February 11, 2021
The American Prospect
Throughout several decades in the Senate, Joe Biden earned a reputation as an institutionalist. Extraordinary circumstances, however, are pushing the new president to cast aside many of his beloved norms when they fail to account for these exceptional times. In just a few short weeks, Biden has removed officials whose predecessors had never before been fired. And faced with predictable Republican obstruction on his signature pandemic response bill, he’s eschewed endless waiting for compromise in favor of budget reconciliation.
With these decisions, Biden is meeting the political moment and rejecting the tyranny of ill-suited norms not respected by his opposition. However, that makes his decision to bow to those norms in other cases all the more puzzling. It’s time for Biden to consistently reject self-imposed limitations on his presidency and finish the job of sweeping out Trump holdovers.
The fact that Biden has recognized the urgency on day one of sending a handful of dangerous Trump-era stragglers packing makes this all the more critical. Whether it was the director of the Consumer Financial Protection Bureau, the general counsel of the National Labor Relations Board, or the CEO of the U.S. Agency for Global Media, Biden clearly recognized that leaving these officials in office for even a day longer than necessary represented a threat to the public interest. Unfortunately, the same can be said for countless officials whom Biden neglected to remove on that first day, and in the days that followed.
Take, for example, United States attorneys. These officials, who have immense power to determine local law-enforcement priorities on everything from drugs and immigration to white-collar prosecutions, do not resign by default when the presidency changes hands. It has, however, become relatively routine for presidents to ask that they step down soon after he takes office. Biden did ask for their resignations earlier this week. But there’s no reason that it should have taken that long. The case for these figures’ removal and the danger of leaving them in place was clear from the start.
Trump famously interviewed several U.S. attorney candidates to gauge their loyalty to him, and he fired those he installed when he found that they were insufficiently faithful, particularly those who failed to bring cases that would help him overturn the election results. The impeachment trial has already underscored the danger of Trump’s project and, by extension, the risk of leaving any of its remnants in place.
Hopefully, Biden’s decision this week to begin to remove U.S. attorneys is a first step in an imminent, renewed push to rid the federal government of Trump’s cronies wherever legally possible. Here are some of the many figures who should be shown the door next.
Acting Comptroller of the Currency
Blake Paulson rose to become acting comptroller under unusual circumstances. Until just a few weeks ago, Brian Brooks was the acting head of the Office of the Comptroller of the Currency (OCC), installed by Trump and former Treasury Secretary Steven Mnuchin (whom Brooks worked alongside as a legal counsel for Mnuchin’s OneWest Bank). Although Brooks spent just seven and a half months in office, he managed to spark immense controversy. Highlights included an energetic effort to advance antidiscrimination laws, which sounds good—until you realize he was seeking to stop banks from refusing to lend to fossil fuel companies, private prisons, and other odious actors. He also undertook a major push to give fintech companies more power (given that he had experience as chief legal officer for the cryptocurrency firm Coinbase, this isn’t very surprising). Last fall, many rallied around the call for his removal, and Biden seemed set to deliver.
Then, just a few days before Biden took office, Brooks suddenly stepped down. The office passed to Blake Paulson, a career official whom Secretary Mnuchin designated Brooks’s successor. The Biden administration seems to have taken at face value that Paulson was objectively the best candidate for the role. In reality, it would appear that he was the best candidate to continue carrying out Brooks and Mnuchin’s agenda for the agency. Just last week, he took the controversial step of granting a trust charter for the fintech company Protego (only the second such charter the office has ever granted). That charter was already in motion under Brooks, but Paulson didn’t stand in its way.
Biden is not legally stuck with Mnuchin’s choice. Indeed, leaving OCC in the former administration’s hands amounts to political malpractice. With his power over the OCC, plus additional roles on the Federal Deposit Insurance Corporation board and the Financial Stability Oversight Council, Paulson could cause a great deal of damage in the months before the Senate confirms his permanent replacement. Just look at the headaches that sprang from Obama’s decision to leave in place Bush’s comptroller, John Dugan, and, later, his acting replacement John Walsh.
A more public-minded acting comptroller could use the coming months to put the agency to work for the public interest. Newly confirmed Treasury secretary Janet Yellen has the power to choose a new acting head for the agency at any time. It is imperative that Biden direct her to do so.
U.S. Postal Service Board of Governors
In less than a year, Postmaster General Louis DeJoy has brought the country’s beloved Postal Service to its knees. His reign of terror has rightly prompted calls for his removal, but there is another set of officials who should not escape accountability for their role in this disaster: the Board of Governors that installed him.
In an August briefing for the Congressional Progressive Caucus, former USPS governor and inspector general David Williams detailed how Treasury Secretary Mnuchin wielded a much-needed line of credit to pressure the Board of Governors to install DeJoy, a Trump donor, as postmaster general. Rather than stand up to that improper and potentially illegal infringement on the agency’s independence, the board folded. Williams resigned soon after in protest, but the remaining governors have been silent on the nature of DeJoy’s installation. Perhaps even more damning, all of those who remained in place have failed to take action or even speak up in the face of DeJoy’s attacks on the service.
As Rep. Bill Pascrell has said, it’s time that they go. This would, admittedly, be an unprecedented move. The governors of the USPS board are protected from removal except for cause (usually defined as “neglect of duty,” “malfeasance,” or “inefficiency”). This sets a high bar for firings but does not, critically, make them impossible. There is a strong argument to be made that the sitting governors’ failure to protect the Postal Service, and thus to uphold their duty to “represent the public interest,” qualifies as sufficient cause.
Two additional considerations should inform the Biden administration’s actions. First, Biden himself cannot fire Louis DeJoy. Only a majority of the sitting members of the Board of Governors can remove the postmaster general. Therefore, to ensure that the pursuit of accountability does not undermine the goal of rejuvenating the Postal Service, Biden should consider leaving one governor in place to fire DeJoy. That would be the quickest way to remove DeJoy, rather than waiting for reinforcement board members to be nominated and confirmed.
Second, the Board of Governors cannot vote on any action without a quorum of five members (with a vote on removal or installation of a postmaster general being the notable exception). In other words, to save the post office, firings will not be enough. It is imperative that Biden make nominations for vacancies on the board immediately. This week, Biden affirmed that he would make nominations for the three existing vacancies (was this not a given?), but he did not specify when. Given that his transition has known about these vacancies for months, there is no excuse for delays. We are confident that postal-banking advocates and postal-worker unions can step up and help identify nominees, as they have stood ready to do since November.
Biden has made big promises, but he will not be able to fulfill many of them if his administration blindly adheres to tired or broken norms that are out of step with the demands of this moment, or if it wastes time dithering before taking action. The overlapping crises we face comprise a novel situation, which calls for comparably novel, lawful tactics. Wherever possible, Biden cannot shy away from wresting control from Trump officials’ hands to put agencies to work for the public interest.