Uninterrupted argument and then that would be questioning in order of with meet and then judge laurier. Mr. Constable, you will begin and you have reserved three minutes for rebuttal. Thank you, your honor, and good morning. May it please the court. And may it please the court. On remand the president filed an amendment complaint raising two claims. First, that the subpoena at issue is an overbroad fishing expedition, and second, that it was issued in bad faith in order to arrest the president. The District Attorney concedes that the Supreme Court has authorized the president to bring these claims in federal court. The only issue then on appeal is whether the allegation of bad faith are possible. The District Court termination they are not to be reversed for several reasons. First, the court stack the deck against the president by asserting that these claims are a disguised attempt to relitigate category and 90. As a distant turn it also concedes they cleanly are not. Second, the court violated binding president by turning the clause of the extended into requirement by growing interest against the president by crediting one allegation over another and by allowing the District Attorney to deploy extrinsic evidence at the pleading stage. Third and last, the court dend the present a fair chance to contest the legality of the subpoena via streamlined evidentiary process. Thats a subpoena challenges which are intensely factual are typically adjudicated. The president child should be no exception. And had the District Attorney added as he should have, that mightve already been completed. For all these reasons the judgment below should be reversed and the case should be remanded for further proceedings. Thank you. Judge lavelle. Im a little puzzled because, because conventionally in order to quash a subpoena or to escape the obligation to perform the subpoena, one must make a showing come one must make a showing that would support the proposition that the subpoena was issued in bad faith or was whatever the ground is. Here it seems to me as a result of the District Attorneys im not sure whether its as result of the District Attorneys concession that he will not enforce the subpoena until the case is terminated. Here we are pondering the question that seems to be irrelevant. The question whether the complaint plausibly pleads the claim is not the issue that we should be addressing. The issue we should be addressing is whether the plaintiff in effort to avoid compliance with subpoena has shown that there is a defect of overbreadth or bad faith. I would like to combine that with the question of why isnt, on the issue of plausibility of meeting the standard, and what i see in twombly and iqbal, you dont meet that standard if theres an obvious alternative explanation which is not illegality. So you want to address that, please . Yes, sir honor. Thank you for both questions. Let me begin with the first one first. I mostly agree that i wouldnt say plausible is irrelevant. I say dash at which a rather straightforward. I think what is different here and will help explain how we are where we are is we agree ultimately there is an evidentiary burden that has to be met to show that faith and overbreadth. But this is 1983 action in federal court under the federal rules of civil procedure, and the Supreme Court and this court have both held at the District Attorney concedes that is appropriate posture for this case to be in right now. Therefore the ordinary rules have to apply it as an agent in my opening i think the District Attorney should have answered this is an obvious factual dispute and had a dental we would be in a proceeding that looks mostly like press exactly like motion or to quash proceeding only a Summary Judgment. I agree you have made such a motion. You havent set forth, you havent set forth evidence that could justify staying the subpoena or quashing it. So far as i could see, so far as i can see, the staying at the subpoena is sold by virtue of the District Attorneys decision that theres never been a court ruling that the subpoena is state. Doing thing is the District Attorney is not undertaking to quash it of its own volition. It is true, your honor would not have to litigate on appeals in relief because of the agreement of the District Attorney. A whether the spin is ultimately quashed is a mayor to question that ought to be resolved in Summary Judgment am not in front of plausibility that changes the rules of rule eight and would create a there are no heightened standard under rule eight. Your question obvious alternatives i think with the District Attorney of the District Court left after the question is those alternatives have to come from the four corners of the complaint, not based on speculation and extrinsic evidence the District Attorney would like to introduce at the pleading stage and nothing in this complaint renders the president s allegation as to the scope and propriety of this subpoena implausible. There may be i i dont think what you said is legally accurate because twombly and iqbal are talking about what is contained in the complaint and if im reading the complaint one sees there is an obvious alternative not consistent with the unlawfulness being claimed in the complaint, that the complaint fails to make out, fails to make up the illegality. Consistent with the plausibility standard. It seems to me just reading your complaint, of course you are alleged a lot of things but when a grand jury subpoenas tax returns to say, well, we think that grand jury is an interest in tax returns at all. They are only interested in Something Else that they subpoenaed in the past, and we think, or we argue that the subpoena is in bad faith because it was copied, because it was largely copied in substance from another governmental subpoena seeking the same material. There are such obvious alternatives, their silver no reason to go speculating into the accuracy of these highly contrived allegations. I dont think the allegations are contrived. Weve alleged investigation has a certain scope. That allegation has to be tested as true and once it is, not even the District Attorney asserts that the claims are implausible, nor could he. If the investigation is limited to the 2016 payment that the District Attorney concedes are part of, lease part of the investigation, then theres no dispute on appeal. It is overbroad and of bad faith. You agree, do you not, that the president is being judged in the standard exactly like an ordinary citizen . We dont agree with that but it but i dont think it matters on appeal here. With respect to Supreme Court has said with respect, with respect to bad faith or overbreadth, the president is not wielding any special privilege as president of the United States. Hes in the posture of an ordinary citizen arguing those things. Isnt that the gist of the Supreme Courts holding . Not in my view, your honor. The court also said in cheney, in a case with the president be considered like an ordinary litigant. But again i dont think it matters for appeal if the court were to adopt what that view, he still wins. This is just plausibility. I just think its hard, impossible for the District Attorney to argue it is impossible that a subpoena copied from congress that is alleged to be when issue from one year is not overbroad. They shouldve just been resolved through Summary Judgment on the merits. I would yield to judge cabranes. Thank you. Counselor, how would you respond to the argument that the allegation that the scope of the grand juries investigation is limited only to certain payments made by Michael Cohen in 2016. Is undermined by the very news article from which is allegation is drawn. A New York Times article which i understand, and correct me if i miss understanding, is the main basis for that allegation that the scope of the grand jury investigation is limited only to the 2016 Michael Cohen payment, and a quote, that it was unclear if the broad scope of the subpoena indicated the District Attorney had expanded his investigation beyond actions taken during the 2016 campaign. Doesnt it article on its own terms, that New York Times article on its own terms, significantly undermine the plausibility of your assertion . No, your honor. I think it confirms it as we explained in detail and our reply brief. Let me begin by saying its not the prime basis for the allegation. I would point the courts to paragraph 1215 of the Second Amendment complaint. The basis for it being to the colon payments are one, that was [inaudible] to become the sole subject of the subpoena to the Trump Organization, and third, this subpoena was only issued after there was dispute over whether tax returns were included in that subpoena. We think theres an obvious relationship between the two. As to the article the article said exactly what your honor described as saying, and as weve explain, we think it goes beyond the record to quote the parcel included in the complaint. Even accepting that is appropriate, it says exactly what allegations say. This was about the calling payments and then it is unclear whether it has expanded beyond that, meaning it may be possible for it to expand but is also possible that it is not. Thats what unclear needs. This court has held time and again in cases like phelps and the en banc ashcraft case and others recite that complaint cannot be dismissed because you are competing plausible explanations and thats it most what we have here. In paragraph 11 of the Second Amendment complaint, the allegation is made that the District Attorneys office open an investigation at issue in the summer of 2018. In paragraph 17 speaking, the allegation is that the District Attorney issued a grand jury subpoena in august 29, 2019. Is it plausible to assume the scope of the investigation remains limited only to the 2016 Michael Cohen payments for more than a year . It is if you look back one paragraph, paragraph 13, the subpoena to the Trump Organization was august 1, 2019, and that when is limited solely to the cohen payments and theres no disagreement. Its on the face of the subpoena pages three and four of the Second Amendment complaint. 30 days later the subpoena goes out. Again is a possible could summon create constructive arguments that it is broader . Im sure the District Attorney can but that doesnt defeat the possibility of having not succeeded. Now, one of your theories of bad faith is that the District Attorney issued the maze are subpoena as you put it retaliation for the president s refusal to reduce his tax returns. Response to the Trump Organizations subpoena. But why is it a natural interpretation of these events at the District Attorney contested the president interpretation of the first subpoena and then issued a new one . Why is this, why is that possibly construed as retaliation . Its plausible retaliation that because that the District Attorney after that dispute sought tax returns but i will say first its concerning that he didnt simply reissue the subpoena to the parties directly which could have been over that. State, 2027370002 said he didnt want to confront the respondent directly and try to go around and, of course, that led to an entire issue of litigation that your honor is quite familiar with about who has standing to challenge subpoenas and so on and so forth. What makes it retaliatory though primarily is the scope of the subpoena. Wasnt just over dispute i depict the disputed item last tax on issue with otherwise entirely federally based subpoena from the House Oversight committee. The idea that because of the subpoena over tax returns, the District Attorney thought is appropriate to simply photocopy a congressional subpoena about hotels in washington, d. C. And businesses in indonesia and ireland is totally unacceptable and it is at least plausible pot was done in bad faith. Grand juries as you know argue in Broad Authority to do the work. And are you asking us to change the way grand juries have done their work in time immemorial just because we did it was somebody who is president of the United States . We are not, your honor. We are asking for the ordinary rules of when a subpoena challenge at least be extended to the president as he not be deprived of the basic protections that all other citizens receive. Once this case gets past what i think is frankly and overdone plausibility debate we will have a proceeding and the subpoena would be challenged, and that challenge is measured against a broad standard. We dont disagree that the president does at least have the right like any other ordinary citizen to have that process play out in an appropriate way and not to be by the District Court that he is relitigating immunity when he is not which is in independent basis for reversal and to be told his claims are implausible when they are, in fact, not implausible. One last question, if i might. Looking at the case law, subpoenas are found to be overbroad when the time period covers stretches ten, 15 years or so. Subpoena here covers not more than nine years. Why should we will definitely . Your honor, because that has to be measured against what the scope of the investigation is, and again the president has alleged plausibly that the investigation is limited to a certain payments made in a certain year, and it is quite plausible that it is overbroad based on that limited investigation to seek records for this length of time. But even if the investigation is understood to be broader than just those payments, overbreadth is not just measured on the we think it appears to suggest overbreadth here but also the Geographic Reach and as judge walker pointed out in the prior hearings on this day also the number of different entities involved. If you look up the definition of a fishing expedition, this is it. District attorney has been focused anything. He said heres caucus watch everything you have, let me have it, too, please, and thats just not how this works. George weah . Thank you, judge katzmann, and good morning, mr. Consovoy. Good morning, your honor. Im interested in further exploring what you just ended with this concept of overbreadth. It appears that we may have some power based on the horwitz decision to limit the scope of subpoena as a panel of the court of appeals under certain circumstances. Do you agree or disagree with that . Trench are not familiar with the horwitz decision so i would forget the decision. Do you probably agree if we determine there some problem, that we agree with you at some level theres a problem with the scope of subpoena that we draw some limitation . Your honor, that might be correct. If i could raise i think, the reason i havent fully explore the question is because i think theres a procedural hurdle that, why the court couldnt reach that. On the merit its possible. As this court has noted, when a case is dismissed at the pleading stage that it cant be converted to a marriage ruling before the plaintiff has been given a chance to submit a request for discovery and had that request ruled upon under rule 56. We have submitted that motion to the District Court because we saw this concern arising here that motion was denied as moot as i dont think this court is position procedures under controlling precedent to blue pencil at this stage. Potential in the marriage, yes. Setaside those procedural possible procedural rules come understand what youre saying, but again im trying to understand the real locus of your argument about overbreadth. So if you were to limit compassing we have procedural and substantive ability to do this, if we were to limit the subpoena to tax returns that are for domestic transactions between 20112016, would that be something that you could live with . I dont think so, your honor,. Why not . You just told me, you just told us that a big part of the problem with the overbreadth issue is that it ask for statements all around the world and offering a possible solution of tax returns for a limited period of time, no narrower than talk about four or five years and all domestically based. I understand, your honor. That would be far narrower, theres no question. Its our last overbroad. I dont disagree and understand where youre coming from, and, of course, which would still no no, no. Just focus on overbreadth. So the question becomes when you say domestically of course that encompasses numerous enterprises that i think are far beyond anything the District Attorney could be investigating. I which is give one an exampled they use this one because i think its the most obvious. That subpoena that was copied included i soon returns for hotels in washington which was potentially or purporting being basket for federal lease issues in washington, d. C. I just dont think it is overbroad to include is there a request for documents in this case . Lets assume that we just talk about is there a request for doc