ELECTION
Here are three things to look for during the Trump transition
Too early to tell whether the Constitution and federal law will determine what happens next
With the election settled on Tuesday night, we are onto the 11-weeks of transition to the next administration.
This is the second time Donald Trump and his team will go through this process of getting ready to govern, so we already have some clues. We know that during this period before the inauguration, they’ll be writing the orders to execute Trump’s promises and making thousands of decisions about whom will staff the incoming administration.
There are some other things we don’t know right now. Though it’s very early, here are three things to look for over the next several weeks.
How will the Biden administration handle the failure of the Trump transition team to sign MOUs?
Congress requires the General Services Administration (GSA) to begin planning and preparing resources for the potential of a presidential transition a year early — in this case November 2023. In order to access the GSA resources — as well as nearly $10 million in public funds, the transition team has to sign an agreement with the GSA and also with the White House. These so-called MOUs unlock those resources, but also require the team to abide by ethics and conflicts of interests practices, including limiting donations to $5,000 and disclosing donor names.
Trump’s transition team — overseen by Linda McMahon and Howard Lutnick — didn’t sign the MOUs before the election, meaning they aren’t yet eligible for the GSA support. I wrote about the risks of proceeding without an MOU for Rolling Stone in October.
To rectify this, the Trump team could now sign an MOU, possibly conforming to its stipulations that the GSA wouldn’t agree to before the election. Conversely, the Biden administration could also waive this requirement and proceed without an MOU. It could also adhere closely to the law and deny the Trump transition team the public funds and access to the GSA.
My money is on the first of these possibilities, but the chance that Trump will go at this alone, forgoing the support of the GSA, seems like a real possibility. The New York Times wrote about advice given to Trump to grant security clearances to his appointees without FBI conducting background checks. If Trump takes that advice, it seems likely he won’t be accepting the help of anyone in government ready to give it.
Who will lead the post-election Trump transition team?
Right now the ones making these decisions are former Small Business Administration administrator, Linda McMahon, and Cantor Fitzgerald CEO, Howard Lutnick, the co-chairs of the Trump transition team. They were named earlier in the fall to run pre-election transition planning. McMahon has been in charge of policy, while Lutnick has run the personnel shop.
Whether these two remain in charge is not altogether clear.
Recall in 2016, Governor Chris Christie was in charge of the pre-election transition work for Trump, but was fired just after the election.
It seems like something similar to that happens again this time. There’s already been grumbling in Trump’s world that Lutnick has shut them out. Politico quotes one Republican official who said: “Howard has gotten out way over his fucking skis on this.”
Based on this, I’ve speculated about whether the post-election transition will see the return of Trump son-in-law Jared Kushner to the fold. And, if wild speculation is your thing, remember former White House aide, Steve Bannon, was on the executive committee of the transition team in 2016 for Trump, and he’s now available, having just been released from prison.
Will President-elect Trump abide by constitutional one-president-at-a-time requirement?
Who is in charge of the Trump transition matters because it will determine which rules they follow and which they ignore. For example, the constitution establishes that the president-elect is just that — and nothing more — until the inauguration. In the arena of international affairs, this one-president-at-a-time tradition has meant that the incoming administration permit the sitting administration to continue to conduct diplomacy and set foreign policy until January 20.
Scholars Jeffrey Michaels and Andrew Payne have much to say about this in a 2022 article of Presidential Studies Quarterly. They argue that, irrespective of what the constitution has to say, it is a “political fiction” that the incoming administration isn’t involved in policy before the inauguration.
Trump seems to have taken this argument to heart. On the campaign trail this year, Trump frequently listed the things he’d do immediately after being elected, seeming to disregard the tradition. And, don’t forget, Michael Flynn was charged (and later pardoned) with lying to the FBI about his phone calls to Russian leaders during the transition.
