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Louis DeJoy's days as postmaster general should be numbered, writes former GOP Rep. Tom Coleman.
Election mail may flow, but USPS ethical lapses must be stanched fast
Oct 02 2020
Coleman was an assistant Missouri attorney general and Republican congressman from 1976 to 1993. Now retired as a lobbyist, he is an advisor to Protect Democracy, an anti-authoritarian watchdog group.
<p>When I was a teenager enduring Kansas City's summers, a highlight of the day was when Bill, our friendly mailman, arrived at the house. The attraction was not so much the few envelopes he might deliver — but rather the opportunity to chat with him for a few minutes over a glass of ice water.</p><p>I learned how he and his wife had adopted several children from different ethnic backgrounds, providing them a home and lots of love. He learned how my baseball team was doing. Then he would be off to finish his rounds — the sort of dedicated public servant, with the high ethical standards, we have come to associate with the Postal Service.</p><p>For me, those days of blistering heat would soon be filled with minimum wage jobs to earn spending money for high school and college. I saw Bill only occasionally, although 20 years later we did catch up one day when he dropped by my office on Capitol Hill.</p><p>My experience is not unique. Millions have had similar relationships with their mail carriers. That would account for why the USPS has <a href="https://www.pewresearch.org/fact-tank/2020/05/14/the-state-of-the-u-s-postal-service-in-8-charts/" target="_blank">the highest favorability rating</a> of all government institutions: 91 percent (and the same share among Democrats and Republicans alike) according to the Pew Research Center.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Today postal workers like Bill are having their load significantly increased. The mail carrier's legendary creed — "Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds" — is now more difficult to fulfill. </p><p>This year's hotly contested presidential election is being conducted during a pandemic sure to result in an unprecedented number of votes cast through the mail. But that's not all. The post office and its employees are under attack by President Trump and his newly handpicked postmaster general, Louis DeJoy.</p><p>This duo, with an enabling assist from the USPS Board of Governors, is setting the Postal Service up to fail for political reasons. Trump alleges, without proof, that voting by mail is so flawed that it will steal the election from him. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>For his part, soon after arriving DeJoy made major changes in postal delivery capability that call into question whether millions of ballots will be returned in time to be counted. He reportedly has removed 671 high-speed machines capable of sorting over 21 million pieces of mail an hour, canceled employee overtime and removed hundreds of local mailboxes. His changes have resulted in <a href="https://www.nytimes.com/interactive/2020/09/14/upshot/is-the-mail-getting-slower-tracker.html" rel="noopener noreferrer" target="_blank">slowing down the mail</a>.</p><p>The actions by DeJoy and Trump seem to be designed to create so much confusion that voters will lose confidence in the eventual outcome of the election, or simply not vote. </p><p>With overwhelming approval from the public to be reckoned with, the USPS board would be wise to unwind these misguided efforts — rather than rely on a recent series of four firm but temporary federal court orders in response to lawsuits from almost half the states. </p><p>DeJoy's days as postmaster general should be numbered. He has recently become embroiled in defending himself in light of evidence he pressured his company's North Carolina employees to make political contributions to Republican candidates and then reimbursed the workers. If true, it would be a criminal violation of federal and state campaign finance laws. He may have also committed perjury by lying about it under oath to Congress. </p><p>Then there's Kentuckian Robert Duncan, who is chairman of the USPS Board of Governors and also reportedly a director of Senate Majority Leader Mitch McConnell's so-called <a data-linked-post="2636709792" href="https://thefulcrum.us/super-pac" target="_blank">super PAC</a> — a clear conflict of interest.</p><p>Secretary Michael Elston is the board member responsible for carrying out compliance with all statutory requirements and also the Postal Service's chief compliance officer, making him responsible for his colleagues' following the USPS code of ethics.</p><p>"All employees are required to place loyalty to the Constitution, the laws and ethical principles above private gain," it says. "To ensure that every citizen can have complete confidence in the integrity" or the government, it goes on, "each postal employee must respect and adhere to the principles of ethical conduct." </p><p>What's been happening at the Postal Service reflects nothing less than an attempt to undermine our Constitution and the free and fair elections it envisions. Therefore, Elston should immediately open investigations of DeJoy and Duncan for possibly violating Postal Service conduct and ethics breeches. During such an inquiry, the two should be barred from casting any votes on the Board of Governors.</p><p>The USPS says its governors are "comparable to the board of directors of a publicly held corporation." For 18 years now, boards of such businesses have been governed by a law setting standards of corporate governance. The USPS, by embracing that statute, has assumed accountability not to shareholders but to its principal stakeholders — the American people.</p><p>The postal board, therefore, has a fiduciary duty to the public and must govern with loyalty to the mission of the USPS. Its loyalty is not to the president and certainly not to its own financial or political self-interest.</p><p>Board members must follow the USPS codes of conduct and ethical behavior prescriptions — and, most importantly, be loyal to the Constitution they swore to uphold. Doing all that means immediately reversing the harmful decisions DeJoy has implemented, restoring the equipment necessary to handle the onslaught of mailed ballots and paying those who will have to work overtime on election mail.</p><div></div><p>Having accomplished this, they will have done their part in assuring Americans will have a free and fair election, the basis of our constitutional democracy.</p>
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A new court should settle disputes between Congress and the president
Aug 18 2020
Coleman was an assistant Missouri attorney general and Republican congressman from 1976 to 1993. Now retired as a lobbyist, he is an advisor to Protect Democracy, an anti-authoritarian watchdog group.
<p>One of American democracy's bedrock precepts is that no one, not even the president of the United States, is above the law. The principle was confirmed this month by the D.C. Circuit Court of Appeals, when it reversed a lower federal court's ruling and said Congress has the authority to go to court to enforce subpoenas of executive branch officials. </p>
<p>Unfortunately, from a practical standpoint, the long and time-consuming road of judicial decision-making may have rendered the matter moot — allowing President Trump to run out the clock beyond the election.</p>
<p>The clock started running a seeming eternity ago, in March 2019, when the House Judiciary Committee began an investigation into alleged misconduct by Trump and his close advisors. The investigation followed up on special counsel Robert Mueller's report on the investigation into Russian interference in the last presidential election. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>During the investigation, Mueller interviewed Donald McGahn, who was then serving as White House counsel. The Mueller report concluded that impeachment was the mechanism to address whether Trump impermissibly coordinated with the Russian government in connection with the election or obstructed justice in the course of the special counsel's investigation. </p>
<p>When McGahn refused the Judiciary Committee's invitation to testify, the panel issued a subpoena in April ordering McGahn to appear one month later, to testify and produce documents. Trump directed McGahn not to appear, claiming presidential advisors were "absolutely immune from compelled congressional testimony." After all attempts to negotiate McGahn's appearance failed, the House filed a lawsuit in federal court last August to enforce its subpoena.</p><p>Here's how the litigation proceeded, in four steps: </p>
<p>The District Court rejected McGahn's claim, directing him to appear before the committee. Then McGahn appealed that decision to the D.C. Circuit, where a divided three-judge panel found that he did not have to testify.</p>
<p>At that point, the appeals court granted the Judiciary Committee's petition to have all the judges on the court review the case. Then the full D.C. Circuit heard oral arguments and ruled 7-2 that the legislative branch has the legal standing to try to use the judicial branch to force the executive bench to comply with subpoenas.</p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>That's where things stand now: Seventeen months after the initial request for testimony — six of those months after Trump was acquitted at the Senate trial that resulted from articles of impeachment drafted in the House Judiciary Committee — one more step of litigation, an appeal to the Supreme Court, is still possible.</p><p>The McGahn case is just the freshest illustration of how time consuming interbranch litigation can be, often resulting in a final resolution many months or even years after the dispute started — with the political and governing process continuing all the while. Any wrongdoing by a president and his aides is allowed to continue unabated. A Congress lasts only two years, making it likely this one will conclude in early January before the House can obtain judicial enforcement of its subpoena.</p><p>Trump's categorical direction to members of his administration — that no member of the executive branch shall cooperate with the impeachment investigation — not only assured litigation, but more importantly was also an effective stalling tactic. </p>
<p>The flagrant abuse of a constitutionally prescribed process must be addressed by Congress to assure that, in future litigation between the branches, the judicial system will not allow another bedrock principle of American democracy to become lost in the process: Justice Delayed is Justice Denied. </p><p>It is wrong to require Congress to repeatedly undertake a patently flawed judicial process to assure our constitutional checks and balances are not rendered obsolete. The current system produces a no-win situation for the rule of law. That's why Congress should pass legislation creating a new type of federal court — one with exclusive jurisdiction over, and focused solely on, disputes between the federal government's branches. </p>
<p>This special court is especially needed to handle future instances of Congress pursuing an impeachment. </p>
<p>The legislation should expedite the litigation process in such cases, allowing direct appeal of the court's ruling to the Supreme Court, and set special rules of procedure. It should also give consideration to spelling out when it's appropriate for the new court to abandon the general rule that so-called "political questions" are beyond the purview of the federal courts.</p>
<p>Failure to adopt meaningful changes in this process will only invite more non-compliance by a president faced with lawful inquiries by Congress. To condone an administration's wrongdoing is to encourage more of it and to give up on the rule of law and our democracy.</p>
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How Trump is turning the American presidency into a dictatorship
May 08 2020
Coleman was an assistant Missouri attorney general and later a Republican member of the House of Representatives from 1976 to 1993. Now retired as a lobbyist, he is an advisor to the Protect Democracy Project, an anti-authoritarian watchdog group.
<p>Since taking office more than three years ago, President Trump has consistently shown a complete lack of understanding of the fundamental precepts of our constitutional system. </p>
<p>He doesn't fathom the doctrine of separation of powers, the limitations placed on a president through the Constitution's checks and balances. And he doesn't comprehend the foundation upon which all of it rests — the rule of law. All of which raises the question: Will Trump become an unaccountable dictator? </p>
<p>Last year Trump asserted he could personally take over special counsel Robert Mueller's investigation into possible Russian influence in the 2016 election and his own role in it "if I wanted to." Emboldened after being acquitted by the Senate on the House's impeachment charges, he said, "I'm actually, I guess, the chief law enforcement officer of the country." And he has claimed that, as president, the Constitution gives him "the right to do whatever I want." </p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Most Americans had never considered an American president would speak such words. They are the musings of a monarch from centuries ago, or a dictator ruling in a banana republic. </p>
<p>It's doubtful the president came up with these constitutional perversions by himself. Assistance was surely provided by his current White House counsel, Patrick Cipollone, and Attorney General William Barr. Both are leading proponents of what's known as the unitary theory of the executive, an extreme doctrine of presidential power that has no legal boundaries. It is radical, wrong, undemocratic — and dangerous.</p><p>This theory is as obscure as it is controversial. It is a viewpoint that proponents argue is found in Article II of the Constitution: "The executive power shall be vested in a president of the United States of America." Those words have been variously interpreted to theoretically invalidate any statute passed by Congress that denies the president "exclusive control" over a "purely executive" power — and thus violating the principle of the separation of powers in the Constitution.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Other supporters of the theory take a more extreme view. They consider independent federal regulatory agencies as illegitimate, since they are structured to be insulated from presidential control. They believe Congress has no power to demand information from any part of the executive branch. And they assert that executive authority, under the Constitution, gives a president whatever powers are left specifically unchecked by either Congress or the courts. </p><p>Advocates of the theory posit that Congress cannot compel executive branch personnel to appear on Capitol Hill, even under subpoena. Not surprising, these were the same arguments put forth by Trump's lawyers in several court cases brought by the House against the president. They also served as a cornerstone of Trump's defense in the Senate impeachment trial. </p><p>While not the first presidential proponent of the theory — George W. Bush referred to it in more than 161 bill-signing statements — Trump has taken it to a significantly higher level. </p><p>Consider if Trump really has all the powers he thinks he should have. If only the president could determine what presidential powers exist, then a president could do more than act whenever Congress had not set specific parameters on a given topic. Under this extreme theory, his unilateral actions, even in the face of explicit congressional opposition, would be nonetheless constitutional. </p><p>This is precisely the issue now before the federal Court of Appeals for the D.C. Circuit. Is it appropriate for the House to challenge Trump's decision to build a wall on the southern border with funds not appropriated for that purpose?</p><p>Richard Nixon pretty well summed up the essence of the unified theory of the executive this way: "When the president does it, that means it's not illegal."</p><p>If Trump continues to lean on this crackpot theory to justify his governing decisions, it will have historical consequences for our nation. He would end our democracy based on the rule of law and replace it with an unaccountable dictatorial king. </p><p>The proponents of the unitary theory of executive power have constructed an alternative Constitution in much the same way Trump has used what his aides describe as "alternative facts" to conjure an alt reality. </p><p>If that sounds scary, well, it is. This president believes he has found the keys to the kingdom made possible by this discredited constitutional theory. It makes him, effectively, a king. </p><p>To overcome and reverse Trump's actions, we are encouraged by the wise counsel of Justice Robert Jackson, who came up with a famous test for evaluating claims of presidential power in a 1952 opinion preventing President Harry Truman from taking over the steel mills to avoid a strike during the Korean War.</p>
<p>"With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary deliberations," he wrote.</p>
<p>It's time for Congress and the courts — and the voters — to act accordingly, before it's too late.</p>
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