Thread by @KlasfeldReports

Good morning.

The Second Circuit is hearing Trump's appeal of a federal judge's ruling from last month authorizing Manhattan DA Vance's probe today.

More on the decision under review: courthousenews.com/second-circuit…

Attorney William Consovoy is up first for Trump.

"The court stacked the deck against the president" by describing Trump's effort at a backdoor effort to relitigate what SCOTUS rejected, Consovoy claims.

Judge Leval:

"I'm a little puzzled because eventually, in order to quash a subpoena... one must make a showing that would support the proposition that the subpoena was [issued] in bad faith or overbroad."

Judge Leval:

We are "pondering a question" that seems to be "irrelevant."

Consovoy:

"I wouldn't say plausibility is irrelevant. It is rather straightforward."

Judge Leval appears deeply skeptical of the position of Trump's attorney, grilling him on every point.

He notes that the DA has stayed enforcement of the subpoenas of his own volition.

Judge Leval calls the allegations of Trump's complaint "contrived."

Judge Leval notes that SCOTUS rejected Trump's claims of immunity:

"The president is not wielding any special privileges as the president of the United States."

Consovoy says he disagrees Trump holds no special privileges as president.

Judge Katzmann presses Consovoy on Trump's position that the DA's probe is limited to Michael Cohen's payments.

Without revealing the scope of the probe, Manhattan DA Vance has suggested it could be much broader.

Background: courthousenews.com/financial-prob…

Consovoy says that Vance essentially "photocopied" the congressional subpoenas, and he cites the similarities as evidence of bad faith

Katzmann notes that grand jury probes are traditional broad and secret.

"Are you asking us to change the ways grand juries have worked since time immemorial" just because we are dealing with the POTUS, Katzmann asks.

Judge Lohier, the final member of the panel, questions Consovoy about whether "if we determine that there's some problem with the scope of the subpoena... we are empowered to draw some limitation."

Judge Lohier:

"So if we were to limit the subpoena to tax returns that are for domestic transactions between 2011 and 2016, would that be something that you could live with?"

Consovoy:

"I don't think so, your honor."

Lohier:

"Why not?"

Consovoy: "That would be far narrower, no question. It's far less overbroad."

Judge Lohier: "Is there a request for documents ... that would not, in your view, be overbroad?"

Consovoy answers in the negative.

Lohier responds: "That's a problem."

Note: The public can listen to the live-stream here. ww2.ca2.uscourts.gov/court.html

Consovoy mocks Manhattan DA Vance's news-report citations for possible scope of the investigation as "internet searches" of every potential misconduct by the Trump Org that he can find.

Judge Leval is back up now.

He says he does not understand the proposition that requests for documents that cover a number of years suggests overbreadth.

Leval adds that he does not understand why the fact that it includes operations in foreign countries would suggest overbreadth either.

Consovoy notes that Manhattan DA Vance's jurisdiction is limited to New York County.

Leval: ... Isn't he a New York taxpayer?

Consovoy: He was then.

But Consovoy adds that does not give Vance jurisdiction to pursue him anywhere in the world.

Consovoy calls the scope of a probe Judge Leval is describing as a "fishing expedition."

Leval: "How is it a fishing expedition if a taxpayer's tax returns cover operations nationwide, worldwide?"

Consovoy says that a NY taxpayer cannot be subject to a "worldwide audit."

Lohier: "If it's investigating fraud in a tax return by a New York taxpayer," that would include returns of transactions beyond New York—even including Indonesia.

Carey Dunne is up for the Manhattan DA's office:

He calls the grand jury subpoenas "garden variety," slamming the "inflammatory assertions and inferences" of Trump's complaint.

Dunne takes on Trump's claim that the DA's probe is limited to Michael Cohen's payments,

The complaint does not cite a single article that says that, Dunne notes.

Judge Leval asks whether DA Vance made any statement suggesting that the probe was limited to the hush payments.

"No, your honor," Dunne replies, adding the DA's office made "no statements" because of grand jury secrecy.

Dunne adds that they have disclosed "generically" the scope of the investigation in response to this litigation.

Dunne says that the DA has asserted on the record consistently that it is not limited to those hush payments.

Leval adds the DA has not even said that the probe is even addressed to those payments.

"Correct, your honor," Dunne says.

"We're through the looking glass here," Dunne adds.

Dunne says the inference by Trump's legal team as to the scope of the investigation is not only "implausible," but "preposterous."

Dunne: "As everybody knows, there's nothing unusual about our office" investigating transactions outside of New York or even internationally.

"Since New York City is at the center of worldwide commerce," Dunne notes, that is necessary as a matter of "experience & common sense."

Leval says that the stay that the Second Circuit ordered earlier this month did not relate to the enforcement of the subpoenas, only on the dismissal of Trump's complaint.

This is that ruling: courthousenews.com/wp-content/upl…

Leval: "The existence of the complaint does not stay the enforcement of the subpoenas."

He says that the only thing staying enforcement of the subpoenas is Vance's office volunteering that.

Dunne: We can look into that, of course.

Leval says that should be looked into so that the DA can learn what has been ordered by the Second Circuit so far.

Judge Katzmann: Do we need, in your view, to have some referential scope of the investigation in order to assess the overbreadth claim?

Dunne replies no because grand jury probes are secret by design.

"I don't think the court needs some sort of frame of reference."

Dunne calls Trump's allegations of a political vendetta "nothing more than speculation," which cannot overcome the presumption of validity.

Katzmann asks about the SCOTUS decision's language of "high respect that is owed to the office of the Chief Executive."

Dunne says that the high court made clear that, despite that, POTUS is treated like an ordinary citizen here.

SCOTUS here: courthousenews.com/wp-content/upl…

Trump's attorney William Consovoy is back up for rebuttal arguments.

Leval presses him on whether or not there is a stay of the subpoenas right now, and whether it was ordered by the Second Circuit—or Vance's choice.

Consovoy says that Vance's agreement, in combination with the court's order, means there is a stay.

Leval does not seem persuaded. He asks for further briefing from the parties on this issue.

Consovoy says that Vance's subpoena's language adopts "word-for-word effectively" that of the House Oversight Committee.

Judge Leval asks his colleague to direct the parties to submit briefings as to whether there is anything that is staying the enforcement of the subpoenas, either a court-ordered stay or voluntary one by the DA.

"I so direct," Judge Katzmann says.

Judge Katzmann reserves decision and adjourns.

Story soon, @CourthouseNews