America’s Treacherous Transition

The U.S. presidential election is finally over. Former Vice President Joseph R. Biden has won, but he will not assume office for another ten weeks. That prolonged transition period is both unusual in world politics and fraught with danger, especially when the incumbent refuses to accept that he has lost.

The United States is almost alone among major democracies in taking so long to install a new head of state. In France, the president takes office within ten days of the election. In the United Kingdom, the moving trucks arrive at 10 Downing Street the morning after the incumbent loses. The United States’ two and a half months looks good only in comparison to Mexico, where the transition lasts an arduous five months.

Even under ideal circumstances, presidential transitions constitute an uneasy interregnum in U.S. politics. As the lame-duck incumbent continues to exercise authority, the president-elect builds a team and fleshes out a vision for the next four years. The country is caught between the president it has and the president it will soon get. This time around, however, President Donald Trump has refused to accept the election outcome, and his team is not cooperating with the president-elect. As a result, the transition period will be more perilous than ever. Trump’s recalcitrance not only threatens American democracy but endangers national security.  That experience should motivate U.S. policymakers to take an entirely fresh look at the country’s approach to presidential transitions.

A TRANSITIONAL HISTORY

Some past presidential transitions have gone smoothly, even when power has shifted from one political party to another. The day after the 1992 election, then President-elect Bill Clinton urged “America’s friends and foes alike to recognize, as I do, that America has only one president at a time.” The outgoing president, George H. W. Bush, secured Clinton’s assent before signing a major strategic arms agreement with Russia some weeks later. The transition from George W. Bush to Barack Obama was even more seamless: both parties realized that transitions are vulnerable moments that countries or groups that wish the nation ill can exploit. Bush and Obama collaborated so closely that outgoing and incoming officials sat side by side at the very moment of the handover in case of a possible attack.

More often, though, presidential transitions are rocky, contentious affairs. Incumbents make decisions that their successors oppose: for example, Clinton signed the treaty establishing the International Criminal Court in December 2000, even though his successor had campaigned against it. Presidents-elect and their teams also frequently take steps to usurp the sitting president’s authority. Richard Nixon, for instance, torpedoed Lyndon Johnson’s efforts to hold a U.S.-Soviet summit meeting, and Donald Trump’s pick for national security adviser, Michael Flynn, famously sought to undermine the Obama administration’s policies in phone calls with the Russian ambassador in Washington.

The current presidential transition, however, will likely mark a new low. Trump claims that he has won the election and thus rejects the very notion of a transition to a new presidency. “There will be a smooth transition,” U.S. Secretary of State Mike Pompeo said earlier this week, “to a second Trump administration.” Underscoring that point, this week Trump overhauled the civilian leadership of the Pentagon, firing Secretary of Defense Mark Esper and other senior officials and moving to install loyalists in top positions at the National Security Agency and elsewhere. He also ordered his administration to prepare a new budget to present to Congress in February—after he will have left office. All these actions point to a transition that will be unlike any other in U.S. history: one in which the outgoing administration uses the power it still has to actively undermine its successor’s legitimacy and ability to swiftly and effectively assume power.

BIDEN’S OPTIONS

The American system does not include the concept of a caretaker government—one established solely to maintain the continuity of operations until a newly elected administration can step in. The country elects presidents to serve for four full years—no more, but also no less. The incoming Biden administration therefore has little choice but to wait Trump out, so long as the president’s behavior remains constitutional and in line with his statutory duties. There is no legal remedy that could force Trump to cooperate—other than his term’s definite end on January 20, 2021.

Transitions are too long to be reassuring, too short to be thorough, but just the right length to cause trouble.

Biden and his team should therefore resist the temptation to assume the powers of the presidency before that day. The president-elect and his team exercised remarkable discipline on this front before the election—scrupulously avoiding any behavior that suggested an attempt to undermine the Trump administration. The campaign, for instance, directed those working for and advising the former vice president not to meet with foreign government officials. The same rule now applies to those who are part of the formal transition. Maintaining this restraint will be important: jumping the gun on the Biden presidency would simply feed Trump’s narrative of Democratic duplicity. Even if the transition seems prolonged, Biden’s time to exercise power will come soon enough.

Acknowledging and respecting the powers of the presidency, however, doesn’t mean standing idly by. Many incoming presidents have publicly expressed differences with their predecessors, sometimes in the hope of influencing the outgoing administration’s actions in its final weeks. Biden is unlikely to hold much sway with Trump, but by introducing his new team and issuing a steady stream of policy pronouncements and briefings, Biden can signal to the American public and to the world how his administration will look and what it will do. Foreign capitals might then choose to wait for the new administration to take office rather than engage with a president who will leave in a matter of weeks. After all, despite the drama of Trump’s rhetoric, most of the executive actions remaining within his power are likely to be more annoying than catastrophic for the president-elect: Biden can reverse any executive order with the stroke of a pen, fire or reappoint officials as he pleases, and rescind any promise not signed into law.

THE END OF COOPERATION

The greater danger that Trump poses, however, is to the nuts and bolts of the transition process itself. Under laws designed to facilitate the formal handover of power, a relatively small Biden transition team that has been meeting since September is now ramping up into a full-scale operation. Biden has named so-called agency review teams that are supposed to meet with senior officials throughout the federal government in preparation for the new administration’s first day in office. The meetings provide incoming officials with the knowledge they need to make informed decisions on their first day in office.

Trump’s hostility, however, has thrown this formal process into doubt. Before the transition can legally begin, the head of the General Services Administration, Emily Murphy, must certify that the election has been decided. Murphy, a Trump appointee, has so far refused to do so, leaving the transition in limbo. Even when Murphy does begin the process, it is unlikely to be smooth. Senior administration officials may delay, if not outright refuse, to meet with the agency review teams. If Trump officials do agree to meet, they might not be forthcoming about what they know. They could refuse to give transition teams access to the documents they request or even destroy records (although the latter may constitute a federal crime). Even if Trump winds up permitting career officials to play the transition roles assigned to them by law, the Biden team still might not find them to be of much help, because the administration has taken such a haphazard and disorganized approach to policymaking.

Trump’s hostility cannot derail all of Biden’s efforts, however. The president-elect’s transition team can proceed with identifying people to fill the approximately 4,000 political appointee positions throughout the government, and it can open conversations with the Senate about the speedy confirmation of the 1,200 who will require it. The team can prepare some of Biden’s initial presidential decisions and plan for their rollout. It can schedule important meetings, calls, and visits, both at home and abroad.

The next ten weeks will be turbulent, and Trump’s intransigence will be to blame. A dedicated group of people with extensive experience in government is already working hard to ensure that Biden’s administration will be ready to take charge come January 20. Trump’s behavior, however, raises the question of whether the United States actually needs such a lengthy transition. Turning over a government is a complex affair even in the best of circumstances. But whether ten weeks is the right amount of time for it is not obvious. The interval is too short to fully staff an administration: that process takes many months and lasts well past inauguration day. But actually handing over power, which simply requires taking the oath of office, takes mere seconds, not ten weeks.

The drama and chaos of the current transition may well make this the right moment to consider shortening the time frame, perhaps by moving elections closer to the constitutionally mandated inauguration day. At ten weeks, presidential transitions are too long to be reassuring, too short to be thorough, but just the right length to cause trouble.