Thread by @obarcala

It was smart of Judge Marrero to rule on the substance of Trump's immunity claim in the Mazars subpoena case, abstaining under Younger—2nd Cir says Younger doesn't apply, but affirms his alternative holding on the merits

The opinion gives a good summary of the background—NY DA started a grand jury to investigate whether NY laws were violated by hush money payments

Served a subpoena on Trump Org, which initially complied but "resisted" producing Trump's personal tax records

So the DA sent a subpoena to Mazars, the accountant firm for Trump several related entities. The subpoena is quite broad, seeking tax returns, financial statements, and all underlying/supporting documents and work papers

On the deadline for Mazars to produce the docs, Trump filed the federal action seeking a declaratory judgment that the subpoena is invalid and a permanent injunction staying the subpoena as long as Trump is in office

The 2nd Cir recognizes that Younger abstention is typically warranted when a fed court is asked to interfere wit ha pending state prosecution

But the concerns underlying abstention are diminished when fed actors are already involved in the state case, and "strikingly so when the federal actor is the President of the United States"

"[W]e do not believe that Younger's policy of comity can be vindicated where a county prosecutor, however competent, has opened a criminal investigation that involves the sitting President[.]"

2nd Cir recognizes the dist ct didn't really decide the merits, but since the discussion of the issues was "clearly intended" to "obviate a remand," it construes the discussion as an order denying the motion on the merits

(Which is a relief to some commentators who may have loudly complained that people were talking about the decision below as if it were on the merits—at least I wasn't *completely* wrong.)

https://twitter.com/obarcala/status/1181223831811346433?s=20

The court briefly addresses Trump's supervillain-y "absolute immunity" argument—"We have no occasion to decide today the precise contours and limitations of presidential immunity" and decides only that it does not bar a grand jury subpoena to a third party for non-priv materials

Obviously a Pres is subject to judicial process in some circumstances—"Over 200 years ago, [Marshall].. upheld the issuance of a subpoena duces tecum to President Jefferson."

Jdx over Pres is warranted when necessary to vindicate public interest in an ongoing crim prosecution

Trump hasn't explained why, if the executive privilege did not preclude enforcement of the Nixon subpoena, this one must be enjoined "despite seeking no privileged information and bearing no relation to the President's performance of his official functions"

None of the docs sought implicate exec privilege (and the cite suggests Trump has not even asserted it over the docs), nor is it about his official actions—only private tax returns and financial info about his actions as a private citizen

True, historical practice says a court can't compel the Pres to attend a trial, "[b]ut we are not faced...wit hthe President's arrest or imprisonment...or, indeed, with an order that compels the President *himself* to do anything."

A state subpoena may implicate the Supremacy Clause, but "no court has ordered the President to do or produce anything. Nor has the President explained why any burden [caused by the subpoena] would rise to the level of interfering with his duty to 'faithfully execute' the laws"

Court is not persuaded by the idea that the "distinctive and serious stigma" from being a "target" of the investigation is enough. He hasn't been charged w/ a crime, and being involved in an investigation is not "so debilitating."

Nixon was actually an unindicted coconspirator at the time his subpoena was issued—"Surely that designation carries far greater stigma than the mere revelation that matters involving the President are under investigation."

And the investigation concerns others as well. The aim that "guilt shall not escape or innocence suffer...would be substantially frustrated if the President's temporary immunity were interpreted to shield the conduct of third parties from investigation."

Trump concedes that even the immunity he asserts is temporary, so why can't a state begin an investigation during his term and then prosecute him after he leaves office? The President only points to two memos from the OLC that says he may not be prosecuted...

But the memos only say he may not be *indicted*—neither says that he cannot be *investigated*. One even expressly approves of a grand jury "continuing to gather evidence throughout the period of immunity[.]"

So the 2nd Cir, unlike the dist ct, doesn't even discuss whether the reasoning of the OLC memos are persuasive—"even if it is correct, a grand jury that simply 'gathers evidence' during the President's term commits no constitutional violation."

It also rejects this hail mary argument that a subpoena isn't just investigation b/c it's backed by contempt power—once more for the rafters, "the subpoena is not directed to the President and so it cannot 'coerce' him at all."

Now we get to the US amicus in support of Trump's motions—it argued even if not absolutely immune, the DA must make a heightened showing of need. But that applies to seeking docs covered by exec privilege, not where the subpoena doesn't seek any privileged info

The US suggested "without elaboration" that if privileged records have a heightened standard, it may be "even more necessary" for personal records.

"We do not see how this is so." Surely exposure of sensitive gov records is of greater concern than private records

Court again emphasizes the narrowness of the appeal—it does not consider whether the President is immune from indictment/prosecution, nor if he can be forced to produce docs in state court. It's only whether a third party can be compelled to produce his personal financial records

"[T]he President has neither demonstrated that he is likely to prevail on, nor raised sufficiently serious questions going to the merits of, his immunity claim, and so he is not entitled to preliminary injunctive relief."

Remanded for further proceedings.