Certified Forensic Loan Auditors, LLC

 
  Upcoming Classes

Search CFLA's Article Archive:

Judge rejected in its entirety the government's argument to hide Fannie & Freddie docs

foxnews.com | October 5, 2016

By John Yoo

As the Obama administration runs out the clock on its second term, it seeks to hide ever more of its policies from public scrutiny. One of the most extreme examples is the White House’s attempt to invoke presidential privilege, which is reserved for the most important national security, military, and diplomatic affairs, to conceal documents about housing. Yes, housing.

However, U.S. Court of Federal Claims Judge Margaret Sweeney, once again, has affirmed that our Constitution presumes people should have access to the information needed to secure justice and only in the most narrow circumstances can the government deny access to that information.

In an opinion made public this week, she rejected in its entirety the government’s argument for not allowing access by Fairholme Funds’ lawyers to nearly 60 documents relating to the Net Worth Sweep of Fannie Mae and Freddie Mac’s profits.

In the 80-page opinion, she took apart every claim of privilege the government asserts. With her decision, investors’ lawyers will have a chance to look at the emails, briefing documents, forecasts and other communication they believe go the heart of their claim that the Sweep was an unconstitutional taking of property. In addition, Judge Sweeney was so unconvinced of the need for secrecy that she also ordered the government to explain why it should not have to pay Fairholme’s legal fees incurred when filing this motion.

Litigation between shareholders in Fannie Mae and Freddie Mac and the U.S. government has called for the revelation of documents that the White House tried to keep secret under the doctrine of “executive privilege.” Fannie Mae and Freddie Mac are government-sponsored corporations that buy housing mortgages from banks, which effectively subsidizes the market for home purchases by making loans more secure. But when the housing market tanked during the 2008 financial crisis, both companies suffered financially and prompted a federal takeover of their operations.

Shareholders contend that the federal takeover, and the later diversion of profits from the companies to the federal treasury in 2012, carried out an unconstitutional taking of property.

The Obama administration has refused to make public communications – thousands of documents -- between the Treasury Department, Federal Housing Finance Agency, Fannie Mae and Freddie Mac, and the White House, on various forms of executive privilege. But Sweeney was clear in her April opinion when she said, “the court will not condone the misuse of a protective order as a shield to insulate public officials from criticism in the way they execute their public duties.”

In June, the Obama White House defied the judge’s order and refused to turn over four documents. In a June 10 declaration, Deputy White House Counsel Nicholas McQuaid claimed that executive privilege could conceal emails between Gene Sperling, who served as director of the President’s National Economic Council, his top aides, and the Treasury Department. McQuaid describes one document, for example, as “portions of an electronic mail conversation between James Parrott, a senior advisor to the National Economic Council, and Treasury staff discussing advice regarding White House housing policy reform.”

Sweeney makes clear that the White House’s claims abuse the president’s authority and prevent taxpayers from observing the workings of their government. There is no doubt, of course, that the president has a right to keep certain discussions within the White House confidential.

In the landmark Watergate tapes case, the Supreme Court acknowledged, “Without this privilege, the President will not enjoy the candor necessary to make the best decisions possible.” However, Nixon v. U.S. rejected the claim that presidential power could keep everything in the White House secret, certainly not communications between economic advisers and the Treasury Department.

As the Nixon Court recognized, a generalized right to confidentiality does not apply throughout the entire executive branch. Instead, the Justices found that the Constitution provided the president with the right to keep secret military or diplomatic communications because of his responsibilities as chief executive and commander-in-chief of the Armed Forces. Confidentiality covers the president’s discussions with “those who assist him.”

In Nixon, the Court also found that communications outside these areas would have to seek privilege based on “the President’s generalized interest in confidentiality.” But in such cases, the Court said the interest in confidentiality must be balanced against the competing need of other branches for disclosure of the information.

In the case of Nixon itself, the claim of confidentiality gave way before the right of criminal defendants to produce the information necessary for a fair criminal trial. The Bill of Rights, which required the production of relevant evidence to the defense, outweighed a diffuse claim of confidentiality.

Nixon shows in high relief the weaknesses of the Obama White House’s efforts to protect its Fannie Mae and Freddie Mac schemes.

The communications at stake here have absolutely nothing to do with weighty matters of national security and foreign policy and do not deserve the broadest protections for executive discussions. These discussions did not involve the president. Again, they were emails about housing policy between relatively unimportant White House aides and the Treasury Department. That the Obama administration would invoke such important constitutional powers in such a case shows how far it is willing to abuse the traditions and customs of the presidency to protect itself.

If the Obama administration were to prevail, then presumably every time the most minor employee of the White House became involved in an email communication – presto! executive privilege would apply.

Every employee in the executive branch, every agency, every government-owned corporation (including Amtrak and the Post Office), need only include some White House secretary on the cc: line of an email, and a constitutional cone of secrecy would descend to vest it with the same protected status as conversations between the president and the White House chief of staff.

This would create a level of secrecy that flies in the face of transparency in a democracy and has no basis in the constitutional text.

Ultimately, the Constitution requires that any claim of presidential confidentiality must give way before the Bill of Rights.

In Nixon itself, the Supreme Court found that the Fifth Amendment right to due process and the Sixth Amendment right to compulsory process (held by the Watergate burglars who were on trial and needed the tapes for their defense) outweighed any presidential claim to confidentiality.

In the case involving Fannie Mae and Freddie Mac, the plaintiffs are suing directly under the Fifth Amendment Takings Clause.

The federal courts have a specific constitutional duty to vindicate those rights, which should take precedence in any balancing test over the president’s generalized claim to confidentiality.

John Yoo is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He served in President George W. Bush's Justice Department.

 

 

------------------------------------
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

Back to Letters from the Editor Archive

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

SEE BELOW- http://www.certifiedforensicloanauditors.com

Call us toll free at 888-758-2352

 

Bookmark and Share
spacer
Facebook Like us on Facebook
Twitter Follow us on Twitter
YouTube View our YouTube Videos
LinkedIn Connect to us on Linkedin
 
BBB Logo

 

spacer

Contact us or view our Sample Documents & Audits by completing the form below.

  • Reload
  • Should be Empty:

 

DVD Sets Only $99

 

FREE Mortgage Fraud Analysis

 

Order Cutting-Edge Services Now

 

Quiet Title Packages from Licensed Attorneys

 

Affiliate Services

 

CFLA Sponsored Attorney Links

 

Take-Home Education Package

 

ALB Law Firm

 

Advocate Legal

 

The True News Network

 

Sutton Law Firm, P.L.L.C.

 

Rubenstein Business Law

 

Atighechi Law Group

 

Scunziano & Associates

 

Get Certified to Perform Mortgage Securitization Audits

 

CFLA Training Academy

 

Expert Witness Services

 

Cutting Edge Expert Securitization Reports

 

CFLA Credit Cards

 

Breaking News

 

Letters to the Editor

 

CFLA Weekly Newsletters

 

Code of Ethics

 

Testimonials

 

Instructional Videos

 

Job Opportunities

 

License Opportunities

 

MARS Rule

 

Product Samples

 

Resource Links

 

Servicer Information

 

Foreclosure Laws

 

REST Report

 

Quiet Title Packages from Licensed Attorneys

 

Advertise on CFLA

 

Advertising Space: Mortgage Securitization, Quiet Title

 

Certified Forensic Loan Auditors, LLC
13101 West Washington Blvd.
Suite 444
Los Angeles, CA 90066

Phone: 832-932-3951
Toll Free: 888-758-CFLA (2352)
Mobile Users: CLICK TO CALL
info@certifiedforensicloanauditors.com

   
 
CFLA IS NOT A LAW FIRM AND DOES NOT PROVIDE ANY LEGAL ADVICE. CFLA DOES NOT OFFER FORECLOSURE CONSULTING OR FORECLOSURE RELIEF
SERVICES. CFLA DOES NOT OFFER OR ASSIST WITH ANY LOAN MODIFICATION SERVICE. CFLA ALWAYS RECOMMENDS THAT CLIENTS RETAIN COMPETENT COUNSEL IN THEIR RESPECTIVE JURISDICTION. CFLA HAS A FREE PROGRAM TO REFER CFLA CLIENTS TO LAW FIRMS IN NEARLY EVERY STATE AND CFLA
DOES NOT CHARGE OR OBTAIN REFERRALS FEES FOR THESE SERVICES. SERVICES NOT OFFERED TO RESIDENTS OF THE STATE OF NEVADA.

 
Home About Us Privacy Policy Terms of Service Disclaimer SERVICES Careers Contact Us
 
COPYRIGHT © 2007-2016 Certified Forensic Loan Auditors ™ All rights reserved