Meanwhile in the latest court filing in the 5th Circuit Appealate Court: "The Trump Administration sought to unwind these policies but was unable to
do so because of HERA’s removal restriction, later held unconstitutional by the
Supreme Court in this case. Collins, 141 S. Ct. at 1783–84."
"Second, and relatedly, Treasury’s
liquidation preference had to be eliminated. ROA.1196."
"But the Trump Administration was not able to achieve its goals of leading the
Companies out of conservatorship and into private ownership due to the removal
restriction. ROA.1199, 1212. The Trump Administration and Director Watt
disagreed on at least two critical issues. First, they disagreed about implementing the
Net Worth Sweep. ROA.1200–01. Second, they disagreed about whether the
executive branch could or should lead the Companies out of conservatorship without
congressional action. ROA.1199–1200. Director Watt thought that any effort to
release the Companies from conservatorship should occur by legislation, while the
Trump Administration thought it both lawful and desirable for the executive branch
to act without further legislation. ROA.1201–02. This standoff continued until
Director Watt’s term ended two years into the Trump presidency. Id."
"In fact, plaintiffs have provided more than just counterfactual allegations.
Although it is not Plaintiffs’ burden to present evidence at the motion to dismiss
stage, Plaintiffs have nonetheless presented direct evidence of President Trump’s
intent to have managed the FHFA absent the removal restriction and specifically to
have fired Director Watt—straight from President Trump himself. Plaintiffs attached
to their First Amended Complaint a letter from President Trump to Senator Rand
Paul explaining the actions he would have taken in the first two years of his
Administration had the unconstitutional removal restriction not been in place.
ROA.1225. In the letter, President Trump focuses on “the need to privatize Fannie
Mae and Freddie Mac,” Id., and “what [he] would have been able to accomplish if
[he] had been able to fire the incompetent Mel Watt from day one of [his] Administration,” Id. President Trump acknowledges the Supreme Court’s decision
in this case and recognizes that “[t]he Supreme Court’s decision asks what I would
have done had I controlled FHFA from the beginning of my Administration, as the
Constitution required.” Id. President Trump leaves no doubt as to the answer to that
question. He explains in no uncertain terms:
From the start, I would have fired former Democrat Congressman and
political hack Mel Watt from his position as Director and would have
ordered FHFA to release these companies from conservatorship. My
Administration would have also sold the government’s common stock
in these companies at a huge profit and fully privatized the companies.
The idea that the government can steal money from its citizens is
socialism and is a travesty brought to you by the Obama/Biden
administration. My Administration was denied the time it needed to fix
this problem because of the unconstitutional restriction on firing Mel
Watt.
Id.
That should be the end of any dispute over whether Plaintiffs are entitled to a
retrospective remedy based upon their presidential removal claim. Collins states that
“a public statement” by the President “expressing displeasure with actions taken by
a Director” and “assert[ing] that he would remove the Director if the statute did not
stand in the way” would “clearly” show that the removal restriction harmed
shareholders. 141 S. Ct. at 1789. In other words, that public statement would be
dispositive. Here, the former President has provided just such a statement in direct
response to the Supreme Court’s decision."
