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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.