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19-3204-Cv
United States Court of Appeals
For the Second Circuit
DONALD J. TRUMP,

Plaintiff-Appellant,

UNITED STATES DEPARTMENT OF JUSTICE,
Amicus Curiae,

- v. -

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

On Appeal from the United States District Court
for the Southern District of New York

BRIEF OF DEFENDANT-APPELLEE
DISTRICT ATTORNEY CYRUS R. VANCE, JR.
CAREY R. DUNNE, GENERAL COUNSEL
CHRISTOPHER CONROY (PRO HAC VICE)
SOLOMON SHINEROCK
JAMES H. GRAHAM
SARAH WALSH (PRO HAC VICE PENDING)
ALLEN J. VICKEY
ASSISTANT DISTRICT ATTORNEYS
New York County District Attorney’s Office
One Hogan Place
New York, NY 10013
(212) 335-9000

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. iii
PRELIMINARY STATEMENT ......................................................................................... 1
STATEMENT OF THE ISSUES ....................................................................................... 7
STATEMENT OF THE CASE .......................................................................................... 8
SUMMARY OF THE ARGUMENT ............................................................................... 15
ARGUMENT ....................................................................................................................... 17

I.

Appellant has failed to satisfy his burden of showing irreparable
harm and a likelihood of success on the merits of his claim to
absolute immunity for himself and his former businesses and
business associates, and has no cognizable claim that a federal
court may hear
Standards of review ............................................................................................. 17

II. The district court correctly concluded Appellant is not entitled to injunctive
relief based on his sweeping and unsupported claim of a presidential immunity for
all conduct extending to associates and entities....................................................... 18
A. No irreparable harm would flow from compliance with the Mazars
Subpoena............................................................................................................. 19
B. There is no likelihood of success on the merits ..................................... 23
1. Controlling precedent........................................................................... 24
2. The DOJ Memos .................................................................................. 31
3. History.................................................................................................... 33
4. The DOJ’s proposed standard ............................................................ 34
C. The district court correctly found that an injunction would be contrary
to the public interest .......................................................................................... 36
III. The district court’s decision should be affirmed because Appellant has no
cognizable right to challenge the Mazars Subpoena ............................................... 36

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IV. The Court should abstain under Younger because there is an ongoing state
criminal proceeding ..................................................................................................... 38
A. Legal Standard............................................................................................. 38
B. Application of Younger compels abstention ............................................. 39
1. A state grand jury proceeding constitutes an “ongoing state criminal
prosecution” and a “pending state proceeding” under Younger ............ 39
2. New York State has an important state interest in the enforcement of
grand jury subpoenas ................................................................................. 41
3. Appellant, despite the opportunity to do so, failed to raise his
constitutional claim in state court............................................................. 41
4. There is no bad faith or exceptional circumstance ............................. 45
V. The Court should reject Appellant’s request for a stay as unjustified, and
affirm that a stay would substantially injure the sovereign interests of New York
and the public interest in enforcing New York’s criminal laws ............................. 48
A. Legal standard ............................................................................................. 48
B. Appellee Vance, an elected executive agent of an independent sovereign,
is the only party who will suffer irreparable harm if a stay is imposed, and
the public interest supports compliance ......................................................... 49
CONCLUSION ................................................................................................................... 51
CERTIFICATE OF COMPLIANCE .............................................................................. 52

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TABLE OF AUTHORITIES
Cases
Able v. United States,
44 F.3d 128 (2d Cir. 1995) ................................................................................................... 18
Airbnb, Inc. v. City of New York,
373 F. Supp.3d 467 (S.D.N.Y. 2019) ................................................................................. 21
Beal v. Stern,
184 F.3d 117 (2d Cir. 1999)................................................................................................. 19
Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp.,
719 F.2d 42 (2d Cir. 1983) ................................................................................................... 19
Berger v. United States,
295 U.S. 78 (1935) ................................................................................................................ 25
Brennick v. Hynes,
471 F. Supp. 863 (N.D.N.Y. 1979)..................................................................................... 39
Brenntag Int’l Chemicals, Inc. v. Bank of India,
175 F.3d 245 (2d Cir. 1999)................................................................................................. 20
Brown v. Kelly,
609 F.3d 467 (2d Cir. 2010)................................................................................................. 40
Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30 (2d Cir. 2010) ................................................................................................... 48
Clinton v. Jones,
520 U.S. 681 (1997) ....................................................................................... 4, 28, 29, 30, 33
Craig v. Barney,
678 F.2d 1200 (4th Cir. 1982) ............................................................................................. 40
Davis v. Shah,
821 F.3d 231 (2d Cir. 2016)................................................................................................. 37
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Deakins v. Monaghan,
484 U.S. 193 (1988) .............................................................................................................. 40
Diamond “D” Const. Corp. v. McGowan,
282 F.3d 191 (2d Cir. 2002).............................................................................. 17, 41, 45, 47
Doe v. N.Y. Univ.,
666 F.2d 761 (2d Cir. 1981)................................................................................................. 19
Falco v. Justices of the Matrimonial Parts of the Supreme Court of Suffolk County,
805 F.3d 425 (2d Cir. 2015)........................................................................................... 38, 41
Gibson v. Berryhill,
411 U.S. 564 (1973) .............................................................................................................. 45
Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103 (1989) .............................................................................................................. 37
Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) .............................................................................................................. 37
In re Grand Jury Subpoena dated Aug. 9, 2000,
218 F. Supp. 2d 544 (S.D.N.Y. 2002) .................................................................................. 2
In re Matter of District Attorney of Suffolk County,
58 N.Y.2d 436 (1983) ........................................................................................................... 22
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ............................................................................................. 35
Juidice v. Vail,
430 U.S. 327 (1977) .............................................................................................................. 44
Kaylor v. Fields,
661 F.2d 1177 (8th Cir. 1981) ............................................................................................. 40
Kugler v. Helfant,
421 U.S. 117 (1975) ........................................................................................... 41, 45, 46, 47

iv

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Law Firm of Daniel P. Foster, P.C. v. Dearie,
613 F. Supp. 278 (E.D.N.Y. 1985) ..................................................................................... 42
Mannes v. Gillespie,
967 F.3d 1310 (9th Cir. 1992) ............................................................................................. 47
Matter of Grand Jury Subpoena Served Upon Bekins Record Storage Co., Inc.,
62 N.Y.2d 324 (1984) ........................................................................................................... 43
Mazurek v. Armstrong,
520 U.S. 968 (1997) .............................................................................................................. 19
Melendez v. City of New York,
109 A.D.2d 13 (1st Dept. 1985).......................................................................................... 22
Middlesex Cnty. Ethics Committee v. Garden State Bar Assn,
457 U.S. 423 (1982) .............................................................................................................. 38
Mir v. Shah,
2012 WL 6097770 (S.D.N.Y. 2012) ................................................................................... 39
Mirka United, Inc. v. Cuomo,
2007 WL 4225487 (S.D.N.Y. 2007) ............................................................................. 39, 40
Monaghan v. Deakins,
798 F.2d 632 (3d Cir. 1986)................................................................................................. 40
Moore v. Sims,
442 U.S. 415 (1979) .............................................................................................................. 42
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) .............................................................................................................. 40
Nat'l Treasury Employees Union v. U.S. Dept. of Treasury,
838 F. Supp. 631 (D.D.C. 1993) ......................................................................................... 21
New York ex rel. Schneiderman v. Actavis PLC,
787 F.3d 638 (2d Cir. 2015)................................................................................................. 19
Nick v. Abrams,
717 F. Supp. 1053 (S.D.N.Y. 1989) .................................................................................... 39
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Nixon v. Fitzerald,
457 U.S. 731 (1982) ...................................................................................................... 3, 7, 30
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) ............................................................................................. 28
Nken v. Holder,
556 U.S. 418 (2009) .............................................................................................................. 49
Notey v. Hynes,
418 F. Supp. 1320 (S.D.N.Y. 1976) .............................................................................. 39, 42
Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1 (1987) ......................................................................................................41, 42, 44
People v. DiNapoli,
27 N.Y.2d 229 (1970) ........................................................................................................... 22
People v. Fetcho,
91 N.Y.2d 765 (1998) ........................................................................................................... 22
Perez v. Ledesma,
401 U.S. 82 (1971) ....................................................................................................45, 46, 49
Schlagler v. Phillips,
166 F.3d 439 (2d Cir. 1999)................................................................................................. 46
Shapiro v. Cadman Towers, Inc.,
51 F.3d 328, 332 (2d Cir. 1995) .................................................................................... 19, 23
Spargo v. N.Y. State Comm'n on Judicial Conduct,
351 F.3d 65, 78 (2d Cir. 2003) ................................................................................42, 44, 45
Spector v. Allen,
281 N.Y. 251 (1939) ............................................................................................................... 2
Sprint Communications v. Jacobs,
571 U.S. 69 (2013) .......................................................................................................... 38, 48

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Swatch Group Mgmt. Servs. v. Bloomberg,
756 F.3d 73 (2d Cir. 2014) ................................................................................................... 38
Tex. Ass’n of Bus. v. Earle,
388 F.3d 515 (5th Cir. 2004) ............................................................................................... 40
Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc.,
60 F.3d 27 (2d Cir. 1995) ..................................................................................................... 19
Trump v. Mazars USA LLP,
No. 19-5142, Slip Op. (D.C. Cir., Oct. 11, 2019) ....................................................... 4, 5, 6
Twenty-First Sec. Corp. v. Crawford,
502 F. App'x 64 (2d Cir. 2012) ........................................................................................... 17
U.S. Servicemen’s Fund v. Eastland,
488 F.2d 1252 (D.C. Cir. 1973), rev'd, 421 U.S. 491 (1975) ............................................. 21
United States v. Burr, 25 F. Cas. 30 (C.C. Va. 1807) ........................................................... 28
United States v. Nixon, 418 U.S. 683 (1974)..................................................................passim
United States v. R. Enter., Inc.,
498 U.S. 292 (1991) ........................................................................................................ 34, 35
United States v. Williams,
504 U.S. 36 (1992) .................................................................................................................. 2
Virag v. Hynes,
54 N.Y.2d 437 (1981) ........................................................................................................... 34
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008) ............................................................................................................ 18, 20
WPIX, Inc. v. ivi, Inc.,
691 F.3d 275 (2d Cir. 2012)................................................................................................. 17
Younger v. Harris,
401 U.S. 37 (1971) ............................................................................................. 38, 41, 45, 50

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Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ............................................................................................................. 33
Statutes
N.Y. Crim. Proc. Law § 1.20(18) ........................................................................................ 39
N.Y. Crim. Proc. Law § 190.25(4)(a).................................................................................. 22
N.Y. Crim. Proc. Law § 190.25(6) ........................................................................................ 2
N.Y. Crim. Proc. Law § 190.55............................................................................................. 1
Other Authorities
11 C. Wright & A. Miller, Federal Practice and Procedure § 2948 (1973)............................. 19
A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 O.L.C. Op. (Oct.
16, 2000) ................................................................................................................24, 31, 32
Amenability of the President, Vice President, and Other Civil Officers to Criminal Prosecution While
in Office (Sept. 24, 1973) ................................................................................................... 33
Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93
Minn. L. Rev, 1454 (2009) ..................................................................................24, 29, 31
Memorandum for the U.S. Concerning the Vice President’s Claim of Constitutional
Immunity 17, In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965
(D. Md.) ............................................................................................................................. 31
Letter from Pat A. Cipollone, Counsel to the President, to Members of Congress (Oct.
8, 2019) ................................................................................................................................ 6
Order, Efrain Galicia v. Donald J. Trump, et al., Index No. 24973/2015 (1st Dept. Sept.
24, 2019) (Doc. 421) ........................................................................................................ 43
Presidential Amenability to Judicial Subpoenas, Robert G. Dixon, Jr. (June 25, 1973)... 28, 31
Sara Sun Beale, Grand Jury Law and Practice § 9:21 (2d ed. Dec. 2018) ..................... 43, 44
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Constitutional Provisions
N.Y. Const. art. I § 6 .............................................................................................................. 1
U.S. Const. art. II, § 3 ............................................................................................................ 5

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PRELIMINARY STATEMENT
Appellee Cyrus R. Vance, Jr., in his official capacity as District Attorney of New
York County, submits this brief in opposition to the brief of Plaintiff-Appellant Donald
J. Trump, President of the United States (“Appellant”), and respectfully requests that
this Court affirm the October 7, 2019 decision by the district court (Marrero, J.).
Appellant has established neither a likelihood of success on the merits of his
constitutional claim to immunity, nor that he would suffer irreparable harm should the
Court allow production under the grand jury subpoena to proceed in the ordinary
course. By contrast, continued delay poses serious concerns for the Office of the
District Attorney for New York County and the People of the State of New York: It
risks the expiration of statutes of limitation that apply to some of the transactions being
investigated by the grand jury, and would immediately infringe rights and obligations of
the District Attorney, as the duly elected executive representative of an independent
sovereign, to investigate and enforce New York State criminal laws free from
interference by the federal government, as mandated by the Constitution and
longstanding principles of federalism.
This matter arises out of a state criminal investigation in which the New York
County District Attorney’s Office (the “Office”), on behalf of a sitting grand jury, is
investigating a series of business transactions by individuals and entities centered in
New York County. In New York, as elsewhere, the grand jury is a cornerstone of the
criminal justice system, see N.Y. Crim. Proc. Law § 190.55; N.Y. Const. art. I § 6, and
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functions as 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) (citing United States v. Williams, 504 U.S. 36, 47 [1992]). Grand juries in New York
function as an “arm of the court,” presided over by a grand jury judge and advised by
the district attorney. Spector v. Allen, 281 N.Y. 251, 260 (1939); see N.Y. Crim. Proc. Law
§ 190.25(6).
The criminal investigation is proceeding based upon information derived from
public sources, confidential informants, and the grand jury process. The scope and
foundation of the investigation is described, in part, in the redacted portions of the
Shinerock Declaration, filed under seal. See Joint Appendix (“JA”) 45-52. As part of
the investigation, the Office, on behalf of a sitting grand jury, served a subpoena on
Mazars USA LLP (“Mazars”) on August 29, 2019 (the “Mazars Subpoena”). The
Mazars Subpoena calls for financial and tax records of entities and individuals, including
Appellant, who, during relevant periods, engaged in business transactions and other
conduct within the jurisdiction of New York County. The records relate to business
and financial matters unrelated to any official acts of the President of the United States,
and are primarily from the time-period before Appellant assumed that office. 1

To the extent that the Mazar’s Subpoena calls for any records created after the
Appellant became a federal employee, those records, too, concern only private business
and financial matters. These records do not relate to any official duties of Appellant.
2

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A criminal subpoena seeking records of a sitting president is not unprecedented,
see United States v. Nixon, 418 U.S. 683, 716 (1974); but this President’s claim of immunity
from such a subpoena is as novel as it is contrary to the law. His entire lawsuit relies
on the remarkable proposition not only that a sitting president enjoys blanket immunity
from criminal prosecution, but (1) that this blanket immunity also protects a president
from having to respond to any grand jury request for information about his conduct or
that of his businesses or employees before he took office; (2) that persons or entities
employed by, or associated with, the president whose conduct also fall within the scope
of the grand jury investigation benefit equally from this blanket immunity; 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, his
companies, or former associates and employees.
This extravagant claim is unsupported by constitutional text, statute, or caselaw,
and is equally absent from the historical texts and government memoranda on which
Appellant relies most heavily. Notably, the U.S. Department of Justice (“DOJ”), on
whom Appellant relies to “tell this Court its current view of the law,” Appellant Brief
p. 23, stops far short of endorsing this view in its amicus brief. See DOJ Brief p. 5-7.
Rather, it reaffirms what we know from Supreme Court decisions on the subject: The
president is absolutely immune from civil damages liability for his official actions, Nixon
v. Fitzerald, 457 U.S. 731, 756 (1982); is entitled to limited solicitude in discovery, but is
not immune from civil suits solely related to private conduct, Clinton v. Jones, 520 U.S.
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681, 707 (1997); and (though the DOJ omits the citation) the president must produce
records in response to a subpoena duces tecum, even where those records implicate the
president’s own official conduct. Nixon, 418 U.S. at 716. Given the DOJ’s own recent
investigations, prosecutions, and convictions involving Appellant and his affiliates,
including the prosecution of Michael Cohen, in which Appellant was referenced as an
unindicted co-conspirator, the DOJ cannot (and does not) join in Appellant’s claim to
an absolute immunity. Appellant’s aggressive immunity claim here is particularly hollow
in view of his failure to raise it in these recent investigations and prosecutions.
The grand jury has not indicted Appellant, nor called for his arrest, prosecution,
or imprisonment, and any claim to immunity from such proceedings is unripe. The
Mazars Subpoena in no way “interferes with” or “burdens” Appellant’s discharge of his
duties, despite Appellant’s repeated refrain. Directed to a third party, the Mazars
Subpoena neither calls upon Appellant’s time, nor threatens him with coercive process,
as any motion to compel compliance would be directed at Mazars, not Appellant.
Appellant cannot demonstrate that the production to a grand jury of non-privileged
financial records and tax records—records which presidents are required to disclose to
the relevant authorities and which past presidents have disclosed voluntarily and
publicly—in any way prevents him from fulfilling his constitutional obligations. See
Trump v. Mazars USA LLP, No. 19-5142, Slip Op. at 16, 42-43 (D.C. Cir. Oct. 11, 2019)
(noting that Presidents Carter, Reagan, H.W. Bush, Clinton, W. Bush, and Obama all
released personal tax returns to the public, indicating strongly that disclosure neither
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prevents nor disrupts the presidential efforts to “take Care that the Laws be faithfully
executed” [quoting U.S. Const. art. II, § 3]).2
Lacking any cognizable legal basis to challenge the Mazars Subpoena, Appellant
and the DOJ resort to specious assertions that a parade of horribles will follow from
enforcement. Appellant warns that “stacks” of the Appellant’s so-called “confidential”
records will be exposed to the public, Appellant Brief p. 44-45, and, joined by the DOJ,
suggests that “thousands of state and local prosecutors” across the country could
embroil the president in criminal proceedings for no reason other than political
motivations. Appellant Brief p. 8; see DOJ Brief p. 2, 9, 14. These arguments rely upon
two assumptions that are wholly speculative: That the Office will publicize materials
obtained pursuant to the grand jury’s powers, and that state prosecutors will investigate
individuals whether or not they have a basis to suspect those individuals were involved
in criminal activity within their jurisdiction.
The record belies these assertions. Appellant simultaneously argues that the
Office can have no reason to investigate so-called “hush money” payments other than
political motivation, while conceding, as he must, that these same matters have also
been subject to the scrutiny of Congress and the U.S. Attorney’s Office for the Southern
For the same reasons, the Supremacy Clause does not require any different outcome
here. See Trump v. Mazars USA LLP, No. 19-5142, Slip Op. at 39-40 (D.C. Cir. Oct. 11,
2019) (“in determining whether a statute disrupts the proper balance between the
coordinate branches, the proper inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally assigned functions”).

2

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District of New York. The only state investigations initiated to date are in New York,
where Appellant lived and based his business operations during the relevant time
periods. Moreover, existing laws mandating grand jury secrecy and protecting against
improper prosecutions are enforceable both by independent state courts, and by federal
courts, including through the bad faith and harassment exceptions to Younger
abstention.

Rejecting Appellant’s appeal will not undermine those important

protections.
Appellant and the DOJ thus are forced to rely on the argument that the Mazars
Subpoena, as part of a grand jury proceeding, is relegated to second-class status next to
the “impeachment process,” DOJ Brief p. 16; see Appellant Brief p. 25-26, or federal
prosecution, where “structural features” mitigate the risk that providing the Appellant’s
business records will impair the functioning of his Office. DOJ Brief p. 21. This
distinction has no basis in law, and Appellant’s assertion that his objection is limited to
being investigated by “local” authorities is cynical. The reality is that Appellant has
refused to participate in the very impeachment process that he presents here as the
bulwark against placing a president above the law. See Appellant Brief p. 31; Letter
from Pat A. Cipollone, Counsel to the President, to Members of Congress (Oct. 8,
2019). He has similarly refused to comply with legislative Congressional subpoenas.
See, e.g., Trump, No. 19-5142, Slip Op. at 42-43. His core position on every one of these
matters is that the United States Presidency places him beyond the reach of the law.

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The President’s “unique position in the constitutional scheme,” Fitzgerald, 457
U.S. at 749, does not shield Appellant and his businesses and business associates from
providing records in a criminal investigation into non-official conduct. Accordingly,
this Court should affirm the decision below and deny Appellant’s effort to thwart
compliance with the duly issued Mazars Subpoena, the fruits of which will be protected
by the cloak of grand jury secrecy.
STATEMENT OF THE ISSUES
1.

Did the district court abuse its discretion when it concluded that (i)

Appellant is unlikely to succeed on the merits of his claim that, as President, he is
immune from all criminal process, including a grand jury subpoena issued to a third
party for records of non-official business of the president and others that largely predate his time in office, (ii) compliance by the third party with the subpoena will not
irreparably harm Appellant, and (iii) on balance, ensuring that the grand jury pursues
this criminal investigation without interference outweighs the concerns that Appellant
puts forth as grounds for not complying with the grand jury subpoena?
2.

Does Younger abstention require federal courts to refrain from enjoining

the execution of a duly issued subpoena in an ongoing state grand jury investigation?
3.

Should the Court, in the event it affirms the decision below, grant a stay

pending appeal, where Appellant has failed to show either a likelihood of success on
the merits or irreparable harm, and where a stay, if imposed, risks allowing criminal
actors to escape accountability, and would immediately infringe the Appellee’s
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constitutional rights and obligations, as a duly elected executive representative of an
independent sovereign?
STATEMENT OF THE CASE
The subpoenas issued to the Trump Organization and Mazars
On August 1, 2019, the Trump Organization, was served with a Grand Jury
subpoena (the “Trump Organization Subpoena”) calling for a range of records and
communications from multiple individuals and entities relating to, among a variety of
other transactions, the so-called “hush money” payments to Stephanie Clifford and
Karen McDougal, how those payments were reflected in the Trump Organization’s
books and records, and who was involved in determining how those payments would
be reflected in the Trump Organization’s books and records.3 On August 7, 2019, this
Office spoke with counsel for the Trump Organization, and conveyed that the Office
believes the Trump Organization Subpoena calls for tax records for 2017. The Trump
Organization produced records on August 15 and 29, September 13, and—after
commencement of the present matter—October 4 and 13, 2019. To date, the Trump
Organization has produced over 3,000 pages (approximately two-thirds of which are
non-substantive Google alerts), but no tax records.
On August 29, 2019, Mazars was served with the Mazars Subpoena, prior to the
Trump Organization’s objections to producing tax returns in response to the Trump

Contrary to Appellant’s characterizations, the Office’s investigation goes beyond the
scope of the Trump Organization Subpoena. See JA45-52.
8

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Organization Subpoena. The Mazars Subpoena seeks the same financial records that
Mazars had already been called on to produce in response to requests from the federal
government, and in addition calls for tax records for the years 2011 through the present.
The Office spoke with counsel for Mazars in a series of phone calls to establish an
agreed-upon production schedule beginning on, and extending past, the original
September 19, 2019 return date for the Mazars Subpoena. Mazars did not and has not
raised any of its own objections to the subpoena.
Although between August 7 and August 21, 2019, the Office made at least four
follow-up requests to Trump Organization counsel for tax returns in response to the
Trump Organization Subpoena, counsel did not raise any specific objections to
producing tax returns until September 4, 2019. On that day, the Trump Organization’s
counsel claimed, for the first time, that production of those tax records implicated
constitutional issues. In a follow-up email of September 9, 2019, counsel contended
further that tax records were not responsive to the Trump Organization Subpoena.
Prior and continuing investigations related to Appellant
Public reporting has covered several prior and continuing investigations and
prosecutions involving Appellant, his associates, and related entities, including those
conducted by Congress and federal and state authorities. Appellant has not claimed
that these matters invaded the constitutional prerogatives he seeks to vindicate here.
This is so despite that, as reported, these investigations and prosecutions were marked

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by the robust exercise of grand jury and other investigative powers, and involved
investigation of grave conduct:
a. Special Counsel Robert Mueller oversaw an approximately two-year criminal

investigation addressing (1) whether Appellant, his presidential campaign, or
his associates were involved in unlawful efforts by Russia to interfere with the
2016 presidential election, and (2) whether Appellant, while president, was
implicated in obstructing justice. According to public reporting, the Special
Counsel’s investigation involved, among other things, over 2,800 subpoenas,
nearly 500 search warrants, and approximately 500 witnesses. It resulted in
the indictment of thirty-four individuals, including individuals associated with
Appellant and Appellant’s presidential campaign.
b. Federal prosecutors in multiple districts have investigated the origins of

financing for Appellant’s inauguration committee, how the money was spent,
and whether any donations to the committee resulted in favors or special
access.
c. The New York Department of Financial Services has issued at least one

subpoena seeking records and communications related to a non-criminal
investigation into allegations that the Trump Organization and its officers
engaged in insurance fraud.
d. The New York Attorney General’s Office has issued at least one subpoena

seeking records and communications related to a currently non-criminal
10

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investigation into allegations that the Trump Organization and its officers
engaged in bank fraud.
e. On August 21, 2018, federal prosecutors obtained the guilty plea of Michael

Cohen on charges of tax fraud, false statements, and campaign finance
violations, committed when Cohen was legal counsel to Appellant. In
sentencing filings, federal prosecutors referred to Cohen as having acted in
coordination with and at the direction of an unindicted co-conspirator
referred to as “Individual-1.” In testimony before Congress on February 27,
2019, Cohen testified under oath that “For the record: Individual #1 is
President Donald J. Trump.”
f. On September 20, 2018, federal prosecutors reached a non-prosecution

agreement with a media company related to a criminal investigation into the
lawfulness of “hush money” payments, which the media company admitted
were made to prevent allegations that Appellant had an extra-marital affair
from airing in the run-up to the 2016 election.
g. On October 10, 2019, a federal court unsealed an indictment charging two

associates of Appellant’s attorney, Rudolph Giuliani, with campaign finance
violations involving, among other things, straw donors used to mask
excessive donations and the unlawful facilitation of political donations by
foreign nationals designed to advance foreign political interests.

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h. The well-publicized list of Appellant’s associates involved in criminal matters

includes George Papadopoulos, a former campaign advisor, who pleaded
guilty to lying to the FBI; Alex van der Zwaan, a lawyer who worked with
former Trump campaign officials, who pleaded guilty to lying to investigators;
Paul Manafort, the former Chairman of Appellant’s presidential campaign,
who pleaded guilty to, among other crimes, conspiracy to obstruct justice
related to witness tampering; Rick Gates, a former Trump campaign advisor,
who pleaded guilty to financial fraud and lying to the FBI; and Michael Flynn,
a former national security advisor, who pleaded guilty to lying to the FBI
about conversations with the Russian ambassador.
The point is that none of these many criminal investigations or prosecutions has
led to the type of irreparable harm to his presidency that Appellant now claims or
predicts will arise as a result of our Office’s single Mazars Subpoena. This new claim is
frivolous, and—again—seems to have been triggered by the simple fact that the
subpoena called for tax returns.
Appellant’s objection and subsequent litigation
As of September 13, 2019, the Office had not been made aware of any intent to
intervene and quash the Mazars Subpoena, and sent separate emails to counsel for the
Trump Organization and for Mazars stating that the Office deemed the Mazars
Subpoena valid and returnable on September 19, 2019, absent a specific agreement or
contrary court order.
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On September 17, 2019, counsel for the Trump Organization met with the
Office and asked for a suspension of compliance with the Mazars Subpoena pending
further negotiation or litigation. Counsel made clear, however, that even if the Office
negotiated a limited production, its client would never agree to the production of tax
records. The Office declined.
On September 18, 2019, the Trump Organization again met with the Office and
requested a suspension of the tax-related portion of the Mazars Subpoena for several
days to allow counsel time to prepare briefs to challenge the subpoena. In response,
the Office agreed to delay enforcement of the Mazars Subpoena until September 23,
2019 as it pertained to tax records.
On September 19, 2019, counsel for the Trump Organization sent the Office
copies of Appellant’s complaint and motion for emergency relief in the district court.
In response, the Office agreed to suspend enforcement of the subpoena
temporarily through the end of a highly expedited briefing schedule that set the matter
for oral argument six days later, on September 25, 2019. On September 23, 2019, the
Office submitted papers in opposition to Appellant’s request for emergency relief, and
in support of a motion to dismiss the suit. The next day, on September 24, 2019,
Appellant submitted a reply brief, along with an amended complaint asserting, for the
first time, jurisdiction under 42 U.S.C § 1983. That same day the DOJ entered an
appearance, seeking a three-week briefing schedule to submit a statement in support of
Appellant.
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On September 25, 2019, the district court heard oral argument and ordered the
DOJ to file any statement no later than October 2, 2019. During oral argument, the
district court declined to rule on the merits of any pending motion, stayed enforcement
of the Mazars Subpoena for one day, and directed the parties to confer in an attempt
to agree on a way to proceed pending the Court’s decision.
On September 26, 2019, the parties agreed that the Office would temporarily
forbear enforcement of the Mazars Subpoena.
On October 2, 2019, the DOJ submitted a brief in support of Appellant.
The decision below
On October 7, 2019, the district court issued a 75-page decision dismissing
Appellant’s amended complaint and, in the alternative, denying Appellant’s motion for
injunctive relief and a stay. The district court concluded that it “cannot square a vision
of presidential immunity that would place the President above the law with the text of
the Constitution, the historical record, the relevant case law, or even the DOJ Memos
on which the President relies most heavily for support.” JA136.
The court also concluded that “enforcement of and compliance with the Mazars
Subpoena would not cause irreparable harm to the President.” JA108. It noted that,
on balance, “[t]he interest the President asserts in maintaining the confidentiality of
certain personal financial and tax records that largely relate to a time before he assumed
office, and that may involve unlawful conduct by third persons and possibly the
President, is far outweighed by the interests of state law enforcement officers, and the
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federal courts in ensuring the full, fair, and effective administration of justice.” JA140.
Notwithstanding the “burdens and interferences” asserted by Appellant, the district
court concluded that “frustration of the state criminal investigation under the facts
presented here presents much greater concerns that overcome the President’s grounds
for not complying with the grand jury subpoena.” JA140-41. The district court found
that the position taken by Appellant was “repugnant to the nation’s governmental
structure and constitutional values.” JA76.
SUMMARY OF THE ARGUMENT
This Court should affirm the district court’s decision that Appellant failed to
show that he would suffer irreparable harm if records were produced pursuant to the
Mazars Subpoena, and failed to show that he is likely to succeed on the merits of his
claim to absolute immunity including from a grand jury subpoena to a third party
relating to non-official conduct of Appellant and others. Should subpoena compliance
commence, rules governing grand jury secrecy protect against any harm that could
conceivably flow from the production of business and tax records of the type routinely
disclosed by presidents and other officials. If a court ultimately endorses Appellant’s
challenge to the Mazars Subpoena, records produced in response to it could be
returned, restoring Appellant to his pre-compliance status. Controlling precedent
requires a president to answer a subpoena to produce records, even where those records
implicate his own conduct. Neither constitutional text, history, nor commentators
support Appellant’s contrary view. Whatever the contours may be of presidential
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immunity, this Court need not define them to reject Appellant’s overly expansive
formulation.
Appellant’s failure to identify irreparable harm means that he cannot argue that
“extraordinary circumstances” preclude an affirmance of the district court’s decision to
abstain under the Younger doctrine. His argument that a grand jury proceeding does
not constitute a “state criminal proceeding” for Younger purposes is defeated by New
York’s grand jury rules and the weight of authority on the subject in the U.S. Court of
Appeals and the district courts of this Circuit. He fails to show that he would not be
afforded an adequate opportunity for judicial review in state court, and indeed the case
law and the circumstances here indicate that he would have the opportunity to present
his constitutional claims and obtain review. Appellant’s assertions of bad faith and
harassment rely on speculation and a failure to acknowledge the record of convictions
involving some of the same actors and transactions at issue in the grand jury
investigation here.
Finally, the failure to show irreparable harm and likelihood of success on the
merits is fatal to Appellant’s request that this Court enter a stay in the event that it
affirms the decision below. The Office will suffer serious adverse consequences should
Appellant’s lawsuit continue to delay enforcement of the Mazars Subpoena.

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ARGUMENT
APPELLANT HAS FAILED TO SATISFY HIS
BURDEN OF SHOWING IRREPARABLE HARM
AND A LIKELIHOOD OF SUCCESS ON THE
MERITS OF HIS CLAIM TO ABSOLUTE
IMMUNITY FOR HIMSELF AND HIS FORMER
BUSINESSES AND BUSINESS ASSOCIATES, AND
HAS NO COGNIZABLE CLAIM THAT A
FEDERAL COURT MAY HEAR
I.

Standards of review
The district court’s denial of a preliminary injunction is reviewed for abuse of

discretion. WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278 (2d Cir. 2012). The district court’s
factual findings should be reviewed for clear error, its legal findings may be reviewed de
novo, and its ultimate decision should not be disturbed absent an abuse of discretion.
See Twenty-First Sec. Corp. v. Crawford, 502 F. App’x 64, 65-66 (2d Cir. 2012).
The district court’s conclusion that Younger abstention applies must be reviewed
de novo. Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002). The
district court’s findings of fact should be reviewed only for clear error, and whether
those facts come within the ambit of either the “bad faith” or “extraordinary
circumstances” exceptions to the Younger abstention doctrine is a mixed question of law
and fact that is reviewed de novo. Id. at 198.

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II.

The district court correctly concluded Appellant is not entitled to
injunctive relief based on his sweeping and unsupported claim of a
presidential immunity for all conduct extending to associates and entities
The district court rejected Appellant’s demand for injunctive relief, which was

based primarily on an unprecedented claim of presidential absolute immunity. The
district court found that Appellant demonstrated neither irreparable harm nor a
likelihood of success on the merits, given that such success rested on a “virtually
limitless” view of immunity unsupported by “the Constitution, the historical record,
and the relevant case law.” JA70, JA111. The district court’s holding was plainly not
an abuse of discretion.
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 interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). 4 Granting a preliminary injunction is “an extraordinary and
drastic remedy” and “one that should not be granted unless the movant, by a clear showing,

The district court correctly noted that this Court’s “serious questions” standard is not
applicable where, as here, the moving party’s request for injunctive relief is an attempt
to “stay government action taken in the public interest pursuant to a statutory . . .
scheme.” JA105 (quoting Able v. United States, 44 F.3d 128, 131 [2d Cir. 1995]). The
district court also did not abuse its discretion in finding that Appellant “would not
prevail even under the different but no less stringent ‘sufficiently serious questions’
analysis.” JA105.
18
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carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam) (internal quotations and citations omitted) (emphasis in original).
Indeed, this Court holds a movant to a heightened standard when an injunction
“will provide the movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits.” Tom Doherty Assocs.,
Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). In such situations, the
heightened standard requires the movant “show a ‘clear’ or ‘substantial’ likelihood of
success on the merits, Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999), and make a ‘strong
showing’ of irreparable harm, Doe v. N.Y. Univ., 666 F.2d 761, 773 (2d Cir. 1981), in
addition to showing that the preliminary injunction is in the public interest.” New York
ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015). Where, as here,
statutes of limitation may run if Appellant is granted injunctive relief, this Court’s more
stringent standard for granting the already extraordinary remedy of injunctive relief
should apply.
A. No irreparable harm would flow from compliance with the Mazars
Subpoena
Showing 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 make the demonstration, a movant must
show “an injury that is neither remote nor speculative, but actual and imminent.”
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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. .
. .”). In other words, a movant must demonstrate that, “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 Chem., Inc.
v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).
The district court correctly found that, “because a grand jury is under a legal
obligation to keep the confidentiality of its records, . . . no irreparable harm will ensue
from disclosure to it of the President’s records sought here.” JA110.
Nonetheless, and though now framed as a basis for granting a stay rather than
injunctive relief, Appellant claims he will suffer irreparable harm because his records
will be disclosed to “the District Attorney and grand jury.” Appellant Brief p. 44. But,
as the district court noted, a “grand jury [is] bound by law and sworn official oath to
keep such documents and records confidential.” JA109. Indeed, grand juries routinely
seek and obtain financial and tax records like those at issue, and such records are entitled
to no special treatment under the law governing grand jury inquiries. Appellant’s tax
records have previously been produced to other, similarly situated governmental
agencies with confidentiality obligations of their own—namely, the federal and state tax
authorities.

Appellant has not claimed that any harm ensued from these prior

disclosures, and he cannot explain why any harm would thus ensue here.
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Appellant cites a number of inapposite cases to support his claim of irreparable
harm. These cases, like those distinguished by the district court, do not “relate to
ongoing criminal investigations, let alone to the disclosure of documents and records
to a grand jury bound by law and sworn official oath to keep such documents and
records confidential.” JA109. Nat’l Treasury Employees Union v. United States Dept. of
Treasury, for example, was in the right to privacy context, and the district court found
that, because the government failed to demonstrate a “compelling interest” in obtaining
the information at issue, the applicants’ right to privacy prevailed. 838 F. Supp. 631,
636-37 (D.D.C. 1993). Here, it is beyond dispute that the government has a compelling
interest in enforcing its criminal laws. The other cases relied on by Appellant are
similarly inapplicable. See Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467, 499
(S.D.N.Y. 2019) (disclosure of confidential information to New York City deemed
irreparable harm because the ordinance in question “does not appear to place
meaningful limits on the City’s ability to disseminate the information it collects, either
to other government offices or to the public at large”); U.S. Servicemen’s Fund v. Eastland,
488 F.2d 1252 (D.C. Cir. 1973) (disclosure of names found to be irreparable harm based
on a finding that the disclosure would curb free speech and free association under the
First Amendment), rev’d, 421 U.S. 491 (1975).
The Supreme Court in Nixon noted that the interest in protecting the
confidentiality of presidential communications is, by contrast, “significantly
diminished” when the disclosed materials are provided to a judge, “with all the
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protection that a district court will be obliged to provide.” Nixon, 418 U.S. at 706.
Likewise, a grand jury, with its laws surrounding secrecy, would be “obliged” to protect
any documents turned over in response to the Mazars Subpoena. See N.Y. Crim. Proc.
Law § 190.25(4)(a); People v. DiNapoli, 27 N.Y.2d 229, 235 (1970) (listing the policy
reasons for grand jury secrecy, which includes “protection of an innocent accused from
unfounded accusations if in fact no indictment is returned”); In re Dist. Attorney of Suffolk
Cty, 58 N.Y.2d 436, 443 (1983) (the Court of Appeals unanimously rejected Suffolk
County DA’s request to share grand jury transcripts with the County in furtherance of
a civil RICO suit based on the fact that “secrecy has been an integral feature of Grand
Jury proceedings since well before the founding of our Nation”); People v. Fetcho, 91
N.Y.2d 765, 769 (1998) (noting that “a presumption of confidentiality attaches to the
record of Grand Jury proceedings”); Melendez v. City of New York, 109 A.D.2d 13, 16 (1st
Dept. 1985) (explaining that secrecy is a “necessary requisite to the proper functioning
of the grand jury system” and that “[h]istorically, the overriding need for confidentiality
had its roots prior to the founding of our Nation”).
Whether framed as the “unscrambling of an egg” or the “unringing of the bell,”
Appellant can plainly be restored to his pre-compliance status if any court later agrees
with his proposition that a President is immune from criminal investigation. The
records can simply be returned to Mazars or destroyed. And assuming bad faith on
the part of state prosecutors (alleging “massive incentives” to unethically target a
president with investigations to “advance their careers”), Appellant Brief p. 28, is exactly
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the type of “speculative” and “remote” harm that cannot sustain a showing of
irreparable harm. See Shapiro, 51 F.3d at 332.
As the district court put it, having Appellant’s accountants comply with a
subpoena would not “create the catastrophic intrusions on the President’s personal time
and energy, or impair his ability to discharge official functions, or threaten the ‘dramatic
destabilization’ of the nation’s government.” JA128. It was therefore not an abuse of
discretion to find that Appellant failed to demonstrate irreparable harm, particularly
given that the exceptions “to the demand for every man’s evidence are not lightly
created nor expansively construed, for they are in derogation of the search for truth.”
Nixon, 418 U.S. at 710.
B. There is no likelihood of success on the merits
The district court also correctly found that Appellant “failed to demonstrate a
likelihood of success on the merits.” This finding rested in large part on the district
court’s rejection of “the President’s position that a third person or entity cannot be
subpoenaed requesting documents related to an investigation concerning potentially
unlawful transactions and conduct of third parties in which records possessed or
controlled by the sitting President may be critical to establish the guilt or innocence of
such third parties, or of the President.” JA111. In arguing that his position is
nonetheless supported by the DOJ and legal commentators, Appellant conflates his
proposed “immunity from criminal process” with a possible presidential immunity
from indictment and post-indictment prosecution. See, e.g., Appellant Brief p. 30
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(selectively quoting a DOJ memo and stating “[c]riminal process comes with a
‘distinctive and serious stigma[,]’” when in fact the quoted passage addresses only “the
distinctive and serious stigma of indictment and criminal prosecution.” [A Sitting President’s
Amenability to Indictment and Criminal Prosecution, 24 O.L.C. Op. at 249 [Oct. 16, 2000]
[emphasis added]]). 5
A review of the sources upon which the district court rested its decision makes
clear that the court’s ruling regarding the likelihood of success should be affirmed.
1. Controlling precedent
Controlling precedent confirms that a sitting president must comply with this
subpoena. While Appellant addressed precedent only in passing at the end of his
discussion of presidential immunity, the relevant cases are the proper place to begin.6
Although no court has ruled on the precise issue presented here—whether a
president and those around him are absolutely immune from responding to a grand jury
subpoena relating to non-official conduct—the Supreme Court in Nixon decided a case
Appellant’s use of the term “criminal process” is further suspect in light of his
insistence, contrary to prevailing law, that a grand jury indictment is not part of a
criminal proceeding in the Younger abstention context. See Appellant Brief p. 17.

5

Appellant instead begins by doubling down on his claim, rejected below, that
“[v]irtually all legal commentators agree” with his sweeping view of immunity.
Appellant Brief p. 22. However, one of the principal commentators cited argues instead
that Congress should enact a law to defer “criminal investigations and prosecutions of
the President” until he has left office, and thus apparently believes that such
investigations are not otherwise prohibited. See Brett M. Kavanaugh, Separation of Powers
During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1461 (2009).

6

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that presented strikingly similar facts. And in that case, despite the fact that the
subpoenaed material related to the president’s communications with government
advisors while in office, in carrying out official acts, the Court held that a president is
not immune from responding to a subpoena duces tecum merely because of the office he
occupies. Nixon, 418 U.S. at 713.
In considering President Nixon’s claim of “an absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances,” id. at 706, the
Supreme Court in Nixon acknowledged the “need for confidentiality in the
communications of his office” and “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision making,” id. at 708. The Court
concluded, however, that “neither the doctrine of separation of powers, nor the need
for confidentiality of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process under all
circumstances.” Id. at 706.
The Court weighed the president’s interests against “our historic commitment to
the rule of law,” which “is nowhere more profoundly manifest than in our view that
‘the twofold aim (of criminal justice) is that guilty shall not escape or innocence suffer.’”
Id. at 708-09 (quoting Berger v. United States, 295 U.S. 78, 88 [1935]). In explaining why
even a president must in some cases comply with a subpoena in a criminal matter, the

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Court stated:
The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and
public confidence in the system depend on full disclosure of all the facts,
within the framework of the rules of evidence. To ensure that justice is
done, it is imperative to the function of courts that compulsory process
be available for the production of evidence needed either by the
prosecution or by the defense.
Id. at 709.
After weighing these competing interests, a unanimous Court held that the
president’s position was unsupported by the law, explaining that, “when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice.” Id. at 713.
The relevant considerations in this case are far more straightforward because the
concerns voiced by the Court in Nixon—concerns it overcame—are non-existent here.
The documents sought relate entirely to non-official conduct,7 and not even Appellant
claims that complying with the subpoena will impinge on “[a] President’s acknowledged
need for confidentiality in the communications of his office.” Id. at 712-13. Instead,
the premise of Appellant’s argument appears to be that his preference not to turn over
his tax records outweighs our nation’s “historic commitment to the rule of law” and
The records that post-date Appellant’s taking Office relate to business transactions
that he continued to pursue while in Office, not acts taken in his official capacity.
26

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“the fundamental demands of due process of law in the fair administration of criminal
justice.” Id. at 708, 713.
Appellant attempts to distinguish Nixon by stating that “the subpoena upheld in
Nixon asked the President to provide evidence in someone else’s criminal proceeding; the
President was not himself a target.”

Appellant Brief p. 29.

That description

conveniently ignores that, at the time the subpoena issued, and as the Supreme Court
noted, a grand jury had already named President Nixon “as an unindicted
coconspirator” in the proceeding for which his records were sought. Nixon, 418 U.S. at
687. He was not merely a “witness.” Appellant Brief p. 30. Instead, like the grand jury
subpoena at issue here, the trial subpoena in Nixon sought documents relevant to an
investigation that related to conduct of the president and his associates. Further
underscoring the factual similarities of the two cases, like President Nixon, Appellant
was (as noted above) referenced as a co-conspirator in a federal prosecution of his
former lawyer, Michael Cohen, that relates to some of the same transactions that have
been reported to be at issue here.
Appellant also claims Nixon is inapplicable because Appellant here is being
treated as a “target,” not a witness. Appellant Brief p. 30. But that argument is based
on a false premise: As stated since Appellant initiated this action, the grand jury here is
investigating and seeking documents related to a number of individuals and entities,
including records of Appellant. Nowhere, other than in his own briefs, has Appellant
been referred to as a “target.”
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Like Nixon, the other cases that have addressed the scope and contours of
possible presidential immunity, in varying contexts, make clear that the absolute
immunity claimed by Appellant simply does not exist. In Nixon v. Sirica, for example,
the first question addressed by the D.C. Circuit was whether “so long as he remains in
office, the President is absolutely immune from the compulsory process of a court.”
487 F.2d 700, 708 (D.C. Cir. 1973). The court found that no such absolute immunity
existed. Id. at 712. Indeed, the court in Sirica noted that President Nixon “concedes
that he, like every other citizen, is under a legal duty to produce relevant, non-privileged
evidence when called upon to do so.” Id. at 712-13.
In arriving at its conclusion, the Sirica court relied in large part on United States v.
Burr. There, Chief Justice Marshall, riding circuit, answered in the affirmative the
question of “whether a subpoena duces tecum can be directed to the president of the
United States.” United States v. Burr, 25 F. Cas. 30, 34 (C.C. Va. 1807). The Supreme
Court has since repeatedly confirmed Chief Justice Marshall’s ultimate finding. See
Clinton, 520 U.S. at 704 (explaining that in Nixon the Court “unequivocally and
emphatically endorsed” Chief Justice Marshall’s ruling in Burr “that a subpoena duces
tecum could be directed to the President”); see also Presidential Amenability to Judicial
Subpoenas, p. 5. Robert G. Dixon, Jr. (June 25, 1973) (“Modern 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. . . .”).

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In Clinton, the Supreme Court found that a sitting president does not enjoy
absolute immunity from civil suit for events that occurred before he took office. 520
U.S. at 710. In explaining its decision, the Court, citing Nixon and Burr, explained that
it is “settled that the President is subject to judicial process in appropriate
circumstances.” Id. at 703. The Court added that it has “never suggested that the
President, or any other official, has an immunity that extends beyond the scope of any
action taken in an official capacity,” id. at 694, and that constructing an immunity for
unofficial acts “grounded purely in the identity of [the president]” would be
“unsupported by precedent,” id. at 695.
The Court in Clinton specifically accounted for whether defending against
litigation would “impose an unacceptable burden on the President’s time and energy,
and thereby impair the effective performance of his office.” Id. at 702. It nonetheless
found that the president was not immune from civil litigation. Appellant makes similar
arguments to petitioner’s in Clinton, claiming that compliance with the Mazars Subpoena
will “take the President’s focus away from his or her responsibilities to the
people.” Appellant Brief p. 34 (quoting Kavanaugh, 93 Minn. L. Rev. at 1461). Yet
Appellant ignores not only that the Supreme Court in Clinton ultimately rejected such
arguments, but also that those arguments are not even applicable here. Allowing
Mazars to comply with a subpoena for records that Appellant has previously turned
over to other government agencies will in no way impose a “burden on the President’s

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time and energy.” Clinton, 520 U.S. at 702. Indeed, Appellant will not have to do
anything at all.
Though Appellant cites Fitzgerald as recognizing a “categorical absolute immunity
for the President’s official acts,” in reality the holding was limited to a presidential
immunity “from damages liability predicated on his official acts.” 457 U.S. at 749. In
so holding, the Court noted that “[i]t is settled law that the separation-of-powers
doctrine does not bar every exercise of jurisdiction over the President of the United
States.” Id. at 753-54. And the Court went on to specify the circumstances here as
one in which a President is not entitled to immunity: “When judicial action is needed to
serve broad public interests—as when the Court acts, not in derogation of the
separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube
Co. v. Sawyer, [343 U.S. 579 (1952)], or to vindicate the public interest in an ongoing criminal
prosecution, see United States v. Nixon, supra —the exercise of jurisdiction has been held
warranted.” Id. at 754 (emphasis added).
Almost the entirety of the section Appellant entitles “Precedent” is dedicated to
distinguishing the instant case from Nixon and Clinton; the remainder points to the socalled DOJ Memos (discussed below), which needless to say do not belong under the
heading “Precedent.” Nixon and the other cases on presidential immunity directly
undercut Appellant’s claim of a sweeping and categorical immunity that would apply
equally to him and his associates, including for conduct before Appellant ever took
office. No such immunity exists.
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2. The DOJ Memos
In claiming that the district court was wrong in finding no likelihood of success
on the merits, Appellant misplaces his reliance on the district court’s review of three
documents drafted by DOJ lawyers: (1) Amenability of the President, Vice President, and Other
Civil Officers to Criminal Prosecution While in Office (Sept. 24, 1973) (the “Dixon Memo”);
(2) Memorandum for the U.S. Concerning the Vice President’s Claim of Constitutional
Immunity, In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965 (D.
Md.) (the “Bork Memo”); and (3) A Sitting President’s Amenability to Indictment and Criminal
Prosecution, 24 O.L.C. Op. (Oct. 16, 2000) (the “Moss Memo,” and collectively, the
“DOJ Memos” or “Memos”).
Appellant’s attacks on the decision below regarding the meaning and persuasive
weight of the DOJ Memos fundamentally misconceive the weight given those Memos
by the district court and the weight those Memos can bear. First, the district court
based its holding, not on a rejection of the DOJ Memos, but on a “reject[ion of] the
President’s contention that the Constitution, the historical record, and the relevant case
law support such a presidential claim.” JA111. Second, the Memos are not binding
precedent. The DOJ makes this clear in its brief, recognizing that the Memos merely
merely the DOJ’s “longstanding position,” as applicable to federal prosecutors, on
whether a president may be “arrested, indicted, prosecuted.” DOJ Brief p. 18.
With respect to the substance of the DOJ Memos, the documents are “flawed
by ambiguities (if not outright conflicts) on an essential point: the scope of presidential
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immunity.” JA117 (noting that the Dixon memo refers to immunity from “criminal
proceedings,” the Bork Memo discusses immunity from “criminal process,” and the
Moss Memo refers to the immunity as not subjecting a sitting president to “indictment
and criminal prosecution”). As just one example, the Moss Memo affirmatively
undercuts Appellant’s position because it endorses the idea that a sitting President may
be criminally investigated. See O.L.C. Memo at 257 n. 36 (during the period that a sitting
President enjoys immunity from criminal prosecution, “[a] grand jury could continue to
gather evidence”).
Perhaps most importantly, this Court need not waste its time parsing the DOJ
Memos in search of a singular conclusion. Rather, as Appellant rightfully points out,
“[t]he Justice Department is participating in this case and can tell this Court its current
view of the law [on presidential immunity].” Appellant Brief p. 23. And in its brief,
filed in support of Appellant, the DOJ makes clear that its “current view” does not
include that “[t]he President is constitutionally immune from criminal process while he
is in office.” Appellant Brief p. 22. To the contrary, in urging this Court to adopt a
“particularized need” standard 8 for determining whether compliance with the subpoena
is required, see DOJ Brief p. 5, the DOJ concedes that in some situations (when such a
need has been shown), the president would have to comply with a state grand jury
subpoena. In other words, Appellant’s claim that “[t]he Justice Department agrees”
As discussed in more detail below, this standard is contrary to the law and inapplicable
to the facts of this matter.
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with his view on presidential immunity, Appellant Brief p. 22, is belied by the DOJ’s
brief filed in this very case as amicus in support of Appellant. The DOJ’s “current view”
that a president can, in some circumstances, be subject to criminal process is reflected
by the investigation recently undertaken by Special Counsel Robert Mueller and related
investigations conducted by the U.S. Attorney’s Office for the Southern District of New
York.
3. History
Appellant spends a great deal of time cherry-picking quotes from the founders
that he claims support his assertion of a categorical presidential immunity from
investigation. But Justice Robert H. Jackson’s oft-quoted words in Youngstown Sheet &
Tube Co. v. Sawyer perfectly address this flawed approach:
Just what our forefathers did envision, or would have envisioned had they
foreseen modern conditions, must be divined from materials almost as
enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
A century and a half of partisan debate and scholarly speculation yields no
net result but only supplies more or less apt quotations from respected
sources on each side of any question.
343 U.S. at 634-35 (Jackson, J., concurring).
Indeed, the Supreme Court in Clinton was “unpersuaded by the evidence from
the historical record” that President Clinton put forth to support his claim of
presidential immunity—evidence that is identical to what Appellant puts forth here.
Compare Clinton, 520 U.S. at 695 (specifically listing Ellsworth, Adams, and Jefferson as
the evidence it found unpersuasive), with Appellant Brief at 27-28 (citing Ellsworth,
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Adams, and Jefferson). In other words, nothing in the historical record supports
Appellant so decisively that it can be concluded that the district court abused its
discretion in denying injunctive relief.
4. The DOJ’s proposed standard
As noted above, the DOJ claims that the district court erred by not partaking in
a “heightened and particularized review” of the Office’s request for Appellant’s
documents. DOJ Brief p. 24. This standard is contrary to the law. It is well settled that
the burden rests on the party challenging a subpoena to show that quashing is
appropriate under established standards. See United States v. R. Enter., Inc., 498 U.S. 292,
301 (1991) (a grand jury subpoena “is presumed to be reasonable, and the burden of
showing unreasonableness must be on the recipient who seeks to avoid compliance”).
In New York, a grand jury subpoena “enjoys a presumption of validity that requires the
party challenging the subpoena to demonstrate, by concrete evidence, that the materials
sought have no relation to the matter under investigation.” Virag v. Hynes, 54 N.Y.2d
437, 444 (1981). To require, in this context, a prosecutor to explain to a judge what lies
behind the grand jury’s thinking would hamstring the grand jury process and improperly
insert a federal court into a state court’s pre-charge supervision of the grand jury
function.
Moreover, applying some form of heightened review of need may have made
sense in the context of Nixon where the president asserted a presidential
communications privilege over phone conversations and other materials from his time
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in office. But there is no precedent for applying that standard for examining claims of
executive immunity where no prerogative of the executive is at stake. As explained in
In re Sealed Case, relied on by the DOJ, the communications privilege is implicated when
a president is “asked to produce documents or other materials that reflect presidential
decisionmaking and deliberations and that the President believes should remain
confidential.” 121 F.3d 729, 744 (D.C. Cir. 1997). The Mazars Subpoena does not
touch on Appellant’s communications or official actions as president. The materials
sought will not include references to “political leaders within the country or foreign
statesmen” and will not jeopardize the “public interest in candid, objective . . .
Presidential decisionmaking,” which were the “considerations justifying” the Nixon
Court’s approach. 418 U.S. at 715, 708.
For these reasons, the standard offered by the DOJ has no place here. See R.
Enter., Inc., 498 U.S. at 298. Indeed, it would be in direct conflict with the obligations
on prosecutors under the rules of state grand jury secrecy. If a prosecutor were to have
to explain and defend the substance of a subpoena upon any motion to quash, it would
necessarily upend the confidentiality protections accorded the grand jury process:
protections that are designed to benefit people—like Appellant—who are not, and may
never be, subjected to an actual criminal charge.
Even if applied, the DOJ’s proposed standard would not change the result
because the facts supporting the Mazars Subpoena, as set forth in the sealed, unredacted
portion of the Shinerock Declaration, more than meet that standard.
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C. The district court correctly found that an injunction would be contrary
to the public interest
The district court did not abuse its discretion in finding that “the public interest
does not favor granting a preliminary injunction.” JA141. With ample support in the
record and in precedent, it explained that “[t]he interest the President asserts in
maintaining the confidentiality of certain personal financial and tax records that largely
relate to a time before he assumed office, and that may involve unlawful conduct by
third persons and possibly the President, is far outweighed by the interests of state law
enforcement officers, and the federal courts in ensuring the full, fair, and effective
administration of justice.” JA140.
The interests of the grand jury, and by extension the People of the State of New
York, will be injured by suspension of the Mazars Subpoena, and the district court was
correct in weighing this countervailing interest in its final analysis. Appellant has slowed
the machinery of the grand jury process and made it abundantly clear that his tactic of
delaying through litigation and appeals will continue indefinitely. See Appellant Brief p.
1 (a stay must be issued “so that the President’s documents are not disclosed before his
case is decided by this Court and, if necessary, the Supreme Court”).
III.

The district court’s decision should be affirmed because Appellant has no
cognizable right to challenge the Mazars Subpoena
In concluding that the “Act of Congress” exception applied to bar the

applicability of the Anti-Injunction Act (“AIA”), the district court assumed, “without
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deciding[,] that the [Appellant’s] claim is properly brought under Section 1983.” JA81
n. 4. However, since Appellant has (for all the reasons discussed above) failed to
establish a legal basis for the absolute immunity he asserts, he cannot show the sort of
“unambiguously conferred right” that is enforceable under 42 U.S.C. § 1983. Gonzaga
Univ. v. Doe, 536 U.S. 273, 283 (2002). See Davis v. Shah, 821 F.3d 231, 244 (2d Cir. 2016).
For this reason, this Court may also find that the Appellant’s action should be dismissed
for failure to state a claim.
The district court found Appellant’s expansive vision of presidential immunity
bereft of support in either the Constitution or interpretive caselaw, JA133-36, and noted
that, as formulated, it is “limitless,” JA72, “unqualified,” JA75, and “all-encompassing,”
JA112. As the district court observed, under Appellant’s formulation here:
presidential immunity would stretch to cover every phase of criminal
proceedings, including investigations, grand jury proceedings and
subpoenas [and] would encompass any conduct, at any time, in any forum,
whether federal or state, and whether the President acted alone or in
concert with other individuals.
JA70. The district court declined to endorse “such a categorical and limitless assertion
of presidential immunity.” JA72. In other words, Appellant’s claimed immunity is not
“sufficiently specific and definite to be within ‘the competence of the judiciary to
enforce,” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989) (internal
citation omitted). As such, it cannot form the basis for a § 1983 action. This failure to
state a § 1983 claim removes the bar to application of the AIA, and provides an

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alternative basis for affirmance. See Swatch Grp. Mgmt. Servs. v. Bloomberg, 756 F.3d 73,
93 (2d Cir. 2014).
IV.

The Court should abstain under Younger because there is an ongoing
state criminal proceeding
A. 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). Recently, the
Supreme Court explained that Younger abstention is “exceptional” but still firmly bars
federal interference in “ongoing state criminal prosecutions.” Sprint Commc’ns, Inc. v.
Jacobs, 571 U.S. 69, 72 (2013). Thus, the Court reaffirmed the long-standing principle
that “Younger exemplifies one class of cases in which federal-court abstention is
required: When there is a parallel, pending state criminal proceeding, federal courts must
refrain from enjoining the state prosecution.” Id. at 73.
The Court may consider the three additional, non-dispositive factors identified
in Middlesex Cnty. Ethics Committee v. Garden State Bar Assn., 457 U.S. 423, 432 (1982): “(1)
there is a pending state proceeding, (2) that implicates an important state interest, and
(3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial
review of his or her federal constitutional claims.” Falco v. Justices of the Matrimonial Parts
of the Supreme Court of Suffolk Cty., 805 F.3d 425, 427 (2d Cir. 2015) (citation and internal

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quotation marks omitted). Here, for the reasons that follow, all three questions are
answered in the affirmative.
B. Application of Younger compels abstention
1. A state grand jury proceeding constitutes an “ongoing state criminal
prosecution” and a “pending state proceeding” under Younger
With respect to the first Middlesex factor, the weight of authority holds that a
state grand jury subpoena constitutes an ongoing state criminal proceeding under
Younger. As the district court observed, JA84, under New York law, a “criminal
proceeding” is defined to include “any proceeding which . . . involves a criminal
investigation.” N.Y. Crim. Proc. Law § 1.20(18). Thus, “when a grand jury has been
impaneled and is sitting and investigating, there is a . . . criminal proceeding, and most
significantly there is a State court responsible for and having jurisdiction of such grand
jury from which relief from constitutional abuses may be obtained.” Notey v. Hynes, 418
F. Supp. 1320, 1326 (S.D.N.Y. 1976).
The prevailing view among district courts in this Circuit is that a grand jury
investigation constitutes a state criminal proceeding under Younger. See, e.g., Mir v. Shah,
2012 WL 6097770, at *3 (S.D.N.Y. 2012), aff’d, 569 F. App’x 48, 50-51 (2d Cir. 2014);
Nick v. Abrams, 717 F. Supp. 1053, 1056-57 (S.D.N.Y. 1989); Mirka United, Inc. v. Cuomo,
2007 WL 4225487, at *3 (S.D.N.Y. 2007) (Lynch, J.); but see Brennick v. Hynes, 471 F.
Supp. 863, 867 (N.D.N.Y. 1979).

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The majority of the U.S. Courts of Appeals that have addressed this issue agree.
See Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 519-20 (5th Cir. 2004); Craig v. Barney, 678
F.2d 1200, 1201-02 (4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981).
Appellant, see Appellant Brief p. 17, makes much of Monaghan v. Deakins, 798 F.2d 632
(3d Cir. 1986), aff’d in part, vacated in part, 484 U.S. 193, 195 (1988), the sole case from a
U.S. Court of Appeals purportedly to hold that Younger abstention does not apply to
actions to enjoin grand jury subpoenas. But contrary to Appellant’s contention,
Monaghan does not actually create a circuit split because the relevant part of the decision
was vacated as moot, Deakins, 484 U.S. at 195, and thus has no precedential effect. See
Brown v. Kelly, 609 F.3d 467, 476-77 (2d Cir. 2010).
Although the Supreme Court has not directly ruled on this topic, it has issued a
decision consistent with the conclusion that Younger applies to an action seeking to
enjoin state grand jury subpoena. See Morales v. Trans World Airlines, Inc., 504 U.S. 374,
381 n.1 (1992) (noting that the Younger doctrine “imposes heightened requirements for
an injunction to restrain . . . an about-to-be pending state criminal action.”); see Mirka,
2007 WL 4225487, at *3 (citing Trans World Airlines for the proposition that the Supreme
Court has rejected the categorical rule that Younger abstention does not operate preindictment).
The DOJ does not dispute that a grand jury investigation constitutes an ongoing
state proceeding under Younger, instead opposing abstention considering the
“exceptional context” of this case. DOJ Brief p. 15. Notably, even Appellant must
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concede that a state grand jury subpoena involves a pending criminal proceeding, as he
argues that “[t]he President is immune from criminal process while in office, and a
grand-jury subpoena (a coercive order backed by the State’s threat of contempt) is
certainly a form of ‘criminal process.’” Appellant Brief p. 22-23.
This Court should embrace the persuasive view of the majority of circuits to
decide the issue and hold that a grand jury investigation constitutes a pending state
criminal proceeding for Younger purposes.
2. New York State has an important state interest in the enforcement of
grand jury subpoenas
Here, as the district court found below, JA88, New York’s “important and
necessary task of enforcing” its criminal laws clearly constitutes an important state
interest, Younger, 401 U.S. at 51-52, satisfying the second Middlesex factor. Falco, 805
F.3d at 427.
3. Appellant, despite the opportunity to do so, failed to raise his
constitutional claim in state court
The third and final Middlesex factor is satisfied here because the state court with
jurisdiction over the grand jury proceeding “affords the federal plaintiff an adequate
opportunity for judicial review of his or her federal constitutional claims.” Falco, 805
F.3d at 427. “[I]n the ordinary course, ‘a state proceeding provides an adequate forum
for the vindication of federal constitutional rights.’” Diamond, 282 F.3d at 198 (citing
Kugler v. Helfant, 421 U.S. 117, 124 [1975]). The burden rests with Appellant to show
“that state procedural law barred presentation of [its] claims.” Pennzoil Co. v. Texaco,
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Inc., 481 U.S. 1, 14 (1987) (quoting Moore v. Sims, 442 U.S. 415, 432 [1979]). “Under
Younger, . . . defendants need not establish that state law definitively permits the
interposition of constitutional claims.” Spargo v. N.Y. State Comm’n on Judicial Conduct,
351 F.3d 65, 78 (2d Cir. 2003). Instead, “[t]he relevant question under Younger is
whether the state’s procedural remedies could provide the relief sought [not] . . . whether
the state will provide the constitutional ruling which the plaintiff seeks.” Id. at 79
(brackets in original: internal quotation marks omitted).
Article VI of the U.S. Constitution declares that “Judges in every State shall be
bound” by the Federal Constitution. Pennzoil, 481 US 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. Notably, a
district court in this Circuit has already found that “there is a State court responsible
for and having jurisdiction over such grand jury from which relief from constitutional
abuses may be obtained.” Notey, 418 F. Supp. at 1326. See Law Firm of Daniel P. Foster,
P.C. v. Dearie, 613 F. Supp. 278, 281-82 (E.D.N.Y. 1985).
In the ordinary course, Appellant could—and should, before he invites a federal
court to interfere with a state grand jury proceeding—move in New York County
Criminal Court before the sitting grand jury judge to quash the subpoena. His claim
for standing to quash a third-party subpoena would include the claim he makes here
that, as president, he is entitled to a constitutional immunity that gives him the right to
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object to the Mazars Subpoena. Thus, he would have the opportunity to present his
constitutional arguments to the court. Should his position be rejected, he could appeal
on an interlocutory basis, and the Appellate Division, First Department, which would
have jurisdiction of that appeal, would consider the merits of his claim with due regard
to his status as president. See Order, Efrain Galicia v. Donald J. Trump, et al., Index No.
24973/2015 (1st Dept. Sept. 24, 2019) (Doc. 421) (staying video deposition of
Appellant in view of special accommodations that may be necessary for his schedule
and responsibilities).
Appellant, citing two New York lower-court decisions, argues that the target of
a third-party subpoena cannot raise his claims in state court. Appellant Brief p. 18-19.
These cases are distinguishable for the simple reason that they did not involve
Appellant’s claim of immunity based on the Constitution. Indeed, Appellant concedes
that claim has never been raised in any state or federal court. See Appellant Brief p. 11.
Furthermore, Appellant has claimed the privilege of immunity and, as a holder
of the privilege and to protect his own interests, he presumably has standing to object
to the production of materials as to which he asserts immunity. See Matter of Grand Jury
Subpoena Served Upon Bekins Record Storage Co., Inc., 62 N.Y.2d 324 (1984) (granting in part
and denying in part motion to quash grand jury subpoena to storage facility, where
motion was brought by third-party client of law firm asserting, among other things,
attorney-client privilege over the law firm’s records sought from the facility); see also Sara
Sun Beale, Grand Jury Law and Practice § 9:21 (2d ed. Dec. 2018) (“[a]s a general rule a
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third party clearly has standing to challenge a subpoena if he is the holder of a privilege,
a property right, or any constitutional, common law, or statutory right that may be
invaded by the subpoena.”). Bekins Record Storage presents an example of someone who
successfully intervened as a third party petitioner with a motion to quash a subpoena to
a business in possession of the petitioner’s allegedly protected records. The court
conducted a thorough review of the privilege claim, which was then appealed to New
York’s highest court, with no rejection on standing grounds. As the district court
suggested, presumably Appellant in this case could do the same. See JA89-90 (noting
that a third-party can challenge a subpoena upon a claim of privilege).
As the Supreme Court explained in Pennzoil, that a case presents an unusual fact
pattern never addressed by the relevant state court does not mean that those state courts
“would have been any less inclined than a federal court to address and decide the federal
constitutional claims.” 481 U.S. at 17. In other words, potential ambiguities do not
mean that federal courts can “assume that state judges will interpret ambiguities in state
procedural law to bar presentation of federal claims.” Spargo, 351 F.3d at 78 (quoting
Pennzoil, 481 U.S. at 15).
Here, 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).

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4. There is no bad faith or exceptional circumstance
Appellant has failed to demonstrate that bad faith, harassment, or any other
equitable consideration bars Younger abstention. See generally Spargo, 351 F.3d at 75 n.11.
Although a federal court may not typically intervene in an ongoing state criminal
proceeding, such intervention is warranted in “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. “‘[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 Perez v. Ledesma, 401 U.S.
401 U.S. 82, 85 [1971]). “[S]uch 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. And “a plaintiff who seeks to head off Younger abstention bears the burden of
establishing that one of the exceptions applies.” Diamond, 282 F.3d at 198.
Contrary to Appellant’s apparent contention that the grand jury subpoena was
part of some sort of collusive, partisan action between this Office, the House of
Representatives, and the State of New York, see Appellant Brief p. 20-21, the grand jury
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investigation is fully independent and focused exclusively on violations of New York’s
criminal laws. JA173. Appellant fails to meet his burden because he cannot show that
any action 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); see JA51.
Indeed, at this point, Appellant’s claim of bad faith (which DOJ echoed in its brief), has
been reduced to the much-repeated assertion that the Mazars Subpoena appeared to be
a “photocopied” version of an earlier subpoena sent by the House of Representatives
to Mazars. Putting aside that there were indeed differences between the requests, the
simple explanation proffered by the Office at oral argument below was that far from
signaling “collusion” by the Office (which has had no contact with the House of
Representatives), the decision to mirror the earlier subpoena was about efficiency,
JA173, meaning it was intended to facilitate the easy production by Mazars of a set of
documents already collected, and to minimize any claim that the Office’s request
imposed new and different burdens. It is important to note that, contrary to Appellant’s
assertion, the Mazars Subpoena does not define the scope of the grand jury
investigation.
As this Court has held, Younger’s “bad faith” exception may apply if, prior to the
issuance of the third-party subpoena to Mazars, “the New York Court of Appeals or
the United States Supreme Court had conclusively determined” the claim at issue.
Schlagler v. Phillips, 166 F.3d 439, 443 (2d Cir. 1999). Of course, no court has held that
the president has an absolute immunity from a state criminal grand jury investigation
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while in Office. Not even Appellant makes this claim, instead citing the non-binding
DOJ Memos in support of his contention. Rather, as discussed in Point II, supra, the
clear precedent establishes the opposite—that the president enjoys no such absolute
immunity.
The last exception to Younger abstention requires Appellant to demonstrate
extraordinary circumstances. “[S]uch 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. This exacting standard requires “(1) that there be no state remedy available
to meaningfully, timely, and adequately remedy the alleged constitutional violation; and
(2) that a finding be made that the litigant will suffer ‘great and immediate’ harm if the
federal court does not intervene.” Diamond, 282 F.3d at 201 (citation and internal
quotation marks omitted). As discussed above, there is a state remedy available—
bringing his constitutional claims in state court—to Appellant, and, for the reasons
discussed in Point II. A, supra, he has failed to establish irreparable harm.
Lastly, Appellant contends that Younger abstention does not apply to his claim of
official immunity from state process, Appellant Brief p. 11-15. As detailed above, no
such immunity exists, and as Appellant concedes, “no court has considered how Younger
applies in this context.” Appellant Brief p. 11. With regard to Appellant’s argument
that his purported immunity is similar to double jeopardy, the case cited for that
proposition, Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992), involved an
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individual who already exhausted her state remedies on her double jeopardy claim,
which allowed the federal court to avoid abstention under Younger.
Additionally, Appellant cites cases for his proposition that Younger is inapplicable
where the federal government is asserting its rights against a state; but none was raised
in the context of an ongoing state criminal proceeding. Appellant Brief p. 12-14. Of
course, as the Supreme Court recently re-affirmed, Younger abstention is “required” in
such a proceeding. Sprint, 571 U.S. at 72. Further, as the district court correctly noted
below, “[e]ven if the law regarding suits brought by the federal government is ultimately
unclear, the Court cannot disregard the principles under Younger on this basis alone.”
JA95. Here, again, none of the records sought relate to Appellant’s official duties or
the federal government, so the state-federal governmental conflict alleged by him is
non-existent.
For these reasons, this court should affirm the district court’s holding to
abstain from exercising jurisdiction.
V.

The Court should reject Appellant’s request for a stay as unjustified, and
affirm that a stay would substantially injure the sovereign interests of New
York and the public interest in enforcing New York’s criminal laws
A. Legal standard
The standard to which Appellant must be held in applying for a stay “overlap[s]

substantially with the preliminary injunction standard.” Citigroup Glob. Mkts., Inc. v.
VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 37 (2d Cir. 2010). However, it
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is not identical, and places a more exacting burden on the applicant. See id. at 38. In
this case, it requires a specific consideration of the harm that such a stay will inflict on
the grand jury investigation. See Nken v. Holder, 556 U.S. 418, 433-34 (2009) (“The party
requesting a stay bears the burden of showing that the circumstances justify an exercise
of that discretion.”). Specifically, the Court must consider “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies.” Nken, 556 U.S. at 434. “A stay is an intrusion into the
ordinary processes of administration and judicial review, and accordingly is not a matter
of right, even if irreparable injury might otherwise result to the appellant.” Id. at 427
(internal quotation marks and citations omitted).
As noted above, Appellant has failed to show that he is likely to succeed on the
merits, and failed to show that he will be irreparably injured absent a stay.
B. Appellee Vance, an elected executive agent of an independent
sovereign, is the only party who will suffer irreparable harm if a stay is
imposed, and the public interest supports compliance
Here, since the grand jury proceeding constitutes a state criminal proceeding, the
Office, as an executive agent of an independent sovereign, is entitled to pursue that
proceeding free from federal interference. See Ledesma, 401 U.S. at 84 (“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.”). Continued litigation in federal
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court offends foundational principles of federalism and comity enshrined in the
Constitution and hundreds of years of settled law. See Younger, 401 U.S. at 43-50
(reviewing the history of this longstanding public policy).
As the district court found, “frustration of the state criminal investigation under
the facts presented here presents much greater concerns that overcome the President’s
grounds for not complying with the grand jury subpoena.” JA141. Because Appellant
will suffer no irreparable harm from the orderly production of records under the rules
governing grand jury secrecy, Mazars should permitted to produce documents, and, if
necessary, the parties can concurrently litigate their respective constitutional claims in
an appropriate forum. As the executive agent of an independent sovereign, the Office
must be permitted to enforce New York’s criminal laws and pursue grand jury
investigations, including the one at issue here, free from interference by the federal
courts. Should Appellant ultimately prevail in his expansive claim to an absolute and
categorical immunity for his former businesses and business associates, the Office will
be able to restore, without harm, Appellant to his pre-compliance status by the return
or destruction of the subpoenaed records.
It is the grand jury and the State of New York that will suffer irreparable harm
from any decision that continues a suspension of the Mazars Subpoena. Appellant has
made it abundantly clear that his litigation tactics will be to pursue indefinite delay in an
effort to frustrate the grand jury. See Appellant Brief p. 39-40 (arguing that “[t]here is
no good reason to force the President to rush to the Supreme Court immediately,”
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rather, this Court “should stay the mandate and subpoena until the President files a
petition for a writ of certiorari”). All the while, if Appellant has his way, the grand jury
will be obstructed in its investigation. See Nixon, 418 U.S. at 713 (“Without access to
specific facts a criminal prosecution may be totally frustrated.”). Of course, in this
situation, litigation delays—when accompanied by continued stays of subpoena
compliance—mean that Appellant will prevail in his ultimate goal of preventing
disclosure of the records at issue until after the statutes of limitation expire, even if he
does not ultimately prevail on the merits of his extravagant legal claim.
CONCLUSION
For all of the above reasons, this Court should affirm.
Dated: New York, New York
October 15, 2019

Respectfully submitted,
s/Carey R. Dunne
Carey R. Dunne, General Counsel
Christopher Conroy (pro hac vice)
Solomon B. Shinerock
James H. Graham
Sarah Walsh (pro hac vice pending)
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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CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limit of Local Rule 32.1(a)(4)(A)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this
document contains 13,132 words.

This document complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R.
App. P. 32(a)(6) because this document has been prepared in a proportionally spaced
typeface using Microsoft Word 2016 in 14-point Garamond font.
Dated: October 15, 2019

s/Carey R. Dunne
Carey R. Dunne, General Counsel

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