When Postal Fraud Undermines Democracy

In the past few days, two coalitions of more than 20 state attorneys general sued the U.S. Postal Service to restore service because, the lawsuits allege, those cuts threaten the delivery of tens of millions of ballots in the November election and the integrity of the election itself.

The actions filed, so far initiated by Democratic attorneys general from blue states, are led by Pennsylvania Attorney General Josh Shapiro and Washington state Attorney General Bob Ferguson. New York’s and Washington D.C.’s AG’s have filed separate actions in federal court on behalf of voters and political candidates. New Jersey is also expected to file its own suit.

Each lawsuit alleges that changes instituted by newly-appointed Postmaster General Louis DeJoy as cost-cutting productivity measures are thinly disguised subterfuges to suppress the vote by crippling the service’s ability to deliver blank ballots to voters and filled-in ballots back to state and county election offices.

Postmaster General Louis DeJoy, 63, was CEO of XPO, a Connecticut-based freight transporter. In 2017, he was appointed one of three deputy finance chairmen of the Republican National Committee. DeJoy has donated millions of dollars to the Trump campaign and to Republican causes. His wife, Aldona, was just nominated to be U.S. Ambassador to Canada after DeJoy reportedly donated $360,600 to the Trump Victory PAC.

DeJoy, a major Trump campaign donor who has no logistics experience with a sprawling agency like the Post Office, instituted severe cuts to workers’ hours, eliminated staff overtime, removed scores of critical mail sorting equipment from post offices, halted same day delivery for late-arriving mail, and oversaw the removal of hundreds of mailboxes around the country.

The Post Office also notified states that it would no longer process ballots as first class mail, but as bulk mail, which has lower delivery priority than first class mail. In addition to crippling the ballot, the lawsuits point out that hamstringing deliveries threaten the lives and livelihoods of people who rely on the mail for timely receipt of social security, unemployment and pension checks as well as medical prescriptions.

The AG’s argue that downsizing the Post Office at the height of election season is unconstitutional because it interferes with the constitutionally protected right to vote. The complaints also allege the reductions violate the Tenth Amendment because the power to conduct elections is reserved to the states. They also assert that the cuts are illegal and discriminatory because they have a disparate impact impact on minority neighborhoods and districts, undermining the Equal Protection Clause of the Fifth Amendment.

Finally, the lawsuits contend that DeJoy exceeded his authority because he failed to follow proper procedures under federal law, implementing the cuts before submitting them to the Postal Regulatory Commission for approval. Postal law requires that before instituting cutbacks of that magnitude, they must be submitted as proposals to the commission, an independent agency charged with overseeing service changes and rate increase requests, a process that includes public notice and comment before changes go into effect.

Aiming to Reverse the Cuts But Missing the True Target

As Andy Griffith in his television series, Matlock, might have said, “I’m just a simple country lawyer.” But it appears to me that starving the Postal Service of critical operational funds needed to support a presidential election — after the President of the United States unequivocally stated that crippling the Post Office’s ability to deliver mail-in ballots is his goal — is a federal crime.

On August 14th, during a Fox Business interview with Maria Bartiromo, Trump said “They (Democrats) need that money in order to have the Post Office work so it can take all of these millions and millions of ballots. But if they don’t get those two items that means you can’t have universal mail-in voting, because they’re not equipped to have it.”

“If we don’t make a deal (on a stimulus package), that means they don’t get the money, that means they can’t have universal mail-in voting. They just can’t have it,” Trump said.

In other words, in the same words, Trump wants to starve the Post Office and hold mail-in votes hostage until he gets his way with a stimulus package. The larger picture? He wants to discredit mail-in votes to undermine the integrity of the presidential election, giving him leeway to question, contest and try to overturn the results if he loses.

For years, Trump has bleated that mail-in voting was rife with fraud despite the fact that 50 years of historical research reveals that voter fraud is virtually non-existent and has had no statistically significant impact on federal elections.

Undercutting Trump’s credibility is that for many years, he voted by mail when he was a New York City resident. And now he’s applied to use the mails to vote for himself in 2020 since he abandoned New York and changed his domicile and residence to his Mar-a- Lago estate in Palm Beach FL. No problem there, right?

The man who lied in office more than 20,000 times has done something like this before. Trump’s unvarnished admission that his purpose in starving the Post Office is to suppress the 2020 vote (based on the disputed assumption mail-in voters will tilt toward Biden) is not all that different from his unambiguous July 2016 invitation to Russian intelligence “to find the 30,000 emails that are missing,” referring to files Hillary Clinton deleted from her private account when she was Secretary of State.

In the past, presidential candidates have spoken in code when they want to appeal to the worst instincts of the electorate. Recall the Silent Majority of George Wallace and Richard Nixon, cryptic, fear-mongering appeals to bigots and racists. Trump doesn’t bother with subtlety. He doesn’t launch trial balloons. He telegraphs his malicious intent clearly and unambiguously, wearing it like a badge of honor.

Aiming For the Bullseye

Criminal prosecutions are not based upon first impressions or gut reactions. They need to be grounded in fact and law.

And while the AG’s have strong arguments to stop DeJoy from undermining the election, I think they aim too low. Trump denies ordering DeJoy to cripple the mail service, but again, the smokescreen emanating from the White House is not thick enough to conceal Trump’s manipulation of his Postmaster General stooge. DeJoy is low hanging fruit. To use an old military cliche, if you want to decisively win a battle, you have to cut off the head of the snake. Trump, not DeJoy, is that snake.

I would like to see a creative AG take a hard look at Title 18 of the U.S. Code, Section 1001. That statute states (in part):

whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully:

falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

makes any materially false, fictitious, or fraudulent statement or representation; …

shall be fined under this title, (and) imprisoned not more than 5 years …

A little background: this controversial statute employs very broad language and has been criticized by legal commentators because it casts a wide net. I doubt there is another federal statute that makes it a crime to use a “trick” or “scheme” to engage in a cover-up. In the past, 18 USC 1001 has been used to charge and convict a who’s who list of celebrities for a smorgasbord of crimes:

— -Martha Stewart — Stewart engaged in insider trading and then lied about it to FBI and SEC investigators. She was sentenced to five months in prison, five months home confinement and a $30,000 fine

Marion Jones — The track star and five-time Olympic medalist was convicted of lying to federal investigators about not using performance enhancing drugs, not seeing others use them and not receiving a $25,000 check. Jones was sentenced to six months in prison

Former Illinois Gov. Rod Blagojevich — Blagojevich was impeached, removed from office and then found guilty of 17 charges, including wire fraud, attempted extortion and conspiracy to solicit bribes. He was sentenced to 14 years in prison and served eight years before Trump pardoned him earlier this year.

Michael T. Flynn — Trump’s first national security advisor admitted to lying twice to investigators in Robert Mueller’s Russian election interference investigation. Prosecutors asked for a six-month prison term to which Flynn at first agreed, but then hired an attorney to lobby Attorney General William P. Barr to drop the charges. Barr did so, but the trial judge, Emmet G. Sullivan, refused to dismiss the case and instead appointed a retired former judge to examine the proceedings. Retired judge John Gleeson filed an amicus brief which concluded that Barr’s order to drop the case was corrupt and that Judge Sullivan should proceed with sentencing Flynn. An appeal is now before the U.S. Court of Appeals in Washington D.C.

Rick Gates — The former deputy chairman of the Trump campaign pleaded guilty to conspiracy and lying to the FBI in the Mueller probe. He received a 45-day prison sentence, three years probation, fined $20,000 and assigned 300 hours of community service.

Scooter Libby —I. Lewis (“Scooter”) Libby, chief of staff to Vice President Dick Cheney, was convicted of one count of obstruction of justice, two counts of lying under oath and one count of making false statements in 2007. He was sentenced to 30 months in prison. President George Bush commuted the term, voiding the prison time that same year. Trump pardoned Libby in 2018.

Bernard Madoff —In 2009, Madoff pleaded guilty to 11 federal felony counts arising out of a massive wealth management Ponzi scheme, defrauding clients of billions of dollars. He was sentenced to 150 years in prison, where he will likely die.

Jeffrey Skilling — Skilling, chief executive officer of Enron, the now-defunct Houston-based energy and utilities trading company, was convicted of conspiracy, insider trading, making false statements to auditors, security fraud and insider trading. He was sentenced to 24 years in prison, but after an appeal and plea bargain, the term was reduced by 10 years. He was released last year after serving 12 years.

Lock Him Up

1001 is controversial because of its broad language and easy applicability to a wide variety of crimes. In 1998, the statute was tested before the U.S. Supreme Court in Brogan v. United States.

Brogan was convicted of lying to auditors when asked whether he received cash or a gift from a company represented by a union in which he was an officer. He argued that his lie was not a materially false statement and that his denial was justified because of his Fifth Amendment right not to incriminate himself. The court, in a majority opinion written by Judge Antonin Scalia, rejected the arguments and re-affirmed the applicability of 1001.

There are some significant obstacles to using 1001 to prosecute Trump. The first and most obvious: the Justice Department has a policy of not criminally prosecuting sitting presidents. That policy springs from a DOJ legal opinion zealously enforced by the current attorney general to protect his malefactor-in-chief. A product of the Watergate era, the directive dates back to 1973, promulgated by the DOJ because it determined that as a matter of public policy, lengthy criminal trials or investigations would distract a president and keep him from carrying out the duties of his office.

What? Me Worry. Maybe.

There is an obvious hole in this logic. Why would the greatest democracy on earth — a claim increasingly more difficult to justify — want an accused criminal in the White House? Allowing a corrupt Leader of the Free World to continue to serve undercuts the entire foundation of our justice system. It proves to dictators and oligarchs around the world that the United States hypocritically fails to walk-the-talk.

That order should be reversed. Sitting presidents simply should not be above the law.

The second hurdle is that for 1001 to come into play, Trump would have to make false statements to federal investigators. This is no small obstacle. This president managed to stonewall Congress’s impeachment hearings and has avoided submitting his tax returns to investigators for nearly four years.

Last is that a strong evidence file would have to be compiled to successfully prosecute.

To be airtight, any case would need a mountain of redundant, corroborative evidence to convince a jury that Trump’s endgame is tilting the election field. And to do that, a prosecutor would have to meet a four-pronged legal test, showing: (1) A statement was made to an investigator that was false, fictitious or fraudulent; (2) The statement was material; (3) It was made knowingly and willfully; and (4) It related to an action within the authority of a federal agency.

Trump certainly is not going to come out and admit he lied about his false election claims. Nor will he willingly interview with the FBI or state investigators. Robert Mueller tried without success for more than a year to interview Trump, finally settling for written answers, many of which were lies.

I have no doubt that prosecutors can bring 1001 charges against Trump and back them up with volumes of written evidence. That’s what they’re paid to do, with an added incentive that it is always a major career boost to snare big political game and display its head over the mantle. And there are the countless times, on the record, that Trump claimed that mail-in voting is corrupt and susceptible to fraud, as well as an equal number of times he bellowed from the campaign stump or on Twitter that election results should be invalid because of mail-in votes.

When you marry that proof to Trump’s threats to withhold the money that would allow the Post Office to process an estimated 80 million mail-in votes this November, you have a strong case that the President of the United States committed a felony.

Yes, prosecutors would have to line up many witnesses and conduct thousands of man-hours of research and investigation to back up their charges, and with just two-and-one half months to go before Election Day, it’s unlikely any AG or district attorney would be able to go to trial within that narrow timeframe. Indicting the president would undoubtedly have to wait until after November 3rd.

This is what hangs in the balance. If Trump succeeds in hamstringing the Post Office to steal the election, federal prosecutors under a Republican attorney general will not pursue a 1001 prosecution for at least another four years because of the Justice Department’s presidential non-prosecution policy.

But there is nothing to keep any state attorney general or any local district attorney from trying to convict President Trump of lying about non-existent mail-in voter fraud and then using those lies, in President Obama’s beautifully graphic descriptive phrase, to kneecap the Post Office. Local prosecutors can bring indictments under federal as well as state law.

One more thought, one that in some twisted way should appeal to this twisted president. If Trump was convicted and sent up the river, he would have undisputed bragging rights as the bigliest, the richest, the most famous, the most beautiful, the greatest person on that star-studded list of convicted 1001 felons.

Retired corporate counsel to a major automaker, history buff, avid baseball fan and golfer, proud to have been a newspaperman many years ago.