Case 1:19-cv-08694-VM Document 16 Filed 09/23/19 Page 1 of 25

United States District Court
Southern District of New York

1:19-cv-08694(VM)

DONALD J. TRUMP,
Plaintiff,
- against -

CYRUS R. VANCE, JR., in his official capacity
as District Attorney of the County of New York;
and
MAZARS USA, LLP,
Defendants.

MEMORANDUM OF LAW

IN SUPPORT OF CYRUS R. VANCE, JR.’S MOTION TO
DISMISS AND IN OPPOSITION TO PLAINTIFF’S
EMERGENCY RELIEF MOTION
CYRUS R. VANCE, JR.
District Attorney
New York County
Attorney for Defendant
One Hogan Place
New York, New York 10013
(212) 335-9000
By: CAREY R. DUNNE
(CD-1988)
Attorney of Record
CHRISTOPHER CONROY (PRO HAC VICE)
SOLOMON SHINEROCK
JAMES H. GRAHAM
ALLEN J. VICKEY
ASSISTANT DISTRICT ATTORNEYS
Of Counsel

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
DISCUSSION ................................................................................................................................. 2
I. THIS ACTION SHOULD BE IN STATE COURT.................................................................... 4
A. The Mazars Subpoena is a Proper Exercise of the Grand Jury’s Authority to Investigate New
York Conduct, and Any Challenge Should be Lodged in State Court ........................................... 4
B. Under 28 U.S.C. § 2283 and the Younger Abstention Doctrine, This Court Should Deny
Plaintiff’s Emergency Motion......................................................................................................... 5
C. The Process Under 28 U.S.C. § 1442 to Remove a Case from State to Federal Court is Not
Applicable Here ............................................................................................................................ 10
II. THIS COURT SHOULD DENY PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AS HE HAS FAILED TO
SHOW EITHER IRREPARABLE HARM OR A LIKELIHOOD OF SUCCESS ON THE
MERITS ........................................................................................................................................ 11
A. Plaintiff Has Failed to Satisfy His Burden of Showing Irreparable Harm .............................. 12
B. Plaintiff’s Request for Injunctive Relief Must Be Denied, as He Has Failed to Show a
Likelihood of Success on the Merits Based on a Claimed Presidential Immunity from
Investigation That Applies, Not Only To Him, But To Anyone Who Ever Worked for One of His
Companies..................................................................................................................................... 15
C. The Balance of Equities and Public Interest Both Favor Denying Injunctive Relief ............. 19
CONCLUSION ............................................................................................................................. 20

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TABLE OF AUTHORITIES
FEDERAL CASES
Arizona v. Manypenny, 451 U.S. 232 (1981).................................................................................11
Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015)..............................................3, 9
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................2
Astoria Gen. Contracting Corp. v. City of New York Office of Comptroller,
740 F. App’x 747 (2d Cir. 2018) ...............................................................................................2
Astoria Gen. Contracting Corp. v. Office of Comptroller of City of New York,
159 F. Supp. 3d 385 (S.D.N.Y. 2016)........................................................................................2
Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp.,
719 F.2d 42 (2d Cir. 1983).......................................................................................................12
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .....................................................................2
Branzburg v. Hayes, 408 U.S. 665 (1972) .......................................................................................4
Brenntag Int’l Chemicals, Inc. v. Bank of India, 175 F.3d 245 (2d Cir. 1999) ....................... 12-13
Cecos Int’l, Inc. v. Jorling, 895 F.2d 66 (2d Cir. 1990) ..................................................................6
Dombrowski v. Pfister, 380 U.S. 470 (1965) ...................................................................................9
Ex parte Young, 209 U.S. 123 (1908) ..............................................................................................7
Florida v. Cohen, 887 F.2d 1451 (11th Cir. 1989) ........................................................................10
Gibson v. Berryhill, 411 U.S. 564 (1973) ........................................................................................9
Glatzer v. Barone, 614 F. Supp. 2d 450 (S.D.N.Y. 2009),
aff’d, 394 F. App’x 763 (2d Cir. 2010) ..........................................................................3, 5, 7, 9
Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2d Cir. 2005) .............................................................3
In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000) ..........................................................4
In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972,
No. 73-cv-965, 20 (D. Md.) .....................................................................................................17
Juidice v. Vail, 430 U.S. 327 (1977) ................................................................................................7
Kugler v. Helfant, 421 U.S. 117 (1975) .......................................................................................7, 9
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Loftin v. Rush, 767 F.2d 800 (11th Cir. 1985) ...............................................................................10
Martinez v. Bloomberg LP, 883 F. Supp. 2d 511 (S.D.N.Y. 2012),
aff’d, 740 F.3d 211 (2d Cir. 2014) .............................................................................................3
Mesa v. California, 489 U.S. 121 (1989)................................................................................. 10-11
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) .......................6
Mirka United, Inc. v. Cuomo, 2007 WL 4225487 (S.D.N.Y. 2007) ................................................6
Moore v. Sims, 442 U.S. 415 (1979) ................................................................................................7
N.A.A.C.P., Inc. v. Town of E. Haven, 70 F.3d 219 (2d Cir. 1995) ...............................................13
New Orleans Public Service, Inc. v. Council of City of New Orleans,
491 U.S. 350 (1989) ...................................................................................................................6
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) .............................................................................16
Pennzoil Co. v. Texaco, Inc., 481 US 1 (1987) ................................................................................7
Perez v. Ledesma, 401 U.S. 82 (1971).........................................................................................6, 9
Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995).......................................................12
Sprint Communications v. Jacobs, 571 U.S. 69 (2013) ...................................................................6
Stefanelli v. Minard, 342 U.S. 117 (1951) .......................................................................................8
United States v. Burr, 25 F. Cas. 30 (C.C. Va. 1807) ....................................................................16
United States v. Nixon, 418 U.S. 683 (1974) ..................................................................... 15-16, 19
United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) ......................................................... 4-5
United States v. Williams, 504 U.S. 36 (1992) ................................................................................4
Willingham v. Morgan, 395 U.S. 402 (1969) ................................................................................10
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)................................ 3-4, 12
Younger v. Harris, 401 U.S. 37 (1971) ................................................................................ 2, 5-7, 9
STATE CASES
Virag v. Hynes, 54 N.Y.2d 437 (1981) .................................................................................. 4-5, 19

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FEDERAL: STATUTES AND RULES
28 U.S.C. § 1442 ...................................................................................................................... 10-11
28 U.S.C. § 2283 ..........................................................................................................................5, 8
Fed. R. Civ. P. 17(c)(2) ....................................................................................................................5
STATE STATUTES
C.P.L. § 190.25(4)(a) .....................................................................................................................13

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DONALD. J. TRUMP,
Plaintiff,

Case No. 1:19-cv-08694 (VM)
VIA ECF

-against-

CYRUS R. VANCE, JR. in his official capacity
MEMORANDUM OF LAW IN
as District Attorney of the County of New York; SUPPORT OF DEFENDANT CYRUS
and
R. VANCE, JR’S MOTION TO DISMISS
AND IN OPPOSITION TO
MAZARS USA, LLP,
PLAINTIFF’S MOTION FOR
EMERGENCY RELIEF
Defendants.
Cyrus R. Vance, Jr., in his official capacity as District Attorney for the County of New York,
submits this memorandum of law in support of his motion to dismiss the Complaint, and in
opposition to the Plaintiff’s motion for a temporary restraining order and preliminary injunction.

INTRODUCTION
This suit invites a federal court to intervene in a state grand jury proceeding and rule on the
validity of a subpoena issued by a New York County Grand Jury to Mazars USA, LLP on August 29,
2019 (the “Mazars Subpoena”). The Mazars Subpoena calls for financial and tax records of a number
of New York entities and individuals, including those of the Plaintiff Donald J. Trump, President of
the United States. The subpoena is amenable to the same challenges in the New York courts that a
federal forum provides, and the Plaintiff has failed to show as a threshold matter why this Court
should be tasked with overseeing its enforcement. Important separation of powers and federalism
concerns prohibit federal litigation of a state court subpoena. Under longstanding statutory law and
jurisprudence tracing back to the Judiciary Act of 1793, this Court should dismiss the complaint in
favor of a state court forum.
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With respect to Plaintiff’s demands for emergency injunctive relief, his underlying claims also
lack merit. In particular, those claims rely on the remarkable proposition that a sitting President enjoys
not only a blanket immunity from criminal prosecution, but (1) that this blanket immunity also
protects a president from having to respond to any routine, lawful grand jury request for information
about his conduct or that of his businesses or employees before he took office; (2) that the blanket
immunity also extends to any person or entity who happened to be associated with or employed by
the President before he took office; and (3) that this blanket immunity also prevents any third party
from providing information to the grand jury about such prior conduct or transactions involving the
President or his companies or former employees. In other words, the Plaintiff’s position is that none
of this conduct, unrelated to the office of the President, can be investigated while the President
remains in office. For the reasons discussed below, the law provides no such sweeping immunity.
The Plaintiff’s requests for emergency relief should be denied in all respects.

DISCUSSION
While a motion to dismiss under Rule 12(b)(6) requires the Court to accept as true all factual
allegations and draw all reasonable inferences in Plaintiff’s favor, “this tenet ‘is inapplicable to legal
conclusions,’ as well as to ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.’” Astoria Gen. Contracting Corp. v. Office of Comptroller of City of New York, 159 F.
Supp. 3d 385, 395 (S.D.N.Y. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive here,
Plaintiff must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). See also Astoria Gen. Contracting Corp. v. City of New York Office of Comptroller, 740
F. App’x 747, 749 (2d Cir. 2018) (affirming dismissal of constitutional claims against state office under
Younger abstention where “the state court action afforded a full and fair opportunity to litigate the
issue[.]”).

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“Since 1793 . . . federal courts have been instructed not to grant injunctive relief to interfere
with state judicial functions, with rare exceptions justified only in the most extraordinary exigencies.”
Glatzer v. Barone, 614 F. Supp. 2d 450, 452 (S.D.N.Y. 2009) (Marrero, J.), aff'd, 394 F. App’x 763 (2d
Cir. 2010).

As described below, Plaintiff fails to present a plausible exigency justifying the

extraordinary relief he seeks, and his suit is improperly founded in the Supremacy Clause, which
provides no cause of action to enjoin state actors for alleged constitutional violations. Armstrong v.
Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015). “Where, as here, a defendant moves to dismiss for
improper venue pursuant to Rule 12(b)(3), a court may consider evidence outside the four corners of
the complaint, including affidavits and other documentary evidence.” Martinez v. Bloomberg LP, 883 F.
Supp. 2d 511, 513 (S.D.N.Y. 2012), aff’d, 740 F.3d 211 (2d Cir. 2014) (citing Gulf Ins. Co. v. Glasbrenner,
417 F.3d 353, 355 [2d Cir. 2005]).
Plaintiff’s motion for emergency relief falters on some of the same grounds requiring dismissal
of the complaint: he has not pled facts to show he is likely to suffer irreparable harm in the absence
of the requested relief. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Nor
has he cited authority showing that his expansive claim to blanket immunity from investigation for
himself, his companies, and their employees is likely to succeed on the merits. Id. Indeed, the balance
of equities and the public interest here militate in favor of rejection of the requested relief. Id. Under
long-settled precedent, the Grand Jury is entitled to the evidence it seeks; must be allowed to pursue
its investigation free from interference and litigious delay; and the People of the State of New York
have a right to inquire whether their laws have been violated by New York entities and individuals,
and to remove any doubt if they have not.
For these reasons and those discussed below, Plaintiff’s motion for emergency relief should
be denied, and the Court should dismiss the Complaint.

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I. THIS ACTION SHOULD BE IN STATE COURT
A. The Mazars Subpoena is a Proper Exercise of the Grand Jury’s Authority to Investigate
New York Conduct, and Any Challenge Should be Lodged in State Court
“The grand jury is a “constitutional fixture,” “[r]ooted in long centuries of Anglo–American
history.” In re Grand Jury Subpoena dated Aug. 9, 2000, 218 F. Supp. 2d 544, 550 (S.D.N.Y. 2002)
(ordering compliance by a third-party corporation over a foreign government’s objection based on
executive privilege) (citing United States v. Williams, 504 U.S. 36, 47 (1992)).
“The scope of the grand jury’s broad investigative powers is aptly described by ‘the
longstanding principle that ‘the public ... has a right to every man's evidence.’” In re Grand Jury Subpoena
dated Aug. 9, 2000, 218 F. Supp. 2d at 551 (citing Branzburg v. Hayes, 408 U.S. 665, 688 [1972]).
“Nowhere is the public’s claim to each person’s evidence stronger than in the context of a valid grand
jury subpoena.” Id. (citing In re Grand Jury Proceedings, 219 F.3d 175, 186 (2d Cir. 2000)). New York
law accords grand juries the same prerogative. See Virag v. Hynes, 54 N.Y.2d 437, 443, (1981) (“The
Grand Jury is an investigatory body with broad exploratory powers, the scope of which are not to be
limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or
by doubts whether any particular individual will be found properly subject to an accusation of crime.”)
(internal citation omitted).
Settled law presumes, “absent a strong showing to the contrary, that a grand jury acts within
the legitimate scope of its authority.” United States v. R. Enterprises, Inc., 498 U.S. 292, 300–01 (1991)
(internal citation omitted). The recipient of a grand jury subpoena bears the burden of overcoming
this presumption of validity, id. at 293, and the grand jury “should not be hindered in its quest by
witnesses who continually litigate the threshold validity of its subpoenas.” Hynes, 54 N.Y.2d at 445.
Plaintiff’s assertion of executive immunity, whatever its merits in the post-indictment context,
presents no basis to quash. Plaintiff has not been identified as a defendant, nor is there an assumption
that he will be. Indeed “the identity of the offender, and the precise nature of the offense, if there be
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one, normally are developed at the conclusion of the grand jury's labors, not at the beginning.” R.
Enterprises, Inc., 498 U.S. at 297. The grand jury’s operations are generally “unrestrained” by the rules
governing criminal trials. Id. at 298. Thus any immunity from criminal trial available to a sitting
President—and to be clear, Plaintiff fails to identify such a rule—would not in any case impact a grand
jury’s ability to subpoena documents.
To the extent that Plaintiff has a valid challenge to the Mazars Subpoena, it should be litigated
in the New York court having jurisdiction over the Grand Jury that issued the subpoena. New York
law affords equal protection against improper subpoenas, whether they be challenged under the
United States Constitution, which state courts must uphold pursuant to the Supremacy Clause, or
challenged as being in “bad faith or . . . for some other reason invalid.” Hynes, 54 N.Y.2d at 442-43;
see Fed. R. Civ. P. 17(c)(2) (providing that subpoenas may be quashed where compliance would be
“unreasonable” or “oppressive.”).
B. Under 28 U.S.C. § 2283 and the Younger Abstention Doctrine, This Court Should Deny
Plaintiff’s Emergency Motion
1. The Legal Standard
“Since the beginning of this country’s history Congress has, subject to few exceptions,
manifested a desire to permit state courts to try state cases free from interference by federal courts.”
Younger v. Harris, 401 U.S. 37, 43 (1971) (recounting that, since 1793, few exceptions have been enacted
that allow federal courts to interfere in state cases); see Glatzer, 614 F. Supp. 2d at 456-47 (“As a starting
point, longstanding federal statutory and case law, whose origins trace back to the Judiciary Act of
1793, have manifested a policy of imposing rigid constraints on federal court authority to issue
injunctions to restrain the commencement or completion of state court proceedings.” [citations
omitted]). In particular, the Anti-Injunction Act, 28 U.S.C. § 2283 (“§ 2283”), provides that “[a] court
of the United States may not grant an injunction to stay proceedings in a State court except as expressly
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authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate
its judgments.” See New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 359
(1989) (“NOPSI”) (noting “the undisputed constitutional principle that Congress, and not the
Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds”)
(citation omitted).
There are three classes of cases for which the Supreme Court has held that Younger abstention
is appropriate:

1) intrusion into ongoing “state criminal prosecutions”; 2) “civil enforcement

proceedings”; and 3) “civil proceedings involving certain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions.” NOPSI, 491 U.S. at 368 (citations omitted);
see Sprint Communications v. Jacobs, 571 U.S. 69, 78 (2013). Here, the issuance of the state grand jury
subpoena to a third-party corporation in furtherance of the judicial function of a grand jury falls under
the circumstances described by the Supreme Court. Mirka United, Inc. v. Cuomo, 2007 WL 4225487, at
* 4 (S.D.N.Y. 2007).
If such a circumstance exists, as it does here, then the following additional factors should be
considered by a federal court before invoking Younger (see Sprint, 571 U.S. at 81-82): “(1) is there an
ongoing state proceeding; (2) is an important state interest implicated; [and] (3) does the plaintiff have
an avenue open for review of constitutional claims in the state court?” Cecos Int’l, Inc. v. Jorling, 895
F.2d 66, 70 (2d Cir. 1990) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
432 [1982]). Here, undoubtedly all three questions are answered with a simple “Yes.” There is an
ongoing state proceeding; states unquestionably have an important interest in the enforcement of their
grand jury subpoenas; and Plaintiff can raise his constitutional claims in state court. See Perez v. Ledesma,
401 U.S. 82, 84 (1971) (“It is difficult to imagine a more disruptive interference with the operation of
the state criminal process short of an injunction against all state proceedings.”).

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Under the Younger abstention doctrine, a federal court must “exercise utmost restraint when
asked to enjoin state court functions.” Glatzer, 614 F. Supp. 2d at 457. Unless “a person about to be
prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined,
suffer irreparable damages,” (Younger, 401 US at 43 [citing Ex parte Young, 209 U.S. 123 (1908)]), the
notion of “comity” and “Our Federalism” dictate that federal courts not interfere in state court
proceedings. Younger, 401 U.S. at 43-50 (reviewing the history of this longstanding public policy); see
Kugler v. Helfant, 421 U.S. 117, 123 (1975).
To obtain the federal forum he seeks, Plaintiff must demonstrate that “‘state procedural law
barred presentation of [his] claims.’” Pennzoil Co. v. Texaco, Inc., 481 US 1, 14 (1987) (quoting Moore v.
Sims, 442 U.S. 415, 432 [1979]). Article VI of the Constitution declares that “Judges in every State
shall be bound” by the Federal Constitution. Id. at 15. “Accordingly, when a litigant has not attempted
to present his federal claims in related state-court proceedings, a federal court should assume that state
procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.”
Id. Here, there is no indication in the record that state procedural law barred Plaintiff’s claims, and
Plaintiff makes no attempt to explain why his emergency motion for a temporary restraining order
and preliminary injunction addressing a state grand jury subpoena could not have been brought in
state court. Since it is “abundantly clear that [Plaintiff] had an opportunity to present [his] federal
claims in the state proceedings[,] . . . [n]o more is required to invoke Younger abstention.” Juidice v.
Vail, 430 U.S. 327, 337 (1977); see Pennzoil, 481 U.S. at 17.

2. Application of the Standard Here Compels Abstention
Here, the question is not whether a state prosecutor can indict a sitting President. That is not
the issue before the Court. Instead, the issue is whether a third party, having been duly served with a
state grand jury subpoena seeking the books and records of a number of individuals and corporate
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entities, including those of the President, must comply with the subpoena. Whether the Mazars
Subpoena, if enforced, may at some point in the future result in the prosecution of any entities or
individuals is entirely speculative. It is possible that no case will be presented to the grand jury, or, if
a case is presented, that the grand jury would not return an indictment. And, indeed, if the grand jury
returned an indictment, it is possible that it would not name Plaintiff.
The Mazars Subpoena presents no irreparable harm, even under Plaintiff’s theory of immunity.
If, as Plaintiff has alleged, not only he but all related companies and their employees enjoy an immunity
from prosecution while he is a sitting President, no prosecution could, in fact, commence at this time.
Even the OLC memo cited by Plaintiff contemplates a grand jury continuing to investigate, while at
the same time allowing for immunity from prosecution while in office. See A Sitting President’s
Amenability to Indictment and Criminal Prosecution, 24 O.L.C. Op. 222, 257 n. 36 (Oct. 16, 2000) (“OLC
Memo”) (“A grand jury could continue to gather evidence throughout the period of [a sitting
President’s] immunity, even passing this task down to subsequently empaneled grand juries if
necessary.”). Thus, Plaintiff’s allegations of immediate and irreparable harm are speculative, unripe,
and without foundation. He asks the Court to decide a hypothetical future issue, instead of the issue
before it today. See Stefanelli v. Minard, 342 U.S. 117, 123 (1951) (“If the federal equity power must
refrain from staying State prosecutions outright to try the central question of the validity of the statute
on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try
collateral issues.”).
Further, Plaintiff has not even attempted to plead an exception to § 2283. He cites no Act of
Congress, or any of the other exceptions under the Anti-Injunctive Act. To the extent he attempts to
use the Article VI Supremacy Clause in an attempt to secure federal jurisdiction (see Pl. Memo of Law
at 8), this Court has held that the invocation of the Supremacy Clause of the United States Constitution
as grounds for injunctive relief in a pending state court proceeding “would violate fundamental
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constitutional principles and statutory limitations on the federal courts’ equitable powers.” Glatzer,
614 F. Supp. 2d at 456; see Armstrong, 135 S.Ct. at 1378.
Under the “basic principle of federalism,” a federal court may not intervene in a state
proceeding “in the absence of special circumstances suggesting bad faith, harassment or irreparable
injury that is both serious and immediate.” Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973). In order
to establish such irreparable harm, a challenged state proceeding must be “flagrantly and patently
violative of express constitutional prohibitions.” Younger, 401 U.S. at 53-54 (citations and internal
citation marks omitted). “[S]tandard injuries such as the cost, anxiety, and inconvenience associated
with defending against a state criminal prosecution or appealing a civil lawsuit in state courts, without
more, cannot be considered ‘irreparable’ so as to satisfy the rigorous test.” Glatzer, 614 F. Supp. 2d at
460 (citing Dombrowski v. Pfister, 380 U.S. 470, 484-85 [1965]).
As discussed in more detail below, Plaintiff has not made a showing of bad faith, harassment
or irreparable harm. “‘[O]nly in cases of proven harassment or prosecutions undertaken by state
officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary
circumstances where irreparable injury can be shown is federal injunctive relief against pending state
prosecutions appropriate.’” Kugler, 421 U.S. at 124 (quoting Ledesma, 401 U.S. at 85 ). “But whatever
else is required, such circumstances must be ‘extraordinary’ in the sense of creating an extraordinarily
pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly
unusual factual situation.” Kugler, 421 U.S. at 125. Notably, contrary to Plaintiff’s apparent contention,
“bad faith” does not mean “collusive actions,” but instead means it has “been brought without a
reasonable expectation of obtaining a valid conviction.” Kugler, 421 U.S. at 126 n. 6 (citing Ledesma,
401 U.S. at 85).
In sum, for the reasons stated above, defendant Vance’s motion to dismiss should be granted,
and Plaintiff’s motion for a temporary restraining order and preliminary injunction should be denied.
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C. The Process Under 28 U.S.C. § 1442 to Remove a Case from State to Federal Court is Not
Applicable Here
Although Plaintiff has not identified an Act of Congress that would permit this Court to grant
an injunction and stay the state court proceedings, one statute that allows for the removal of a pending
state action to federal court is 28 U.S.C. § 1442. However, this statute is not applicable to Plaintiff or
the various corporate entities, and the individuals associated with those entities, named in the Mazars
Subpoena. Here, Plaintiff fails to meet the two criteria for section 1442 removal to federal court. The
Mazars Subpoena is directed to a third party, and not an officer or agency of the United States.
Further, Plaintiff has not put forth a colorable defense arising out of his duty to enforce federal law.
“Section 1442(a)(1) permits the removal of, not only those actions commenced in state court
that potentially expose a federal official to civil liability or criminal penalty for an act performed in the
past under color of office, but also the removal of civil matters that seek to either prohibit or require
certain actions by a federal official in the future.” Florida v. Cohen, 887 F.2d 1451, 1453 (11th Cir. 1989)
(citations omitted). “Only two prerequisites must be met before an action may be removed under §
1442(a)(1): first, the case must be against any officer, agency, or agent of the United States for any act
under color of such office; and second, the federal actor or agency being challenged must raise a
colorable defense arising out of its duty to enforce federal law.” Id. at 1453-54 (citing Mesa v. California,
489 U.S. 121 [1989]; Willingham v. Morgan, 395 U.S. 402, 406-07 (1969); Loftin v. Rush, 767 F.2d 800,
804 [11th Cir. 1985]).
Here, neither of these provisions apply, because, for all but a small time period of the dates
cited in the subpoena, Plaintiff was not an officer of the United States, nor was he acting under the
color of his office. Further, neither the Trump Organization nor any of its affiliates or employees has
any possible claim that that they are protected officers, agents, or agencies, or that they were acting
under color of law. Simply put, there is no federal question raised by a state-law examination of
whether a private citizen or the Trump Organization has committed state crimes. Mesa, 489 U.S. at
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128. As the Supreme Court stated in Mesa, it has “not departed from the requirement that federal
officer removal must be predicated on the allegation of a colorable federal defense.” Id. at 129. “In
sum, an unbroken line of this Court’s decisions extending back nearly a century and a quarter have
understood all the various incarnations of the federal officer removal statute to require the averment
of a federal defense.” Id. at 133-34. “‘[U]nder our federal system, it goes without saying that
preventing and dealing with crime is much more the business of the States than it is of the Federal
Government. Because the regulation of the crime is pre-eminently a matter for the States, we have
identified strong judicial policy against federal interference with state criminal proceedings.’” Id. at
138 (quoting Arizona v. Manypenny, 451 U.S. 232, 243 [1981] [citations and internal quotation marks
omitted]).
In other words, to the extent Plaintiff attempts to argue that 28 U.S.C. § 1442 permits removal
from state to federal court, his claim must fail since, during the majority of the time covered in the
Mazars Subpoena, he was not an officer of the United States, nor were his various corporate entities
agencies of the United States.
II. THIS COURT SHOULD DENY PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AS HE HAS FAILED TO
SHOW EITHER IRREPARABLE HARM OR A LIKELIHOOD OF SUCCESS ON THE
MERITS
Plaintiff asks this court to take the extraordinary step of entering a temporary restraining order
and preliminary injunction to prevent Mazars from complying with a New York state grand jury
subpoena. The request should be denied as he fails to satisfy any of the demanding requirements for
such relief, including a showing of irreparable harm and a likelihood of success on the merits.
A preliminary injunction should only be granted if the moving party has established: (1) a
likelihood of success on the merits; (2) that he is likely to suffer irreparable harm without the relief
requested; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public
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interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Granting a preliminary
injunction is “an extraordinary and drastic remedy” and “one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (internal quotations and citations omitted).
A.

Plaintiff Has Failed to Satisfy His Burden of Showing Irreparable Harm
The moving party bears the burden of showing irreparable harm, a showing that is “essential

to the issuance of a preliminary injunction.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.
1995) (citation omitted). Indeed, the showing of irreparable harm is “[p]erhaps the single most
important prerequisite for the issuance of a preliminary injunction. . . .” Bell & Howell: Mamiya Co. v.
Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir. 1983) (citing 11 C. Wright & A. Miller, Federal Practice
and Procedure § 2948, at 431 [1973]).
To demonstrate irreparable harm, a moving party must show “an injury that is neither remote
nor speculative, but actual and imminent.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.
1995); see Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary
remedy. . . .”). As the Second Circuit has framed it, the irreparable harm standard is “where, but for
the grant of equitable relief, there is a substantial chance that upon final resolution of the action the
parties cannot be returned to the positions they previously occupied.” Brenntag Int’l Chemicals, Inc. v.
Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).
In an attempt to demonstrate irreparable harm necessitating suspension of the Mazars
Subpoena, Plaintiff first claims that “there will be no way to unring the bell once Mazars complies . .
. . ” Pl. Memo of Law at 3. He argues that this irreparable harm will be caused (1) by the DA’s Office
being in possession of documents related to the President, and (2) by the DA’s Office “exposing [the
President’s] confidential financial information.” Pl. Complaint ¶ 53.
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Despite Plaintiff’s assertion to the contrary, if Mazars were to begin producing documents and
a court later invalidates the Mazars Subpoena, that bell could absolutely be “unrung,” so to speak,
with all of the parties being “returned to the positions they previously occupied.” Bank of India, 175
F.3d at 249. As with all material obtained pursuant to a grand jury subpoena, the DA’s Office would
have a legal and ethical obligation to maintain the Mazars compliance confidentially. See N.Y. C.P.L.
§ 190.25(4)(a). In the event that a court later deems the Mazars Subpoena invalid, presumably that
court would order the DA’s Office to destroy or return to Mazars any compliance already provided,
and the DA’s Office would not oppose such an order. Were that to be the case, the DA’s Office
would be forbidden from using that material as part of its investigation or in any future criminal
prosecution.
The purely speculative—and, frankly, outrageous—claim that it is the intention of the DA’s
Office to expose the President’s personal financial information gets the Plaintiff no closer to
demonstrating irreparable harm. It is well-settled that a “moving party must show that the injury it
will suffer is likely and imminent, not remote or speculative. . . .” N.A.A.C.P., Inc. v. Town of E. Haven,
70 F.3d 219, 224 (2d Cir. 1995). Recklessly hypothesizing that the DA’s Office will expose the material
obtained pursuant to a grand jury subpoena—in deliberate violation of New York state law—is
precisely the type of speculation that fails to satisfy the exacting standard of demonstrating irreparable
harm.
Next, Plaintiff claims that irreparable harm will necessarily ensue if it becomes public that
there is an ongoing criminal investigation that includes requests from third-parties about business
transactions that relate to the President. Plaintiff claims that the mere fact of such an investigation
will create burdens, distractions and embarrassment that will interfere with his ability to carry out his
duties as the current Chief Executive. See Pl. Complaint ¶ 22; Pl. Memo. of Law at 11.

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This argument, however, conveniently ignores the years of daily public reporting about the
extensive criminal investigations by the Special Counsel and the United States Attorney for the
Southern District of New York into exactly these types of business transactions involving Plaintiff
and his companies, employees and affiliates. Indeed, those criminal investigations included not only
grand jury subpoenas, but grand jury testimony, indictments, trials, and guilty pleas that resulted in
determinations that certain of the transactions at issue were criminal. At no point in those “criminal
proceedings” did Plaintiff seek an injunction or make the sweeping immunity claims he makes here.
Even more remarkably, in one of those federal criminal investigations, one of Plaintiff’s
former lawyers admitted publicly to engaging in crimes at the behest of Plaintiff. In that case, an
indictment brought in the Southern District of New York asserted that the lawyer was assisted in a
criminal transaction by an unindicted co-conspirator, who was then identified in sworn Congressional
testimony as the Plaintiff himself. See, e.g., Shinerock Decl. at ¶ 17(e). Again, in that case, Plaintiff made
no effort to enjoin the proceeding on the ground of presidential immunity. These facts belie Plaintiff’s
claim that any “insinuation, even if made obliquely,” “that it is probable that the President has
committed a crime” is somehow unconstitutional. Pl. Memo. of Law at 13 (citation and quotation marks
omitted). Despite this direct and public allegation that the Plaintiff engaged in criminal conduct, no
“irreparable harm” has yet impeded Plaintiff’s continued service in office.
At bottom, what distinguishes the currently challenged subpoena from the prior criminal
inquiries described above appears to be that the third-party subpoena here seeks actual tax returns. In
other words, Plaintiff is, in fact, seeking to invent and enforce a new presidential “tax return privilege,”
on the theory that disclosing information in a tax return will necessarily reveal information that will
somehow impede the functioning of a President, sufficiently to meet the test of irreparable harm.
Putting aside that no such privilege exists in the law, this claim of irreparable harm is undone by the
fact that every President since Jimmy Carter has voluntarily released his tax returns before or upon
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taking office, which has to date never impeded a President’s ability to serve. Again, there is no
“immunity from scrutiny” of this sort in the law.
Finally, Plaintiff claims that, without an injunction, he will suffer irreparable because he will
be impeded in his ability to secure further review of his constitutional claim. Pl. Memo. of Law at 8.
Any such judicial review, however, can occur at the same time that Mazars begins complying. As
discussed above, in the unlikely event that a court ultimately rules the Mazars Subpoena invalid, the
DA’s Office would destroy or return the Mazars materials, and Plaintiff would be restored to the
position it occupied pre-compliance.
B.
Plaintiff’s Request for Injunctive Relief Must Be Denied, as He Has Failed to Show a
Likelihood of Success on the Merits Based on a Claimed Presidential Immunity from
Investigation That Applies Not Only To Him, But To Anyone Who Ever Worked for One of
His Companies
Before this Court can grant the extraordinary remedy of injunctive relief, Plaintiff must also
demonstrate a likelihood of success on the merits. Here, that requires a showing that he is likely to
succeed in permanently enjoining Mazars from complying with the subpoena based on the novel legal
theory that a sitting President enjoys immunity, not only from criminal prosecution, but from any
criminal investigation, regardless of whether the conduct took place before he was President. In fact,
Plaintiff has an even steeper climb to demonstrate a likelihood of success, given that his newly-claimed
immunity extends to the President, but also to the President’s companies and every individual who
worked at one of those companies. As Plaintiff’s own papers make plain, no authority exists to
support such a sweeping claim of immunity, which makes a showing of likelihood of success on the
merits impossible.
As discussed above, no such investigative immunity exists for the President or anyone else.
More importantly, the very issue at hand—whether the President must comply with an investigative
grand jury subpoena—has previously been answered in the affirmative. See United States v. Nixon, 418
U.S. 683, 706, 713 (1974) (rejecting President Nixon’s claim of an “absolute privilege,” based on the
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Separation of Powers, that “insulates a President from judicial subpoena in an ongoing criminal
prosecution. . . .”); see also Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973).
In Sirica, President Nixon challenged an order of the District Court for the District of
Columbia that was entered “as a means of enforcing a grand jury subpoena duces tecum issued and
served on [the President].” Id. at 704. The court “reject[ed]” the argument put forth by Counsel for
President Nixon that “the President is absolutely immune” from complying with the subpoena. Id. at
708, 711. 1 In doing so, the circuit court relied on, among other precedent, United States v. Burr, and
characterized Chief Justice Marshall as “squarely rul[ing] that a subpoena may be directed to the
President.” Id. at 709-10. Indeed, in Burr, Chief Justice Marshall stated: “If, in any court of the United
States, it has ever been decided that a subpoena cannot issue to the President, that decision is unknown
to this court.” United States v. Burr, 25 F. Cas. 30, 34 (C.C. Va. 1807); see Presidential Amenability to Judicial
Subpoenas, p. 5. Robert G. Dixon, Jr. (June 25, 1973) (explaining that “[m]odern legal discussion of the
power of the courts to subpoena the President still adheres to Chief Justice Marshall’s view that the
President is not exempt from judicial process. . . .”).
Here, of course, the Mazars Subpoena is not directed at the President himself, but to a third
party, which ensures that the “tasks of compliance” do not “interfere with the President’s official
responsibilities.” Sirica, 487 F.2d at 711. Moreover, the Mazars Subpoena, which seeks private
business records, implicates even fewer concerns than the subpoena deemed valid in Nixon, where the
materials sought related to the “performance of the President’s responsibilities.” Nixon, 418 U.S. at
711.

When citing Sirica, Plaintiff ignores this directly applicable holding announced by the court’s
majority, instead choosing to focus on the concurring, in part, and dissenting, in part, portions. See
Pl. Mem. of Law at 10, 14.
1

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Plaintiff also conflates the distinction between immunity from prosecution and immunity from
investigation, by pointing, in a misleading way, to views that say a President may not be prosecuted
while in office (Pl. Memo. of Law at 9). See, e.g., A Sitting President’s Amenability to Indictment and Criminal
Prosecution, 24 O.L.C. Op. (Oct. 16, 2000) (the “OLC Memo”); Amenability of the President, Vice President,
and Other Civil Officers to Criminal Prosecution While in Office (Sept. 24, 1973) (the “Dixon Memo”); In re
Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965, 20 (D. Md.)
In the first place, contrary to Plaintiff’s assertion, it is simply not true that “virtually ‘all legal
commentators agree’” that a sitting President is immune, not only from criminal prosecution, but from
investigation for wrongful acts prior to taking office. See Pl. Complaint at ¶¶ 1, 3. Indeed, at least since
the Bork memo that is much relied upon by Plaintiff (which was written in 1972), there has been a
robust debate among legal commentators about whether a sitting President can be criminally charged,
with widespread disagreement, and with absolutely no guidance from the courts. 2
Again, however, that is not the issue here, as there is no threatened or pending state charge
against a sitting President. Instead, the sole question is whether a third-party business entity should
be required to produce records relating to business transactions that took place among a variety of
individuals and entities—including the President—before the President took office. On this point,

As the former head of the United States Justice Department Office of Legal Counsel put it,
a review of relevant Justice Department memos and publicly filed legal briefs shows that there is no
“longstanding policy” against indictment of the President, and “whether or not a president can be
indicted or named as an unindicted co-conspirator should not be considered a settled question,”
Walter Dellinger, Indicting a President is Not Foreclosed: The Complex History, Lawfare Blog, June 18, 2018,
available at https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history; see
Susan Low Block, Can We Indict a Sitting President?: foreward to Ought a President of the United States Be
Prosecuted, 2 Nexus 7 (1997), available at https://scholarship.law.georgetown.edu/facpub/1560; Eric
M. Freedman, On Protecting Accountability, 27 Hofstra L. Rev. 677 (1999). Other commentators are less
equivocal. See Memorandum to Independent Counsel Kenneth Starr, May 13, 1998 (concluding that “President
Clinton is subject to indictment and criminal prosecution,” though perhaps not imprisonment until
he leaves office).
2

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there is no support, in case decisions or in the works of “legal commentators,” for the Plaintiff’s claim
of a blanket immunity from scrutiny of such transactions.
In this regard, Plaintiff also incorrectly cites the OLC Memo for the proposition that
Presidential immunity from prosecution while in office extends to investigations. See Pl. Memo of Law
at 9 (“Nor can he be investigated” [citing the OLC Memo]). The OLC Memo, however, says no such
thing. The singular conclusion of the OLC Memo is: “The indictment or criminal prosecution of a
sitting President would impermissibly undermine the capacity of the executive branch to perform its
constitutionally assigned functions.” OLC Memo at 222; see Dixon Memo at 18 (the “memorandum
deals with the question of whether and to what extent the President is immune from criminal
prosecution while he is in office”). The memo does not say that the immunity should apply to
investigations; indeed, the memo at least impliedly endorses the idea that a sitting President may be
criminally investigated. See OLC Memo at 257 n. 36 (2000) (during the period that a sitting President
enjoys immunity from criminal prosecution, “[a] grand jury could continue to gather evidence.”). 3
Plaintiff therefore fails to satisfy his burden of showing a likelihood of success in permanently
enjoining Mazars from complying with the Subpoena, which means that injunctive relief should be
denied.

The Plaintiff’s position is further undermined by the fact of the investigation recently
undertaken by Special Counsel Robert Mueller and related investigations conducted by the United
States Attorney’s Office for the Southern District of New York, where no such objections were raised.
3

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C.

The Balance of Equities and Public Interest Both Favor Denying Injunctive Relief
To satisfy his burden, the Plaintiff must also demonstrate that the balance of equities tips in

his favor and that the injunction is in the public interest. He fails to make the requisite showing on
both fronts.
The public interest militates against entering injunctive relief. The interests of the Grand Jury,
and by extension the People of New York, will be injured by suspension of the Mazars Subpoena, and
this countervailing interest must be weighed in the final analysis. Plaintiff has asserted that, should
his request for relief be rejected here, he will immediately appeal, which makes it all the more damaging
to force the DA’s Office to place its investigation on hold while this dispute is decided. See Hynes, 54
N.Y.2d at 443-44 (“Constant delays occasioned by unmeritorious motions to quash followed by
routine appeals can lead not only to the loss of evidence and the fading of witnesses’ memories, but
also may completely frustrate the course of legitimate investigation into potentially criminal activity.”);
Nixon, 418 U.S. at 713 (“Without access to facts a criminal proceeding may be totally frustrated.”).
The Bork Memo makes this same point, albeit in the context of the vice president: “enjoining
the investigation and presentation of evidence . . . would require the investigations of other persons
also to be suspended,” which would “plainly frustrate the public’s interest in the fair and expeditious
administration of the criminal laws.” Bork Memo at 22 (internal quotations and citations omitted); see
Dixon Memo at 17 (suspending grand jury proceedings against federal officer “would seriously
interfere with the investigation”). Similarly, any such suspension of an investigation in this case would
likely cause statutes of limitations to run with respect to other individuals and entities (the dates of
many of the transactions at issue are such that the limitations periods could expire in a matter of
months), and inappropriately provide them “permanent immunity from prosecution,” Bork Memo at
22, which, needless to say, would be against the public’s interest.

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CONCLUSION
For these reasons, the Court should grant defendant Vance’s motion to dismiss, and deny
Plaintiff’s emergency motion for a temporary restraining order and a preliminary injunction.

Dated: New York, New York
September 23, 2019

Respectfully submitted,
s/Carey R. Dunne
Carey R. Dunne, General Counsel
Christopher Conroy (pro hac vice)
Solomon B. Shinerock
James H. Graham
Allen J. Vickey
Assistant District Attorneys
New York County District Attorney’s Office
One Hogan Place
New York, New York 10013

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