Trump could make a Biden transition messy: Here's how

Trump's GSA is in charge of welcoming Biden's team before inauguration.

November 7, 2020, 12:48 PM

With Democrat Joe Biden the apparent winner of the election, all eyes will fall on President Donald Trump to concede. And what happens if he doesn’t?

One interesting wrinkle is the power of a federal agency most Americans have spent their lives ignoring: the General Services Administration.

The GSA enables the transition of power from one administration to another and controls the taxpayer money that pays for it.

Under a 1963 law, it's up to the GSA’s politically appointed administrator to decide when a winner is "ascertained." At that point, it opens the doors of U.S. federal agencies and provides operational funding to the president-elect and his team. Then, the incoming administration has just over two months to organize itself ahead of Jan. 20 Inauguration Day.

That the GSA chief, currently Emily Murphy, must "ascertain" who won the election doesn’t mean she gets to decide who is president; voters do that.

Murphy, who was appointed by Trump in 2017, has the power to decide when election results are evident enough to trigger a transition of power. And if Biden is the apparent winner in her judgment, Murphy’s GSA decides when his team would be given the keys to transition and the $9.9 million to pay to build a new administration, including the vetting of an entire new Cabinet.

"An ascertainment has not yet been made. GSA and its Administrator will continue to abide by, and fulfill, all requirements under the law," Pamela Pennington, GSA press secretary, said in a statement Saturday.

In a typical election year, that decision by GSA to initiate a transition might be made as soon as several credible news organizations declare a winner or after the loser concedes. The government wants to move quickly so the new candidate isn't still scrambling to organize itself when it finally takes over.

After the 2000 election, the Clinton-era GSA faced extraordinary pressure to provide GOP candidate George W. Bush access but didn’t do so until a Supreme Court ruling and Democrat Al Gore conceded.

“Every day counts in a transition, this year more than any transition since 1932. The formal transition process under law should begin quickly," said David Marchick, director of the Center for Presidential Transition at the Partnership for Public Service.

What is tricky, though, is that there’s no firm criteria spelled out in the law on how an apparent winner is "ascertained" by the GSA chief. The law makes clear it should be done based on substance and not politics so White House interference would be inappropriate. But the decision and the timing is at the discretion of the GSA administrator.

From the White House, Trump has pushed unsupported claims of voter fraud and that Democrats are "trying to steal an election." On Saturday, he issued a statement insisting "this election is far from over." Not all Republicans are on board, with his former chief of staff Mick Mulvaney saying he would "recommend" a peaceful transfer of power if Biden is declared the winner.

"I recommend that he accept a peaceful transition of power, which I think he would do absolutely anyway," Mulvaney told CNBC.

Republican Chris Christie, a Trump adviser and ABC contributor, said: "If there's evidence, we need to see it. And if there isn't, we need to stop indicting the system."

The General Services Administration Building is pictured in downtown Washington, April 4, 2012.
Kris Tripplaar/SIPA via USA Today Network

When asked if it was waiting for a concession by President Trump, Pennington pointed ABC to an earlier statement by GSA that the agency will act “once a winner is clear based on the process laid out in the Constitution."

GSA “has met all statutory requirements under the (Presidential Transition Act) for this election cycle and will continue to do so,” according to the statement.

While Murphy’s career is firmly aligned with the GOP, including time on Capitol Hill as a senior Republican aide, her experience is more government wonk than political partisan: She has decades of experience in government contracting and procurement and was GSA’s first chief acquisition officer under President George W. Bush.

Also, transition efforts are operating as usual so far despite Trump's heated rhetoric. As required by law and is usual practice, the government already has provided the Biden team office space to prepare for a possible transition -- some 22,000 square feet of space at the Commerce Department, left mostly empty this year as the pandemic moved efforts online.

An Oct. 1 agreement signed by Biden’s team and Trump’s chief of staff, Mark Meadows, spells out how Biden’s “agency review teams” would operate after the election should Biden win.

Leading Biden's transition team is Ted Kaufman, who spent more than two decades working on Biden's staff in the Senate before become elected himself as a Delaware senator. He also led Biden's transition as vice president in 2008.

Biden's team doesn't seem to be taking any chances that Trump could try to block the money it needs to pay for transition efforts. The transition team has led its own aggressive fundraising push, asking supporters who maxed out on donations to the campaign to contribute to the transition.

The stakes are high. Among the top priorities of any administration next year would be oversight of a coronavirus vaccine, including regulating its safety and efficacy and overseeing distribution once it's ready. Lawmakers have remained deadlocked on an economic relief package. And Biden has promised his voters a new approach on urgent domestic matters.

"The crises facing the country are severe — from a pandemic to an economic recession, climate change to racial injustice — and the transition team will continue preparing at full speed so that the Biden-Harris Administration can hit the ground running on Day One," Biden's transition team states on a website that was mostly empty on Friday, waiting on final election results.

In order to do that effectively, the next president will need people he trusts. If Biden is president, he’ll want to fill quickly the estimated 4,000 political jobs that oversee the nation’s 2 million federal workers so he can act quickly on his campaign promises to voters.

About 1,200 of these political appointees require Senate approval, which could prove to be major hurdle for a Biden administration is if the Senate remains under GOP control.

But that question won't be settled two Senate runoff races in Georgia are conducted in January.

ABC's Benjamin Siegel contributed to this report. ,