Published by The Lawfare Institute
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Following the Supreme Court’s decision in Trump v. Vance—the president’s challenge to a subpoena for his financial documents issued by Manhattan District Attorney Cyrus Vance to the Mazars accounting firm—the first round of papers has been filed in the U.S. District Court for the Southern District of New York. On July 27, Trump submitted an amended complaint arguing that the subpoena is invalid. Vance responded on Aug. 3 with a Federal Rule of Civil Procedure Rule 12(b)(6) motion to dismiss on the grounds that Trump had failed to state a claim.
Trump’s Amended Complaint
Trump’s amended complaint asserts two distinct counts: that the subpoena is overbroad and that it was issued in bad faith. Both counts include the language that “the subpoena amounts to harassment of the President in violation of his legal rights, including those held under Article II of the Constitution.” In addition, the two claims are closely linked as Trump argues that the subpoena’s overbreadth is evidence of bad faith.
In Trump’s view, the circumstances surrounding Vance’s decision to issue the subpoena on Aug. 29, 2019, make it illegitimate. According to Trump, after his lawyers told Vance that an earlier subpoena issued to the president directly did not require production of Trump’s tax records, Vance “retaliated by issuing a new subpoena to Mazars, a neutral third-party custodian, in an effort to circumvent the President.” Additionally, Trump argues that Vance acted improperly by issuing a subpoena that was a “photocopy” of subpoenas issued by House Democrats. (Pages 6–7 show the similarities between Vance’s subpoena and the House Oversight Committee’s.) Trump argues that because the House subpoenas were justified by federal legislative objectives, “[i]t is inconceivable to think that a subpoena designed for the purpose of achieving the Committee’s explicitly national and international goals ... is properly tailored to the New York grand jury’s state-law investigation.” Trump puts considerable weight on the fact that the subpoena at issue and the House Oversight Committee’s subpoena covered the same time period, even though Vance has suggested that his investigation is “not ‘coextensive’” with the committee’s inquiry. And lastly, Trump adds that Vance’s decision to issue the subpoena in August 2019, “when, as U.S. News reported, Democrats had become increasingly dismayed over their ongoing failure ‘to get their hands on the long-sought after document’”—referring to the president’s tax returns—is “evidence of bad faith.”
Trump also argues that the subpoena “exceed[s] the District Attorney’s jurisdiction generally.” After noting that the district attorney’s authority is limited to the geographic borders of New York County, Trump argues that the subpoena seeks documents concerning “entities” located outside of New York but within the U.S., as well as “entities” located abroad.
Finally, Trump asserts that the subpoena at issue “is so sweeping that it amounts to an unguided and unlawful ‘fishing expedition’ into the President’s personal financial and business dealings.” Relying on past press reports suggesting that Vance’s investigation was focused on payments made to women in the run-up to the 2016 election in order to conceal Trump’s extramarital affairs, Trump writes that “[t]his is not a straightforward request to review specific business transitions; it is an overreaching demand designed to pick apart the President and each related entity from the inside out.”
Vance’s Motion to Dismiss
Vance’s motion to dismiss rebuts Trump’s claims that the subpoena is in bad faith and overbroad, arguing that because the complaint failed to assert any Article II injury that would result from the subpoena being enforced, it should be dismissed with prejudice. Throughout, Vance states that Trump has made no new assertions to the court and points to the presumption of regularity that applies to grand jury proceedings. And he notes that the longer the litigation goes on, the more Trump has achieved essentially the absolute presidential immunity from state-level criminal process rejected by the Supreme Court in its Vance ruling.
First, although the extent to which Trump will claim Article II injury seems ambiguous, Vance emphasizes that Trump’s complaint lacks any basis for applying a different standard to him as the president. It describes the two limits on a subpoena against the president: A state prosecutor cannot “attempt to influence a President’s official duties ... or require compliance” in a way that “impede[s] a President’s constitutional duties” (quotation marks, citations, and alterations omitted). But here, Vance says that the president’s amended complaint offers no such claims. In Vance’s words, “[T]he summary assertion that Article II is in play necessarily fails because it rests only on garden-variety claims that themselves are meritless.” Vance is not attempting to influence the president, and because the subpoena was issued to a third party, the process wouldn’t affect the president’s Article II duties.
Second, Vance argues Trump has failed to state a claim that the subpoena is overbroad. Vance explains that the grand jury has the prerogative to gather a wide range of information. If Trump wanted to quash a subpoena like the one in this case, Trump would have to show that “a particular category of documents can have no conceivable relevance to any legitimate object of investigation” by the grand jury. Instead, Vance states that Trump “relies on a series of speculative assertions and unfounded conclusions,” including about the similarity between this subpoena and the congressional subpoenas, what jurisdiction the investigation can cover, and the scope of the investigation itself.
On Trump’s point about the congressional subpoenas, Vance explains that the subpoenas were written for different purposes, and that the similarities do not meet the relevant legal standard: “that the documents requested are so unrelated to the subject of the inquiry” that it is obvious that they would be “futile” if produced. Next, Vance rebuts the claim that because the subpoena might include organizations outside of New York, the subpoena is overbroad. Because the Trump organization is headquartered in Manhattan, he argues, and because New York can have criminal jurisdiction over physical acts that had some consequence in the state, the subpoena cannot be quashed on the basis of Trump’s assertions. Moreover, “[e]ven if it were possible ... to question the Office’s jurisdiction” at the end of the investigation, “it is not remotely an obstacle to the grand jury investigation now” because the grand jury is entitled to the evidence as it considers whether to indict.
Vance then addresses the final aspect of Trump’s overbreadth claim, stating that the subpoena’s scope is not overbroad because its scope is similar to the scope of other white-collar investigations, and Trump’s claim “rests on the false premise that the grand jury’s investigation is limited to so-called ‘hush money’ payments made by Michael Cohen ... in 2016.” Vance cites “undisputed evidence in the public record,” including the lower court decision, a declaration by someone in the district attorney’s office (redacted on the public docket), and news articles about “possibly extensive and protracted criminal conduct at the Trump organization.” As the New York Times noted, the filing suggested that Vance’s inquiry was “significantly broader ... than the prosecutors have acknowledged in the past.” Previous reporting had suggested that the investigation was focused on the hush money payments, but the motion to dismiss hints that the office may be casting a wider net.
Third, Vance argues that Trump did not state a claim that the subpoena was issued in bad faith. Instead, the subpoena is “presumptively valid,” and Trump must make an “affirmative showing of impropriety.” Vance pointed out that in the district court’s earlier decision in the case, the court found that Trump had not met the standard for bad faith—and “[n]o reviewing court has come to a different conclusion”—and since then, he had not made any new allegations. Instead, Trump had asserted that the overbreadth itself “demonstrates bad faith,” a “baseless” claim. And Vance dismissed Trump’s attempt to link Vance to “Democrats” who sought to make the records public, both because Trump did not rebut the presumption of regularity and because of grand jury secrecy laws.
Because Trump “establish[ed] no basis for relief” on what the complaint “labels as overbreadth and bad faith,” and because “the conclusory and speculative allegations that the President’s Article II interests ... are entirely insufficient,” Vance seeks for the complaint to be dismissed with prejudice.
Two more filings remain. By noon on Aug. 10, Trump will file a brief in opposition to Vance’s motion to dismiss. Vance will have an opportunity to respond by noon on Aug. 14.