The General Services Administration hasn’t “ascertained” an election winner. Here’s what that means.
President-elect Joe Biden has named the members of his agency review team, the people on his transition team who are supposed to go into federal agencies to help prepare the incoming administration to take over, seamlessly, on Inauguration Day.
There’s just one problem: The Trump administration hasn’t allowed that process to start.
The stalled presidential transition could complicate the transfer of power from one administration to the next, undermining the work of the federal government and national security.
The General Services Administration (GSA), the federal agency that helps manage all the other federal agencies, has yet to recognize the transition. The 1963 Presidential Transition Act gives the GSA the responsibility to “ascertain” the “apparent successful candidates” before it can release funds to the transition team, and, most critically, give those agency review teams a chance to meet with their counterparts in the federal government to prepare for when the new administration takes over.
But current GSA administrator Emily Murphy, a Trump appointee, has not sent the required letter of ascertainment, putting the main components of the transition process on hold.
There are no real guidelines on what officially triggers the ascertainment, but in the past, a media projection and a concession speech have tended to do the trick. Of course, President Donald Trump has complicated that in 2020, refusing to concede the election and claiming that widespread voter fraud means he actually didn’t lose by tens of thousands of votes. The allegations the Trump team have presented so far haven’t withstood scrutiny, and most of their lawsuits have failed (and quickly). But the president is vowing to fight.
So the presidential transition is stuck in a sort of limbo right now. The Biden-Harris transition team — which includes dozens of individuals with deep experience in government — is mobilizing, even if their counterparts in the administration cannot yet. But the delays still could harm the transition and disadvantage the Biden-Harris administration.
“It is contrary to the peaceful transition of power and it will ultimately have an impact — not on just the Biden administration, but it really is problematic from a national security and homeland security perspective,” Chris Lu, former deputy secretary of labor during the Obama administration and the executive director of the Obama-Biden transition, told me.
Trump’s intransigence is already undermining faith in democratic institutions, but here it could also weaken national security preparedness — and as the coronavirus pandemic spirals to a new level of crisis. How serious these consequences could be will depend on how long this delay persists.
“We’re facing extraordinary challenges as a country, from the pandemic to the economic difficulties that are arising from it, to racial equity issues — and those are the things we know about,” Max Stier, president and CEO of the Partnership for Public Service, told me. “And we don’t know what we don’t know. There are undoubtedly other challenges on the horizon.”
“For our government to operate effectively,” he added, “we need to have a President-elect Biden ready to go on day one.”
The last time this happened was 2000. But this is not 2000.
The last delay in a presidential transition happened after the 2000 election, when George W. Bush’s victory over Al Gore came down to Florida and there wasn’t a clear winner until the Supreme Court weighed in on December 12 of that year.
David J. Barram, who served as GSA administrator from 1996 to 2000, told me he remembers everything happening in quick succession after that decision came down: Al Gore conceded on December 13, and the GSA ascertained Bush as the winner on December 14.
Members of the Trump administration and allies of the president have cited the 2000 election as justification for the delayed transition. The GSA has also cited the 2000 election as “prior precedent” in a statement to NPR. (The GSA did not return Vox’s request for comment.)
But in 2000, 537 votes separated Bush and Gore in Florida, a single state that would determine the outcome of the Electoral College. Biden, by contrast, is up by thousands of votes in a few states that he needs to win, making it extraordinarily unlikely that any recount outcome will change in the handful of states Trump would need to win the Electoral College.
So the delay in 2000 made a little more sense, and even though the GSA delayed ascertainment, President Bill Clinton had at least authorized Bush to see the President’s Daily Briefing, a top-level intelligence briefing, so Bush could prepare in case he did win. (Gore, as veep, already had access.) So far, Trump hasn’t authorized any national security briefings, though at least one Republican senator has said he sees “nothing wrong” with Biden receiving briefings.
It will probably take more pressure from Republicans, who have so far largely defended the president. As one senior GOP official put it to the Washington Post earlier this week, “What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change.” But capriciously delaying a presidential transition is an example of the type of harm that can be done.
The transition delay is most alarming for national security and the Covid-19 response
Even though the GSA hasn’t ascertained the election yet, the law does require the current administration to prepare for a presidential transition no matter what, so preparations for a possible transition have already begun.
But the GSA ascertainment allows for the transfer to begin in earnest: It frees up $6.3 million in funds to the Biden-Harris team, provides additional office space and equipment, and, most critically, allows the Biden-Harris transition to get briefings and meet with their counterparts across the federal government, from the Department of Education to the State Department.
And without the transition formally beginning, Biden’s incoming national security team is also not being briefed. Biden, too, is not getting intelligence updates or the president’s daily brief, a fact he confirmed this week. It may also delay the security clearance process for incoming officials. Biden transition officials said it could also deny Biden State Department-facilitated calls with foreign leaders, though world leaders have already begun reaching out to the president-elect.
“This is pretty damn serious,” Elaine C. Kamarck, senior fellow in the Governance Studies program at Brookings Institution, told me. “If there is a 9/11 brewing in the world right now, Trump’s temper tantrum in not conceding is basically putting the country in great danger.”
Biden comes into the office of the presidency with deep executive experience, along with many members of the transition team who might have served not that long ago in the Obama administration. Particularly on the domestic side, the Biden administration is probably more prepared than most. But denying the incoming commander in chief a general understanding of potential threats undermines America’s safety more broadly.
“The big danger is not having the president-elect fully read into the nation’s secrets,” Kamarck said.
This isn’t completely hypothetical. The 9/11 Commission Report found that Bush’s truncated transition period in 2000 “hampered” the administration in placing key personnel in national security positions and obtaining Senate confirmation.
Among the many recommendations in the report was to “minimize as much as possible the disruption of national security policymaking during the change of administrations by accelerating the process for national security appointments,” by taking steps such as beginning to obtain security clearances after the election and briefing the president-elect.
And that’s sort of the bare minimum; the closer the cooperation and coordination, the more seamless the handover of the national security apparatus, which is, in its own way, precarious. As Martha Joynt Kumar, director of the nonpartisan White House Transition Project, wrote in her book Before the Oath: How George W. Bush and Barack Obama Managed a Transfer of Power, during the Bush-Obama transition, US officials became aware of a credible terror threat against Obama’s inauguration in 2009. The two sides had to quickly coordinate — Obama’s team still on the outside, Bush’s team on the inside — knowing the roles would be reversed in hours.
“That important and effective discussion could not have taken place if both sides had not dedicated a significant amount of staff and resources preparing for President Obama’s entry into office,” Kumar writes. “At the same time, it remained unclear just what would have happened if the assault had occurred during the point of transition.”
The United States is also in the grip of the deadly Covid-19 pandemic. Biden will inherit Operation Warp Speed, the Trump administration’s billion-dollar public-private initiative to finance and distribute a vaccine. As Vox’s Dylan Scott has written, Operation Warp Speed is an “unprecedented mobilization” that involves the US government pouring billions into research and development, and to pre-manufacture vaccines so they can be more rapidly distributed once they’re approved.
Operation Warp Speed has been likened to a military operation, and Biden will almost certainly be in charge of overseeing it. Biden has named a Covid-19 Task Force, but a delay in the ascertainment has prevented Biden’s transition team from meeting with officials in charge of Operation Warp Speed or any of the administration’s Covid-19 response.
“We’ve got three crises: We’ve got the pandemic, the economy, and racial justice. All of them have to be dealt with,” Kumar told me. “And in order to do that, they need to be dealt with early. Particularly, the pandemic is his No. 1 priority.”
As unideal as this situation is, though, the career federal civil servants who are carrying out the day-to-day functions of the federal government right now will still be in their positions when the administration changes hands. Their knowledge and experience will help maintain continuity of government and provide stability.
And the Biden-Harris transition is more equipped and prepared and experienced than most, making them more capable of dealing with this unfortunate, but not all that surprising, outcome.
Biden knows his way around the federal government, and though it feels like a lifetime, it’s only been four years since he was last in the executive branch. Many of the members of his transition’s agency review teams have past government experience, including in that actually not-so-long-ago Obama-Biden administration. Biden has already made it clear he’s preparing to take office and moving ahead, including on Covid-19, with or without the help of the Trump administration.
“Well, look, access to classified information is useful, but I’m not in a position to make any decisions on those issues anyway,” Biden told reporters Tuesday. “There’s one, as I said, one president at a time, and he will be president until January 20th. It would be nice to have it, but it’s not critical. So, we’re just going to proceed the way we have. We’re going to do exactly what we’d be doing if he had conceded and said we’ve won, which we have, and so there’s nothing really changing.”
The Biden administration has incredible challenges ahead. America faces a raging pandemic, an economic crisis, a climate crisis, a racial justice crisis, and now, an ever-growing crisis of faith in our democracy. Trump’s transition delays will exacerbate these national emergencies by undermining the incoming president — and, by extension, the American people.
How great the damage will be ultimately depends on how long the transition stalls. “Have presidents come in without this transition? Absolutely,” Denise Turner Roth, who served as GSA administrator from 2015 to 2017 and “ascertained” Trump as the winner in 2016, told me.
“And were they better off? I think that would be far-fetched. It’s always better off to have a plan. Instead of starting from the beginning and starting from scratch, starting from a point of knowing and being able to hit the ground running. That has a great deal of value.”
Author: Jen Kirby
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