"The Supreme Court instructed plaintiffs to present a counterfactual theory of what President Trump would have done absent the unconstitutional removal
restriction, particularly focusing on the former President’s intent. Plaintiffs have
presented direct, probative evidence about the former President’s intent from the
former President himself. That fact conclusively answers the question of what
President Trump would have done absent the unconstitutional removal restriction.
That fact alone precludes a motion to dismiss."
"Even putting aside Plaintiffs’ extraordinary direct facts proving President
Trump’s intent, plaintiffs also allege a body of probative circumstantial facts which
independently demonstrate that plaintiffs can make out their case for relief.
“Steven Mnuchin said in an interview shortly after President-elect Trump
nominated him to serve as Treasury Secretary that the new Administration
intended to get [Fannie and Freddie] out of government control.” ROA.1191
(internal quotation marks omitted); see also ROA.1192 (“In testimony before
the House Financial Services Committee in the summer of 2017, Secretary
Mnuchin stated that leaving [Fannie and Freddie] in conservatorship makes
no sense.” (internal quotation marks omitted)).
• “President Trump’s eventual pick for FHFA Director, Mark Calabria, then
serving as Vice President Pence’s chief economist, said that the Trump
Administration is committed to ending the conservatorship of Fannie Mae and
Freddie Mac.” ROA.1192 (internal quotation marks omitted); see also
ROA.1192–93 (“In a speech after becoming FHFA Director, Mr. Calabria
stated that the centerpiece of our strategy is to end the Fannie and Freddie
conservatorships.” (internal quotation marks omitted)).
• “In 2018, the Executive Office of the President issued a report outlining
numerous proposals to end the conservatorship of Fannie Mae and Freddie
Mac and transition[] Fannie Mae and Freddie Mac to fully private entities.”
ROA.1192 (internal quotation marks omitted).
• “In a March 2019 directive, President Trump instructed Treasury to consult with FHFA and develop proposals for [e]nding the conservatorships of Fannie
and Freddie.” ROA.1192 (internal quotation marks omitted).
• “During Director Calabria’s tenure, FHFA also sent an annual report to
Congress stating that FHFA’s end-state vision for the Enterprises is to return
[them] to operating as fully-private companies outside of conservatorship.”
ROA.1194 (internal quotation marks omitted).
• “In September 2019, Treasury issued a report in response to the President’s
March 2019 directive. On page one, the report stated that the Companies’
conservatorships should come to an end. The Treasury report also stated that
the Companies should be recapitalized and exit conservatorship as promptly
as practicable. On the same day, FHFA issued a press release praising the
Treasury report and saying that [a]fter nearly 11 years, ending the
conservatorships of Fannie Mae and Freddie Mac is now a top priority for this
Administration and the FHFA.” ROA.1193 (internal quotation marks and
citations omitted).
• “Mr. Mnuchin said the new Administration wanted to privatize the Companies
and that t makes no sense that these are owned by the government.”
ROA.1196 (internal quotation marks omitted).
• “Director Calabria said he expected that, as part of a public offering of new
shares of Fannie and Freddie stock, Treasury would sell off its shares to recoup the taxpayer investment.” ROA.1196–97 (internal quotation marks
omitted).
Plaintiffs further allege that, given the financial condition of the Companies when
President Trump took office, ROA.1194, the Trump Administration could not
immediately accomplish its stated goals of releasing the Companies from
conservatorship without certain preparatory steps,"
