GSA Faces Pressure to Recognize Biden as Election Winner, Hand Over Keys to Formally Start Transition 

Two days after the news networks declared Joe Biden the winner of the presidential election, lawmakers, a leading transition resource center and others are calling on the General Services Administration to give the green light for Biden’s team to access certain crucial transition funds and resources such as briefing books prepared by career federal employees. 

The Electoral College is set to meet on December 14 and Inauguration Day is January 20, but the Trump campaign is continuing to contest the results of the election through lawsuits and requests for recounts as well as soliciting donations to fund its legal efforts. Jason Miller, senior adviser to Trump’s election campaign, told Fox Business on Monday that the word concede “is not even in our vocabulary right now.” A few Republicans (including former President George W. Bush) acknowledged Biden’s win and many foreign leaders have called to congratulate him. 

The Biden team hit the ground running by outlining its top policy priorities on Sunday and announcing its coronavirus advisory board on Monday. The transition process begins months before the election and laws have evolved over the last 20 years to provide candidates with more support before November, following President George W. Bush’s shortened transition due to the Florida recount and Supreme Court case. 

But GSA Administrator Emily Murphy, a political appointee, still needs to “ascertain” a winner before the Biden campaign can send teams into the agencies, obtain briefing books prepared mainly by career civil servants and access millions in funds. Also, the Defense Department will not engage with the Biden team until GSA acts, Inside Defense reported on Monday, which could be complicated by the fact that Trump fired Defense Secretary Mark Esper by tweet on Monday afternoon. 

“In accordance with the Presidential Transition Act of 1963, as amended, the GSA administrator ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution,” a GSA spokesperson previously told Government Executive. “The administrator’s ascertainment is done for the purposes of making services provided by the [transition act] available. Until an ascertainment is made, the statute allows for the Biden transition team to continue to receive the pre-elect services from the government (e.g., limited office space, computers, background investigations for security clearances). GSA has met all statutory requirements under the [transition act] for this election cycle and will continue to do so.”

Mary Gibert, federal transition coordinator, told colleagues on Friday (before the race was called) that GSA is “in a holding pattern and not to host people from Biden teams until there is ‘ascertainment,’” according to The Washington Post. She also “gave no specific timeline on when it was expected.” The Post also reported that the Biden team is preparing to take legal action if Murphy waits too long. 

Kate Shaw, law professor at Cardozo School of Law who worked in the White House Counsel’s office during the Obama administration, noted that a new general counsel was installed at GSA 10 days ago who came from the White House counsel’s office. It is unclear how, if at all, this could affect GSA’s ascertainment process. 

The Biden team is on track to raise over $7 million in funds for its transition, but transitions can cost between $10 million and $12 million, so the government funding is critical in addition to the availability of briefing materials and the opportunity to go into the departments and agencies to talk to people there, Martha Joynt Kumar, director of the nonprofit White House Transition Project, told Government Executive on Monday. 

On Sunday, the nonprofit Partnership for Public Service, a vital source of transition information and resources, released a statement calling for GSA to ascertain the election. 

The Biden team has to “recruit 4,000 political appointees, including 1,250 who require Senate confirmation; prepare a $4.7 trillion budget; implement a strong policy agenda; and assume leadership of a workforce of 2 million civilian employees and 2 million active duty and reserve troops,” the Partnership said. “While there will be legal disputes requiring adjudication, the outcome is sufficiently clear that the transition process must now begin...We urge the Trump administration to immediately begin the post-election transition process and the Biden team to take full advantage of the resources available under the Presidential Transition Act.”

Others have been making similar calls for action. 

“GSA Administrator Emily Murphy must begin the Biden transition without delay,” Rep. Gerry Connolly, D-Va., chairman of the House Oversight and Reform Subcommittee on Government Operations, said in a statement to Government Executive. “The administrator plays a critical role in the peaceful transfer of power and ensuring vital government services are not disrupted. This is all the more important amid a deadly pandemic. She should do the right thing.” 

“Now is the time for administration officials to do the right thing for the country,” tweeted Rep. Carolyn Maloney, D-N.Y., chairwoman of the House Oversight and Reform Committee, on Monday. “This decision by [Murphy] isn’t symbolic. It is slowing down the incoming [administration's] ability to deal with this pandemic and economic crisis.” 

Rep. Eric Swalwell, D-Calif., called the situation “a national disgrace” on Sunday night. 

“I’ve been through two presidential transitions. They’re complicated in the best case,” Brett McGurk, distinguished lecturer at Stanford University who served in national security roles in the George W. Bush, Obama and Trump administrations, tweeted on Sunday. “To deny basic access in the midst of a raging pandemic that’s now killing 1k Americans per day is not just petty—it endangers national security and public health.”

The Steady State, a group of national security officials from Democratic and Republican administrations who believe Trump is unfit for office, tried to galvanize the public’s attention on the issue. “Enough is enough. It is time for [Murphy] to formally authorize the Biden transition,” the group tweeted on Monday. “Call her office at 1-844-472-4111 and [retweet] this to spread the word.” Also, the watchdog group Citizens for Responsibility and Ethics in Washington made a Freedom of Information Act request for documents pertaining to GSA’s ascertainment. 

The Biden transition team did not respond for comment. 

The last time this was a major issue was during the 2000 election. GSA ended up waiting until December 14, 2000, to turn over the keys and funds, which was after the Supreme Court ruled in favor of the Republicans and Democratic candidate Al Gore had conceded.