Seeking a preliminary injunction to prevent compliance with a Congressional subpoenas issued to a party

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 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 denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

The Circuit Court affirmed 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.

The court noted that the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.

In her partial dissent, Judge Livingston stated that she preferred 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” and to “afford the parties an opportunity to negotiate.”

The majority opined that such a remand would 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. 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/doc/19-1540_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/hilite/