American criminal law is based on the cherished notion of habeas corpus, Latin for "you shall have the body."
President Trump's hostile takeover of the Consumer Financial Protection Bureau, by contrast, relies on the rather less cherished legal principle of habeas cuppedia, Latin for "you shall have the pastries."
It's not entirely clear that Trump's choice to run the CFPB, White House budget director Mick Mulvaney, has legal authority to assume the role. But he does have confections. Mulvaney showed up for his first day on the job Monday carrying a shopping bag full of Dunkin' Donuts in Christmas-themed boxes.
This apparently was just the sweetener Mulvaney needed to be recognized as acting director, because his spokesman, John Czwartacki, tweeted out a photo showing empty boxes of doughnuts (except for one half-eaten chocolate-frosted treat) and the message "Donuts were a big hit at cfpb."
Czwartacki also tweeted photos of Putative Acting Director Mulvaney meeting with staff and holding a lightly attended news conference, an image showing Mulvaney's name atop the CFPB org chart, and an article from Axios titled "Mulvaney aide: CFPB transition 'could not have been smoother.' " The aide quoted in the article: Czwartacki.
Doughnuts alone do not a director make. Under the statute that created the CFPB, the watchdog agency set up after the 2008 crash to police lending abuses, it should now be rightfully run by Leandra English, the deputy director who succeeds the just-resigned director, Richard Cordray, until the Senate confirms a permanent replacement. Trump found another statute that he says lets him appoint Mulvaney. English filed suit to defend her legitimacy, Mulvaney submitted doughnuts, and a Trump-appointed federal judge, to nobody's surprise, ruled in Trump's favor. An appeal is likely.
On the sidewalk Tuesday in front of the CFPB offices, in a brutalist structure a block from the White House compound, a couple hundred demonstrators assembled by the Progressive Change Campaign Committee and led by Sen. Elizabeth Warren (D-Mass.) denounced the takeover.
"Mick Mulvaney is an impostor!" bellowed Ben Wikler of the liberal group MoveOn.org. "We are going to fight this attempt at a coup at the CFPB."
But, ultimately, the "coup" will succeed. Whether it's Mulvaney (who has called the bureau he now proposes to lead a "joke") or somebody else, Trump will eventually be able to install a director who can defang the watchdog — and Wall Street bankers and corporate lobbyists will plant their flag of conquest at another agency. Already, Mulvaney says he's freezing new hiring, new rules and payouts to consumers from a penalty fund..
Even for this phony populist president, who instead of draining the swamp stocked his White House and Treasury Department with Goldman Sachs executives and sprinkled billionaires and lobbyists across the government, the move on the CFPB is brazen. That's because Trump's legal justification for taking control of the CFPB was written by a lawyer who until just a few months ago was defending a foreign payday lender against the agency's attempts to punish it for lending abuses.
As the Intercept's David Dayen reported, Steven Engel, the Justice Department lawyer who wrote the memo justifying Trump's takeover, was a lead counsel for Canadian payday lender NDG Financial, which the CFPB cited for misleading and overcharging U.S. customers. The Intercept reported that Engel was active in the case, which remains in court, until August — after he was nominated to serve in the administration.
It's difficult to imagine something swampier than a corporate lawyer joining the government and then orchestrating the disarming of a federal agency in litigation with his former client. NDG — and the lenders who had to give back some $12 billion to consumers because of shady practices caught by the CFPB — can celebrate.
There's nothing the forgotten man, thus swindled by Trump, can do now to keep big banks from regaining the upper hand over consumers. Outside CFPB headquarters, the demonstrators were doing about the only thing that could be done: shouting. They attempted to settle on a rallying cry, alternating between "Put consumers first/Mulvaney is the worst" and "Hey-hey, ho-ho, Mick Mulvaney has got to go."
Warren, declaring that "no one should get cheated," punched the air with her fist and pounded the lectern so hard that she sent a digital recorder crashing to the ground.
Sen. Jeff Merkley (D-Ore.) attempted a call-and-response with the crowd: "There is a legitimate director right now, and that person's name is?"
From the confused audience came a muffled sound akin to "Mush!"
"English," Merkley coached. "Leandra English."
The judge gave a different answer. And the federal government, soon to be out of the business of policing abusive lenders, will instead deliver them doughnuts.
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