As Donald Trump refuses to concede, Joe Biden prepares to take power
Under normal circumstances, few Americans would know Emily Murphy’s name. The head of the General Services Administration (GSA) is the ultimate Washington bureaucrat, responsible for signing the leases and procuring the supplies that keep the Executive Branch running. “I am not here to garner headlines or make a name for myself,” she testified in 2017. “My goal is to do my part in making the federal government more efficient, effective and responsive to the American people.” The Senate unanimously confirmed her to her post, which she has held ever since.
But in the days after Joe Biden was determined to have won the presidential election, Murphy found herself at the center of the most tumultuous transfer of power in decades. Media outlets from the Associated Press to Fox News called Biden the winner on Nov. 7, assessing that despite the usual isolated irregularities and a smattering of lawsuits, it was mathematically impossible for Donald Trump to overcome his vote deficit in enough states to change the Electoral College result. But Trump has refused to concede, and has conjured fantasies of widespread fraud for which he has provided no proof. Taking their cues, nearly all Republican officials have refused to recognize Biden’s victory until Trump’s challenges are exhausted. And Murphy has so far declined to issue the letter, known as an “ascertainment,” that would formally allow the presidential transition to begin.
Until Murphy flips that switch, the transfer of power is in limbo. Under federal law, once the GSA’s ascertainment is issued, the incoming Administration receives millions of dollars in funds, suites of federal offices and temporary security clearances to handle classified information. Trump had access to all these things starting Nov. 9, 2016, the day after his election by far narrower margins in key states.
The orderly transfer of power has been a bedrock of American democracy from its founding in the 18th century, and the consequences of Trump’s standoff are far-reaching. His move to stall the handover poses a national-security risk: the 9/11 Commission Report found that the delayed transition in 2000 due to the Florida recount may have hampered the nation’s preparedness for a terrorist attack. The holdup impedes the President-elect’s ability to manage the ongoing COVID-19 pandemic and undermines the new Administration’s legitimacy among the 71 million Americans who voted to keep Trump in office. And it has sparked fears that Republicans are not merely humoring Trump until the election is certified, but gearing up to try to overturn the people’s will.
As Trump barricades himself in his presidential palace like a cut-rate caudillo, experts in both parties regard his petulant performance as the last throes of a tantrum, not a slow-motion coup. None of his actions to date violate the laws that control certification of election victory and the transfer of executive authority. But the drama at GSA is just a taste of what Trump can do on his way out. He fired the Defense Secretary via tweet on Nov. 9, the beginning of what could be a broader purge of officials perceived as insufficiently loyal. Over the final weeks of his presidency, he could issue Executive Orders and pardons, impose tariffs, make or unwind international agreements and destroy potentially embarrassing records. “Trump retains the powers of the presidency until noon on Jan. 20,” says Rosa Brooks, a Georgetown Law professor who convened a series of transition simulations earlier this year, “and the only meaningful limit on his ability to use those powers, frankly, is the degree to which members of his inner circle put pressure on him to cut it out–or not.”
While Trump’s allies stage stunt-filled press conferences, Biden’s team has sought to proceed as normally as possible. The President-elect is making policy speeches, staffing task forces, standing up a transition website and holding planning meetings via Zoom. Biden will take office in the midst of a historic array of challenges, and the decisions being made now could well determine the course of his presidency. The pandemic has entered its worst phase yet, the economic aid that has propped up American households and businesses is running dry, and the federal government will shut down if Congress doesn’t act by Dec. 11.
It’s a daunting to-do list. But first Biden–and America–must weather 10 more weeks of Trump-inflicted chaos. “I’m afraid it could be a long couple of months,” says Larry Hogan, the Republican governor of Maryland, one of a handful of senior Republicans to publicly disavow Trump’s unfounded election claims. Such rhetoric, Hogan says, “makes people question the integrity of the system, which is such a fundamental thing to our democratic process here in America. It’s embarrassing around the world. And it has people in America starting to believe in conspiracy theories that are not based in reality.”
A President who won’t concede, a party that can’t yet bring itself to abandon him, millions of voters caught in a collective delusion–it’s hard to gauge whether America is sliding toward a constitutional crisis or is suspended in farce. Even Trump’s backers aren’t sure what to make of it all: some sense he hasn’t come to terms with reality; others believe he’s posturing to save face. Trump is still in a fighting mood, says a person who speaks to him frequently, but his actions are also about positioning himself for what comes next, whether that’s launching a political action committee to play Republican kingmaker, preparing for a 2024 campaign or launching a media empire. “He can literally do anything he wants,” says former campaign manager Brad Parscale. “He’s loved by millions of people.”
Just four Republican Senators have congratulated Biden on his election. The rest have largely argued that the matter remains technically unsettled, and if the President believes the outcome is still uncertain, the court cases and state recounts should be allowed to play out. “I think we ought to quit all the hand-wringing and not act like this is extraordinary,” Senate majority leader Mitch McConnell said in his usual dispassionate tone, addressing reporters at a Capitol news conference on Nov. 10–a week after Election Day and three days after the race had been called. “We’re going to get through this period, and we’ll swear in the winner on Jan. 20, 2021, just like we have every four years since 1793.”
People close to McConnell, who has mastered the delicate art of managing Trump as well as any Republican in Washington, suspect he is trying to give the President and his supporters time to come to grips without feeling bullied. “No one thinks [Trump] has a strong legal case. That’s why they’re happy for him to present it,” a Republican operative tells TIME. “They know the inevitable. There is just not much incentive for them to come out right now” and say it. The same logic appeared to be behind a carefully worded directive issued by Attorney General William Barr, who authorized federal prosecutors to investigate “specific allegations” of voter fraud while warning against “specious, speculative, fanciful or far-fetched claims.” The memo prompted the Justice Department’s top election-crimes prosecutor to resign his post in protest.
The carefully calibrated message Republican officials hoped to send–that the process should be allowed to play out, even if it seemed destined to end in Biden’s taking office–wasn’t what Trump’s supporters heard. A YouGov/Economist survey, taken amid Trump’s fundraising blitz to “defend the election,” found that 86% of his supporters believe Biden was not the legitimate winner. Another poll conducted by Politico and Morning Consult found the percentage of Republicans who do not believe the election was free and fair has doubled since Election Day, to 70%.
For McConnell, all that may be secondary to a pair of pending Senate runoffs in Georgia that will determine whether he remains majority leader. Neither of the state’s GOP Senators, David Perdue and Kelly Loeffler, topped 50% in separate elections on Nov. 3, forcing both to compete in Jan. 5 runoffs against Democratic challengers Jon Ossoff and Raphael Warnock. Of the other 98 seats in the chamber, Republicans currently hold 50 while Democrats hold 48. Trump’s phantom claims of rampant voting irregularities pitted Georgia Republicans against one another, with Perdue and Loeffler calling on the GOP secretary of state to resign despite no evidence of fraud on his watch.
The Senate has its work cut out just getting to January. Before the election, McConnell tried to unite Senate Republicans behind a new COVID-19 relief package but failed in part because of mixed signals from the White House. Congress has been laboring to put together spending bills to keep the government running past the Dec. 11 expiration of funds. Both those tasks were complicated by the election standoff; the White House has reportedly instructed federal agencies to continue drafting a budget proposal for presentation in February.
It’s another sign that Trump, rather than working through the stages of grief, is digging in. The head of White House personnel reportedly put out word that any staffers caught job hunting would be fired. Trump seized the moment to settle scores: in addition to Defense Secretary Mark Esper, he pushed out top officials at the National Nuclear Security Administration, the Federal Energy Regulatory Commission and the U.S. Agency for International Development. Washington buzzed about the possible dismissals of the FBI director, Chris Wray, and CIA director, Gina Haspel. Some observers wondered whether Trump might follow through on his pre-election musings and try to get rid of prominent government scientists such as Dr. Anthony Fauci and Dr. Deborah Birx whose reality-based pandemic assessments have made him look bad.
The President has already begun issuing Executive Orders and rules that the incoming Administration opposes. He has proposed regulations that would make a large proportion of the civil service subject to political oversight, allow the sale of oil and gas permits in Alaska’s Arctic National Wildlife Refuge and require the renewal of regulations under the purview of the Health and Human Services Department. House Speaker Nancy Pelosi argued that last rule would burden the Food and Drug Administration at a time when the agency’s attention should be focused on a coronavirus vaccine. Liberals expect more last-minute deregulation is in the works.
The President has pushed to cement his foreign policies as well. Trump keeps piling sanctions on Iran, making it more difficult for Biden to undo them. He appears committed to carrying out the peace deal signed with the Taliban in Afghanistan, even though its forces continue to attack American allies and the civilian population. He has yet to sign an extension of the New START nuclear treaty with Russia, meaning the size of the arsenals of the world’s two largest nuclear powers would be unrestricted come February. And Trump was thought to be considering troop withdrawals from international hot spots.
Still ahead could be a final spate of pardons. It is common, if controversial, for outgoing Presidents to issue a handful as they leave office, but none has used his pardoning power as brazenly as Trump, according to Jack Goldsmith, a former George W. Bush Administration lawyer: nearly 90% of Trump’s pardons to date have gone to people with a personal or political connection to him. “The fact that he has just a few weeks left in power and the fact that he and his friends and family face potential legal exposure leads me to think he will issue a lot of self-serving pardons,” says Goldsmith, the co-author of After Trump: Reconstructing the Presidency. In the past, Trump has told staffers he would pardon them if they had to break the law to do his bidding, former aides say, and has publicly mused about pardoning himself. It’s not clear whether he has the power to do that, says Goldsmith, who sees a broad array of unilateral powers Trump might abuse on his way out, including the disclosure of sensitive national-security information. “Any hard power, any power he can exercise on his own from the Oval Office that he thinks will bring him some advantage, he will exercise.”
Transition experts say the process has worked in the past because outgoing Presidents have not wanted their legacies stained by lame-duck mischief. “Biden is the likely pilot of the plane that we’re all flying, and we all ought to want him to be ready to go on day one,” says Max Stier, president and CEO of the Partnership for Public Service. A President who doesn’t think in those terms has all kinds of ways to make trouble that will outlast his time in office.
Biden has ignored the chaos emanating from the White House and acted the part of the incoming President. The evening after the election was called, as joyful Democrats across the country celebrated in the streets, he gave a victory speech despite the lack of a traditional concession from his opponent. On Nov. 9, he took a briefing from the COVID-19 advisory board he had named, led by former surgeon general Vivek Murthy, former FDA commissioner David Kessler and Yale School of Medicine researcher Marcella Nunez-Smith. The team also included Rick Bright, who says he was dismissed from the Health and Human Services Department for resisting Trump’s push for hydroxychloroquine.
A transition website was posted. The Secret Service beefed up its protective protocols. Congratulatory calls from foreign leaders–even Trump-friendly ones such as Israel’s Benjamin Netanyahu, India’s Narendra Modi and Turkey’s Recep Tayyip Erdogan–trickled in without the help of the State Department, whose Secretary, Mike Pompeo, joked about a “smooth transition to a second Trump Administration.” Biden gave a speech on health care in front of a screen with an “Office of the President-Elect” logo and released a list of dozens of members of “agency review teams,” a shadow version of the teams that would get office space in Cabinet departments during a normal transition process. Trump’s “failure to recognize our win does not change the dynamic of what we’re able to do,” Biden said. “We’re going to be moving along in a consistent manner, putting together our Administration, our White House, reviewing who we’re going to pick for Cabinet positions, and nothing’s going to stop it.”
If Biden’s campaign has been an audition for the presidency, the transition effort is a dress rehearsal. “You can’t ignore the noise, but you can certainly proceed through it,” says Scott Mulhauser, a Democratic consultant and former Biden aide who remains close to the incoming President’s team. “You take on the legal fights and the obstruction as it comes, but you can’t let that distract from the business of preparing to govern. The reality is, at some point the Trump Administration will have to turn over the keys, whether they like it or not.”
The Biden campaign began its privately funded transition effort over the summer, creating policy committees that prepared recommendations. Biden, Vice President-elect Kamala Harris and their aides are meeting on Zoom and vetting potential appointees. The 16-member transition advisory board includes Cindy McCain, former Deputy Attorney General Sally Yates, Pete Buttigieg, International Brotherhood of Electrical Workers president Lonnie Stephenson and New Mexico Governor Michelle Lujan Grisham. “There are about 4,000 presidential appointees, and we are trying to get as many in on day one as possible,” says Felicia Wong, a transition-team member who serves as president and CEO of the progressive Roosevelt Institute. Over the coming weeks, she says, “the clarity of messaging is really important: this is what we’re here to do, this is what we’re going to do, these are the tools to do it, even given the uncertainty.”
Speaking for herself, not the transition effort, Wong hopes the new Administration will take quick executive action to reduce economic inequality, such as forgiving federally held student-loan debt and raising the minimum wage for federal contractors. Other progressives, realizing that a divided Congress derails their most ambitious plans, are looking at executive actions to address climate change. “No, there isn’t the ability to pass landmark climate legislation if McConnell chooses to shut it down at every turn,” says Varshini Prakash, executive director of the Sunrise Movement, “but there’s a lot Joe Biden can do.”
If Democrats had won in a landslide and gained unified control in Washington, an emboldened left would have pressured a Biden Administration to pursue progressive policies and name a liberal Cabinet. Most acknowledge that’s no longer realistic, viewing the chances of victory in both Georgia Senate runoffs as slim. Without the Senate, Democrats have little hope of dramatically expanding the Affordable Care Act or repealing Trump’s tax cuts. Instead, once Biden takes office, much may depend on his relationship with McConnell, who is viewed only slightly more favorably than Satan by most Democrats for his obstruction of Obama-era policies and his manipulation of Supreme Court vacancies. When Biden was Vice President, he was sometimes dispatched to cut deals with McConnell when other Democrats couldn’t, and usually succeeded, though some Democrats thought he gave up too much. If McConnell remains majority leader, he will see his task as keeping the new Democratic Administration from veering too far left in its policies and Cabinet picks, says his former aide Antonia Ferrier. “There is going to be a far less ambitious congressional agenda with Mitch McConnell as the majority leader of the Senate. That’s just a fact,” Ferrier says. “Senator McConnell and President-elect Biden have had a productive and respectful relationship for decades. They have the ability to negotiate with each other in an honest manner. It won’t be the progressive dream some on the left wanted, but that doesn’t mean it won’t be productive.”
The new Administration’s top priorities will surely be COVID-19 and the economy, but foreign affairs may be where Biden has the most latitude. Richard Haass, president of the Council on Foreign Relations, expects a Biden Administration to swiftly rejoin the World Health Organization and the Paris climate accord, and to pursue fresh versions of New START and the Iran nuclear deal. What will take more time is regaining U.S. credibility with the allies who have been ill-treated for the past four years, and re-establishing America’s reputation as a beacon of democratic values–particularly given the spectacle that’s currently unfolding. “Assuming we will get through this, it shows that yet again, this Administration has taken on our democratic norms but, in the end, failed,” Haass says. “There will be a tremendous sense of relief among the world’s democracies.” The way the transition is unfolding so far in Washington, they won’t be alone.
With reporting by Alana Abramson, Charlotte Alter, Brian Bennett, Tessa Berenson, Leslie Dickstein, Philip Elliott, Mariah Espada, W.J. Hennigan and Julia Zorthian
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