Legal Experts Call Trump’s Attempted “Coup” with Mulvaney at CFPB “Illegal,” “Lawless”

M E M O R A N D U M

To: Interested Parties

From: Karl Frisch, Allied Progress

Date: Monday, November 27, 2017

Re: The Reviews Are In: Legal Experts Call Trump’s Attempted “Coup” with Mulvaney at CFPB “Illegal,” “Lawless”


The reviews are in on the Trump administration’s attempt to sabotage CFPB Acting Director Leandra English by naming CFPB opponent and current Office of Managing and Budget Director Mick Mulvaney to the same post:

Georgetown law professor Adam Levitin called the move “illegal” and asked “Why design an agency to be insulated from Presidential control only to hand the keys to the White house whenever the director leaves before the expiration of his term?” 

“Adam Levitin, a professor at Georgetown University Law Center, wrote in a recent blog post that any appointment by President Trump to be acting CFPB director ‘would be illegal.’ ‘Why design an agency to be insulated from Presidential control only to hand the keys to the White house whenever the director leaves before the expiration of his term?’ Levitin wrote.” [Kate Berry, “CFPB’s constitutionality question doesn’t end with Cordray’s departure,” American Banker, 11/27/17]

Harvard University law professor Laurence Tribe “accused the president of being ‘lawless’ and ‘trying to dismantle consumer protection.'”

“Democrats and other law experts disagree. Cordray defended his decision to name English by citing a Dodd-Frank Act provision that puts a deputy director in charge when the director is absent. ‘Trump’s attempt to install Mulvaney as interim successor is null and void,’ Laurence Tribe, a law professor at Harvard University who did a stint at the Justice Department during the Obama administration, said on Twitter. ‘This has the makings of a constitutional crisis.'” [Elizabeth Dexheimer, “CFPB Drama’s Next Act Comes as Dueling Bosses Both Try to Lead,” Bloomberg, 11/27/17]

“The liberal Harvard constitutional law professor, Laurence Tribe, told CNN that the original draft legislation creating CFPB in the House would have used the Federal Vacancies Act as the backing for naming an interim director. But that language was stripped by the Senate because a president ‘might use the appointment power to gut the agency, which is obviously what he’s trying to do. And the law is very plain,’ he said. ‘The old law in 1998 was superseded by the new law. Time moves only in one direction. The 2011 law is specifically about the Consumer Financial Protection Bureau, the most important bureau in the country protecting people from fraudulent lenders, from being gouged, from being abused.’ Tribe accused the president of being ‘lawless’ and ‘trying to dismantle consumer protection.’ He said the clash ‘will end up in court.'” [Allan Smith, “Elizabeth Warren and the left go to war with Trump over the future of the top consumer watchdog agency,” Business Insider, 11/27/17]

University of Utah law professor Christopher Peterson said that CFPB counsel Mary McLeod’s argument that Trump has the authority to appoint an acting director was “thinly reasoned and [missed] the point.”

Christopher Peterson tweeted that the CFPB’s General Counsel memo supporting Mick Mulvaney as CFPB Director was “thinly reasoned and [missed] the point.” He said he was “bitterly disappointed” that the CFPB General Counsel was “standing aside while [the President] temporarily seizes managerial control of” the CFPB. [Tweet by Christopher Peterson, 11/26/17, accessed 11/27/17]

University of Michigan law professor Nina A. Mendelson concluding that the president “does not have the power to choose the Acting Director” of the CFPB.

Nina A. Mendelson, the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School, wrote a blog post, which concluded: “The central concern of the debate over who will be Acting Director of the CFPB is not presidential control, but the Senate’s constitutional advice and consent function. 12 U.S.C. 5491 ensures continuity in agency function during a vacancy, while also protecting Senate confirmation prerogatives from potentially strategic presidential action, much like the FVRA’s time limits on acting appointments, including those made by the President. The President can, at any time, nominate an individual to serve as CFPB Director, triggering the Senate confirmation process. But he does not have the power to choose the Acting Director. Congress has already identified that individual by statute.” [Nina A. Mendelson, “More Thoughts on the CFPB Puzzle: President Trump Can Select Someone to Run the CFPB Only if the Senate Has an Opportunity to Confirm,” Notice & Comment [Blog], 11/27/17]

University of Minnesota law professor and Bush Administration ethics lawyer Richard Painter tweeted, “Trump Can Select Someone to Run the CFPB Only if the Senate Has an Opportunity to Confirm.”

Richard W. Painter, Law Professor at University of Minnesota and White House ethics lawyer for George W. Bush Administration from 2005 through 2007, tweeted, “Trump Can Select Someone to Run the CFPB Only if the Senate Has an Opportunity to Confirm.” [Tweet from Richard W. Painter, 11/26/17, accessed 11/27/17]

Norm Eisen, Senior Fellow at Brookings and Chair of CREW, tweeted the “succession was intended to be within @CFPB to preserve the extreme independence of that agency—to avoid exactly what Trump is doing here.”

Norm Eisen, Senior Fellow at Brookings and Chair of CREW, tweeted, “I was WH Counsel rep on team that proposed @CFPB. This succession was intended to be within @CFPB to preserve the extreme independence of that agency—to avoid exactly what Trump is doing here.” [Tweet by Norm Eisen, 11/27/17, accessed 11/27/17]

Maryland Attorney General Brian Frosh accused Trump of attempting a “coup” at the CFPB, adding, “Consumers will pay the price.”

Maryland Attorney General Brian Frosh tweeted, “In his zeal to protect Wall Street, Trump attempts coup at CFPB. Consumers will pay the price.” [Tweet by Brian Frosh, 11/26/17, accessed 11/27/17]

Lauren Saunders, associate director of the National Consumer Law Center, said Trump “has ignored the law that dictates that the consumer bureau’s deputy director takes over until Congress can confirm a new director.'”

“Lauren Saunders, associate director of the National Consumer Law Center, said Trump’s appointment of Mulvaney was unlawful. ‘In an attempt to install a wrecking ball at the helm of the consumer watchdog, President Trump has ignored the law that dictates that the consumer bureau’s deputy director takes over until Congress can confirm a new director,’ she said. ‘The law is designed to protect the consumer bureau’s independence and to make sure that the qualifications and biases of a new director are examined through the regular confirmation and hearing process,’ Saunders said.” [Jim Puzzanghera, “Consumer bureau feud may go to court; Agency chief picks a deputy to succeed him, but White House names Mulvaney,” Los Angeles Times, 11/26/17]

Respected consumer and constitutional litigator Deepak Gupta calls the move “unprecedented.”

“‘The President’s attempt to install a White House official at the head of independent agency — while allowing that officer to simultaneously serve in the White House — is unprecedented,’ said English’s lawyer, Deepak Gupta of the law firm Gupta Wessler, in the statement on Sunday. ‘The law is clear: Ms. English is acting director of the Consumer Financial Protection Bureau until the Senate confirms a new director.'” [Allie Malloy, “Showdown over top post at key watchdog agency,” CNN, 11/27/17]

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