Walt Shaub: The Presidential Transition Meets Murphy's Law

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https://www.nybooks.com/daily/2020/11/13/the-presidential-transition-meets-murphys-law/

One senior official is charged with ensuring a peaceful transfer of power when there is an apparent election winner. The Trump appointee is jeopardizing all that.

Trump’s absurd insistence that he “WON THIS ELECTION, BY A LOT!” is easy enough to ignore. What is harder to ignore is what his appointee who runs the General Services Administration (GSA) is doing. By statute, the GSA’s administrator has responsibility for ascertaining “the apparent successful candidates for the office of President and Vice President.” This crucial ascertainment sets the government’s support for the transition effort in motion. When Congress enacted the transition law and later amended it seven times, it does not appear to have contemplated the risk that a partisan loyalist appointed by a corrupt president would refuse to fulfill this duty when the outcome of the election was clear. Enter GSA Administrator Emily Murphy.

Murphy is refusing to ascertain the apparent winner of the 2020 election as the president who appointed her disputes the clear outcome. She has not been especially transparent about her rationale. A spokesperson for her agency unhelpfully said, “an ascertainment has not yet been made” and “[the] Administrator will continue to abide by, and fulfill, all requirements under the law.” Murphy, it seems, is putting her loyalty to Trump over her duty to the American people.

Much is at stake. The Congressional Research Service has written that “[t]he smooth and orderly transfer of power generally is a notable feature of presidential transitions, and a testament to the legitimacy and durability of the electoral and democratic processes.” Murphy’s misconduct is dangerous.

Her ascertainment is the legally necessary precursor to the government’s assistance to the Biden-Harris Presidential Transition Team. It releases $6.3 million dollars to the team, which is funded by public and private money; a loan of expanded federal office space and equipment; access to government agencies that will begin sharing information and records about ongoing activities, plans and vulnerabilities; national security briefings for the president; and other support. The New York Times reports that “transition officials said her inaction was preventing Mr. Biden’s teams from moving into government offices, including secure facilities where they can discuss classified information.” The Office of the Director of National Intelligence recently confirmed that it is not providing national security briefings to the president-elect. The Defense Department has also reportedly indicated that it will not meet with the Biden-Harris transition team until Murphy formally affirms the apparent winner.

Murphy’s refusal comes as great news to hostile foreign powers. Experts have cautioned that authoritarian governments see a benefit in having public confidence in democracy undermined. But one of Trump’s own former national security experts, Fiona Hill, has warned: “The biggest risk to this election is not the Russians, it’s us.” Four former Secretaries of Homeland Security, Republican and Democratic (Tom Ridge, Michael Chertoff, Janet Napolitano, and Jeh Johnson), have now called on Murphy to issue the ascertainment of an apparent winner of the election, counseling: “At this period of heightened risk for our nation, we do not have a single day to spare to begin the transition. For the good of the nation, we must start now.”

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1. KR!