Mulvaney Memo Promises Revolutionary Restoration of Rule of Law

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The story of the Trump administration this year has been the story of two memos.

There is the Nunes Memo, from the chairman of the House Intelligence Committee, Devin Nunes, describing “abuses” by the FBI and the Department of Justice in wiretapping a volunteer adviser to the Trump campaign.

And there is the Mulvaney Memo, from the acting director of the Consumer Financial Protection Bureau, Mick Mulvaney, which has gotten less attention but which may ultimately be even more significant in restoring the rule of law.

The Mulvaney Memo, issued January 23 as an email to all CFPB employees, is worth carving into granite, or at least quoting at some length. It encapsulates a humility and restraint and respect for rule of law that is often all too lacking in government.

Mulvaney wrote, “We don’t just work for the government, we work for the people. And that means everyone:  those who use credit cards, and those who provide those cards; those who take loans, and those who make them; those who buy cars, and those who sell them. All of those people are part of what makes this country great. And all of them deserve to be treated fairly by their government.”

He went on, “It is not appropriate for any government entity to ‘push the envelope’ when it comes into conflict with our citizens. The damage that we can do to people could linger for years and cost them their jobs, their savings, and their homes. If the CFPB loses a court case because we ‘pushed too hard,’ we simply move on to the next matter. But where do those that we have charged go to get their time, their money, or their good names back? If a company closes its doors under the weight of a multi-year Civil Investigative Demand, you and I will still have jobs at CFPB. But what about the workers who are laid off as a result? Where do they go the next morning?”

And then this:  “On regulation, it seems that the people we regulate should have the right to know what the rules are before being charged with breaking them. … I intend to execute the statutory mandate of the Bureau to protect consumers. But we will no longer go beyond that mandate. If Congress wants us to do more than is set forth in the Dodd-Frank Act, they can change the law. Until then, we will enforce the law as currently written.”

The idea that people “should have the right to know what the rules are before being charged with breaking them” may seem like common sense, but in contemporary times it has seemed more like a distant ideal than actual government policy or practice. So, for example, the Laurence A. Tisch Professor of Law at NYU Law School, Richard Epstein, could write in a 2013 article in the Harvard Journal of Law & Public Policy, adapted from remarks at a 2012 Federalist Society Symposium, that “it is perhaps only wishful thinking to believe that we can return to a pristine era in which these basic principles — known, consistent, and certain rules applied prospectively by neutral judges — apply.”

For that definition of the rule of law, Epstein cited the English philosopher John Locke’s 1689 Second Treatise on Government, which inspired the founders of the United States. Locke wrote, “the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions … that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds, and not be tempted, by the power they have in their hands.”

With the notable exceptions of Matt Levine of Bloomberg News, who praised the Mulvaney Memo, and the Wall Street Journal editorial page, which reprinted a version of it, the mainstream press corps greeted it with derision. The New York Times ran a front-page news article impugning Mulvaney’s integrity by suggesting, with no evidence, that he’d been improperly swayed by donations to his previous campaigns for Congress, and by a decision by one industry group to have a convention at a Trump-branded hotel in Florida. The Jeff Bezos-owned Washington Post covered the story under the headline “How Mick Mulvaney Is Dismantling a Federal Agency,” describing Mulvaney as “malicious” and “perverted.”

It’s a good thing the Times and the Post weren’t around during the American Revolution, because if they’d have given John Locke’s Second Treatise the treatment they are giving the Mulvaney Memo, we’d all still be taking arbitrary orders from Buckingham Palace.

Instead of hurling insults at Mulvaney or questioning his motives, the Washington press corps might consider other ways of advancing this newsworthy story. It could start by asking whether Mulvaney — who also serves as director of the White House Office of Management and Budget — intends for this approach to apply government-wide, or just to the Consumer Financial Protection Bureau. It might ask President Donald Trump the same question.

Already, there are at least some hopeful signs that the answer is yes, and that we’ll see fewer shakedowns and vendettas. In December the Federal Reserve even released a proposal to “increase the transparency of its stress testing program” for banks.

In the end the Nunes Memo and the Mulvaney Memo both get at a similar theme — that government officials, whether FBI agents or consumer financial protection bureaucrats, need to follow the law, and that the law should be known in advance and applied impartially. More than 300 years after Locke’s Second Treatise, you’d think this would not be such an intensely controversial point. Perhaps Epstein was right when he called it wishful thinking. Good for Mulvaney, though, for giving it a try.


Ira Stoll is editor of and author of JFK, Conservative.