The court heard arguments from the president s attorney in the manhattan District Attorneys office. The central issue surrounds the subpoena for the president s finances as part of an investigation into alleged misconduct i the president s company, the Trump Organization. This is the second time this case has appeared before the court. The first was in october of 2019. It ended up before the u. S. Supreme court in may of 2020 and the justices ultimately ruled in favor of the das office and subpoena. But also remanded the case back to the lower courts for additional consideration. This is one hour and 20 minutes. 20 minutes. We will hear from trump the vance. The way we will proceed is that each side will have on interrupted arguments. Then there will be questioning in order of that with judge lavalle first then me and then judge. You will begin and you have reserved three minutes for a rebuttal. Thank you your honor and good morning. Good morning. And may it please the court, on remand the president filed and raised two claims, first that the subpoena and overbroad fishing expedition. And second that it was issued in bad faith in order to harass the president. The District Attorney concedes the Supreme Court is author of the president bring these claims in federal court on remand. The only issue then, on appeal, is whether the allegations of bad faith or plausible. The District Courts determination that they are not could be reversed for several reasons. First, the court stacked the deck against the president by serving these president s are disguised attempt to re litigate category community. The District Attorney also concedes they claim they are no not. The clot plausibility standard to be a requirement by growing interest against the president by crediting one plausible allegation over another. In allowed by the District Attorney to deploy extrinsic evidence. Third and last, the court denied the president a fair chance for the legality of the subpoena via a string while streamlined process. That is how subpoena challenges are typically, the president s challenge should be no exceptio exception. At the District Attorney answered as he should have, that prices mightve already been completed. For all these reasons the judgment below should be reversed in the case should be remanded for further proceedings. Thank you. Two judge leval. I am a little puzzled. Because conventionally, and order to squash a subpoena or escape the obligation to one must make a showing. One must make a showing that would support the proposition that the subpoena was issued in bad faith or whatever the ground is. Here, it seems to me as a result of the District Attorneys he will not enforce the subpoena. Here we are harboring a question that seems to be irrelevant. The question whether it is not issue we should be addressing. We should be addressing whether the plaintiff, and an effort to avoid compliance has shown that there is a defect of bad faith. I like to combine that with the question of why is it, on the issue of plausibility of meeting standards, what i see, you dont meet that standard if there is an obvious alternative explanation, which is not a legality. So if you want to address that please . Thank you your honor, let me address to the first one first. I would not agree that plausibility is irrelevant but rather straightforward. I think what is different here, i think will help explain how we are where we are, is we agree that ultimately there is an evidentiary burden that has to be met to show bad faith. This is a 1983 action in federal court under the federal procedure. The Supreme Court and this court have both held the District Attorney concedes that is the appropriate posture for this case to be in right now. Therefore the ordinary rules have to apply. I mentioned in my opening, i think the District Attorney should have answered, this is an actual dispute. Had he done so we would be in a proceeding only a summary judgment. I agree. You have not made such a motion. You have not set forth evidence that could justify staying with the subpoena or questioning it. So as far as i can see, so far as i can see, the saying of the subpoena is solely by virtue of the District Attorneys decision. There is never been a court ruling that the subpoena has stayed. The only thing that stayed with the subpoena is the District Attorneys not undertaking the question. Of his own bullish and if it is true your honor that we have not had to litigate interim relief because of the agreements of the attorney. But whether the subpoenas ultimately squashed with resolve as read judgment not reading plausibility that changes the rules of rule eight and would create a surface. There are no heightened standards under rule eight. In your honors question about obvious alternatives, think with the District Attorney in the District Court lead out from that question is those alternatives have to come for the four quarters of the complaints. Not based on speculation and evidence that District Attorney would like to reduce at the pleading stage. Nothing at this point renders the president s allegation as to the scope or propriety of the subpoena implausible. It is plausible. I dont think what she said is legally accurate. Because they are talking about what is contained in the complaints. If i am reading the complaints, one sees that there is an obvious alternative not consistent with the lawfulness being claimed in the complaints. Then the complaint fails to make out the illegality that is consistent with the plausibility standard. And it seems to me that just reading your complaints, of course youve alleged a lot of things. But when a grand jury subpoenas tax returns to say well, we think that granted jury is not interested in tax returns at all they are interested in Something Else that they have subpoenaed in the past. And we think are we argue that the subpoena is in bad faith because it was copied, because it was largely copied in substance from another governmental subpoena eking the same material. There are such obvious alternatives. There simply no reason to go speculating into the accuracy of these highly contrived allegations. I dont think the speculations are contrived. We have led to investigation has a certain scope. That allegation has to be accepted as true. And once it is, not even the District Attorney asserts the claims are implausible. If the investigation is limited to the 2015 payment that the District Attorney concedes are part of the investigation, then there is no dispute. The subpoenas plausibly overbooked brought implausibly in bad faith. You agree, do you not that the president is being judged in the standard exactly like an ordinary citizen . We dont agree with that. I dont think it matters. With respect the Supreme Court said with respect to bad faith or, the president is not wielding any special privilege as president of the United States. Is the posture of an ordinary citizen. Isnt that the gist of the Supreme Courts holding . Not in my view, your honor. The court also said with cheney that in no case was the president be considered like ordinary litigants. I dont think it matters for appeal. If the court were to adopt that view hes treated like an ordinary citizen, he still lives here. Its just plausibility. I just think it is hard, impossible for this to argue that it is implausible that he subpoena copied from congress, that is alleged to be about one issue from one year, did not overbroad and not plausibly in bad faith and should have been resolved through judgment on the merits. I would yield to judge katzman. Counselor how would you respond to the argument that the allegation that the scope of the grand jurys investigation is limited to only statements made by Michael Cohen in 2016 is undermined by the very news article from which this allegation is drawn. The New York Times article, which i understand, and correct me if i am misunderstanding, is the main basis for that allegation at the scope of the grand jury investigation is limited only to the 2016 payments based elsewhere, and i quote that it was unclear if the broad scope of the indicated the District Attorney had expanded his investigation beyond actions taken during the 2000 campaign. So it doesnt that, on its own terms, the New York Times article on its own terms, significantly undermine the plausibility of your assertion . No your honor. I actually think it confirms it as we explain in detail. Let me begin by saying its not the basis for the allegation part i would point the course to paragraph 12 through 15 of the Second Amended complaint. The basis are one, that was impetus for the investigation. Two, was the sole subject of the subpoena to the Trump Organization. And third, the subpoena was only issued after there was dispute over whether tax returns were included in that subpoena. So we think there is obvious relationship between the two. Now for the article, the article said exactly what your honor described it as saying part as we explain her papers, we think it goes beyond the record to quote the parts that were not included in the complaints. Except that is appropriate. It says exactly what our allegation says. This was about the payments. And then it is unclear whether it has expanded beyond that. Meaning that it may be possible to expand it. But is also plausible that it has not. That is what unclear means. This court has held time and time again and many others we cite that complaints cannot be dismissed because they are competing plausible explanation. Thats most of what we have here. In paragraph 11 of the Second Amendment complaint, opens investigation the summer of 2018. In paragraph 17 to 18, the allegation is the District Attorney issued a grand jury subpoena is a plausible only to 2016 Michael Cohen payments for more than here . Subpoenas the Trump Organization was august 1, 2019. That was limited solely to the cohen payments. Theres no disagreement about that and then 30 days later, the subpoena goes out. Im sure the District Attorney can. That is not speak for plausibility of it. One of the theories of bad faith is the District Attorney issued the subpoena, as you put it retaliation for the president s refusal for his tax returns. They the president s interpretation of the first subpoena. And then issued a new one. Why is this why is that pop plausibly construed as retaliation . Its plausible retaliation, your honor not because the District Attorney after that dispute sought tax returns. I would say first, is concerned that he simply did not reissue the subpoena to the party directly. Which she could have and then it could have been over that. Instead come the District Attorney decided he did not want to confront and responded directly and tried to go around him. Of course that led to an entire issue of litigation your honor is quite familiar with. What makes it plausibly retaliatory though, is the scope of the subpoena. It wasnt just the disputed item, its the last tack on issue of an otherwise entirely federally based subpoena from the House Speaker oversight committee. In the idea that because of the dispute over tax returns the District Attorney thought it was appropriate to simply photocopy a congressional subpoena about hotels in washington d. C. And business in indonesia ireland is totally unacceptable. It is at least plausible that was done. Now grand jury as you know, are given Broad Authority to do their work. Are you asking us to change the way grand juries have done their work is because redoing with someone is president of the United States . Are asking for ordinary rules once this case gets passed when i think is frankly and overdone plausibility, we will have a proceeding and subpoena will be challenged. In that challenge is measured against a broad standard, we dont disagree. But the president does at least have the right of any other ordinary citizen to have that process play out in an appropriate way. And not to be told that the District Court hes re litigating immunities which shes not. Its an independent reversal. In the be told as claims are implausible when they are quite plausible. One last question. They found subpoenas to be overbroad when the time period covers ten, 15 years or so. The subpoena here covers nine years. Why should be ruled differently . Your honor because that has to be measured against what the scope of the investigation. And again, the president has alleged plausibly the investigation is limited to certain payments made in a certain year. It is quite plausible that it is overbroad based on that limited investigation to seek reference for this length of time. Is not just measured although it does suggest overbreadth here. On that as pointed out in the prior hearing on this day, the number of you look up the definition of a fishing expedition, this is it. This District Attorney did not focus on anything. Congress wants everything, let me have too please. That is about how this works. Judge . Judge katzmann thank you put in good morning. I am interested in further exploring what you just ended with this concept. And it appears, but you can correct me if im wrong, you may have a sub power based on how this decision to limit the scope of the subpoena is a appeals under circumstances. Do you agree or disagree with that . Your honor i am not familiar with the horwitz decision. Forget the petition, you probably agree that if we determine there is some problem. And we agree at some level there is a problem. The cross some limitation. Your honor that might be correct, i cant submit to that. If i could raise i think, the reason i have not fully explore that question yet is i think it is a procedural hurdle. For why these doric court cannot reach that in this appeal. Its impossible to debrief it intake that at this juncture. But time and again when a case is dismissed at the pleading stage, it cannot to a merit ruling before its been given the chance to submit a request for discovery and have that request ruled on under rule 56. We have submitted that motion, that letter motion for the District Court because we saw this concern arising. That motion was denied as moot. This court was not position procedurally under the president to come at this stage. Potentially on the merits, yes. Set aside those procedural possible procedural hurdles i understand youre saying. But again try to understand the real focus of your argument, so if you were to limit the procedural substances ability to do this, if we were to limit the subpoenas the tax returns, for domestic actions, between 2011 and 2015, would that be something you could live with . I dont think so your honor. Why not . You just told us that a big part of the problem of the issue is that it asks for statements all around the world. I am offering a possible solution of tax returns for limited period of time. Narrower sober talk about four or five years. And all domestically based. I understand your honor. I think again that would be no question. It is far left overbroad, i dont disagree. And i understand where your honor is coming from. And of course your honor, sitting beside. [inaudible] yep yep. And so the question becomes is you domestically course that encompasses numerous enterprises that i think are far beyond anything the District Attorney has been investigating pretty just give you one example and i use this because its the most obvious. That subpoena thats copied is included returns for the hotel in washington which is potential he or reported to be investigated for federal lease issues in washington d. C. I still think it is overbroad to include that. Is there a request for documents in this case . Lets assume were just talking is there requested documents that would not be overbroad in your view . I have to know, think the answers probably probably no your honor, heres why. That is a problem, that is a problem. That is a problem. You see the problem . I see what youre concerned. So we go back to this a basis for the investigation. This is alleged, the District Attorney served as a broad on the Trump Organization very broad. And now were looking abroad subpoena to complicate that. The trump subpoena did not litigate that. The Trump Organization, it was at that point that the District Attorney said wed also like tax returns. There is a twopronged really dispute there. One what was encompassed. But to, whether they were even relevant to the dispute. Now if the court would be determined they are relevant, that would be one thing. But it has to be reasonably related. I think that is my concern. I think that is why i am hesitating. I understand your honors offering a much more narrow hypothetical case than the one presented here. But i do think if you go back and look the story from that perspective, when you say reasonably related, i thought that was the standard. The going back to my own days was no conceivable relevance to the matter under investigation. I think its no conceivable relevance that is yes. As a matter of law it is invalid. I do think though times that can fall shor