GSA Head Refuses to Sign Transition Order
A nonpartisan official is refusing to do her duty.
While Joe Biden and Kamala Harris have almost universally been acknowledged as the President- and Vice President-Elect, that hasn’t stopped the Trump administration from trying to thwart them. A career bureaucrat is now refusing to do her duty.
WaPo (“A little-known Trump appointee is in charge of handing transition resources to Biden — and she isn’t budging“):
A Trump administration appointee is refusing to sign a letter allowing President-elect Joe Biden’s transition team to formally begin its work this week, in another sign the incumbent president has not acknowledged Biden’s victory and could disrupt the transfer of power.
The administrator of the General Services Administration, the low-profile agency in charge of federal buildings, has a little-known role when a new president is elected: to sign paperwork officially turning over millions of dollars, as well as give access to government officials, office space in agencies and equipment authorized for the taxpayer-funded transition teams of the winner.
It amounts to a formal declaration by the federal government, outside of the media, of the winner of the presidential race.
But by Sunday evening, almost 36 hours after media outlets projected Biden as the winner, GSA Administrator Emily Murphy had written no such letter. And the Trump administration, in keeping with the president’s failure to concede the election, has no immediate plans to sign one. This could lead to the first transition delay in modern history, except in 2000, when the Supreme Court decided a recount dispute between Al Gore and George W. Bush in December.
“An ascertainment has not yet been made,” Pamela Pennington, a spokeswoman for GSA, said in an email, “and its Administrator will continue to abide by, and fulfill, all requirements under the law.”
The GSA statement left experts on federal transitions to wonder when the White House expects the handoff from one administration to the next to begin — when the president has exhausted his legal avenues to fight the results, or the formal vote of the electoral college on Dec. 14? There are 74 days, as of Sunday, until the Biden inauguration on Jan. 20.
Note that Murphy is not some hack Trump crony. She is, as required by law, a career civil servant in the Senior Executive Service. It’s simply unconscionable for her not to do her job.
Still, given the political climate and the volatility of the man who will occupy the White House until January 20, one understands the pressure she’s under.
“No agency head is going to get out in front of the president on transition issues right now,” said one senior administration official, who spoke on the condition of anonymity because he was not authorized to speak publicly. The official predicted that agency heads will be told not to talk to the Biden team.
It’s unfortunate, indeed. The whole reason that law has a career official in charge of this process is precisely to shield it from partisan intervention. But the law didn’t anticipate a Trump presidency.
The decision has turned attention to Murphy, whose four-year tenure has been marked by several controversies involving the president, an unusually high profile for an agency little known outside of Washington.
“Her action now has to be condemned,” said Rep. Gerald E. Connolly (D-Va.), who leads a House oversight panel on federal operations. “It’s behavior that is consistent with her subservience to wishes of the president himself, and it is clearly harmful to the orderly transition of power.”
The delay has implications both practical and symbolic.
By declaring the “apparent winner” of a presidential election, the GSA administrator releases computer systems and money for salaries and administrative support for the mammoth undertaking of setting up a new government — $9.9 million this year.
Transition officials get government email addresses. They get office space at every federal agency. They can begin to work with the Office of Government Ethics to process financial disclosure and conflict-of-interest forms for their nominees.
And they get access to senior officials, both political appointees of the outgoing administration and career civil servants, who relay an agency’s ongoing priorities and projects, upcoming deadlines, problem areas and risks. The federal government is a $4.5 trillion operation, and while the Biden team is not new to government, the access is critical, experts said.
This is all on hold for now.
While part of me wishes we had parliamentary-style turnover—where a newly-elected Prime Minister will take over in a matter of days—it’s really infeasible under our system. As painful as having an opposite-party lame duck in office for so long is, it’s barely enough time for the election winner to start assembling a cabinet and get them through the clearance process.
It’s simply outrageous to deny Biden the ability to get started. This isn’t 2000, where the outcome of the election is genuinely in doubt. The notion that multiple recounts in states with margins in the thousands of votes is going to change the outcome is at best an absurd fantasy.
And, again, this is why we have a non-partisan official in charge of initiating the process.
“The transition process is fundamental to safely making sure the next team is ready to go on Day One,” said Max Stier, president and chief executive of the nonpartisan Partnership for Public Service, which has set up a presidential transition center and shares advice with the Biden and Trump teams. “It’s critical that you have access to the agencies before you put your people in place.”
The Biden team can move forward to get preliminary security clearances and begin FBI background checks on potential nominees requiring Senate confirmation.
Another senior administration official who was not authorized to speak publicly said each agency has drafted detailed transition plans for a new administration, but they will not be released to the Biden team until a winner is formally declared.
Trump has been resistant to participating in a transition — fearing it is a bad omen — but has allowed top aides to participate as long as the efforts do not become public, administration officials said. He is unlikely to concede he has lost or participate in traditional activities, the officials said.
As with so many things over the last four years, the law simply didn’t envision someone of Trump’s ilk with the powers of the presidency.
Still, some of this was anticipated before the election. Kate Shaw and Michael Eric Herz, writing in the Atlantic, assured us “The Transition Is (Mostly) Safe From Trump.”
There is certainly no reason to expect President Trump to approach a President-elect Biden in anything like the spirit of cooperation and goodwill that has generally characterized presidential departures in the modern era.
Nor should anyone expect Trump to adhere to the bipartisan conventions of presidential stewardship of modern transitions. Further, by litigating the election outcome and delaying his concession, the president might postpone the point at which Biden is acknowledged the victor, thus delaying funding and many transition-related activities, as happened in 2000.
But there’s reason to have faith, too. When it comes to the transition itself—not the niceties that surround it—a little-known body of law and practice places important limitations on the amount of damage even a determined outgoing president can do. The law vests significant authority for managing transitions in career officials—that is, officials whose employment does not turn on or change with the occupant of the White House—who owe higher duties to the transition or incoming administration than they do to the outgoing administration. This means that however resolved Trump might be to thwart a smooth transition—or, short of that, however lackadaisical he might be in managing one—much of the process lies entirely outside his control.
For much of American history, presidential transitions were casual affairs, typified by a long post-campaign vacation for the winning candidate and little organized communication or cooperation between incoming and outgoing administrations. That shifted during the first half of the 20th century, but no law of presidential transitions existed until 1964. That year, Congress passed the Presidential Transition Act (PTA), which is central to how modern transitions are run. This law—and its many amendments, the most recent of which was enacted just this year—provides millions of dollars in funding for transition operations and requires the government to support potential incoming administrations with information, expertise, and direct assistance.
Strikingly, Congress placed almost all the responsibility for managing the transition in the hands of career employees. This means that when it comes to matters of transition, the president and those immediately surrounding him are less important than they seem: The real action lies with career staff in the agencies.
Like, you know, the GSA.
The Act requires that four entities or positions be in place six months before the election. As described in a set of legally required reports from the General Services Administration to Congress, all are indeed up and running:
*A federal transition coordinator. Notably, the FTC is selected not by the president but by the head of the GSA and must be a “senior career appointee” at GSA.
*A White House Transition Coordinating Council. In 2010, Congress amended the PTA to provide that the incumbent “may” set up a White House Transition Coordinating Council, something Bill Clinton and George W. Bush had each done in their final (though not their fourth) year in office. In 2012, President Barack Obama, running for reelection, did not do so, and in 2016, Congress changed the “may” to a “shall.” The Council is emphatically not an entity of career officials. Generally chaired by the White House chief of staff (as the current council is) or a deputy chief of staff and packed with White House officials, it also includes the FTC and representatives of both campaigns.
*An Agency Transition Directors Council. The Council, also required by the 2016 amendments, is to consist of “a senior representative” from each Cabinet department, the Office of Personnel Management, the Office of Government Ethics, the National Archives and Records Administration, and “any other agency determined by the Co-Chairpersons to be an agency that has significant responsibilities relating to the transition process,” along with the major candidates’ representatives. It was widely understood that that “senior representative,” who also heads transition activities within her agency, would be a career official, and the Obama executive order creating the 2016 council specified the same. Just this year, Congress codified that understanding; by law, agency transition directors cannot be political appointees; they must be senior career staff. With the exception of the Office of Management and Budget co-chair, the current council consists entirely of career officials.
*Transition directors in individual agencies. The PTA requires “every agency”—not just those with a representative on the Agency Transition Directors Council—to assign an employee to oversee transition activities. Once again, this employee must, as a matter of law, be a “senior career employee.” Back in May, the OMB instructed more than 100 agencies to identify a point of contact for communications regarding transition activities.
All of this is in place. In addition, the GSA has provided office space in Washington for the Biden team and negotiated, as the PTA requires, a memorandum of understanding with the Biden team that will be signed if and when it is apparent that Biden has won the election.
Again, though, the expectation was that the GSA head would follow the consensus of the news projections.
Thus, all the early tests have been met. To be sure, the early tests are easy, as they involve flat legal requirements. So one cannot be too reassured. But compliance is not nothing.
It is, alas, not enough.
One presumes pressure from the outside to sign the letter and allow the official transition process to commence will soon be sufficiently immense as to overcome the fear of a presidential tantrum. In an ideal world, the President’s staff would pressure him to concede the inevitable and slink away; there is in fact good reason to think that’s happening. Moreover, leadership from Congressional Republicans should already be pushing in that direction. Alas, most still seem to be more afraid of their voters than concerned about their duty to the country.
UPDATE: Government Executive’s Courtney Buble had some speculation on this issue earlier in the week, before the networks had made their calls for Biden.
“There don’t seem to be standards for how and when [the ascertainment] needs to happen,” Don Kettl, the Sid Richardson professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs, told Government Executive. “GSA has been supporting the candidates up to Election Day. The government’s support of the transition, however, can’t begin until the GSA administrator authorizes it.”
He continued, “Given the fact that there’s such discretion in the process, the core question is this: Will the administrator turn on the transition as soon as the networks call the election? If the networks call Biden as the winner, will the administrator launch the transition if the case is still in the courts? Or might the administrator, perhaps, wait until the Electoral College meets and decides, on the grounds that the decision would be contested until that vote is taken?”
GSA Administrator Emily Murphy was confirmed unanimously in December 2017 and has since been in charge of overseeing 11,200 employees nationwide, over 370 million square feet of government real estate and about $75 billion in annual contracts. She’s come under fire from House Democrats for GSA allegedly having relaxed oversight of the Trump International Hotel in Washington, D.C., which is in a GSA-leased building, and her involvement with the White House in the controversial decisions about the FBI’s new headquarters.
There was similar attention about GSA’s role in the transition process in 2016 when Trump suggested before winning that he might contest the results of the election. Additionally, in 2000–the last time there was a delay in presidential election results–lawmakers grappled with the same questions during a hearing on December 4, 2000, eight days before the Supreme Court declared George W. Bush the winner.
GSA ended up waiting until December 14, 2000, to turn over the keys and funds—after the Supreme Court ruled in favor of the Republicans and Democratic candidate Al Gore had conceded.
But, again, the election outcome was genuinely in doubt then; it isn’t now.