In 2008, when the economy went into recession over the collapse of the subprime mortgage market, Congress passed the Housing and Economic Recovery Act, HERA, to save Fannie and Freddie by a federal bailout that placed the two Government Sponsored Entities, GSEs, into government conservatorship, with the U.S. Treasury recapitalizing Fannie and Freddie by issuing to the GSEs $187.5 billion in senior preferred stock with a 10% dividend designed to repay the U.S. Treasury over time.
But in 2012, when Fannie and Freddie became profitable, as the mortgage market returned with rigorous credit underwriting and a zero-interest rate environment maintained by the Federal Reserve, the Obama administration initiated a “Net Worth Sweep,” designed to confiscate 100% of the profits generated by Fannie and Freddie.
The result was that private shareholders like Fairholme Funds were paid nothing on their Fannie and Freddie stock.
In August 2012, the Obama administration engineered an amendment to the Senior Preferred Stock Purchase Agreements creating a variable dividend that allowed the U.S. Treasury to grab all Fannie and Freddie profits, regardless how large Fannie and Freddie’s earnings might be.
In 2016, U.S. District Judge Rosemary Collyer, in the case U.S. House of Representatives v. Burwell, ruled the Department of Health and Human Services could not use taxpayer dollars to pay Obamacare insurance subsidies Congress refused to fund.
To solve this problem, the Obama administration defied the District Court by diverting profits confiscated from Fannie and Freddie to pay the Obamacare insurance subsidies Congress had refused to fund.
To block the progress of the Fairholme lawsuit, the Obama administration asserted executive privilege, seeking to withhold some 77,945 documents from the public view, including some 12,251 documents the government wanted completely withheld (even from the federal court).
The plaintiffs in the lawsuit asserted the government’s purpose in seeking to keep the documents secret was to conceal the government’s motives in seizing from private and institutional shareholders their stock dividends in Fannie and Freddie the government wanted to seize.
“The government has asserted the information could be ‘disruptive to markets.’ However, it is difficult to imagine how discussions by officials as far back as eight years ago and emails on matters as mundane as daily press clips could impact today’s markets, which, by definition operate on the very latest information,” wrote constitutional law scholar John Yoo. “Executive privilege is available for presidents to use in highly sensitive matters, and its use is constrained by specific procedures.”
“In the pending litigation on the Net Worth Sweep, the government has applied this privilege in an overly broad and unjustified manner,” Yoo continued. “Either federal officials are trying to cover up something they know is illegal, or we are witnessing an unprecedented and disturbing obsession with secrecy.”
On Oct. 4, 2016, Judge Margaret M. Sweeney of the U.S. Court of Federal Claims in Washington, D.C., gave her first order demanding the release of some of the documents that the government sought to withhold – documents the New York Times reported reached “the highest levels of the Obama administration.” Read more.