A U.S. District Court judge in Washington on Tuesday handed a big victory to President Donald Trump, ruling in favor of the administration in its bid to install White House budget director Mick Mulvaney as acting director of the Consumer Financial Protection Bureau.
Judge Timothy Kelly denied a request by Leandra English, who was named last week as acting director by outgoing CFPB chief Richard Cordray, for a temporary restraining order to block Mulvaney from taking the post.
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Kelly said there was not a substantial likelihood that the case would succeed on its merits.
“The administration applauds the Court’s decision,” White House deputy press secretary Raj Shah said in a statement. “It’s time for the Democrats to stop enabling this brazen political stunt by a rogue employee and allow Acting Director Mulvaney to continue the Bureau’s smooth transition into an agency that truly serves to help consumers.”
While this ruling cannot be challenged, Deepak Gupta, English’s lawyer, told reporters that he would have to consult with his client about the next steps. These could either involve seeking a preliminary injunction or requesting a ruling on a permanent injunction, either of which could be appealed to a higher court.
“This court is not the final stop,” Gupta said. “This judge does not have the final word on what happens in this controversy, and I think he understands that.” He praised the court for acting expeditiously but criticized the government for proposing a litigation schedule that would continue into next year.
Still, the decision puts a halt for now to a chaotic series of events triggered by Cordray’s abrupt resignation Friday, the day after Thanksgiving. He promoted English to deputy director and said that upon his departure, at midnight Friday, she would take over as acting director.
Hours later, Trump named Mulvaney acting director of the consumer bureau, an agency that has become a lightning rod for criticism from Republicans and business executives, who consider it too aggressive in its enforcement.
English’s claim to the title of CFPB acting director stems in part from language in the Dodd-Frank Act — the legislation that established the bureau — that says the deputy director “shall” become the acting director “in the absence or unavailability of the director.”
But the Justice Department argued late Monday night that English’s claim is not strong enough to supersede the purview of the Vacancies Reform Act, which empowers the president to fill a vacancy at an executive agency.
“On its face, the VRA does appear to apply to this situation,” the judge ruled.
Specific laws generally supersede general laws. But Kelly said that while Dodd-Frank is more specifically related to the CFPB, the vacancies law is more specific in that it explicitly refers to a “vacancy.” Dodd-Frank does not use that word.
The judge also said he could not find any law that would prevent Mulvaney from serving as acting CFPB director and budget director simultaneously.
“It’s pretty clear in this case that the law is on our side,” a senior administration official said. “This is a complete political stunt that’s unfortunately tarnishing the reputation of the CFPB and the career staff.”
Let’s call Donald Trump’s bluff.
For better than two years, he’s mauled reporters at every turn, herding them into pens during campaign stops and heckling them collectively, name-calling them individually (“third-rate reporter”; “dope”; “underachieving”; “dummy”; “no talent”; “wacky”; “dishonest”), and even castigating the profession as an “enemy of the people.”
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He’s issued threats, promising to “open up“ libel laws to make it easier to sue new organizations and end White House press briefings. He’s vowed to have NBC’s broadcast licenses revoked. His press secretary has selectively blocked outlets from White House briefings and prevented live broadcasts. His strategist Steve Bannon famously said the media should “keep its mouth shut and listen for a while” and called the press “the opposition party.” Before firing FBI Director James Comey, Trump urged him to jail reporters who published leaks. And like a GIF playing in a loop, Trump has repeatedly derided news that displeased him as “fake.”
But as we approach the first anniversary of Trump’s inauguration, we discover that the president’s gibbering about the alleged menace posed by the press has been followed by no action. He threatened to sue the New York Times in October 2016 over its story about two women who said he touched them inappropriately, but he backed down after the paper told his attorney it welcomed “the opportunity to have a court set him straight.” He’s pressed no member of Congress to “open up” the libel laws (plus, good luck with that—libel law is a state issue, defined by state courts and legislatures). Journalist Timothy O’Brien, whom Trump did sue for libel and lost over his 2005 book TrumpNation, says we needn’t worry about his lawsuits. “He’s a bully who is easily cowed. He’s not particularly bright. And he’s never surrounded himself with top legal advice,” O’Brien tells me.
For somebody who seems to want to declare war on the press, Trump appears to have to gone AWOL. In some cases, he appears to have joined with the enemy! For example, he nominated ardent deregulationist Ajit Pai to head the FCC, thereby signaling that he has no genuine intention to police TV news content by pulling broadcast licenses. He did the same with the courts by nominating Neil Gorsuch to the Supreme Court. Gorsuch’s First Amendment jurisprudence stands four-square behind the freedom of the press. If Trump plans a press crackdown, he’s going about it the wrong way.
Journalists who work the White House beat and have felt the brunt of Trump’s insults may not share my sanguine view. He has slighted and inconvenienced reporters by ducking the press pool and barring the U.S. news media—but not the Russian—from covering his meeting with Russian dignitaries. He has mocked reporters and slagged the press as being part of a globalist conspiracy. His press secretary, Sarah Huckabee Sanders, berates them daily like schoolchildren as she burns through the minutes like a bored hourly worker.
And yet the White House press briefings continue. Trump has made no move to jail a single reporter or change the First Amendment. Even CNN’s Jim Acosta, Trump’s least favorite reporter, has yet to be banned from the White House, proving the emptiness of the president’s intimidations. When it comes to the press, the president is a paper tiger dressed in a cowardly lion’s costume.
If Trump really wanted to wound the press, he could end the briefings, exile reporters from the White House and stop talking to the New York Times’ Maggie Haberman and other reporters. He would dissolve the White House press pool that follows him around town or to the golf course when he decides to shoot a round. No law requires him to associate with reporters. But he hasn’t done any of these simple things.
He could direct Attorney General Jeff Sessions to prosecute reporters in leak cases. But again, there’s been no action aside from lip music. If Trump were feeling especially lucky, he would order the foot-soldiers of the intelligence community to monitor and surveil the press. But he’s too timid for that. First, it’s not likely that the members of the Deep State would carry out such a potentially illegal order: Washington’s entrenched bureaucracy has its own ideas about the press, and while it might not like reporters, it likes Trump even less and appreciates reporters as a hedge against Trump’s overreaching.
Trump could also enlist the anti-trust machine to punish big media organizations to reduce their power. The government’s current case against AT&T’s acquisition of Time Warner sort of looks like retaliation against Time Warner subsidiary CNN, doesn’t it? But stopping the AT&T-Time Warner marriage won’t do much to reduce CNN’s profitability, nor will it block the network’s aggressive reporting on the White House. As anti-press gambits go, it’s toothless—that is, if it’s even his idea.
I won’t pretend that Trump’s taunting of the press is harmless. He compromises the safety of reporters with his affronts, making their work harder to do. The recent bomb he threw at CNN International is especially destructive. Its correspondents report from the fire of the battleground—they don’t need a draft-dodging baby-boomer denigrating their bravery. Some Trump critics add that his trash-talking emboldens despots in the Philippines, Turkey and Russia who are already leading press crackdowns.
But Trump won’t suppress the press because he loves it too much. He loves the give-and-take of the interview, of seeing his face on the cover of magazines (hence his recent tweets showcasing his disappointment over probably not being named Time magazine’s person of the year), of appearing on television and of being the center of attention. If he ever did get angry enough to jail the press corps, he’d have to furlough a few reporters once a week to get his personalized media fix.
Viewed from the vantage point of Trump’s insatiable ego, though, his press attacks are simply his way of handing out assignments on the Trump story. He knows exactly what to say to commence a full fire drill by the press, one that fills the media maw for a couple of days until his ego screams for more.
Will Trump ever crack down on the press in a meaningful way? No. He can’t quit us.
Send press crackdown ideas to Shafer.Politico@gmail.com. My email alerts urge the return of the Fairness Doctrine. My Twitter feed believes the beginning of the First Amendment should read “Congress shall make yes law. …” My RSS feed subscribes to Christopher Hitchens’ sentiment that “The right of others to free expression is part of my own.”
A federal judge on Tuesday rejected a lawsuit from an official who claims that she, and not President Trump appointee Mick MulvaneyJohn (Mick) Michael MulvaneyCordray on CFPB fight: The law is on my side 25 Dem lawmakers file court brief backing English over Trump consumer bureau pick Overnight Finance: Directors battle over consumer agency | Second GOP senator opposes current tax plan | Trump wants changes to bill | Fed nominee heads to Tuesday hearing | Retailers expect record Cyber Monday | Congress returns to nightmare December MORE, is the rightful director of the Consumer Financial Protection Bureau (CFPB).
Judge Timothy Kelly of the U.S. District Court of the District of Columbia refused to grant Leandra English a restraining order to bar Mulvaney from serving as the CFPB’s acting director.
The ruling from Kelly, a Trump appointee, clears the way for Mulvaney to run the CFPB until a permanent director is sworn in or English successfully appeals the decision.
Trump last week appointed Mulvaney to temporarily lead the CFPB until the lawmakers confirm his pick to replace Richard CordrayRichard Adams CordrayCordray on CFPB fight: The law is on my side 25 Dem lawmakers file court brief backing English over Trump consumer bureau pick Overnight Finance: Directors battle over consumer agency | Second GOP senator opposes current tax plan | Trump wants changes to bill | Fed nominee heads to Tuesday hearing | Retailers expect record Cyber Monday | Congress returns to nightmare December MORE, who resigned as the agency’s director on Friday.
The president was able to appoint Mulvaney to the role because he was already confirmed by the Senate for another position — director of the Office of Management and Budget.
The legal dispute arose because Cordray, in one of his final acts at the agency, promoted English, his former chief of staff, to the role of deputy director.
Under the agency’s line of succession, that would make English acting director upon Cordray’s resignation.
But the White House said the president has clear authority to name an acting director to the agency and quickly announced that Mulvaney would assume the role.
President Donald Trump on Tuesday called congressional Democratic leaders’ behavior “even worse” than all talk, no action following their refusal to meet with him at the White House after he taunted them on Twitter.
“Chuck Schumer and Nancy Pelosi did not show up for our meeting today. I’m not really that surprised,” said Trump, who spoke to reporters while sitting between empty seats marked for the Senate and House minority leaders. Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul Ryan (R-Wis.) were seated on the far ends of Trump, adjacent to the vacant spots for Schumer (D-N.Y.) and Pelosi (D-Calif).
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“We have a lot of differences,” Trump continued, blasting the minority leaders as “weak” on crime and illegal immigration. He also claimed that Schumer and Pelosi wanted to raise taxes as he pursues a “major” tax decrease, which moved one step closer to passage Tuesday when a tax bill cleared the Senate Budget Committee on a party-line vote.
“So they decided not to show up. They’ve been all talk, and they’ve been no action,” the president said. “And now it’s even worse. Now it’s not even talk. So they’re not showing up for the meeting.”
Trump had tweeted Tuesday morning that he would be meeting with “Chuck and Nancy” to discuss a spending bill to keep the government running past Dec. 8. But he lobbed criticisms at them and said, “I don’t see a deal!” — a statement that led Schumer and Pelosi to announce they would no longer attend the White House summit.
“.@realDonaldTrump now knows that his verbal abuse will no longer be tolerated. His empty chair photo opp showed he’s more interested in stunts than in addressing the needs of the American people. Poor Ryan and McConnell relegated to props. Sad!” Pelosi wrote on Twitter Tuesday afternoon.
Trump said he “would absolutely blame the Democrats” if Congress fails to avert a government shutdown.
“If it happens,” he said, “it’s going to be over illegals pouring into the country; crime pouring into the country; no border wall, which everybody wants.”
Trump maintained that he and the Democrats have “a lot of big differences” but signaled that North Korea’s test launch of an intercontinental ballistic missile earlier on Tuesday — the first since September —would reignite bipartisan talks.
“Things have changed over the last two hours because two hours ago a missile was launched,” Trump said. “I think that will have a huge effect on Schumer and Pelosi. I think. We’ll see. We’re gonna learn very soon.”
“They should be calling immediately and say, ‘We want to see you,’ but probably they won’t because nothing to them is important other than raising taxes,” Trump added. “That’s the only thing they like doing is raising taxes.”