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Why the Presidential Transition Process Matters

A peaceful transfer of power — particularly from one political party to another — is the ultimate expression of the rule of law, says the Brennan Center’s Daniel I. Weiner.

Published: November 13, 2020

Since he was declared the winner of the 2020 elec­tion on Saturday, Pres­id­ent-Elect Joe Biden and his team have star­ted an informal trans­ition plan­ning process, which so far has included naming key staff members, outlining a policy agenda, and form­ing a Covid-19 advis­ory board. Pres­id­ent Donald Trump, however, has refused to concede and attemp­ted to cast doubt on the valid­ity of the elec­tion, claim­ing without evid­ence that there was wide­spread voter fraud and other irreg­u­lar­it­ies. His campaign has filed numer­ous merit­less lawsuits to chal­lenge the elec­tion results. 

Mean­while, many Repub­lican lead­ers in Congress and in the admin­is­tra­tion have yet to acknow­ledge the outcome of the elec­tion. In remarks on Tues­day, Secret­ary of State Mike Pompeo went as far to suggest that “there will be a smooth trans­ition to a second Trump admin­is­tra­tion.” (He later claimed to be joking.) And Emily W. Murphy, the Trump-appoin­ted head of the General Services Admin­is­tra­tion, has refused to form­ally recog­nize Biden as the elec­tion winner, delay­ing the start of the offi­cial pres­id­en­tial trans­ition process.

To place these devel­op­ments into context, the Bren­nan Center’s Daniel I. Weiner spoke with Tim Lau and explained the signi­fic­ance of a peace­ful trans­fer of power, the consequences of inad­equate pres­id­en­tial trans­itions, and the poten­tial for reform.

This inter­view has been edited for clar­ity and length.

What is the signi­fic­ance of a peace­ful trans­fer of power in a demo­cracy like the United States?

A peace­ful trans­fer of power — partic­u­larly from one polit­ical party to another — is, in my mind, the ulti­mate expres­sion of the rule of law and of a soci­ety governed by the law, not by indi­vidual rulers. Say other things that you want about him, but it was George Wash­ing­ton’s great contri­bu­tion to the Amer­ican polit­ical tradi­tion when he volun­tar­ily gave up the pres­id­ency. It estab­lished an unbroken tradi­tion of pres­id­ents yield­ing power, includ­ing to their bitter polit­ical oppon­ents. Even on the cusp of the Civil War, for example, James Buchanan never sugges­ted that Abra­ham Lincoln wasn’t entitled to become pres­id­ent after he won the elec­tion. That’s what’s so unpre­ced­en­ted with the current trans­ition process, right? There is no legal path for Donald Trump to remain pres­id­ent. None. The spec­tacle of an incum­bent pres­id­ent behav­ing this way is some­thing we haven’t seen before and is deeply corros­ive to our demo­cracy. 

Who are the key play­ers and insti­tu­tions in the pres­id­en­tial trans­ition, and why is it import­ant that it’s a nonpar­tisan process?

The pres­id­en­tial trans­ition process exists both on a symbolic level and on a prac­tical level. On the symbolic level, it has tremend­ous signi­fic­ance. The ritual of one pres­id­ent prepar­ing to cede power to another signi­fies that we are a law-abid­ing soci­ety in which the will of the voters governs.

But there is also a prac­tical level. The federal govern­ment of the United States is one of the largest organ­iz­a­tions in the world, and the process of trans­fer­ring control from one group of polit­ical actors to another is incred­ibly complex. There are thou­sands of real-time decisions that will have to be made from the moment the next pres­id­ent takes office. There are organ­iz­a­tional compet­en­cies that have to be developed. So, we’ve developed this long-stand­ing tradi­tion where as soon as the result of the elec­tion becomes appar­ent, the incum­bent admin­is­tra­tion — if the admin­is­tra­tion is chan­ging — under­takes to help the incom­ing admin­is­tra­tion take up the reins.

I think what the rest of the world sees is the symbolic signi­fic­ance, and that’s very import­ant for Amer­ica’s cred­ib­il­ity in the world and also for the confid­ence the Amer­ican people have in their govern­ment (which is why Pompeo’s joking is abso­lutely inex­cus­able). But in addi­tion, the next pres­id­ent has to be ready to govern on day one. And if there isn’t an adequate trans­ition, that puts national secur­ity at risk, that puts Amer­ican lives at risk — partic­u­larly given that the next pres­id­ent is going to have to wrestle with a global pandemic. And it just gener­ally is terrible for govern­ment oper­a­tions. As Pres­id­ent George W. Bush’s first chief of staff recently noted, the 9/11 Commis­sion found that the trun­cated trans­ition for the Bush admin­is­tra­tion from the Clin­ton admin­is­tra­tion was a contrib­ut­ing factor to our vulner­ab­il­ity to the terror­ist attacks. We’re play­ing with fire when we have the same thing happen­ing here.

What elements of the pres­id­en­tial trans­ition process, if any, are actu­ally enshrined in the Consti­tu­tion or in federal law?

As with so many core aspects of our govern­ment, the Consti­tu­tion says almost noth­ing about pres­id­en­tial trans­itions, other than that the next pres­id­ent is going to take office on Janu­ary 20.

The main federal stat­ute, the Pres­id­en­tial Trans­ition Act, was origin­ally passed in 1963. It sets forth certain processes and require­ments that govern both before and — if a new pres­id­ent is coming to power — after the elec­tion. The over­all process is managed by the General Services Admin­is­tra­tion (GSA). For present purposes, the most import­ant provi­sion is the one that appears to leave it to the GSA admin­is­trator to “ascer­tain” whether a new pres­id­ent and vice pres­id­ent have been elec­ted, which is the key to unlock­ing resources and access to federal agen­cies, includ­ing the all-import­ant national secur­ity brief­ings. Since the admin­is­trator was appoin­ted by and serves at the pleas­ure of the incum­bent pres­id­ent, there is an obvi­ous conflict of interest. Again, though, until now no GSA admin­is­trator has ever tried to delay a trans­ition in the wake of an elec­tion whose result was clear.

That’s basic­ally it. There’s noth­ing that says the incum­bent pres­id­ent must invite their successor to the White House or person­ally cooper­ate with them in any way. It’s all just tradi­tion — but again, tradi­tion that no outgo­ing admin­is­tra­tion has ever flouted to the extent we are seeing now.

Let’s discuss the current situ­ation. Almost two weeks after the elec­tion, the pres­id­ent has not yet acknow­ledged the outcome. Neither have key senior offi­cials like the vice pres­id­ent or the secret­ary of state. What kind of signal does that send to Amer­ic­ans and to the world?

Again, I really want to emphas­ize that these tactics aren’t going to be success­ful. They are not going to keep Joe Biden from becom­ing the next pres­id­ent. Accord­ing to the Depart­ment of Home­land Secur­ity’s Cyber­se­cur­ity and Infra­struc­ture Secur­ity Agency — which is part of the Trump admin­is­tra­tion — this elec­tion “was the most secure in Amer­ican history.” The result is crys­tal clear. 

But I think they are enorm­ously corros­ive to the found­a­tion of our soci­ety. The damage to our stand­ing in the world and to the confid­ence Amer­ic­ans can have in their govern­ment could be substan­tial.

In this regard, I really do want to focus on Secret­ary Pompeo. Recall that he already has viol­ated a long-stand­ing tradi­tion of secret­ar­ies of state stay­ing out of polit­ics by, for instance, speak­ing at the Repub­lican conven­tion. His state­ment about a Trump second term — regard­less of its intent — really does put him on par with, say, the foreign minis­ter of Belarus (a coun­try whose leader Pompeo himself has criti­cized for trying to cling to power by anti­demo­cratic means). He’s behav­ing like a regime thug, and that has done tremend­ous damage to the office of the secret­ary of state. It won’t change the result, but it’s still shame­ful.

I’d be remiss if I didn’t also mention Attor­ney General Barr. He made some outrageous state­ments prior to the elec­tion that seemed to indic­ate a will­ing­ness to inter­fere with voting (which would have been illegal). On Monday he issued a memo author­iz­ing Depart­ment of Justice (DOJ) prosec­utors to invest­ig­ate unsub­stan­ti­ated claims of voter fraud before the results of the elec­tion are certi­fied, which is a radical break from preced­ent.

This is almost certainly just postur­ing, as Bren­nan Center Vice Pres­id­ent for Demo­cracy Wendy Weiser recently explained. Without any evid­ence of wide­spread miscon­duct (which does not exist), there isn’t much DOJ can do. But the fact remains that Barr has presided over a level of politi­ciz­a­tion at DOJ that we simply haven’t seen in the modern era. It makes the Bush-era U.S. attor­ney firing scan­dal, which brought down a sitting attor­ney general and ruined his repu­ta­tion, look posit­ively tame.

What’s happen­ing with the trans­ition didn’t happen in a vacuum. We’ve seen a consist­ent effort to under­mine the legit­im­acy of our elec­tions.

In some ways, this is the culmin­a­tion of some­thing that’s been going on for the better part of a year, which is a sustained effort to cast doubt on the legit­im­acy of our elec­tions, really as a tactic for voter suppres­sion and ulti­mately to try to make certain people’s votes not count as much as other people’s votes. And you see it’s inev­it­ably the votes coming from predom­in­antly Black and brown communit­ies, urban communit­ies, that are some­how “suspect.” That’s been happen­ing since long before the elec­tion. It happened with the pres­id­ent’s threats to deploy troops to the polls (valid­ated by Barr) and to encour­age vigil­antes to go to the polls to “watch” elec­tion work­ers and voters. He’s tried to sow distrust in our system.

I think that there’s a really big differ­ence between want­ing our demo­cracy to work, but acknow­ledging very seri­ous prob­lems, and just a whole­sale effort to under­mine people’s basic faith in the demo­cratic process. The real­ity is that this elec­tion was an enorm­ous logist­ical achieve­ment. It actu­ally ran very smoothly, all things considered. And that’s due in large part to the tire­less work of elec­tion offi­cials, both Repub­lican and Demo­cratic. There’s no basis in real­ity to cast seri­ous doubt on the outcome. But Trump’s team has been tele­graph­ing that they would do exactly that for months if they lost, and now we are seeing it.

At the end of the day, though, the result just wasn’t that close. Biden is currently ahead in Pennsylvania by almost 60,000 votes (and of course his national lead is more than 5 million). At this point, as the very conser­vat­ive edit­or­ial board of the very conser­vat­ive Las Vegas Review Journal recently poin­ted out, Trump is doing his own support­ers a disser­vice by refus­ing to accept the inev­it­able.

What can be done to help ensure an account­able, trans­par­ent, and smooth trans­ition process in the future?

You might start by placing more of a clear-cut oblig­a­tion on incum­bent admin­is­tra­tions to provide inform­a­tion and other­wise cooper­ate with incom­ing admin­is­tra­tions by a certain date, instead of vague stat­utory language that appears to leave it up to this one agency offi­cial — though I should note that the Biden trans­ition team has said it is consid­er­ing litig­a­tion, and they prob­ably have pretty decent argu­ments that the statue, as it exists, does­n’t give the admin­is­trator of the GSA carte blanche to just ignore the result of an elec­tion. But clearer baseline rules would help.

Congress could theor­et­ic­ally say: Look, within two or three days of the elec­tion, every candid­ate who plaus­ibly could become pres­id­ent gets access to the inform­a­tion and the facil­it­ies neces­sary to accom­plish a trans­ition. Again, none of these prob­lems are completely new, right? During Bush v. Gore, the Clin­ton admin­is­tra­tion just decided to not give either the George W. Bush team or the Al Gore team access. And they waited until the final resol­u­tion of that dispute. But again, that led to a trun­cated trans­ition that may have negat­ively impacted our national secur­ity.

Beyond the narrow issue of pres­id­en­tial trans­itions, what is tran­spir­ing during the lame-duck period is just further proof that we need to codify some of the unwrit­ten rules that the Trump admin­is­tra­tion has discarded, along the lines recom­men­ded by the Bren­nan Center’s bipar­tisan task force. We need limits on White House inter­fer­ence with law enforce­ment, stronger imple­ment­a­tion of ethics rules, better person­nel prac­tices, and much more. And of course we also need to repair many of the very real prob­lems with our demo­cracy that have helped to under­mine confid­ence, which we can do by passing reforms like those in the land­mark For the People Act, also known as H.R. 1. These have got to be prior­it­ies for the next pres­id­ent and Congress, and I think they will be. We have a lot of work to do.