before i do that let me just read into the instant stand there and just let me if i could read it as a matter of housekeeping for all concerned just to read into the record the agreement that i panel opinion the forbearance of the period on the following conditions one any petition for certiorari already in this matter will be filed in the supreme court within the forbearance period an opposition will be filed within seven days calendar days from the petition and any reply will be filed within three calendar days from any opposition should any filing date specified above fall on a weekend or holiday sooner and rd appellant will immediately withdraw all pending motions for a stay in this court so that i understand to be your and your joint understanding that's correct thank you you if the district court should have exercised jurisdiction whether it should have invalidated this subpoena under the doctrine of temporary presidential immunity we believe for the reasons set forth in our papers that the district court erred as to both questions and that the court should enter judgment for the president on the present record and i ask you just as a factual matter to to to walk us through a few things and as you get to that to that point and you both sides will have all the time that you need to make your points as i understand your complaint and you allege that you began producing documents to the d a s office in response to the trump organization subpoena until you learned that they purported to cover the president's tax returns and as your average salary informs us in their brief the trump organization has made four productions and that includes two after the lawsuit was was filed are you objecting now to the entirety of the  maze are subpoena or is your objection limited to the to the tax returns they are we are objecting to the entirety of the subpoena we view the entire subpoena as an inappropriate fishing expedition not made in good faith and while the president has declined to assert immunity he might otherwise have the authority to invoke with respect to another surge in the doctrine of temporary presidential immunity why would that pick up the organizations so the immunity extends certainly to the president in our in our view absolutely you say absolutely yes which is different from the seems to be somewhat different from the department of justice has a view as to immunity and so as to as to as to the presidential immunity i don't think there's a real daylight between our position and the department just as up with respect to the answer both questions in in order for the court allows with respect to why would extend to the organizations the organizations here are being targeted not just with respect to them but respect to the president's personal information to which they have possession and so there has to be as anti circumvention rule around these kinds of immunities otherwise they don't work you can imagine a multitude of scenarios in which the true target of the subpoena just like with the  records of the president being held by and you're ignoring the corporate form these are entities that have clearly have an existence operating that conduct business that is true they also wholly owned by the president  and they do they do hold his personal records and his personal records are being sorted out now i think your honor this raises a broader question which is there are things that the district attorney could have said that could have made this case somewhat different and i think your question to some degree although not entirely raises some of those issues but does returning at the client to do so he has declined to say the president is not a target of the subpoena he has declined to say that they are not investigating the president through these efforts and so i think that is the record on which this case the rights of the court is it really is your position that that that the other persons who are being who are zero may be involved in this it can't be investigated at all as long as as their conduct also implicates the president not necessarily and of course we are operating in a handicap position we have not seen the redacted portions of the declaration so we can't we can only speculate as to who they may be and what their relationship might be to the president but you're out of the issue here is not who is being investigated be on the president the issue is the issuance of criminal process to the president let me ask you about the temporary absolute immunity the president seems is in a criminal case the consensus seems to be you know us there is some absolute immunity from criminal prosecution present all i'll see memos that were brief to decisions but doesn't apply and doesn't they all seem to say it applies once you get to the point of indictment not before that otherwise united states versus nixon would be a problem and just a subpoena was permitted in that case how is that different from this case where it's just a grand jury subpoena not even a trial subpoena like in the  so we definitely have your honor that there is a consensus around the core idea of immunity with respect to i think it i think the consensus reaches back to at least indictment i think certainly the story opinion that's quoted in fitzgerald says arrest you know prosecution so forth beyond that of the work brief support the broader view among the among other sources the work brief remember that was the agnew grand jury investigation and in the course of that brief of course  explained why the vice president did not have this kind of immunity but and he offered reasons why that would be it would interfere with the grand jury's work this is important work and he spit at the end of the opinion he says that is not true with respect to the president and that was a grand while the president is still president even if that the president cannot be indicted while in office the answer is yes but i think the mosque brief does not suggest that those things to be gathered from the president so motion to dismiss stage we have plausibly alleged just like everybody knew in those days that the ultimate target was going to be the president everybody seems to believe here of the ultimate target maybe president trump we don't know that and it's  lly walks and talks our way i think is in many things there may have been a popular understanding of what was going on in nixon but supreme court was not going to allow its judicial decision to be driven by popular understanding in fact it was careful when it when it dismissed the cross petition and privately granted on whether the president could even be an unindicted coconspirator to preserve the question and i don't think any opinion since then resolves it nd there was no claim like this  case i can't speak to that to do i think it was overlooked maybe not again the president in the other cases here has not invoked it every every president i think will have to make his own determination about when to invoke these kinds of immunities and president nixon chose to in that case not to invoke it the president here has as an as in other cases it's been invoked in its inverse it's fitzgerald for example so rd that was a trial subpoena and the court was clear that there was an even more pressing need for it to be for the president to disclose his communications because there were th amendment rights at issue and that that's true of the burke case as well i think that's been overlooked in the briefing that the rights of the defendants were  pinion and then as quoted in the nixon opinion part of the court's reasoning was that there are both parties and the access to the truth to the trout to the testimony for the trial but last runner even if this court thinks that nixon of applies fours and we do not and this goes back to your original question she just has been about the department of justice at a minimum this appeal would have to be the nixon standard and the on the record before this court it is difficult to see how and i haven't seen the one page redacted material so and perhaps the court has but it's difficult to see how a subpoena asking for almost a decade's worth of financial reports relates specifically and in a targeted fashion that is appropriately  engine issue no right whether it's too broad i mean that's something that can be addressed but your position as you said a moment ago is that the immunity is absolute and so if if if the president were to commit a crime no matter how heinous whether he did it before he took office or whether he took it he did it after he took office he could not be the subject of any even investigation that's the position yes until of course congress retains the impeachment power and on the is a distraction that distracts the president from carrying out his duties where's the distraction of the subpoenas served on accountants the president doesn't have to do anything to comply with the subpoena so two answers one is on a doctrinal level the question is not about this subpoena it's about what would happen if all fifty states were unleashed to engage in any kind of investigations criminal that's occasions of a sitting president i think it is difficult to sustain the proposition and i think that point was made in can be jones even in the civil area where the court was hesitant about letting states the idea that this would not lead to a proliferation of investigation of the president that go beyond one rd party subpoena to a one of the arguments in the clinton vs jones case that there would be a flood of civil suits and that did not happen history will judge whether that that prediction was correct or not i'm not here to dispute it accept the decision as it is i think this court though has to make a different judgment this is a different category also different from the federal grand jury subpoenas knows there's ninety three u s attorneys there's a lot of state district attorneys and state's attorneys but there's a lot of u s attorneys who want why it's not any different when it's  because the attorney general exercises control at the end of the day over all of them and so you have a centralized so i may not always be true again there are some of the practical realities i think cut both ways here i think your honor yes that that may be true but also i think the court can't ignore the practical reality of the political considerations that would necessarily infiltrate unleashing states to engage in this kind of broad ranging investigation of a sitting president why can't we think about this case in a narrow sense that is to say that we are not confronted we don't have to confront the question of whether the president is immune from indictment and prosecution while in or or in office we don't have to consider whether the president may lawfully be ordered to produce documents for use in a state criminal proceeding the only question or you believe that is before  whether a state may lawfully demand production by a rd party of the president's personal financial records for use in a grand jury investigation while the president is in office are on the rd party issue which i think is the most distinguishing feature from what i think is the paradigm case the easten decision from the supreme court makes clear that when you seek records from a custodian you cannot simply pretend that those are not a subpoena ultimately directed to the party who who intrusted the custodian with those records that would allow for an enormous loophole around the rights of individuals not and you just question not just in this case that would create enormous loophole for all people who trust the records of custodians who want to invoke their th amendment rights or other rights that he or other privileges like attorney client privilege spousal privilege this is the law privilege we're talking about here and the law of rd party custodians because the privilege why can't you know her well here there's a dispute between the parties about whether that's even available as a rd party under new york law but we're not pressing that issue here because ultimately the president brought in eighty three claim there is no exhaustion requirement one hundred and three and the question before the court is not whether the president should have chosen a state for him but whether he was entitled to invoke this when we think the law's rather clear that a dispute between the federal government here the president ited states and the state over the president has a munity from say process is not a case in which the federal court would exercise its equitable power to abstain and not hear a case in which it otherwise has a clear jurisdiction over the dispute what is the what is the response to the to the view that you know a president could could basically insulate himself from any state court proceedings by invoking section one thousand nine hundred and three to get into federal court i think anyone not just the president under the mission decision can invoke ninety three and any any any individual and be heard in federal court because they may not have a winning claim in federal court they may be dismissed but i don't think the court has been clear both with two respects one there is no exhaust requirement in a thirty three that is completely clear and nd equally clear under mitchum that the anti injunction act and hence younger do not require individuals to bring their eighty three dollars claims so again was was pretty clear that it's not going to pick and choose among constitutional right to say this one is good enough to be brought in eighty three and this one is somehow not sufficiently important and you must be kicked out of federal court i'm just asking how there would be some subtle differences i think in the overarching view it would not be entirely different course the president himself has not invoked with respect to federal process he's immunities because and this is not a direct answer your honor but because he believed those those investigations were handled appropriately properly with sensitivity to the office this subpoena which is a photocopy of a congressional subpoena and mostly unrelated to my time is as well please continue thank you ron it is different now on the dock trial when your honor i think this issue about the control of the u s attorney i think an argument could be made you know it's not a not a couple here i think it's a different case because you might say i don't expect there to be the proliferate proliferation of litigation that we think is attend into a state subpoena and there's obviously more history of special prosecutors and things like that i think it's a harder case i think ultimately i think there are good arguments for immunity there as well but we've never had to cross that bridge could disclosed to the da and to the grand jury as i understand it state and federal tax authorities already have at least some of these records so how would disclosure to another's state authority cause additional harm first any breach of immunity creates a cognizable harm the u s or the u s brief i think makes this point quite well so we are aware of no immunity case where the court says well your immunity  think the average citizen would think that could be asked the same question your tax records are been disclosed to the i r s why not just turn them over to a grand jury i think there are quite obvious reasons why any citizen does not want their information exposed to a grand jury if they have a lawful right to not allow that to happen rd the law here and around this area and this is unique to the president is changing rapidly as we noted in our brief there have been unique changes to new york law that that have taken what was once protected information and seemingly made it less protected or not protected at all and lastly it is unclear what would happen at the end of the investigation i don't know the answer to this question under new york law but but but if an indictment were issued to someone else this information could be then publicly exposed i presume could the grand jury issue a report at the end exposing information i don't think there's a guarantee that i don't think i have the district attorney nor the court is in a position to guarantee that the president's personal financial information will not be exposed so i think that collectively all of those provide ample basis for reparable injury  honor i don't think unless the court is going to remain and to the district court it's not clear to me those issues are necessarily live anymore given the agreement between the parties now so that i'm just want to nail this down the district court says that it's  uncontested that the district attorney is investigating conduct that occurred in new york state do you contest that the district attorney and the grand jury are investigating conduct that falls within their enforcement jurisdiction i've not conceded i don't see it as material to do you can test it and i'm prepared to stipulate to it without without conceding to it for purposes of adjudicating this is people i don't think it's material to whether they have the right to seek these documents the whether they have a basis in state law to secure the documents doesn't answer whether they have a basis in federal law to secure these documents thank you thank you they please the court i'm carrie done and i'm joined by my colleagues today chris conroe solomon strine rock and alan vicki and together we represent the appellee the district attorney of new york county you know as i'd like to pick up where i think the court started this morning and that is to put it bluntly the appellant's claims all do come down to his tax returns i believe we wouldn't be here if we had ignored the obvious conclusion that those returns are relevant to what our grand jury is looking at the helms counsel told flatly that he would never ever agree to produce the tax returns so we decided given our obligation to look at all the facts that we would not forbear for several reasons and these reasons really do all get to your honor's question about irreparable  harm st obviously there's no such thing as a presidential immunity for tax returns this isn't about executive communications concerning matters of state or diplomacy which was the concern central to the u s b mics and the case is it isn't  which relates to things like the washington d c hotel that are where there is least some question about what its relationship would be to the new york investigation could address two things embedded in that your honor the st is this repeated complaint that it was a photocopied subpoena and i think this was addressed on the record in the district court but just so it's clear and i believe this actually is really all that their claim of harm or bad faith now comes down to as was explained to the district court and as the discord found the simple reason for relying on the text of the earlier subpoena from the house to the accounting firm and this is not unusual in our practice but your honour's as you're all know an office like ours even though it's based in new york is commonly investigating transactions that have tentacles and impacts all over the country and sometimes extraterritoriality as long as there is a basis  allege that there is the grounds for jurisdiction on the island of manhattan in our case and in many many cases as you well know that often happens by virtue of the where the transactions were centered where the financial mention transactions that involve properties or other things of value outside of the island of manhattan is your office commit to preserving the confidentiality  of any and all responsive documents yes we do your honor we're obviously to do so by law under our criminal procedure law congress says we want to see something we would not be at liberty to provide that congress your  and that's again central to the question of irreparable harm and as you are already pointed out the other bodies government bodies that have received these tax returns in the st place already have their own secrecy obligations but again to take your argument is that one of the arguments is that at the end of the day the documents may be public schools and therefore the harm well st i think the short answer to that your honor is that there is no privilege for tax returns whether it's the president or anybody else in the country yes he may view them as embarrassing or sensitive but yes tax returns do in fact get subpoenaed all the time in financial investigations and sometimes perhaps at trial for example that leads them to or at least in part be made public or a be made as exhibits in in court i just don't understand where this central of the of the secrecy of tax returns comes from after a point yes we are obliged to abide by grand jury secrecy federal and state tax authorities have their own obligations to keep it to not turn those things over publicly but an accounting firm does not have a valid privilege to interpose when it's subpoenaed as has happened here for somebody's stature terms it's just  if they're making this up your honor that's all i can say and absolute immunity president from a criminal trial while he's in office he or she is in office do you agree that there is some absolute immunity of the president from a criminal trial  to the the the analysis in those memos and the effect of those etc so it's hard for me to say that there can be no circumstance under which a president could ever imagine a lead be criminally charged or perhaps try i understand the sensitivity and how it would be very disruptive particularly if it's a state rather than a federal charges assume for a moment there is a president from indictment and criminal trial while he is sitting as the president you then notify people we're going to seek an indictment next wednesday against the president and if you want to file a new nine hundred and eighty three case or something else you're going to do it now because there's going to be an indictment issuing next wednesday and we think if the grand jury agrees arrested you or i think the very practical answer to that question your honor and i completely agree that's our position is that is basically right at this point given the rulings in the nixon insurrection and their progeny that there is simply no basis to object at this point whether there's an immunity or not the way it would work as a practical matter in a case such as ours or any and it happens all the time is that in a long running grand jury investigation it is almost unheard of that i would an office like ours to provide notice to the defense whenever we get to a point in an investigation where we are contemplating putting charges and reading charges to a grand jury for consideration of a possible  indictment what that does what would you do here is two things it would a give the putative defendant as it always does the right to decide to actually testify before the grand jury but number two in this case to answer your question it would put them on notice that yes now the time is right if they want to interpose they claimed in the unity from indictment based upon something in the constitution they could do with that let me let me press you with abstention still be appropriate if the president if we would we would dispute that there is a blanket absolute immunity that i would argue instead that under the nixon and strict a line of cases it has to be a balancing test and looking the factors in the in the circumstances but yet again we would be saying  the the state courts under the principles of federalism are are are not only required to look perfectly well capable of adjudicating in the st instance at least a constitutional claim like that is the presidency somehow different i  think other words the argument in part would be that the president is challenging the constitutionality of  having him have to submit to a state prosecution and that this should be something that is resolved in a federal form that the concerns  of younger abstention in part are concerns about comedy but comedy washes away when there isn't and already an inherent conflict between federal and state authority i agree rather i don't to sound insensitive to the concerns surrounding the office of the presidency but i think the difference here would be if the conduct underlying that was giving rise to a potential criminal charge was conduct related to the  bottom your honor i believe this is an action brought in his personal capacity based upon private conduct and he's not allowed to simply turn this into an act of the sovereign beast by saying i am the sovereign and the sovereign is me as long as we're talking about his private personal conduct business transactions entered into largely before he was even in office i think that belongs in the st instance in state court under younger i mean let me so under younger let me press you again are there any circumstances that that you can envision in which a president could get into federal court when there is an ongoing criminal proceeding yes as i just said i just want you to take a look at that point out that if if what was being investigated and looked at was in fact his conduct qua president in his official duties some sort of official wrongdoing i think that might under younger amount to an extraordinary circumstance that would justify having this federal court keep the case given the federal interest involved but of course that's just not the case here he's bringing this action as a private see which in fact with the d o j brief actually says they do not they say affirmatively that he's not bringing this in his official capacity on behalf of the u s government which is frankly why he has private lawyers representing him in this not withstanding in his principal briefs he does maintain that he's bringing this case both as a private person and as as the sovereign which i just don't think can be the case you know it and i will point out finally that you know all this concern about staying in state court under younger not only is there the federalism concern and then the obligation of state courts to hear constitutional claims but also don't forget of course that at the end of the day if the public doesn't get the relief he seeks in the courts in the state itself they can go to the supreme court that's the backstop under younger i want to ask about the text the supremacy clause i mean case but so that again implicates the sort of the memo question of whether hypothetically there could be a charge brought against the president while in office i think people could argue about the implications of that language versus other provisions  you know i just again hypothetically if we want to entertain that kind of thing you know you can you can invent scenarios where you can imagine that there would be necessary or at least perhaps a good idea  a sitting president to be subject to a criminal charge even by a state while in office if he for example do pull out a hand gun and shoot someone on th avenue wall and what would be the impact of that would he would local police be disabled from restraining such a trump's boyer's position could you speak to that one of them i just mentioned which is that they seem to maintain that they say flatly that he is not bringing this in his official capacity representing the united states and i think that's  a flat contradiction of the position that that the appellant takes in terms of in what capacity he's again he's trying to assert that he's bringing this as the sovereign which then drags with it all of the sovereignty principles that don't belong in a private litigation  and the other thing that's different in the d o j brief your honor is that they actually contemplate that the president in this position needs to respond to the subpoena or to allow the subpoena to be compl means that he's not immune from investigation in the st place that he has to comply that's a fundamental contradiction to the absolute immunity point that is being advocated here and so we have not only the next in a long line of cases standing against him but the d o j itself is not supporting their position with respect to the new suggestion from d o j that there should be particularized need test overseen by a court i believe that what they're looking at there is the language in again and nixon and serrata in both of those cases there were two issues presented to the court the st was whether the sitting president is subject to subpoena process and the answer was a quick yes on both cases we say at this point that ends it for us that's the that's the question before this court secondly though in those cases don't forget that the tapes at issue were tape recordings of the president's communications in the oval office with his top advisers over a long period of time which of course then raised the question of executive privilege and the question is whether there are you know sensitive matters of state or diplomacy or national security discussed and that raised the need to make sure that those tapes got reviewed by a court like a privilege review attorney client privilege by analogy to make sure that those kinds of important state privileged materials were segregated out from the materials we need that need to be produced responsive to the subpoena here we have none of that this is all private business transaction document and tax returns nobody has to see whether and that there's there are matters of state international security that need to be protected there's no privilege that applies whatsoever it's one big ball of wax and it's all or nothing we should get these materials and we can look at it they are confidential in our hands and there's no need for to have a magistrate or someone trying to oversee the production and i don't know what standard by which people would be trying to weed out things that are producible and it's not that kind of analysis you know now if we were to disagree with your view view is that you could still prevail on and along the lines of some version of the alternative ruling of judge where oh yes your honor in fact our our request here just so there's no confusion is that is that that this co affirmed judgment on both grounds we think that it's in the public interest to have rulings both on the younger immunity question or abstention question as well as the grounds for denying the injunctive relief so yes if if younger were not to prevail if abstention were not to happen here we obviously would ask this court to affirm the district court on the basis of the injunctive analysis both on the reparable harm test which i've touched on briefly but mostly importantly because of the lack of success and of success on the merits but would the district court then have continuing supervision of the case in other words would we agree it was properly dismissed or would we say you shouldn't dismiss it because there may be other steps along the way where these important federal issues need to be reasonably resolved by a federal judge your honour's i'll as i look at it standing here at least i think everything has been fully briefed and and the district court certainly did not rule on this simply as a matter of a preliminary injunction he ordered full merits based injunctive relief i think of this court of held that decision that there may be a trip to the supreme court in the offing but i don't think the district court has to look at anything going on was it a permanent injunction or i'd be dismissed the complaint he dismissed the complaint and i believe had the at least the effect of entering a marriage decision on the permanent injunction i don't think that that is a court contemplated that there was going to be any further proceedings in the district court institutions not of this court rules in favor of the district court firms that is recorded pending on i think that would be that would be binding precedent and indeed just to be clear and record inquiry about this as well you know we are hamstrung significantly by the lack of the documents that we're seeking here but we our investigation is indeed proceeding there are in fact other subpoenas outstanding no one should be surprised by that it's just that we don't think that we should have our hands tied by not being not being allowed as we would any other ordinary case to get some of the basic business documents that would shed light on whether there was criminality or not i see my red light is on this case down for the supreme court i think both parties see and your honor i think it important to frame where we are and where my friends position is which is lockstep with the district court there is no immunity for unofficial action of any kind president can be indicted and arrested and convicted by a state while he's in office they have not ruled out the president as a target of this investigation which would be the basis for shifting the ground from the immunity doctrines of nixon versus fitzgerald and clinton v jones to the rd party doctrines of nixon was united states in fact everything that we've heard this morning makes clear the president is a is a target so i don't think that's really an issue in dispute any more it's clear that the district attorney just wants the president's tax returns we are objecting to the entirety of the subpoena it is the entire subpoena this entire fishing expedition that is improper here there is no argument and my friend and i you credit has tried mightily to explain why is it your view that they're not seeking tax returns for a legitimate investigatory purpose and they are doing is just trying to embarrass the president i mean it's not the argument but we believe there is evidence of that yes and certainly in the in their brief when when pushed on this point the response we got was impeachment isn't going the way we want the president said he was going to disclose them during the election and he hasn't other presidents have these arguments that sound in a policy disagreement with the president not in the basis of an investigation position is that district attorneys from all around the country u s attorneys from all around the country are going to act in bad faith that's the concern i think there's an incentive  i would not say everyone is going to act in bad faith even in clinton v jones when the court said this case is going to proceed but it's important that were explaining that it's a federal court the court said local pressures may apply differently in a state form they do in a federal the court may agree or gathering documents that could be used later once the president leaves office that can't be done either that can be done i apologize i meant say with respect to the president directly or through his custodians this grand jury's proceeding we have not s to enjoin the entirety of the grand jury which was the position that by the present agnew tried to take in his case we are simply saying criminal process issue to a sitting president in which they have not ruled out that he is a target of the investigation comfortably with the immunity that i think has to be accepted it was this is this really about the tax records yes question it is not run it is about this subpoena the president has complied with a multitude of requests from both federal and state officials this is about and i really do think your honor the other aspects of the subpoena really highlight the impropriety here there is no argument based on what we've seen that ten years of statements of financial condition are relevant if i can just make an image out of i make one last point your honor about the u s government position and nixon two points one could be jones answers the question about whether the president is in his personal capacity  official he was represented in that case in a civil lawsuit based on unofficial conduct that occurred before office by private attorneys supreme court said he can raise immunity doctrines in that posture he did not prevail in that case but he wasn't defeated by by the nature in which he proceeded to the court nd the department of justice has has said and i think their brief is clear on this they are saying you can avoid the difficult constitutional question that our primary argument raises by adopting the us versus nixon position as your honor said might be a plausible here imposing the heightened standard it requires given the sensitivity of the office that standard applies beyond privilege as cheaply cheney decision i nixon and apply that standard i think it is impossible to sustain a subpoena at the court thinks further proceedings are warranted on that basis we don't think it is because of the district court for in camera review and to make an evaluation as to whether this kind of subpoena meets the heightened burden requirement in the particulars and if the court were to do that we would ask that the status quo mean be maintained because we just we heard today when pressed is pretty clear that there is no promise here that these records are going to remain sealed forever and that is all that is required to meet irreparable injury even putting aside the immunity questions themselves but here thank you both for your excellent arguments  is is committed to proceeding deliberately into the deliberative when we have the feeling that you may be seeing each other again in washington thank you for your argument we will take a ten minute recess