish’ those investigated are indefensible.” Id.

The subpoenas here are deeply troubling. Targeted President United States but issued third parties, they seek voluminous financial information only about President personally, but his wife, his children, his grandchildren, his business organizations, his business associates. ^[2] Collectively, seek personal business banking records stretching back nearly decade (and regard several categories information, with no time limitation whatsoever ) and they make no distinction between business and personal affairs, nor consistently between large and small receipts and expenditures. To be sure, breadth may be necessary legislative subpoenas so that Congress can learn about proposed subject legislation sufficiently enact new laws improve old ones: learning “an indispensable ingredient lawmaking.” Eastland at 505. Still, district court was view routine civil case, would have sent parties into room with instruction “you don’t come out until you come back reasonable subpoena.” J.A. at 94. majority doesn’t disagree. It, too, characterizes “surely broad scope.” Maj. Op. at 45. It acknowledges compliance will “subject [the President’s] private business affairs Committees’ scrutiny,” id. impose irreparable harm, id. 13. It could added personal banking records President his family excluded, neither House committee seeking information will commit treating any portion of as confidential, irrespective of public interest disclosure. J.A. 122–23.

The majority I are agreement on several points. First, agree Right Financial Privacy Act (“RFPA”), U.S.C. §§ 3401–3423, does not apply Congress because, majority correctly concludes, Congress not “Government authority” within meaning statute. Maj. Op. 24–33. We likewise agree U.S.C. § Internal Revenue Code does not pose an obstacle Deutsche Bank AG’s disclosure tax returns possession response Committees’ subpoenas. Id. 34–44. Accordingly, I concur that, statutory arguments presented Plaintiffs, they raised no serious question suggesting House may enforced.

The statutory arguments, however, only arguments presented. majority I agree appeal raises important issue regarding investigative authority two committees United States House Representatives—the House Committee on Financial Services House Permanent Select Committee Intelligence (collectively, “Committees”)—in context their efforts obtain voluminous personal business banking records President United States, members his immediate family, his primary business organization affiliated entities, his business associates. Maj. Op. at In fact, question before us appears only important (as majority acknowledges) but first impression: parties unaware Congress before this one standing or permanent select committee House has issued third party subpoena documents targeting President’s personal information solely rationale this information is “in aid legislation.” Trump Br. 14; Tr. Oral Arg. at 34:24– 35:3–4. But this House now authorized all such House committees issue sort, so long directed information involving this President, his immediate family, business entities, organizations. H.R. Res. 507, 116th Cong. (2019); see H.R. Res. 509, 116th Cong. § 3 (2019) (“House Resolution hereby adopted.”).

In context, “experience admonishes us tread warily.” United States v. Rumely U.S. (1953). I agree majority our review denial preliminary injunction “appropriately more exacting where action sought enjoined concerns President . . view ‘[t]he high respect owed office Chief Executive,’” Maj. Op. (quoting Cheney Dist. U.S. (2004)). We disagree, however, the preliminary injunction standard be applied. In my view, a preliminary injunction may issue case this sort when movant demonstrated sufficiently serious questions going the merits make them fair ground litigation, plus balance hardships tipping decidedly that party’s favor, that public interest favors injunction, and that movant, as here, will otherwise suffer irreparable harm. See Citigroup Glob. Markets, Inc. VCG Special Opportunities Master Fund Ltd ., 35, (2d Cir. 2010).

And as merits showing, I respectfully disagree majority’s determination that Plaintiffs’ constitutional arguments and those raised United States as amicus curiae insubstantial —not sufficiently serious closer review. Maj. Op. at 89–98. I cannot accept majority’s conclusions that “this case does not concern separation powers,” id at that there “minimal best” risk distraction this future Presidents this sort, id. 97. Instead, I conclude Plaintiffs have raised serious questions merits, implicating only Congress’s lawmaking powers, but ability future Presidents discharge duties Office President free myriad inquiries instigated “more casually less responsibly” than contemplated our constitutional framework. Rumely

Nor do I agree with majority’s determination substantially affirm judgment order compliance these subpoenas. The majority itself recognizes these broad cannot be enforced precisely drafted because they call for production material may either bear “an attenuated relationship” any legislative purpose “might [even] reveal sensitive personal details having no relationship Committees’ purposes.” Maj. Op. (emphasis added). The majority remands culling process pursuant information disclosing, instance, payment medical expenses would exempt from disclosure. Id majority’s limited culling, however, tightly restricted specified categories information, leaving out almost all “business related financial documents” from review district court, id. irrespective any threatened harm disclosure, potentially leaving out substantial personal information well. Indeed, given tight limitations imposed majority the district court’s review, even sensitive records reflecting personal matters unrelated to any conceivable legislative purpose could potentially be disclosed.

I agree with majority that remand necessary. But disagree as reasons why. I conclude that present record insufficient support majority’s determination voluminous records Plaintiffs sought Deutsche Bank AG (“Deutsche Bank”) Capital One Financial Corporation (“Capital One”) should this time be produced. The majority concludes advance—before these records have been assembled—that only select “few documents ” will implicate privacy concerns or bear “such attenuated relationship” purpose “they need not disclosed.” Maj. Op. (emphasis added). I disagree present record sufficient make determination conclude, more fundamentally, where balance hardships lies regard preliminary relief Plaintiffs seek. In this sensitive separation ‐ powers context, serious questions have been raised to historical precedent these subpoenas; whether Congress employed procedures sufficient to “prevent separation power responsibility,” Watkins U.S. seeking this President’s personal information; and whether supported by valid legislative purposes and seek information reasonably pertinent to those purposes, see Quinn United States (1955) (noting that Congress’s power to investigate “cannot used to inquire into private affairs unrelated to valid legislative purpose”). These questions, like balance hardship question, also require further review.

As set forth herein, I would remand, directing district court promptly implement procedure Plaintiffs may lodge their objections disclosure with regard specific portions assembled material so that Committees can clearly articulate, with regard specific categories information, purpose supports disclosure pertinence information purpose. The objective this remand creation record sufficient more closely examine serious questions Plaintiffs raised determine where balance hardships lies regard injunction case, concerning particular categories information. district court acknowledged routine civil case, would have ordered disclosures here. majority errs in implicitly concluding President less protection unreasonable disclosure his personal business affairs than would afforded litigant in civil case.

Only on basis this fuller record would I determine question whether preliminary injunction should issued, regard what portions records sought. In reaching conclusion, I am guided by Supreme Court’s counsel Rumely context delicate constitutional issues involving limits on investigative power Congress, our duty avoid pronouncement “unless no choice left.” Rumely U.S. 46; cf. Cheney , U.S. 389–90 (suggesting courts should “explore other avenues” avoid adjudicating “overly broad discovery requests” “unnecessarily broad subpoenas” present “collision course” conflicts between coequal branches). Indeed, Rumely affirms duty constitutional avoidance “even more applicable” context congressional investigations “than formal legislation.” Rumely 46; see Tobin United States (D.C. Cir. 1962) (recognizing duty courts appropriate circumstances avoid “passing serious constitutional questions” presented Congress’s exercise investigative power). Decision here may be required, but is premature on the present record.

Remand will afford the parties an opportunity negotiate. This is essential point remand I propose, but efforts at negotiation this context are be encouraged, since they may narrow scope these subpoenas, thus avoid judicial pronouncement on “broad confrontation now tendered.” United States Am. Tel. & Tel. Co ( AT&T I ), (D.C. Cir. 1976). Plaintiffs have repeatedly sought opportunity negotiate. Reply Br. at 6–7; Tr. Oral Arg. at 17:18–19, 18:3–20, 66:7 ‐ 67:2. And Committees, while preferring more immediate disposition that majority affords them, have expressed willingness attempt negotiation on an expedited basis if requested this Court. Tr. Oral Arg. 46:8–19.

To be clear, and as set forth herein, the Plaintiffs have raised serious questions the merits as these subpoenas, which implicate profound separation ‐ of ‐ powers concerns. ^[7] But pending the full remand that I outline remand for negotiation futile because the President prohibited certain members of the Administration from appearing in connection with the ongoing impeachment inquiry. Maj. Op. at 71–72, 72 n.66. With respect, however, this letter references only the “impeachment inquiry” and not the legislative investigations at issue here. This letter thus provides no basis for this Court disregard the express representations of the Plaintiffs’ attorney that the Plaintiffs, including the President, seek negotiate in good faith.

[7] majority suggests that these subpoenas do not implicate separation of powers because, inter alia , President Trump not suing his official capacity. Maj. Op. I disagree. As Rumely , “we would be that ‘blind’ Court . . that does not see what ‘(a)ll others can see and understand,’” not recognize these target President seeking personal and business financial records of not only the President himself, but his three oldest children and members of their immediate family, plus records of Trump Organization and litany of organizations which President affiliated. Rumely 345 U.S. 44 (quoting Bailey v. Drexel Furniture Co ., 259 20, 37 (1922)); see id. (acknowledging “wide concern, both out of Congress, over some aspects exercise congressional power of investigation”); cf. Dep’t Commerce v. New York S. Ct. 2551, (2019) (noting courts are “’not required exhibit naiveté from ordinary citizens are free’’’(quoting United States Stanchich (2d Cir. 1977) (Friendly, J.))). Indeed, Committees themselves acknowledge “President Trump Trump Organization” are focus their investigations, see Cong. Rec. H2698 (daily ed. Mar. 2019) (statement Rep. Waters), “given closely held nature Trump Organization,” investigation must “include [the President’s] close family members,” District Doc. No. 25–26. To be sure, Presidents immune subpoenas. But I explain below, this dragnet around President implicates separation ‐ ‐ powers concerns future Presidents, supporting remand all Plaintiffs here. To extent certain requested records may ultimately be found implicate separation ‐ powers concerns, determination can only properly made following remand development record.

herein, I defer for now question whether they have shown balance hardships tipping decidedly their favor. remainder opinion sets out reasons my conclusions: (1) Plaintiffs raised serious constitutional questions these legislative subpoenas; (2) serious question formulation preliminary injunction standard applicable, contrary majority’s position.

I A To reiterate, here very troubling. Congress “cannot legislate wisely or effectively absence information respecting conditions legislation intended affect change.” Eastland U.S. 504. At same time, ill conceived inquiries congressional committees “can lead ruthless exposure private lives order gather data” unrelated unhelpful performance tasks. Watkins And “arduous delicate task” courts seeking accommodate “the congressional need particular information” individual’s “personal interest privacy,” id. does grow easier when Congress seeks President’s personal information. Indeed, given “unique constitutional position the President” our scheme of government, see Franklin v. Massachusetts U.S. 788, 800 (1992), the grave importance diligent and fearless discharge the President’s public duties, our task grows more difficult. Nixon v. Fitzgerald U.S. (1982) (recognizing that distraction public duties “to detriment not only President his office but Nation Presidency was designed serve”). majority disagrees. It concludes this case “does not concern separation powers” because sought after records personal, not official, because Congress “has not arrogated itself any authority Executive Branch,” nor “sought limit authority Executive Branch.” Maj. Op. With respect, however, conclusion gives too short shrift Supreme Court’s analysis Clinton Jones (1997), on majority principally relies. There, Supreme concluded permitting civil case go forward “relat[ing] entirely unofficial conduct individual who happens be President” did represent per se impermissible intrusion federal judiciary executive power doctrine separation powers did impose categorical rule all private actions must stayed against President while office. Id. 705–06. At the same time, however, the Court recognized that insufficient that a branch “not arrogate power itself”: “the separation of ‐ powers doctrine [also] requires that branch not impair another the performance of constitutional duties .” Id. at (emphasis added) (quoting Loving v. United States U.S. 748, (1996)); see also Nixon Admin’r of Gen. Servs. U.S. 425, 443–45 (1977). And judiciary context private litigation against sitting President, “[t]he high respect owed office Chief Executive,” recognized, “though justifying rule categorical immunity, matter should inform conduct entire proceeding, including timing and scope discovery.” Id. at ; see Fitzgerald at 751–56 (noting “special nature President’s constitutional office functions,” id. “singular importance,” id. 751, her duties require particular “deference restraint,” id. conduct litigation involving President). majority concludes legislative third parties targeting President’s personal financial information, however broad tangentially

connected purpose, do seriously implicate separation powers theory “any concern arising risk distraction performance of the [President’s] official duties minimal,” Maj. Op. at perhaps less than that, id. at 103–05, at least as compared the potential burden of standing trial in a civil case while President, Jones held not categorically prohibited by separation ‐ of ‐ powers concerns. ^[8] But this analysis flawed in two key respects.

First, Jones Court concluded that burden in that case—namely, a civil suit against President while in office—did categorically constitute “constitutionally forbidden impairment of Executive’s ability perform its constitutionally mandated functions” light of long history of judicial review executive action and of presidential amenability judicial process. U.S. at 702; see also id. at 701–06. In assessing separation ‐ ‐ powers issue, Court heavily weighed pragmatic accommodation between judiciary executive demonstrated longstanding interbranch practice. id. at 704–05 (discussing historical practice manner in judiciary permissibly burdened Executive Branch). It directed inferior courts even it rejected rule of categorical immunity, President’s unique role in constitutional framework should inform entire conduct of civil action, id. at 707, “the availability of sanctions” would “provide[] significant deterrent litigation directed at President in his unofficial capacity purposes of political gain harassment,” id. 708–09. The Jones was thus solicitous separation ‐ powers concerns in context of litigation over President’s personal conduct; moreover, continued long tradition placing “great weight” on historical practice addressing questions “concern[ing] allocation power between two . . . branches Government,” NLRB Noel Canning 573 U.S. 524 (2014) (quoting The Pocket Veto Case , 279 U.S. 655, 689 (1929)). ^[9]

Here, parties have identified, and my own search failed to unearth, previous example, any previous Congress, of a standing or permanent select committee of House of Representatives or Senate using compulsory process to obtain documents containing a President’s personal information from a third party aid of legislation. Trump Br. at 14; Tr. of Oral Arg. at 34:24–35:4. Historical practice instead suggests that, on few past occasions President’s personal documents have been subpoenaed from third parties, requests have emanated either from special committee established and authorized pursue specific, limited investigation or committee proceeding under impeachment power. It possible relevance past practice separation ‐ ‐ powers issues). President Andrew Johnson had his personal bank records examined part

his impeachment, but those records appear have been relevant because personal loans made him by Treasury Department. See Stephen W. Stathis, Executive Cooperation: Presidential Recognition Investigative Authority Congress Courts J.L. & Pol. 183, (1986); see also Michael Les Benedict, The Impeachment President Andrew Johnson, 1867–68 Congress Investigates: A Critical Documentary History 254, 264–68 (Roger A. Bruns et al. eds., rev. ed. 2011). President Clinton may have had some financial information, very least some financial information then–First Lady Hillary Clinton, examined Whitewater Special Committee, though appears have been turned over voluntarily. See S. Rep. No. 280, 155–61 (1996). The House Senate Banking Committees appear have subpoenaed witnesses testify regarding Whitewater death Vince Foster; however, they do appear subpoenaed President’s personal financial information. Stephen Labaton, Whitewater Affair: The Hearing; House Committee Told Contacts Over Whitewater N.Y. Times, July A1 (describing testimony); Raymond W. Smock, contrary example exists. But the historical precedent the congressional subpoenas here, contrast to the judicial processes assessed in Jones , sparse at best, and perhaps nonexistent. ^[11] And this paucity of historical practice alone The Whitewater Investigation and Impeachment of President Bill Clinton, 1992–98 , 2 Congress Investigates: A Critical and Documentary History supra at 1041, 1044–45. President Nixon voluntarily disclosed several years of tax returns to a House Committee; that same Committee used statutory authority not at issue here to procure additional information from the IRS. See S. Rep. No. ‐ 768, 1–3 (1974); Memorandum from Richard E. Neal, Chairman, to Members of the H. Comm. on Ways and Means (July 25, 2019), https://perma.cc/UYZ2 ‐ QTCU. Other investigations do not appear to have involved either subpoenas of President’s personal financial information subpoenas to third parties to obtain documents concerning President personal capacity. generally Stathis, supra . Notably, dearth historical practice here may be partially attributable to fact that “[t]he authority to issue subpoena was once delegated full House its committees very sparingly because power appears long have been deemed

too serious matter general delegation.” Todd David Peterson, Contempt Congress v. Executive Privilege U. Pa. J. Const. L. (2011) (internal quotation marks and citation omitted). It appears House did authorize standing committees issue subpoenas until Id. 107. Moreover (and more generally), should noted disputes between two elected branches over congressional historically been resolved through process direct negotiation and accommodation between these two branches, undertaken outside supervision federal courts. See, e.g., Comm. Judiciary, House Representatives Miers, F. Supp. 2d 56–57 (D.D.C. 2008) (noting “negotiation accommodation . . most often leads resolution disputes between political branches” “strongly encourag[ing] political branches resume their discourse negotiations effort resolve their differences constructively”). majority rejects this approach due view case does involve separation powers, Maj. Op 69–73; however, given expressed willingness parties negotiate my view separation ‐ powers concerns present here, traditional practice further negotiation viable resolution.

reason courts to pause in assessing this dispute between President and two House committees. ^[12]

The second flaw in majority’s analysis lies in its assumption third ‐ party subpoenas sort pose, at best, “minimal” risk of distraction to this future Presidents. Maj. Op. at Contrary to majority’s suggestion, not at all difficult to conceive how standing committees exercising authority to issue third ‐ party subpoenas in aid legislation might significantly burden presidents with myriad inquiries into their business, personal, family affairs. See Watkins 354 U.S. at 205 (recognizing potential “ruthless exposure private lives” by committees seeking information “neither desired by Congress nor useful it”); cf. Jones, U.S. at 701–02 (considering likelihood frivolous civil litigation against President could overly burden Executive Branch). Jones relied on relative rarity civil litigation against past presidents discount concerns distraction, see but subjects on legislation might be had are vast. ^[13] And risk of undue distraction from ill ‐ conceived inquiries might be particularly acute today, in an era in which (as Supreme Court individual Justices have repeatedly acknowledged) digital technologies have lodged an increasingly large fraction even our most intimate information in third party hands. See, e.g., Riley v. California, 573 U.S. 373, 395 (2014) (discussing how “Internet search browsing history” can “reveal individual’s private interests or concerns”); Carpenter v. United States S. Ct. (2018) (acknowledging “powerful private companies” collecting “vast quantities data about lives ordinary Americans”) (Alito, J., dissenting); United States Jones U.S. (2012) (noting in digital age, “people reveal great deal information about themselves third parties in course carrying out mundane tasks”) (Sotomayor, J., concurring).

To clear, suggest President immune from legislative into personal matters—not at all. But D.C. Circuit recognized in Trump v. Mazars (while concluding House Committee on Oversight and Reform possessed authority issue subpoena President Trump’s accounting firm), “separation ‐ ‐ powers concerns still linger in air” with regard such subpoenas. Trump Mazars USA , LLP , (D.C. Cir. 2019). And in such circumstance, there reason conclude courts must only undertake “arduous delicate task” “[a]ccommodat[ing] . . congressional need particular information individual personal interest privacy,” Maj. Op. (quoting Watkins U.S. 198). They must take equally sensitive task ensuring Congress seeking President’s personal information aid legislation, employed “procedures which prevent separation power from responsibility,” Watkins (discussing procedures context threat individual rights congressional investigations), ensure due consideration separation ‐ powers concerns Supreme identified deemed essential for judicial respect in Jones. Jones, 520 U.S. at 707 (noting “high respect owed office of Chief Executive,” while mandating categorical immunity from suit private conduct while in office, should “inform conduct of entire proceeding, including timing and scope of discovery”); Cheney , U.S. at (noting President’s “constitutional responsibilities status [are] factors counseling judicial deference restraint” conduct litigation) (quoting Fitzgerald (alteration Cheney )).

B These subpoenas are deeply problematic when considered against backdrop these separation ‐ ‐ powers concerns. In fact, this much evident even cursory consideration differences between present case Mazars only other precedent directly addressing a legislative subpoena served third party seeking a President’s personal financial information. In Mazars D.C. Circuit recently upheld subpoena directed President’s accounting firm, concluding that it had properly issued in connection consideration changes laws relating financial disclosures required Presidents. Mazars F.3d At same time, Mazars pointedly suggested articulation just any rationale for concluding a sitting President’s personal information might inform a committee considering potential legislation not enough state a valid legislative purpose:

Just a congressional committee could not subpoena President’s high school transcripts service an investigation into K education, nor subpoena his medical records part an investigation into public health, it may not subpoena his financial information except facilitate an investigation into presidential finances.

Id. at 733. Key the result Mazars then (and assuming, arguendo was correctly decided) was the majority’s conclusion there was “no inherent constitutional flaw laws requiring Presidents publicly disclose financial information” and the subpoena on face thus properly sought relevant information “about subject on which legislation may be had.” Id. at (quoting Eastland at 508).

This case significantly different, at least issued Committee on Financial Services. This Committee seeks universe financial records sufficient reconstruct over decade President’s business personal affairs, connection with consideration legislation involving Chief Executive, but because President, his family, his businesses present “ useful case study ,” according Committee, for inquiry into lending practices institutions Deutsche Bank Capital One. District Court Doc. No. 25. More specifically, Committee investigating “whether existing policies and programs at financial institutions adequate ensure safety and soundness lending practices and prevention loan fraud,” id. at 12, as well as “industry ‐ wide compliance with banking statutes and regulations, particularly anti ‐ money laundering policies,” id. 13. The Committee urges that “[b]ecause his prominence, much already known about Mr. Trump, his family, and his business, and this public record establishes that they serve useful case study for broader problems” under consideration. Id. 25. The majority endorses statement legislative purpose and intimates (albeit no evidence record before us) that past transactions between Deutsche Bank President his pre presidential business life may violated banking regulations “no other bank would extend credit” President Trump. Maj. Op. n.67,

To be sure, legislative issue not when all known, but reasonable theory “[a] body cannot legislate wisely effectively” without obtaining “information respecting the conditions the legislation intended affect or change.” Eastland , 421 U.S. at 504 (quoting McGrain Daugherty U.S. (1927) (alteration Eastland )). But rationale proffered these subpoenas House Financial Services Committee falls far short demonstrating clear reason why congressional investigation aimed generally at closing regulatory loopholes banking system need focus on over decade financial information regarding this President, his family, his business affairs. ^[18] Nor does proffered rationale reveal how broad purposes pursued by Committee consistent with granular detail these seek. Watkins (noting troubling tendency some legislative investigations “probe depth detail . . removed any basis action” “turn their attention past collect minutiae remote topics”).

This reason pause. As suggested by Judge Katsas in his dissent from denial rehearing in banc in Mazars “uncompromising extension of McGrain v. Daugherty ” this new context raises serious question whether future Presidents will be routinely subject distraction third ‐ party subpoenas emanating from standing committees in aid legislation—a practice there scant historical precedent, as already discussed. Trump Mazars USA, LLP, No. ‐ WL *1 (D.C. Cir. Nov. 13, 2019) (Katsas, J., dissenting denial rehearing en banc). Some case study rationale (in instance, learn whether regulators were adequately equipped scrutinize Deutsche Bank’s Capital One’s lending practices in relation President before he obtained Office Chief Executive) will always be present. But regular issuance third party legislative by single committees one House Congress targeting President’s personal information would something new, potentially impairing public perceptions branch by fueling perceptions standing committees engaged, legislating, but opposition research. More relevant here, investigative practices Congress, undertaken “more casually and less responsibly” than is the constitutional ideal, see Rumely , U.S. at 46, pose serious threat to “presidential autonomy and independence,” Mazars WL *1 (Katsas, J., dissenting from the denial rehearing en banc). And this is substantial concern our constitutional scheme, which relies on the proposition the occupant the Office Chief Executive is positioned to “‘deal fearlessly and impartially with’ [its] duties,” even Presidents may be “easily identifiable target[s]” legal process, personally vulnerable by virtue “visibility [the] office the effect [their] actions on countless people.” Fitzgerald U.S. 752–53 (quoting Ferri Ackerman U.S. (1979)).

To sure, third subpoena Deutsche Bank, which is identical Deutsche Bank subpoena issued by Committee on Financial Services, emanates from Permanent Select Committee Intelligence more closely linked consideration legislation related Office Chief Executive this President’s affairs, recent candidate. ^[20] The majority correct, moreover, that once presented with adequate evidence legislative authorization and purposes, it is not the province courts to inquire into legislators’ motives, see Maj. Op. at 50–51, that “motives alone would not vitiate an investigation had been instituted by House Congress if assembly’s legislative purpose is being served.” Watkins U.S. at 200.

At same time, as the majority also affirms, the record must provide “sufficient evidence legislative authorization purposes to enable meaningful judicial review.” Maj. Op. at And this is particularly case when congressional investigation even potentially trenches upon constitutional however, no House resolution appears specifically reference this investigation, at least relates efforts seek President’s financial information, nor legislative purpose easy square with extraordinary breadth Deutsche Bank subpoenas. The Chair, moreover, has affirmed Committee’s investigation furtherance Congress’s duty “ensure officials—including President— are serving national interest and, if not, are held accountable.” Press Release, Permanent Select Comm. Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 2019), bit.ly/2UMzwTE. Plaintiffs argue subpoena thus furtherance legislative purposes, but represents an effort by Committee itself conduct intelligence law enforcement activities. Trump Br. 35–36. Indeed, oral argument, Committees’ lawyer appeared explicitly equate these those issued connection federal criminal investigations. Tr. Oral Arg. 59:14–60:2. While I do decide whether Intelligence Committee affirmatively avowed improper purpose, amorphous nature Committee’s purpose would clarified my proposed remand, would connection between purpose particular disclosures sought. limits on Congress’s investigative power. Rumely U.S. (noting such limits should identified by courts only after “Congress has . . . unequivocally authoriz[ed] an inquiry dubious limits”). Indeed, in circumstances, Supreme Court has made clear courts are look “instructions an investigating committee,” as “embodied authorizing resolution,” ascertain whether legislative assembly “assay[ed] relative necessity specific disclosures.” Watkins U.S. 206. Considered light separation ‐ powers concerns persist regard these subpoenas, Plaintiffs have raised serious question this front as well.

As both House Financial Services Intelligence Committee subpoenas, there open question whether these have been authorized House Representatives manner permitting Court determine whether they are “in furtherance . . legitimate task Congress.” Watkins As Watkins explained, “[t]he theory committee inquiry committee members serving representatives parent assembly collecting information purpose” “the House Senate shall instructed committee members on what they do with power delegated to them.” Id. at 200– The majority acknowledges Watkins ’s requirement an authorizing resolution “spell out [an investigating committee’s] jurisdiction purpose with sufficient particularity” ensure “compulsory process is used only in furtherance a legislative purpose.” Id. at 201; see Maj. Op. at 79–80. Critically, moreover, majority itself recognizes “[i]t is clear whether this passage can be satisfied” regard these subpoenas by principal instruction place here, at time subpoenas issued: namely, instruction “that House gives a committee pursuant a House rule defining a standing committee’s continuing jurisdiction.” Maj. Op. at 52–53.

The majority treats House Resolution 507 cure ‐ all solution this key uncertainty, rejecting Plaintiffs’ argument it is properly considered subject authorization purposes because issued after subpoenas themselves. But House Resolution 507 falls far short a specific “authorizing resolution” issued to make clear that designated committee to undertake investigation on particular subject within its domain. To be sure, McGrain found sufficient resolution did “in terms avow that it [was] intended be aid legislation,” on theory “the subject matter was [a] presumption should be indulged” legislating “was real object.” 177–78. But context like this, presenting serious constitutional concerns, courts “have adopted policy construing . . . resolutions . . narrowly, order obviate necessity passing on serious constitutional questions.” Tobin 274–75. And this resolution face discusses none here, nor even work committees they issued. Instead, House Resolution authorizes any subpoena, standing or permanent select committee, already issued or future be issued so long as it concerns President, his family, his business entities organizations: personal information, where President must able efficiently (and without undue distraction) determine what, if any, steps she should take, either assist inquiry or, here, litigate. I need address question, however, because, even assuming Resolution properly considered, serious question remains whether constitutes what majority acknowledges required: “sufficient evidence authorization purposes enable meaningful judicial review.” Maj. Op.

Resolved, That House Representatives ratifies and affirms all current and future investigations, well as all subpoenas previously issued or to issued future, by any standing or permanent select committee House, pursuant jurisdiction established by Constitution United States and rules X and XI Rules House Representatives, concerning or issued directly or indirectly —

(1) President his personal or official capacity; (2) his immediate family, business entities, or organizations; . .

(9) any third party seeking information involving, referring, or related any individual or entity described paragraphs (1) through (7).

H.R. Res. 116th Cong. (2019); see H.R. Res. 509, 116th Cong. § (2019) (“House Resolution hereby adopted”).

By purporting authorize third party all past and future investigations into President’s personal official business, Resolution would appear run directly into primary concern Watkins “[b]roadly drafted loosely worded” resolutions can “leave tremendous latitude discretion investigators,” thus permit committees “in essence, define [their] own authority,” id. As Watkins emphasized, “[a]n essential premise” underlying investigatory powers congressional committee compel production documents or attendance individual “is House Senate shall instructed committee members what they do power delegated them.” Id. at 201. Absent instruction, subpoenas defy judicial review, Watkins understood, because “it impossible . . declare [a committee] ranged beyond area committed it its parent assembly.” Id. at

To clear, Watkins addressed this problem context House proceeding implicating private citizen’s constitutional liberties, not separation powers. But its caution still relevant: “excessively broad charter[s]” investigating committees make difficult, if impossible, courts “to ascertain whether legislative purpose justifies disclosures sought and, if so, importance information Congress furtherance function.” Id. 205–06. With respect, majority thus errs dismissing Department Justice’s concern blank ‐ check approach adopted here authorizing third party seeking personal information about President his family represents “a failure House exercise ‘preliminary control Committee[s],’” see Brief United States Amicus Curiae (quoting Watkins 203)—a failure which only throws into question adequacy authorization case, but raises significant issues future regarding interbranch balance ability this and future Presidents perform their duties without undue distraction, id. at 5–7; see Jones, 520 U.S. at 690 (noting that “representations made on behalf of the Executive Branch as the potential impact” of inquiries on the Office of the President “merit our respectful and deliberate consideration”). ^[22] In short, Resolution 507 itself, given its retrospective and prospective nature, and its purported authorization of all third party committee subpoenas seeking only official, but personal information about the President, his family, his businesses, presents serious question as whether House has discharged its “responsibility . . in first instance, insure compulsory process is used only furtherance of legislative purpose.” Watkins, U.S. at 201.

II

These third ‐ party legislative thus raise serious questions on merits, implicating substantial separation ‐ of ‐ powers concerns. In context, Rumely ’s caution kicks in, “counsel[s] abstention adjudication unless no choice is left.” U.S. 46. The majority disagrees, asserting even assuming serious questions regarding separation powers have been raised, affirmance here is still required because our “serious questions” approach whether preliminary injunction should issue unavailable context these third party subpoenas. I already outlined my disagreement with majority’s determination that “this case does concern separation powers,” Maj. Op. 89, that questions raised, even if “serious in at least some sense, lack merit,” id . I disagree supposed unavailability our traditional preliminary injunction approach. Indeed, I conclude, respect, that majority badly errs in deciding that this approach is unavailable in sensitive context challenges congressional subpoenas.

As Supreme made clear in Winter v. Natural Resources Defense Council, Inc. “[a] plaintiff seeking a preliminary injunction must establish he likely succeed on merits, he likely suffer irreparable harm absence preliminary relief, balance equities tips his favor, injunction public interest.” (2008). majority acknowledges that, required merits showing, repeatedly said Circuit “district courts may grant preliminary injunction where plaintiff . . meets either two standards: ‘(a) likelihood success merits, (b) sufficiently serious questions going merits make them fair ground litigation.’” Maj. Op. 11–12 (quoting Kelly Honeywell Int’l, Inc. (2d Cir. 2019)). When plaintiff demonstrated only “serious needs further factual development before legal issues here can adequately assessed. questions” merits, however, the plaintiff higher burden as the third element: he must show that balance hardships tips decidedly in his favor. See Kelly , 933 F.3d at 184; Maj. Op. at 11–12. majority acknowledges that have reaffirmed our traditional approach in wake Supreme Court’s decision in Winter . See Citigroup , F.3d at (“hold[ing] our venerable standard assessing movant’s probability success merits remains valid”). ^[24] Irreparable harm in question in this case, moreover, because, inter alia Plaintiffs interest in keeping their banking records private Congress and neither House committee will commit treating portion voluminous personal and business records they seek confidential. J.A. at 122–23. In circumstances, majority I in agreement compliance with these will cause irreparable harm President, his family, his businesses, his business associates. Maj. Op. 13–14. majority asserts a preliminary injunction nonetheless unavailable

based on our “serious questions” formulation merits inquiry because so ‐ called “government action exception” this formulation, expressed this Court’s decision Plaza Health Laboratories, Inc. v. Perales , F.2d 577, 580 (2d Cir. 1989). I disagree. To sure, our case law recognized three narrowly defined situations which movant cannot obtain preliminary injunction under “serious questions” formulation. id. ; Tom Doherty Assocs. , Inc. v. Saban Entm’t, Inc. , F.3d 33–34 (2d Cir. 1995); Abdul Wali v. Coughlin , F.2d 1015, (2d Cir. 1985). But Plaza Health majority relies, applicable.

To explain my conclusion requires step back our traditional formulation, set forth why Circuit was correct reaffirm our serious question approach—and, indeed, why err today expanding formulaic exception it. While sometimes styled our case law own “standard,” see, e.g. Otoe Missouria Tribe Indians N.Y. State Dep’t Fin. Servs. (2d Cir. 2014), “sufficiently serious questions, plus balance hardships tipping decidedly favor moving party” approach is actually separate test all, but rather way articulating one point on single sliding scale balances likelihood success against hardship determining whether preliminary injunction should issue. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice Procedure § 2948.3 (3d ed.) (Westlaw) (database updated August 2019) (hereinafter “Wright & Miller”) (referring Second Circuit’s “serious questions” formulation as “[p]robably most often ‐ quoted statement” sliding scale principle). Likelihood success, while “particular importance” inquiry, determinative, but must be considered balanced with relative hardship each side likely face determination whether an injunction issues, so called “serious questions” standard emerging simply one point sliding scale injunction may be warranted. Id. This flexible approach particularly well ‐ suited preliminary injunction context, where courts act pursuant equitable principles. See, e.g. Holland Florida 649–50 (2010) (“In emphasizing need flexibility . . have followed tradition in which courts equity sought relieve hardships which, from time to time, arise hard fast adherence more absolute legal rules, which, if strictly applied, threaten evils archaic rigidity.” (internal quotation marks, alterations, citations omitted)).

Against backdrop, our so ‐ called “exceptions” serious questions formulation are best understood prescriptive terms, but articulation principles guiding application sliding scale calculus particular scenarios. As relevant here, Plaza Health “exception” thus reflects considered judgment, drawing equitable ideas, “[w]here moving party seeks stay government action taken public interest pursuant statutory or regulatory scheme,” serious questions formulation should be generally unavailable precisely because balance hardships so unlikely tip decidedly in party’s favor. Able United States , F.3d (2d Cir. 1995) (quoting Plaza Health , F.2d at 580). In issuing a preliminary injunction based conclusion it does court impermissibly “substitute[s] own determination public interest” one reflected in statutory or regulatory scheme. Id. 132.

Accordingly, where government action been fairly characterized taken pursuant statutory or regulatory scheme, we have generally applied likelihood ‐ success standard. Citigroup F.3d n.4 (articulating exception limited situations in which “a moving party seeks stay government action taken public interest pursuant statutory or regulatory scheme”). And where movants have sought preliminarily enjoin government action pursuant federal statutory regulatory scheme, explained context action, “developed through presumptively reasoned democratic processes” resulting “the full play democratic process involving both executive branches,” difficult envision circumstance movant could demonstrate balance hardships tips decidedly his favor. Able majority argues that Plaza Health exception sweeps more broadly, relying this proposition on cases involving action taken by state and local governments. ^[27] Maj. Op. 15–16. While certain of these cases did analyze why Plaza Health exception was applicable, appear simply to assumed that government action in question was taken pursuant to a statutory or regulatory scheme, see, e.g. , Cent. Rabbinical Cong. , 763 F.3d 192; Monserrate , 599 F.3d 154, those did engage with analysis explicitly identified a statutory or regulatory scheme accordingly concluded presumptive public interest weighed against movant, see, e.g. , NAACP , 70 F.3d 223; see also, e.g. Otoe ‐ Missouria Tribe Indians , 769 F.3d 110 (determining New York’s ban on certain loans was “a paradigmatic example governmental action taken public interest, one vindicated proven policies implemented through legislation or regulations” therefore applying likelihood ‐ success standard (internal quotation marks citations omitted)). ^[28]

Where, by contrast, government action has not been taken pursuant specific statutory regulatory scheme, narrow Plaza Health exception has been applied, precisely because public interest been presumed rest single party. This explains why recently upheld denial preliminary injunction sought by President Trump restrain enforcement grand jury subpoena issued by New York County District Attorney without applying Plaza Health exception determining applicable preliminary injunction standard. Trump v. Vance F.3d 639–40 (2d Cir. 2019). It explains our decision Haitian Centers Council, Inc. v. McNary (2d Cir. 1993), judgment vacated moot by Sale Haitian Ctrs. Council, Inc ., (1993) , which applied serious questions standard an injunction sought against actions Immigration and Naturalization Service only after rejecting government’s argument action was taken “pursuant Congress’[s] broad grant authority [Immigration Nationality Act],” reasoning “in litigation presented herein, no party exclusive claim public interest,” id; see also, e.g. , Patton v. Dole , 806 F.2d 24, 29–30 (2d Cir. 1986); Hudson River Sloop Clearwater, Inc. v. Dep’t Navy , F.2d 760, (2d Cir. 1988); Mitchell v. Cuomo F.2d 804, 806–07 (2d Cir. 1984); cf. Carey Klutznick F.2d (2d Cir. 1980) (rejecting Census Bureau’s argument “the public interest [rests] solely with it”). government action issue instant case plainly falls outside

current confines narrow Plaza Health exception. Here, far situation movant seeks enjoin action product “the full play democratic process,” Able these legislative subpoenas, due respect, do constitute governmental action pursuant statutory regulatory scheme do reflect presumptively public interested actions both executive branches. Rather, each subpoena product sub ‐ component of a single chamber of one branch of the federal government and, critically, implicates the interests another branch. ^[29]

The majority’s approach, concludes that, because the Committees act pursuant to powers under the Constitution, such action should “[s]urely . . not” be evaluated under “less rigorous standard” than that “applied to plaintiffs seeking to preliminary enjoin state and local units government” in cases as Central Rabbinical Congress Monserrate , Maj. Op. at 20–21, is misguided two reasons. First, by deeming the “serious questions” standard to be less rigorous, the majority ignores the fact the ultimate burden is equivalent under both standards. More fundamentally, the majority errs categorically extending Plaza Health exception situation in which “no party has an exclusive claim on public interest,” Time Warner Cable of N.Y.C. v. Bloomberg L.P. , F.3d (2d Cir. 1997) (quoting Haitian Centers F.2d 1339), when so called “government action exception” is premised entirely on assumption public interest weighs decidedly against movant.

To clear, preliminary injunctions constitute extraordinary form of relief should issue lightly. See, e.g. Mazurek Armstrong (1997) (quoting Wright & Miller § 2948). The majority’s expansion our so ‐ called “government action exception” into delicate arena congressional investigations, however, unwise, precisely because context flexible application equitable principles vital. Historically, federal courts undertaken some their most difficult assignments context reviewing actions congressional committees. Supreme thus been required take on ”arduous delicate task” “[a]ccommodat[ing] . . . congressional need particular information among others, concluded Citigroup Supreme Court’s decision Winter revealed “no command . . would foreclose application our established ‘serious questions’ standard means assessing movant’s likelihood success merits” against other components required obtain preliminary relief. individual personal interest in privacy.” Watkins U.S. 198. It been called upon address “[g]rave constitutional questions” presented when “the power Congress investigate” appears encroach on limits on power imposed by Bill Rights and, particular, First Amendment. Rumely Disputes between congressional committees Presidents arising subpoenas, as here, also not uncommonly require courts “search accommodation between two branches”—a task this Circuit’s flexible approach making difficult judgment whether preliminary injunction should issue is particularly well ‐ suited. United States Am. Tel. & Tel. Co (“ AT&T II ”), F.2d (D.C. Cir. 1977).

In short, we should not deprive ourselves our traditional approach sensitive context. As we affirmed Citigroup “[r]equiring every case showing ultimate success merits more likely than ‘unacceptable general rule,’” “deprive[s] remedy much utility.” 35–36 (quoting Wright & Miller § 2948.3). Because case squarely covered Plaza Health other previously articulated “exception,” I conclude bound (and should) undertake our usual approach: namely, consider Plaintiffs’ showing merits, balance hardships (merged here with public interest inquiry, see Nken Holder (2009)), irreparable harm determine whether injunction warranted under either likelihood success serious questions standard. As set forth already, moreover, these subpoenas do, in fact, present serious questions implicating only investigative authority these two House committees, but separation powers between Congress Presidency.

* * * Having determined Plaintiffs raised serious questions merits, usual case, next step would be assess balance hardships. But this leads my final point departure majority. majority orders immediate compliance these save for “few documents should excluded” pursuant call restricted culling certain records assembled under specific subpoena categories. Maj. Op. In contrast, I would remand limited culling ordered majority, but would instead remand full, directing district court assist development record regarding purposes, pertinence, privacy, separation ‐ powers issues stake case.

I would request the district court on remand promptly to implement procedure by the Plaintiffs identify privacy pertinency grounds specific portions the material assembled response to these subpoenas for nondisclosure. Like the majority, I would then provide counsel for the Committees with opportunity to object, but I would require counsel, provided with general description material, to articulate clearly the legislative purpose disclosure serves to specify how the material sought pertinent to purpose. Even assuming, arguendo Committees act pursuant adequate authorization from House as whole, serious questions persist ends Committees pursuing whether these ends are adequate justify sought after disclosures. A fuller record would permit more informed calculus regarding balance hardships would further clarify stakes serious questions Plaintiffs already raised. This full remand superior majority’s approach least three reasons.

First most fundamentally, remand is necessary here because present record does not permit full assessment either serious questions raised by these novel subpoenas or balance hardships regard specific disclosures. The present record is wholly insufficient support conclusion voluminous material sought pursuant these should this time be produced. Serious questions arising lack historical precedent these subpoenas, their questionable authorization, their purposes, pertinence particular disclosures remain. The record hardship, moreover, sparse, does reflect either parties’ concerns disclosure nondisclosure particular categories information sought these extraordinarily broad subpoenas. majority disagrees on both counts, concluding while questions here may be “serious,” they without merit, Maj. Op. 100–01, even if balance hardships tips Plaintiffs’ favor, does do so “decidedly,” Maj. Op. For reasons already expressed, however, I cannot join assessment.

Next (and notably), broader remand necessary here, even taking majority on own terms—even assuming (incorrectly) district court’s judgment could substantially affirmed present record. This because majority’s remand inadequate to address privacy and pertinency concerns that majority itself identifies and deems important. As to sensitive personal information an unspecified category “nonpertinent” material, majority concludes Plaintiffs should afforded an opportunity to object in a routine civil case. Fed. R. Civ. P. 26(c)(1). Perhaps such material does exist. We cannot know until documents assembled and objections are made. privacy pertinency concerns majority purports address simply cannot be addressed in abstract. And declining a full remand permit a record be made, majority affords less protection against unwarranted disclosure personal information regarding sitting President his family than would be afforded litigant civil case.

Finally, I disagree majority’s implicit assessment Plaintiffs have demonstrated no stake privacy their business ‐ related information merits further review. Indeed, extent majority does show reasonable concern needless disclosure Plaintiffs’ private nonpertinent information, concern does generally extend private business information all, even though such information may implicate same issues privacy (non)pertinence. To sure, majority correct Congress must ability investigate businesses (even closely held ones) aid legislation. And investigations, serving public good, will sometimes cause competitive harm. But particularly light very broad disclosure sought by these (which, with regard to many transactions, could require production information from both this year from decades ago), majority has proffered no clear reason denying Plaintiffs opportunity to object more generally to disclosure material.

The majority argues that hardship business disclosures offset in this case by fact Presidents already “expose public scrutiny a considerable amount personal financial information pursuant financial disclosure requirement Ethics in Government Act, U.S.C. app. §§ 111.” Maj. Op. But this beside point—or perhaps makes point majority’s approach problematic.

Public disclosures made pursuant Ethics Government Act required by law, pursuant a statute run gantlet bicameralism presentment. In making disclosures pursuant Act, President complies statute presumptively reflects democratically enacted consensus protective orders prevent public disclosure “confidential . . commercial information,” protection afforded offered Plaintiffs by Committees here. The majority does include these competitive harms “irreparable injuries” analysis, restricting its focus only “loss privacy.” Maj. Op. 101–02. irreversible nature competitive harm risked immediate unconditional disclosure, lack safeguards common typical discovery procedures civil litigation, further buttress my view these subpoenas, drafted, raise serious questions remand would aid resolving.

regarding financial disclosures that Chief Executive should be required make. These House subpoenas, by contrast, require “considerably more financial information,” as majority concedes, but themselves raise substantial questions as whether they supported by “sufficient evidence authorization purposes enable meaningful judicial review.” Maj. Op. And as Judge Katsas suggested dissent from denial rehearing banc Mazars scope required disclosure “is determined . . by whim Congress—the President’s constitutional rival political power—or even, as this case, one committee one House Congress.” Mazars WL *1 (Katsas, J., dissenting denial rehearing en banc). In circumstances, taking majority’s analysis its own terms, it clear why majority limits its remand particular categories information selected, opposed permitting more general opportunity object regarding nonpertinent business information irreparable injury will attend disclosure.

For all reasons I have laid out here, matter should be returned district court. remand I outlined would clarify issues stake so reasoned determination could made whether serious questions persist, and where the balance of hardships lies. Indeed, given the lack of historical precedent these subpoenas; their extraordinary breadth; and persistent questions here regarding authorization, purposes, pertinence, remand development of record regard specific categories information far preferable majority’s approach.

Such procedure would encourage negotiation between parties potentially narrow scope this dispute. Because I conclude, contrary majority, this case implicates Supreme Court’s caution “tread warily” matters pitting power Congress investigate against other substantial constitutional concerns, Rumely U.S. because “serious questions” delineated above sound separation powers, see Pub. Citizen Dep’t Justice (1989) (noting Supreme Court’s “reluctance decide constitutional issues especially great where . . they concern relative powers coordinate branches government”), matter falls within range cases should attempt, if possible, “avoid resolution might disturb balance power between two branches,” AT&T II Perhaps possible here. But D.C. Circuit recognized past, congressional committees Chief Executive “have long history settlement disputes seemed irreconcilable” and resolutions, where possible, to be preferred, since “[a] court decision selects victor, and tends thereafter tilt scales.” AT&T I, F.2d at 394; see also id. at (noting possibility “better balance . . . in constitutional sense” “political struggle and compromise,” rather than court decision); Rumely at 45–46 (noting “[c]ourt’s duty avoid constitutional issue, if possible, applies merely legislation . . but congressional action by way resolution”— indeed, most especially in this context).

Accordingly, I would withhold decision balance hardships remand permit district court parties opportunity provide this with adequate record regarding purpose, pertinence, privacy separation powers issues this case. Such procedure, AT&T I 394–95, AT&T II F.2d 128–32, could narrow scope present dispute. But required event, because record simply does support majority’s decision order immediate compliance these subpoenas, but “few documents,” Maj. Op. falling within preselected categories. To clear, I reach resolution guided Supreme Court’s admonition Rumely outer reaches Congress’s investigative power are identified reluctantly, and only after Congress “has demonstrated full awareness what at stake unequivocally authorizing inquiry dubious limits.” U.S. 46. Serious questions persist with regard these subpoenas—questions demanding close review lest novel prove threat presidential autonomy only now but future, “to detriment only President his office but Nation Presidency was designed serve.” Fitzgerald Once parties have provided information I would seek on remand, would point sufficient record on make prompt reasoned determination where balance hardships lies whether Plaintiffs, having raised serious questions merits, entitled preliminary relief.

Notes

[1] issued Committee on Financial Services dated, but were informed oral argument they were issued April

[2] They Donald J. Trump Revocable Trust, Trump Organization LLC, DJT Holdings LLC, DJT Holdings Managing Member LLC, Trump Acquisition LLC, Trump Acquisition, Corp.

[3] Trump Deutsche Bank , No. 19 cv ‐ 3826 (S.D.N.Y. 2019), Dkt. No. 1 (Apr. 29, 2019).

[4] Id. , Dkt. No. 26 (May 3, 2019).

[5] Id. , Dkt. No. 31 (May 3, 2019).

[6] Id. , Dkt. No. 21 (May 1, 2019).

[7] Id. Dkt. No. (May 7, 2019).

[8] Id. Dkt. No. (May 2019).

[9] Id. Dkt. No. (May 2019).

[10] Id. , Dkt. No. 61 (May 25, 2019).

[11] Id. , Dkt. No. 62 (May 28, 2019).

[12] Trump Deutsche Bank , No. 19 ‐ 1540 (2d Cir. 2019), Dkt. No. 5 (May 25, 2019).

[13] Id. , Dkt. No. 8 (May 31, 2019). In parties’ joint motion expedite appeal, Committees agreed if appeal were expedited, they would suspend compliance with during pendency appeal “except extent subpoenas call production documents unrelated person entity affiliated Plaintiff Appellants.” J. Mot. Expedite 2, id. , Dkt. No. 5 (May 25, 2019). Granting motion expedite appeal therefore rendered moot appeal District Court’s order extent denied stay pending appeal.

[14] Id. Dkt. Nos. (July 11, 2019), 71 (July 12, 2019).

[15] Id. Dkt. No. (July 2019).

[16] Id. Dkt. No. (July 2019).

[17] Id. Dkt. No. (Aug. 19, 2019).

[18] Id. Dkt. Nos. (Aug. 2019).

[19] The first component of the “serious ‐ questions” standard has sometimes been phrased as requiring a party seeking a preliminary injunction to show “sufficiently serious questions going to the merits of its claims to make them fair ground for litigation.” Otoe ‐ Missouria Tribe of Indians v. New York State Dep’t of Financial Services , 769 F.3d 105, 110 (2d Cir. 2014). That formulation raises the question whether the referent of “them” “claims” or “serious questions.” Normally, the referent of a pronoun the word phrase immediately preceding it. That would mean that a plaintiff’s “claims” must be sufficiently serious to make them a fair ground for litigation. But the Otoe ‐ Missouria Tribe formulation could also be read to mean the “serious questions” must be sufficiently serious to make them fair ground for litigation. The origin and evolution of the serious ‐ questions standard indicate what must be sufficiently serious to fair ground litigation the questions the plaintiff’s claims raise, the claims themselves (although the distinction probably makes little, if any, difference in practice). The first version what become first component serious ‐ questions standard appears in Hamilton Watch Co. v. Benrus Watch Co. , 206 F.2d 738 (2d Cir. 1953), where we referred to “questions going to merits so serious, substantial, difficult doubtful, to make them fair ground for litigation,” id. at 740 (emphasis added). This formulation was repeated verbatim later same year in Unicon Management Corp. v. Koppers Co. , 366 F.2d 199, 205 (2d Cir. 1966), Dino DeLaurentis Cinematografica, S.p.A. v. D ‐ 150, Inc., 366 F.2d 373, 376 (2d Cir. 1966). This formulation was substantially repeated three years later in Checker Motors Corp. v. Chrysler Corp. , 405 F.2d 319 (2d Cir. 1969), but omission word “doubtful,” id . at 323. Three years later, in Stark v. New York Stock Exchange , 466 F.2d 743 (2d Cir. 1972), we shortened formulation just “serious questions going merits.” Id . 744. following year, in Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co. , 476 F.2d 687 (2d Cir. 1973), expanded short version “serious questions going merits warrant further investigation trial.” Id Later year, in Sonesta International Hotels Corp. v. Wellington Associates , 483 F.2d 247 (2d Cir. 1973), there first appeared current version formulation, “sufficiently serious questions going merits make them fair ground litigation.” Id. 250 (emphasis added). This formulation was repeated verbatim series cases. Triebwasser & Katz v. American Telephone & Telegraph Co ., 535 F.2d 1356, 1358 (2d Cir. 1976); New York v. Nuclear Regulatory Commission , 550 F.2d 745, 750 (2d Cir. 1977); Selchow & Richter Co. v. McGraw ‐ Hill Book Co ., 580 F.2d 27 (2d Cir. 1978); Caulfield v. Board Education , 583 F.2d 605, (2d Cir. 1978); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. F.2d 72 (2d Cir. 1979); see William H. Mulligan, Foreword ― Preliminary Injunction Second Circuit Brook. L. Rev. (primarily considering requirement irreparable injury). Thereafter, district courts this Circuit cited Jackson Dairy formulation serious questions standard innumerable times, citing references collected Westlaw indicate, until Plaza Health Laboratories, Inc. Perales (2d Cir. 1989), formulation was rephrased “sufficiently serious questions going merits

[21] Counsel Committees said District Court, “[J]ust because documents are turned over Congress, that itself is not irreparable injury. question is if Congress was going disclose them. So just turning it over Congress irreparable injury.” J. App’x

[22] One opinion noted that “[b]ecause moving party must only show there ‘serious questions’ going merits, but must additionally establish ‘the balance hardships tips decidedly ’ favor, its overall burden no lighter than one bears under ‘likelihood success’ standard.” Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd. , F.3d (2d Cir. 2010) (citation omitted) (emphasis original). Although might have been situation facts case, there can no doubt, repeatedly said, likelihood ‐ ‐ success standard more rigorous than serious ‐ questions standard. e.g. Central Rabbinical Congress & Canada New York City Dep’t Health & Mental Hygiene (2d Cir. 2014) (likelihood ‐ success

[23] Uncertainty use the Winter formulation all preliminary injunctions remained after the Supreme Court’s decision the next year in Nken Holder , U.S. (2009). In language similar that used Winter , the Court identified the four factors applicable the grant stay pending appeal––“(1) whether the stay applicant made strong showing he likely succeed merits; (2) whether the applicant will irreparably injured absent stay; (3) whether issuance stay will substantially injure other parties interested proceeding; (4) where public interest lies.” Id . (quotation marks omitted). then stated “[t]here substantial overlap between these [four factors] factors governing preliminary injunctions,” although two “one same.” Id In Winter first factor did include words “strong showing,” U.S. 20; second factor used word “likely” modify “suffer irreparable harm, id. ; third factor was “the balance equities tips [the plaintiff’s] favor,” id .; fourth factor was an injunction “is public interest,” id. Unlike Winter had set out four factors applicant preliminary injunction “must establish,” id. Nken said applicable legal principles “have been distilled into consideration four factors.” (emphasis added).

[24] RFPA defines “law enforcement inquiry” “a lawful investigation or official proceeding inquiring into violation of, or failure comply with, any criminal or civil statute or regulation, rule, order issued pursuant thereto.” U.S.C. § 3401(8).

[25] Electronic Funds Transfer & Financial Privacy: Hearings on S. 2096, S. 2293, & S. Before the Subcomm. on Financial Institutions of the S. Comm. on Banking, Housing, & Urban Affairs 95th Cong. (1978) (hereinafter “ Hearings ”). Hearings includes draft bill, dated May 1978, referred “Title XI—Right Financial Privacy,” which identified by note stating, “This Draft represents the combined views of Departments of Justice the Treasury, subject further revision.” Hearings n.*. The definition section of bill provides: “‘[G]overnment authority’ means Congress of United States or any agency or department United States or of State or political subdivision, or any officer, employee or agent any foregoing.” Hearings (emphasis added) (explaining definitional provision, § 1101(3)). This provision only explicitly made bill applicable Congress, but it also reflected view Justice Treasury “agency or department United States” did include Congress. Hearings also contains section by ‐ section analysis Justice ‐ Treasury draft bill submitted May Hearings & n.*. That analysis includes following explanation coverage draft bill: “The ‘government authorities’ whose actions restricted bill include any agency or department United States or any State or political subdivision, or their officers, employees, agents. Congress covered since may use financial records investigations same privacy rights should adhere.”

[26] Even if Congress had Bramblett mind, decision based interpretation “department” on “development, scope purpose of” statute issue case. RFPA does share same historical development section because Court’s decision was based text section, there no reason think Congress, when enacting RFPA, believed Bramblett ’s interpretation would extend other uses word “department.”

[27] I include publisher citations decisions nominative reports because slight variations among versions 19th century publishers. Jon O. Newman, Citators Beware: Stylistic Variations Different Publishers’ Versions Early Supreme Opinions J. Sup. Ct. Hist. (2001).

[28] Each side makes opposing arguments based section 3412(d) RFPA, provides: “Nothing this chapter shall authorize withholding information officer or employee supervisory agency [defined section 3401(7)] from duly authorized committee or subcommittee Congress.” Appellants contend that “[i]f congressional were never intended come within statute’s scope, there would no reason include provision.” Br. Appellants 42. Committees respond this provision concerns transfers documents pursuant section 3412(a), makes clear requirements applicable when agency or department obtains documents financial institution apply transfers another agency department, “Congress emphasized, however, these transfer provisions—like RFPA’s other requirements—did apply Congress.” Br. Committees

[30] Id. , Dkt. No. 161 (Aug. 27, 2019).

[31] See Letter from Raphael A. Prober, counsel Deutsche Bank, Clerk Court, Second Circuit Court Appeals, No. 19 ‒ 1540, Dkt. No. 160 (Aug. 27, 2019).

[32] Letter James A. Murphy, counsel Capital One, Clerk Court, Second Circuit Appeals, No. 19 ‒ 1540, Dkt. No. 165 (Aug. 27, 2019).

[33] No. 19 ‒ 1540, Dkt. Nos. 168 (Sept. 11, 2019), 181 (Sept. 18, 2019).

[34] Id. Dkt. No. (Sept. 18, 2019).

[35] Id. Dkt. Nos. 186, 188, (Sept. 27, 2019).

[36] Id. Dkt. No. (Oct. 2019).

[37] See Letter from Douglas N. Letter, General Counsel, House Representatives, Clerk Court, Second Circuit Court Appeals, No. ‒ 1540, Dkt. No. (Aug. 27, 2019).

[38] Letter Patrick Strawbridge, counsel President Donald J. Trump, Clerk Court, Second Circuit Appeals, No. ‒ Dkt. No. (Aug. 2019).

[39] The committees specified paragraph (1) section 6103(f) House Committee Ways Means, Senate Committee on Finance, Joint Committee on Taxation. § 6103(f)(1). Code defines “Secretary” “the Secretary Treasury his delegate.” § 7701(a)(11)(B).

[40] Letter Patrick Strawbridge, counsel President Donald J. Trump, Clerk Court, Second Circuit Appeals No. ‒ Dkt. No. (Aug. 29, 2019).

[41] returns had been obtained someone’s forgery application them. Hrubec National Railroad Passenger Corp., F. Supp. (N.D. Ill. 1991).

[42] Letter Letter from Raphael A. Prober Clerk Court, Second Circuit Appeals, No. ‒ Dkt. No. (redacted version) (Aug. 27, 2019); id ., Dkt. No. (unredacted version filed under seal) (Aug. 2019).

[43] Courts recognized additional, though less clearly delineated, source Congress’s investigative authority, namely, Congress’s “informing function.” Supreme explained although Congress cannot “expose sake exposure,” has power “to inquire into publicize corruption, maladministration inefficiency agencies

[45] Watkins cites, U.S. n.34, among other cases, Eisler v. United States 170 273 (D.C. Cir. 1948), D.C. Circuit stated, “[D]efense counsel sought introduce evidence show Committee’s real purpose summoning appellant was harass and punish him for his political beliefs Committee acted for ulterior motives not within scope its or Congress’ powers. The lower court properly refused admit such evidence, ground court had no authority scrutinize motives Congress or one its committees.” Id 278–79 (quotation marks ellipsis omitted). In Tenney Brandhove (1951), Supreme provided caution courts asked consider legislators’ motives: “In times political passion, dishonest or vindictive motives readily attributed conduct readily believed. Courts are place such controversies. Self discipline voters must be ultimate reliance discouraging correcting abuses. courts should go beyond narrow confines determining committee’s inquiry may fairly deemed within province.” Id. (footnote omitted).

[46] The subpoena challenged Mazars seeks four categories documents somewhat different from those sought by challenged on appeal, and seeks documents purposes significantly different Committees’ purposes, point out infra categories are: various financial statements and reports compiled Mazars USA, LLP, engagement agreements preparation such statements and reports, supporting documents used preparation such statements reports, and memoranda, notes, and communication related compilation auditing statements reports. Decl. William S. Consovoy, Ex. A Trump v. Committee Oversight Reform United States House Representatives F. Supp. 3d (D.D.C. 2019) (No. cv ‐ (APM)), ECF No. 9 ‐ aff’d Trump Mazars USA, LLP (D.C. Cir. 2019).

[47] Appellants made “clear statement” argument their briefs case.

[48] H.R. Res. disclaims need adoption, stating: “Whereas validity some [the pending] investigations subpoenas [relating President] been incorrectly challenged Federal court grounds investigations were authorized

[52] D.C. Circuit explained relevant Senate resolution “imposes Subcommittee itself” “function calling witnesses,” “the whole function determining who witnesses would was de facto delegated Subcommittee counsel.” Shelton

[53] report explains under House Rule X, Oversight Committee “is review various plans and, consultation with Speaker, Majority Leader, Minority Leader, report House oversight plans along with recommendations House leadership Committee may ensure effective coordination. Pursuant rule, Committee Oversight Reform reviewed consulted House leadership about oversight plans standing House committees 116th Congress.” H.R. Rep. No.

[54] Implementation FinCEN’s Customer Due Diligence Rule—Regulator Perspective: Hearing Before Subcomm. on Terrorism & Illicit Finance H. Comm. on Financial Services 115th Cong. (2018); Examining BSA/AML Regulatory Compliance Regime: Hearing Before Subcomm. on Financial Institutions & Consumer Credit H. Comm. Financial Services 115th Cong. (2017).

[55] Corporate Transparency Act 2019, H.R. 2513, 116th Cong. (bill reform corporate beneficial ownership disclosures increase transparency); COUNTER Act 2019, H.R. 2514, 116th Cong. (bill strengthen Bank Secrecy Act anti ‐ money ‐ laundering laws); Vladimir Putin Transparency Act, H.R. 116th Cong. (as passed House, Mar. 2019) (bill require Executive Branch agencies submit assessment Congress regarding financial holdings Russian President Vladimir Putin top Kremlin connected oligarchs).

[56] https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=447.

[57] David Enrich, Deutsche Bank Trump: $2 Billion Loans Wary Board N.Y. Times, Mar. 2019, https://www.nytimes.com/2019/03/18/business/deutsche bank ‐ donald ‐ trump/html.

[58] Donald J. Trump, President, Executive Branch Personnel Public Financial Disclosure Report (Office Government Ethics Form 278e) (May 2018).

[59] The Committees cite examples following bills: Duty to Report Act, H.R. 2424, 116th Cong. (2019) (bill to require campaign officials to notify law enforcement if offered assistance by foreign nationals and to report all meetings foreign agents); KREMLIN Act, H.R. 1617, 116th Cong. (as passed by House, Mar. 12, 2019) (bill to require Director National Intelligence submit to Congress intelligence assessments Russian intentions relating to North Atlantic Treaty Organization Western allies); Strengthening Elections Through Intelligence Act, H.R. 1474, 116th Cong. (2019) (bill require intelligence threat assessment prior every federal general election); For People Act H.R. 1, 116th Cong. (as passed House, Mar. 2019) (bill improve election security oversight provide national strategy enforcement combat foreign interference).

[60] had previously said Quinn power investigate “cannot used inquire into private affairs unrelated valid purpose .” (emphasis added).

[61] After the D.C. Circuit’s decision in Mazars Appellants and the Committees sent letters to Court, reporting and commenting on decision. See Letter from Patrick Strawbridge, counsel President Donald J. Trump, to Clerk of Court, Second Circuit Court of Appeals, No. ‒ 1540, Dkt. No. 202 (Oct. 14, 2019); Letter from Douglas N. Letter, General Counsel, House of Representatives, to Clerk of Court, Second Circuit Court of Appeals, No. ‒ 1540, Dkt. No. (Oct. 11, 2019). In view D.C. Circuit’s ruling affirming denial an injunction to prohibit compliance with subpoena there challenged, Appellants’ letter stating “the Mazars majority agreed subpoenas here unconstitutional” presses limits advocacy. The Committees’ letter states, “This should join D.C. Circuit upholding validity issue here.”

[62] footnote p.

[63] As stated Chairman Cummings: “The Committee has full authority to investigate

[1] whether President may engaged illegal conduct before and during his tenure office,

[2] to determine whether he has undisclosed conflicts interest may impair his ability make impartial policy decisions,

[3] assess whether he complying Emoluments Clauses Constitution, and

[4] review whether he accurately reported his finances Office Government Ethics other federal entities. Committee’s interest these matters informs review multiple laws proposals under our jurisdiction, suggest otherwise both inaccurate contrary core mission Committee serve independent check on Executive Branch.” Memorandum Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, Members Comm. Oversight & Reform (Apr. 2019).

[64] We note neither principal nor reply brief Appellants mentions word “impeachment.”

[65] Judge Livingston reports oral argument Committees “affirmed willingness negotiate expedited basis, if requested Court.” Part. Diss. Op. colloquy

[67] In District Court, Committees stated, “Because his prominence, much already known about Mr. Trump, his family, and his business, and public record establishes that they serve as a useful case study for broader problems being examined by Committee.” Opposition Intervenors Plaintiffs’ Motion for a Preliminary Injunction 16, Dist. Ct. Dkt. No. (May 10, 2019). Appellants repeatedly point phrase “case study” argue that Committees are not only focusing Lead Plaintiff but also doing so for law enforcement purposes. Br. Appellants 15, 31, 33, However, long as valid purposes are duly authorized being pursued by use challenged subpoenas, fact relevant information obtained serves a useful “case study” does detract from lawfulness subpoenas. Furthermore, congressional examination whether regulatory agencies are properly monitoring bank’s practices does convert inquiry into impermissible law enforcement, neither committee has made any allegation Lead Plaintiff Appellants has violated law. Moreover, when borrower can obtain loans only one bank, bank has already lent borrower $130 million, bank been fined connection $10 billion money laundering scheme, situation appropriate case study circumstances congressional committee authorized monitor how well banking regulators discharging their responsibilities whether new legislation needed.

[68] Replying assertion by Committees, amicus brief United States says, “The bare fact ‘majority’ other subpoenas may confined President’s information hardly suggests present subpoenas part general inquiry into reforms financial system, President his family have been caught up merely chance . . .” Br. Amicus United States (emphases original). Committees make no claim seek financial records Lead Plaintiff, his family, his business entities “by chance.” As recounted, Committees have explicitly set out circumstances make financial records Lead Plaintiff affiliated persons business entities appropriate subjects inquiry.

[69] e.g. Mobile Bolden (1980) (“Our decisions, moreover, have made clear that action by State that racially neutral face violates Fifteenth Amendment only if motivated discriminatory purpose.”); see generally Andrew Verstein, The Jurisprudence Mixed Motives, Yale L.J. (2018).

[70] Complaint case alleges following remarks some members Congress. Rep. Waters, Chair Financial Services Committee, said, “I have gavel—and subpoena power—and I am afraid to use it.” Complaint ¶ 37. Another member Congress “stated new House majority would ‘brutal’ President Trump” “[w]e’re going build air traffic control tower keep track all subpoenas flying here White House.” Id . Others “were busy preparing ‘subpoena cannon’ fire President Trump.” Id . Others, “according news outlets interviewed party leaders,” issued statements “meant they were going spend next two years launching ‘fusillade’ order ‘drown Trump investigations,’ ‘turn Trump’s life upside down,’ ‘make Trump’s life living hell.’” Id ¶

[71] To whatever extent Judge Ramos might understood as treating informing function additional source Congress’s power, he did not rely source authority, mentioning it only part general overview Congress’s powers.

[72] In Hutchinson Supreme arguably contradicted statement when said, “[T]he transmittal . . . information by individual Members order inform public [about their activities Congress] part legislative function or deliberations make up process.” However, Court’s next sentence makes limited context clear: “As result, transmittal information by press releases newsletters protected Speech Debate Clause.” Id

[73] For example, paragraph 1(v) Deutsche Bank calls for production “any document related monitoring for . . possible suspicious activity,” paragraph 1(vii) calls production “any document related request information issued or received Deutsche Bank AG pursuant Sections 314(a) 314(b) USA PATRIOT Act,” provisions concern money laundering.

[74] U.S.C. § (appellate court “may remand cause . . require further proceedings had may be just under circumstances.”).

[75] Review may initiated letter Clerk Court, referencing existing docket number, without need file notice appeal.

[76] Judge Livingston seeks to minimize the significance Clinton v. Jones on several grounds . First, she attempts to refute our point that this case does not involve separation ‐ ‐ powers concerns, Part. Diss. Op. ‒ but doing so, she accords little significance to the major reason point: the Lead Plaintiff suing his individual, not his official, capacity. She then seeks relegate Jones to near insignificance referring to “longstanding interbranch practice,” id . again ignoring the fact litigation a conflict between branches Government. The fact United States filed only an amicus curiae brief, rather than intervene assert interests United States those office President, underscores absence a true interbranch conflict. The point compliance with subpoenas will impact Lead Plaintiff’s time sufficient bar compliance arises from comparison with Clinton v. Jones Supreme Court required President be available deposition subject civil trial. so called distraction Lead Plaintiff far less significance than what Supreme Court permitted with respect President Clinton. In sum, Judge Livingston offers no reason think compliance will distract Lead Plaintiff performance official duties greater extent than Supreme permitted Clinton Jones

[77] amicus brief asserts District Court “assumed had no authority deal overbroad character congressional here.” Br. Amicus United States (citing J. App’x 138). We see no indication District made assumption, either cited reference District Court’s opinion elsewhere opinion.

[78] In Jones , Supreme stated, “The fact federal court’s exercise its traditional Article III jurisdiction may significantly burden time attention Chief Executive sufficient establish violation Constitution.” same can said Congress’s exercise traditional Article I jurisdiction. One court discounted concern compliance document requests might distract President performance official duties noting “the President himself appears had little reluctance pursue personal litigation despite supposed distractions imposes upon his office.” District Columbia Trump F. Supp. 3d (D. Md. 2018) (collecting examples), rev’d other grounds (lack standing) In re Trump (4th Cir. 2019).

[1] None these issued in connection impeachment proceeding, in which Congress’s investigatory powers their peak, but rather, stated, “in aid legislation.” Kilbourn v. Thompson (1880) (noting “[w]here question . . impeachment before [the House or Senate] acting appropriate sphere on subject, see no reason doubt right compel attendance witnesses, their answer proper questions, same manner use same means courts justice can like cases”); Senate Select Comm. Presidential Campaign Activities Nixon (D.C. Cir. 1974) (citing Article I, Section Constitution when noting impeachment investigations House “an express constitutional source” differentiates them Congress’s general oversight power).

[2] Plaintiff entities here are defined include only parents, subsidiaries, related joint ventures like, but any “current or former employee, officer, director, shareholder, partner, member, consultant, senior manager, manager, senior associate, staff employee, independent contractor, agent, attorney other representative those entities,” so banking records numerous individuals beyond President’s immediate family potentially included dragnet. J.A.

[3] That said, “legislative judgments normally depend more on predicted consequences proposed actions their political acceptability, than precise reconstruction past events,” appears focus present subpoenas. Nixon

[4] Given my determination herein Plaintiffs have made showing “serious questions” merits this case must remanded, I need not now address whether Plaintiffs have satisfied “likelihood success” standard— I do do so, given obligation context avoid unnecessary judicial determinations constitutional questions implicating Congress’s investigative powers. Rumely I note, however, I do concur majority’s determination present reach these subpoenas, Plaintiffs shown no likelihood success.

[5] Plaintiffs challenge subpoenas they relate banking records President Donald J. Trump, his family, his businesses—the Plaintiffs here. Trump Br. To extent subpoenas seek other information related parties who are Plaintiffs, been challenged not part appeal.

[6] Before this Court, counsel for Committees stated that “[i]f this court thinks there should negotiation . . . [p]lease make really, really fast, because we think that Mr. Trump’s statements make clear this is absolutely insincere . . [b]ut fine, give us day.” Tr. Oral Arg. 46:8 ‐ Counsel Plaintiffs specifically affirmed response “I don’t think there is basis determine we are being insincere, I certainly welcome, I think we made clear, sending case back down judicially refereed negotiations whatever timeline court thinks appropriate absolutely something willing participate good faith.” Tr. Oral Arg. 66:21 67:2. Referencing October letter Pat A. Cippolone, Counsel President, Speaker House Representatives three House committee chairs (a letter part record before us), majority concludes

[8] The majority relies on fact that President Trump seeks preliminary injunction his individual capacity, his official capacity, and United States filed an amicus curiae brief rather than motion intervene asserting its view case presents “thorny constitutional questions involving separation powers” and district court’s order should be reversed. Brief United States as Amicus Curiae 27; see Maj. Op. at n.76. In Jones itself, however, President Clinton proceeded his individual capacity United States filed amicus brief addressing separation ‐ powers concerns. nonetheless noted “[t]he representations made behalf Executive Branch as potential impact” rule permitting private litigation proceed against sitting President “merit . . respectful deliberate consideration,” 689–90, concluded, already observed, civil action regarding personal conduct permitted proceed, “the conduct entire proceeding, including timing scope discovery,” should informed respect Office Chief Executive, id.

[9] high value placed historical practice “is neither new nor controversial.” Noel Canning U.S. James Madison observed “regular course practice” could “liquidate & settle” constitutional meaning face “difficulties differences opinion” involved practice government under Constitution. James Madison, Letter Spencer Roane (Sept. 1819), Writings James Madison (Gaillard Hunt ed., 1908)); see Noel Canning (collecting cases stating

[12] This Court’s recent decision Trump Vance (2d. Cir. 2019), contrary. Vance panel explicitly relied “long ‐ settled” amenability presidents judicial process, particular subpoenas issued part criminal prosecution, inform holding state grand jury subpoena third party custodian President’s tax returns issue case was lawful. id. (discussing historical practice ordering presidents comply grand jury subpoenas). Here, there no longstanding practice, question were issued grand jury part criminal investigation.

[13] To clear, while civil litigation against sitting presidents unusual, presidents routinely subjects congressional investigation while in office—as they must be, for appropriate reasons. But there no substantial historical precedent for use subpoena power obtain President’s personal information a third party in aid legislation. And as subpoenas, there no analogue for possibility sanctions in civil litigation context, which Jones relied “provid[ing] significant deterrent litigation directed President his unofficial capacity purposes political gain or harassment.” 708–09. Nor do established rules procedure provide mechanism narrowing congressional so avoid “embarrassment, oppression, or undue burden.” Fed. R. Civ. P. 26(c)(1). Historically, those few instances investigators sought President’s personal documents, Congress instead typically proceeded pursuant political checks inherent invocation impeachment authority narrow authorization afforded special committee.

[14] As noted outset, see supra page parties unable cite Congress before this one which standing committee House Representatives has issued third ‐ party subpoena documents targeting President’s personal information solely aid legislation. practice appears begun committees House Representatives, issued repeatedly, thus raising separation ‐ powers concerns discussed herein.

[15] Judge Rao dissented, concluding even assuming Committee on Oversight Reform had legislative purpose, it had asserted an intent determine “whether President broke law,” an inquiry “must pursued through impeachment,” via Congress’s authority investigate purposes. Mazars (Rao, J., dissenting). In instant case, given need remand here, I need now determine whether House Committees have avowed intent, so I no occasion consider arguments raised Judge Rao’s thorough analysis. However, worth noting nowhere Mazars majority or Judge Rao’s extensive discussion historical practice, id. 718–24 (majority opinion), 757–67 (Rao, J., dissenting), there hint prior occasion on standing permanent select committee used compulsory process obtain documents targeting President’s personal information third party justified solely basis future legislation.

[16] Capital One subpoena, moreover, seeks President’s personal business financial records starting exact date on which he became Republican nominee President—an unusual date, sure, specifying precise moment his banking records became useful point inquiry into possibility tightening up regulation lending practices potentially “broad effects national economy.” District Doc. No.

[17] House Financial Services Committee asserts subpoenas’ objective can derived part House Resolution 206, affirms House “supports efforts close loopholes allow corruption, terrorism, money laundering infiltrate our country’s financial system.” H.R. Res. 116th Cong. (2019). House Resolution however, does materially aid defining more clearly reasons Committee’s “case study” approach, it does call congressional investigation, much less one designated committee, nor does reference President his family.

[18] Thus, majority references fact Deutsche Bank “has been fined connection with $10 billion money laundering scheme.” Maj. Op. n.67. But record devoid claim much less any evidence, fine had anything all do President, his children, his business organizations, his business associates, all whom will irreparably harmed majority’s endorsement “case study” approach House Financial Services Committee.

[19] Such subpoenas, moreover, will inevitably result, here, recourse courts, potentially embroiling them, well, political battles between committees Congress President.

[20] As majority states, Chair Intelligence Committee has publicly affirmed Committee investigating matters related interference Russian government political process information sought from Deutsche Bank will inform proposals protect process foreign influence. Maj. Op 62–64. House Intelligence Committee, moreover, oversight function subpoena could conceivably relate. At same time,

[21] majority’s support conclusion derives solely from cases discussing, contempt prosecution context, what evidence may considered evaluating whether question posed witness before congressional committee was pertinent investigation’s inquiry. Watkins 201–02; Rumely U.S. at 48; Shelton United States (D.C. Cir. 1963); see Maj. Op. 54–58. This issue distinct from threshold question whether committee adequately authorized, so majority must necessarily reason analogy, conclusion far inevitable, particularly context third party aimed President’s

[22] The Department of Justice argues that clear statement rule should apply authorization of seeking President’s personal information. Brief of United States as Amicus Curiae at 10. majority dismisses this argument, noting neither Franklin Massachusetts U.S. nor Armstrong v. Bush (D.C. Cir. 1991), on Department relies, concern congressional subpoenas, but statutes “claimed limit presidential power.” Maj. Op. at 89. But Rumely makes clear duty of constitutional avoidance (implemented, part, through mechanisms clear statement rules) “is even more applicable” context of congressional investigations than interpretation statutes. U.S. at 46. It affirms “[w]henever constitutional limits upon investigative power Congress be drawn . . ought only done after Congress demonstrated its full awareness what at stake unequivocally authorizing inquiry dubious limits.” Id. In short, while I need time reach question, Department’s clear statement argument merits serious consideration, does assertion House’s “blank ‐ check” approach use compulsory process directed President, his family, his businesses runs afoul Watkins ’s caution “[a] measure added care part House Senate authorizing use compulsory process” would help “prevent separation power responsibility.”

[23] majority argues serious questions presented here “are properly rejected stage litigation” because they “involve solely issues law.” Maj. Op. I disagree. As initial matter, our case law recognized that, appropriate circumstances, purely legal issues can present sufficiently serious questions warrant preliminary injunction. See, e.g. Haitian Centers Council, Inc. v. McNary 1339–40 (2d Cir. 1993) (finding sufficiently serious questions going merits based novel questions law presented by plaintiffs’ claims), judgment vacated moot Sale Haitian Ctrs. Council, Inc ., (1993); see also, e.g. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice Procedure § 2948.3 (3d ed.) (Westlaw) (database updated August 2019) (referring “the existence factual conflict, difficult questions law,” components merits showing preliminary injunction context (emphasis added)). Moreover, majority itself remanding some development factual record. As set forth herein, I conclude majority’s limited remand inadequate, record

[24] Citigroup carefully assessed Winter ’s import concluded our traditional approach wholly consistent precedent properly retained, given “[t]he value this circuit’s approach assessing merits claim at preliminary injunction stage,” “lies flexibility face varying factual scenarios greater uncertainties inherent at outset particularly complex litigation.” Citigroup Moreover, Citigroup made clear that, under either “serious questions” “likelihood success” formulation, courts Circuit consider all four elements articulated Supreme Winter id. (citing Winter 20).

[25] As Judge Frank articulated decades ago, when “the balance hardships tips decidedly toward plaintiff,” should “ordinarily enough plaintiff raised questions going merits so serious, substantial, difficult doubtful, make them fair ground litigation thus more deliberate investigation.” Hamilton Watch Co. Benrus Watch Co. (2d Cir. 1953).

[26] Indeed, confining preliminary injunctions circumstances plaintiff shown there no difficult question law could ultimately go against him would “deprive remedy much utility.” Wright & Miller § 2948.3; see Citigroup (noting “[p]reliminary injunctions should mechanically confined cases simple easy,” happens when likelihood ‐ success standard formulaically employed).

[27] See, e.g. , Cent. Rabbinical Cong. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene , 763 F.3d 183, 192 (2d Cir. 2014) (likelihood ‐ ‐ success standard applied to preliminary injunction sought religious organizations against a city ordinance based on court’s conclusion, without further analysis, ordinance constituted “government action taken in public interest pursuant to a statutory or regulatory scheme” (citation omitted)); Monserrate v. N.Y. State Senate , 599 F.3d 148, 154 (2d Cir. 2010) (same, a preliminary injunction seeking to unwind expulsion a state senator); NAACP v. Town East Haven F.3d 219, (2d Cir. 1995) (likelihood ‐ ‐ success standard applied a preliminary injunction seeking enjoin a town from hiring police officers firefighters, based on court’s conclusion town acted “in public interest” “pursuant established municipal regulations state civil service laws”); N.Y. Urban League, Inc. v. State New York F.3d n.7 (2d Cir. 1995) (applying likelihood ‐ ‐ success standard preliminary injunction seeking bar transit authority implementing proposed fare increase on basis action question “was implemented accordance special powers” transit authority board set forth state statute); see Molloy Metro. Transp. Auth. (2d Cir. 1996) (relying New York Urban League applying likelihood ‐ success standard preliminary injunction sought against transit authority’s implementation staff reduction plan).

[28] Such cases may exhibit especial hesitancy part federal courts substitute their own view public interest reached local state governments light principles comity federalism.

[29] Indeed, precisely because this sort implicate separation powers so neither Congress nor the Plaintiffs can be taken to represent the public interest regard their enforcement, D.C. Circuit in Mazars declined to determine, in analogous context, what deference it owed congressional subpoena reviewed case. Mazars , F.3d at 726.

[30] As nature sliding scale, variables move tandem Plaintiffs’ ultimate burden equivalent either way. majority perceives tension between this Court’s observation Citigroup “overall burden” serious questions standard “no lighter than one bears under ‘likelihood success’ standard,” Citigroup F.3d language our other opinions refers likelihood ‐ ‐ success standard as “more rigorous,” see, e.g. Cent. Rabbinical Cong. Maj. Op. n.22. I disagree. Because one standard requires more demanding showing merits correspondingly less demanding showing as hardship, while other standard requires reverse, overall burdens clearly equivalent. Deeming likelihood ‐ success standard “more rigorous” refers only increased rigor required merits showing. It was reason,

[31] As “case study” rationale proffered House Financial Services Committee, instance, if Committee unable more clearly articulate pertinence purposes pursues, see Watkins 214–15, balance hardships may well lie Plaintiffs, who will suffer irreparable harm disclosure their private business affairs.

to disclosure privacy pertinency grounds. It notes “[t]he Committees advanced no reason why legislative purposes they pursuing require disclosure” “payment for anyone’s medical expenses,” for instance, majority thus forbids it. Maj. Op. But providing Plaintiffs opportunity object only limited, specific categories information sought pursuant these subpoenas, majority creates very potential for unwarranted disclosure sensitive information purports disallow. majority thus orders compliance with, for instance, Deutsche Bank subpoena’s demand “any document related any domestic or international transfer funds amount $10,000 or more,” including “check,” J.A. providing no opportunity Plaintiffs object sought after material sensitive related no purpose all. Perhaps there no material responsive category would trigger Rule 26(c)(1)’s protections against “embarrassment, oppression, undue burden”

[32] Federal Rule Civil Procedure 26(c)(1)(G) permits district court issue

Case Details

Case Name: Donald J. Trump v. Deutsche Bank AG

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 3, 2019

Citations: 943 F.3d 627; 19-1540-cv

Docket Number: 19-1540-cv

Court Abbreviation: 2d Cir.