Newly released emails reveal the machinations of former director of the Consumer Financial Protection Bureau Richard Cordray to appoint his own successor.
The failed attempt to install Leandra English as acting director of the CFPB last year began after Cordray found the idea in two left-wing websites, which argued it was "illegal" for the president to appoint the director of an executive branch agency.
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Cause of Action Institute, a nonprofit oversight group, obtained internal emails through a Freedom of Information Act request between Cordray, English, and other CFPB officials during the days leading up to his resignation.
The group found that in Cordray's final days his leadership team "scrambled to plan a gambit to usurp the president's appointment authority and allow Cordray to name his own successor."
Cordray announced his plans to step down as director on Nov. 15. The same day, English forwarded staff a news alert stating President Trump would name a new acting director of the agency.
A week later, Cordray circulated articles from two liberal outlets, the Intercept and a blog that Sen. Elizabeth Warren (D., Mass.) once contributed to. Both argued the president cannot name a new acting director, and that the job would go to the CFPB deputy director.
"Succession Issues—Here is Adam Levitin's post and it bears serious scrutiny today for discussion," the subject line to the Nov. 22 email read. "Mary, need you to have people consider it further please."
Mary is Mary McLeod, the CFPB's general counsel. Despite Cordray's pleas, McLeod sided with the White House in giving Trump the authority to name Mick Mulvaney, the Office of Management and Budget director, to simultaneously serve as acting director.
The website argued Trump "lacks the legal authority to appoint Mulvaney, or anyone else, as acting Director of the CFPB" and recommended the CFPB's deputy director to assume the role of acting director.
"Bottom line: any appointment of Mick Mulvaney … or Steve Mnuchin … or anyone by President Trump to be acting CFPB Director would be illegal," the article stated.
Minutes later, Cordray sent McLeod, English, and other CFPB officials a second article published in the Intercept.
"This one too," Cordray said.
The Intercept article also contended it was "illegal" for Trump to pick Cordray's replacement, stating, "It's not Trump's pick to make." The Intercept said the job should go to the deputy director, who at the time was David Silberman.
Instead, Cordray chose to elevate his chief of staff English, a political appointee from the Obama administration, to deputy director, which they saw as a stepping-stone to becoming acting director.
"On the day of the formal resignation, November 24, documents revealed a scramble inside CPFB to properly time the gambit," Cause of Action said. "In an email thread titled ‘Possible presser' sent between Zixta Martinez, associate director for external affairs, Jennifer Howard, assistant director for communications, Kate Fulton, deputy chief of staff, Cordray, and English, the group appears to discuss a document that is distinct from Cordray's formal resignation announcement."
"The group is concerned about the resignation going out before this ‘presser' document which, presumably, was the announcement of Leandra English as deputy director," Cause of Action said.
The emails reveal Cordray's team struggling to decide when to update the deputy director section on the CFPB website.
"No comments on the text but should we update the website re deputy and if so at what time?" asked Gail Hillebrand, associate director of consumer education and engagement. "SLT/RC [senior leadership team/Richard Cordray] conversation was that deputy website update could wait till Monday but that makes less sense if a preset is going out."
"Defer to others, but a strawman would be that we put up the presser as soon as it goes out," replied Howard. "At that time update the deputy slot on the website. And then at close of business update the director pieces."
English is now listed, though her bio still remains empty.
"Later that day, in Cordray's final letter to the staff, he made public his intention to name Leandra English as deputy director and his self-proclaimed successor," Cause of Action said.
Cordray claimed making English acting director was to "ensure an orderly succession."
Instead, Mulvaney and English both showed up to work as acting director, and English sued the government. She has since lost two attempts at an injunction against Mulvaney and has now appealed.
In denying her latest request earlier this month, a federal judge said allowing Cordray to appoint his own successor would give the CFPB director "unchecked authority."
"Such authority appears to lack any precedent among other independent agencies," wrote U.S. District Judge Timothy Kelly.
"This brazen attempt to commandeer an entire agency threatens the Constitutional Order," said Cause of Action. "Were Cordray and English successful, they would have essentially created an agency that fell outside of any of the three branches of government."
"Deciding who wields such awesome power should not happen in a series of harried emails between bureaucrats," the group said. "It should be decided by the President and, when a permanent successor is ultimately named, the Senate confirmation process."
English continued to refer herself as "acting director" in emails and initiated meetings with Democratic lawmakers, including Sen. Warren, the brainchild of the CFPB.
In a Nov. 27 email sent to Warren's staff, English attempted to set up a meeting herself with the senator and said she could "make any time work."
"My name is Leandra English the new Acting Director of CFPB," she said. "I wanted to reach out to see if Senator Warren had any time to meet with me later today. I will be on the Hill this afternoon and could make any time work if she has an opening. Would appreciate the opportunity to introduce myself and talk through the transition at CFPB."
Her cold-call worked, and Warren began advocating for English as acting director.
On the first day she believed to hold the position, English sent a staff-wide email claiming to be acting director. "Dear Colleagues, I hope that everyone had a great Thanksgiving," she said. "With Thanksgiving in mind, I wanted to take a moment to share my gratitude to all of you for your service. It is an honor to work with all of you."
The email was signed, "Best, Leandra English, Acting Director."