GSA’s Certification Decision

Why did Emily Murphy finally do her job?

For more than two weeks, GSA Administrator Emily Murphy refused to certify that Joe Biden was the “apparent winner” of the 2020 Presidential election, thus denying him some key assets required to start the transition.

CNN‘s Jeremy Herb and Kristen Holmes explain “Here’s how Trump’s transition blockade finally ended.”

Two weeks after Joe Biden was projected to win the presidential election, General Services Administrator Emily Murphy was finally prepared to stop stalling the transition.

It was Friday, November 20. President Donald Trump’s lawsuits challenging the election result were going nowhere, Georgia was certifying its hand recount for Biden, and both Michigan and Pennsylvania were preparing to certify their elections early the next week.

So GSA officials gave the White House a heads up that if Michigan and Pennsylvania certified their elections as expected, Murphy would formally start the transition for Biden in a process known as ascertainment, according to multiple sources familiar with the conversations.

In hindsight, once Murphy had decided that the media projections were insufficient to overcome the President’s insistence that he was somehow the winner of the election, this was the best case scenario. She simply waited for enough states to officially certify their outcomes to put Biden over the 270 Electoral vote hump.

But, of course, it helped that Trump decided to get out of the way at that point:

During the 16 days between the major news networks projecting the win for Biden and Murphy’s letter to the former vice president on Monday evening, Trump did not directly tell Murphy to prevent the transition from starting. But he made his stance on her decision known through a steady stream of tweets contesting the election, at one point responding to an old tweet of Murphy’s with “Great Job Emily.”

In her letter explaining her decision on ascertainment, Murphy said she was not pressured by White House officials to grant it. But just minutes after she sent the letter to Biden, Trump seemed to undermine those claims by tweeting he was “recommending that Emily” begin the transition. A source close to Murphy adamantly denied that the two ever had any direct communication.

Inside the White House, multiple attorneys and advisers were huddled with Trump in the Oval Office and on the phone Monday, trying to persuade him to proceed with the transition, a source close to the conversations said. White House counsel Pat Cipollone and chief of staff Mark Meadows, as well as outside attorneys Jay Sekulow and Rudy Giuliani, were discussing the path forward with Trump, this source said.

A White House official referred a request for comment to GSA, and a GSA spokesperson declined to comment for this story.

After Murphy’s letter, Trump praised her in the tweet in which he took credit for recommending the transition begin, thanking her for “her steadfast dedication and loyalty to our Country.”

Murphy was “shocked” by the tweet, one source said.

Why she would be “shocked” by that tweet and not the others is unclear.

While fully recognizing that she was in a no-win situation given Trump’s tantrums and the hyper-charged political environment they created, the fact of the matter was that it was her sworn duty to acknowledge the “apparent” outcome of the election once the outcome in Pennsylvania was reasonably certain, putting Biden over the top. That was Saturday, November 7. She should have signed the letter no later than Monday morning.

But, again, having failed to do that, it’s unclear what intermediate information short of a Trump concession would have changed her stance. Until the election boards certified the results, it was just a reasonable certainty that Biden would win. Their certification made the outcome official, with only the pageantry of the Electoral College meeting and the Senate counting the votes remaining.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jax says:

    After Murphy’s letter, Trump praised her in the tweet in which he took credit for recommending the transition begin, thanking her for “her steadfast dedication and loyalty to our Country.”

    Murphy was “shocked” by the tweet, one source said.

    I always wonder about these Republicans who say they’re “shocked” that Trump did what he’s always done and stolen the credit for himself. Where the hell have they been the last 5 years….actually the last 30 years? Did they really think all the other examples of his rotten behavior were “fake news”? Are they just NOW realizing how awful he is, after their own personal experience?

    Leopard’s eating faces and all that.

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  2. CSK says:
  3. CSK says:

    @CSK:
    Screwed up the link and can’t edit it. Sorry.

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  4. gVOR08 says:

    Over on the ‘Cracks in the Election’ post Pylon commented,

    Prosecute people like Shinkle [the tool who abstained from certifying the MI election results] for not doing their jobs or doing them in bad faith (look him up – this ain’t his first time). Disincentivize such behaviour.

    I’m not sure what the criminal charge would be, but the principle certainly applies to Murphy. Why are we looking for reasons to sympathize with her situation, the situation she put herself in, rather than laughing and pointing at her? Why should people do their jobs if we excuse their not doing their jobs?

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  5. Michael Reynolds says:

    @gVOR08:
    Hear, hear.

    DYFJ: Do Your Fucking Job.

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  6. dazedandconfused says:

    @gVOR08:

    If we were to successfully prosecute Emily we would have to define precisely what “apparent winner” is. Is it what the media announces? Something like enough state’s certifying their results? About as clear as mud.
    I suspect the writers of that law didn’t foresee her dilemma by anticipating there could be an utterly shameless liar elected POTUS. We should not allow ourselves to be drawn off-target by the chaff of manifested personalities.

    “There is only one.”
    https://i.pinimg.com/originals/ef/86/cc/ef86ccee3399a2b4d817d84381ece5fd.jpg

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  7. gVOR08 says:

    @dazedandconfused: “Prosecute” was in the blockquote and in reference to Shinkle. And I noted it was unclear what criminal charge would apply even to him. I didn’t advocate prosecuting Murphy. I advocated ridicule and shunning.

    I didn’t mention it, but I would argue for firing her. As I understand it, she’s political and not protected by Civil Service. Should Trump burrow her in by moving her to a CS slot, I’d advocate firing her anyway for clear failure to carry out a legally mandated duty. But then I’m a radical who would advocate the new AG should investigate the whole Trump Hotel fiasco and prosecute any criminality that turned up.

    “Apparent winner” seems clear enough to me. I think finding it unclear requires dedication to finding it unclear. With the caveat that, should it come to it, dedication to misunderstanding clear language is what Supreme Court “originalists” do.

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  8. Not the IT Dept. says:

    I wouldn’t rule out the feedback she was getting informally from colleauges, family, friends, etc. None of it was praising her for duty or whatever, probably a fair amount consisted of asking her if she was out of her *bleepity bleeping* mind???? She finally found a way to climb down and took it.

    Hope you enjoyed your 15 minutes of fame, Em!

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  9. JohnSF says:

    With regard to Murphy, would not the legal issue be, at what point does her duty with regard to the constitutionally mandated succession override her duty of obedience to the current President?

    If it is agreed that she bound to uphold the constitutional proprieties above the will of the current incumbent, at what point does this obligation become effective?

    Does the “calling” of an election qualify? It may be obvious who the winner is, but does that make it a legal fact?
    There could well be a case that until legal challenges to the certification of results in swing states are plainly failing, then she would be overstepping her authority to act as determining the matter.

    Generally though, the rest of the world is watching in astonishment at the lack of professional civil servants at the top of the machine, and the ludicrous length of the transition process that a politicised bureaucracy entails.
    Just a thought.

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  10. Mr. Prosser says:

    @Not the IT Dept.: I think, based on her whiney letter, she listened to the feedback from Governor Lepetomane, “We have to protect our phoney-baloney jobs…”

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  11. Han says:

    But, again, having failed to do that, it’s unclear what intermediate information short of a Trump concession would have changed her stance. Until the election boards certified the results, it was just a reasonable certainty that Biden would win. Their certification made the outcome official, with only the pageantry of the Electoral College meeting and the Senate counting the votes remaining.

    I don’t think this is quite accurate though, there is no “official” outcome she can point to. Nearly half of the states, including New York and California, have yet to certify. I think it was Trump’s non-concession concession that allowed her to proceed. If he was actively fighting it instead of playing golf, I think she would have waited until the last possible minute.

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  12. Han says:

    @Han: No edit function. Please pretend the sentence immediately prior is the one with the link…

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  13. Matt says:

    @Han: Biden has been the “apparent winner” for a while now. Certifications are just a formality…

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  14. Chris says:

    Ms. Murphy’s letter was an abomination. It should have been a matter of fact government communication. Instead, it was a screed about her trials and tribulations and a defense of the late decision to proceed with the transition. Except for her transmitting the transition was now a thing, everything else in her letter could have been better saved for another day, in a tell all account, published in a raging rightwing media forum.

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  15. dazedandconfused says:

    @gVOR08: @gVOR08:

    I assure you I am not dedicated to finding it unclear. Insinuating dishonesty in my comment was a mistake.

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  16. Han says:

    @Matt: Oh I totally agree. I was just pointing out to James that the excuse he is allowing her that

    She simply waited for enough states to officially certify their outcomes to put Biden over the 270 Electoral vote hump.

    is not true, and that Michigan and Pennsylvania certifying their outcomes did not make anything more or less official than it had been the day before.

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  17. Grewgills says:

    @Han:
    To be fair, Michigan and Pennsylvania certifying their outcomes did effectively end any miniscule chance Trump’s challenges had. No one questions which way New York, or California, or any of the other states Biden won that were needed to get him to 270.
    She was/is a coward, but MI and PA did matter in her craven political calculations.

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  18. Jim Brown 32 says:

    This is simple. Ultimate authority for any decision anywhere in the Executive Branch ultimately lies with POTUS. Period. End of Story. Agency heads have delegated authority to make decisions–but the POTUS has the prerogative to claw it back and call the shot. Remember when Trump personally intervened in the discipline of the Navy Seal E-7? That is a pretty low level action for the freaking POTUS to get involved in. An E-7 is a mid-level non commissioned officer–there are Lieutenants and Captains that discipline E-7s every day across DOD.

    This lady–as trifling as she is–really had no flexibility to move forward with anything. That she lied to cover Trump says everything you need to know about her. She is a political appointee and not a career civil servant with employment protections– so she’s covering her bases for post-administration employment within the GOP ecosystem.

    Cut her a little slack. She’s not worth the angst and its misdirected at her anyway.

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  19. Matt says:

    @Jim Brown 32: Do you have an opinion on her behaviour in relation to the Trump hotel?

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  20. DrDaveT says:

    @JohnSF:

    at what point does her duty with regard to the constitutionally mandated succession override her duty of obedience to the current President?

    From the first instant. Civil servants’ oath of office is to the Constitution, not to the administration or the President. Pace @Jim Brown 32, while the President could in theory attempt to overturn her action, or issue an explicit order in advance to forbid it, she has zero duty to act on her understanding of his wishes absent such explicit orders. And given the phrasing of the law in question, she had a legal obligation to act regardless of any orders from Trump or other superiors, once there was an “apparent winner”.

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  21. DrDaveT says:

    @Jim Brown 32:

    Ultimate authority for any decision anywhere in the Executive Branch ultimately lies with POTUS. Period. End of Story.

    No. There is a higher appeal to the law, and to the Constitution.

    POTUS has no authority to order anyone to break the law. Not even members of the Executive Branch. Not even the armed forces of which he is Commander in Chief.

    We would not still remember and debate Lincoln suspending habeas corpus if that had been within his authority.

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  22. JohnSF says:

    @DrDaveT:
    Thank you.
    It’s an interestingly different perspective.
    In UK almost all civil servants swear no oaths whatsoever; they are simply bound by the law, and their service to the Crown.
    The Oath is sworn by some e.g. elected MPs, peers, privy councillors, (so minsiters are covered by those categories anyway), judges and magistrates, military (but not naval officers LOL), clergy of the established churches, certain officers of the Household e.g. Lord Steward, Lord Chamberlain, Earl Marshal, Master of the Horse.
    Oh yes, and Boy Scouts and Girl Guides LOL

    “I, name, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law. So help me God.”

    And that’s your lot.

    Except Privy Councillors have some interesting additions:
    eg

    You will in all things to be moved, treated and debated in Conscience; and will keep secret all matters committed and revealed unto you, or that shall be treated of secretly in Council.

    Privy Council proceedings are utterly secret.
    “This meeting never happened” is putting it mildly.

    But the question again is, legally speaking, when is the winner “apparent”?

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  23. Just nutha ignint cracker says:

    But the question again is, legally speaking, when is the winner “apparent”?

    Easy. When I say so. (Whoever “I” may be depending on the speaker. 😉 )

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  24. Blue Galangal says:

    Hello, she was terrified of Katie Porter’s whiteboard! 😀

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  25. Jim Brown 32 says:

    @Matt: Its the same principle. Trump operates similar to a mafia boss. Everyone is free to run their own racket as long as they support and don’t compete with (or step on) the Boss’s racket(s).

    This is how you get Pompeo humiliating himself in front of the world spouting off nonsense about smooth transition to a 2nd Trump Administration– He’s supporting the Boss’s racket.

    The dirty secret about the Executive Branch is that much of it’s behavior is at the discretion of the President. They get wide latitude for how they interpret the law. This is how Obama was able to do something like DACA—he simply said that Congress did not appropriate enough resources to deport everyone illegal and enforce the law universally. So, with the resources he did have–he would prioritize the group of people that we now know as DACA kids last in the queue to get deported. Absent Congress passing a law for how POTUS should prioritize deportation–Obama’s interpretation stood.

    Same with the GSA hotel lease and the transition “ascertainment”. Absent specific direction by Congress–the Executive Branch gets to make it’s own rule interpretations. When the POTUS is a crook–those rule interpretations are going to be shady AF. Under normal circumstances with normal Presidents–the GSA head would have acted in the spirit of the law and in the interest of Taxpayers. But since Trump is a crook–none of those Agency heads are going to get the leeway to step on any of Trump’s Rackets. They can otherwise function normally in other circumstances–but not when it comes to him.

    I have no question in my mind that she was advised on the proper courses of action by her civil servant staff–and it came down from the Top to shut up and color.

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  26. Jim Brown 32 says:

    @DrDaveT: This simply isn’t the case. There is room in the statue for interpretation–so there is no concrete law to be followed.

    Therefore, Trump did not order her to break the law. An Executive Branch agency cannot authorize an action contrary to what the POTUS authorizes unless that action is specifically laid out by Congress. Period.

    By your scenario–lets say she ‘ascertained’ that Biden was the winner. She signs off that she ‘ascertained’ that Biden won. This action then authorizes funds and other resources–ALSO CONTAINED WITHIN THE EXECUTIVE BRANCH RUN BY TRUMP–to be made available to the Biden team. There is no one in this scenario who takes action based on GSA’s ‘ascertainment’–who doesn’t work for someone who report to Trump.

    As I mentioned before–POTUS has the prerogative to interject themselves in any activity in the Executive Branch unless specifically constrained by Congress. The only scenario to remedy this would have been for Biden to file a lawsuit and have the Courts decide on the standard that rises to the level of ‘ascertainment’. After that happened, the GSA head could have signed off on the Transition and Trump could not lawfully order anyone involved in making the money and facilities available to Biden to do otherwise.

    Long term–if Congress wanted to guard against this scenario–they could simply take the process out of the Executive Branch and keep it in the Legislative Branch. Or they could define a standard which GSA must use to ‘ascertain’ the winner of Presidential elections.

    The good thing about Trump is he’s showing us where the holes in our system are. Whether we fix them our not–that’s on the voters demanding action from their Congresscritters.

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  27. Matt says:

    @Jim Brown 32: So are you fine with her being terminated for failing to do her job?

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  28. Jim Brown 32 says:

    @Matt: She appears to have extensive Federal acquisition experience…but was going to be axed as GSA head regardless because she’s part of the outgoing administration’s team. Thats just the way it works with appointees.

    Were she a career civil servant, I do not believe her actions are grounds for termination because of the ambiguity in the rule the Trump team exploited. POTUS has discretion in many activities and sometimes we like the way its used…as in the case of DACA. And sometimes we don’t as in this case.

    Assuming it wasn’t customary to replace appointees with changing Administrations…I would not be fine with firing her for not getting ahead of the President for a high interest item..unless she broke the law. Which she hadn’t…Trump made the face of violating a norm.
    The person that needed to be fired…Trump. Was fired.

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