Drama is building between U.S. District Judge for the District of Columbia Emmet Sullivan and Postmaster General Louis DeJoy. The United States Postal Service (USPS) on Tuesday afternoon failed to comply with Judge Sullivan’s order requiring the agency to perform “sweeps” of mail certain processing facilities to verify that all mail-in ballots have been processed. The USPS claimed that it was unable to comply with the order due to a lack of time and personnel to abide by the required terms.
After the USPS filed their response with the court at 4:30 p.m. to report on the matter, Judge Sullivan issued another order. The judge said USPS should be prepared on Wednesday to discuss its “apparent lack of compliance” with the order [emphases ours]:
MINUTE ORDER. In view of 70 Defendants’ response to the November 3, 2020 Court order, the Court understands that “‘all clears’ [or facility sweeps] and successful certifications were conducted at all processing plants this morning by 10 am local time” pursuant to this Court’s previous orders. The Court further understands that Postal Inspectors are/will be on site at each processing plant between 4:00 PM and 8:00 PM local time today to conduct the “daily review process” designed “to ensure compliance at the critical period before the polls close.” The Court understands “compliance” to mean that the Inspectors will at that time identify and refer Election Mail in staging and non-staging areas to facility managers to resolve as expeditiously as possible. Given the timing, the Court is inclined to let this process continue. Accordingly, the Court DENIES 71 Plaintiff’s request for an immediate status conference. Defendants shall be prepared to discuss the apparent lack of compliance with the Court’s order at the status conference scheduled for 12:00 PM on November 4, 2020. Signed by Judge Emmet G. Sullivan on 11/3/2020. (lcegs3) (Entered: 11/03/2020)
As news of the agency’s failure to abide by the terms of Judge Sullivan’s order broke, concerns over the broader implications immediately arose.
This is doubly concerning as it’s a refusal to obey a court order in a way that impacts election integrity
USPS disregards court order to conduct ballot sweeps in 12 postal districts after more than 300,000 ballots cannot be traced https://t.co/OAdN4r31nd
— Nick Schwellenbach (@schwellenbach) November 3, 2020
Some suggested that Wednesday’s hearing on the matter may (or should) result in a contempt charge against Postmaster General DeJoy.
Louis DeJoy should be held in contempt of court & face criminal charges for obstructing an election if these ballots are not delivered on time https://t.co/99QTzh4fRR
— Ari Berman (@AriBerman) November 3, 2020
BREAKING: USPS under DeJoy reported now in contempt of Judge Sullivan’s ruling, risking contempt citation; 300,000 ballots remain without a delivery scan https://t.co/oXKn1XbQMn
— Eric Garland (@ericgarland) November 3, 2020
This emanates directly from Trump to DeJoy. DeJoy should be held in contempt and arrested forthwith, meaning tonight. https://t.co/yx0irS9Qaj
— Richard Signorelli (@richsignorelli) November 3, 2020
This is beyond unacceptable. Does a lame duck pardon get you out of criminal contempt? Asking for Louis DeJoy. #ElectionNight https://t.co/zlnU2X2ghZ
— Joe Patrice (@JosephPatrice) November 3, 2020
Contempt time. https://t.co/rrRF4G1iZu
— Glenn Kirschner (@glennkirschner2) November 3, 2020
Others even called for an election interference criminal prosecution.
Another slowdown in delivery rates reported by the USPS. When this is over, DeJoy needs to serve prison time for voting interference. https://t.co/p3gghPuOV1
— Amy Siskind (@Amy_Siskind) November 3, 2020
DeJoy must be removed and arrested for election interference.
— Joe @ #vote (@J_Schiavo) November 3, 2020
What could actually happen at Wednesday’s hearing before Judge Sullivan? There are a few possibilities.
1. The judge could accept the USPS’s explanation that strict compliance with his order was impossible, and lift or amend his earlier order accordingly.
This is certainly a possibility. Judge Sullivan ordered Tuesday evening that “Defendants shall be prepared to discuss the apparent lack of compliance with the Court’s order at the status conference.” At a minimum, his response indicates that Sullivan plans to hear the USPS side of the story. If the non-compliant agency raises facts that absolve it from any inference that failure to comply was intentional, it could be off the hook entirely.
2. The judge could hold the USPS or Postmaster DeJoy in civil contempt.
Federal courts have the authority to hold federal or independent agencies in contempt for failure to obey court orders. This would mean that the USPS is sanctioned and is expected to pay monetary fines (just as Betsy DeVos was when the Department of Education was held in contempt). The money paid out would come from the agency’s appropriations and go into the registry of the federal court.
Of course, Congress could opt to shield the USPS by appropriating additional funds to make up for the expense.
Judge Sullivan could also impose a fine on Postmaster DeJoy personally – but such an action would likely be considered a very extreme remedy.
3. The judge could hold the USPS or Postmaster DeJoy in criminal contempt.
When private corporations or individuals disobey direct court orders, they risk being held in criminal contempt, and fined or even imprisoned for their disobedience. While federal courts theoretically hold the power to hold federal agencies and their department heads in criminal contempt, they almost never do so.
Most of the precedent for federal courts holding federal agencies in criminal contempt stem from agencies’ refusal to provide testimony or evidence, or directly disobeying an order during a courtroom proceeding. In that context, it would be unlikely to see DeJoy or the USPS held in criminal contempt for failing to follow the “sweep” order, as the agency is at least arguing that the failure was unintentional.
Should Judge Sullivan opt to hold DeJoy or the USPS in criminal contempt, it would likely trigger some due process rights for the agency or the individual; the nature and extent of those rights would almost certainly be a matter for much further debate.
Generally, courts abstain from sanctioning an entity (whether civilly or criminally) when that entity has made all reasonable efforts to comply with its order. Accordingly, DeJoy’s fate vis á vis contempt will likely hinge primarily on the demonstrable efforts to conduct the “sweeps” as ordered.
As for the suggestions that DeJoy might be criminally prosecuted for election interference, such a determination would need to be made independently by a federal or state prosecuting authority. It is illegal under federal law for any person employed by a federal agency or instrumentality to use “official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.”
[image via MANDEL NGAN/AFP via Getty Images]
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