US Congress may have created a boon for Trump in trying to Trump-proof the transition

Donald Trump can’t legally delay the next presidential transition the same way he did in 2020. But Congress’ attempt to protect the peaceful transfer of power from Trump-style disruptions may have inadvertently created new risks in the process.

Trump’s previous refusal to concede froze the ability of President Joe Biden’s transition team to gain access to federal funding and information for several weeks — a holdup that hobbled the new administration’s readiness on national security and its response to a raging Covid-19 pandemic.

To prevent a repeat, Congress passed a law in 2022 allowing multiple leading presidential candidates to get transition resources before a winner is determined in a contested election.

The rule change addressed one of the myriad problems that plagued the last transition. But the new law may grant Trump access to the federal resources and state secrets needed to start building a government without having to adhere to rules on fundraising, conflicts of interests and transparency — even if he loses.

Concerns have surfaced in recent weeks because the Trump transition committee is still weighing an unprecedented move: declining assistance from the federal government and the ethics rules attached to that aid. Even government watchdog groups that advocated for the change fear the country will venture into “uncharted territory” if Trump doesn’t sign key coordination agreements with the Biden administration.

“A plain reading of the law suggests that it will be hard for [the General Services Administration] or the other transition service providers to offer support to the Trump team without their abiding by the law,” said Max Stier, the CEO of the nonpartisan nonprofit Partnership for Public Service, which assists all parties with transition planning. But even without an agreement, he said, “the Biden team would likely feel a deep sense of responsibility to help a potential Trump-elect with essential transition planning and they would undoubtedly do all that they could, legally, to provide support.”

There are potential pitfalls in that scenario: Without a memorandum of understanding that sets rules for the transition, corporations or interest groups could donate unlimited sums of money to Trump’s transition without him having to disclose the sources. And declining the use of government office space, email addresses and cybersecurity resources would also make a potential Trump transition team more vulnerable to hacking or foreign surveillance.

The Trump transition did not respond to questions about its plans, but said in a statement to POLITICO last week that its lawyers “continue to constructively engage” with the Biden administration “regarding all agreements contemplated by the Presidential Transition Act.”

Despite these concerns, many lawmakers and outside experts insist Congress’ 2022 update to the Presidential Transition Act is a net-positive for democracy. It would have been unfair and dangerous, they argue, to continue saddling the political appointee who serves as GSA administrator — a job otherwise focused on managing the federal government’s vast real estate holdings — with the responsibility of declaring the winner of a contested election and handing out the proverbial keys.

Under the old rules, the head of the GSA had the responsibility of “ascertaining” a single winner of the presidential election solely for the purposes of kicking off the transition. But there was no guidance or criteria for making that determination. And while the agency is nominally independent in making that call, the old rules created a lot of space for White House meddling.

“GSA administrators are political appointees, so it’s a very difficult position to put someone in,” Stier said, noting the intense pressure then-GSA Administrator Emily Murphy faced in 2020 while “serving at the pleasure of an incumbent president who was arguing publicly that he had won.”

Murphy herself warned that there were “no procedures or standards for this process” when she finally determined that Biden was eligible, as the winner, to receive federal resources designated for the president-elect’s team — more than three weeks after the 2020 election. In a public letter announcing that determination, she implored Congress “to consider amendments” to the Presidential Transition Act outlining how her agency should proceed in the event of contested elections.

“I do not think that an agency charged with improving federal procurement and property management should place itself above the constitutionally-based election process,” Murphy wrote. Due to her role in the 2020 election dispute, she said she received a deluge of “threats online, by phone, and by mail directed at my safety, my family, my staff, and even my pets in an effort to coerce me into making this determination prematurely.”

“Anything that actually disrupts the ability of the incoming president to have all the preparation necessary to be a successful leader is something that strikes fear in our hearts.”

— Partnership for Public Service CEO Max Stier

Congress answered her call, tucking the “Presidential Transition Improvement Act” into its 2022 year-end spending bill. One of the bill’s sponsors, Sen. Jeanne Shaheen (D-N.H.), said she was “alarmed and concerned” by the 2020 transition and helped draft the legislation “to ensure this doesn’t happen again.”

As a result, explained Michael Thorning, the director of the structural democracy project at the Bipartisan Policy Center, there could still be another post-election stretch where courts and state governments hash out the lawful victor of the election. But now, thanks to the updated law, a pileup of election disputes won’t force the federal government into the type of standstill the country saw in 2020.

“Both candidates would continue to plan as if they were transitioning into the administration until that’s resolved, rather than pressing pause on the transition,” he said.

Yet some see the uncertainty the Trump camp is sowing now by not signing transition agreements with GSA and the White House as an example of the practical limits of the new law.

“The Trump transition might be playing a game of chicken with the Biden White House,” warned Heath Brown, an associate professor of public policy at CUNY’s John Jay College, “knowing that [the government] probably will have to allow them access to all of this information and resources, whether or not they sign it, because the consequence of holding them to not signing it after the election, should they win, would be really quite disastrous.”

A spokesperson for the GSA confirmed that the agency has “entered into an MOU with the Harris transition team outlining the terms for space and services” and is “actively working with the Trump transition team to complete an MOU.” And Saloni Sharma, a White House spokesperson, said they are also “actively working with the Trump transition team to complete a MOU” after reaching an agreement with Vice President Kamala Harris’ team. Harris’ transition team did not respond to a request for comment.

Stier acknowledges that the rule change could put a strain on career civil servants and would involve disclosing confidential information to people who may never take office. But the leader of the Partnership for Public Service still believes the risks of the old system were greater.

“Anything that actually disrupts the ability of the incoming president to have all the preparation necessary to be a successful leader is something that strikes fear in our hearts,” he said. “Our world is more dangerous, more fast-moving, and more complicated than it was in 2000 or 2020.”

Yet Brown, who wrote a book about the 2020 transition, cautioned that vulnerabilities to the process remain even if Trump’s team does ultimately sign federal agreements putting guardrails on his transition.

Despite GSA finding Biden to be the winner, he said, Trump administration officials engaged in obstruction that had real consequences. Stonewalling at the Office of Management and Budget delayed work on Biden’s first budget, and intelligence and defense officials refused to share “non-public intelligence threats to the country.” Echoing the findings of the 9/11 Commission, which determined that the monthslong delay in the 2000 transition contributed to the Bush administration being unprepared for the terrorist attack months later, the Biden team was fearful of facing a similar event.

These types of roadblocks, Brown said, could well happen again.

“It’s very, very difficult — nearly impossible — for Congress to legislate cooperation, and that means that many of the risks that we face in 2020 are still with us today,” he said.