Senate Passes Bipartisan Bill to Strengthen Transition Team Ethics Requirements 

On Thursday the Senate passed a bipartisan bill that would clarify the duties of the General Services Administration during presidential changeovers as well as require presidential candidates to publicly release ethics plans for their transitions before the election. 

Sen. Ron Johnson, R-Wis., introduced the “2019 Presidential Transitions Enhancement Act” (S. 394) in February. Some of the provisions in the bill are a result of a complaint by President Trump’s team and others are an attempt to address additional obstacles that came up during the Obama-Trump transition. 

The bill would require GSA and presidential transition teams to enter into a memorandum of understanding that would outline the terms of the agency’s services for the duration of the transition. GSA would have to direct all third-party inquires for records to a representative in the transition team. Also, the bill would clarify the services GSA can provide for up to 60 days after the inauguration. The 2015 Presidential Transitions Improvement Act authorized services for up to 180 days after inauguration; however, the Trump team said that 60 days was sufficient.  

Additionally, the bill would require presidential candidates to create and release an ethics plan for their transition team prior to the election. Co-sponsors of this bipartisan measure are Sens. Thomas Carper, D-Del.; Maggie Hassan, D-N.H.; and Elizabeth Warren, D-Mass. 

In December 2017, the Senate Homeland Security and Governmental Affairs Committee, led by Johnson, received a complaint from Trump for America Inc., the president’s transition team. The complaint alleged that GSA gave documents unlawfully to Special Counsel Robert Mueller’s office.

Kory Langhofer, counsel for Trump for America Inc., wrote to the committee, “Misconduct in this matter demonstrates why investigators and government attorneys, who in many cases are not entirely neutral, should not be trusted to decide without proper oversight which records belonging to private parties are privileged.”

General Services Administration Deputy Counsel Lenny Loewentritt disputed the claims. He told Buzzfeed News that the Trump team was informed that “no expectation of privacy can be assumed” and information "would not be held back in any law enforcement" investigation.

The Homeland Security and Governmental Affairs committee conducted an investigation of the documents released to Mueller by reviewing 6,400 pages of documents related to the transition from GSA. In a request for the documents, Johnson wrote to GSA Administrator Emily Murphy that the allegation, “Could discourage future transitions from trusting GSA to secure its confidential information.”  

Currently, there is no requirement that GSA be completely transparent about the distribution of records, a committee report said. Also, there have been conflicting interpretations on how long GSA can support a team after inauguration. 

“Presidential transitions are huge undertakings,” said Kristine Simmons, vice president of government affairs at the nonprofit Partnership for Public Service. “Over the years, Congress has passed various laws to ensure that the federal government provides transition support on a nonpartisan basis. The bipartisan Presidential Transition Enhancement Act continues that tradition by clarifying existing laws and ensuring that it reflects best practices.”

The Congressional Budget Office estimates the bill will not have a significant impact on the cost of a transition. The only projected change is that the cost for staff and office space would decrease by less than $500,000 during a transition year. This would be due to the reduced period in which GSA could help a presidential team. 

Sean Moulton, senior policy analyst for the Project on Government Oversight, told Government Executive, “POGO is particularly pleased with the requirement for a public ethics plan.” Even though “transition team members are not federal employees,” he said, “their close work with federal agencies, their access to non-public information and their role in structuring a new administration demand that clear ethical standards be set and maintained.”

A previous version of the bill died in the 115th Congress. There is no House version yet, but both chambers have introduced the separate “Transition Team Ethics Improvement Act” (S. 338/H.R.964), which would bolster ethics requirements for transitions. This bill followed a Governmental Accountability Office report that found Trump’s team had a “lack of attention to ethics and disregard of ethics precedents set by previous administrations.”