Replies to post #747547 on Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

This is an interesting 2nd argument that could be decisive if the Appealate Court agrees:

"If the Court decides that former President Trump’s statement—the precise
hypothetical evidence Collins said would “clearly” show harm—is not dispositive,
the Court should hold that Defendants may avoid Plaintiffs’ requested remedy only
by making a clear showing that the removal restriction did not, in fact, harm
Plaintiffs. Several doctrines support this conclusion.

For one, “where the facts with regard to an issue lie peculiarly in the
knowledge of a party, that party has the burden of proving the issue.” 2 McCormick
on Evidence § 337 (8th ed. 2022);

Here, we already know what the former President thinks, and any non-public
facts relevant to this issue are in the exclusive possession of Defendants and their
other former officers and employees. Under these circumstances, Defendants should
bear the burden. Cf. Gomez v. Toledo, 446 U.S. 635, 641 (1980) (Defendant bears
burden of establishing entitlement to qualified immunity because it “depends on
facts peculiarly within the knowledge and control of the defendant” and “will
frequently turn on factors which a plaintiff cannot reasonably be expected to
know.”). Just as courts shift the burden of persuasion once a plaintiff makes a prima
facie case of employment discrimination, see McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), or a violation of the Equal Protection Clause, see
Alexander v. Louisiana, 405 U.S. 625 (1972), the Court should hold that Plaintiffs
have made (at the very least) a prima facie showing that the unconstitutional removal
restriction inflicted compensable harm. The burden should thus shift to Defendants
to disprove harm."

Only “clear evidence to the contrary” may overcome the presumption of
regularity and permit a court to reject the reasons given by a public official regarding
an official act. Chem. Found., 272 U.S. at 14–15; see also Nat’l Archives and
Records Admin v. Favish, 541 U.S. 157, 174 (2004) (“[W]here the presumption is
applicable, clear evidence is usually required to displace it.”). If the Court
determines the presidential statement is not dispositive, it should require Defendants
to come forward with—as the United States previously put it—“the clearest showing
to the contrary.” Br. for the United States, supra, at 78. Absent that showing, the
Court should not second-guess the statement of a former President of the United
States describing the President’s own thought process.

The only way for Defendants to prevail now is if this Court says the statement
from the former President of the United States—about the former President’s own
thinking—is false. But that ruling would call for judges to inquire into the supposed
“‘real’ reasons” the President did not attempt to terminate Director Watt. Reno v.
AAADC, 525 U.S. 471, 491 (1999). Even if Defendants conjured up some argument
about alleged “real” reasons, “a court would be ill equipped to determine their
authenticity and utterly unable to assess their adequacy.” Id.

Burden shifting also takes into account “substantive policy.” Mueller &
Kilpatrick, 1 Federal Evidence § 3.3 (4th ed. 2022); see Keyes v. Sch. Dist. No. 1,
413 U.S. 189, 209 (1973) (allocation of burden of proof is “a question of policy and
fairness based on experience”). The Constitution itself sets forth the policy interest
here—the separation of powers “protects individual liberty.” Bond v. United States,
564 U.S. 211, 223 (2011). To ensure that policy is not illusory, the Court should
place the burden on the government to show that an unconstitutional removal
restriction did not cause harm given the former President’s unequivocal statement.

For two years,
Democratic appointee Mel Watt stymied a Republican administration’s policy goals
in violation of the Constitution, harming Plaintiffs in the process. And now, a
Democratic administration is back in power and seeks to argue that Director Watt’s
tenure made no difference at all. In this way, holding the constitutional error
harmless would permit one political party to evade judicial review of its own
separation-of-powers violation that has injured Plaintiffs. The Court should reject
this all’s-fair-in-politics understanding of the separation of powers and require a
clear showing from Defendants before concluding that the removal restriction did
not harm Plaintiffs."