19-1540-cv

Donald J. Trump v. Deutsche Bank AG

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2019

Argued: August 23, 2019 Decided: December 3, 2019

Docket No. 19

‐ 1540

‐ cv

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐

DONALD J. TRUMP, DONALD J. TRUMP, JR., ERIC

TRUMP, IVANKA TRUMP, DONALD J. TRUMP

REVOCABLE TRUST, TRUMP ORGANIZATION, INC.,

TRUMP ORGANIZATION LLC, DJT HOLDINGS LLC,

DJT HOLDINGS MANAGING MEMBER LLC, TRUMP

ACQUISITION LLC, TRUMP ACQUISITION, CORP.,

Plaintiffs

‐ Appellants,

v.

DEUTSCHE BANK AG, CAPITAL ONE FINANCIAL

CORPORATION,

Defendants

‐ Appellees,

COMMITTEE ON FINANCIAL SERVICES OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,

PERMANENT SELECT COMMITTEE ON

INTELLIGENCE OF THE UNITED STATES HOUSE

OF REPRESENTATIVES,

Intervenor Defendants

‐ Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐2 Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges

.

Expedited interlocutory appeal from the May 22, 2019, order of the District

Court for the Southern District of New York (Edgardo Ramos, District Judge)

denying Plaintiffs

‐ Appellants’ motion for a preliminary injunction to prevent the

Defendants

‐ Appellees’ compliance with subpoenas issued to them by the

Intervenor Defendants

‐ Appellees and denying Plaintiffs

‐ Appellants’ motion for a

stay pending appeal.

Affirmed in substantial part and remanded in part. Judge Livingston

concurs in part and dissents in part with a separate opinion.

Patrick Strawbridge, Consovoy McCarthy PLLC,

Boston, MA (William S. Consovoy,

Cameron T. Norris, Consovoy McCarthy

PLLC, Arlington, VA, Marc Lee Mukasey,

Mukasey Frenchman & Sklaroff LLP, New

York, NY, on the brief ), for Plaintiffs

‐ Appellants Donald J. Trump, Donald J.

Trump, Jr., Eric Trump, Ivanka Trump,

Donald J. Trump Revocable Trust, Trump

Organization, Inc., Trump Organization

LLC, DJT Holdings LLC, DJT Holdings

Managing Member LLC, Trump Acquisition

LLC, Trump Acquisition, Corp.

Douglas N. Letter, General Counsel, U.S. House of

Representatives, Washington, D.C. (Todd B.

Tatelman, Dep. General Counsel, Megan3 Barbero, Josephine Morse, Assoc. General

Counsel, Office of General Counsel, U.S.

House of Representatives, Washington,

D.C., on the brief ), for Intervenor Defendants

‐ Appellees Committee on Financial Services

and Permanent Select Committee on

Intelligence of the United States House of

Representatives.

Parvin D. Moyne, Akin Gump Strauss Hauer &

Feld LLP, New York, NY (Thomas C.

Moyer, Raphael A. Prober, Steven R. Ross,

Akin Gump Strauss Hauer & Feld LLP,

Washington, D.C.), for Defendant

‐ Appellee

Deutsche Bank AG.

James A. Murphy, Murphy & McGonigle, PC,

New York, NY (Steven D. Feldman, Murphy

& McGonigle, PC, New York, NY), for

Defendant

‐ Appellee Capital One Financial

Corporation.

(Dennis Fan, Mark R. Freeman, Scott R. McIntosh,

Appellate Staff Attys., Joseph H. Hunt, Asst.

Atty. General, Hashim M. Mooppan, Dep.

Asst. Atty. General, Civil Division, U.S.

Dept. of Justice, Washington, D.C., for

amicus curiae United States of America.)

(Brianne J. Gorod, Elizabeth B. Wydra, Brian R.

Frazelle, Ashwin P. Phatak, Constitutional

Accountability Center, Washington, D.C.,

for amicus curiae Constitutional Accountability

Center, in support of Intervenor Defendants

‐ Appellees.)4 JON O. NEWMAN, Circuit Judge:

This appeal raises an important issue concerning the investigative authority

of two committees of the United States House of Representatives and the

protection of privacy due the President of the United States suing in his individual,

not official, capacity with respect to financial records. The specific issue is the

lawfulness of three subpoenas issued by the House Committee on Financial

Services and the House Permanent Select Committee on Intelligence (collectively,

“Committees” or “Intervenors”) to two banks, Deutsche Bank AG and Capital One

Financial Corporation (“Capital One”) (collectively, “Banks”). The subpoenas

issued by each of the Committees to Deutsche Bank (“Deutsche Bank Subpoenas”)

seek identical records of President Donald J. Trump (“Lead Plaintiff”), members

of his family, The Trump Organization, Inc. (“Trump Organization”), and several

affiliated entities (collectively, “Plaintiffs” or “Appellants”). The subpoena issued

by the Committee on Financial Services to Capital One (“Capital One Subpoena”)

seeks records of the Trump Organization and several affiliated entities. The

Capital One Subpoena does not list the Lead Plaintiff or members of his family by

name, but might seek their records in the event they are a principal, director,

shareholder, or officer of any of the listed entities.5 The issue of the lawfulness of the three subpoenas arises on an expedited

interlocutory appeal from the May 22, 2019, Order of the District Court for the

Southern District of New York (Edgardo Ramos, District Judge) (“Order”) denying

Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance

with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

We affirm the Order in substantial part to the extent that it denied a

preliminary injunction and order prompt compliance with the subpoenas, except

that the case is remanded to a limited extent for implementation of the procedure

set forth in this opinion concerning the nondisclosure of sensitive personal

information and a limited opportunity for Appellants to object to disclosure of

other specific documents within the coverage of those paragraphs of the Deutsche

Bank Subpoenas listed in this opinion. We dismiss as moot the appeal from the

Order to the extent that it denied a stay pending appeal because the Committees

agreed not to require compliance with the subpoenas pending the appeal, once the

appeal was expedited.

In her partial dissent, Judge Livingston prefers a total remand of the case for

“creation of a record that is sufficient more closely to examine the serious

questions that the Plaintiffs have raised,” Part Diss. Op. at 10

‒ 11, and to “afford6 the parties an opportunity to negotiate,” id

. at 11. We discuss at pages 69

‒ 72 of this

opinion not only why such a remand is not warranted but why it would also run

counter to the instruction the Supreme Court has given to courts considering

attempts to have the Judicial Branch interfere with a lawful exercise of the

congressional authority of the Legislative Branch.

Background

The subpoenas

. The case concerns three subpoenas issued by committees of

the United States House of Representatives. On April 11 of this year, the

Committee on Financial Services and the Permanent Select Committee on

Intelligence each issued identical subpoenas to Deutsche Bank, seeking a broad

range of financial records of Donald J. Trump, members of his family, and

affiliated entities. On the same date, the Committee on Financial Services issued a

subpoena of narrower scope to Capital One Financial Corporation. 1 We detail the

scope of the subpoenas in Part II(C).

Litigation procedure

. On April 29, Donald J. Trump, his three oldest children,

the Trump Organization, and six entities affiliated with either the Lead Plaintiff or

1 The subpoenas issued by the Committee on Financial Services are not dated, but we were

informed at oral argument that they were issued on April 11.7 the Trump Organization 2 filed a complaint in the District Court seeking a

declaratory judgment that the subpoenas are invalid and an injunction “quashing”

the subpoenas and enjoining compliance with them. 3 On May 3, the Plaintiffs filed

a motion for a preliminary injunction, 4 and the District Court granted the

Committees’ joint motion to intervene. 5 The Plaintiffs and the Committees then

agreed to an expedited briefing schedule for the motion for a preliminary

injunction. 6 Deutsche Bank notified the District Court that it took no position on

the Plaintiffs’ request for limited expedited discovery, 7 and Capital One notified

the District Court that it took no position on the Plaintiffs’ request for an order

requiring the Committees to provide Plaintiffs with copies of the subpoenas. 8

On May 22, the District Court held a hearing on the Plaintiffs’ motion for a

preliminary injunction and denied it, reading into the record an extensive

opinion. 9 On May 24, the Plaintiffs filed a notice of an interlocutory appeal. On

2 They are Donald J. Trump Revocable Trust, Trump Organization LLC, DJT Holdings

LLC, DJT Holdings Managing Member LLC, Trump Acquisition LLC, and Trump Acquisition,

Corp.

3 Trump v. Deutsche Bank

, No. 19

‐ cv

‐ 3826 (S.D.N.Y. 2019), Dkt. No. 1 (Apr. 29, 2019).

4 Id.

, Dkt. No. 26 (May 3, 2019).

5 Id.

, Dkt. No. 31 (May 3, 2019).

6 Id.

, Dkt. No. 21 (May 1, 2019).

7 Id.

, Dkt. No. 38 (May 7, 2019).

8 Id.

, Dkt. No. 40 (May 7, 2019).

9 Id.

, Dkt. No. 59 (May 22, 2019).8 May 25, the parties submitted a joint motion to stay proceedings in the District

Court pending the appeal, 10 which the District Court granted on May 28. 11

On May 25, the parties jointly moved in this Court for an expedited appeal, 12

which was granted on May 31. 13 Thereafter, the Banks informed us that they take

no position with respect to the appeal. 14 Nevertheless, we requested counsel for

the Banks to attend the oral argument to be available to respond to any questions

the panel might have. 15 We requested the Committees to provide unredacted

copies of the Deutsche Bank subpoenas, which we have received under seal. We

also inquired of the United States Solicitor General whether the United States

would like to submit its view on the issues raised on this appeal. 16 On August 19,

the United States submitted a brief as amicus curiae, urging reversal of the District

10 Id.

, Dkt. No. 61 (May 25, 2019).

11 Id.

, Dkt. No. 62 (May 28, 2019).

12 Trump v. Deutsche Bank

, No. 19

‐ 1540 (2d Cir. 2019), Dkt. No. 5 (May 25, 2019).

13 Id.

, Dkt. No. 8 (May 31, 2019). In the parties’ joint motion to expedite the appeal, the

Committees agreed that if the appeal were expedited, they would suspend compliance with the

subpoenas during the pendency of the appeal “except to the extent the subpoenas call for the

production of documents unrelated to any person or entity affiliated with Plaintiff

‐ Appellants.”

J. Mot. to Expedite at 2, id.

, Dkt. No. 5 (May 25, 2019). Granting the motion to expedite the appeal

has therefore rendered moot the appeal from the District Court’s order to the extent that it denied

a stay pending appeal.

14 Id.

, Dkt. Nos. 66 (July 11, 2019), 71 (July 12, 2019).

15 Id.

, Dkt. No. 81 (July 17, 2019).

16 Id.

, Dkt. No. 80 (July 17, 2019).9 Court’s order denying a preliminary injunction, 17 to which the Committees and

Appellants responded on August 21. 18 On August 23, we heard oral argument.

The oral argument precipitated letters from the parties to this Court

concerning tax returns sought pursuant to the subpoenas. These letters and

subsequent procedural developments are discussed in Part II(B).

Discussion

We emphasize at the outset that the issues raised by this litigation do not

concern a dispute between the Legislative and Executive Branches. As to such a

dispute, as occurs where the Justice Department, suing on behalf of the United

States, seeks an injunction to prevent a third party from responding to a

congressional committee’s subpoena seeking documents of a department or

agency of the Executive Branch, see

, e.g.

, United States v. AT&T

, 567 F.2d 121, 122

(D.C. Cir. 1977) (“ AT&T II ”), the Judicial Branch proceeds with caution, see id

. at

123 (seeking to “ avoid a resolution that might disturb the balance of power

between the two branches”)

, sometimes encountering issues of justiciability in

advance of the merits, see United States v. AT&T

, 551 F.2d 384, 390 (D.C. Cir. 1976)

(“ AT&T I”)

. Although the challenged subpoenas seek financial records of the

17 Id.

, Dkt. No. 143 (Aug. 19, 2019).

18 Id.

, Dkt. Nos. 148, 149 (Aug. 21, 2019).10 person who is the President, no documents are sought reflecting any actions taken

by Donald J. Trump acting in his official capacity as President. Indeed, the

Complaint explicitly states that “President Trump brings this suit solely in his

capacity as a private citizen.” Complaint ¶ 13. Appellants underscore this point by

declining in this Court to assert as barriers to compliance with the subpoenas any

privilege that might be available to the President in his official capacity, such as

executive privilege. See Franchise Tax Board v. Hyatt

, 139 S. Ct. 1485, 1499 (2019)

(citing United States v. Nixon

, 418 U.S. 683, 705

‒ 06 (1974)). The protection sought is

the protection from compelled disclosure alleged to be beyond the constitutional

authority of the Committees, a protection that, if validly asserted, would be

available to any private individual. See Barenblatt v. United States

, 360 U.S. 109

(1959); Watkins v. United States

, 354 U.S. 178 (1957). For this reason, in the

remainder of this opinion we will refer to President Trump as the “Lead Plaintiff”;

the formal title “President Trump” might mislead some to think that his official

records are sought, and the locution “Mr. Trump,” sometimes used in this

litigation, might seem to some disrespectful.

Also at the outset, we note that there is no dispute that Plaintiffs had

standing in the District Court to challenge the lawfulness of the Committees’11 subpoenas by seeking injunctive relief against the Banks as custodians of the

documents. See United States Servicemen’s Fund v. Eastland

, 488 F.2d 1252, 1260

(D.C. Cir. 1973) (“[T]he plaintiffs have no alternative means to vindicate their

rights.”) (italics omitted), rev’d on other grounds without questioning plaintiffs’

standing

, 421 U.S. 491 (1975).

We review denial of a preliminary injunction for abuse of discretion, see

, e.g.,

Ragbir v. Homan

, 923 F.3d 53, 62 (2d Cir. 2019), but our review is appropriately

more exacting where the action sought to be enjoined concerns the President, even

though he is suing in his individual, not official, capacity, in view of “‘[t]he high

respect that is owed to the office of the Chief Executive’” that “‘should inform the

conduct of [an] entire proceeding,’” Cheney v. United States District Court

, 542 U.S.

367, 385 (2004) (first brackets in original) (quoting Clinton v. Jones

, 520 U.S. 681, 707

(1997)).

I. Preliminary Injunction Standard

In this Circuit, we have repeatedly said that district courts may grant a

preliminary injunction where a plaintiff demonstrates irreparable harm and meets

either of two standards: “(a) a likelihood of success on the merits, or (b) sufficiently

serious questions going to the merits to make them a fair ground for litigation, and12 a balance of hardships tipping decidedly in the movant’s favor.” 19 Kelly v.

Honeywell International, Inc.

, 933 F.3d 173, 184 (2d Cir. 2019) (quotation marks

19 The first component of the “serious

‐ questions” standard has sometimes been phrased

as requiring a party seeking a preliminary injunction to show “sufficiently serious questions

going to the merits of its claims to make them fair ground for litigation.” Otoe

‐ Missouria Tribe of

Indians v. New York State Dep’t of Financial Services

, 769 F.3d 105, 110 (2d Cir. 2014). That

formulation raises the question whether the referent of “them” is “claims” or “serious questions.”

Normally, the referent of a pronoun is the word or phrase immediately preceding it. That would

mean that a plaintiff’s “claims” must be sufficiently serious to make them a fair ground for

litigation. But the Otoe

‐ Missouria Tribe formulation could also be read to mean that the “serious

questions” must be sufficiently serious to make them a fair ground for litigation.

The origin and evolution of the serious

‐ questions standard indicate that what must be

sufficiently serious to be a fair ground of litigation are the questions that the plaintiff’s claims

raise, not the claims themselves (although the distinction probably makes little, if any, difference

in practice). The first version of what has become the first component of the serious

‐ questions

standard appears in Hamilton Watch Co. v. Benrus Watch Co.

, 206 F.2d 738 (2d Cir. 1953), where we

referred to “questions going to the merits so serious, substantial, difficult and doubtful, as to

make them a fair ground for litigation,” id. at 740 (emphasis added). This formulation was

repeated verbatim later the same year in Unicon Management Corp. v. Koppers Co.

, 366 F.2d 199,

205 (2d Cir. 1966), and Dino DeLaurentis Cinematografica, S.p.A. v. D

‐ 150, Inc., 366 F.2d 373, 376

(2d Cir. 1966). This formulation was substantially repeated three years later in Checker Motors

Corp. v. Chrysler Corp.

, 405 F.2d 319 (2d Cir. 1969), but with omission of the word “doubtful,” id

.

at 323. Three years later, in Stark v. New York Stock Exchange

, 466 F.2d 743 (2d Cir. 1972), we

shortened the formulation to just “serious questions going to the merits.” Id

. at 744. The following

year, in Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co.

, 476 F.2d 687 (2d Cir. 1973),

we expanded that short version to “serious questions going to the merits which warrant further

investigation for trial.” Id

. at 692. Later that year, in Sonesta International Hotels Corp. v. Wellington

Associates

, 483 F.2d 247 (2d Cir. 1973), there first appeared the current version of the formulation,

“sufficiently serious questions going to the merits to make them a fair ground for litigation.” Id.

at 250 (emphasis added). This formulation was repeated verbatim in a series of cases. See

Triebwasser & Katz v. American Telephone & Telegraph Co

., 535 F.2d 1356, 1358 (2d Cir. 1976); New

York v. Nuclear Regulatory Commission

, 550 F.2d 745, 750 (2d Cir. 1977); Selchow & Richter Co. v.

McGraw

‐ Hill Book Co

., 580 F.2d 25, 27 (2d Cir. 1978); Caulfield v. Board of Education

, 583 F.2d 605,

610 (2d Cir. 1978); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.

, 596 F.2d 70, 72 (2d Cir. 1979); see

also William H. Mulligan, Foreword

― Preliminary Injunction in the Second Circuit

, 43 Brook. L. Rev.

831 (primarily considering requirement of irreparable injury).

Thereafter, this Court and district courts in this Circuit cited Jackson Dairy and its

formulation of the serious

‐ questions standard innumerable times, as the citing references

collected by Westlaw indicate, until in Plaza Health Laboratories, Inc. v. Perales

, 878 F.2d 577 (2d

Cir. 1989), the formulation was rephrased to “sufficiently serious questions going to the merits of13 deleted); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.

, 596 F.2d 70, 72 (2d Cir. 1979).

The Committees contend that the likelihood

‐ of

‐ success standard applies;

Appellants contend that the serious

‐ questions standard applies. 20

With respect to irreparable harm, a factor required under either standard,

Appellants contend that compliance with the subpoenas will cause them such

its claims to make them fair ground for litigation.” Id

. at 580. Plaza Health Laboratories added the

phrase “of its claims,” thereby creating the grammatical query considered in this footnote. Plaza

Health Laboratories cited only Sperry International Trade, Inc. v. Government of Israel

, 670 F.2d 8 (2d

Cir. 1982), and Jackson Dairy

, but both of those opinions had used the traditional formulation

without the phrase “of its claims.” See Sperry International Trade

, 670 F. 2d at 110; Jackson Dairy

,

598 F.2d at 11. A Westlaw search reveals that the Plaza Health Laboratories formulation has been

used by this Court just fifteen times, and the Jackson Dairy formulation has been used 226 times.

In view of the evolution of, and this Court’s clear preference for, the Jackson Dairy

formulation, we will use it in this opinion, thereby avoiding the grammatical query posed by the

Plaza Health Laboratories formulation. We will also use the article “a” before “fair ground for

litigation,” which Plaza Health Laboratories and some of the opinions citing it omitted, but which

is always included in the opinions using the Jackson Dairy formulation.

20 In their reply brief, Appellants contend that “the Committees conceded [in the District

Court] that the serious

‐ questions standard applies.” Reply Br. for Appellants at 2. They cite

footnote 28 of the Committees’ memorandum in opposition to the motion for a preliminary

injunction. We normally do not consider an issue raised for the first time in a reply brief. See

McBride v. BIC Consumer Products Manufacturing Co.

, 583 F.3d 92, 96 (2d Cir. 2009). In any event,

Appellants’ claim is without merit.

The Committees’ footnote states, “To the extent there is any meaningful distinction

between the Winter [ v. Natural Resources Defense Council, Inc.

, 555 U.S. 7, 20 (2008)] standard and

the ‘serious questions’ formulation, that has also been used by the Second Circuit in post

‐ Winter

cases, see Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.

, 598 F.3d 30,

36

‒ 38 (2d Cir. 2010), this Court need not consider that nuance here because Mr. Trump has failed

to meet the heavy burden required under either standard.” Dist. Ct. Dkt. No. 51, at 10 n.28

(citation omitted) (May 10, 2019). Stating that the Lead Plaintiff had not met either the likelihood

‐

of

‐ success standard or the serious

‐ questions standard is not a concession that the lesser standard

applies. Moreover, in the sentence of text to which the footnote is appended, the Committees

explicitly contend that the higher standard applies, stating that to obtain a preliminary injunction

“a plaintiff ‘must establish that he is likely to succeed on the merits.’” Id

. at 10 (quoting New York

Progress & Protection PAC v. Walsh

, 733 F.3d 483, 486 (2d Cir. 2003)).14 harm. In the District Court, the Committees took the position that whether

compliance would cause Appellants irreparable harm would depend on whether

the Committees would make public the documents obtained. 21 The District Court

ruled that compliance would cause irreparable harm because “plaintiffs have an

interest in keeping their records private from everyone, including

congresspersons,” and “the committees have not committed one way or the other

to keeping plaintiffs’ records confidential from the public once received.” J. App’x

122

‒ 23. We agree.

The issue therefore becomes whether Appellants seeking a preliminary

injunction had to meet (1) the more rigorous standard of a likelihood of success on

the merits or (2) the less rigorous standard of sufficiently serious questions going

to the merits to make them a fair ground for litigation plus a balance of hardships

tipping decidedly in their favor. 22

21 Counsel for the Committees said to the District Court, “[J]ust because documents are

turned over to Congress, that itself is not irreparable injury. The question is if Congress was going

to disclose them. So just turning it over to Congress is not irreparable injury.” J. App’x 111.

22 One opinion of this Court noted that “[b]ecause the moving party must not only show

that there are ‘serious questions’ going to the merits, but must additionally establish that ‘the

balance of hardships tips decidedly ’ in its favor, its overall burden is no lighter than the one it bears

under the ‘likelihood of success’ standard.” Citigroup Global Markets, Inc. v. VCG Special

Opportunities Master Fund Ltd.

, 598 F.3d 30, 35 (2d Cir. 2010) (citation omitted) (emphasis in

original). Although that might have been the situation on the facts of that case, there can be no

doubt, as we have repeatedly said, that the likelihood

‐ of

‐ success standard is more rigorous than

the serious

‐ questions standard. See

, e.g.

, Central Rabbinical Congress of U.S. & Canada v. New York

City Dep’t of Health & Mental Hygiene

, 763 F.3d 183, 192 (2d Cir. 2014) (likelihood

‐ of

‐ success15 With slightly different formulations, we have repeatedly stated that the

serious

‐ questions standard cannot be used to preliminarily enjoin governmental

action. See Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)

(applying more rigorous likelihood

‐ of

‐ success standard in affirming denial of

preliminary injunction against “governmental action taken in the public interest

pursuant to a statutory or regulatory scheme”) ; Union Carbide Agricultural Products

Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980) (same, with respect to

“governmental action that is in the public interest”); Medical Society of State of New

York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977) (same, where “interim relief [enjoining

governmental action] may adversely affect the public interest”); see also Able v.

United States

, 44 F.3d 128, 131 (2d Cir. 1995) (“As long as the action to be enjoined

is taken pursuant to a statutory or regulatory scheme, even government action

with respect to one litigant requires application of the ‘likelihood of success’

standard.”).

Nevertheless, in two decisions, we have affirmed preliminary injunctions

against government action issued using the less rigorous serious

‐ questions

standard “more rigorous”); Red Earth LLC v. United States

, 657 F.3d 138, 143 (2d Cir. 2011) (same);

Metropolitan Taxicab Board of Trade v. City of New York

, 615 F.3d 152, 156 (2d Cir. 2010) (same);

County of Nassau v. Leavitt

, 524 F.3d 408, 414 (2d Cir. 2008) (same).16 standard. See Haitian Centers Council, Inc. v. McNary

, 969 F.2d 1326, 1342 (2d Cir.

1992) ( officials of the Immigration and Naturalization Service enjoined), judgment

vacated as moot sub nom. Sale v. Haitian Centers Council, Inc.

, 509 U.S. 918 (1993) ;

Mitchell v. Cuomo

, 748 F.2d 804, 806

‒ 08 (2d Cir. 1984) (state prison officials

enjoined). We have sometimes affirmed decisions that issued or denied

preliminary injunctions against government action using both standards. See

Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy

, 836 F.2d 760, 763 (2d Cir. 1988)

(preliminary injunction denied under both standards); Patton v. Dole

, 806 F.2d 24,

28

‒ 30 (2d Cir. 1986) (preliminary injunction granted under both standards);

Patchogue Nursing Center v. Bowen

, 797 F.2d 1137, 1141

‒ 42 (2d Cir. 1986)

(preliminary injunction denied under both standards).

Haitian Centers noted that “the ‘likelihood of success’ prong need not always

be followed merely because a movant seeks to enjoin government action.” 969 F.2d

at 1339 (emphasis added). Then, building on the statement in Plaza Health

Laboratories that the less rigorous standard may not be used to enjoin

“governmental action taken in the public interest pursuant to a statutory or

regulatory scheme,” 878 F.2d at 580 (emphasis added), Haitian Centers noted that

“no party has an exclusive claim on the public interest,” 969 F.2d at 1339. That17 point influenced our later decision in Time Warner Cable of New York City L.P. v.

Bloomberg L.P.

, 118 F.3d 917 (2d Cir. 1997), where, noting that “there are public

interest concerns on both sides” of the litigation, id

. at 923, we said that the serious

‐

questions standard “would be applicable,” id. at 924, even though we ultimately

decided the case under the likelihood

‐ of

‐ success standard, see id.

In Able

, we noted that the government action exception to the use of the

serious

‐ questions standard “ reflects the idea that governmental policies

implemented through legislation or regulations developed through

presumptively reasoned democratic processes are entitled to a higher degree of

deference and should not be enjoined lightly,” 44 F.3d at 131, and that the

likelihood

‐ of

‐ success standard was appropriate in that case “where the full play

of the democratic process involving both the legislative and executive branches

has produced a policy in the name of the public interest embodied in a statute and

implementing regulations,” id

. We also pointed out that Haitian Centers had

approved use of the serious

‐ questions standard to challenge action taken pursuant

to a “policy formulated solely by the executive branch.” Id

. Based on these

statements, Appellants contend that only the serious

‐ questions standard applies18 to challenge any action “taken pursuant to a policy formulated by one branch.”

Reply Br. for Appellants at 3 (quotation marks and brackets omitted).

We think that argument fails by endeavoring to make a requirement out of

the sentences we have quoted from Able

. The fact that legislation developed by

both branches of the federal government is entitled to a higher degree of deference

does not mean that only such action is entitled to the deference reflected in the

likelihood

‐ of

‐ success standard. The Supreme Court has said that a high degree of

deference should be accorded to actions taken solely by Congress, see United States

v. Rumely

, 345 U.S. 41, 46 (1953) (admonishing courts to “tread warily”

“[w]henever constitutional limits upon the investigative power of Congress have

to be drawn”), and we have often approved application of the more rigorous

likelihood

‐ of

‐ success standard to enjoin action taken by units of government with

far less authority than the combined force of the national Legislative and Executive

Branches. For example, w e have ruled that the more rigorous likelihood

‐ of

‐ success

standard was applicable when a preliminary injunction was sought to prohibit a

municipal agency from enforcing a regulation, see Central Rabbinical Congress of

U.S. and Canada v. New York City Dep’t of Health & Mental Hygiene

, 763 F.3d 183, 192

(2d Cir. 2014); to prohibit New York City’s Taxi & Limousine Commission from19 enforcing changes to lease rates, Metropolitan Taxicab Board of Trade v. City of New

York

, 615 F.3d 152, 156 (2d Cir. 2010); to require one branch of a state legislature to

undo its expulsion of a state senator, see Monserrate v. New York State Senate

, 599

F.3d 148, 154 (2d Cir. 2010); to prohibit a town from hiring police officers and

firefighters, see NAACP v. Town of East Haven

, 70 F.3d 219, 223 (2d Cir. 1995); to

prohibit the Metropolitan Transit Authority from implementing a staff reduction

plan, see Molloy v. Metropolitan Transportation Authority

, 94 F.3d 808, 811 (2d Cir.

1996); to prohibit the New York City Transit Authority from increasing subway

and bus fares, see New York Urban League, Inc

. v. State of New York

, 71 F.3d 1031,

1036 n.7 (2d Cir. 1995); to prohibit New York State’s Department of Social Services

from suspending a health

‒ care services provider from participating in the State’s

medical assistance program, see Plaza Health Laboratories

, 878 F.2d at 580, and to

prohibit two commissioners of New York state agencies from enforcing provisions

of state law, see Medical Society

, 560 F.2d at 538.

In dissent, Judge Livingston questions the significance of decisions such as

these on two grounds. First, she suggests that some of them lacked sufficient

analysis. See Part. Diss. Op. at 44. However, with exceptions not relevant here,

panels of this Court are bound by the holdings of prior panels, see

, e.g.

, Lotes Co. v.20 Hon Hal Precision Industry Co.

, 753 F.3d 395, 405 (2d Cir. 2014); Gelman v. Ashcroft

,

372 F.3d 495, 499 (2d Cir. 2004), and those holdings are not to be disregarded by

any claimed insufficiency of an opinion’s analysis. Second, she suggests that we

might have used the more rigorous likelihood

‐ of

‐ success standard in these cases

because of federalism concerns. See Part. Diss. Op. at 45, n.28. However, none of

the eight decisions even hints that federalism concerns influenced the use of the

likelihood

‐ of

‐ success standard.

We have not previously had occasion to consider whether enforcement of a

congressional committee’s subpoena qualifies as, or is sufficiently analogous to,

“governmental action taken in the public interest pursuant to a statutory or

regulatory scheme,” Plaza Health Laboratories

, 878 F.2d at 580, so as to preclude

application of the less rigorous serious

‐ questions standard. Facing that issue, we

conclude that those seeking to preliminarily enjoin compliance with subpoenas

issued by congressional committees exercising, as we conclude in Part II(C), their

constitutional and duly authorized power to subpoena documents in aid of both

regulatory oversight and consideration of potential legislation must satisfy the

more rigorous likelihood

‐ of

‐ success standard. Surely such committees should not

be enjoined from accomplishing their tasks under a less rigorous standard than we21 applied to plaintiffs seeking to preliminarily enjoin state and local units of

government in Central Rabbinical Congress

, Metropolitan Taxicab Board of Trade

,

Monserrate

, Town of East Haven

, Molloy

, New York Urban League

, Plaza Health Medical

Society

, discussed above. None of those cases involved implementation of a policy

ʺ developed through presumptively reasoned democratic processes ʺ and resulting

from ʺ the full play of the democratic process involving both the legislative and

executive branches, ʺ which were the elements present in Able

, 44 F.3d at 131. Yet

in all eight cases, we applied the likelihood

‐ of

‐ success standard. Indeed, in

Monserrate we applied the more rigorous standard to a plaintiff seeking to

preliminarily enjoin action taken by just one body of a state legislature. We will

therefore apply the likelihood

‐ of

‐ success standard to Appellants’ motion for a

preliminary injunction in this case.

Before leaving the issue of the applicable preliminary injunction standard,

we should reckon with the preliminary injunction standard formulated in 2008 by

the Supreme Court in Winter v. Natural Resources Defense Council, Inc.

, 555 U.S. 7,

20 (2008): “A plaintiff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in his favor, and that22 an injunction is in the public interest.” Id. at 20. This formulation incorporates both

the irreparable injury requirement and the likelihood

‐ of

‐ success requirement from

the more rigorous standard we have been using, includes from our less rigorous

serious

‐ questions standard a balance of equities (similar to hardships) that tips in

favor of the plaintiff (although not including the requirement of sufficiently

serious questions going to the merits to make them a fair ground for litigation nor

the requirement that the balance of hardships tips decidedly in the plaintiff’s favor),

and adds as a fourth requirement that the injunction is in the public interest.

It is not clear whether the Supreme Court intended courts to require these

four components of the Winter standard in all preliminary injunction cases. Winter

concerned military operations affecting the national security, testing for

submarine detection, and two of the three cases cited to support the Winter

formulation also concerned national security issues, Munaf v. Geren

, 553 U.S. 674

(2008) (transferring U.S. military prisoners in a foreign country to that country’s

government), and Weinberger v. Romero

‐ Barcelo

, 456 U.S. 305 (1982) (training the

Navy’s bomber pilots). The third case, Amoco Production Co. v. Village of Gambell

,23 480 U.S. 531 (1987), concerned a matter unrelated to national security

‒‒ drilling for

oil and natural gas. 23

In any event, two years after the Supreme Court’s decision in Winter

, our

Court explained why we did not believe that the Supreme Court had precluded

our use of the two preliminary injunction standards that we had used for five

decades. See Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund

Ltd.

, 598 F.3d 30, 35–38 (2d Cir. 2010). However, Citigroup shed no light on which

of those standards was applicable to plaintiffs seeking to preliminarily enjoin

governmental action. That case involved a motion by a brokerage firm to

preliminarily enjoin a hedge fund from pursuing an arbitration. S ee id

. at 32.

23 Uncertainty as to use of the Winter formulation for all preliminary injunctions remained

after the Supreme Court’s decision the next year in Nken v. Holder

, 556 U.S. 418 (2009). In language

similar to that used in Winter

, the Court identified the four factors applicable to the grant of a stay

pending appeal––“(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.” Id

. at 434 (quotation marks omitted). The Court

then stated that “[t]here is substantial overlap between these [four factors] and the factors

governing preliminary injunctions,” although the two are not “one and the same.” Id

. In Winter

, the first factor did not include the words “strong showing,” 555 U.S. at 20; the

second factor used the word “likely” to modify “suffer irreparable harm, id. ; the third factor was

“the balance of equities tips in [the plaintiff’s] favor,” id .; and the fourth factor was that an

injunction “is in the public interest,” id. Unlike Winter

, which had set out four factors that an

applicant for a preliminary injunction “must establish,” id.

, Nken said that the applicable legal

principles “have been distilled into consideration of four factors.” 556 U.S. at 434 (emphasis added).24 Although we have concluded that the likelihood

‐ of

‐ success standard

applies in this case and have determined that Appellants have established

irreparable injury, a requirement common to both of our preliminary injunction

standards and the Supreme Court’s Winter formulation, we will proceed to

consider not only whether Appellants have met the governing likelihood

‐ of

‐

success standard but also whether they have satisfied the other requirements in

one or more of these three standards: sufficiently serious questions going to the

merits of their claims to make them fair ground for litigation, a balance of

hardships tipping decidedly in their favor, and the public interest favoring an

injunction. We turn first to the merits of their statutory and constitutional claims

in order to determine what we regard as the critical issue: likelihood of success.

II. Likelihood of Success

A. Statutory Claim––RFPA

Appellants contend that the subpoenas are invalid for failure of the

Committees to comply with the Right to Financial Privacy Act (“RFPA” or “Act”),

12 U.S.C. §§ 3401

‒ 3423. RFPA prohibits a financial institution’s disclosure of a

customer’s financial records to “any Government authority” except in accordance

with the Act’s procedural requirements. § 3403(a). The Committees acknowledge25 noncompliance with those requirements, but contend that RFPA does not apply to

them because they are not a “Government authority” within the meaning of

section 3403(a). Because the Act defines “Government authority” to mean “any

agency or department of the United States, or any officer, employee, or agent

thereof,” § 3401(3), the precise statutory issue is whether Congress or one of its

committees is an “agency or department of the United States.”

We begin with the plain meaning of “agency or department” at the time

RFPA was enacted in 1978. Appellants do not argue that “agency” could possibly

refer to Congress; the sole dispute is over the word “department.” Appellants

contend that “department” is used in RFPA to mean any of the three branches of

government. The Committees, on the other hand, contend that the word is used to

mean some component of the Executive Branch.

Contemporary dictionaries support the Committees’ interpretation. See

Webster’s Third New International Dictionary (1971) (defining “department” as

“an administrative division or branch of a national or municipal government”)

(emphasis added); Black’s Law Dictionary (5th ed. 1979) (defining “department”

as “[o]ne of the major administrative divisions of the executive branch of the26 government usually headed by an officer of cabinet rank; e.g.

, Department of

State”) (emphasis added).

Moreover, other contextual clues in RFPA indicate that neither Congress nor

its committees are an “agency or department of the United States” within the

meaning of RFPA, and therefore Congress did not subject itself or its committees

to the Act. Section 3408 permits a “Government authority” to request financial

records “pursuant to a formal written request only if

. . . the request is authorized

by regulations promulgated by the head of the agency or department.” § 3408(2).

Congress does not promulgate regulations, and its leadership and that of its

committees are not considered the “head” of an “agency or department.” The

Supreme Court has stated that “[t]he term ‘head of a Department’ means

. . . the

Secretary in charge of a great division of the [E]xecutive [B]ranch of the

government, like the State, Treasury, and War, who is a member of the Cabinet.”

Burnap v. United States

, 252 U.S. 512, 515 (1920); accord Freytag v. Commissioner of

Internal Revenue

, 501 U.S. 868, 886 (1991).27 The several mechanisms for obtaining financial records all require that the

records sought are “relevant to a legitimate law enforcement inquiry,” 24 § 3405(1)

(administrative summons or subpoena), § 3407(1) (judicial subpoena), § 3408(3)

(formal written request), but, as Appellants correctly point out and the

Committees agree, Congress cannot exercise “any of the powers of law

enforcement” because “those powers are assigned under our Constitution to the

Executive and the Judiciary,” Quinn v. United States

, 349 U.S. 155, 161 (1955).

RFPA directs the Office of Personnel Management (“OPM”) to determine

whether “disciplinary action is warranted against [an] agent or employee” of “any

agency or department” found to have willfully violated the Act. § 3417(b).

However, OPM is “the lead personnel agency for civilian employees in the

[E]xecutive [B]ranch.” United States Dep’t of Air Force v. Federal Labor Relations

Authority

, 952 F.2d 446, 448 (D.C. Cir. 1991). It is highly unlikely that Congress

would have directed OPM to take disciplinary action against congressional staff.

RFPA provides civil penalties, including punitive damages, for any “agency

or department” that violates the Act’s requirements. § 3417(a). It is also highly

24 RFPA defines “law enforcement inquiry” as “a lawful investigation or official

proceeding inquiring into a violation of, or failure to comply with, any criminal or civil statute or

any regulation, rule, or order issued pursuant thereto.” 12 U.S.C. § 3401(8).28 unlikely that Congress would have subjected itself to such penalties, especially in

the absence of a clear indication of an intent to do so.

Although no one of these provisions alone conclusively establishes that

RFPA does not apply to Congress, in the aggregate they provide persuasive textual

support for that reading of the Act. This conclusion is strongly reinforced by the

Act’s legislative history. A draft bill submitted by the Departments of Justice and

the Treasury would have explicitly covered access to financial records by

Congress, and distinguished Congress from “any agency or department of the

United States.” 25

25 Electronic Funds Transfer & Financial Privacy: Hearings on S. 2096, S. 2293, & S. 1460 Before

the Subcomm. on Financial Institutions of the S. Comm. on Banking, Housing, & Urban Affairs

, 95th

Cong. 397 (1978) (hereinafter “ Hearings ”).

Hearings includes a draft bill, dated May 17, 1978, and referred to as “Title XI—Right to

Financial Privacy,” which is identified by a note stating, “This Draft represents the combined

views of the Departments of Justice and the Treasury, subject to further revision.” Hearings at 397

n.*. The definition section of that bill provides:

“‘[G]overnment authority’ means the Congress of the United States

, or any agency or

department of the United States or of a State or political subdivision, or any officer,

employee or agent of any of the foregoing.”

Hearings at 397 (emphasis added) (explaining definitional provision, § 1101(3)). This provision

not only explicitly made the bill applicable to Congress, but it also reflected the view of Justice

and the Treasury that “agency or department of the United States” did not include Congress.

Hearings also contains a section

‐ by

‐ section analysis of the Justice

‐ Treasury draft bill

submitted on May 17, 1978. See Hearings at 365 & n.*. That analysis includes the following

explanation of the coverage of the draft bill:

“The ‘government authorities’ whose actions are restricted by the bill include any

agency or department of the United States or any State or political subdivision, or

any of their officers, employees, or agents. The Congress is also covered

, since it may

use financial records in its investigations to which the same privacy rights should

adhere.”29 The rejection of this provision of the Justice

‐ Treasury proposal by omitting

Congress from the enacted definition of “government authority” is strong

evidence of a deliberate decision by Congress not to apply the Act to itself.

Although the failure of Congress to enact is often an unreliable indication of

congressional intent, see Brecht v. Abrahamson

, 507 U.S. 619, 632 (1993) (“As a

general matter, we are reluctant to draw inferences from Congress’ failure to act.”)

(quotation marks omitted), the omission of pertinent language from a bill being

considered by Congress is far more probative of such intent, especially when the

omission is from a draft bill submitted by the Department of Justice, a principal

source of proposed legislation.

Hearings at 366 (emphasis added) (explaining definitional provision).

As explained by then

‐ Deputy Attorney General Benjamin R. Civiletti, “[O]ur

proposal would extend these important procedures and privacy rights to cover

investigations by the Legislative as well as the Executive Branch.” Hearings at 189, 194.

Hearings also includes an analysis prepared by the Congressional Research Service

of the Library of Congress, comparing what is called “Draft Proposed by Justice Dept.”

with S. 14 and S. 2096. Hearings at 161. That analysis points out that the scope of the Justice

Department draft protects financial records from unauthorized access “by Congress,

Federal or State agents and agencies,” whereas S. 14 and S. 2096 protect such records from

unauthorized access “by Federal agents or agencies.” Id

. The draft Justice

‐ Treasury bill, along with its section

‐ by

‐ section analysis, are also

in the record of a hearing held by a House of Representatives subcommittee the following

week, where Civiletti gave similar testimony. See Right to Privacy Proposals of the Privacy

Protection Study Commission: Hearings on H.R. 10076 Before the Subcomm. on Government

Information & Individual Rights of the H. Comm. on Government Operations

, 95th Cong. 256,

274 (1978).30 Appellants present two arguments that Congress and its committees are

covered by RFPA’s definitional phrase “agency or department.” First, they point

out that in 1955 the Supreme Court ruled a false statement made by a former

member of Congress to the Disbursing Office of the House of Representatives was

a violation of 18 U.S.C. § 1001 because “department,” as used in section 1001, “was

meant to describe the executive, legislative and judicial branches of the

Government.” United States v. Bramblett

, 348 U.S. 503, 509 (1955) (emphasis added).

The Committees respond that an interpretation of “department” in section

1001 is not an authoritative basis for interpreting “department” in RFPA and that

the Supreme Court overruled Bramblett in Hubbard v. United States

, 514 U.S. 695,

715 (1995), after characterizing its reading of “department” as “ seriously flawed,”

id

. at 702. To this latter point, Appellants point out that courts “assume that

Congress is aware of existing law when it passes legislation,” Miles v. Apex Marine

Corp

., 498 U.S. 19, 32 (1990), and “was aware of

. . . the judicial background against

which it was legislating,” DeKalb County Pension Fund v. Transocean Ltd

., 817 F.3d

393, 409

‒ 10 (2d Cir. 2016) (“ DeKalb ”) (brackets and quotation marks omitted), and

that the Congress that enacted RFPA in 1978 is assumed to be aware of Bramblett

and obviously did not legislate in light of Hubbard

, decided in 1995.31 We acknowledge the assumption that Congress legislates with awareness of

“existing law,” Miles

, 498 U.S. at 32, and the relevant “judicial background,”

DeKalb

, 817 F.3d at 409. The validity of that assumption, however, depends in large

part on the context in which it is invoked. Miles applied the assumption

interpreting the damages provision of the Jones Act, 46 U.S.C. app. § 688. Noting

that the Jones Act incorporated the recovery provisions of the older Federal

Employers’ Liability Act (“FELA”), the Supreme Court was willing to assume that

Congress likely intended to adopt for the Jones Act the judicial gloss that the Court

had placed on the damages provision of FELA, limiting it to pecuniary loss. See

Miles

, 498 U.S. at 32. “ When Congress passed the Jones Act, the [Court’s] gloss on

FELA, and the hoary tradition behind it, were well established. Incorporating

FELA unaltered into the Jones Act, Congress must have intended to incorporate

the pecuniary limitation on damages as well.” Id

.

DeKalb applied the assumption more elaborately in determining which

statute of repose applied to a suit under section 14(a) of the Securities Exchange

Act of 1934, 15 U.S.C. § 78n(a). We had previously applied a three

‐ year limitations

period in Ceres Partners v. GEL Associates

, 918 F.2d 349 (2d Cir. 1990). Thereafter,

Congress enacted the Sarbanes

‐ Oxley Act of 2002, extending to five years the32 limitations period for some implied private causes of action, but not the sort of

action implied by section 14(a). See DeKalb

, 817 F.3d at 398. We concluded:

Congress must have known that, by extending only the statute of

repose applicable to private rights of action that involve a claim of

fraud, deceit, manipulation, or contrivance, the statutes of repose

applicable to Section 14(a) would remain intact. And from this

knowledge, we conclude that Congress affirmatively intended to

preserve them. We therefore hold that the same three

‐ year statutes of

repose that we applied to Section 14 in Ceres

. . . still apply to Section

14(a) today.

Id

. at 409

‒ 10 (quotation marks, brackets, and footnotes omitted).

We encounter no circumstances comparable to Miles or DeKalb in the

pending appeal. Whatever force might be given to the assumption that Congress

enacted RFPA with awareness of Bramblett is thoroughly undermined by the clear

indicators to the contrary from the text and legislative history we have recounted. 26

The second argument of Appellants reminds us that in an earlier time, the

word “department” was famously used to refer to what is now called a “branch”

of the federal government. “It is emphatically the province and duty of the judicial

department to say what the law is.” Marbury v. Madison

, 5 U.S. (1 Cranch) 137, 177

26 Even if Congress had Bramblett in mind, that decision based its interpretation of

“department” on the “development, scope and purpose of” the statute at issue in that case. 348

U.S. at 509. RFPA does not share any of the same historical development as section 1001, and

because the Court’s decision was not based on the text of that section, there is no reason to think

that Congress, when enacting RFPA, believed that Bramblett ’s interpretation would extend to

other uses of the word “department.”33 (1803) (Little, Brown & Co. 1855); 27 see also James Madison, Speech in the First

Congress (June 17, 1789), in 5 The Writings of James Madison 395, 398 (Gaillard Hunt

ed., 1904) (referring to the “three great departments of Government”). Hubbard

,

although not known to the Congress enacting RFPA, provides important guidance

for us when the Supreme Court states that “while we have occasionally spoken of

the three branches of our Government, including the Judiciary, as ‘departments,’”

Hubbard

, 514 U.S. at 699 (brackets omitted) (citing Mississippi v. Johnson, 71 U.S. (4

Wall.) 475, 500 (1867))

, “that locution is not an ordinary one. Far more common is

the use of ‘department’ to refer to a component of the Executive Branch,” id

.

Considering all of the parties’ arguments, 28 we conclude that RFPA does not

apply to Congress.

27 I include the publisher in citations to decisions in the nominative reports because of

slight variations among the versions of 19th century publishers. See Jon O. Newman, Citators

Beware: Stylistic Variations in Different Publishers’ Versions of Early Supreme Court Opinions

, 26 J. Sup.

Ct. Hist. 1 (2001).

28 Each side makes opposing arguments based on section 3412(d) of RFPA, which

provides: “Nothing in this chapter shall authorize the withholding of information by any officer

or employee of a supervisory agency [defined at section 3401(7)] from a duly authorized

committee or subcommittee of the Congress.” Appellants contend that “[i]f congressional

subpoenas were never intended to come within the statute’s scope, there would be no reason to

include this provision.” Br. for Appellants at 42. The Committees respond that this provision

concerns transfers of documents pursuant to section 3412(a), that it makes clear that the

requirements applicable when an agency or department obtains documents from a financial

institution also apply to transfers to another agency or department, and that “Congress

emphasized, however, that these transfer provisions—like RFPA’s other requirements—did not

apply to Congress.” Br. for Committees at 53.34 B. Statutory Claim––26 U.S.C. § 6103

The request for tax returns of named individuals and entities in the

Deutsche Bank Subpoenas encounters a possible statutory claim under 26 U.S.C.

§ 6103. See Deutsche Bank Subpoenas ¶ 1(vi)(e)(7), J. App’x 39. Because of that

request and because the parties had not said anything about tax returns in their

briefs, we asked the Banks at oral argument whether they had in their possession

tax returns within the coverage of the subpoenas. The Banks offered reasons why

they could not then respond to the question.

On August 26, we ordered the Banks to inform the Court whether either one

has in its possession any tax returns of the individuals or entities named in

paragraph 1 of the subpoenas received from the Committees. 29 On August 27,

Each side also makes opposing arguments based on section 3413(j) of RFPA, which

provides: “This chapter shall not apply when financial records are sought by the Government

Accountability Office [‘GAO’] pursuant to an authorized proceeding, investigation, examination

or audit directed at a government authority.” Appellants contend that, because GAO is within

the Legislative Branch, “if

. . . RFPA is limited to the [E]xecutive [B]ranch, then there was no need

to provide any exemption for the GAO.” Br. for Appellants at 43. The Committees respond that

this provision “differentiates GAO from ‘a government authority’ and thus supports the opposite

conclusion: GAO may obtain financial records in its proceedings or investigations that are

‘ directed at a government authority.’” Br. for Committees at 53 n.24 (emphasis in original).

We deem none of these arguments persuasive, especially in light of the textual and

legislative history support for our conclusion, explained above, that RFPA does not apply to

Congress.

29 No. 19

‒ 1540, Dkt. No. 156 (Aug. 26, 2019). On August 27, we entered an Order informing

the Banks that if they filed an unredacted letter under seal, a redacted version of the letter served

on the Committees should be served on Appellants and filed on the public docket. Id.

, Dkt. No.

157 (Aug. 27, 2019).35 Deutsche Bank submitted a redacted letter stating that it has in its possession some

tax returns responsive to the subpoenas, with the names of the taxpayers

redacted, 30 and submitted under seal an unredacted letter identifying the

taxpayers. 31 On the same day, Capital One submitted a letter stating that it did not

possess any tax returns responsive to the subpoena it received. 32

Deutsche Bank’s filing of an unredacted letter under seal precipitated

motions by various news organizations for leave to intervene and to seek

unsealing of the unredacted letter. 33 On Sept. 18, we ordered the parties to respond

to those motions. 34 On Sept. 27, the parties filed their responses. 35 On Oct. 4, the

Media Coalition filed a reply memorandum. 36 On Oct. 10, we granted the motions

to intervene and denied the motions to unseal. See Trump v. Deutsche Bank

, No. 19

‒

1540, 2019 WL 5075948 (2d Cir. Oct. 10, 2019).

Also at oral argument, we asked the Committees whether their subpoenas

were in compliance with 26 U.S.C. § 6103(f), which imposes some limits on

30 Id.

, Dkt. No. 161 (Aug. 27, 2019).

31 See Letter from Raphael A. Prober, counsel for Deutsche Bank, to Clerk of Court, Second

Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 160 (Aug. 27, 2019).

32 See Letter from James A. Murphy, counsel for Capital One, to Clerk of Court, Second

Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 165 (Aug. 27, 2019).

33 No. 19

‒ 1540, Dkt. Nos. 168 (Sept. 11, 2019), 181 (Sept. 18, 2019).

34 Id.

, Dkt. No. 180 (Sept. 18, 2019).

35 Id.

, Dkt. Nos. 184, 186, 188, 190 (Sept. 27, 2019).

36 Id.

, Dkt. No. 193 (Oct. 4, 2019).36 disclosure of tax returns. The Committees partially responded and offered to

submit a fuller explanation by letter. On August 27, the Committees submitted a

letter stating that the application of section 6103 depends on how the Banks

obtained the returns. 37 On August 29, Appellants submitted a letter stating, among

other things, that the Committees have no authority to request the tax returns. 38

Section 6103(a) of the Internal Revenue Code provides: “ (a) General rule.

—

Returns and return information shall be confidential

. . . .” Sections 6103(c)

‒ (o)

provide several exceptions to the general requirement of confidentiality.

Subsection 6103(f)(3) makes a specific exception for committees of Congress. It

provides:

“ (3) Other committees. —Pursuant to an action by, and upon

written request by the chairman of, a committee of the Senate or the

House of Representatives (other than a committee specified in

paragraph (1)) specially authorized to inspect any return or return

information by a resolution of the Senate or the House of

Representatives

. . . the Secretary shall furnish such committee, or a

duly authorized and designated subcommittee thereof, sitting in

closed executive session, with any return or return information which

such resolution authorizes the committee or subcommittee to inspect.

Any resolution described in this paragraph shall specify the purpose

for which the return or return information is to be furnished and that

37 See Letter from Douglas N. Letter, General Counsel, U.S. House of Representatives, to

Clerk of Court, Second Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 158 (Aug. 27, 2019).

38 See Letter from Patrick Strawbridge, counsel for President Donald J. Trump, to Clerk of

Court, Second Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 166 (Aug. 29, 2019).37 such information cannot reasonably be obtained from any other

source.”

26 U.S.C. § 6103(f)(3). 39

Thus, Congress has protected the confidentiality of income tax returns,

subject to several exceptions, and specified how such returns may be obtained by

a committee of Congress.

Appellants contend that disclosure is prohibited (or, as they phrase it, that

the Committees “have no jurisdiction to request tax returns” 40 ) because the

requirements of the subsection have not been met. They point out that the House

has not passed a resolution specifically authorizing the Committees to inspect tax

returns, specifying the purpose for which the returns are sought, or specifying that

the information cannot reasonably be obtained from other sources. They also

suggest that we need not resolve the issue now, but should leave it for resolution

on remand.

Because the Deutsche Bank Subpoenas require production of tax returns

and the motion for a preliminary injunction to prohibit compliance has been

39 The committees specified in paragraph (1) of section 6103(f) are the House Committee

on Ways and Means, the Senate Committee on Finance, and the Joint Committee on Taxation.

§ 6103(f)(1). The Code defines “Secretary” as “the Secretary of the Treasury or his delegate.”

§ 7701(a)(11)(B).

40 See Letter from Patrick Strawbridge, counsel for President Donald J. Trump, to Clerk of

Court, Second Circuit Court of Appeals at 2, No. 19

‒ 1540, Dkt. No. 166 (Aug. 29, 2019).38 denied by the District Court, the absence of a ruling on production of the returns

risks their disclosure to the Committees. We therefore believe that some ruling

must be made.

The Committees do not dispute that they have not met the requirements of

section 6103(f), but they contend that the provision does not apply to any tax

returns in the possession of Deutsche Bank unless the bank obtained them from

the IRS.

The text of section 6103 does not unambiguously resolve the dispute. In

addition to citing the requirements of section 6103(f), Appellants rely on section

6103(a). It states that tax returns “shall be confidential,” and that “except as

authorized by [the Internal Revenue Code]” no person within three specified

categories “shall disclose any return

. . . obtained by him

. . . in connection with his

service” within any of the three categories. These include employees of the United

States, employees of a state or various local agencies, and those who obtained

access to a return pursuant to various subsections of section 6103(a). § 6103(a)(1)

‒

(3).

If the introductory clause of section 6103(a) is a blanket protection of the

confidentiality of tax returns, then it prohibits disclosure of the returns in the39 possession of Deutsche Bank. But if that clause is to be read in conjunction with

the rest of section 6103(a), then the clause means only that the returns are protected

from disclosure by anyone within the three categories, and it does not prohibit

disclosure in the pending appeal because Deutsche Bank is not within any of those

categories. Arguably limiting the coverage of section 6103(a) is section 6103(b). It

defines “return” “[f]or purposes of this section” as a return “which is filed with

the Secretary.” § 6103(b)(1). That provision could mean either the document or

digital file in the possession of the Secretary (including the IRS), which Deutsche

Bank does not have, or a copy of a paper or digitized return that has been

submitted to the Secretary, which Deutsche Bank does have.

Another provision of section 6103 also creates ambiguity as to its meaning.

Section 6103(f) states that a congressional committee may obtain a tax return “from

the Secretary” pursuant to a House resolution meeting specified requirements, as

set forth above. This provision could mean either that the only way a committee

may obtain a tax return is to seek it from the Secretary and comply with the

requirements of section 6103(f), or it could mean that those requirements apply

only when a committee seeks a return from the Secretary and do not apply when

a committee seeks a return from anyone else, such as Deutsche Bank.40 Case law on these possible interpretations has evoked various rulings and

statements. The Seventh Circuit has ruled that the introductory clause of section

6103(a) is not a blanket protection of confidentiality, but protects only against

disclosure by those described in subsections 6103(a)(1)

‒ (3). Hrubec v. National

Railroad Passenger Corp.

, 49 F.3d 1269 (7th Cir. 1995). “The ban on disclosure

appears in the last, dangling, unnumbered portion of § 6103(a)

, not in the

introductory phrase, and the ban is linked to the scope of identified subsections.”

Id

. at 1270–71. Hrubec found no violation of section 6103 by Amtrak employees

who obtained copies of other employees’ tax returns from the IRS, but not as a

result of a request covered by any of the categories identified in section 6103(a). 41

The Ninth Circuit has also given a narrow interpretation to section 6103. In

Stokwitz v. United States

, 831 F.2d 893 (9th Cir. 1987), it ruled that “Section 6103

establishes a comprehensive scheme for controlling the release by the IRS of

information received from taxpayers to discrete identified parties.” Id

. at 895

(emphasis in original); accord Lomont v. O’Neill

, 285 F.3d 9, 14

‒ 15 (D.C. Cir. 2002);

Baskin v. United States

, 135 F.3d 338, 342 (5th Cir. 1998); Ryan v. United States

, 74

F.3d 1161, 1163 (11th Cir. 1996). Stokwitz found no violation of section 6103 where

41 The returns had been obtained by someone’s forgery of an application for them. See

Hrubec v. National Railroad Passenger Corp., 778 F. Supp. 1431, 1433 (N.D. Ill. 1991).41 employees of the United States Navy seized from a taxpayer’s files copies of tax

returns, even though the employees were covered by subsection 6103(a)(1). The

Court relied on the definition of “tax return” in section 6103(b), see id

. at 895–96

(“[T]he statutory definitions of ‘return’ and ‘return information’ to which the

entire statute relates, confine the statute’s coverage to information that is passed

through the IRS.”), and noted that implementing “Treasury regulations

. . . are

exclusively concerned with disclosure by the IRS,” id. at 896 (citing Treas. Regs.

§§ 301.6103(a)

‐ 1 to (p)(7)

‐ 1 (1986))

.

Other courts have expressed different views. In National Treasury Employees

Union v. Federal Labor Relations Authority

, 791 F.2d 183 (D.C. Cir. 1986), the D.C.

Circuit referred to section 6103(a) as a “general rule that ‘returns and return

information shall be confidential.’” Id

. at 183 (brackets omitted) (quoting

§ 6103(a)). The Court’s main point, however, was that the disclosure, which had

been made by IRS employees, had not been made in compliance with subsection

6103(l)(4)(A), and even that point, as well as the “general rule” statement, were

dicta because the Court’s holding was that the employees should not have been

disciplined.42 A district court in our Circuit has stated that a board licensing plumbers

violated section 6103 by making disclosure of a license applicant’s tax forms a

condition of obtaining a license. See Russell v. Board of Plumbing Examiners

, 74 F.

Supp. 2d 339 (S.D.N.Y. 1999) (“The Board being unable to get the copies directly

from the Treasury should not be permitted to do so indirectly by coercion

. . . .”),

aff’d

, 1 F. App’x 38 (2d Cir. 2001). The District Court’s view, however, was at most

an alternate holding on an issue that the Court acknowledged had not been

briefed, see id

. at 348, and our affirmance in a non

‐ precedential summary order

made no reference to the issue, which had not been asserted as a ground for

review, see Br. & Reply Br. for Appellants, Russell v. Board of Plumbing Examiners

, 1

F. App’x 38 (2d Cir. 2001) (No. 99

‐ 9532).

We agree with the Seventh Circuit that section 6103(a) limits its prohibition

against disclosure of tax returns to returns requested from the three categories of

persons identified in subsections 6103(a)(1)–(3). There remains the possibility,

however, that subsection 6103(f)(3), applicable to requests for tax returns by

congressional committees other than those concerned explicitly with taxes,

provides the exclusive means for such committees to obtain returns. The text of

subsection 6103(f)(3) refers to committee requests “to the Secretary.” We agree43 with the Ninth Circuit that the plain language of the provision reflects Congress’s

purpose in enacting section 6103, which “was to curtail loose disclosure practices

by the IRS.” Stokwitz

, 831 F.2d at 894. Because there is no claim by Appellants that

Deutsche Bank obtained from the IRS any returns requested by the Committees,

neither subsection 6103(f)(3), nor section 6103 as a whole, precludes their

production to the Committees.

Appellants also contend that production of tax returns is prohibited by the

RFPA and the Gramm

‐ Leach

‐ Bliley Act, Pub. L. No. 106

‐ 102, 113 Stat. 1338 (1999)

.

As we have ruled, however, RFPA does not apply to Congress. Gramm

‐ Leach

‐

Bliley is also no bar to production of tax returns because it explicitly permits

disclosure of personal information “to comply with a

. . . subpoena

. . . by Federal

. . . authorities.” 15 U.S.C. § 6802(e)(8).

With respect to tax returns, the oral argument of this appeal precipitated

further procedural developments, detailed in Trump v. Deutsche Bank

, No. 19

‒ 1540,

2019 WL 5075948 (2d Cir. Oct. 10, 2019) (order granting news organizations’

motions to intervene and denying their motions to unseal). Ultimately, Deutsche44 Bank informed us in an August 27, 2019, letter 42 that it had two tax returns within

the coverage of the Committees’ subpoenas and submitted the names of the two

taxpayers under seal.

If any tax returns in the possession of Deutsche Bank were those of the Lead

Plaintiff, we would have to consider whether their production to the Committees

might encounter the objection that it would distract the Chief Executive in the

performance of official duties. That issue need not be resolved, however, because

Deutsche Bank informed us, in its response to the motions of news organizations

to unseal Deutsche Bank’s letter of August 27, that the only tax returns in its

possession within the coverage of the subpoenas are not those of the Lead Plaintiff.

Disclosure of tax returns in the possession of Deutsche Bank in response to

the Committees’ subpoenas will not violate section 6103, and the fact that, when

requested by news organizations, we did not unseal the names of the taxpayers

whose returns are in the possession of Deutsche Bank is not a reason to exclude

those returns from Deutsche Bank’s compliance with the subpoenas.

42 See Letter from Letter from Raphael A. Prober to Clerk of Court, Second Circuit Court

of Appeals, No. 19

‒ 1540, Dkt. No. 161 (redacted version) (Aug. 27, 2019); id

., Dkt. No. 165

(unredacted version filed under seal) (Aug. 27, 2019).45 C. Constitutional Claim

Appellants’ constitutional claim does not assert any constitutionally based

privilege that might protect their financial records from production by the Banks

to the Committees, such as the privileges secured in the Bill of Rights. See Watkins

,

354 U.S. at 198 (recognizing “the restraints of the Bill of Rights upon congressional

investigations”). Instead, Appellants contend that the Constitution places limits

on the power of Congress to investigate, that the Committees’ subpoenas to the

Banks exceed those limits, and that they have a right to prevent disclosure of

documents in response to subpoenas beyond Congress’s power of investigation.

The subpoenas are surely broad in scope. Illustrating the scope, Appellants

specifically call our attention to the following requests in the Committees’

subpoenas to Deutsche Bank for the following:

“any document related to account applications, opening

documents, KYC [know your customer], due diligence, and closing

documents”;

“any monthly or other periodic account statement”;

“any document related to any domestic or international

transfer of funds in the amount of $10,000 or more”;

“any summary or analysis of domestic or international account

deposits, withdrawals, and transfers”;

“any document related to monitoring for, identifying, or

evaluating possible suspicious activity”;46 “any document related to any investment, bond offering, line

of credit, loan, mortgage, syndication, credit or loan restructuring, or

any other credit arrangement.”

Deutsche Bank Subpoenas ¶¶ 1(i)

‒ (vi), J. App’x 37

‒ 38.

The documents sought are those of the Lead Plaintiff and his three oldest

children, and “members of their immediate family,” defined to include child,

daughter

‐ in

‐ law, and son

‐ in

‐ law, among others, and a number of entities affiliated

with the Lead Plaintiff and the Trump Organization. Id. at 37 ¶ 1, 47 ¶ 5. The

documents concern financial transactions of the named individuals and their

affiliated entities. The time frame for which most of the documents are sought is

July 19, 2016, to the present for the Capital One subpoena and January 1, 2010, to

the present for the Deutsche Bank subpoenas, but there is no time limit for two

categories of documents sought by all three subpoenas. See id

. at 37, intro., 52,

intro. These categories include documents related to account openings, the names

of those with interests in identified accounts, and financial ties between the named

individuals and entities and any foreign individual, entity, or government. See id

.

at 37 ¶ 1(i), 41

‒ 42 ¶ 6(i), 52 ¶¶ 1(i), (ii).

Constitutional investigative authority of Congress. An important line of

Supreme Court decisions, usually tracing back to McGrain v. Daugherty

, 273 U.S.47 135 (1927), has recognized a broad power of Congress and its committees to obtain

information in aid of its legislative authority under Article I of the Constitution.

See Eastland v. United States Servicemen’s Fund

, 421 U.S. 491, 504 (1975); Barenblatt

,

360 U.S. at 111; Watkins

, 354 U.S. at 187; Quinn

, 349 U.S. at 160; Sinclair v. United

States

, 279 U.S. 263, 297 (1929), overruled on other grounds by United States v. Gaudin

,

515 U.S. 506, 519 (1995). “[T]he power of inquiry—with process to enforce it—is an

essential and appropriate auxiliary to the legislative function.” McGrain

, 273 U.S.

at 174. “The scope of the power of inquiry, in short, is as penetrating and far

‐

reaching as the potential power to enact and appropriate under the Constitution.”

Barenblatt

, 360 U.S. at 111. “[T]he power to investigate is inherent in the power to

make laws because ‘a legislative body cannot legislate wisely or effectively in the

absence of information respecting the conditions which the legislation is intended

to affect or change.’” Eastland

, 421 U.S. at 504 (brackets omitted) (quoting McGrain

,

273 U.S. at 175). “The power of the Congress to conduct investigations

. . .

encompasses inquiries concerning the administration of existing laws as well as

proposed or possibly needed statutes.” Watkins

, 354 U.S. at 187. 43

43 Courts have recognized an additional, though less clearly delineated, source of

Congress’s investigative authority, namely, Congress’s “informing function.” The Supreme

Court has explained that although Congress cannot “expose for the sake of exposure,” it has the

power “to inquire into and publicize corruption, maladministration or inefficiency in agencies of48 As the Committees recognize, however, Congress’s constitutional power to

investigate is not unlimited. The Supreme Court has identified several limitations.

One concerns intrusion into the authority of the other branches of the government.

In Kilbourn v. Thompson

, 103 U.S. 168 (1880), which the Supreme Court has

identified as the first case in which the Court considered a challenge to “the use of

compulsory process as a legislative device,” Watkins

, 354 U.S. at 193, the Court

ruled that Congress’s power to compel testimony was unconstitutionally used

because the House of Representatives had “assumed a power which could only be

properly exercised by another branch of the government,” in that case, the Judicial

Branch, Kilbourn

, 103 U.S. at 192. 44

In Quinn

, the Supreme Court identified other limits. The power to

investigate “must not be confused with any of the powers of law enforcement.”

the Government” in order to inform the public “concerning the workings of its government.”

Watkins

, 354 U.S. at 200 & n.33; see Rumely

, 345 U.S. at 43 (“‘It is the proper duty of a representative

body to look diligently into every affair of government and to talk much about what it sees.

. . . The informing function of Congress should be preferred even to its legislative function.’”)

(quoting Woodrow Wilson, Congressional Government: A Study in American Politics 303 (1913)). We

need not consider this potential source of investigative authority because we conclude that the

Committees issued the subpoenas to advance valid legislative purposes.

44 Kilbourn had been imprisoned by the sergeant

‐ at

‐ arms of the House of Representatives

for contempt by refusing to respond to a House committee’s inquiries concerning matters that

were then pending in a federal bankruptcy court. As the Supreme Court later explained in

McGrain

, the bankruptcy was a matter “in respect to which no valid legislation could be had”

because the case was “still pending in the bankruptcy court” and “the United States and other

creditors were free to press their claims in that proceeding.” 273 U.S. at 171.49 349 U.S. at 161. “Nor does it extend to an area in which Congress is forbidden to

legislate.” Id

. “Still further limitations on the power to investigate are found in the

specific individual guarantees of the Bill of Rights

. . . .” Id. And, most pertinent to

the pending appeal, the power to investigate “cannot be used to inquire into

private affairs unrelated to a valid legislative purpose.” Id

.

The principal argument of Appellants is that compliance with the

Committees’ subpoenas should be preliminarily enjoined because the subpoenas

seek information concerning their private affairs. Unquestionably, disclosure of

the financial records sought by the Committees will subject Appellants’ private

business affairs to the Committees’ scrutiny. However, inquiry into private affairs

is not always beyond the investigative power of Congress. In Quinn

, the Court was

careful to state that the power to investigate “cannot be used to inquire into private

affairs unrelated to a valid legislative purpose .” Id

. (emphasis added). In Barenblatt

,

the Court stated a similar qualification: “Congress may not constitutionally

require an individual to disclose

. . . private affairs except in relation to [a valid

legislative] purpose.” 360 U.S. at 127.

So, although the Court had made clear before Barenblatt that there is “no

congressional power to expose for the sake of exposure,” Watkins

, 354 U.S. at 200,50 it has also stated that inquiry into private affairs is permitted as long as the inquiry

is related “to a valid legislative purpose,” Quinn

, 349 U.S. at 161; see Barenblatt

, 360

U.S. at 127. This potential tension between a permissible legislative purpose and

an impermissible inquiry for the sake of exposure requires consideration of the

role of motive and purpose in assessing the validity of a congressional inquiry.

The Supreme Court has spoken clearly as to motive with respect to a

congressional inquiry. Referring to congressional committee members

questioning a witness, the Court said, “[T]heir motives alone would not vitiate an

investigation which had been instituted by a House of Congress if that assembly’s

legislative purpose is being served .” Watkins

, 354 U.S. at 200 (emphasis added). 45

45 Watkins cites, 354 U.S. at 200 n.34, among other cases, Eisler v. United States

, 170 F.2d 273

(D.C. Cir. 1948), in which the D.C. Circuit stated, “[D]efense counsel sought to introduce evidence

to show that the Committee’s real purpose in summoning appellant was to harass and punish

him for his political beliefs and that the Committee acted for ulterior motives not within the scope

of its or Congress’ powers. The lower court properly refused to admit such evidence, on the

ground that the court had no authority to scrutinize the motives of Congress or one of its

committees.” Id

. at 278–79 (quotation marks and ellipsis omitted).

In Tenney v. Brandhove

, 341 U.S. 367 (1951), the Supreme Court provided this caution to

courts asked to consider legislators’ motives: “ In times of political passion, dishonest or vindictive

motives are readily attributed to legislative conduct and as readily believed. Courts are not the

place for such controversies. Self

‐ discipline and the voters must be the ultimate reliance for

discouraging or correcting such abuses. The courts should not go beyond the narrow confines of

determining that a committee’s inquiry may fairly be deemed within its province.” Id. at 378

(footnote omitted)

.51 More than 50 years ago, the Supreme Court candidly recognized the

difficulty a court faces in considering how a legislative purpose is to be assessed

when a privacy interest is asserted to prevent a legislative inquiry:

“Accommodation of the congressional need for particular

information with the individual and personal interest in privacy is an

arduous and delicate task for any court. We do not underestimate the

difficulties that would attend such an undertaking.”

Id

. at 198.

Requirement of identifying legislative purpose

. The first task for courts

undertaking this “accommodation” is identification of the legislative purpose to

which a congressional investigation is asserted to be related.

“It is manifest that despite the adverse effects which follow upon

compelled disclosure of private matters, not all such inquiries are

barred. Kilbourn v. Thompson teaches that such an investigation into

individual affairs is invalid if unrelated to any legislative purpose.”

Id

. Watkins provided further guidance as to how that inquiry as to legislative

purpose should at least begin:

“An essential premise in this situation is that the House or

Senate shall have instructed the committee members on what they are

to do with the power delegated to them. It is the responsibility of the

Congress, in the first instance, to insure that compulsory process is

used only in furtherance of a legislative purpose. That requires that

the instructions to an investigating committee spell out that group’s

jurisdiction and purpose with sufficient particularity. Those52 instructions are embodied in the authorizing resolution. That

document is the committee’s charter.”

Id

. at 201.

It is not clear whether this passage can be satisfied only by the instruction

that the House gives to a committee pursuant to a House rule defining a standing

committee’s continuing jurisdiction, or whether a specific “authorizing

resolution” is required for a committee to undertake an investigation on a

particular subject within its jurisdiction. During an argument on July 12 of this

year in the Court of Appeals for the District of Columbia Circuit in Trump v. Mazars

USA, LLP

, 940 F.3d 710 (D.C. Cir.), reh’g en banc denied

, 941 F.3d 1180 (D.C. Cir.),

mandate stayed

, No. 19A545, 2019 WL 6328115 (U.S. Nov. 25, 2019) (“ Trump v.

Mazars ”), a challenge to a subpoena issued by the House Committee on Oversight

and Reform, 46 the Mazars appellants, many of whom are Appellants here,

contended that a clear statement from the House authorizing a standing

46 The subpoena challenged in Mazars seeks four categories of documents somewhat

different from those sought by the subpoenas challenged on this appeal, and seeks the documents

for purposes significantly different from the Committees’ purposes, as we point out infra

. The

categories are: various financial statements and reports compiled by Mazars USA, LLP,

engagement agreements for preparation of such statements and reports, supporting documents

used in the preparation of such statements and reports, and memoranda, notes, and

communication related to the compilation and auditing of such statements and reports. See Decl.

of William S. Consovoy, Ex. A at 3, Trump v. Committee on Oversight and Reform of the United States

House of Representatives

, 380 F. Supp. 3d 76 (D.D.C. 2019) (No. 19

‐ cv

‐ 01136 (APM)), ECF No. 9

‐ 2,

aff’d

, Trump v. Mazars USA, LLP

, 940 F.3d 710 (D.C. Cir. 2019).53 committee to investigate not just a particular subject but the particular subpoena

being challenged was required, at least where the subpoena seeks papers of the

President. See Oral Arg. at 8:35, 1:32:15, 2:03:15, Trump v. Mazars USA, LLP, No. 19

‐

5142 (D.C. Cir. July 12, 2019). 47

Apparently responding to that contention, the House of Representatives on

July 24 adopted a resolution that includes the following language:

“ Resolved

, That the House of Representatives ratifies and

affirms all current and future investigations, as well as all subpoenas

previously issued or to be issued in the future, by any standing or

permanent select committee of the House, pursuant to its jurisdiction

as established by the Constitution of the United States and rules X and

XI of the Rules of the House of Representatives, concerning or issued

directly or indirectly to—

(1) the President in his personal or official capacity;

(2) his immediate family, business entities, or

organizations;

. . . (9) any third party seeking information involving,

referring, or related to any individual or entity described in

paragraphs (1) through (7).”

H.R. Res. 507, 116th Cong. (2019); see H.R. Res. 509, 116th Cong. § 3 (2019) (“House

Resolution 507 is hereby adopted.”). 48 On July 26, the Committees informed us of

47 Appellants have not made that “clear statement” argument in their briefs in this case.

48 H.R. Res. 507 disclaims the need for its adoption, stating:

“Whereas the validity of some of [the pending] investigations and subpoenas

[relating to the President] has been incorrectly challenged in Federal court

on the grounds that the investigations and subpoenas were not authorized54 this resolution. 49

On July 31, counsel for the Mazars appellants made two related arguments

to the D.C. Circuit rejecting the significance of Resolution 507. 50 First, he read the

passage from Watkins

, quoted above, to mean that only the House Rules initially

outlining a committee’s jurisdiction can provide a valid source of authority for a

legislative investigation. Second, he contended that two decisions, United States v.

Rumely

, 345 U.S. 41 (1953), and Shelton v. United States

, 327 F.2d 601 (D.C. Cir. 1963),

establish that Resolution 507 came “too late.” On August 1, counsel for Appellants

in our appeal made the same arguments to our Court. 51

by the full House and lacked a ‘clear statement’ of intent to include the

President, which the President’s personal attorneys have argued in Federal

court is necessary before the committees may seek information related to the

President; and

“Whereas while these arguments are plainly incorrect as a matter of law, it is

nevertheless in the interest of the institution of the House of Representatives

to avoid any doubt on this matter and to unequivocally reject these

challenges presented in ongoing or future litigation.”

H.R. Res. 507.

49 See Letter from Douglas N. Letter, General Counsel, U.S. House of Representatives, to

Clerk of Court, Second Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 106 (July 26, 2019).

50 See Letter from William S. Consovoy, counsel for President Donald J. Trump, to Mark

Langer, Clerk of Court, D.C. Circuit Court of Appeals, Trump v. Mazars USA, LLP

, No. 19

‒ 5142,

Doc. No. 1799866 (D.C. Cir. July 31, 2019).

51 See Letter from Patrick Strawbridge, counsel for President Donald J. Trump, to Clerk of

Court, Second Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 112 (Aug. 1, 2019).

On August 6, the United States filed in the Mazars appeal an amicus curiae brief, making

additional arguments concerning the alleged deficiency of Resolution 507. We need not set forth

those arguments because on August 19 the United States filed an amicus curiae brief in the55 Although we agree that there must be sufficient evidence of legislative

authorization and purposes to enable meaningful judicial review, Appellants’

arguments that seek to limit evidence we may consider are not persuasive.

Although Watkins examined the authorizing resolutions of the committee whose

authority to compel answers to its inquiry was being challenged, see 354 U.S. at

201–02 & nn. 35–36, the Supreme Court’s opinion reveals that these resolutions are

not the only sources to be considered in determining whether a committee’s

investigation has been validly authorized. As the Court noted, “There are several

sources that can outline the ‘question under inquiry.’” Id

. at 209. Among these, the

Court mentioned “the remarks of the [committee] chairman or members of the

committee, or even the nature of the proceedings themselves.” Id

. Indeed, the

Court considered the opening statement of the chairman of the committee before

whom the defendant in a criminal contempt proceeding had refused to answer, see

id

. at 209–10, although finding the statement impermissibly vague, see id

. at 210;

s ee also Shelton v. United States

, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (statements of

committee members relevant to identification of purposes of congressional

investigations).

pending appeal, making additional arguments concerning Resolution 507 as it relates to the

subpoenas in the pending litigation. We consider those arguments infra

.56 Rumely does not confine the search for authorization of a valid legislative

purpose to a committee’s jurisdictional resolution. The Court concluded that the

witness’s “duty to answer must be judged as of the time of his refusal.” Rumely

,

345 U.S. at 48. Because we regard the time of the Banks’ compliance with the

subpoenas challenged in this case as the equivalent of the time of the witness’s

refusal in Rumely

, that decision is no bar to examining legislative materials existing

before such compliance.

Furthermore, the Court’s point in Rumely was that the scope of the

resolution authorizing the committee’s investigation could not “be enlarged by

subsequent action of Congress.” 345 U.S. at 48. In the pending case, the issue with

respect to House Resolution 507 is whether this Court, in ascertaining House

authorization of the Committees’ investigations, can consider evidence that comes

after the issuance of the subpoenas. Including House Resolution 507 in our

consideration results in no unfairness to the Banks, which have not refused to

produce the information requested. Moreover, House Resolution 507 does not

suffer from the same “infirmity of post litem motam

, self

‐ serving declarations” that

tainted the post hoc debate in Rumely

, 345 U.S. at 48, because the resolution does

not purport to alter either the interpretation of the Committees’ jurisdiction or the57 stated purposes of the Committees’ investigations that existed at the time the

subpoenas were issued. Rather, the resolution was passed to eliminate any doubt

regarding the support of the House for the Committees’ investigations.

The D.C. Circuit’s decision in Shelton states that the time a contempt witness

is entitled to know the purpose of a challenged legislative inquiry is “before the

subpoena issued.” 327 F.2d at 607. Preliminarily, we note that this assertion is

dictum; the holding is that the committee’s subpoena was invalid because of

procedural irregularity in its issuance. 52 See id

. More important, that dictum

conflicts with what the Supreme Court said in Watkins

. The Court there made clear

that to satisfy the due process objection arising from a contempt imposed for

refusing to answer a committee’s question insufficiently shown to be related to a

valid legislative purpose, the purpose could be identified as late as immediately

before the witness was required to answer. “Unless the subject matter has been

made to appear with undisputable clarity, it is the duty of the investigative body,

upon objection of the witness on grounds of pertinency, to state for the record the

52 The D.C. Circuit explained that the relevant Senate resolution “imposes on the

Subcommittee itself” the “function of calling witnesses,” and that “the whole function of

determining who the witnesses would be was de facto delegated to the Subcommittee counsel.”

Shelton

, 327 F.2d at 606.58 subject under inquiry at that time and the manner in which the propounded

questions are pertinent thereto.” Watkins

, 354 U.S. at 214–15.

We therefore do not confine our search for the Committees’ purposes to the

House Rules alone, nor do we exclude Resolution 507 from our inquiry.

Identifying the Committees’ legislative purpose

. We next consider the

“legislative purpose” to which the Committees assert their investigations are

“related” and “the weight to be ascribed to[] the interest of the Congress in

demanding disclosures” in order to determine whether “a public need” for such

investigation “overbalances any private rights affected.” Id

. at 198.

Our consideration begins with the Constitution, which assigns to each house

of Congress authority to “determine the Rules of its Proceedings.” U.S. Const. art.

I, § 5, cl. 2. In 2019, Congress adopted the Rules of the House of Representatives.

See H.R. Res. 6, 116th Cong. (2019); Rules of the House of Representatives, 116th

Cong. (prepared by Karen L. Haas, Clerk of the House of Representatives, Jan. 11,

2019) (hereinafter “H. Rules”). House Rule X establishes the standing committees

of the House, including the Financial Services Committee and the Permanent

Select Committee on Intelligence. See H. Rules X(2)(h), X(11). Rule X assigns to the

Financial Services Committee jurisdiction over bills concerning, among other59 things, banks and banking, international finance, and money and credit, see H.

Rule X (1) (h)(1), (h)(5), (h)(7), and assigns to the Intelligence Committee

jurisdiction over bills concerning, among other things, the Nation’s intelligence

agencies and their intelligence and intelligence

‐ related activities, see H. Rule

X(11)(b)(1)(A), (B).

Rule X also assigns to all of the standing committees “general oversight

responsibilities

. . . to assist the House in its analysis, appraisal, and evaluation of

(A) the application, administration, execution, and effectiveness of Federal laws;

and (B) conditions and circumstances that may indicate the necessity or

desirability of enacting new or additional legislation.” H. Rule X(2)(a)(1). In

addition, Rule X assigns to the Intelligence Committee “[s]pecial oversight

functions” to “review and study on a continuing basis laws, programs, and

activities of the intelligence community.” H. Rule X(3)(m).

House Rule XI provides: “Each committee may conduct at any time such

investigations and studies as it considers necessary or appropriate in the exercise

of its responsibilities under [R]ule X.” H. Rule XI(1)(b)(1). Rule XI also provides:

“For the purpose of carrying out any of its functions and duties under

this rule and [R]ule X

. . . a committee or subcommittee is authorized

. . . to require, by subpoena

. . . the production of such

. . . records

. . .

as it considers necessary.”60 H. Rule XI(2)(m)(1)(B).

On March 13, 2019, the House of Representatives adopted a resolution

stating, among other things, that the House “supports efforts to close loopholes

that allow corruption, terrorism, and money laundering to infiltrate our country’s

financial system.” H.R. Res. 206, 116th Cong. (Mar. 13, 2019).

On April 12, 2019, the House Committee on Oversight and Reform issued a

report summarizing the subjects that several committees planned to investigate

during the 116th Congress. See H.R. Rep. No. 116

‐ 40 (2019). Because the date of

this report is one day after issuance of the subpoenas challenged in this case, we

note that the text of the report makes clear that the plans submitted by the

committees had been received prior to the date the report was issued. 53

The plan submitted by the Financial Services Committee includes as its

purposes: “examining financial regulators’ supervision of the banking, thrift and

credit union industries for safety and soundness and compliance with laws and

53 The report explains that under House Rule X, the Oversight Committee “is to review

the various plans and, in consultation with the Speaker, the Majority Leader, and the Minority

Leader, report to the House the oversight plans along with any recommendations that the House

leadership and the Committee may have to ensure effective coordination. Pursuant to this rule,

the Committee on Oversight and Reform has reviewed and consulted with House leadership

about the oversight plans of the standing House committees for the 116th Congress.” H.R. Rep.

No. 116

‐ 40 at 2.61 regulations,” id

. at 78; “the implementation, effectiveness, and enforcement of anti

‐

money laundering/counter

‐ financing of terrorism laws and regulations,” id

. at 84

(abbreviation omitted); and “the risks of money laundering and terrorist financing

in the real estate market,” id

. at 85.

The Chair of the Financial Services Committee, Representative Maxine

Waters, has identified a principal purpose of that committee’s investigation. “The

movement of illicit funds throughout the global financial system raises numerous

questions regarding the actors who are involved in these money laundering

schemes and where the money is going.” 165 Cong. Rec. H2697, H2698 (daily ed.

Mar. 13, 2019) (statement of Rep. Waters in support of H.R. Res. 206). Linking the

Committee’s inquiries to Appellants, she explained that her concerns are

“precisely why the Financial Services Committee is investigating the questionable

financing provided to President Trump and [t]he Trump Organization by banks

like Deutsche Bank to finance its real estate properties.” Id

. In her statement, Rep.

Waters noted that Deutsche Bank was fined for its role in a $10 billion money

‐

laundering scheme, 165 Cong. Rec. at H2698, and the Committees note in their

brief, Br. for Intervenors at 11, that Capital One agreed to pay a fine of $100 million

for failing to correct deficiencies in its Bank Secrecy Act and anti

‐ money

‐62 laundering programs, see Capital One, N.A.

, Enforcement Action No. 2018

‐ 080, 2018

WL 5384428, at *1

‒ 2 (O.C.C. Oct. 23, 2018).

The Financial Services Committee has held hearings on these matters, 54 and

considered bills to combat financial crimes, such as money laundering. 55

The Chair of the Intelligence Committee has identified several purposes of

that committee’s investigation. The committee is investigating “[t]he scope and

scale of the Russian government’s operations to influence the U.S. political

process”; “[t]he extent of any links and/or coordination between the Russian

government, or related foreign actors, and individuals associated with Donald

Trump’s campaign, transition, administration, or business interests, in furtherance

of the Russian government’s interests”; “[w]hether any foreign actor has sought to

compromise or holds leverage, financial or otherwise, over Donald Trump, his

family, his business, or his associates”; and “[w]hether President Trump, his

54 Implementation of FinCEN’s Customer Due Diligence Rule—Regulator Perspective: Hearing

Before the Subcomm. on Terrorism & Illicit Finance of the H. Comm. on Financial Services

, 115th Cong.

(2018); Examining the BSA/AML Regulatory Compliance Regime: Hearing Before the Subcomm. on

Financial Institutions & Consumer Credit of the H. Comm. on Financial Services

, 115th Cong. (2017).

55 See Corporate Transparency Act of 2019, H.R. 2513, 116th Cong. (bill to reform corporate

beneficial ownership disclosures and increase transparency); COUNTER Act of 2019, H.R. 2514,

116th Cong. (bill to strengthen the Bank Secrecy Act and anti

‐ money

‐ laundering laws); Vladimir

Putin Transparency Act, H.R. 1404, 116th Cong. (as passed by House, Mar. 12, 2019) (bill to

require Executive Branch agencies to submit assessment to Congress regarding financial holdings

of Russian President Vladimir Putin and top Kremlin

‐ connected oligarchs).63 family, or his associates are or were at any time at heightened risk of, or vulnerable

to, foreign exploitation, inducement, manipulation, pressure, or coercion.” Press

Release, House Permanent Select Committee on Intelligence, Chairman Schiff

Statement on House Intelligence Committee Investigation (Feb. 6, 2019). 56

Linking these investigations to Appellants, the Committees cite public

reports indicating that Deutsche Bank has extended loans to the Lead Plaintiff

totaling more than $2 billion 57 and that his 2017 financial disclosure report showed

a liability of at least $130 million to Deutsche Bank. 58 At oral argument, counsel for

the Committees represented, without contradiction by Appellants, that Deutsche

Bank is the only bank willing to lend to the Lead Plaintiff. See Oral Arg. Tr. at p.

36, ll. 5

‒ 18.

On this appeal, the Committees contend that the Intelligence Committee’s

investigations “will inform numerous legislative proposals to protect the U.S.

56 https://intelligence.house.gov/news/ documentsingle.aspx?DocumentID=447.

57 David Enrich, Deutsche Bank and Trump: $2 Billion in Loans and a Wary Board

, N.Y. Times,

Mar. 18, 2019, https://www.nytimes.com/20 19/03/18/business/deutsche

‐ bank

‐ donald

‐ trump/html.

58 Donald J. Trump, President, Executive Branch Personnel Public Financial Disclosure

Report for 2017 (Office of Government Ethics Form 278e) at 45 (May 15, 2018).64 political process from the threat of foreign influence and strengthen national

security.” Br. for Committees at 18. 59

All of the foregoing fully identifies “ the interest[s] of the Congress in

demanding disclosures,” as Watkins requires. 354 U.S. at 198. The Committees’

interests concern national security and the integrity of elections, and, more

specifically, enforcement of anti

‐ money

‐ laundering/counter

‐ financing of

terrorism laws, terrorist financing, the movement of illicit funds through the global

financial system including the real estate market, the scope of the Russian

government’s operations to influence the U.S. political process, and whether the

Lead Plaintiff was vulnerable to foreign exploitation. Watkins also requires that a

legislative inquiry must in fact be related to a legislative purpose. 60 See id

. The

Committees have fully satisfied the requirements of Watkins.

59 The Committees cite as examples the following bills: Duty to Report Act, H.R. 2424,

116th Cong. (2019) (bill to require campaign officials to notify law enforcement if offered

assistance by foreign nationals and to report all meetings with foreign agents); KREMLIN Act,

H.R. 1617, 116th Cong. (as passed by House, Mar. 12, 2019) (bill to require Director of National

Intelligence to submit to Congress intelligence assessments of Russian intentions relating to

North Atlantic Treaty Organization and Western allies); Strengthening Elections Through

Intelligence Act, H.R. 1474, 116th Cong. (2019) (bill to require an intelligence threat assessment

prior to every federal general election); For the People Act of 2019, H.R. 1, 116th Cong. (as passed

by House, Mar. 8, 2019) (bill to improve election security and oversight and provide for national

strategy and enforcement to combat foreign interference).

60 The Court had previously said in Quinn that the power to investigate “cannot be used

to inquire into private affairs unrelated to a valid legislative purpose .” 349 U.S. at 161 (emphasis

added).65 We conclude our consideration of the Committees’ identification of valid

legislative purposes by noting the significantly different purposes that were

identified by the House Committee on Oversight and Reform in the Trump v.

Mazars case in the District of Columbia, 61 to which we previously alluded. 62 The

four subject matters being investigated by that committee, set out in the margin, 63

all explicitly concerned whether the President was in compliance with legal

61 After the D.C. Circuit’s decision in Mazars

, Appellants and the Committees sent letters

to this Court, reporting and commenting on that decision. See Letter from Patrick Strawbridge,

counsel for President Donald J. Trump, to Clerk of Court, Second Circuit Court of Appeals, No.

19

‒ 1540, Dkt. No. 202 (Oct. 14, 2019); Letter from Douglas N. Letter, General Counsel, U.S. House

of Representatives, to Clerk of Court, Second Circuit Court of Appeals, No. 19

‒ 1540, Dkt. No. 201

(Oct. 11, 2019). In view of the D.C. Circuit’s ruling affirming the denial of an injunction to prohibit

compliance with the subpoena there challenged, Appellants’ letter stating that “the Mazars

majority agreed that the subpoenas here are unconstitutional” presses the limits of advocacy. The

Committees’ letter states, “This Court should join the D.C. Circuit in upholding the validity of

the subpoenas at issue here.”

62 See footnote 46, p. 52.

63 As stated by Chairman Cummings:

“The Committee has full authority to investigate [1] whether the President

may have engaged in illegal conduct before and during his tenure in office,

[2] to determine whether he has undisclosed conflicts of interest that may

impair his ability to make impartial policy decisions, [3] to assess whether

he is complying with the Emoluments Clauses of the Constitution, and [4]

to review whether he has accurately reported his finances to the Office of

Government Ethics and other federal entities. The Committee’s interest in

these matters informs its review of multiple laws and legislative proposals

under our jurisdiction, and to suggest otherwise is both inaccurate and

contrary to the core mission of the Committee to serve as an independent

check on the Executive Branch.”

Memorandum from Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to

Members of the Comm. on Oversight & Reform 4 (Apr. 12, 2019).66 requirements. Nevertheless, Judge Tatel’s opinion for the Mazars majority

concluded that the Oversight Committee, in issuing the challenged subpoena,

“was engaged in a ‘legitimate legislative investigation,’ rather than an

impermissible law

‐ enforcement inquiry.” Mazars

, 940 F.3d at 732 (quoting

Hutcheson v. United States

, 369 U.S. 599, 618 (1962)) (citation omitted). On the other

hand, Judge Rao’s dissent contended that because the Oversight Committee was

investigating whether the President violated various laws, its “investigations may

be pursued exclusively through impeachment.” 64 Id

. at 751.

In the pending appeal, the Committees are not investigating whether the

Lead Plaintiff has violated any law. To the extent that the Committees are looking

into unlawful activity such as money laundering, their focus is not on any alleged

misconduct of the Lead Plaintiff (they have made no allegation of his misconduct);

instead, it is on the existence of such activity in the banking industry, the adequacy

of regulation by relevant agencies, and the need for legislation.

Whether legislative purpose “overbalances” private rights. The Supreme Court

can be understood in Watkins to have set out a second requirement for courts

considering challenges to legislative inquiries.

64 We note that neither the principal nor the reply brief of Appellants mentions the word

“impeachment.”67 “The critical element is the existence of, and the weight to be ascribed

to, the interest of the Congress in demanding disclosures from an

unwilling witness. We cannot simply assume, however, that every

congressional investigation is justified by a public need that overbalances

any private rights affected

. To do so would be to abdicate the

responsibility placed by the Constitution upon the judiciary to insure

that the Congress does not unjustifiably encroach upon an

individual’s right to privacy

. . . .”

354 U.S. at 198–99 (emphasis added).

When the Court said that it “cannot simply assume, however, that every

congressional investigation is justified by a public need that overbalances any

private rights affected,” id

. at 198, the inference is available that courts are to

determine whether the importance of the legislative interest outweighs an

individual’s privacy interests.

Three considerations diminish the force of this possible inference. First, we

should be hesitant to conclude that the Supreme Court, always sensitive to

separation

‐ of

‐ powers concerns, would want courts to make this sort of balancing

determination, the outcome of which might impede the Legislative Branch in

pursuing its valid legislative purposes. Second, the Court might simply have

meant that courts should not “assume” the existence of a legislative purpose, but

that the judicial task is at an end once courts find in congressional materials

sufficient identification of the valid legislative purposes that Congress or a68 committee is pursuing. Third, the Court later cautioned that “courts should not go

beyond the narrow confines of determining that a committee’s inquiry may fairly

be deemed within its province.” Eastland

, 421 U.S. at 506 (quotation marks

omitted). On the other hand, it is not likely that the Court would have described

such a minimalist approach as “an arduous and delicate task.” Watkins

, 354 U.S. at

198

.

Encountering this uncertainty as to the task that Watkins has required courts

to undertake, we will assume, for the argument, that we should make at least some

inquiry as to whether the “public need” to investigate for the valid legislative

purposes we have identified “overbalances any private rights affected.” That

balancing is similar to the comparison of hardships we make in Part IV, one of the

factors relevant to two of the preliminary injunction standards.

We conclude that, even if Watkins requires balancing after valid legislative

purposes have been identified, the interests of Congress in pursuing the

investigations for which the challenged subpoenas were issued substantially

“overbalance” the privacy interests invaded by disclosure of financial documents,

including the non

‐ official documents of the Lead Plaintiff. “[T]he weight to be

ascribed to” the public need for the investigations the Committees are pursuing is69 of the highest order. The legislative purposes of the investigations concern

national security and the integrity of elections, as detailed above. By contrast, the

privacy interests concern private financial documents related to businesses,

possibly enhanced by the risk that disclosure might distract the President in the

performance of his official duties.

Whether the subpoenas seek information related to legislative purposes. The

remaining issue is whether the information sought by the subpoenas is sufficiently

related to the identified legislative purposes supporting the Committees’

investigations, or whether the subpoenas are overbroad, as Appellants contend.

Their challenge proceeds along three lines: (1) a procedural objection concerning

the District Court, (2) several general substantive objections to the entire scope of

the subpoenas, and (3) a more focused substantive objection to several specific

categories of information sought by the subpoenas.

Procedural objection

‒‒ District Court’s not requiring negotiation. Appellants

contend that the District Court erred procedurally by not “send[ing] the parties

back to the negotiating table” to attempt to narrow the scope of the subpoenas. Br.

for Appellants at 29. Judge Livingston favors that disposition. Part. Diss. Op. at 11,

56. Indeed, that is an additional point of her partial dissent, which takes no70 position on the merits of any of Appellants’ claims, deferring decision until such

negotiation occurs. Judge Livingston also favors a total remand for further

development of the record.

Appellants cite two instances where courts have had at least partial success

in encouraging such negotiation. See AT&T II

, 567 F.2d at 124–25; Bean LLC v. John

Doe Bank

, 291 F. Supp. 3d 34, 39–40 (D.D.C. 2018). Both cases arose in significantly

different circumstances, and neither one requires a total remand here. The AT&T

litigation involved what the D.C. Circuit characterized as “a portentous clash

between the [E]xecutive and [L]egislative [B]ranches,” AT&T I

, 551 F.2d at 385. In

the pending appeal, as we have noted, the Lead Plaintiff is suing only in his

individual capacity, not as President, and no official documents are sought. The

only Executive Branch interest implicated is the possible distraction of the

President in the performance of his duties, which we consider at pages 90

‒ 91.

Furthermore, AT&T I concerned national security wiretaps, Executive Branch

official documents of obvious sensitivity. Finally, the D.C. Circuit’s advice in

AT&T I was offered after the parties had already “negotiated extensively and came

close to agreement.” Id

. at 394. The Court simply urged the parties to continue the

process they had successfully begun and “requested” the parties “to attempt to71 negotiate a settlement,” id

. at 395, because the “precise details of the [earlier]

negotiations

. . . demonstrate[d] the proximity of the parties to a workable

compromise,” id

. at 386. The Bean litigation concerned a subpoena challenged as

violative of the First Amendment. See 291 F. Supp. 3d at 37.

To the extent that the request for judicial assistance in narrowing the scope

of the subpoenas is analogous to the role of district court judges managing pretrial

discovery, they have broad discretion to determine the extent to which they should

intervene, see

, e.g.

, In re Fitch, Inc.

, 330 F.3d 104, 108 (2d Cir. 2003), and Judge Ramos

did not exceed such discretion in this case by leaving any negotiation in the hands

of experienced counsel prior to his ruling. In favoring a total remand, Judge

Livingston does not consider our limited standard of review of the District Court’s

decision not to require the parties to negotiate, nor does she suggest that the

District Court’s discretion was exceeded. Moreover, Appellants have not

identified a single category of documents sought or even a single document within

a category that they might be willing to have the Banks produce if a negotiation

had been required. Finally, we note the likely futility of ordering a total remand

for negotiation, as Judge Livingston prefers, 65 in view of the fact that the White

65 Judge Livingston reports that at oral argument the Committees “affirmed a willingness

to negotiate on an expedited basis, if requested by this Court.” Part. Diss. Op. at 11. The colloquy72 House has prohibited members of the Administration from even appearing in

response to congressional subpoenas and has informed Congress that “President

Trump and his Administration cannot participate” in congressional inquiries. 66

Judge Livingston suggests that a total remand would be useful to afford the

parties an opportunity for further development of the record. However,

Appellants have given no indication of what additional materials they would seek

to add to the record, and the existing record fully suffices for disposition of this

appeal.

to which Judge Livingston refers arose in response to a hypothetical inquiry from the Court as to

whether certain sensitive documents such as a check for medical services should be excluded

from disclosure. Counsel for the Committees responded that as to any documents “that have

nothing to do with Mr. Trump and his family and these other businesses, his various businesses,

have nothing to do with their real financial activities, we will direct Deutsche Bank not to produce

those.” Oral Arg. Tr. at p. 41, ll. 11

‒ 15. When the Court inquired further about the Committees’

position if the Court were to insist on exclusion of such documents, counsel for the Committees

responded, “[I]f this Court orders ‘these subpoenas are enforceable but’

‒‒ and drew this

exception, consistent with the hypothetical your Honor has raised, we would have no problem

with that.” Id

. at p. 41, ll. 22

‒ 25. Obviously, the Committees’ willingness to comply with an order

from this Court concerning exclusion of sensitive documents like a check for payment of medical

expenses does not affirm the Committees’ willingness to engage in negotiation. Later, the

Committees said that “[i]f this court thinks there should be negotiation,

. . . make it really, really

fast,” id at p. 46, ll. 8

‒ 10, and added, “Mr. Trump and the various other people have given no

indication whatsoever that they actually would be willing to negotiate over ― in any way that is

serious.” Id

. at p. 46, ll. 17

‒ 19. Again, there is no expression of a willingness to negotiate.

In any event, the limited remand we order provides an opportunity for exemption from

disclosure of more documents than even those we have labeled “sensitive.”

66 See Letter from Pat A. Cippolone, Counsel to the President, the Speaker of the House of

Representatives, and three House committee chairmen (Oct. 8, 2019),

https://www.nytimes.com/interactive/2019/10/08/us/politics/white

‐ house

‐ letter

‐ impeachment.

html. One recipient of this letter, Congressman Adam Schiff, is the chairman of one of the

committees that issued subpoenas in this litigation.73 A total remand would simply further delay production of documents in

response to subpoenas that were issued seven months ago and would run directly

counter to the Supreme Court’s instruction that motions to enjoin a congressional

subpoena should “be given the most expeditious treatment by district courts

because one branch of Government is being asked to halt the functions of a

coordinate branch.” Eastland

, 421 U.S. at 511 n.17.

General substantive objections to scope of subpoenas

. One broad substantive

challenge to the scope of the subpoenas is that they focus on the Lead Plaintiff. 67

This point is made in support of the broader argument that the subpoenas were

issued with the expectation that some of the documents sought would embarrass

67 In the District Court, the Committees stated, “Because of his prominence, much is

already known about Mr. Trump, his family, and his business, and this public record establishes

that they serve as a useful case study for the broader problems being examined by the

Committee.” Opposition of Intervenors to Plaintiffs’ Motion for a Preliminary Injunction at 16,

Dist. Ct. Dkt. No. 51 (May 10, 2019). Appellants repeatedly point to the phrase “case study” to

argue that the Committees are not only focusing on the Lead Plaintiff but also doing so for law

enforcement purposes. Br. for Appellants at 5, 11, 15, 31, 33, 50. However, as long as valid

legislative purposes are duly authorized and being pursued by use of the challenged subpoenas,

the fact that relevant information obtained also serves as a useful “case study” does not detract

from the lawfulness of the subpoenas. Furthermore, congressional examination of whether

regulatory agencies are properly monitoring a bank’s practices does not convert an inquiry into

impermissible law enforcement, and neither committee has made any allegation that the Lead

Plaintiff or any of the Appellants has violated the law.

Moreover, when a borrower can obtain loans from only one bank, that bank has already

lent the borrower $130 million, and that bank has been fined in connection with a $10 billion

money laundering scheme, that situation is appropriate for a case study of such circumstances by

a congressional committee authorized to monitor how well banking regulators are discharging

their responsibilities and whether new legislation is needed.74 the President, rather than advance a legitimate legislative purpose. One answer to

the complaint about targeting the Lead Plaintiff and his family is that the

Committees have represented that the three subpoenas at issue in this litigation

are among a group of subpoenas “to seven other financial institutions, the majority

of which do not request documents specific to” the Lead Plaintiff. Br. for

Committees at 9. 68 In fact, the Deutsche Bank Subpoenas themselves seek

documents from entities not related to Appellants. See Deutsche Bank Subpoenas

¶¶ 2

‒ 6, J. App’x 40

‒ 42. Another answer to the targeting objection is the significant

relationship between Deutsche Bank and the Lead Plaintiff. The Committees have

relied on information (not disputed by Appellants) indicating that when no other

bank would extend credit to the Lead Plaintiff, Deutsche Bank loaned him or his

affiliated entities at least $130 million dollars. That unusual circumstance

adequately supports requests for information to determine whether proper

banking procedures have been followed.

68 Replying to this assertion by the Committees, the amicus brief of the United States says,

“The bare fact that a ‘majority’ of other subpoenas may not be confined to the President’s

information hardly suggests that the present subpoenas are part of a general inquiry into reforms

of the financial system, in which the President and his family have been caught up merely by

chance

. . . .” Br. for Amicus United States at 21 (emphases in original). The Committees make no

claim that the subpoenas seek financial records of the Lead Plaintiff, his family, and his business

entities “by chance.” As we have recounted, the Committees have explicitly set out the

circumstances that make the financial records of the Lead Plaintiff and affiliated persons and

business entities appropriate subjects for legislative inquiry.75 To whatever extent the targeting objection is really a claim that part of the

motive of some members of the Committees for issuing the three subpoenas was

to embarrass the Lead Plaintiff, the Supreme Court has made it clear that in

determining the lawfulness of a congressional inquiry, courts “do not look to the

motives alleged to have prompted it.” Eastland

, 421 U.S. at 508. The Court had

earlier said, “So long as Congress acts in pursuance of its constitutional power, the

Judiciary lacks authority to intervene on the basis of the motives which spurred

the exercise of that power.” Barenblatt

, 360 U.S. at 132 (citations omitted).

In this respect, the guiding principle is the same as that applicable when an

arrest supported by probable cause is ruled valid despite the arresting officer’s

motive to retaliate against a suspect for exercising a First Amendment right. See

Nieves v. Bartlett

, 139 S. Ct. 1715, 1725 (2019); see also Hartman v. Moore

, 547 U.S. 250,

265

‒ 66 (2006) (absence of probable cause required for valid claim of initiating

prosecution to retaliate against a defendant for exercising a First Amendment

right).

But Appellants disclaim any objection based on inquiry into motive. “No

aspect of this inquiry involves a search for Congress’s hidden ‘motives.’” Br. for

Appellants at 26. Their point is that various statements of some members of76 Congress reveal that the purpose of the investigations is to embarrass the President,

not merely that such embarrassment was the motive for the investigations. In this

context (as in some others 69 ), the distinction between motive, i.e.

, the reason for

acting, and purpose, i.e.

, the result sought, becomes somewhat blurred. We do not

doubt that some members of the Committees, even as they pursued investigations

for valid legislative purposes, hoped that the results of their inquiries would

embarrass the President. 70 But as long as the valid legislative purposes that the

Committees have identified are being pursued and are not artificial pretexts for

ill

‐ motivated maneuvers, the Committees have not exceeded their constitutional

authority. The Supreme Court has stated that there is a “presumption” that the

stated legislative purposes are the “real object” of the Committees’ investigation.

McGrain

, 273 U.S. at 178. We need not rely on that presumption where we have

69 See

, e.g.

, Mobile v. Bolden

, 446 U.S. 55, 62 (1980) (“Our decisions, moreover, have made

clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment

only if motivated by a discriminatory purpose.”); see generally Andrew Verstein, The Jurisprudence

of Mixed Motives, 127 Yale L.J. 1106 (2018).

70 The Complaint in this case alleges the following remarks of some members of Congress.

Rep. Waters, Chair of the Financial Services Committee, said, “I have the gavel—and subpoena

power—and I am not afraid to use it.” Complaint ¶ 37. Another member of Congress “stated that

the new House majority would be ‘brutal’ for President Trump” and that “[w]e’re going to have

to build an air traffic control tower to keep track of all the subpoenas flying from here to the White

House.” Id

. Others “were busy preparing a ‘subpoena cannon’ to fire at President Trump.” Id

. Others, “according to news outlets that interviewed party leaders,” issued statements that “meant

that they were going to spend the next two years launching a ‘fusillade’ of subpoenas in order to

‘drown Trump with investigations,’ ‘turn Trump’s life upside down,’ and ‘make Trump’s life a

living hell.’” Id

. ¶ 36.77 evidence that valid legislative purposes are being pursued and “the purpose[s]

asserted [are] supported by references to specific problems which in the past have

been or which in the future could be the subjects of appropriate legislation.”

Shelton, 404 F.2d at 1297.

Appellants object to the extensive time frame covered by the subpoenas,

especially the absence of any time limitations on requests relating to account

applications and the identity of those holding interests in accounts. Appellants

also object to disclosure of financial records in the names of family members,

including the Lead Plaintiff’s grandchildren. However, such information,

including documents dating back to when accounts were opened, is reasonably

related to an investigation about money laundering.

Appellants contend that the subpoenas exceed any valid legislative purpose

because, in their view, the subpoenas are intended to discover evidence of crimes,

thereby indicating that the Committees are pursuing a law enforcement objective,

which is beyond the power of Congress. See Quinn

, 349 U.S. at 161. But, as

Appellants themselves recognize, “a permissible legislative investigation does not

become impermissible because it might reveal evidence of a crime.” Br. for

Appellants at 22. Any investigation into the effectiveness of the relevant agencies’78 existing efforts to combat money laundering or the need for new legislation to

render such efforts more effective can be expected to discover evidence of crimes,

and such discovery would not detract from the legitimacy of the legislative

purpose in undertaking the investigation. The Supreme Court long ago rejected

Appellants’ argument: “Nor do we think it a valid objection to the investigation

that it might possibly disclose crime or wrongdoing on [an executive branch

official’s] part.” McGrain

, 273 U.S. at 179

‒ 80. See Sinclair

, 279 U.S. at 295 (“[T]he

authority of [Congress], directly or through its committees, to require pertinent

disclosures in aid of its own constitutional power is not abridged because the

information sought to be elicited may also be of use in [criminal prosecutions].”).

Appellants fault Judge Ramos, who, they contend, “asserted that Congress

has an independent ‘informing function’ that allows it to

. . . ‘publicize corruption

. . . in agencies of the Government,’ even absent a connection to ‘contemplated

legislation in the form of a bill or statute.’” Br. for Appellants at 23 (quoting District

Court opinion, J. App’x 127). Although the phrases quoted from the Court’s

opinion are accurate, the brief’s addition of the words “independent” and “absent

a connection” is a mischaracterization of what Judge Ramos said. He was not

asserting an independent informing function or investigative power absent a79 connection to a legislative purpose. He was careful to state that Congress’s

legislative authority “ includes a more general informing function.” J. App’x 127

(emphasis added). This reflected the Supreme Court’s statement in Hutchinson v.

Proxmire

, 443 U.S. 111, 132

‒ 33 (1979), that “congressional efforts to inform itself

through committee hearings are part of the legislative function.” 71

However, some of the Court’s statements in Watkins create uncertainty as to

whether, and in what circumstances, an informing function permits public

disclosure of information obtained as part of a valid legislative inquiry. On the one

hand, the Court said, “We have no doubt that there is no congressional power to

expose for the sake of exposure.” 354 U.S. at 200. On the other hand, the Court also

said, “The public is, of course, entitled to be informed concerning the workings of

its government.” 72 Id

. And, in cautioning that the public’s right to be informed

about its government “cannot be inflated into a general power to expose,” id.

, the

Court added in the same sentence, “where the predominant result can only be an

71 To whatever extent Judge Ramos might be understood as treating the informing

function as an additional source of Congress’s power, he did not rely on that source of authority,

mentioning it only as part of a general overview of Congress’s powers.

72 In Hutchinson

, the Supreme Court arguably contradicted this statement when it said,

“[T]he transmittal of

. . . information by individual Members in order to inform the public [about

their activities in Congress] is not a part of the legislative function or the deliberations that make

up the legislative process.” 443 U.S. at 133. However, the Court’s next sentence makes the limited

context clear: “As a result, transmittal of such information by press releases and newsletters is

not protected by the Speech or Debate Clause.” Id

.80 invasion of the private rights of individuals,” id. (emphases added). The Court also

noted that it was “not concerned with the power of the Congress to inquire into

and publicize corruption, maladministration or inefficiency in agencies of the

Government.” Id

. at 200 n.33. These latter statements make clear that Congress can

obtain information in an investigation as long as the information is collected in

furtherance of valid legislative purposes. In the pending appeal, the high

significance of the valid legislative purposes demonstrates that the “predominant

purpose” of the Committees’ inquiries cannot be said to be “only” to invade

private rights.

Specific substantive objections to scope of subpoenas. We next consider

Appellants’ specific challenges to the scope of the subpoenas. Of the three

subpoenas, the two identical subpoenas to Deutsche Bank have the broadest scope.

These subpoenas fill six single

‐ spaced pages describing eight categories of

documents, subdivided into 52 paragraphs, many of which request several types

of items. If such extensive document requests were made during discovery in

ordinary civil litigation, an initial response would likely be that the requests are

too burdensome. In this case, however, the Banks have made no claim that

compiling the requested documents imposes an excessive burden on them. It is81 Appellants whose privacy is claimed to be unlawfully impaired by the Banks’

compliance with the subpoenas who challenge the breadth of the requests. To

consider that challenge we examine the subpoenas in detail.

We note that of the eight categories of documents sought by the two

Deutsche Bank Subpoenas, only categories 1, 7, and 8 request documents

belonging to, or likely to reveal information concerning, Appellants or entities they

control or in which they are alleged to have interests. The Committees confirmed

this fact during oral argument, without dispute from Appellants. The first

category of documents includes, with respect to the individuals (including

members of their immediate families) and entities named: documents reflecting

applications to open accounts, due diligence, and related items, ¶ 1(i); account

statements, ¶ 1(ii); transfers of amounts in excess of $10,000, ¶ 1(iii); summaries or

analyses of account activity including the destination of checks (without limitation

as to amount), ¶ 1(iv); suspicious activity, ¶ 1(v); investment, mortgage, and credit

arrangements and related items, ¶ 1(vi), including appraisals of assets, ¶ 1(vi)(d),

and financial information provided by borrowers, ¶ 1(vi)(e), such as tax returns, ¶

1(vi)(e)(7), and bankruptcy records, ¶ 1(vi)(e)(8); information supplied pursuant

to §§ 314(a) or 314(b) of the PATRIOT Act, Pub. L. No. 107

‐ 56, ¶ 1(vii); records82 generated by named bank employees, ¶ 1(viii); documents not kept in customary

record

‐ keeping systems related to the named individuals and entities, ¶ 1(ix); and

matters discussed with Deutsche Bank’s boards, ¶ 1(x).

The seventh category covers documents reflecting periodic reviews of the

identified individuals and entities. ¶ 7. The eighth category covers any

communications by named employees of the Banks concerning the identified

individuals and entities. ¶ 8. Many of the paragraphs in categories 1, 7, and 8 seek

documents “including, but not limited to, those involving any foreign individual,

entity, or government” or similar language. E.g.

, ¶ 1(vi), ¶ 1(vi)(k).

The subpoena from the Financial Services Committee to Capital One is less

extensive, filling one and one

‐ half single

‐ spaced pages describing one category of

documents, subdivided into fifteen paragraphs, two of which request several

items. This category includes, with respect to accounts held by the entities named

and their principals, directors, etc.: documents related to applications to open

accounts and due diligence, ¶ 1(i); documents identifying those with interests in

the accounts, ¶ 1(ii); documents identifying any account manager, ¶ 1(iii); monthly

statements and cancelled checks in excess of $5,000, ¶ 1(iv); summaries or analyses

of account activity including the destination of checks (without limitation as to83 amount), ¶ 1(v); transfers in excess of $10,000, ¶ 1(vi); documents concerning

suspicious activity, ¶ 1(vii); reviews of accounts pursuant to Capital One’s

procedures related to Bank Secrecy Act, anti

‐ money

‐ laundering, and compliance

with guidance on “Politically Exposed Persons,” ¶ 1(viii); documents not kept in

customary record

‐ keeping systems related to any loan provided to the named

entities, ¶ 1(ix); documents related to real estate transactions, ¶ 1(x); documents

provided in response to any subpoena or request from any U.S. Federal or state

agency, ¶ 1(xi)(a); notices of administrative, civil, or criminal actions, ¶ 1(xi)(b);

requests pursuant to §§ 314(a) or 314(b) of the PATRIOT Act, ¶ 1(xi)(c); and

requests for information to or from a third party, ¶ 1(xi)(d).

Sensitive personal information. A specific item in the subpoenas that raises

serious concerns as to whether even valid legislative purposes permit exposure of

matters entitled to privacy protection is the request for “analyses of

. . . transfers,

including

. . . the destination of the transfers

. . ., including any

. . . check

. . . .”

Deutsche Bank Subpoenas, ¶ 1(iv); Capital One Subpoena, ¶ 1(v) (emphasis

added). These items have no dollar limitations, even though other provisions limit

transfer information to checks above specified amounts. Deutsche Bank

Subpoenas, ¶ 1(iii) ($10,000); Capital One Subpoena, ¶ 1(iv) ($5,000). In addition84 to “analyses” of all checks, the Deutsche Bank Subpoenas seek “monthly or other

periodic account statements” including “outgoing funds transfers,” ¶ 1(ii), which

might reveal the recipients of at least some checks.

These provisions create a risk that some of the checks sought might reveal

sensitive personal details having no relationship to the Committees’ legislative

purposes. For example, if one of the entities decided to pay for medical services

rendered to an employee, the check, and any similar document disclosing sensitive

personal information unrelated to business transactions, should not be disclosed.

The same would be true of any check reflecting payment for anyone’s medical

services. The Committees have advanced no reason why the legislative purposes

they are pursuing require disclosure of such sensitive personal information.

Indeed, counsel for the Committees at oral argument appeared to recognize that

such sensitive personal information need not be disclosed. Oral Arg. Tr. at p. 41,

ll. 8

‒ 18. We have not located any decision that has considered whether Congress

is entitled to require disclosure of sensitive personal information that might be

swept up in a collection of business

‐ related financial documents legitimately

sought in aid of legislative purposes. At least in the absence of a compelling reason

for such disclosure, we decline to permit it in this case.85 Other possibly excludable documents. In addition to what we have described as

“sensitive documents,” we recognize that there might be a few documents within

the coverage of the subpoenas that have such an attenuated relationship to the

Committees’ legislative purposes that they need not be disclosed.

We have concluded that the coverage of the following paragraphs of the

Deutsche Bank Subpoenas might include some documents warranting exclusion:

paragraphs 1(ii), 1(iv), 1(vi)(e), 1(viii), and 8. We reach the same conclusion as to

the following paragraphs of the Capital One subpoena: paragraphs 1(iv), 1(v), 1(x),

and 1(xi)(d). We have no such concerns with the coverage of any of the other

paragraphs of the subpoenas. All the documents within the coverage of these other

paragraphs are sufficiently likely to be relevant to legislative purposes. 73 Even if

within the coverage of these other paragraphs are some documents that turn out

not to advance the Committees’ investigations, that would not be a valid reason

for excluding such documents from production. As the Supreme Court has

observed with reference to another challenge to a congressional subpoena seeking

73 For example, paragraph 1(v) of the Deutsche Bank subpoenas calls for production of

“any document related to monitoring for

. . . possible suspicious activity,” and paragraph 1(vii)

calls for production of “any document related to any request for information issued or received

by Deutsche Bank AG pursuant to Sections 314(a) or 314(b) of the USA PATRIOT Act,” provisions

that concern money laundering.86 private banking records, “The very nature of the investigative function––like any

research––is that it takes the searchers up some ‘blind alleys’ and into

nonproductive enterprises. To be a valid legislative inquiry there need be no

predictable end result.” Eastland

, 421 U.S. at 509.

Any attempt to identify for exclusion from disclosure documents within the

listed paragraphs must be done with awareness that a principal legislative

purpose of the Committees is to seek information about the adequacy of banking

regulators’ steps to prevent money laundering, a practice that typically disguises

illegal transactions to appear lawful. Many documents facially appearing to reflect

normal business dealings will therefore warrant disclosure for examination and

analysis by skilled investigators assisting the Committees to determine the

effectiveness of current regulation and the possible need for improved legislation.

Procedure for exclusion of specific documents. To facilitate exclusion of sensitive

documents and those few documents that should be excluded from the coverage

of the listed paragraphs, we instruct the District Court on remand to implement

the following procedure: 74 (1) after each of the Banks has promptly, and in no event

beyond 30 days, assembled all documents within the coverage of paragraphs 1(ii),

74 See 28 U.S.C. § 2106 (appellate court “may remand the cause and

. . . require such further

proceedings to be had as may be just under the circumstances.”).87 1(iv), 1(vi)(e), 1(viii), and 8 of the Deutsche Bank Subpoenas and paragraphs 1(iv),

1(v), 1(x), and 1(xi)(d) of the Capital One Subpoena, counsel for Appellants shall

have 14 days to identify to the District Court all sensitive documents and any

documents (or portions of documents) within the coverage of the listed

paragraphs that they contend should be withheld from disclosure, under the

limited standard discussed above; (2) counsel for the Committees shall have seven

days to object to the nondisclosure of such documents; (3) the District Court shall

rule promptly on the Committees’ objections; (4) Appellants and the Committees

shall have seven days to seek review in this Court of the District Court’s ruling

with respect to disclosure or nondisclosure of documents pursuant to this

procedure. 75 Any appeal of such a ruling will be referred to this panel.

The abbreviated timetable of this procedure is set in recognition of the

Supreme Court’s instruction that motions to enjoin a congressional subpoena

should “be given the most expeditious treatment by district courts because one

branch of Government is being asked to halt the functions of a coordinate branch.”

Eastland

, 421 U.S. at 511 n.17.

75 Review may be initiated by a letter to the Clerk of this Court, referencing the existing

docket number, without the need to file a notice of appeal.88 All other documents. All documents within the coverage of the paragraphs

not listed and those documents not excluded pursuant to the procedure outlined

above shall be promptly transmitted to the Committees in daily batches as they

are assembled, beginning seven days from the date of this opinion.

Except as provided above, all three subpoenas seek documents that the

Committees are entitled to believe will disclose information pertinent to legitimate

topics within the Committees’ authorized investigative authority, especially

money laundering, inappropriate foreign financial relationships with the named

individuals and entities, and Russian operations to influence the U.S. political

process. As the Supreme Court has observed, documents subpoenaed by a

congressional committee need only be “not plainly incompetent or irrelevant to

any lawful purpose [of a committee] in the discharge of its duties.” McPhaul v.

United States

, 364 U.S. 372, 381 (1960) (quotation marks and brackets omitted). The

documents sought by the three subpoenas easily pass that test. The subpoenas are

reasonably framed to aid the Committees in fulfilling their responsibilities to

conduct oversight as to the effectiveness of agencies administering statutes within

the Committees’ jurisdiction and to obtain information appropriate for

consideration of the need for new legislation.89 Objections of the United States as amicus curiae

. The United States makes

several additional arguments in its amicus curiae brief. The amicus brief contends

that “the possibility that a subpoena might transgress separation

‐ of

‐ powers

limits

. . . mandates that the House clearly authorize a subpoena directed at [the

President’s] records.” Br. for Amicus United States at 10 (citing Franklin v.

Massachusetts

, 505 U.S. 788, 800

‒ 01 (1992), and Armstrong v. Bush

, 924 F.2d 282, 289

(D.C. Cir. 1991)). First, this case does not concern separation of powers. The Lead

Plaintiff is not suing in his official capacity, no action is sought against him in his

official capacity, no official documents of the Executive Branch are at issue,

Congress has not arrogated to itself any authority of the Executive Branch, and

Congress has not sought to limit any authority of the Executive Branch.

Second, the cited cases, Franklin and Armstrong

, do not concern

congressional requests for information. Both require a clear statement from

Congress when a statute is claimed to limit presidential power. In all of the

numerous decisions concerning congressional subpoenas for information from

Executive Branch officials, including the President, there is not even a hint, much

less a ruling, that the House (or Senate) is required to authorize a specific subpoena

issued by one of its committees. In any event, the materials cited above provide90 sufficient clarity, in light of Supreme Court decisions concerning congressional

investigations, to authorize subpoenas for the Lead Plaintiff’s unofficial business

records in aid of valid legislative purposes.

The amicus brief argues that a President is “entitled to special solicitude in

discovery,” Br. for Amicus United States at 6 (citing Cheney

, 542 U.S. at 385, and In

re Trump

, 928 F.3d 360, 371

‒ 72 (4th Cir. 2019)), “even in suits solely related to his

private conduct,” id

. (citing Jones

, 520 U.S. at 707). As a general proposition, we

agree and have endeavored to recognize that point in the special procedure we

have directed the District Court to follow on a limited remand. We note, however,

that in Cheney the Supreme Court was careful to point out that “special

considerations control when the Executive Branch’s interests in maintaining the

autonomy of its office and safeguarding the confidentiality of its communications

are implicated.” Cheney

, 542 U.S. at 385. In the pending appeal, the Lead Plaintiff

is suing in his individual capacity, no confidentiality of any official documents is

asserted, and any concern arising from the risk of distraction in the performance

of the Lead Plaintiff’s official duties is minimal in light of the Supreme Court’s

decision in Clinton v. Jones

, and, in any event, far less substantial than the

importance of achieving the legislative purposes identified by Congress. In Jones

,91 the claimed distraction was that attending a deposition and being subjected to a

civil trial would divert some of the President’s time from performance of his

official duties; in the pending case, there is no claim of any diversion of any time

from official duties. Jones

, although expressing concern with “the high respect that

is owed to the office of the Chief Executive,” not only permitted discovery directed

to the President but also obliged him to be subjected to a civil trial. 520 U.S. at 707. 76

In re Trump

, 928 F.3d at 379

‒ 80, concerned a petition for mandamus directing a

District Court to dismiss for lack of standing a complaint alleging violation of the

Foreign and Domestic Emoluments Clauses, U.S. Const. art I, § 9, cl. 8, art II, § 1,

cl. 7.

76 Judge Livingston seeks to minimize the significance of Clinton v. Jones on several

grounds

. First, she attempts to refute our point that this case does not involve separation

‐ of

‐

powers concerns, Part. Diss. Op. at 15

‒ 16, but in doing so, she accords little significance to the

major reason for that point: the Lead Plaintiff is suing in his individual, not his official, capacity.

She then seeks to relegate Jones to near insignificance by referring to “longstanding interbranch

practice,” id

. at 17, again ignoring the fact that this litigation is not a conflict between branches of

the Government. The fact that the United States filed only an amicus curiae brief, rather than

intervene to assert the interests of the United States or those of the office of the President,

underscores the absence of a true interbranch conflict. The point that compliance with the

subpoenas will not have an impact on the Lead Plaintiff’s time sufficient to bar compliance arises

from a comparison with Clinton v. Jones

, in which the Supreme Court required a President to be

available for a deposition and be subject to a civil trial. The so

‐ called distraction of the Lead

Plaintiff is of far less significance than what the Supreme Court permitted with respect to

President Clinton. In sum, Judge Livingston offers no reason to think that compliance with the

subpoenas will distract the Lead Plaintiff from the performance of official duties to a greater

extent than the Supreme Court permitted in Clinton v. Jones

.92 The amicus brief not only repeats Appellants’ argument that the House

must identify a legitimate legislative purpose for seeking the President’s

information, but adds that it must do so “with sufficient particularity that courts

can concretely review the validity of any potential legislation and determine

whether the information requested is pertinent and necessary to Congress’s

consideration of such legislation.” Br. for Amicus United States at 11. The meaning

of this sentence is not clear. If it means that legislative purpose must be sufficiently

identified to enable a court now to consider the validity of any legislation that

might be enacted in the future, it would encounter the prohibition on advisory

opinions. See Flast v. Cohen

, 392 U.S. 83, 96 (1968) (“[T]he rule against advisory

opinions implements the separation of powers prescribed by the Constitution and

confines federal courts to the role assigned them by Article III.”). On the other

hand, if the sentence means that legislative purpose must be sufficiently identified

so that it will serve as an aid in interpreting legislation that might be enacted in

the future, there is no requirement that legislative purpose sufficient to support a

congressional subpoena must also suffice to aid a court in interpreting some

statute yet to be enacted. In any event, the legislative purposes of the Committees’

subpoenas have been sufficiently identified.93 Refining Appellants’ argument that the Committees’ valid legislative

purposes have not been adequately identified, the amicus brief argues that “courts

must assess ‘the connective reasoning whereby the precise questions asked relate

to’ the legitimate legislative purpose.” Br. for Amicus United States at 14 (quoting

Watkins

, 354 U.S. at 215). This quotation from Watkins is difficult to square with

the Supreme Court’s later statement in McPhaul that subpoenaed documents need

only be “not plainly incompetent or irrelevant to any lawful purpose [of a

committee] in the discharge of its duties.” McPhaul

, 364 U.S. at 381 (quotation

marks and brackets omitted). It would appear that the “connective reasoning”

phrase of Watkins

, if still valid at all, is limited to the context in which it was said

‒

a committee witness’s objection to a specific question

‒ and not to a subpoena for

adequately described categories of documents that are relevant to adequately

identified valid legislative purposes of investigation.

The amicus brief argues that subpoenaed information “not ‘demonstrably

critical’ should be deemed insufficiently pertinent when directed at the President’s

records.” Br. for Amicus United States at 15 (quoting Senate Select Committee on

Presidential Campaign Activities v. Nixon

, 498 F.2d 725, 731 (D.C. Cir. 1974) (in

banc)). The D.C. Circuit used the phrase “demonstrably critical” as a standard for94 overcoming a claim of executive privilege. See Nixon

, 498 F.2d at 727. President

Nixon had asserted that tape recordings of his conversations with senior staff

“cannot be made public consistent with the confidentiality essential to the

functioning of the Office of the President.” Id

. (internal quotation marks omitted).

In the pending appeal, no claim of executive privilege has been made, much less a

claim that withholding the subpoenaed documents is “essential to the functioning

of the Office of the President.” Id

.

The amicus brief asserts that “[c]ourts may require the Committees first ‘to

narrow the scope of the subpoenas’ to first seek critical information in light of the

President’s constitutional interests,” Br. for Amicus United States at 17 (ellipsis

omitted) (quoting Cheney

, 542 U.S. at 390), and that “[c]ourts may require Congress

first to determine whether records relevant to a legitimate legislative purpose are

not, in fact, available from other sources that would not impinge on constitutional

interests,” id

. (citing Watkins

, 354 U.S. at 206). That argument has no application to

the many documents that were generated by the Banks. Moreover, the District

Court was not required to do what it “may” do, 77 and the President’s

77 The amicus brief asserts that the District Court “assumed that it had no authority to deal

with the overbroad character of the congressional subpoenas here.” Br. for Amicus United States

at 25 (citing J. App’x 138). We see no indication that the District Court made such an assumption,

either at the cited reference to the District Court’s opinion or elsewhere in that opinion.95 “constitutional interests” are implicated when official documents are sought, as in

Cheney

, precipitating “a conflict between the [L]egislative and [E]xecutive

[B]ranches,” AT&T I

, 551 F.2d at 390.

The amicus brief contends that H.R. 507 is insufficient authorization for the

subpoenas to the extent that it authorizes not only current subpoenas to the named

persons and entities but also future subpoenas to them. Br. for Amicus United

States at 18. Because the pending appeal concerns denial of a preliminary

injunction to prevent compliance with issued subpoenas, we make no

determination with respect to future subpoenas.

In an overarching argument endeavoring to strengthen and make decisive

many of the arguments just considered, the amicus brief urges the principle of

constitutional avoidance. Confronting a constitutional challenge to a statute of

uncertain meaning, courts sometimes interpret the statute so that it clearly

comports with the Constitution. See

, e.g.

, Crowell v. Benson

, 285 U.S. 22, 62 (1932).

Enlisting the principle of constitutional avoidance in the pending appeal, the

amicus brief contends that the principle should persuade this Court to require the

Committees to “‘explore other avenues’” for obtaining the information, Br. for

Amicus United States at 3 (quoting Cheney

, 542 U.S. at 390); to require the District96 Court “to proceed in a more tailored manner,” id

. at 5; to approach “with the

utmost caution” the task of “balanc[ing] Congress’s interest in the information

against any constitutional interests of the party withholding it,” id

. at 16; and to

require the District Court “to attempt to avoid a conflict between constitutional

interests before it can ‘intervene responsibly,’” id

. at 17

‒ 18 (quoting AT&T II

, 567

F.2d at 131). The amicus brief also reminds us of the Supreme Court’s statement in

Rumely suggesting “abstention from adjudication unless no choice is left. ” 345 U.S.

at 46.

In the circumstances of this case, we do not believe that constitutional

avoidance adds persuasive force to the arguments in the amicus brief. First, we

question whether constitutional avoidance applies beyond the context of

interpreting ambiguous statutes that are challenged as unconstitutional. The

Supreme Court considered that question in an analogous situation in FCC v. Fox

Television Stations, Inc.

, 556 U.S. 502 (2009). Broadcasters urged the Court to apply

to the FCC a more stringent arbitrary

‐ and

‐ capricious standard of review of agency

actions that implicate constitutional liberties. See id

. at 516. In declining to do so,

the Court said, “We know of no precedent for applying [the principle of

constitutional avoidance] to limit the scope of authorized executive action.” Id

. at97 516. Similarly, it is at least doubtful whether the principle should be enlisted to

limit the scope of authorized congressional action.

Second, to the extent that decisions like Cheney and Rumely advised courts

to proceed with caution, they did so in contexts quite different from the pending

appeal. Cheney involved a real confrontation between the Legislative and

Executive Branches; Rumely involved a “limitation imposed by the First

Amendment,” 345 U.S. at 44. By contrast, the pending appeal involves solely

private financial documents, and the Lead Plaintiff sues only in his individual

capacity. The only defense even implicating the office of the presidency is the

possibility that document disclosure might distract the Lead Plaintiff in the

performance of his official duties, a risk we have concluded, in light of Supreme

Court precedent, Clinton v. Jones, is minimal at best. Appellants make no claim that

Congress or its committees are purporting to curb in any way the powers of the

Executive Branch.

For all of these reasons, we see no reason to permit constitutional avoidance

to provide added strength to the arguments of the amicus or Appellants

themselves.98 Having considered Appellants’ statutory and constitutional claims, we

conclude that they have not shown a likelihood of success on any of them. In

reaching this conclusion, we recognize that we are essentially ruling on the

ultimate merits of Appellants’ claims. But, as the Supreme Court has pointed out,

“Adjudication of the merits is most appropriate if the injunction rests on a question

of law and it is plain that the plaintiff cannot prevail.” MuFnaf v. Geren

, 553 U.S.

674, 691 (2008). That is the situation here.

III. Sufficiently Serious Questions to Make Them a Fair Ground for Litigation

In considering the less rigorous serious

‐ questions standard for a

preliminary injunction, it is important to recognize that the first component of this

standard, in addition to a balance of hardships tipping decidedly in favor of the

moving party, is “sufficiently serious questions going to the merits to make them a

fair ground for litigation .” Kelly

, 933 F.3d at 184 (emphasis added) ; Jackson Dairy

, 596

F.2d at 72

. The meaning of this emphasized phrase rarely receives explicit

consideration. Two interpretations are possible.

The phrase could mean that the questions raised have sufficiently serious

legal merit to be open to reasonable debate. That view of the phrase would be

especially appropriate in those cases where the need for preliminary relief99 precipitously arose just prior to some impending event and the party seeking

temporary relief has not had an adequate opportunity to fully develop its legal

arguments. Alternatively, or in addition, the phrase could mean that the questions

raised have sufficiently serious factual merit to warrant further investigation in

discovery and, if summary judgment is not warranted, at trial.

In the pending appeal, the District Court stated, “The word ‘serious’ relates

to a question that is both serious and open to reasonable debate.” J. App’x 150. But

Judge Ramos declined to accept Appellants’ claim that just raising a constitutional

objection to the subpoenas sufficed to render the claim serious. As he observed, if

that sufficed, “every complaint challenging the power of one of the three

coordinate branches of government would result in preliminary relief, regardless

of whether established law renders the complaint unmeritorious.” Id

.

Our case law indicates that the phrase “make them fair ground for

litigation” often refers to those factual disputes that can be resolved at trial only

after investigation of the facts. We have stated that the questions raised by a

plaintiff’s claims must be “so serious, substantial, difficult and doubtful as to make

them a fair ground for litigation and thus for more deliberate investigation .” Hamilton

Watch Co. v. Benrus Watch Co.

, 206 F.2d 738, 740 (2d Cir. 1953) (emphasis added).100 The emphasized words appear to have originated in Hamilton Watch

, but have

been frequently repeated by this Court. See Gulf & Western Industries, Inc. v. Great

Atlantic & Pacific Tea Co.

, 476 F.2d 687, 692, 93 (2d Cir. 1973); Checker Motors Corp.

v. Chrysler Corp.

, 405 F.2d 319, 323 (2d Cir. 1969); Unicon Management Corp. v.

Koppers Co.

, 366 F.2d 199, 205 (2d Cir. 1966). More recently, we pointed out in

Citigroup Global Markets that a virtue of the serious

‐ questions standard is “that it

permits the entry of an injunction in cases where a factual dispute renders a fully

reliable assessment of the merits impossible.” 598 F.3d at 36 (emphasis added). For

example, in Jacobson & Co. v. Armstrong Cork Co.

, 548 F.2d 438 (2d Cir. 1977), we

affirmed a preliminary injunction under the serious

‐ questions standard because

the plaintiff had presented affidavits, depositions, and exhibits sufficient to contest

the factual issue of the reason for an employee’s termination, see id

. at 444.

We need not choose between these meanings of “fair ground for litigation.”

Appellants are not entitled to a preliminary injunction under the serious

‐ questions

standard because (1) that standard, as we have discussed, see Part I, does not apply

to preliminary injunctive relief sought to prevent governmental action, and (2)

even if applicable, the standard requires a balance of hardships that tips decidedly

to the plaintiff, a requirement not met in this case, see Point IV. We also point out101 that, to the extent that the serious

‐ questions standard furnishes an opportunity to

develop legal arguments concerning a reasonably debatable question, Appellants

have fully developed their positions in the 95 pages of briefs they have submitted.

To the extent that the serious

‐ questions standard is available for factual

development of an issue, Appellants have not identified a single factual issue that

might warrant a trial or a single witness or document that might add substance to

their claims at a trial.

Furthermore, both their statutory and constitutional claims, though serious

in at least some sense, lack merit, and, because they both involve solely issues of

law, are properly rejected at this stage of the litigation, s ee Munaf

, 553 U.S. at 691

‒

92, except for the limited remand we have ordered.

IV. Balance of Hardships/Equities

The hardship for Appellants if a preliminary injunction is denied would

result from the loss of privacy for their financial documents. We have recognized

that this loss of privacy is irreparable. In assessing the seriousness of that loss for

purposes of determining the balance of hardships, we note that the loss will be

somewhat mitigated to the extent that sensitive personal information and some

documents will not be disclosed pursuant to the procedure we have ordered upon102 remand. The seriousness of the hardship arising from disclosure of the

information called for by the subpoenas should be assessed in light of the fact that

the Lead Plaintiff is already required to expose for public scrutiny a considerable

amount of personal financial information pursuant to the financial disclosure

requirement of the Ethics in Government Act, 5 U.S.C. app. §§ 101

‒ 111, although

considerably more financial information is required to be disclosed by the

subpoenas.

The hardship for the Committees if a preliminary injunction is granted

would result from the loss of time to consider and act upon the material disclosed

pursuant to their subpoenas, which will expire at the end of the 116th Congress.

This loss is also irreparable. In assessing the seriousness of that loss for purposes

of determining the balance of hardships, we note that the Committees have

already been delayed in the receipt of the subpoenaed material since April 11

when the subpoenas were issued. They need the remaining time to analyze the

material, hold hearings, and draft bills for possible enactment.

Even if the balance of these hardships/equities tips in favor of Appellants,

which is debatable, it does not do so “decidedly,” Kelly

, 933 F.3d at 184; Jackson

Dairy

, 956 F.2d at 72

, as our serious

‐ questions standard requires

.103 V. Public Interest

The public interest in vindicating the Committees’ constitutional authority

is clear and substantial. It is the interest of two congressional committees,

functioning under the authority of a resolution of the House of Representatives

authorizing the subpoenas at issue, to obtain information on enforcement of anti

‐

money

‐ laundering/counter

‐ financing of terrorism laws, terrorist financing, the

movement of illicit funds through the global financial system including the real

estate market, the scope of the Russian government’s operations to influence the

U.S. political process, and whether the Lead Plaintiff was vulnerable to foreign

exploitation. The opposing interests of Appellants, suing only in their private

capacity, are primarily their private interests in nondisclosure of financial

documents concerning their businesses, rather than intimate details of someone’s

personal life or information the disclosure of which might, as in Watkins

, 354 U.S.

at 197

‒ 99, chill someone’s freedom of expression.

We recognize, however, that the privacy interests supporting nondisclosure

of documents reflecting financial transactions of the Lead Plaintiff should be

accorded more significance than those of an ordinary citizen because the Lead

Plaintiff is the President. Although the documents are not official records of the104 Executive Branch, the Lead Plaintiff is not suing in his official capacity, and no

executive privilege has been asserted, disclosure of the subpoenaed documents

can be expected to risk at least some distraction of the Nation’s Chief Executive in

the performance of his official duties. See Nixon v. Fitzgerald

, 457 U.S. 731, 753

(1982) (noting risk of distraction as one reason for establishing immunity of

President from civil liability for official actions). That concern, we note, did not

dissuade the Supreme Court from requiring President Nixon to comply with a

district court’s subpoena to produce tape recordings of conversations with senior

staff, see United States v. Nixon

, 418 U.S. 683 (1974), or requiring President Clinton

to submit to discovery, including a deposition, in civil litigation involving pre

‐

presidential conduct, see Jones

, 520 U.S. at 697

‒ 706. 78 See also Trump v. Vance

, 941

F.3d 631, 641 n. 12 (2d Cir. 2019) (concluding that “the disclosure of personal

financial information, standing alone, is unlikely to impair the President in

78 In Jones

, the Supreme Court stated, “ The fact that a federal court’s exercise of its

traditional Article III jurisdiction may significantly burden the time and attention of the Chief

Executive is not sufficient to establish a violation of the Constitution.” 520 U.S. at 703. The same

can be said as to Congress’s exercise of its traditional Article I jurisdiction. One court has

discounted concern that compliance with document requests might distract the President in the

performance of official duties by noting that “the President himself appears to have had little

reluctance to pursue personal litigation despite the supposed distractions it imposes upon his

office.” District of Columbia v. Trump

, 344 F. Supp. 3d 828, 843 (D. Md. 2018) (collecting examples),

rev’d on other grounds (lack of standing)

, In re Trump

, 928 F.3d 360 (4th Cir. 2019).105 performing the duties of his office”), petition for cert. filed

, No. 19

‐ 635 (U.S. Nov. 14,

2019).

The Committees’ interests in pursuing their constitutional legislative

function is a far more significant public interest than whatever public interest

inheres in avoiding the risk of a Chief Executive’s distraction arising from

disclosure of documents reflecting his private financial transactions.

Conclusion

For all of these reasons, we conclude that under the applicable likelihood

‐

of

‐ success standard, Appellants’ motion for a preliminary injunction was properly

denied, except as to disclosure of any documents that might be determined to be

appropriate for withholding from disclosure pursuant to our limited remand. The

serious

‐ questions standard is inapplicable, the balance of hardships does not tip

decidedly in favor of Appellants, and the public interest favors denial of a

preliminary injunction.

We affirm the District Court’s order in substantial part to the extent that it

denied a preliminary injunction and order prompt compliance with the

subpoenas, except that the case is remanded to a limited extent for implementation

of the procedure set forth in this opinion concerning the nondisclosure of sensitive106 personal information and a limited opportunity for Appellants to object to

disclosure of other specific documents within the coverage of those paragraphs of

the subpoenas listed in this opinion. The mandate shall issue forthwith, but

compliance with the three subpoenas and the procedure to be implemented on

remand is stayed for seven days to afford Appellants an opportunity to apply to

the Supreme Court or a Justice thereof for an extension of the stay.1 D EBRA A NN L IVINGSTON

, Circuit Judge

, concurring in part and dissenting in part:

Although not expressly provided for in the Constitution, Congress’s power

to conduct investigations for the purpose of legislating is substantial, “as

penetrating and far

‐ reaching as the potential power to enact and appropriate

under the Constitution.” Eastland v. U.S. Servicemen’s Fund

, 421 U.S. 491, 504 n.15

(1975) (quoting Barenblatt v. United States

, 360 U.S. 109, 111 (1959)). Yet this power

is not unlimited. When Congress conducts investigations in aid of legislation, its

authority derives from its responsibility to legislate —to consider the enactment of

new laws or the improvement of existing ones for the public good. 1 Congress has

no power to expose personal information for the sake of exposure, see Watkins v.

United States

, 354 U.S. 178, 200 (1957) (expressing “ no doubt that there is no

congressional power to expose for the sake of exposure” (emphasis added)), nor

1 None of these subpoenas issued in connection with an impeachment proceeding,

in which Congress’s investigatory powers are at their peak, but rather, as stated, “in aid

of legislation.” See Kilbourn v. Thompson

, 103 U.S. 168, 190 (1880) (noting that “[w]here

the question of

. . . impeachment is before [the House or the Senate] acting in its

appropriate sphere on that subject, we see no reason to doubt the right to compel the

attendance of witnesses, and their answer to proper questions, in the same manner and

by the use of the same means that courts of justice can in like cases”); Senate Select Comm.

on Presidential Campaign Activities v. Nixon

, 498 F.2d 725, 732 (D.C. Cir. 1974) (citing to

Article I, Section 2 of the Constitution when noting that impeachment investigations in

the House have “an express constitutional source” which differentiates them from

Congress’s general oversight or legislative power).2 may it seek information to enforce laws or punish for their infraction—

responsibilities which belong to the executive and judicial branches respectively,

and not to it. Id. at 187 (noting that Congress is neither “a law enforcement [n]or

trial agency,” as “[t]hese are functions of the executive and judicial departments

of government”). As the Supreme Court has put it: “No inquiry is an end in

itself; it must be related to, and in furtherance of, a legitimate task of the Congress.

Investigations conducted solely for the personal aggrandizement of the

investigators or to ‘punish’ those investigated are indefensible.” Id.

The legislative subpoenas here are deeply troubling. Targeted at the

President of the United States but issued to third parties, they seek voluminous

financial information not only about the President personally, but his wife, his

children, his grandchildren, his business organizations, and his business

associates. 2 Collectively, the subpoenas seek personal and business banking

records stretching back nearly a decade (and with regard to several categories of

2 The Plaintiff entities here are defined to include not only parents, subsidiaries,

related joint ventures and the like, but any “current or former employee, officer, director,

shareholder, partner, member, consultant, senior manager, manager, senior associate,

staff employee, independent contractor, agent, attorney or other representative of any of

those entities,” so that the banking records of numerous individuals beyond the

President’s immediate family are potentially included in this dragnet. J.A. at 47, 58.3 information, with no time limitation whatsoever ) and they make no distinction

between business and personal affairs, nor consistently between large and small

receipts and expenditures. To be sure, breadth may be necessary in legislative

subpoenas so that Congress can learn about a proposed subject of legislation

sufficiently to enact new laws or improve the old ones: such learning is “an

indispensable ingredient of lawmaking.” 3 Eastland

, 421 U.S. at 505. Still, the

district court was of the view that in a routine civil case, it would have sent the

parties into a room with the instruction that “you don’t come out until you come

back with a reasonable subpoena.” J.A. at 94. The majority doesn’t disagree.

It, too, characterizes the subpoenas as “surely broad in scope.” Maj. Op. at 45.

It acknowledges that compliance will “subject [the President’s] private business

affairs to the Committees’ scrutiny,” id. at 48, and impose irreparable harm, id. at

13. It could have added that personal banking records of the President and his

family are not excluded, and that neither House committee seeking this

3 That said, “legislative judgments normally depend more on the predicted

consequences of proposed legislative actions and their political acceptability, than on

precise reconstruction of past events,” which appears to be the focus of the present

subpoenas. Nixon

, 498 F.2d at 732.4 information will commit to treating any portion of it as confidential, irrespective

of any public interest in disclosure. J.A. at 122–23.

The majority and I are in agreement on several points. First, we agree that

the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401–3423, does not

apply to Congress because, as the majority correctly concludes, Congress is not a

“Government authority” within the meaning of that statute. Maj. Op. at 24–33.

We likewise agree that 26 U.S.C. § 6103 of the Internal Revenue Code does not pose

an obstacle to Deutsche Bank AG’s disclosure of tax returns in its possession in

response to the Committees’ subpoenas. Id. at 34–44. Accordingly, I concur

that, as to the statutory arguments presented by the Plaintiffs, they have raised no

serious question suggesting that the House subpoenas may not be enforced.

The statutory arguments, however, are not the only arguments presented.

The majority and I agree that this appeal raises an important issue regarding the

investigative authority of two committees of the United States House of

Representatives—the House Committee on Financial Services and the House

Permanent Select Committee on Intelligence (collectively, “Committees”)—in the

context of their efforts to obtain voluminous personal and business banking

records of the President of the United States, members of his immediate family,5 his primary business organization and affiliated entities, and his business

associates. Maj. Op. at 4. In fact, the question before us appears not only

important (as the majority acknowledges) but of first impression: the parties are

unaware of any Congress before this one in which a standing or permanent select

committee of the House has issued a third

‐ party subpoena for documents

targeting a President’s personal information solely on the rationale that this

information is “in aid of legislation.” Trump Br. at 14; Tr. of Oral Arg. at 34:24–

35:3–4. But this House has now authorized all such House committees to issue

legislative subpoenas of this sort, so long as directed at information involving this

President, his immediate family, business entities, or organizations. H.R. Res.

507, 116th Cong. (2019); see also H.R. Res. 509, 116th Cong. § 3 (2019) (“House

Resolution 507 is hereby adopted.”).

In such a context, “experience admonishes us to tread warily.” United

States v. Rumely

, 345 U.S. 41, 46 (1953). I agree with the majority that our review

of the denial of a preliminary injunction is “appropriately more exacting where

the action sought to be enjoined concerns the President

. . . in view of ‘[t]he high

respect that is owed to the office of the Chief Executive,’” Maj. Op. at 11 (quoting

Cheney v. U.S. Dist. Court

, 542 U.S. 367, 385 (2004)). We disagree, however, as to6 the preliminary injunction standard to be applied. In my view, a preliminary

injunction may issue in a case of this sort when a movant has demonstrated

sufficiently serious questions going to the merits to make them a fair ground for

litigation, plus a balance of hardships tipping decidedly in that party’s favor, that

the public interest favors an injunction, and that the movant, as here, will

otherwise suffer irreparable harm. See Citigroup Glob. Markets, Inc. v. VCG Special

Opportunities Master Fund Ltd

., 598 F.3d 30, 35, 38 (2d Cir. 2010).

And as to the merits showing, I respectfully disagree with the majority’s

determination that the Plaintiffs’ constitutional arguments and those raised by the

United States as amicus curiae are insubstantial —not sufficiently serious for closer

review. 4 Maj. Op. at 89–98. I cannot accept the majority’s conclusions that “this

case does not concern separation of powers,” id

. at 89, and that there is “minimal

at best” risk of distraction to this and future Presidents from legislative subpoenas

of this sort, id. at 97. Instead, I conclude that the Plaintiffs have raised serious

4 Given my determination herein that the Plaintiffs have made a showing of

“serious questions” as to the merits and that this case must be remanded, I need not now

address whether the Plaintiffs have also satisfied the “likelihood of success” standard—

and I do not do so, given the obligation in this context to avoid unnecessary judicial

determinations on constitutional questions implicating Congress’s investigative powers.

See Rumely

, 345 U.S. at 46. I note, however, that I do not concur in the majority’s

determination that as to the present reach of these subpoenas, the Plaintiffs have shown

no likelihood of success.7 questions on the merits, implicating not only Congress’s lawmaking powers, but

also the ability of this and future Presidents to discharge the duties of the Office of

the President free of myriad inquiries instigated “more casually and less

responsibly” than contemplated in our constitutional framework. Rumely

, 345

U.S. at 46.

Nor do I agree with the majority’s determination substantially to affirm the

judgment and order compliance with these subpoenas. The majority itself

recognizes that these broad subpoenas cannot be enforced precisely as drafted

because they call for the production of material that may either bear “an

attenuated relationship” to any legislative purpose or that “might [even] reveal

sensitive personal details having no relationship to the Committees’ legislative

purposes.” Maj. Op. at 84 (emphasis added). The majority remands for a

culling process pursuant to which information disclosing, for instance, the

payment of medical expenses would be exempt from disclosure. Id

. The

majority’s limited culling, however, is tightly restricted to specified categories of

information, leaving out almost all “business

‐ related financial documents” from

any review by the district court, id.

, irrespective of any threatened harm from

disclosure, and potentially leaving out substantial personal information as well.8 Indeed, given the tight limitations imposed by the majority on the district court’s

review, even sensitive records reflecting personal matters unrelated to any

conceivable legislative purpose could potentially be disclosed.

I agree with the majority that remand is necessary. But we disagree as to

the reasons why. I conclude that the present record is insufficient to support the

majority’s determination that the voluminous records of Plaintiffs sought from

Deutsche Bank AG (“Deutsche Bank”) and Capital One Financial Corporation

(“Capital One”) should at this time be produced. 5 The majority concludes in

advance—before these records have been assembled—that only a select “few

documents ” will implicate privacy concerns or bear “such an attenuated

relationship” to any legislative purpose that “they need not be disclosed.” Maj.

Op. at 85 (emphasis added). I disagree that the present record is sufficient to

make that determination or to conclude, more fundamentally, where the balance

of hardships lies with regard to the preliminary relief that the Plaintiffs seek. In

this sensitive separation

‐ of

‐ powers context, serious questions have been raised as

5 The Plaintiffs challenge the subpoenas as they relate to the banking records of

President Donald J. Trump, his family, and his businesses—the Plaintiffs here. Trump

Br. at 1. To the extent the subpoenas seek other information related to parties who are

not Plaintiffs, the subpoenas have not been challenged and are not part of this appeal.9 to the historical precedent for these subpoenas; whether Congress has employed

procedures sufficient to “prevent the separation of power from responsibility,”

Watkins

, 354 U.S. at 215, in seeking this President’s personal information; and

whether the subpoenas are supported by valid legislative purposes and seek

information reasonably pertinent to those purposes, see Quinn v. United States

, 349

U.S. 155, 161 (1955) (noting that Congress’s power to investigate “cannot be used

to inquire into private affairs unrelated to a valid legislative purpose”). These

questions, like the balance of hardship question, also require further review.

As set forth herein, I would remand, directing the district court promptly to

implement a procedure by which the Plaintiffs may lodge their objections to

disclosure with regard to specific portions of the assembled material and so that

the Committees can clearly articulate, also with regard to specific categories of

information, the legislative purpose that supports disclosure and the pertinence of

such information to that purpose. The objective of this remand is the creation of

a record that is sufficient more closely to examine the serious questions that the

Plaintiffs have raised and to determine where the balance of hardships lies with

regard to an injunction in this case, and concerning particular categories of

information. The district court acknowledged that in a routine civil case, it would10 not have ordered the disclosures here. The majority errs in implicitly concluding

that a President has less protection from the unreasonable disclosure of his

personal and business affairs than would be afforded any litigant in a civil case.

Only on the basis of this fuller record would I determine the question

whether a preliminary injunction should have issued, and with regard to what

portions of the records sought. In reaching this conclusion, I am guided by the

Supreme Court’s counsel in Rumely that in the context of delicate constitutional

issues involving limits on the investigative power of Congress, our duty is to avoid

pronouncement “unless no choice is left.” Rumely

, 345 U.S. at 46; cf. Cheney

, 542

U.S. at 389–90 (suggesting that courts should “explore other avenues” to avoid

adjudicating “overly broad discovery requests” and “unnecessarily broad

subpoenas” that present “collision course” conflicts between coequal branches).

Indeed, Rumely affirms that the duty of constitutional avoidance is “even more

applicable” in the context of congressional investigations “than to formal

legislation.” Rumely

, 345 U.S. at 46; see also Tobin v. United States

, 306 F.2d 270, 275

(D.C. Cir. 1962) (recognizing duty of courts in appropriate circumstances to avoid

“passing on serious constitutional questions” presented by Congress’s exercise of11 its investigative power). Decision here may be required, but is premature on the

present record.

Remand will also afford the parties an opportunity to negotiate. This is not

the essential point of the remand I propose, but efforts at negotiation in this context

are to be encouraged, since they may narrow the scope of these subpoenas, and

thus avoid judicial pronouncement on the “broad confrontation now tendered.”

United States v. Am. Tel. & Tel. Co ( AT&T I ), 551 F.2d 384, 395 (D.C. Cir. 1976). The

Plaintiffs have repeatedly sought the opportunity to negotiate. Reply Br. at 6–7;

Tr. of Oral Arg. at 17:18–19, 18:3–20, 66:7

‐ 67:2. And the Committees, while

preferring the more immediate disposition that the majority affords them, have

expressed a willingness to attempt negotiation on an expedited basis if requested

by this Court. 6 Tr. of Oral Arg. at 46:8–19.

6 Before this Court, counsel for the Committees stated that “[i]f this court thinks

there should be negotiation

. . . [p]lease make it really, really fast, because we think that

Mr. Trump’s statements make clear this is absolutely insincere

. . . [b]ut fine, give us a

day.” Tr. of Oral Arg. at 46:8

‐ 15. Counsel for the Plaintiffs specifically affirmed in

response that “I don’t think there is any basis to determine that we are being insincere,

and I certainly welcome, I think that we have made clear, sending this case back down

for judicially refereed negotiations on whatever timeline the court thinks is appropriate

is absolutely something we are willing to participate in in good faith.” Tr. of Oral Arg.

at 66:21

‐ 67:2.

Referencing an October 8, 2019 letter from Pat A. Cippolone, Counsel to the

President, to the Speaker of the House of Representatives and three House committee

chairs (a letter that is not part of the record before us), the majority concludes that a12 To be clear, and as set forth herein, the Plaintiffs have raised serious

questions on the merits as to these subpoenas, which implicate profound

separation

‐ of

‐ powers concerns. 7 But pending the full remand that I outline

remand for negotiation is futile because the President has prohibited certain members of

the Administration from appearing in connection with the ongoing impeachment

inquiry. Maj. Op. at 71–72, 72 n.66. With respect, however, this letter references only

the “impeachment inquiry” and not the legislative investigations at issue here. This

letter thus provides no basis for this Court to disregard the express representations of the

Plaintiffs’ attorney that the Plaintiffs, including the President, seek to negotiate in good

faith.

7 The majority suggests that these subpoenas do not implicate separation of

powers because, inter alia

, President Trump is not suing in his official capacity. Maj. Op.

at 70. I disagree. As in Rumely

, “we would have to be that ‘blind’ Court

. . . that does

not see what ‘(a)ll others can see and understand,’” not to recognize that these subpoenas

target the President in seeking personal and business financial records of not only the

President himself, but his three oldest children and members of their immediate family,

plus the records of the Trump Organization and a litany of organizations with which the

President is affiliated. Rumely

, 345 U.S. at 44 (quoting Bailey v. Drexel Furniture Co

., 259

U.S. 20, 37 (1922)); see also id. (acknowledging “wide concern, both in and out of Congress,

over some aspects of the exercise of the congressional power of investigation”); cf. Dep’t

of Commerce v. New York

, 139 S. Ct. 2551, 2575 (2019) (noting that courts are “’not required

to exhibit a naiveté from which ordinary citizens are free’’’(quoting United States v.

Stanchich

, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.))). Indeed, the Committees

themselves acknowledge that “President Trump and the Trump Organization” are the

focus of their investigations, see 165 Cong. Rec. H2698 (daily ed. Mar. 13, 2019) (statement

of Rep. Waters), and that “given the closely held nature of the Trump Organization,”

investigation must “include [the President’s] close family members,” District Court Doc.

No. 51 at 25–26. To be sure, Presidents are not immune from legislative subpoenas.

But as I explain below, this dragnet around the President implicates separation

‐ of

‐ powers

concerns for this and future Presidents, supporting a remand as to all the Plaintiffs here.

To the extent that certain of the requested records may ultimately be found not to

implicate separation

‐ of

‐ powers concerns, such a determination can only properly be

made following a remand for development of the record.13 herein, I defer for now the question whether they have also shown a balance of

hardships tipping decidedly in their favor. The remainder of this opinion sets

out the reasons for my conclusions: (1) that the Plaintiffs have raised serious

constitutional questions as to these legislative subpoenas; and (2) that the serious

question formulation of the preliminary injunction standard is applicable,

contrary to the majority’s position.

I

A

To reiterate, the subpoenas here are very troubling. Congress “cannot

legislate wisely or effectively in the absence of information respecting the

conditions which the legislation is intended to affect or change.” Eastland

, 421

U.S. at 504. At the same time, ill

‐ conceived inquiries by congressional

committees “can lead to ruthless exposure of private lives in order to gather data”

that is unrelated and unhelpful to the performance of legislative tasks. Watkins

,

354 U.S. at 205. And the “arduous and delicate task” of courts seeking to

accommodate “the congressional need for particular information” with the

individual’s “personal interest in privacy,” id. at 198, does not grow easier when

Congress seeks a President’s personal information. Indeed, given the “unique14 constitutional position of the President” in our scheme of government, see Franklin

v. Massachusetts

, 505 U.S. 788, 800 (1992), and the grave importance of diligent and

fearless discharge of the President’s public duties, our task grows more difficult.

See Nixon v. Fitzgerald

, 457 U.S. 731, 753 (1982) (recognizing that distraction from

public duties is “to the detriment of not only the President and his office but also

the Nation that the Presidency was designed to serve”).

The majority disagrees. It concludes that this case “does not concern

separation of powers” because the sought

‐ after records are personal, not official,

and because Congress “has not arrogated to itself any authority of the Executive

Branch,” nor “sought to limit any authority of the Executive Branch.” Maj. Op.

at 89

. With respect, however, this conclusion gives too short shrift to the

Supreme Court’s analysis in Clinton v. Jones

, 520 U.S. 681 (1997), on which the

majority principally relies. There, the Supreme Court concluded that permitting

a civil case to go forward “relat[ing] entirely to the unofficial conduct of the

individual who happens to be the President” did not represent a per se

impermissible intrusion by the federal judiciary on executive power and that the

doctrine of separation of powers did not impose a categorical rule that all such

private actions must be stayed against the President while in office. Id. at 701,15 705–06. At the same time, however, the Court recognized that it is insufficient

that a branch “not arrogate power to itself”: “the separation

‐ of

‐ powers doctrine

[also] requires that a branch not impair another in the performance of its constitutional

duties .” Id. at 701 (emphasis added) (quoting Loving v. United States

, 517 U.S. 748,

757 (1996)); see also Nixon v. Admin’r of Gen. Servs.

, 433 U.S. 425, 443–45 (1977).

And as for the judiciary in the context of private litigation against a sitting

President, “[t]he high respect that is owed to the office of the Chief Executive,” the

Court recognized, “though not justifying a rule of categorical immunity, is a

matter that should inform the conduct of the entire proceeding, including the

timing and scope of discovery.” Id. at 707 ; see also Fitzgerald

, 457 U.S. at 751–56

(noting that the “special nature of the President’s constitutional office and

functions,” id. at 756, and the “singular importance,” id. at 751, of her duties

require particular “deference and restraint,” id. at 753, in the conduct of litigation

involving the President).

The majority concludes that legislative subpoenas to third parties targeting

a President’s personal or financial information, however broad and tangentially

connected to any legislative purpose, do not seriously implicate separation of

powers on the theory that “any concern arising from the risk of distraction in the16 performance of the [President’s] official duties is minimal,” Maj. Op. at 90, perhaps

less than that, id. at 103–05, at least as compared to the potential burden of standing

trial in a civil case while President, which Jones held is not categorically prohibited

by separation

‐ of

‐ powers concerns. 8 But this analysis is flawed in two key

respects.

First, the Jones Court concluded that the burden in that case—namely, a civil

suit against the President while in office—did not categorically constitute a

“constitutionally forbidden impairment of the Executive’s ability to perform its

constitutionally mandated functions” in light of the long history of judicial review

of executive action and of presidential amenability to judicial process. 520 U.S.

at 702; see also id. at 701–06. In assessing the separation

‐ of

‐ powers issue, the Court

8 The majority also relies on the fact that President Trump seeks a preliminary

injunction in his individual capacity, not his official capacity, and that the United States

has filed an amicus curiae brief rather than a motion to intervene in asserting its view that

this case presents “thorny constitutional questions involving separation of powers” and

that the district court’s order should be reversed. Brief of United States as Amicus

Curiae at 27; see Maj. Op. at 91 n.76. In Jones itself, however, President Clinton

proceeded in his individual capacity and the United States filed an amicus brief

addressing its separation

‐ of

‐ powers concerns. The Court nonetheless noted that “[t]he

representations made on behalf of the Executive Branch as to the potential impact” of a

rule permitting private litigation to proceed against a sitting President “merit

. . . respectful and deliberate consideration,” 520 U.S. at 689–90, and concluded, as already

observed, that as to any civil action regarding personal conduct permitted to proceed,

“the conduct of the entire proceeding, including the timing and scope of discovery,”

should be informed by respect for the Office of Chief Executive, id. at 707.17 heavily weighed the pragmatic accommodation between the judiciary and the

executive demonstrated by longstanding interbranch practice. See id. at 704–05

(discussing historical practice and the manner in which the judiciary has

permissibly burdened the Executive Branch). It directed inferior courts that even

as it rejected a rule of categorical immunity, the President’s unique role in the

constitutional framework should inform the entire conduct of any civil action, id.

at 707, and that “the availability of sanctions” would “provide[] a significant

deterrent to litigation directed at the President in his unofficial capacity for

purposes of political gain or harassment,” id. at 708–09. The Jones Court was thus

solicitous of separation

‐ of

‐ powers concerns in the context of litigation over a

President’s personal conduct; moreover, it continued a long tradition of placing

“great weight” on historical practice in addressing questions “concern[ing] the

allocation of power between two

. . . branches of Government,” NLRB v. Noel

Canning

, 573 U.S. 513, 524 (2014) (quoting The Pocket Veto Case

, 279 U.S. 655, 689

(1929)). 9

9 The high value placed on historical practice “is neither new nor controversial.”

Noel Canning

, 573 U.S. at 525

. James Madison observed that a “regular course of

practice” could “liquidate & settle” constitutional meaning in the face of “difficulties and

differences of opinion” involved in the practice of government under the Constitution.

James Madison, Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450

(Gaillard Hunt ed., 1908)); see also Noel Canning

, 573 U.S. at 525 (collecting cases stating18 Here, the parties have not identified, and my own search has failed to

unearth, any previous example, in any previous Congress, of a standing or

permanent select committee of the House of Representatives or the Senate using

compulsory process to obtain documents containing a President’s personal

information from a third party in aid of legislation. Trump Br. at 14; Tr. of Oral

Arg. at 34:24–35:4. Historical practice instead suggests that, on the few past

occasions on which a President’s personal documents have been subpoenaed from

third parties, such requests have emanated either from a special committee

established and authorized to pursue a specific, limited investigation or from a

committee proceeding under the impeachment power. 10 It is possible that a

the relevance of past practice to separation

‐ of

‐ powers issues).

10 President Andrew Johnson had his personal bank records examined as part of

his impeachment, but those records appear to have been relevant because of personal

loans made to him by the Treasury Department. See Stephen W. Stathis, Executive

Cooperation: Presidential Recognition of the Investigative Authority of Congress and the Courts

,

3 J.L. & Pol. 183, 219 (1986); see also Michael Les Benedict, The Impeachment of President

Andrew Johnson, 1867–68

, in 1 Congress Investigates: A Critical and Documentary History 254,

264–68 (Roger A. Bruns et al. eds., rev. ed. 2011). President Clinton may have had some

financial information, or at the very least some financial information of then–First Lady

Hillary Clinton, examined by the Whitewater Special Committee, though it appears to

have been turned over voluntarily. See S. Rep. No. 104

‐ 280, at 155–61 (1996). The

House and Senate Banking Committees also appear to have subpoenaed witnesses to

testify regarding Whitewater and the death of Vince Foster; however, they do not appear

to have subpoenaed the President’s personal financial information. See Stephen

Labaton, The Whitewater Affair: The Hearing; House Committee Told of Contacts Over

Whitewater

, N.Y. Times, July 27, 1994, at A1 (describing testimony); Raymond W. Smock,19 contrary example exists. But the historical precedent for the congressional

subpoenas here, in contrast to the judicial processes assessed in Jones

, is sparse at

best, and perhaps nonexistent. 11 And this paucity of historical practice alone is

The Whitewater Investigation and Impeachment of President Bill Clinton, 1992–98

, in 2 Congress

Investigates: A Critical and Documentary History

, supra

, at 1041, 1044–45. President Nixon

voluntarily disclosed several years of tax returns to a House Committee; that same

Committee used statutory authority not at issue here to procure additional information

from the IRS. See S. Rep. No. 93

‐ 768, at 1–3 (1974); Memorandum from Richard E. Neal,

Chairman, to the Members of the H. Comm. on Ways and Means 3 (July 25, 2019),

https://perma.cc/UYZ2

‐ QTCU. Other investigations do not appear to have involved

either subpoenas of the President’s personal financial information or subpoenas to third

parties to obtain documents concerning the President in a personal capacity. See

generally Stathis, supra

.

11 Notably, the dearth of historical practice here may be partially attributable to

the fact that “[t]he authority to issue a subpoena was once delegated from the full House

to its committees very sparingly because the power appears long to have been deemed

too serious a matter for general delegation.” Todd David Peterson, Contempt of Congress

v. Executive Privilege

, 14 U. Pa. J. Const. L. 77, 106 (2011) (internal quotation marks and

citation omitted). It appears that the House did not authorize standing committees to

issue subpoenas until 1975. Id. at 107. Moreover (and more generally), it should also

be noted that disputes between the two elected branches over congressional subpoenas

have historically been resolved through a process of direct negotiation and

accommodation between these two branches, undertaken outside the supervision of the

federal courts. See, e.g., Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F.

Supp. 2d 53, 56–57 (D.D.C. 2008) (noting that “negotiation and accommodation

. . . most

often leads to resolution of disputes between the political branches” and “strongly

encourag[ing] the political branches to resume their discourse and negotiations in an

effort to resolve their differences constructively”). The majority rejects this approach

due to its view that this case does not involve separation of powers, Maj. Op at 69–73;

however, given the expressed willingness of the parties to negotiate and my view that

separation

‐ of

‐ powers concerns are present here, the traditional practice of further

negotiation is a viable resolution.20 reason for courts to pause in assessing this dispute between a President and two

House committees. 12

The second flaw in the majority’s analysis lies in its assumption that third

‐

party subpoenas of this sort pose, at best, “minimal” risk of distraction to this and

future Presidents. Maj. Op. at 90. Contrary to the majority’s suggestion, it is not

at all difficult to conceive how standing committees exercising the authority to

issue third

‐ party subpoenas in aid of legislation might significantly burden

presidents with myriad inquiries into their business, personal, and family affairs.

See Watkins

, 354 U.S. at 205 (recognizing potential for “ruthless exposure of private

lives” by committees seeking information “neither desired by the Congress nor

useful to it”); cf. Jones, 520 U.S. at 701–02 (considering the likelihood that frivolous

civil litigation against the President could overly burden the Executive Branch).

Jones relied on the relative rarity of civil litigation against past presidents to

discount concerns of distraction, see 520 U.S. at 702, but the subjects on which

12 This Court’s recent decision in Trump v. Vance

, 941 F.3d 631 (2d. Cir. 2019), is not

to the contrary. The Vance panel explicitly relied on the “long

‐ settled” amenability of

presidents to judicial process, and in particular to subpoenas issued as part of a criminal

prosecution, to inform its holding that the state grand jury subpoena to a third

‐ party

custodian of the President’s tax returns at issue in that case was lawful. See id. at 640

(discussing the historical practice of ordering presidents to comply with grand jury

subpoenas). Here, there is no such longstanding practice, and the subpoenas in

question were not issued by a grand jury as part of a criminal investigation.21 legislation might be had are vast. 13 And the risk of undue distraction from ill

‐

conceived inquiries might be particularly acute today, in an era in which (as the

Supreme Court and individual Justices have repeatedly acknowledged) digital

technologies have lodged an increasingly large fraction of even our most intimate

information in third

‐ party hands. See, e.g., Riley v. California, 573 U.S. 373, 395

(2014) (discussing how “Internet search and browsing history” can “reveal an

individual’s private interests or concerns”); Carpenter v. United States

, 138 S. Ct.

2206, 2261 (2018) (acknowledging “powerful private companies” collecting “vast

quantities of data about the lives of ordinary Americans”) (Alito, J., dissenting);

United States v. Jones

, 565 U.S. 400, 417 (2012) (noting that in the digital age, “people

13 To be clear, while civil litigation against sitting presidents is unusual, presidents

are routinely the subjects of congressional investigation while in office—as they must be,

and for appropriate reasons. But there is no substantial historical precedent for the use

of subpoena power to obtain a President’s personal information from a third party in aid

of legislation. And as to such subpoenas, there is no analogue for the possibility of

sanctions in the civil litigation context, which the Jones Court relied on as “provid[ing] a

significant deterrent to litigation directed at the President in his unofficial capacity for

purposes of political gain or harassment.” 520 U.S. at 708–09. Nor do established rules

of procedure provide a mechanism for narrowing congressional subpoenas so as to avoid

“embarrassment, oppression, or undue burden.” Fed. R. Civ. P. 26(c)(1). Historically,

in those few instances in which investigators have sought a President’s personal

documents, Congress has instead typically proceeded pursuant to the political checks

inherent in the invocation of impeachment authority or the narrow authorization

afforded to a special committee.22 reveal a great deal of information about themselves to third parties in the course

of carrying out mundane tasks”) (Sotomayor, J., concurring).

To be clear, this is not to suggest that a President is immune from legislative

subpoenas into personal matters—not at all. But as the D.C. Circuit recognized

in Trump v. Mazars (while concluding that the House Committee on Oversight and

Reform possessed authority to issue a legislative subpoena to President Trump’s

accounting firm), “separation

‐ of

‐ powers concerns still linger in the air” with

regard to such subpoenas. Trump v. Mazars USA

, LLP

, 940 F.3d 710, 726 (D.C. Cir.

2019). And in such a circumstance, there is reason to conclude that courts must

not only undertake the “arduous and delicate task” of “[a]ccommodat[ing]

. . . the

congressional need for particular information with the individual and personal

interest in privacy,” Maj. Op. at 51 (quoting Watkins

, 354 U.S. at 198). They must

also take on the equally sensitive task of ensuring that Congress

, in seeking the

President’s personal information in aid of legislation, has employed “procedures

which prevent the separation of power from responsibility,” Watkins

, 354 U.S. at

215 (discussing such procedures in the context of a threat to individual rights from

congressional investigations), and which ensure due consideration to the

separation

‐ of

‐ powers concerns that the Supreme Court identified and deemed23 essential for judicial respect in Jones. See Jones, 520 U.S. at 707 (noting that “high

respect that is owed to the office of the Chief Executive,” while not mandating

categorical immunity from suit for private conduct while in office, should “inform

the conduct of the entire proceeding, including the timing and scope of

discovery”); Cheney

, 542 U.S. at 385 (noting that President’s “constitutional

responsibilities and status [are] factors counseling judicial deference and restraint”

in conduct of litigation) (quoting Fitzgerald

, 457 U.S. at 753 (alteration in Cheney )).

B

These subpoenas are deeply problematic when considered against the

backdrop of these separation

‐ of

‐ powers concerns. In fact, this much is evident

from even cursory consideration of the differences between the present case and

Mazars

, the only other precedent directly addressing a legislative subpoena served

on a third party and seeking a President’s personal financial information. 14 In

Mazars

, the D.C. Circuit recently upheld a legislative subpoena directed at the

14 As noted at the outset, see supra page 5, the parties are unable to cite any

Congress before this one in which a standing committee of the House of Representatives

has issued a third

‐ party subpoena for documents targeting a President’s personal

information solely in aid of legislation. The practice appears to have begun with the

committees of this House of Representatives, which has issued such subpoenas

repeatedly, thus raising the separation

‐ of

‐ powers concerns discussed herein.24 President’s accounting firm, concluding that it had properly issued in connection

with the consideration of changes to laws relating to financial disclosures required

of Presidents. 15 Mazars

, 940 F.3d at 748. At the same time, the Mazars Court

pointedly suggested that the articulation of just any rationale for concluding that

a sitting President’s personal information might inform a committee in

considering potential legislation is not enough to state a valid legislative purpose:

Just as a congressional committee could not subpoena

the President’s high school transcripts in service of an

investigation into K

‐ 12 education, nor subpoena his

medical records as part of an investigation into public

health, it may not subpoena his financial information

except to facilitate an investigation into presidential

finances.

15 Judge Rao dissented, concluding that even assuming the Committee on

Oversight and Reform had a legislative purpose, it had also asserted an intent to

determine “whether the President broke the law,” an inquiry that “must be pursued

through impeachment,” and not via Congress’s authority to investigate for legislative

purposes. Mazars

, 940 F.3d at 748 (Rao, J., dissenting). In the instant case, given the

need for remand here, I need not now determine whether the House Committees have

avowed such an intent, so I have no occasion to consider the arguments raised in Judge

Rao’s thorough analysis. However, it is worth noting that nowhere in the Mazars

majority or Judge Rao’s extensive discussion of historical practice, id. at 718–24 (majority

opinion), 757–67 (Rao, J., dissenting), is there any hint of a prior occasion on which a

standing or permanent select committee has used compulsory process to obtain

documents targeting a President’s personal information from a third party justified solely

on the basis of future legislation.25 Id. at 733. Key to the result in Mazars

, then (and assuming, arguendo

, that it was

correctly decided) was the majority’s conclusion that there was “no inherent

constitutional flaw in laws requiring Presidents to publicly disclose financial

information” and that the subpoena on its face thus properly sought relevant

information “about a subject on which legislation may be had.” Id. at 737

(quoting Eastland

, 421 U.S. at 508).

This case is significantly different, at least as to the subpoenas issued by the

Committee on Financial Services. This Committee seeks a universe of financial

records sufficient to reconstruct over a decade of the President’s business and

personal affairs, not in connection with the consideration of legislation involving

the Chief Executive, but because the President, his family, and his businesses

present a “ useful case study ,” according to the Committee, for an inquiry into the

lending practices of institutions such as Deutsche Bank and Capital One. 16 District

Court Doc. No. 51 at 25. More specifically, the Committee is investigating

16 The Capital One subpoena, moreover, seeks the President’s personal and

business financial records starting from the exact date on which he became the

Republican nominee for President—an unusual date, to be sure, for specifying the precise

moment at which his banking records became a useful point of inquiry into the possibility

of tightening up the regulation of lending practices with potentially “broad effects on the

national economy.” District Court Doc. No. 51 at 25.26 “whether existing policies and programs at financial institutions are adequate to

ensure the safety and soundness of lending practices and the prevention of loan

fraud,” id. at 12, as well as “industry

‐ wide compliance with banking statutes and

regulations, particularly anti

‐ money laundering policies,” id. at 13. The

Committee urges that “[b]ecause of his prominence, much is already known about

Mr. Trump, his family, and his business, and this public record establishes that

they serve as a useful case study for the broader problems” under its

consideration. 17 Id. at 25. The majority endorses this statement of legislative

purpose and intimates (albeit with no evidence in the record before us) that past

transactions between Deutsche Bank and the President in his pre

‐ presidential

business life may have violated banking regulations and that “no other bank

would extend credit” to President Trump. Maj. Op. at 73 n.67, 74.

To be sure, legislative subpoenas issue not when all is known, but on the

reasonable theory that “[a] legislative body cannot legislate wisely or effectively”

17 The House Financial Services Committee asserts that the subpoenas’ objective

can be derived in part from House Resolution 206, which affirms that the House

“supports efforts to close loopholes that allow corruption, terrorism, and money

laundering to infiltrate our country’s financial system.” H.R. Res. 206, 116th Cong.

(2019). House Resolution 206, however, does not materially aid in defining more clearly

the reasons for the Committee’s “case study” approach, as it does not call for a

congressional investigation, much less one by a designated committee, nor does it

reference the President and his family.27 without obtaining “information respecting the conditions which the legislation is

intended to affect or change.” Eastland

, 421 U.S. at 504 (quoting McGrain v.

Daugherty

, 273 U.S. 135, 175 (1927) (alteration in Eastland )). But the rationale

proffered for these subpoenas of the House Financial Services Committee falls far

short of demonstrating a clear reason why a congressional investigation aimed

generally at closing regulatory loopholes in the banking system need focus on over

a decade of financial information regarding this President, his family, and his

business affairs. 18 Nor does the proffered rationale reveal how the broad

purposes pursued by the Committee are consistent with the granular detail that

these subpoenas seek. See Watkins

, 354 U.S. at 204 (noting the troubling tendency

of some legislative investigations to “probe for a depth of detail

. . . removed from

any basis of legislative action” and to “turn their attention to the past to collect

minutiae on remote topics”).

18 Thus, the majority references the fact that Deutsche Bank “has been fined in

connection with a $10 billion money laundering scheme.” Maj. Op. at 73 n.67. But the

record is devoid of any claim

, much less any evidence, that this fine had anything at all to

do with the President, his children, his business organizations, or his business associates,

all of whom will be irreparably harmed by the majority’s endorsement of the “case study”

approach of the House Financial Services Committee.28 This is a reason for pause. As suggested by Judge Katsas in his dissent

from the denial of rehearing in banc in Mazars

, the “uncompromising extension of

McGrain v. Daugherty ” to this new context raises the serious question whether

future Presidents will be routinely subject to the distraction of third

‐ party

subpoenas emanating from standing committees in aid of legislation—a practice

for which there is scant historical precedent, as already discussed. Trump v.

Mazars USA, LLP, No. 19

‐ 5142, 2019 WL 5991603, at *1 (D.C. Cir. Nov. 13, 2019)

(Katsas, J., dissenting from the denial of rehearing en banc). Some case study

rationale (in this instance, to learn whether regulators were adequately equipped

to scrutinize Deutsche Bank’s and Capital One’s lending practices in relation to the

President before he obtained the Office of Chief Executive) will always be present.

But the regular issuance of third

‐ party legislative subpoenas by single committees

of one House of Congress targeting a President’s personal information would be

something new, potentially impairing public perceptions of the legislative branch

by fueling perceptions that standing committees are engaged, not in legislating,

but in opposition research. 19 More relevant here, such investigative practices by

19 Such subpoenas, moreover, will inevitably result, as here, in recourse to the

courts, potentially embroiling them, as well, in political battles between committees of

Congress and the President.29 Congress, undertaken “more casually and less responsibly” than is the

constitutional ideal, see Rumely

, 345 U.S. at 46, pose a serious threat to “presidential

autonomy and independence,” Mazars

, 2019 WL 5991603, at *1 (Katsas, J.,

dissenting from the denial of rehearing en banc). And this is a substantial concern

in our constitutional scheme, which relies on the proposition that the occupant of

the Office of Chief Executive is positioned to “‘deal fearlessly and impartially with’

[its] duties,” even as Presidents may be “easily identifiable target[s]” of legal

process, personally vulnerable by virtue of the “visibility of [the] office and the

effect of [their] actions on countless people.” Fitzgerald

, 457 U.S. at 752–53

(quoting Ferri v. Ackerman

, 444 U.S. 193, 203 (1979)).

To be sure, the third subpoena to Deutsche Bank, which is identical to the

Deutsche Bank subpoena issued by the Committee on Financial Services, emanates

from the Permanent Select Committee on Intelligence and is more closely linked

to the consideration of legislation related to the Office of the Chief Executive and

to this President’s affairs, as a recent candidate. 20 The majority is correct,

20 As the majority states, the Chair of the Intelligence Committee has publicly

affirmed that the Committee is investigating matters related to interference by the

Russian government in the U.S. political process and that the information sought from

Deutsche Bank will inform legislative proposals to protect this process from foreign

influence. Maj. Op at 62–64. The House Intelligence Committee, moreover, has an

oversight function to which its subpoena could conceivably relate. At the same time,30 moreover, that once presented with adequate evidence of legislative authorization

and purposes, it is not the province of courts to inquire into legislators’ motives,

see Maj. Op. at 50–51, and that “motives alone would not vitiate an investigation

which had been instituted by a House of Congress if that assembly’s legislative

purpose is being served.” Watkins

, 354 U.S. at 200.

At the same time, as the majority also affirms, the record must provide

“sufficient evidence of legislative authorization and purposes to enable

meaningful judicial review.” Maj. Op. at 55. And this is particularly the case

when a congressional investigation even potentially trenches upon constitutional

however, no House resolution appears specifically to reference this investigation, at least

as it relates to efforts to seek the President’s financial information, nor is such a legislative

purpose easy to square with the extraordinary breadth of the Deutsche Bank subpoenas.

The Chair, moreover, has also affirmed that the Committee’s investigation is in

furtherance of Congress’s duty to “ensure that U.S. officials—including the President—

are serving the national interest and, if not, are held accountable.” Press Release,

Permanent Select Comm. on Intelligence, Chairman Schiff Statement on House

Intelligence Committee Investigation (Feb. 6, 2019), bit.ly/2UMzwTE. The Plaintiffs

argue that the subpoena is thus not in furtherance of legislative purposes, but represents

an effort by the Committee to itself conduct intelligence and law enforcement activities.

Trump Br. at 35–36. Indeed, at oral argument, the Committees’ lawyer appeared

explicitly to equate these subpoenas to those issued in connection with federal criminal

investigations. Tr. of Oral Arg. at 59:14–60:2. While I do not decide whether the

Intelligence Committee has affirmatively avowed an improper purpose, the amorphous

nature of the Committee’s legislative purpose would be clarified by my proposed

remand, as would the connection between this purpose and the particular disclosures

that are sought.31 limits on Congress’s investigative power. See Rumely

, 345 U.S. at 46 (noting that

such limits should be identified by courts only after “Congress has

. . .

unequivocally authoriz[ed] an inquiry of dubious limits”). Indeed, in such

circumstances, the Supreme Court has made clear that courts are to look to the

“instructions to an investigating committee,” as “embodied in the authorizing

resolution,” to ascertain whether the legislative assembly has “assay[ed] the

relative necessity of specific disclosures.” Watkins

, 354 U.S. at 201, 206.

Considered in light of the separation

‐ of

‐ powers concerns that persist with regard

to these subpoenas, the Plaintiffs have raised a serious question on this front as

well.

As to both the House Financial Services and Intelligence Committee

subpoenas, there is an open question as to whether these subpoenas have been

authorized by the House of Representatives in a manner permitting this Court to

determine whether they are “in furtherance of

. . . a legitimate task of the

Congress.” Watkins

, 354 U.S. at 187. As the Watkins Court explained, “[t]he

theory of a committee inquiry is that the committee members are serving as the

representatives of the parent assembly in collecting information for a legislative

purpose” and that “the House or Senate shall have instructed the committee32 members on what they are to do with the power delegated to them.” Id. at 200–

01. The majority acknowledges Watkins ’s requirement that an authorizing

resolution “spell out [an investigating committee’s] jurisdiction and purpose with

sufficient particularity” as to ensure that “compulsory process is used only in

furtherance of a legislative purpose.” Id. at 201; see Maj. Op. at 51, 79–80.

Critically, moreover, the majority itself recognizes that “[i]t is not clear whether

this passage can be satisfied” with regard to these subpoenas by the principal

instruction in place here, at the time the subpoenas issued: namely, the

instruction “that the House gives to a committee pursuant to a House rule defining

a standing committee’s continuing jurisdiction.” Maj. Op. at 52–53.

The majority treats House Resolution 507 as the cure

‐ all solution to this key

uncertainty, rejecting the Plaintiffs’ argument that it is not properly considered on

the subject of legislative authorization and purposes because it issued after the

subpoenas themselves. 21 But House Resolution 507 falls far short of a specific

21 The majority’s support for this conclusion derives solely from cases discussing,

in the contempt prosecution context, what evidence may be considered in evaluating

whether a question posed to a witness before a congressional committee was pertinent to

an investigation’s inquiry. See Watkins

, 354 U.S. at 201–02; Rumely

, 345 U.S. at 48; Shelton

v. United States

, 327 F.2d 601, 607 (D.C. Cir. 1963); see also Maj. Op. at 54–58. This issue

is distinct from the threshold question of whether a committee is adequately authorized,

so that the majority must necessarily reason by analogy, and its conclusion is far from

inevitable, particularly in the context of third

‐ party subpoenas aimed at a President’s33 “authorizing resolution” issued to make clear that a designated committee is to

undertake an investigation on a particular subject within its domain. To be sure,

McGrain found sufficient a resolution that did not “in terms avow that it [was]

intended to be in aid of legislation,” on the theory that “the subject

‐ matter was

such that [a] presumption should be indulged” that legislating “was the real

object.” 273 U.S. at 177–78. But in a context like this, presenting serious

constitutional concerns, courts “have adopted the policy of construing

. . .

resolutions

. . . narrowly, in order to obviate the necessity of passing on serious

constitutional questions.” Tobin

, 306 F.2d at 274–75. And this resolution on its

face discusses none of the subpoenas here, nor even the work of the committees

from which they issued. Instead, House Resolution 507 authorizes any subpoena,

by any standing or permanent select committee, already issued or in the future to

be issued

, so long as it concerns the President, his family, or his business entities

and organizations:

personal information, where the President must be able efficiently (and without undue

distraction) to determine what, if any, steps she should take, either to assist the inquiry

or, as here, to litigate. I need not address this question, however, because, even

assuming that Resolution 507 is properly considered, a serious question remains as to

whether it constitutes what the majority acknowledges is required: “sufficient evidence

of legislative authorization and purposes to enable meaningful judicial review.” Maj.

Op. at 55.34 Resolved, That the House of Representatives ratifies and

affirms all current and future investigations, as well as all subpoenas

previously issued or to be issued in the future, by any standing or

permanent select committee of the House, pursuant to its jurisdiction

as established by the Constitution of the United States and rules X and

XI of the Rules of the House of Representatives, concerning or issued

directly or indirectly to

— (1) the President in his personal or official capacity;

(2) his immediate family, business entities, or

organizations;

. . . (9) any third party seeking information involving,

referring, or related to any individual or entity described in

paragraphs (1) through (7).

H.R. Res. 507, 116th Cong. (2019); see also H.R. Res. 509, 116th Cong. § 3 (2019)

(“House Resolution 507 is hereby adopted”).

By purporting to authorize third

‐ party subpoenas for any and all past and

future investigations into the President’s personal and official business, Resolution

507 would appear to run directly into the primary concern in Watkins that

“[b]roadly drafted and loosely worded” resolutions can “leave tremendous

latitude to the discretion of investigators,” 354 U.S. at 201, and thus permit

committees “in essence, to define [their] own authority,” id. at 205. As Watkins

emphasized, “[a]n essential premise” underlying the investigatory powers of a

congressional committee to compel the production of documents or attendance by

an individual “is that the House or Senate shall have instructed the committee35 members on what they are to do with the power delegated to them.” Id. at 201.

Absent that instruction, such subpoenas defy judicial review, the Watkins Court

understood, because “it is impossible

. . . to declare that [a committee] has ranged

beyond the area committed to it by its parent assembly.” Id. at 205.

To be clear, Watkins addressed this problem in the context of a House

proceeding implicating a private citizen’s constitutional liberties, and not

separation of powers. But its caution is still relevant: that “excessively broad

charter[s]” to investigating committees make it difficult, if not impossible, for

courts “to ascertain whether any legislative purpose justifies the disclosures

sought and, if so, the importance of that information to the Congress in furtherance

of its legislative function.” Id. at 205–06. With respect, the majority thus errs in

dismissing the Department of Justice’s concern that the blank

‐ check approach

adopted here to authorizing third

‐ party subpoenas seeking personal information

about the President and his family represents “a failure of the House to exercise

‘preliminary control of the Committee[s],’” see Brief of United States as Amicus

Curiae at 19 (quoting Watkins

, 354 U.S. at 203)—a failure which not only throws

into question the adequacy of authorization in this case, but which also raises

significant issues for the future regarding interbranch balance and the ability of36 this and future Presidents to perform their duties without undue distraction, id. at

5–7; see Jones, 520 U.S. at 690 (noting that “representations made on behalf of the

Executive Branch as to the potential impact” of inquiries on the Office of the

President “merit our respectful and deliberate consideration”). 22 In short,

Resolution 507 itself, given its retrospective and prospective nature, and its

purported authorization of any and all third

‐ party committee subpoenas seeking

not only official, but personal information about the President, his family, and his

businesses, presents a serious question as to whether the House has discharged its

22 The Department of Justice argues that a clear statement rule should apply to the

authorization of legislative subpoenas seeking a President’s personal information. Brief

of United States as Amicus Curiae at 10. The majority dismisses this argument, noting

that neither Franklin v. Massachusetts

, 505 U.S. 788, nor Armstrong v. Bush

, 924 F.2d 282

(D.C. Cir. 1991), on which the Department relies, concern congressional subpoenas, but

statutes “claimed to limit presidential power.” Maj. Op. at 89. But Rumely makes clear

that the duty of constitutional avoidance (implemented, in part, through mechanisms

such as clear statement rules) “is even more applicable” in the context of congressional

investigations than in the interpretation of statutes. 345 U.S. at 46. It also affirms that

“[w]henever constitutional limits upon the investigative power of Congress have to be

drawn

. . . , it ought only to be done after Congress has demonstrated its full awareness

of what is at stake by unequivocally authorizing an inquiry of dubious limits.” Id. In

short, while I need not at this time reach the question, the Department’s clear statement

argument merits serious consideration, as does its assertion that the House’s “blank

‐

check” approach to use of compulsory process directed at the President, his family, and

his businesses runs afoul of Watkins ’s caution that “[a] measure of added care on the part

of the House and the Senate in authorizing the use of compulsory process” would help

“prevent the separation of power from responsibility.” 354 U.S. at 215.37 “responsibility

. . . in the first instance, to insure that compulsory process is used

only in furtherance of a legislative purpose.” Watkins, 354 U.S. at 201.

II

These third

‐ party legislative subpoenas thus raise serious questions on the

merits, implicating substantial separation

‐ of

‐ powers concerns. In such a context,

Rumely ’s caution kicks in, which “counsel[s] abstention from adjudication unless

no choice is left.” 345 U.S. at 46. The majority disagrees, asserting that even

assuming serious questions regarding the separation of powers have been raised,

affirmance here is still required because our “serious questions” approach to

whether a preliminary injunction should issue is unavailable in the context of these

third

‐ party legislative subpoenas. 23 I have already outlined my disagreement

23 The majority also argues that any serious questions presented here “are

properly rejected at this stage of the litigation” because they “involve solely issues of

law.” Maj. Op. at 101. I disagree. As an initial matter, our case law has recognized

that, in appropriate circumstances, purely legal issues can present sufficiently serious

questions to warrant a preliminary injunction. See, e.g.

, Haitian Centers Council, Inc. v.

McNary

, 969 F.2d 1326, 1339–40 (2d Cir. 1993) (finding sufficiently serious questions

going to the merits based on the novel questions of law presented by plaintiffs’ claims),

judgment vacated as moot by Sale v. Haitian Ctrs. Council, Inc

., 509 U.S. 918 (1993); see also,

e.g.

, 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2948.3 (3d ed.) (Westlaw) (database updated August 2019) (referring to “the

existence of a factual conflict, or of difficult questions of law,” as components of the merits

showing in the preliminary injunction context (emphasis added)). Moreover, the

majority itself is remanding for some development of the factual record. As set forth

herein, I conclude that the majority’s limited remand is inadequate, and that the record38 with the majority’s determination that “this case does not concern separation of

powers,” Maj. Op. at 89, and that the questions raised, even if “serious in at least

some sense, lack merit,” id

. at 101. I also disagree as to the supposed

unavailability of our traditional preliminary injunction approach. Indeed, I

conclude, with respect, that the majority badly errs in deciding that this approach

is unavailable in the sensitive context of challenges to congressional subpoenas.

As the Supreme Court made clear in Winter v. Natural Resources Defense

Council, Inc.

, “[a] plaintiff seeking a preliminary injunction must establish that he

is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” 555 U.S. 7, 20 (2008). The majority

acknowledges that, as to the required merits showing, we have repeatedly said in

this Circuit that “district courts may grant a preliminary injunction where a

plaintiff

. . . meets either of two standards: ‘(a) a likelihood of success on the

merits, or (b) sufficiently serious questions going to the merits to make them a fair

ground for litigation.’” Maj. Op. at 11–12 (quoting Kelly v. Honeywell Int’l, Inc.

,

933 F.3d 173, 184 (2d Cir. 2019)). When a plaintiff has demonstrated only “serious

needs further factual development before the legal issues here can be adequately assessed.39 questions” as to the merits, however, the plaintiff has a higher burden as to the

third element: he must show that the balance of hardships tips decidedly in his

favor. See Kelly

, 933 F.3d at 184; Maj. Op. at 11–12. The majority also

acknowledges that we have reaffirmed our traditional approach in the wake of the

Supreme Court’s decision in Winter

. See Citigroup

, 598 F.3d at 38 (“hold[ing] that

our venerable standard for assessing a movant’s probability of success on the

merits remains valid”). 24 Irreparable harm is not in question in this case,

moreover, because, inter alia

, the Plaintiffs have an interest in keeping their

banking records private from Congress and neither House committee will commit

to treating any portion of the voluminous personal and business records that they

seek as confidential. J.A. at 122–23. In such circumstances, the majority and I

are in agreement that compliance with these subpoenas will cause irreparable

24 Citigroup carefully assessed Winter ’s import and concluded that our traditional

approach is wholly consistent with that precedent and is properly retained, given “[t]he

value of this circuit’s approach to assessing the merits of a claim at the preliminary

injunction stage,” which “lies in its flexibility in the face of varying factual scenarios and

the greater uncertainties inherent at the outset of particularly complex litigation.”

Citigroup

, 598 F.3d at 35. Moreover, Citigroup made clear that, under either the “serious

questions” or the “likelihood of success” formulation, courts in this Circuit consider all

four elements articulated by the Supreme Court in Winter

. See id. at 34, 38 (citing Winter

,

555 U.S. at 20).40 harm to the President, his family, his businesses, and his business associates.

Maj. Op. at 13–14.

The majority asserts that a preliminary injunction is nonetheless unavailable

based on our “serious questions” formulation of the merits inquiry because of the

so

‐ called “government action exception” to this formulation, as expressed by this

Court’s decision in Plaza Health Laboratories, Inc. v. Perales

, 878 F.2d 577, 580 (2d

Cir. 1989). I disagree. To be sure, our case law has recognized three narrowly

defined situations in which a movant cannot obtain a preliminary injunction under

the “serious questions” formulation. See id. ; Tom Doherty Assocs.

, Inc. v. Saban

Entm’t, Inc.

, 60 F.3d 27, 33–34 (2d Cir. 1995); Abdul Wali v. Coughlin

, 754 F.2d 1015,

1025 (2d Cir. 1985). But Plaza Health

, on which the majority relies, is not

applicable.

To explain my conclusion requires a step back from our traditional

formulation, to set forth why this Circuit was correct to reaffirm our serious

question approach—and, indeed, why we err today in expanding a formulaic

exception to it. While sometimes styled in our case law as its own “standard,”

see, e.g.

, Otoe

‐ Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs.

, 769 F.3d 105,

110 (2d Cir. 2014), the “sufficiently serious questions, plus a balance of hardships41 tipping decidedly in favor of the moving party” approach is not actually a separate

test at all, but rather a way of articulating one point on a single sliding scale that

balances likelihood of success against hardship in determining whether a

preliminary injunction should issue. See 11A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.3 (3d ed.) (Westlaw)

(database updated August 2019) (hereinafter “Wright & Miller”) (referring to the

Second Circuit’s “serious questions” formulation as “[p]robably the most often

‐

quoted statement” of the sliding scale principle). Likelihood of success, while of

“particular importance” in this inquiry, is not determinative, but must be

considered and balanced with the relative hardship each side is likely to face from

the determination whether an injunction issues, with the so

‐ called “serious

questions” standard emerging as simply one point on the sliding scale at which an

injunction may be warranted. 25 Id. This flexible approach is particularly well

‐

suited to the preliminary injunction context, where courts act pursuant to

25 As Judge Frank articulated decades ago, when “the balance of hardships tips

decidedly toward plaintiff,” it should “ordinarily be enough that the plaintiff has raised

questions going to the merits so serious, substantial, difficult and doubtful, as to make

them a fair ground for litigation and thus for more deliberate investigation.” Hamilton

Watch Co. v. Benrus Watch Co.

, 206 F.2d 738, 740 (2d Cir. 1953).42 equitable principles. 26 See, e.g.

, Holland v. Florida

, 560 U.S. 631, 649–50 (2010) (“In

emphasizing the need for flexibility

. . . we have followed a tradition in which

courts of equity have sought to relieve hardships which, from time to time, arise

from a hard and fast adherence to more absolute legal rules, which, if strictly

applied, threaten the evils of archaic rigidity.” (internal quotation marks,

alterations, and citations omitted)).

Against this backdrop, our so

‐ called “exceptions” to the serious questions

formulation are best understood not in prescriptive terms, but as the articulation

of principles guiding the application of the sliding scale calculus in particular

scenarios. As relevant here, the Plaza Health “exception” thus reflects a

considered judgment, drawing on equitable ideas, that “[w]here the moving party

seeks to stay government action taken in the public interest pursuant to a statutory

or regulatory scheme,” the serious questions formulation should be generally

unavailable precisely because the balance of hardships is so unlikely to tip

26 Indeed, confining preliminary injunctions to circumstances in which a plaintiff

has shown there is no difficult question of law that could ultimately go against him would

“deprive the remedy of much of its utility.” Wright & Miller § 2948.3; see also Citigroup

,

598 F.3d at 35 (noting that “[p]reliminary injunctions should not be mechanically

confined to cases that are simple or easy,” as happens when the likelihood

‐ of

‐ success

standard is formulaically employed).43 decidedly in that party’s favor. Able v. United States

, 44 F.3d 128, 131 (2d Cir. 1995)

(quoting Plaza Health

, 878 F.2d at 580). In issuing a preliminary injunction based

on the conclusion that it does

, a court impermissibly “substitute[s] its own

determination of the public interest” for the one reflected in the statutory or

regulatory scheme. Id. at 132.

Accordingly, where government action has been fairly characterized as

taken pursuant to a statutory or regulatory scheme, we have generally applied the

likelihood

‐ of

‐ success standard. See Citigroup

, 598 F.3d at 35 n.4 (articulating the

exception as limited to situations in which “a moving party seeks to stay

government action taken in the public interest pursuant to a statutory or

regulatory scheme”). And where movants have sought preliminarily to enjoin

government action pursuant to a federal statutory or regulatory scheme, we have

explained that in the context of such action, “developed through presumptively

reasoned democratic processes” and resulting from “the full play of the

democratic process involving both the legislative and executive branches,” it is

difficult to envision any circumstance in which a movant could demonstrate that

the balance of hardships tips decidedly in his favor. Able

, 44 F.3d at 131.44 The majority argues that the Plaza Health exception sweeps more broadly,

relying for this proposition on cases involving action taken by state and local

governments. 27 See Maj. Op. at 15–16. While certain of these cases did not

analyze why the Plaza Health exception was applicable, and appear simply to have

assumed that the government action in question was taken pursuant to a statutory

or regulatory scheme, see, e.g.

, Cent. Rabbinical Cong.

, 763 F.3d at 192; Monserrate

,

599 F.3d at 154, those that did engage with this analysis explicitly identified a

statutory or regulatory scheme and accordingly concluded that the presumptive

27 See, e.g.

, Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental

Hygiene

, 763 F.3d 183, 192 (2d Cir. 2014) (likelihood

‐ of

‐ success standard applied to

preliminary injunction sought by religious organizations against a city ordinance based

on the court’s conclusion, without further analysis, that the ordinance constituted

“government action taken in the public interest pursuant to a statutory or regulatory

scheme” (citation omitted)); Monserrate v. N.Y. State Senate

, 599 F.3d 148, 154 (2d Cir. 2010)

(same, as to a preliminary injunction seeking to unwind the expulsion of a state senator);

NAACP v. Town of East Haven

, 70 F.3d 219, 223 (2d Cir. 1995) (likelihood

‐ of

‐ success

standard applied to a preliminary injunction seeking to enjoin a town from hiring police

officers or firefighters, based on the court’s conclusion that the town acted “in the public

interest” and “pursuant to established municipal regulations and state civil service

laws”); N.Y. Urban League, Inc. v. State of New York

, 71 F.3d 1031, 1036 n.7 (2d Cir. 1995)

(applying likelihood

‐ of

‐ success standard to a preliminary injunction seeking to bar

transit authority from implementing a proposed fare increase on the basis that the action

in question “was to be implemented in accordance with the special powers” of the transit

authority board as set forth in a state statute); see also Molloy v. Metro. Transp. Auth.

, 94

F.3d 808, 811 (2d Cir. 1996) (relying on New York Urban League in applying the likelihood

‐

of

‐ success standard to a preliminary injunction sought against transit authority’s

implementation of a staff reduction plan).45 public interest weighed against the movant, see, e.g.

, NAACP

, 70 F.3d at 223; see

also, e.g.

, Otoe

‐ Missouria Tribe of Indians

, 769 F.3d at 110 (determining that New

York’s ban on certain loans was “a paradigmatic example of governmental action

taken in the public interest, one that vindicated proven policies implemented

through legislation or regulations” and therefore applying the likelihood

‐ of

‐

success standard (internal quotation marks and citations omitted)). 28

Where, by contrast, government action has not been taken pursuant to a

specific statutory or regulatory scheme, the narrow Plaza Health exception has not

been applied, precisely because the public interest has not been presumed to rest

with a single party. This explains why this Court recently upheld the denial of a

preliminary injunction sought by President Trump to restrain the enforcement of

a grand jury subpoena issued by the New York County District Attorney without

applying the Plaza Health exception in determining the applicable preliminary

injunction standard. See Trump v. Vance

, 941 F.3d 631, 639–40 (2d Cir. 2019). It

explains our decision in Haitian Centers Council, Inc. v. McNary

, 969 F.2d 1326 (2d

Cir. 1993), judgment vacated as moot by Sale v. Haitian Ctrs. Council, Inc

., 509 U.S. 918

28 Such cases may also exhibit an especial hesitancy on the part of federal courts

to substitute their own view of the public interest for that reached by local and state

governments in light of principles of comity and federalism.46 (1993)

, in which we applied the serious questions standard to an injunction sought

against the actions of the Immigration and Naturalization Service only after

rejecting the government’s argument that the action was taken “pursuant to

Congress’[s] broad grant of authority in the [Immigration and Nationality Act],”

and reasoning that “in litigation such as is presented herein, no party has an

exclusive claim on the public interest,” id; see also, e.g.

, Patton v. Dole

, 806 F.2d 24,

29–30 (2d Cir. 1986); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy

, 836 F.2d

760, 763 (2d Cir. 1988); Mitchell v. Cuomo

, 748 F.2d 804, 806–07 (2d Cir. 1984); cf.

Carey v. Klutznick

, 637 F.2d 834, 839 (2d Cir. 1980) (rejecting the Census Bureau’s

argument that “the public interest [rests] solely with it”).

The government action at issue in the instant case plainly falls outside the

current confines of the narrow Plaza Health exception. Here, far from a situation

in which a movant seeks to enjoin action that is the product of “the full play of the

democratic process,” Able

, 44 F.3d at 131, these legislative subpoenas, with due

respect, do not constitute governmental action pursuant to a statutory or

regulatory scheme and do not reflect the presumptively public

‐ interested actions

of both the legislative and executive branches. Rather, each subpoena is the47 product of a sub

‐ component of a single chamber of one branch of the federal

government and, critically, implicates the interests of another branch. 29

The majority’s approach, which concludes that, because the Committees act

pursuant to powers under the Constitution, such action should “[s]urely

. . . not”

be evaluated under a “less rigorous standard” than that “applied to plaintiffs

seeking to preliminary enjoin state and local units of government” in cases such as

Central Rabbinical Congress and Monserrate

, Maj. Op. at 20–21, is misguided for two

reasons. First, by deeming the “serious questions” standard to be less rigorous,

the majority ignores the fact that the ultimate burden is equivalent under both

standards. 30 More fundamentally, the majority errs by categorically extending

29 Indeed, precisely because subpoenas of this sort implicate separation of powers

so that neither Congress nor the Plaintiffs can be taken to represent the public interest

with regard to their enforcement, the D.C. Circuit in Mazars declined to determine, in an

analogous context, what deference it owed to the congressional subpoena reviewed in

that case. Mazars

, 940 F.3d at 726.

30 As is the nature of a sliding scale, the variables move in tandem and the

Plaintiffs’ ultimate burden is equivalent either way. The majority perceives tension

between this Court’s observation in Citigroup that the “overall burden” of the serious

questions standard is “no lighter than the one it bears under the ‘likelihood of success’

standard,” Citigroup

, 598 F.3d at 35, and language in our other opinions that refers to the

likelihood

‐ of

‐ success standard as “more rigorous,” see, e.g.

, Cent. Rabbinical Cong.

, 763

F.3d at 192. See Maj. Op. at 14 n.22. I disagree. Because one standard requires a more

demanding showing as to the merits and a correspondingly less demanding showing as

to hardship, while the other standard requires the reverse, the overall burdens are clearly

equivalent. Deeming the likelihood

‐ of

‐ success standard to be “more rigorous” refers

only to its increased rigor as to the required merits showing. It was for this reason,48 the Plaza Health exception to a situation in which “no party has an exclusive claim

on the public interest,” Time Warner Cable of N.Y.C. v. Bloomberg L.P.

, 118 F.3d 917,

923 (2d Cir. 1997) (quoting Haitian Centers

, 969 F.2d at 1339), when the so

‐ called

“government action exception” is premised entirely on the assumption that the

public interest weighs decidedly against the movant.

To be clear, preliminary injunctions constitute an extraordinary form of

relief and should not issue lightly. See, e.g.

, Mazurek v. Armstrong

, 520 U.S. 968,

972 (1997) (quoting Wright & Miller § 2948). The majority’s expansion of our so

‐

called “government action exception” into the delicate arena of congressional

investigations, however, is unwise, precisely because this is a context in which

flexible application of equitable principles is vital. Historically, federal courts

have undertaken some of their most difficult assignments in the context of

reviewing the actions of congressional committees. The Supreme Court has thus

been required to take on the ”arduous and delicate task” of

“[a]ccommodat[ing]

. . . the congressional need for particular information with the

among others, that we concluded in Citigroup that the Supreme Court’s decision in Winter

revealed “no command

. . . that would foreclose the application of our established ‘serious

questions’ standard as a means of assessing a movant’s likelihood of success on the

merits” against the other components required to obtain preliminary relief. 598 F.3d at

38.49 individual and personal interest in privacy.” Watkins

, 354 U.S. at 198. It has

been called upon to address the “[g]rave constitutional questions” presented when

“the power of Congress to investigate” appears to encroach on the limits on that

power imposed by the Bill of Rights and, in particular, the First Amendment.

Rumely

, 345 U.S. at 44, 48. Disputes between congressional committees and

Presidents arising from subpoenas, as here, also not uncommonly require courts

to “search for accommodation between the two branches”—a task for which this

Circuit’s flexible approach to making the difficult judgment whether a preliminary

injunction should issue is particularly well

‐ suited. United States v. Am. Tel. & Tel.

Co (“ AT&T II ”), 567 F.2d 121, 131 (D.C. Cir. 1977).

In short, we should not deprive ourselves of our traditional approach in

such a sensitive context. As we affirmed in Citigroup

, “[r]equiring in every case

a showing that ultimate success on the merits is more likely than not is

‘unacceptable as a general rule,’” and also “deprive[s] the remedy of much of its

utility.” 598 F.3d at 35–36 (quoting Wright & Miller § 2948.3). Because this case

is not squarely covered by Plaza Health or any other previously

‐ articulated

“exception,” I conclude we are bound to (and should) undertake our usual

approach: namely, to consider the Plaintiffs’ showing as to the merits, balance of50 hardships (merged here with the public interest inquiry, see Nken v. Holder

, 556

U.S. 418, 435 (2009)), and irreparable harm and determine whether an injunction

is warranted under either the likelihood of success or serious questions standard.

As set forth already, moreover, these subpoenas do, in fact, present serious

questions implicating not only the investigative authority of these two House

committees, but the separation of powers between Congress and the Presidency.

* * *

Having determined that Plaintiffs have raised serious questions as to the

merits, in the usual case, the next step would be to assess the balance of hardships.

But this leads to my final point of departure from the majority. The majority

orders immediate compliance with these subpoenas save for a “few documents

that should be excluded” pursuant to its call for a restricted culling of certain

records assembled under specific subpoena categories. Maj. Op. at 86. In

contrast, I would not remand for the limited culling ordered by the majority, but

would instead remand in full, directing that the district court assist in the

development of the record regarding the legislative purposes, pertinence, privacy,

and separation

‐ of

‐ powers issues at stake in this case.51 I would request the district court on remand promptly to implement a

procedure by which the Plaintiffs identify on privacy or pertinency grounds

specific portions of the material assembled in response to these subpoenas for

nondisclosure. Like the majority, I would then provide counsel for the

Committees with an opportunity to object, but I would also require counsel,

provided with a general description of such material, to articulate clearly the

legislative purpose that disclosure serves and to specify how the material sought

is pertinent to that purpose. Even assuming, arguendo

, that the Committees act

pursuant to adequate authorization from the House as a whole, serious questions

persist as to the ends the Committees are pursuing and whether these ends are

adequate to justify the sought

‐ after disclosures. 31 A fuller record would permit a

more informed calculus regarding balance of hardships and would further clarify

the stakes as to the serious questions that the Plaintiffs have already raised. This

full remand is superior to the majority’s approach for at least three reasons.

31 As to the “case study” rationale proffered by the House Financial Services

Committee, for instance, if that Committee is unable more clearly to articulate the

pertinence of its subpoenas to the legislative purposes it pursues, see Watkins

, 354 U.S. at

214–15, the balance of hardships may well lie with the Plaintiffs, who will suffer

irreparable harm from the disclosure of their private and business affairs.52 First and most fundamentally, remand is necessary here because the present

record does not permit a full assessment of either the serious questions raised by

these novel subpoenas or the balance of hardships with regard to specific

disclosures. The present record is wholly insufficient to support the conclusion

that the voluminous material sought pursuant to these subpoenas should at this

time be produced. Serious questions arising from the lack of historical precedent

for these subpoenas, their questionable authorization, their legislative purposes,

and the pertinence of particular disclosures remain. The record as to hardship,

moreover, is sparse, and does not reflect either parties’ concerns as to the disclosure

or nondisclosure of particular categories of information sought by these

extraordinarily broad subpoenas. The majority disagrees on both counts,

concluding that while the questions here may be “serious,” they are without merit,

Maj. Op. at 100–01, and that even if the balance of hardships tips in Plaintiffs’ favor,

it does not do so “decidedly,” Maj. Op. at 102. For the reasons already expressed,

however, I cannot join in this assessment.

Next (and notably), a broader remand is necessary here, even taking the

majority on its own terms—even assuming (incorrectly) that the district court’s

judgment could be substantially affirmed on the present record. This is because53 the majority’s remand is inadequate to address the privacy and pertinency

concerns that the majority itself identifies and deems important. As to sensitive

personal information and an unspecified category of “nonpertinent” material, the

majority concludes that the Plaintiffs should be afforded an opportunity to object

to disclosure on privacy and pertinency grounds. It notes that “[t]he Committees

have advanced no reason why the legislative purposes they are pursuing require

disclosure” of “payment for anyone’s medical expenses,” for instance, and the

majority thus forbids it. Maj. Op. at 84. But by providing the Plaintiffs with an

opportunity to object only as to limited, specific categories of information sought

pursuant to these subpoenas, the majority creates the very potential for

unwarranted disclosure of sensitive information that it purports to disallow. The

majority thus orders compliance with, for instance, the Deutsche Bank subpoena’s

demand for “any document related to any domestic or international transfer of

funds in the amount of $10,000 or more,” including any “check,” J.A. at 38,

providing no opportunity for Plaintiffs to object that the sought

‐ after material is

sensitive and related to no legislative purpose at all.

Perhaps there is no material responsive to this category that would trigger

Rule 26(c)(1)’s protections against “embarrassment, oppression, or undue burden”54 in a routine civil case. Fed. R. Civ. P. 26(c)(1). Perhaps such material does exist.

We cannot know until the documents are assembled and objections are made.

The privacy and pertinency concerns that the majority purports to address simply

cannot be addressed in the abstract. And by declining a full remand to permit a

record to be made, the majority affords less protection against the unwarranted

disclosure of personal information regarding a sitting President and his family

than would be afforded to any litigant in a civil case.

Finally, I also disagree with the majority’s implicit assessment that the

Plaintiffs have demonstrated no stake in the privacy of their business

‐ related

information that merits further review. Indeed, to the extent that the majority

does show a reasonable concern for the needless disclosure of Plaintiffs’ private

and nonpertinent information, this concern does not generally extend to private

business information at all, even though such information may implicate the same

issues of privacy and (non)pertinence. To be sure, the majority is correct that

Congress must have the ability to investigate businesses (even closely

‐ held ones)

in aid of legislation. And such investigations, serving a public good, will

sometimes cause competitive harm. 32 But particularly in light of the very broad

32 Federal Rule of Civil Procedure 26(c)(1)(G) permits a district court to issue55 disclosure sought by these subpoenas (which, with regard to many transactions,

could require the production of information from both this year and from decades

ago), the majority has proffered no clear reason for denying the Plaintiffs an

opportunity to object more generally to the disclosure of such material.

The majority argues that any hardship from business disclosures is offset in

this case by the fact that Presidents already “expose for public scrutiny a

considerable amount of personal financial information pursuant to the financial

disclosure requirement of the Ethics in Government Act, 5 U.S.C. app. §§ 101

‐ 111.”

Maj. Op. at 102. But this is beside the point—or perhaps makes the point that the

majority’s approach is problematic.

Public disclosures made pursuant to the Ethics in Government Act are

required by law, pursuant to a statute that has run the gantlet of bicameralism and

presentment. In making disclosures pursuant to this Act, a President complies

with a statute that presumptively reflects a democratically enacted consensus

protective orders to prevent public disclosure of “confidential

. . . commercial

information,” a protection not afforded or offered to the Plaintiffs by the Committees

here. The majority does not include these competitive harms as “irreparable injuries”

in its analysis, restricting its focus only to “loss of privacy.” See Maj. Op. at 101–02. The

irreversible nature of the competitive harm risked by immediate and unconditional

disclosure, and the lack of safeguards common to typical discovery procedures in civil

litigation, further buttress my view that these subpoenas, as drafted, raise serious

questions which a remand would aid in resolving.56 regarding the financial disclosures that a Chief Executive should be required to

make. These House subpoenas, by contrast, require “considerably more financial

information,” as the majority concedes, but themselves raise substantial questions

as to whether they are supported by “sufficient evidence of legislative

authorization and purposes to enable meaningful judicial review.” Maj. Op. at

55, 102. And as Judge Katsas suggested in dissent from the denial of rehearing

in banc in Mazars

, the scope of required disclosure “is determined

. . . by the whim

of Congress—the President’s constitutional rival for political power—or even, as

in this case, by one committee of one House of Congress.” Mazars

, 2019 WL

5991603, at *1 (Katsas, J., dissenting from the denial of rehearing en banc). In such

circumstances, and taking the majority’s analysis on its own terms, it is not clear

why the majority limits its remand to the particular categories of information that

it has selected, as opposed to permitting a more general opportunity to object

regarding nonpertinent business information and the irreparable injury that will

attend its disclosure.

For all the reasons that I have laid out here, this matter should be returned

to the district court. The remand that I have outlined would clarify the issues at

stake so that a reasoned determination could be made as to whether serious57 questions persist, and where the balance of hardships lies. Indeed, given the lack

of historical precedent for these subpoenas; their extraordinary breadth; and the

persistent questions here regarding authorization, legislative purposes, and

pertinence, a remand for development of the record with regard to specific

categories of information is far preferable to the majority’s approach.

Such a procedure would also encourage negotiation between the parties and

potentially narrow the scope of this dispute. Because I conclude, contrary to the

majority, that this case implicates the Supreme Court’s caution to “tread warily”

in matters pitting the power of Congress to investigate against other substantial

constitutional concerns, Rumely

, 345 U.S. at 46, and because the “serious

questions” delineated above sound in separation of powers, see Pub. Citizen v. Dep’t

of Justice

, 491 U.S. 440, 466 (1989) (noting that the Supreme Court’s “reluctance to

decide constitutional issues is especially great where

. . . they concern the relative

powers of coordinate branches of government”), this matter falls within a range of

cases in which we should attempt, if possible, to “avoid a resolution that might

disturb the balance of power between the two branches,” AT&T II

, 567 F.2d at 123.

Perhaps that is not possible here. But as the D.C. Circuit has recognized in the

past, congressional committees and the Chief Executive “have a long history of58 settlement of disputes that seemed irreconcilable” and such resolutions, where

possible, are to be preferred, since “[a] court decision selects a victor, and tends

thereafter to tilt the scales.” AT&T I, 551 F.2d at 394; see also id. at 391 (noting

possibility of “better balance

. . . in the constitutional sense” from “political

struggle and compromise,” rather than court decision); Rumely

, 345 U.S. at 45–46

(noting that a “[c]ourt’s duty to avoid a constitutional issue, if possible, applies not

merely to legislation

. . . but also to congressional action by way of resolution”—

indeed, most especially in this context).

Accordingly, I would withhold decision as to balance of hardships and

remand to permit the district court and the parties the opportunity to provide this

Court with an adequate record regarding the legislative purpose, pertinence,

privacy and separation of powers issues in this case. Such a procedure, as in

AT&T I

, 551 F.2d at 394–95, and AT&T II

, 567 F.2d at 128–32, could narrow the

scope of the present dispute. But it is required in any event, because the record

simply does not support the majority’s decision to order immediate compliance

with these subpoenas, but for a “few documents,” Maj. Op. at 85, falling within its

preselected categories. To be clear, I reach this resolution guided by the Supreme

Court’s admonition in Rumely that the outer reaches of Congress’s investigative59 power are to be identified reluctantly, and only after Congress “has demonstrated

its full awareness of what is at stake by unequivocally authorizing an inquiry of

dubious limits.” 345 U.S. at 46. Serious questions persist with regard to these

subpoenas—questions demanding close review lest such novel subpoenas prove

a threat to presidential autonomy not only now but in the future, and “to the

detriment of not only the President and his office but also the Nation that the

Presidency was designed to serve.” Fitzgerald

, 457 U.S. at 753. Once the parties

have provided this Court with the information that I would seek on remand, we

would at that point have a sufficient record on which to make a prompt and

reasoned determination as to where the balance of hardships lies and whether the

Plaintiffs, having raised serious questions on the merits, are entitled to preliminary

relief.