Transition of Power

Episode Notes

Transcript

Lawyer 2 Lawyer

Transition of Power

November 27, 2020

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Intro:  There’s nothing here that says that the GSA Administrator has to wait for the President to tell her that it’s time and as a matter of fact, the history and when you look at it, it looks like the reason congress put this designation with a GSA Administrator as opposed to — for example, with the President or the Chief of Staff or even the Attorney General is to separate the decision from politics and to have it be a ministerial decision about whether it’s possible for a reasonable person to look at the election and the circumstances and determine who is the apparent winner.

We’re being tested and without a kind of coordinated effort between the Trump people, the outgoing people and the incoming Biden people, things could quickly lose control.

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Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

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Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named “May it Please the Court” and have two books out titled “How to Get Sued” and “The Sled.”  Before we introduce today’s topic, we’d like to take this time to thank our sponsors LEX Reception and Blue Jay Legal. LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and 24/7 availability for law firms and attorneys.

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The Transition of Presidential Power is the process during which the president-elect of the United States prepares to take over the administration of the Federal Government of the United States from the incumbent President the peaceful transition of government has long been a hallmark of American Democracy. In what has become an unfortunately common refrain, 2020 has proven quite different as of the date of this recording November 18, 2020, President Trump has not yet conceded his loss in the recent presidential election instead making allegations of voter fraud. As such, the process of transferring power has not begun giving rise to concerns regarding national security, the economy and the government’s ability to properly address the effects of coronavirus and the recently discovered vaccines.

Well today on Lawyer 2 Lawyer, we’re going to explore the practical impacts of a delayed transfer of power from an uncooperative incumbent administration both for the incoming administration and the American people. We’ll see what lessons we can learn from the past and what options the Biden Administration may have going forward. To do that, we’ve got two great guests today our first guest is William C. Banks, Professor of Law and former Interim Dean from Syracuse University College of Law. He’s a teacher and scholar at Syracuse for more than four decades. Bill(ph) was the Founding Director of the Institute for National Security and Counterterrorism, now the Syracuse University Institute for Security Policy and Law and he’s also the chair of the ABA Standing Committee on law and National Security who has a podcast National Security Law Today available on the ABA website. Welcome to the show Bill.

William C. Banks:  It’s good to be with you, thank you.

Craig Williams:  And next up, we have Professor Leslie Gielow Jacobs. She is Director of the McGeorge School of Law Capital Center for Law & Policy. Over the years, Leslie has authored a substantial and important body of scholarship on constitutional doctrine, governance and National Security and particularly on government speech. Welcome to the show Leslie.

Leslie Gielow Jacobs:  Happy to be here.

Craig Williams:  Leslie, I wonder if you could start us out with kind of a background of how the Transition of Power happens between the incumbent and the incoming President how is the baton get handed off?

Leslie Gielow Jacobs:  Well, it used to be an informal process and it would depend upon the incumbent deciding to be nice about handing over the power but what we have now is a statute written in the 1960s. The Presidential Transition Act and that congress has made a decision that it wants to have a peaceful and efficient Transition of Power and so it provides for a number of different things to go on both before the election and then afterwards to Transition of Power. So we should be aware that despite the impasse we seem to find ourselves in now, a number of things have already happened that are required in that statute, which is things like a Transition Coordinating Council which is agency heads — well, career servants being told that they have to create information dossiers for the incoming President-elect and then succession planning sorts of things; office space designations and so all those things happen even before the election.

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But what we’re waiting for now and this is the point of contention is that the head of the general services administration needs by the statute to designate an apparent successful candidate and once that’s done, then all these things become available to the incoming president.

Craig Williams:  And Bill, how does the GSA make that determination?  I mean, right now as it sits, we’re doing a hand recount in Georgia. We haven’t yet had an electoral college vote. We really don’t yet have a President other than what the media says.

William C. Banks:  Yes. It’s quite a predicament and the GSA Director of course is someone that most people would never have heard of but she — it’s a woman in this case has a very prominent role. She’s waiting for a signal from President Trump himself. She will not act she has said until the President gives her the so-called “green light”. In another administration, and as Professor Jacobs said the tradition would be in modern times for the office of the Director of National Intelligence to say to the GSA Administrator through the White House that we have a body of intelligence that we can begin to transfer over to the incoming administration, let us know when to begin.

Well that beginning has not yet occurred so one of the most important things that incoming President — president-elects are used to receiving in advance of inauguration is called the President’s Daily Brief the PDB that hasn’t happened yet and it hasn’t happened yet because GSA hasn’t given the green light.

Craig Williams:  Well, Trump so far hasn’t indicated that the President’s Daily Briefing is of any — important to him. In fact, there’s a lot of apocryphal stories about that he doesn’t even pay attention to it. Leslie, do should we expect him to follow this or is there anything in the Transition Act that mandates these events to occur on a time frame?

Leslie Gielow Jacobs:  Well, I’m going to separate out whether the President cares about the daily briefing from whether it’s important for the president-elect to get it because I know that he probably thinks it’s very important. I mean the Daily Briefing is something different than what’s available to the public and so, it’s absolutely crucial that the incoming President be able to get that and get it as soon as possible?  But as far as whether there’s anything in the act itself — again, this is the nature of writing an act; it says “designate the apparent successful candidate” and so, there is history of the act and it says that congress was concerned about peaceful transitions. It was concerned about efficient and quick transitions and it didn’t think that this was going to be a difficult judgment.

In any cases really, unless you have an extraordinarily close situation of course we look at 2000 as possibly being that and we had a delay going on there. But it’s an interpretation of the words here, apparent successful candidate and you know, there’s nothing here that says that the GSA administrator has to wait for the President to tell her that it’s time. And as a matter of fact, the history and when you look at it, it looks like the reason congress put this designation with a GSA administrator as opposed to for example with the President or the Chief of Staff or even the Attorney General is to separate the decision from politics and to have it be a ministerial decision about whether it’s possible for a reasonable person to look at the election and the circumstances and determine who is the apparent winner.

Craig Williams:  How do we enforce this?

Leslie Gielow Jacobs:  Well it’s a tricky thing, as far as enforcing it. I happen to think there might well be ways to do it. I mean there is a Mandamus Act and it’s possible to go to a Federal Court and say “Order a government official to do something.”  There has to be a clear duty and some people might say there’s not a clear duty here. But I may also say that it’s a public relations problem as well and besides a huge diversion of resources. So, things that are possible to do may not be things that the incoming President wants to do. Again, the far better situation here is for the President who’s insisting upon not conceding and fine he doesn’t have to concede. But then he needs to lose support from other government officials who care about the orderly transition who might themselves be part of congress and want to uphold the intent of congress in an act like this. And so, I think that’s what we have to look for as opposed to a legal action.

Craig Williams:  And Bill, what are the national securities concerns that we’re facing here?

William C. Banks:  Just what I was thinking about as your last exchange went forward, that there are all kinds of political and other machinations that could determine whether or not the transition goes on in an orderly way or whether President-elect Biden receives the PDB.

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But in the background, it is a very complicated National Security posture of the United States. Given the way 2020 has unfolded for us in the United States you might think that the only thing that’s important in the world is the coronavirus and indeed it’s overriding in its importance for all of us. And that would indeed be an important part of the transition as the president-elect has said this week, he’s had a team of scientists ready to get to work on coronavirus transition. But they haven’t given access to the trump administration team or allowed them to share information, so the Biden team is sort of making it up as they go with their own materials. Perhaps more important, is that the world is out there and our adversaries whether you think of the Russians, the Chinese, the Iranians, the North Koreans, they’re all aware that this charade if you will or dance, or whatever you’d like to call it is going on here in the United States and that we’re more vulnerable as a nation right now; and as a National Security Apparatus than we have been at any time during the last four years.

There have been other times when National Security threats have emerged during period of transition throughout our history and we’ve had some very close calls. And indeed now, I think I saw news today that there’s evidence of an Iranian-based attack on U.S. property in Baghdad, Iraq. So, we’re being tested and without a kind of coordinated effort between the Trump people, the outgoing people and the incoming Biden people, things could quickly lose control.

Craig Williams:  Well Leslie, let’s go back to the Transition Act and talk about how President Trump’s litigation led by Attorney Giuliani is holding up this transfer and what we can expect to see as a result of this?  I mean, he’s pretty much been batted down so far.

Leslie Gielow Jacobs:  Yeah, he’s been batted down and what we can expect to see is they’ll keep trying until all the options go away. But as far as the President Transition Act, there’s nothing there that says that we have to wait or that the GAO administrator has to wait until all litigation is settled. It’s the apparent successful candidate and we have votes in the states and I will say they’re about to be certified. I’d say December 1 is the absolute latest that you’d be looking at and saying “Oh gosh, we don’t have enough certifications” but even without the certifications, these places are saying “We have a vote count and it’s what it is.”

And so, there’s nothing to say that the litigation matters. I will say that there is precedent(ph) in 2000 where the head of the GSA at that point was saying that litigation mattered but I just need to emphasize it was just so much different then. We were dealing with one state as opposed to dealing with a number of states in this instance and a vote margin that’s much bigger in the electoral college. And so, as I said before, I think what we have to look for is pressure to be brought to bear on GSA (ph) administrator to not wait certainly for a President concession but also not to wait until litigation’s over because that’s not the standard.

Craig Williams:  Well Bill, there’s been some opinion pieces I’ve seen where people have been holding forth claiming that there’s a need to put controls and laws in place in order to stop this from happening again. But what’s missing in the Transition Act that doesn’t allow this to be a lot more orderly than it is?

William C. Banks:  Well, I think that Leslie summarized the state of play with the Transition Act very well. You know, historically it’s been helpful, it was enacted in the wake of the assassination of President John F. Kennedy, that’s the magnitude of a National Security crisis that could prompt us to get our act together. But as Leslie said, in addition there’s a lot of behind-the-scenes work that’s been going on for months. The staffs of President-elect Biden and Mr. Trump have been meeting for the better part of six months. Once it became clear that Vice President Biden was to be the candidate to face President Trump, under the terms of the act and more generally, there have been cooperation between them to do some background work.

It’s also been reported that the president-elect has a considerable staff working on transition issues and has had that staff hundreds of people working over the last several months when the race remained very much in doubt just to be ready. And many of these people, fortunately for all of us have deep experience in government.

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Either served in the Obama Administration that’s true for most of them, I daresay or in the Bush or Clinton Administrations before that and are also very familiar with Vice President Biden’s deep experience in the area.

One of the things that’s perhaps most helpful here is that as Vice President for eight years, Joe Biden was deeply unmatched in the transition in 2008 and he was also certainly prepared had election gone differently in 2012 to assist an incoming Romney Administration, so he’s an old hand at this.

Craig Williams:  That sound like we’re maybe in better hands than we might think. Well before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors we’ll be right back.

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Craig Williams:  And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is William C. Banks Professor and former Interim Dean from Syracuse University College of Law and Leslie Jacobs, Director of the McGeorge School of Law Capital Center for Law & Policy. And before the break, we were talking about the transition and President-elect Biden’s deep experience in transitions. But Leslie, let’s talk about what happens if the transfer doesn’t happen soon?  What steps can Biden take?  What should he be doing?  What’s he not learning that he needs to be learning?  What are we afraid of?

Leslie Gielow Jacobs:  Well, I’m going to emphasize what Bill said which is we shouldn’t be as afraid as we might be. That is there is a lot going on, we have a very, very experienced person coming into the White House who knows about agencies, who knows about the presidency, who has gotten daily briefings. And so yes, it’s a handicap that he’s not getting the money he needs, he’s not getting the access he needs. And I’ve got to emphasize that another handicap is the messaging that’s going on, right?

It undercuts the facts that he’s coming in and that undercuts too, the idea that we have indeed facts that we can ascertain and that we have rules that exist and need to be followed consistently. And so, that’s just a big problem that’s going on, as far as what we’re learning, I mean a specific problem or perhaps we’re going to talk about this is the whole response to the pandemic. I’m going to say as Bill said as well, a natural disaster like a pandemic, it just presents so many opportunities for bad national security things to go on. And also, of course it threatens us in so many different ways, economically, health-wise and to be able to have a response to that, that’s what he needs to be doing.

But my understanding is and it sounds like indeed he’s doing everything he can to try to get up to speed but it’s just like having some balls and chains on your legs as you’re trying to run. You’re just not getting all the resources that you should have to be able to do the very best job to serve the public interest.

Craig Williams:  And I certainly want to turn to the COVID response and the issues there but the one question that I’ve seen arise again and again from our listeners and from social media. Bill, what happens if President Trump on January 20th says “I’m still the President, I’m not leaving the White House.”  Are we going to see the secret service drag him out?  What actually is going to happen?

William C. Banks:  Well, as a last-ditch measure. Yes, he would be escorted out of the White House. The constitution says that his term ends on January the 20th, so his term ends on January the 20th assuming the electoral college certifies President-elect Biden as the as the president-elect. So, it would be a national embarrassment, hugely embarrassing For President Trump in a real terrible outcome for all of us in the United States to have to witness that kind of spectacle. I assume that wiser heads will prevail upon the President in the meantime to make other plans for that period.

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I wouldn’t be surprised to see him go anything but quietly that is perhaps to — I’ve heard some say that he might host a competing inauguration down the street that would be truly outrageous but this President has done many things to garner attention of that nature before.

Craig Williams:  Hope springs eternal that it’ll be a smooth transition.

William C. Banks:  That’s right.

Craig Williams:  Well Leslie, you mentioned COVID so let’s turn to that and find out what’s happening with Biden. I mean, he’s amassed a team of scientists, he’s stepped up and even addressed it. He tried to issue some advice about wearing masks and so forth but now we have two vaccines that are rolling out.

Leslie Gielow Jacobs:  Well exactly and that’s why the president-elect needs to be in the loop. The difficulties of addressing a pandemic like this just can’t be understated even if we actually do have vaccines that look like they’re more successful than anybody thought. We’re dealing with a public health system that’s structured such of the states have primary responsibility for addressing public health. And so, the Federal Government serves as backup but how is it served for backup here?  It serves to back up by what funding this vaccine, by providing funds for testing, by providing stockpiles for supplies by giving all that sort of support.

But the Federal Government also then depends upon the states to be able to implement it. And so, we’ve got the Operational Warp Speed going on, we’ve got the task force that the Vice President is chairing, which apparently, he did have a conference with the governors on Monday talking about a strategy for distribution but not saying anything whatsoever about a new administration coming over and having to do it. And so, the President that’s coming in is going to be the one who is held responsible for how this distribution happens and so it’s very important that the President would be able to understand the details and we’ve got approval of the vaccine, it has to go through the FDA which is a federal agency. And we’re dealing with distribution of it, as I said, we’re dealing with different types of vaccines and different vulnerabilities for different populations.

We have to have public buy-in which is such a difficult thing as we know with vaccines. Masks have become a political thing, vaccines already are — either to be a part of that and try to manage, the messaging about getting these things out. And then as I said, managing the federal state dance of who’s going to do what and how are we going to accomplish a joint objective?  And so, you know, to have the president-elect outside these agencies and tasks force and warp speed things and not knowing the details of them is just a very difficult situation.

Craig Williams:  Bill, we have President Trump appearing at a recent press conference and some of the news reporters saying to him when are you going to concede?  What’s the importance of whether he concedes or not well?

William C. Banks: It’s not so much conceding that is important — that’s a symbolic importance of course but it’s allowing the important work of the transition to go forward. So, unleashing the GSA director to open the PDB and other aspects of the transition to President-elect Biden and his team who are itching to go to work. It’s been reported that the team is ever industrious and capable of staging work around so that they’ve been meeting off-site with members of the critical agencies, say at a coffee shop out on the street. They of course can’t discuss or share any classified information in those settings but they can talk about the work that’s going on and the work that needs to be done.

So, to some degree, those activities are going forward, so it’s not concession, it’s transition and the transition can go forward even if President Trump insists until his dying day that he won the election.

Craig Williams:  Yeah, I’m not really sure that he’s capable of conceding.

William C. Banks:  I’m not either.

Craig Williams:  Well, it looks like we’ve just about reached the end of our programs, it’s time to wrap up and get your final thoughts. But in this instance, I’m not really sure I want to ask for your final thoughts like we talked about earlier. I think what I want to do is ask if President-elect Biden is listening or anybody on his staff is listening. Leslie, what advice would you give him as you wrap up and — please also offer our listeners your contact information so they can reach out. I know you’ve got a long constitutional history and I’m very interested in what your advice is going to be.

Leslie Gielow Jacobs:  Well, sure, just so I don’t forget my contact information, I’m at University of Pacific McGeorge School of Law. We have a big old website and you can find me but my email is [email protected] and so as far as advice, I’d say just keep doing what you’re doing.

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Again the press reports make it look like the president-elect is working maybe not 24/7 but taking a little bit of sleep but otherwise assembling a huge experienced group of people who are doing their very best to figure out how to run all these various different agencies and what initiatives to take and how to get the information that they can in all sorts of possible ways.

I wish I could give them advice to try to get the President to retract because I should emphasize that it’s not just that the President hasn’t conceded but the press reports are that President is actually actively told on his agency heads not to share information or help with the transition. So, I don’t know how to overcome that but I think all the rest of the things are very, very positive things that are going on.

Craig Williams:  Good, thank you. Bill, the same question to you but perhaps also with a little bit of a twist here. What in history can we look at for President-elect Biden to turn to for advice that you might give him?

William C. Banks:  Yeah. Thank you and I’ll begin too. I’m reachable by email at wcbankslaw.syr.edu and there’s a lot of stuff on Google about me and the institute that I direct and the work that I continue to do. I think that the challenge facing President-elect Biden is in many ways, equivalent to the challenge it was facing President Franklin Delano Roosevelt when he began his first term, the challenges to our nation. The combination of public health consequences of the coronavirus and the devastating impact that it has had on our national and international economy is standing alone sufficient to make any President step back and take a deep breath before digging in.

I think in addition to that, what we witnessed in this campaign and then the election was perhaps the biggest test of our democracy certainly in any of our lifetimes. Maybe in a hundred years or more, the election was very fraught, the campaign was nasty on the part of President Trump and the members of our communities were shown themselves to be deeply divided. The outcome was incredibly close in most places and even now there’s resistance in some quarters to recognize the so-called legitimate victor here.

So, I think a lot of attention needs to be paid to just what Vice President Biden’s repeated refrains that his plan is to govern all of the people to try to bring us to some degree back together. We truly need to learn to talk with one another again to find common ground because this nation, I think is never certainly in the century has never been more divided than we are right now. So, the coronavirus and the economy are problems number one and two but perhaps the overarching problem is the division in our democracy that needs considerable healing.

I have an optimistic attitude about it and about Vice President Biden’s capabilities in that regard. I think he’s a decent, even-tempered man who is all-in on the very project that I just outlined and Kamala Harris is going to be a tremendous Vice President and I believe that the team that they’ll appoint and the civil service workers will rise up to important positions are cutout for this job but it’s daunting. And if you throw in that, a number of our national security challenges from abroad from the group that I identified before; the North Koreans, Chinese Russians and Iranians not to mention non-state terrorists, it’s a full-time job to run this country and there’s no doubt about it.

Craig Williams:  Right. Well, thank you. And bill in the beginning we talked about your podcast, where can our listeners find that?

William C. Banks:  This podcast is called National Security Law Today sponsored by the ABA standing committee on law and national security and it’s available on the website. It’s ambar.org/nslt. Thanks very much.

Craig Williams:  Great, thank you. Well as we wrap up, I’d like to thank both of our guests Bill Banks and Leslie Jacobs for joining us today. It was a pleasure having you both on the show.

Leslie Gielow Jacobs:  Happy to be here.

William C. Banks: It was great to be with you, thank you.

Craig Williams:  Thank you. Well for our listeners, if you’ve liked what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. When you want legal think Lawyer 2 Lawyer.

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