Posted on April 30 2019
The update 5/22/2018 7:35PM EST Judge Ramos’ Order & Chairwoman Waters and Chairman Schiff’s Statement concerning today’s ruling (see bottom of entry)
update #2, 5/26/2019 9:15AM EST Interlocutory Appeal & stay (See bottom of this entry)
Deutsche Bank you got “Lit”-up
Trust me on this, you’ll want to re-read these previous entries will help you see the big picture both Legislative Powers, and the role of the Judiciary. But before you read the SpicyFiles Duetsche Bank Series, I recommend you read these archived threads, Some of those threads go all the way back to the early Summer of 2017 (admittedly I actually forgot about my previous research).
This July 2017 (RIP) @Spicerlies Archived Twitter Thread was one of my primary cracks into the Trump Deutche Bank money hole. It may in fact been one of my better dives.
This July 2017 (RIP) @Spicerlies Archived Twitter Thread, where I highlighted that both Jared and Ivanka neglected to disclose their (separate) Duetsche Bank loans on their SF86
Part I - IV DeutscheBank, Trump & House Dems:
In this mid-March 2019 entry will help you understand why Congress has the authority to subpoena and investigate Donald Trump’s Sr, Ivanka Trump”s and Jared Kushner’s and Deutsche Bank Relationship.
On the balance it’s hard to take Trump et al newest Complaint (filed in the SDNY on April 29, 2019 Case No 1:19-cv-03826 with any level of seriousness or meritorious argument. Although I suppose that one should acknowledge, Trump’s Attorneys have (albeit, after the fact) appear to have tone down the “its war” trope.
Progress? Hope Springs Enteral, right? Notwithstanding I’m going to dissect the bleep out of this recent Complaint. Because I can, so I did.
In all seriousness their previous Complaint read like a pre-pubescent teenage girl writing in her “burn book”. Writing down scribble-scrabble about how mean the House Democrats are. That “Presidential Harassment” is about as real as Trump’s inauguration crowd size. I am always amazed at the loquaciousness of Trump’s (feigned) “I’m the victim” mentality and manufactured narrative. To the average person you might overlook Trump’s over the top “woe as me” victim card. weird watching the Sociopath in Chief yammer
House Permanent Select Committee on Intelligence and the House Financial Services Committee issued the subpoenas to Defendants Deutsche Bank AG and Capital One Financial Corp. These two financial institutions have long provided business and personal banking services to Plaintiffs.
In paragraph 3, while it’s a bit abbreviated, there’s actually a lot to unpack. It would appear that team-Trump requested/demanded Chairman Schiff and Chairwoman Waters to produce a copy of the subpoenas. The use of “private lives” is fatally misconceived.
Trump, as our Country’s 45th president is no longer a “private person” now are his daughter Ivanka Trump or son in law Jared Kushner. All 3 are public figures. Furthermore Trump never divested from his 800+ shell and shelf companies.
Nor did Trump create an actual blind trust. For the record a “revocable trust” (See below for a proper explanation of a revocable v irrevocable trust) it also sure reads as though Deutsche & Capital One “read” the subpoenas to Trump’s Attorneys, which is problematic because this is Trump’s Private/outside Counsel.
That’s not how this works, at all.
“Committees have refused to provide copies of the subpoenas to Plaintiffs—preventing them from even knowing, let alone negotiating, the subpoenas’ scope or breadth.”
Revocable Trust: also colloquially known as; revocable living trust or a living trust. This allows the grantor (Trump Sr) to pull out any sum of money, with zero disclosure requirements. Trump can also revoke and/or reclaim any property held in the trust. Again zero disclosures are required. In addition, Trump can remove/add beneficiaries. The trust typically is then managed by a “neutral” third party, whereas Trump Sr has Trump Jr (Trump Org - VP) and Allen Weisselberg
Fox & Friends, September 15, 2016 telephone interview with Trump, where he once again lied, stating he would put his business interest in a blind trust:
edition of Fox News’ Fox & Friends, co-host Brian Kilmeade asked Trump by phone about Eichenwald’s article and whether “you and your family [will] permanently sever any connections to the Trump Organization while you're in office.”
Moving along to paragraphs 5-7, this type of histrionics really does not bode well for Trump, at all. I think a simple analogy is:
Step 1:Trump pours gasoline on dry aged wood.
Step 2: Trump then flips his zippo open.
Step 3: Trump then tosses his lit zippo into the woodpile
Step 4: Trump then hides behind his army of Attorneys
Step 5: the FireFighters show up to put the fire Trump started out
Step 6: once the fire is smoldering Trump than has his attorneys file suit in an attempt to usurp and defang Congress’ OverSight Power. All while screaming but your honor “her emails” this is “Presidential Harassment” none of which is an argument founded in strength. Which is utterly delightful.
They seek not only the Plaintiffs’ documents, but also the financial records of their parents, subsidiaries, affiliates, branches, divisions, partnerships, properties, groups, special purpose entities, joint ventures, predecessors and successors
I could be wrong but this new Complaint isn’t exactly persuasive. Given Trump et al did not intervene when the SDNY, EDNY, NY DFS or NY AG sent subpoenas to Deutsche Bank. The Powers Of Congress are in fact enshrined in the Constitution which grants them the authority to create laws, collect taxes and most importantly conduct real & meaningful Government OverSight. Yet once again Trump tries to argue both sides, and none of his arguments, thus far have been persuasive.
Of all the arguments presented in this flimsy and frivolous Complaint, by far this is the weakest. The moment Donald Trump accended to the RNC’s Presidential Nominee, the day Trump took the oath of office he became a public person, as did Ivanka Trump and Jared Kushner. Thusly paragraph 10 is wholly without merit.
US Constitution, Article II, Section 1
Before he enter on the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."
The Complaint then pivots to the Right to Financial Privacy Act. I was patiently waiting for Trump et al to use this Act as part of their arguments. Because now is the time where I can present a counter argument. And meticulously prove how unpersuasive Trump’s arguments are. In fact it’s adorable.
Here is why, pursuant to the FDIC:
1978 Right to Financial Privacy Act (RFPA) establishes specific procedures that federal government authorities must follow in order to obtain information from a financial institution about a customer’s financial records. Generally, these requirements include obtaining subpoenas, notifying the customer of the request, and providing the customer with an opportunity to object
FTC enforcement of Privacy of Consumer Financial Information Rule (Privacy Rule). found at 16 C.F.R. Part 313 Now if Trump was smart he would have named the FTC and the FDIC but now I’m going to blow holes in Trump’s recent Complaint.
United States v. Miller (1974)
Yes I know that a Congressional Subpoena is not the same as a law enforcement (ATF, FBI etc) subpoena nor is it a grand jury subpoena. Notwithstanding this SCOTUS case draws a few interesting parallels that might in fact buttress the strength and purpose of the Congressional Subpoena(s):
FACTS OF MILLER’S CASE
Mitch Miller was charged of carrying alcohol distilling equipment and whiskey on which liquor tax had not been paid. The Bureau of Alcohol, Tobacco, and Firearms (ATF) issued subpoenas to two of Miller's banks, The Citizens & Southern National Bank of Warner Robins and the Bank of Byron requesting records of Miller's accounts. The banks complied with the subpoenas, and the evidence was used during Miller's trial in the United States District Court for the Middle District of Georgia. Miller was convicted and appealed his conviction alleging that his Fourth Amendment rights were violated. The United States Court of Appeals for the Fifth Circuit ruled in his favor.
QUESTION before SCOTUS: (Burger Court)
Were Miller's bank records illegally seized in violation of the Fourth Amendment?
SCOTUS HELD (there’s a very important distinction)
No. In a 6-3 opinion, the Court reversed the Fifth Circuit and held that Miller had no right to privacy in his bank records. Writing for the majority, Justice Lewis F. Powell asserted that the "documents subpoenaed are not [Miller's] 'private papers'," but instead, part of the bank's business records. Consistent with Hoffa v. United States, Miller's rights were not violated when a third party - his bank - transmitted information that he had entrusted them with to the government.
🌶SpicyFiles Sidebar🌶 apologies I realized after the fact that when I converted the Oyez SCOTUS MP3 files of Oral Arguments the “iframe” code generator has an auto-download and I inadvertently hard codes to the iframs via the Oyez API. Sometimes I forget that some of you may not have the same institution judicial knowledge. Again deeply sorry for the stress and panic that I inadvertently caused.
SCOTUS Oral Arguments, MP3 link found here the landing page will look li,w this, the black arrow is the embedded bar to stop/start the audio of the Oral Arguments.
California Bankers Assn. v. Shultz
U.S. Supreme Court held...”the Constitution did not protect the privacy of personal information in records maintained by business and government.”:
1. Title I's recordkeeping requirements, which are a proper exercise of Congress' power to deal with the problem of crime in interstate and foreign commerce, do not deprive the bank plaintiffs of due process of law. Pp. 416 U. S. 45-52.
(a) There is a sufficient nexus between the evil Congress sought to address and the recordkeeping procedure to meet the requirements of the Due Process Clause of the Fifth Amendment, Page 416 U. S. 23 and the fact that banks are not mere bystanders in transactions involving negotiable instruments, but have a substantial stake in their availability and acceptance and are the most easily identifiable party to the instruments, makes it appropriate for the banks, rather than others, to do the recordkeeping. United States v. Darby, 312 U. S. 100; Shapiro v. United States, 335 U. S. 1. Pp. 416 U. S. 45-49.
(b) The cost burdens on the banks of the recordkeeping requirements are not unreasonable. P. 416 U. S. 50.
(c) The bank plaintiffs' claim that the recordkeeping requirements undermine the right of a depositor effectively to challenge an IRS third-party summons is premature, absent the issuance of such process involving a depositor's transactions. Pp. 416 U. S. 51-52.
You can access the Oyez MP3 via this link the Oyez landing page should look like this,
This particular passage of the SCOTUS Opinion...well it’s interesting to me and I’d you don’t think Banks that lend Money to Trump et al would invoke the 5th...I don’t think it’s a big leap to say: the equities tip in favor of Congress...
The bank plaintiffs cannot vicariously assert Fifth Amendment claims on behalf of their depositors under the circumstances present here, since the depositors cannot assert those claims themselves at this time. See� 8, supra. Pp. 416 U. S. 71-72.
Thanks Chairman Nunes
In 2018 you helped update the case law
In my nonbinging opinion these two aforementioned SCOTUS rulings tip the balance of equities in favor of Congress. Yet I saved the very best for last...in a full throated sweeping karmatic play...the Steele Dossier and the House Republicans actually strengthened the House Democrats subpoenas. Frankly it’s sublime see CNN FusionGPS Article here.
On January 4, 2018 US District Court Judge Richard J. Leon ruled in favor of the US House of Representatives and denied Fusion’s Motions to Dismiss, Emergency TRO, Preliminary Injuction and Quash.
In the matter of:
BEAN LLC v. JOHN DOE BANK (1:17-cv-02187)
On January 4, 2018 US District Court Judge Richard J. Leon ruled in favor of the US House of Representatives and denied Fusion’s Motions to Dismiss, Emergency TRO, Preliminary Injuction and Quash. In Judge Leon’s 26 Page Order and Memorandum
I mean you do understand the fantastic irony, right? That Trump et al are now in fact arguing the same (unpersuasive) arguments that Fusion GPS argued and ultimately the Court sided with the US House and the bank was ordered to comply with the Congressional Subpoenas:
By mid October 2017 the Bank eventually stated its intention to comply with the Congressional Subpoena (you do understand how ironic it is that it’s Devin Nunes that issued the Subpoenas, right?) to wit Fusion filed an “instant action” where they sought to enjoin the Bank from turning over Financial Records the House had Subpoenaed. Again you could swap our Fusion for Trump and it’s reasonable to infer that Trump’s recent filing will have a similar likely outcome, judicially speaking.
And this is why Fusion sought to intervene and quash the Congressional Subpoena, in the course of TD Bank complying with Nunes’ Subpoena, the Committee discovered dozens of transactions that had not previously been disclosed. In the end TD Bank (at the strenuous objection of the Account Holder) produced or reproduced in excess of one hundred and twelve transactions. Hence I would not be surprised if the respective House Chairs use this order to buttress their response to Trump’s subpoena Complaint. At least that’s what I would do. Because my gut is Trump et al are probably using the aforementioned “privacy act” as a litigation blackhole and a fatally flawed attempt to bait the House Democrats into this side argument.
As we’ve previously discussed when a party is seeking relief from the Court, in terms of a preliminary injunction and/or temporary TRO the Plaintiffs have a four part burden. I do not see a logical argument where Trump can prevail in a substantive and meriterous argument. It’s literally that simple.
Again the DC Court found in favor of Congress, pursuant to the January 5, 2018 Minute Order, detailed below:
I suppose it might be prudent to see how Trump’s Complaint plays out before I get ahead of my skis but I really do not see any persuasive argument for Trump to prevail. Again you can read the January 2018 Congressional Subpoena Order and Memorandum here.
You can read Trump’s (second case) filed in SDNY Case No 1:19-cv-0382 found here. Incidentally as somewhat expected on April 23, 2019 the DC Court entered the following Minute Order
On a side note TRUMP v. CUMMINGS (1:19-cv-01136, found here), yesterday the “parties” agreed and stipulated that Cummings & Kenney were (in their personal capacity) dismisses from Case 1:19-cv-01136-APM
- I’ll update both cases when warranted. Which means I’ve been on docket watch for the 4thCCOAs since March 19, 2019. The reason for today’s updatd is there was movement meaning the Judge sided with Congressional Democrats.
Until then don’t look for me on Twitter because any account purporting to be me, is not.
5/22/2019 UPDATE DENIED
Earlier this afternoon Judge Ramos’ DENIED Trump et al’s Request for a Preliminary Injunction concerning the Congressional Subpoenas. Link to Judge Ramos’ Order (sorry PACER Paywall):
The one big issue I can see that would cause Trump et al serious heartburn: Deutsche Bank’s and/or their underwriter “notes” surrounding the BSA/AML and Trump loans. If I were Deutsche, Trump and Kushner I would be very very worried.. especially since the publication of the NYT’s Deutsche Whistleblower Article. In fact I would not be the least bit surprised if Auntie Maxine “invites” said whistleblower to a “closed door” interview...remember one of her Committee’s Primary Charter is OverSight of Financial Institutions. So it would be perfectly acceptable for the House Financial Services Committee to invite this former Deutsche Bank employee to “come have a chat” with Congress.
Keep in mind there’s plenty of legal precedence that have adjudicated that “bank records (including notes & emails) belong to the Bank versus the Account Holder. That’s an important distinction, that some might overlook.
In my line of work that would be something that clients could and should lose sleep over. As predicted the Second Article III Judge (keep in mind DC Judge Mehta Denied Trump’s Motion too) that found Trump’s arguments unpersuasive.
As for what to expect next?
Trump will likely file an Interlocutory Appeal pursuant to 28 U.S.C. § 1292
Pursuant to 28 U.S.C.A. § 1292(b), provided that application for an appeal will not stay proceedings in the district court unless the district judge or the court of appeals or a judge thereof so orders, the court of appeals permit an appeal to be taken from an order, if application is made to it within 10 days after the entry of the order. The 10-day window specified by statute governing applications for immediate appeal from interlocutory orders is mandatory. By filing a successive motion and appealing the denial of that motion, a party seeking review of an interlocutory order cannot enlarge the time for noticing the appeal.[ii]
I should note that’s an educated guess on my part. For the better part of 26 months I’ve closely monitored how Trump, both in his personal and official capacity reacts when he loses in Court. He is very quick to pivot to an Interlocutory Appeal and/or “cert before Judgement”...on 3 separate occurrences Trump has attempted to skip past the Circuit Court of Appeals and had his Solicitor General attempt to go straight to SCOTUS.
That said Judge Ramos’ hasn’t uploaded his Memorandum Order yet but when he does I’ll be happy to update you. Not that it matters, based on reports from Reporters inside the Hearing, it seems that Judge Ramos found Trump et al’s arguments to be “frivolous” and without merit, meaning the Congressional Subpoena(s) Stand, for now...
See House Chairwoman Waters (Financial Services Committee) and Chairman Schiff’s joint statement which reads in part:
Following today’s ruling by the U.S. District Court for the Southern District of New York to uphold Congressional authority to access the President’s financial records, Congresswoman Maxine Waters (D-CA), Chairwoman of the House Financial Services Committee, and Congressman Adam Schiff (D-CA), Chairman of the House Intelligence Committee, released the following statement:
“We are pleased with Judge Ramos’ decision. Congress’ authority to conduct relevant oversight has been repeatedly challenged by this Administration. The decision made in the U.S. District Court for the Southern District of New York today is a victory for the role of Congress as a co-equal branch of government and for the important work our Committees are doing in protecting and serving the interests of the American public.”
Update # 2 May 26, 2019 Trump Appeal
As expected and predicted, yes of course Trump et al filed a notice of Appeal. Specifically an Interlocutory Appeal. That notice was filed on May 24, 2019.
What you may not be aware of, when a party files a Notice of Appeal, typically parties will attempt to “meet and confer” absent a Court Ordering them to do so. Normally the purpose is to discuss a compromise or an accord that both parties are satisfied with. Shortly thereafter the parties tend to jointly file a Motion to Stay — in non-legalese a Stay effectuates a “pausing” of proceedings until the District Court’s initial Ruling is either AFFIRMED or REVERSED.
Shortly before 1PM yesterday afternoon, May 25, 2019 the parties jointly filed a Motion to Stay. In the 2ndCCOAs Case 19-1540
I found the following sentence in the Motion to Stay, rather interesting, it reads in part:
...”parties have reached an agreement regarding compliance with and enforcement of the subpoenas during the pendency of Plaintiffs’ appeal.”
Also I’m glad to see (former) AG M Mukasey fixed his email address. Remember a couple of weeks ago I was like, weird why does Mukasey have a Greenberg Traurig
Court of Appeals Docket #: 19-1540
The docket sheet for the 2ndCCOAs Court of Appeals Docket #: 19-1540, sorry behind a paywall. However I pulled down the docket sheet and highlighted the important and relevant sections for you:
2ndCCOAs Case No: 19-1540, Motion to Expedite Appeal (document number 5), before we dissection Plaintiffs Motion to Expedite (document # 5) it might be worthwhile to explain the criteria and rules that govern filing said Motion.
Rule 2 of the Rules of the Second Circuit, it mirrors Rule 2 of the Federal Rules of Appellate Procedure, grants the court wide discretion to grant or decline an expedited appeal.
"On its own or a party's motion, a court of appeals may -- to expedite its decision or for other good cause -- suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)."
This 2ndCCOAs link will take you to the aforementioned rule.
Now back to Trump et al’s 2ndCCOAs Motion to Expedite, as previously eluded to in the SDNY filing. This appears to be the substance of said “agreement”, which reads in part:
House of Representatives, agree to suspend the time for production set by the subpoenas during the pendency of this appeal, except to the extent the subpoenas call for the production of documents unrelated to any person or entity affiliated with Plaintiff-Appellants.
Deutsche Bank and Capital One agree to continue collecting and preparing all documents responsive to the subpoenas but agree to produce only documents unrelated to any person or entity affiliated with Plaintiff-Appellants during the pendency of the appeal. Nothing in this agreement in intended to preclude separate production agreements between non-parties and the Committees.
To the average person that filing seems fair and equitable for all parties, however upon closer inspection of page 4...there’s a caveat and a specific time-frame, seven days. While you might be inclined to think that’s an arbitrary amount of days, I can assure you that there’s nothing arbitrary about it. For reasons I’ll explain in further detail in the coming days. Call it a hunch but I need to triple check what I -think- is occurring.
I’m not an attorney nor have I purported to be one, I’m the one attorneys turn to when they are stuck and can’t formulate an argument that eviscerates opposing counsel. A few days ago I started re-researching my own Deutsche Bank research and like a bolt of lightening I was thunderstruck. There’s widespread agreement that Donald J Trump is in fact a vexatious litigant. Roy Cohn taught him the strategy of:
“litigate your opponent into Financial Insolvency”
What many continue to overlook is, in June of 2018 Deutsche Bank AG entered into a Consent Decree with New York’s Department of Financial Services and paid a $225M fine for “jamming the fix”:
for violations of New York banking law, including efforts to improperly coordinate trading activity through online chat rooms, improperly sharing confidential customer information, trading aggressively to skew prices, and misleading customers.
Of course that was after the January 2017 “Mirror Trades” That Improperly Shifted $10 Billion Out of Russia - essentially washing Russia’s dirty money and allowing their money to infect America’s Banking System.
Deutsche Bank AG and its New York branch will pay a $425 million fine and hire an independent monitor as part of a consent order entered into with the New York State Department of Financial Services (DFS) for violations of New York anti-money laundering laws involving a “mirror trading” scheme among the bank’s Moscow, London and New York offices that laundered $10 billion out of Russia. DFS’s investigation found that the bank missed numerous opportunities to detect, investigate and stop the scheme due to extensive compliance failures, allowing the scheme to continue for years. DFS worked closely on the investigation with the Financial Conduct Authority.
There are various terms and conditions in each of those Consent Decrees, which effectively bind Deutsche to produce documents when asked to . Meaning it’s possible for NY DFS, NY AG to obtain the very same records in the Congressional Subpoenas.
Conversely, I hold zero trust or faith that Bill “Roy Cohn 2.0” Barr would use the similar tools in the DOJ Deutsche Bank Settlements and deferred prosecution agreements. I am wondering though, if it’s possible (we already know it’s plausible) that the EDNY AUSA could in fact force Deutsche to produce said Records because the DOJ & Deutsche Bank Settlement Agreement (for their price fixing re Libor, remember some of Trump’s loans/mortgages are classified as LIBOR)
- Download Annex 1 -- Statement of Facts
- Download Annex 1A -- Statement of Facts Appendices A through D
- Download Annex 2 -- Consumer Relief
- Download Annex 3 -- RMBS Covered by the Settlement
Given that the EDNY AUSA was aggressively prosecuting the various Deutsche Bank employees concerning the LIBOR scandal:
The Defendant: PAUL MANGIONE , E.D.N.Y. Docket No. 17-CV-5305 (NGG)
When I said Deutsche Bank entered into a Deferred Prosecution Agreement, I was eluding to the:
April 2015, Deutsche Bank entered into a deferred prosecution agreement to resolve wire fraud and antitrust charges and Deutsche Bank Group Services (UK) Limited pleaded guilty to one count of wire fraud, collectively agreeing to pay a $775 million fine, for the bank’s role in the scheme. Two Deutsche Bank traders pleaded guilty to fraud charges related to the LIBOR manipulation scheme.
I’m not saying it’s a 100% guarantee that the NY DFS and/or EDNY AUSA could obtain the very same records requested in the recent subpoenas. What I am saying is, I would expect the House Committees to use the aforementioned criminal matters as part of their argument. But at the end of the day the Deutsche Bank and Capital One Records are not the property of the Account Holder, a one Trump et al...no those records are the property of the respective banks. And lastly you do know that Deutsche Bank is in the FDIC, the FDIC Board of Governor’s and the SEC (SEC Order - DBTCA & SEC Order - DBSI) and the FTC crosshairs, right?
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