America is in Distress Because Trump Is a Constitutional Crisis

It isn’t exactly clear what constitutes a constitutional crisis, but it is fairly evident that with a lawless tyrant in the White House regularly violating the rule of law with impunity, the country is in distress. A major reason the nation is in crisis is because no-one is willing to hold Trump to account for even one of his many deliberately blatant violations of federal laws and the Constitution. Yesterday a newly-appointed district court judge joined Trump’s Republican enablers by refusing to enforce two federal laws to temporarily restrain Trump from decimating an agency created to protect the people.

On Tuesday, Judge Timothy J. Kelly denied a restraining order request to prevent Trump’s budget director from illegally taking charge of an agency he is determined to destroy, the Consumer Financial Protection Bureau (CFPB). It was a curious ruling because the judge remarked that none of the lawyers involved questioned whether White House budget director Mick Mulvaney could lead two government agencies concurrently, or whether the plaintiff should be allowed to keep her job. Those remarks ignored the only point of the lawsuit; that Trump illegally appointed an interim director and violated not one, but two, federal acts.

When the head of the Executive branch of government deliberately violates federal acts without repercussions, it should set off alarms that America is in distress and in a constitutional crisis because the rule of law is, for all intents and purposes, not applicable to this corrupt administration.

Even before Donald Trump’s poorly-attended inauguration, there were myriad opinions on whether or not the big-time wrestling celebrity represented a constitutional crisis. In hindsight, and based on Trump’s regular and flagrant disregard for the Constitution he took a “so help me god” oath to preserve, protect and defend, it certainly appears the country has been in crisis since January. After the events over the weekend and continuing, there is another Trump-related constitutional crisis because the head of the Executive branch willfully and with malice aforethought violated two federal “Acts” passed by the United States Congress in 1998 and 2010. And he violated them for the express purpose of helping the financial industry cheat, lie to, and rob consumers.

It is noteworthy that in this instance Trump violated the law at the expense of all Americans who have been protected from predatory financial institutions since the CFPB was created. Trump and his budget director want those consumer protections abolished because they have resulted in billions of dollars in restitution paid out to consumers cheated by big banks.

Trump’s appointment of Mulvaney to be interim head of the Consumer Financial Protection Bureau (CFPB) is fraught with issues that should raise red flags even for Trump’s fanatical supporters. It is understandable why Republicans support Trump appointing a sworn enemy of banking regulations to take the “bureau” in a direction amenable to the financial sector. However, it is impossible to fathom that any regular American wants to give banks and other financial institutions free rein to rape and pillage the people with impunity.

Of course the primary constitutional crisis issue is Trump thumbing his nose at legally passed legislation that clearly defines the chain of succession at the CFPB, and it does not include Trump naming the White House budget director as the temporary director because he wants the agency abolished.

Trump said the Federal Vacancies Reform Act gave him authority to ignore 12 U.S. code § 5491 – Establishment of the Bureau of Consumer Financial Protection – where it plainly states:

The position of Deputy Director, who shall be appointed by the Director, shall serve as acting Director in the absence or unavailability of the Director.”

Upon his departure, Mr. Cordray informed Trump that he was adhering to the letter of the law and leaving the CFPB in the capable hands of his Deputy Director, Leandra English, according to the succession statute in 12 U.S. code § 5491.

Since Trump believes that “he’s the only one that counts,” he demonstrated his pro-banking bona fides according to the Federal Vacancies Reform Act; the 1998 law he thinks gives him authority to ignore the Dodd-Frank Act that created the CFPB. However, the Federal Vacancies Reform Act (FVRA) kept in place a mechanism that fully supports the CFPB succession statute and Mr. Cordray’s action. There were reforms in the FVRA, but it “Retained the requirement that the first assistant of such [a departing] officer shall perform such functions temporarily in an acting capacity, subject to specified time limitations.”

What that means is that besides flouting the CFPB succession statute, Trump also violated the FVRA “requirement” that the person Mr. Cordray chose as his “first assistant” perform the director’s functions until Trump nominates, and the Senate confirms, a new director.

As former congressman Barney Frank, of Dodd-Frank notoriety noted,

Congress would not have put specific succession language in Dodd-Frank if they intended for the Federal Vacancies Reform Act to supersede it. It is obvious. If you look at the CFPB language it is very specific and it was designed to protect an agency that we knew would be under a lot of pressure. This is an agency that enforces the rules against some of the most powerful financial interests in the country. Everything was structured for its independence.”

Because Trump violated two federal acts, that independence is likely gone forever with Mulvaney running the agency until Trump nominates a bank CEO as the new CFPB director; if Mulvaney doesn’t abolish it first. Mulvaney has complained about the CFPB nearly as much as he has Dodd-Frank because he is beholden to the financial sector. He recently bemoaned the fact he doesn’t have the unilateral authority to shut down the agency permanently; he claims it is too powerful in executing its mandate to protect consumers. When asked if he would abolish the “Bureau” now that Trump illegally put him in charge, he told reporters that he would allow the legally-created agency “to stay open for now.” He also implied there were big changes for the “Bureau” coming under Trump and his leadership.

“I believe Americans deserve a C.F.P.B. that seeks to protect them while ensuring free and fair markets for all consumers. Financial services are the engine of American democratic capitalism, and we need to let it work.”

Mulvaney is a dirty liar. As a surrogate for the financial sector, he only hates the CFPB because it has been protecting the people from “financial services engines” since its inception. That protection includes levying some serious fines and ordering restitution payments to consumers from financial organizations Mulvaney wants to “let work” without interference or oversight from the CFPB. That “work” garnered a $100 million fine for Wells Fargo in 2016 for “secretly opening unauthorized accounts and funding them with money transferred out of authorized consumer accounts.”  And just last week the agency ordered Citibank to pay $3.75 million in restitution to customers, and a $2.75 million civil money penalty, for misleading student loan borrowers about eligible tax deductions and erroneously charging them late fees.

All told, the CFPB has returned about $12 billion to over 30 million American consumers who were ripped off by the financial sector. That is the only reason Trump calls the CFPB a “disaster;” it protected consumers. So Trump sent Mulvaney to shut it down and he violated two federal laws in the process.

It isn’t exactly clear what a textbook “constitutional crisis” looks like, but for dog’s sake, Trump was informed by Mr. Cordray in his resignation letter that he was following the letter of the law in leaving the deputy director in charge of the agency until Trump could nominate a replacement. Trump doesn’t adhere to the letter of any law and he violated a federal act by appointing a malcontent banking industry hack to neuter, if not eliminate, an agency created to protect the people. That is a crisis for the people.

Remember, Dodd-Frank and the subsequent CFPB were enacted in the wake of the Republicans’ Great Recession to protect all Americans from predatory financial institutions. Republicans despise Dodd-Frank and the CFPB, but this atrocity is all on Trump. Of course Mulvaney celebrated the chance to do some serious damage to a consumer protection agency he complains he can’t eliminate, but Mulvaney didn’t appoint himself; Trump did. And he blatantly violated a federal act while his recently appointed judge failed to enforce the law in what many people consider a constitutional crisis in the judiciary.

Sane Americans believe it should be a constitutional crisis that there is an executive branch crusading to “deconstruct the administrative state” by appointing agency heads sworn to dismantle the departments they run from within. The same Americans believe the nation has been in crisis with an executive branch willfully violating the law to protect the ultra-rich, wealthy corporations, religious extremists, white domestic terrorists and now thieves in the financial sector.

When the leader of the executive branch of government violates two federal acts because he regards the CFPB a disaster for forcing big banks to return $12 billion they stole from consumers, America is in distress. And because Republicans refuse to do their Constitutional due diligence and hold Trump accountable for his criminal activity, it is safe to concluded the country is experiencing a constitutional crisis.

Lurching Toward the First Constitutional Crisis Since the Civil War


A couple of days ago, Bill Moyers shared an email from “an old friend” of his and although it is likely too close to reality for comfort, it does accurately portray part of Trump’s motivation in pardoning the self-styled fascist Joe Arpaio. The quoted email was an introduction to an article suggesting that Trump was creating aconstitutional crisis;a term many Americans have heard far too many times since Trump’s sparsely attended inauguration. For perspective, one normally only hears the term “constitutional crisis”  in a university-level history class studying the Civil War.

The email Mr. Moyers shared was from “one of the country’s top trial lawyers.” It said, in part:

“I have underestimated Trump. He knows what is coming, including a variety of criminal charges and other impeachable offenses. He is not just arousing his base to anger, but to arms, some of them. There is no other way to explain the transgender ban, the Arpaio pardon, his Charlottesville remarks…”

Now everything one of the nation’s “top trial lawyers” wrote is true, and this author fundamentally said the same things in a couple of overly-wordy columns here and here. As Trump’s popularity, or lack thereof,  continues declining, he is going to get increasingly proactive and incite his white evangelical fascists to his defense; they are all he has left.

But there is another danger in Arpaio’s pardon and it does represent a constitutional crisis without a remedy because Republicans are too terrified of crossing Trump to put him out of the White House and out of the nation’s misery.

As the author of a book on France under fascism, Charles Kaiser asserted, what Americans are experiencing today is “exactly what incipient fascism looks like.” Most Americans comprehend that Trump’s unrelenting assault on the press, inflaming Nazis and heartening racists, and now pardoning an acknowledged serial civil rights abuser and brazen racist are indeed “acts of a man who is blatantly defying his sacred pledge to uphold the Constitution of the United States.” But those Americans likely don’t comprehend that Trump’s defiance of the Constitution portends the naked fascism lurking on the horizon.

Arpaio’s pardon is wrong on myriad levels; only racists, evangelicals, most Republicans, and Trump believe otherwise.  But it was deliberately “wrong” to send a very clear message that Trump has no regard for, and no intent to ever adhere to, the rule of law or the U.S. Constitution. It was bad enough when it was Arpaio violating the rule of law and the Constitution with impunity, but when it is the monster in the White House it is a constitutional crisis that Republicans show no willingness to thwart.

Look, Trump didn’t even wait for Arpaio to be sentenced, or go through the normal Justice Department channels necessary to petition for a presidential pardon; Trump just said Arpaio was treated “very unfairly” and was only punished for “doing his job.” It is tantamount to saying that refusing to adhere to a constitutional federal court order is legal if it comports with Trump law.

Of course the pardon is a signal to every racist law enforcement officer, and armed white supremacist vigilante, that rounding up innocents and abusing them is legal, and just their job. But more than that it is a message to America that Donald J. Trump is now the law of the land; it is fascism and the act of a tyrannical dictator that Republicans will not regulate. As Charles Kaiser rightly asserted, Trump pardoning Arpaio “is the latest and gravest step he has taken in his continuing efforts to undermine the rule of law.”

Mr. Kaiser is not the first legal expert to explain that although Trump reveled in inciting his racist supporters, “it is not the main reason for this heinous act.”  Kaiser and several other legal authorities expect that Trump is signaling to all of his current and former underlings and family members that they too are under no obligation to adhere to the law, or the Constitution, or a summons from Special Counsel Robert Mueller III. If they are held in contempt by Mr. Mueller or a congressional committee investigating Trump’s ties to Russia for not cooperating, they can ignore any risk or threat of jail time becauseTrump will pardon them.

America has been in a constitutional crisis since the day Trump was inaugurated and it is down to one simple fact; he was always intent on using the authority of the Oval Office solely to benefit himself. Whether it is profiting by keeping his “vast business empire” or keeping his friends out of jail, Trump has abused the federal government office he has no right holding.

By giving Arpaio a pardon, Trump showed Americans, Congress and the Judiciary that he will use his authority to keep a political ally, former underling, mafia friend, or family member out of jail no matter the severity of their crimes. What Trump accomplished in pardoning an evil monster was “obliterating any lines that remain between the chief executive [Branch] and an independent system of justice.

Trump is now the system of justice according to his executive authority and Republicans are complicit for accepting this atrocity as life in Trump’s America. Trump will certainly pursue neutering the legislative branch when the opportunity presents itself to consolidate all federal government power in his tiny little hands; it is what fascist dictators do as a matter of course.

In pardoning Arpaio, Trump incited his racist supporters to his defense, legalized civil rights abuses and detainees’ murders, and created a “class of citizens who are above the law;” including all of his administration’s cronies and particularly himself. It is what any semi-intelligent human being would call a fascist dictatorship. Americans will call it the first honest-to-dog “constitutional crisis” since the Civil War.