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1. Solid brief by @wconsovoy and team. Since 2CCA will review de novo, I don't know why they spent so much time attacking Judge Marrero's analysis. FWIW, I expect @ManhattanDA to respond as follows:
https://at.law.com/DAhRtt?cmp=share_twitter via @NYLawJournal
https://at.law.com/DAhRtt?cmp=share_twitter via @NYLawJournal
2. (A) Relief sought by Trump is quashing grand jury SDT on grounds (1) it is overboard & (2) issued in bad faith; (B) GJ SDTs are presumed to have been issued in good faith and aren't overbroad; (3) Trump's SAC fails to give rise to a "reasonable/plausible inference" ...
3. ... that the GJ SDT is overbroad or issued in bad faith; (4) Therefore, the 2CCA, on de novo review, should affirm Judge Marrero's grant of the @ManhattanDA 12(b)(6) motion to dismiss. (See page 39 of @wconsovoy brief to see the interplay between 12(b)(6) & law re: GJ SDTs.)
4. @wconsovoy kind of knows that he will lose his "reasonable/plausible inference" argument, given the substantive law governing motions to quash, including the presumption that GJ SDTs are issued in good faith with proper scope. So, on page 42 of his brief, he throws in ...
5. ... an alternative/backup argument/request: Despite the general rule of GJ secrecy, require the @ManhattanDA to "state on the record" in "general terms the nature of the investigation, and demonstrate that the records [sought] bear some relation to that investigation."
6. @ManhattanDA may not object to making this showing (assuming they haven't already done so) in camera, so as to preserve GJ secrecy.
Bottom line: This case is the only one I'm aware of that involves the interplay between the plaintiff-friendly liberal pleading rules of the FRCP
Bottom line: This case is the only one I'm aware of that involves the interplay between the plaintiff-friendly liberal pleading rules of the FRCP
7. and the substantive law governing motions to quash GJ SDTs -- which applies a strong presumption of good faith and proper scope to SDTs. Given that interplay, it is hard to predict where the 2CCA will come out following de novo review.
8. @ManhattanDA brief is due September 21. Trump's reply on September 24. And oral argument on September 25. I expect an expedited opinion before October 15. END.
12. See the attached New York State case. Note that it cites Couch. The @ManhattanDA cited Couch in its Second Circuit briefs opposing a stay/injunction of Judge Marrero's decision. But the @ManhattanDA
10. (B) As the SCOTUS noted, challenging a grand jury SDT "usually" can include arguments that the SDT is overboard and/or issued in bad faith.
11. However, and this is critical, New York state law does not permit any citizen to challenge "third party" grand jury SDTs -- like Trump, as an ordinary citizen, challenges the SDT issued to third party/Mazars, his accountant, seeking his tax documents.
12. See the attached New York State case. Note that it cites Couch. The @ManhattanDA cited Couch in its Second Circuit briefs opposing a stay/injunction of Judge Marrero's decision. But the @ManhattanDA must expand upon the No-Standing-To Challenge-Third-Party-GJ-SDTs argument.
13. The @Manhattanda cannot let Trump, as an ordinary citizen, ignore New York state law (that the SCOTUS has stated governs) that bars challenges to GJ SDTs issued to a third party, like Mazars. Trump cannot get around this procedural bar by the expedient of filing a complaint
14. and asserting that the FRCP (instead of controlling NY state law regarding standing to challenge GJ SDTs issued to a third party), including 12(b)(6)'s liberal pleading rules allow him, as an ordinary citizen, to ignore the NY state rules that apply to every citizen.
15. Bottom line: Under NY state law (that the SCOTUS stated sets the parameters of Trump's challenge on remand) no citizen would have standing to challenge the GJ SDT (on the ground of overbreath, bad faith or other non-constitutional claim) issued to their third party accountant
16. Trump, as an ordinary citizen, as a matter of (NY state) law doesn't have standing to challenge the GJ SDT issued to his third party accountant/Mazars seeking tax documents in their possession. END.
9. Hopefully, in its September 21 brief, the @ManhattanDA will note the following from the SCOTUS opinion: (A) Trump's challenge to the GJ SDT on remand is limited to any ground that "every other citizen" would be "permitted" to assert "by [NY] state law."
NOTE: The numbering and attachments in this thread (asserting that Trump doesn't have standing to challenge the GJ SDT issued to third party/Mazars) somehow got mixed up. But all relevant attachments are included, some were mistaken inserted at the wrong location.
