Reality is setting in among President-elect Joe Biden’s allies that the transition leading up to his January 20 inauguration may be more difficult than many inside Biden-world had assumed, two officials said Monday, with a legal fight now a possibility.
Biden told his allies over the weekend that he wanted to give Republicans – and President Donald Trump – a little time to accept the results of the election.
But the Trump-appointed General Services Administration administrator, Emily W. Murphy, whose job is to declare that there is a president-elect – a move that triggers the transition process – has not yet made that declaration. And the GSA issued a statement Monday inaccurately comparing Biden’s win to the George W. Bush vs. Al Gore election of 2000, in which the outcome at this stage was in doubt.
The statement triggered worry in Biden’s camp that it is facing a fight to get federal agencies to accept the legitimacy of the outcome of the 2020 election.
Biden allies will start escalating their rhetoric on the matter, making the case for the election’s legitimacy in television interviews and more, the officials said.
In a call with reporters Monday night, Biden transition officials would not rule out legal action against the GSA to try to force the beginning of the transition process, and said they have a “number of options.”
“We believe that it is clear that President-elect Biden and (Vice President-elect) Kamala Harris should be entitled to all GSA functions and all functions across government and we’re asking GSA administrator to make a proper ascertainment,” one official said.
The Biden officials complained that they are missing the $6.3 million Congress has appropriated to support the transition process. They also said transition officials are not able to access federal agencies or their employees, and do not have secure access to obtain and discuss classified information.
Democrats on Capitol Hill are furious with the delay, too. In a letter to Murphy, three House Democrats – Reps. Gerry Connolly of Virginia, Dina Titus of Nevada and Bill Pascrell of New Jersey – requested a briefing and told Murphy she was “undermining the urgent need for a prompt and effective transition of power in the midst of a global pandemic that must be focused on the safety and well-being of our citizens.”
To begin the transition process, Murphy needs to sign a letter to release funds to the Biden transition team through a process called ascertainment. This would mark the first formal acknowledgment from the Trump administration that Biden has in fact won the election, but it would also unlock access to national security tools to streamline background checks and additional funds to pay for training and incoming staff.
Yet more than 48 hours after the race was called by numerous news organizations, Murphy has not yet signed off. A GSA spokesperson declined to provide a specific timeline for when ascertainment would take place, a clear signal the agency won’t get ahead of the President, who has yet to admit he lost.
“An ascertainment has not yet been made,” GSA spokesperson Pamela Pennington told CNN in a statement Monday afternoon.
“There are no updates at this time and GSA’s position remains the same. An ascertainment has not yet been made. GSA and its administrator will continue to abide by, and fulfill, all requirements under the law and adhere to prior precedent established by the Clinton Administration in 2000,” Pennington added in an incorrect comparison to the 2000 election.
Pennington said in Sunday statement that the General Services Administration doesn’t pick who wins the election, but instead “ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.”
She declined to respond to CNN’s request for details on the threshold for an “apparent successful candidate.”
A transition expert familiar with the GSA told CNN that it has “always been a quick decision” whether to ascertain a successful candidate.
In the 2016 Trump election, the source said, it was made by the Obama administration the day after. In 2008, it was made the night of the election, around 1 a.m. The only time it was ever delayed, the source said, was in 2000, when Florida went to a mandatory recount and ascertainment was made the day after the Supreme Court case was decided.
Yet President George W. Bush said in a statement Sunday that the November 3 election “was fundamentally fair, its integrity will be upheld, and its outcome is clear.” And multiple Republican officials have issued statements calling Biden the “President-elect.”
Biden transition officials rejected the comparison to 2000 on their call with reporters Monday night.
“This is not 2000 by any stretch. That involved one state that had a 500 vote-plus margin, that had a number of different lines of contention of ballots that would altered the outcome of that election and therefore the entire Electoral College vote,” a Biden official said. “This is a very different situation,” the official added, noting that all major news outlets have projected that Biden is the race’s winner.