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I'm confident that we're seeing career people throughout the government preparing transition memos probably a lot like I saw in 2012.
Again, when you're in government, this is frankly your best opportunity to really make a detailed case for what you think the right policy should be.
It's the Lawfare Podcast, national security and the 2024 election.
I'm Benjamin Wittes, Lawfare's Editor-in-Chief with Lawfare Senior Editor, Scott R. Anderson, Brookings Governance Studies Senior Fellow, Elaine K. Mark, and Brookings Visiting Fellow and Director of the Katzmann Institute, Katherine Dunn-Tempas, along with Lawfare Executive Editor, Natalie Orpet.
It's a very tense time for the people who want to work in the government.And by the way, there's a parallel operation going on, which is the inauguration and all of that stuff, which a lot of people work on it too.
So it's a very complicated and very tense time.
In a live recording on October 29th, we discussed what occurs during a normal presidential transition, what went wrong in 2000, and how presidential candidates Harris and Trump have begun to prepare for the transition that will soon be underway.
So it hasn't happened very often where the vice president has then become the president right away.
And I actually think that for many reasons, this is sort of the best case scenario for the country in the sense that there will be a great deal of continuity.
Welcome to the final episode of Lawfare Live election coverage.Not the final one because we've run out of things to talk about, not the final one because the election is getting any less interesting.
We could do this all year, but the thing is the election is happening on Tuesday and covering the election after it happens. is just not a good idea.
I'm Benjamin Wittes, and I'm here with Scott Anderson, Natalie Orpet, Katie Dunn-Tempas, and we will be joined by Elaine K. Mark in due course.We are talking today about residential transitions, when they are normal, when they are
not normal when they are wild and woolly.And we're going to get right into it.
I want to start, Scott, with the question that we're we've started almost every one of these discussions with, which is just how is this year different from four years ago in the presidential transition department?
What you know, to what extent is the landscape the same, or to what extent have there been changes?
There have been pretty substantial changes on a number of fronts, but probably the most notable change is really an inversion of circumstance, I think.
In 2020, we had a case where because of purported concerns about the election, I think that were pretty clearly false at any point pretty shortly after election day itself.But nonetheless, the Trump administration essentially declined to allow in the
president-elect and vice president-elect and their transition team into the system that is set up to allow for the institutional transition to facilitate it.
They refuse to designate them, to recognize them as essentially the president-elect and vice president-elect to begin that process. This year, we have kind of an inversion of that process.
We have a system that by Congress has actually opened up substantially, making transition more available in the context of a variety of sorts of disputes, which we'll get to a little later.
I think once we kind of dig into a little bit what a transition has traditionally looked like and looked like a little bit. and do a little bit more of the history before we jump into these changes.
But the broad tenor of the changes was to make transition more broadly available, to take away that discretion to withhold access to transition to various candidates.
But we now are in a state where the Trump administration isn't even taking those basic steps to set up the kind of pre-election steps of that transition process.
It is voluntarily not participating because of certain requirements and disclosures that will be required to participate in that process.So again, it's almost an inversion, whereas in 2020, we had an executive branch trying to keep somebody out.
This year, we have the executive branch opening the doors in the Trump campaign, essentially saying, no, thank you, at least so far, although I suspect at some point that that might adjust a little bit.
All right, so let's talk a little bit before we get into the current moment about the history of transitions.Katie, it used to be the transition was that one president walked out the door and another president walked in.
and there wasn't really a formal transition process.Now we have a kind of elaborate dance that has some statutory elements, some very formal elements, and some normative elements.
How did we get there, and which elements of the transition are kind of written in stone, and which elements are just kind of the way we do things?
Yeah, that's a good question because it's definitely not intuitive.It used to be the period from election to inauguration was November to March.It got moved up to January.
And it wasn't until John F. Kennedy, who became president and within a short time of becoming president, he had the Bay of Pigs disaster.
He was also a president-elect that called on people like Richard Neustadt and other former government individuals to kind of get some briefings about how government works.He actually wanted to learn.
Remember, he was a senator, a junior senator, hadn't worked in government a lot.He wanted to understand what he was getting into as president.So he just sort of ad hoc invited people to give him briefings.
So after he became president, the Bay of Pigs disaster happens.And he thinks seriously about this and works with Congress.And for the first time in American history, something called the Presidential Transition Act passes in 1963.
And that was the first time where they really thought there was a role for the government to provide resources to the president elect and the vice president, that they should help them during this roughly 75 day period where they're trying to hire personnel,
where they're prioritizing personnel, I'm sorry, policy measures, thinking about executive orders.They're also thinking about what the president elect will do each day from election to inauguration.
It's an important time period in which they can emphasize priorities and key constituencies.
And the fourth thing they typically do in a normal transition is work on agency transitions and getting memos together to think about what they're gonna do once they assume power on January 20th.
And since the passage of the Presidential Transition Act, it wasn't until 2000 that there were amendments to the Act.Subsequently, there were more amendments in 2010 and in the 17s and 18s.
And basically what has happened is it's become more professionalized and there are more services provided to the candidates. the president-elect and the vice president.
So now, a full 12 months out, the GSA, last November, the GSA was putting together a transition directory and providing reports and summaries of resources for the incoming transition teams that would happen several months later.
Six months out, the president himself appoints a presidential White House Coordinating Council, of which the chief of staff is the head of.And again, they're coordinating with all the agencies and telling them to get ready for a transition.
to start to prepare reports.It's a very rigorous organized process.Again, it starts a year out and then six months with the president's coordinating council.And then after the after the conventions, both candidates get resources right away.
So after 2010, there was a set of amendments that said we're not going to wait till after the election to help these individuals. We are starting to help these people about to get ready for this really critical period in American politics.
We're going to help them after they're formally nominated.
So after the conventions, both the Trump and the Harris campaigns received office space, technology support, and the opportunity to start to vet some of their personnel and get ready if they win.The next tranche of resources happens after
President-elect is ascertained and they are indeed declared the winner.And then another huge trance of resources is given to them.I would say the most important set of resources is that they then
have access to the federal government and they can get briefings across the federal government from civil servants.And that's critical.If you're a new president, you need to know in a particular agency like EPA, what's boiling over?
What are the important issues?When I get in office on January 20th, what do I need to be worrying about?
And so I really think that that lasts, that period from election day until January 20th is really the most critical time, but it's actually important the entire time.They need to start getting
Getting things organized, there's roughly 4,000 presidential appointments.Of the 4,000, roughly 1,340 require Senate confirmation.So this is a massive undertaking.No other countries do this.
We basically, if you think of our personnel, executive branch personnel, it's like a pyramid.We lop off the top of the pyramid every four or eight years.Any business would think that was insane.Other countries don't do this.
They have a much higher percentage of permanent civil servants so that they don't need to fill all these appointments when there's a change in government.
So there are a few specific matters related to that.They don't just not lop off as much of the pyramid.They have a much shorter time between when the winner of the election becomes clear and when that person takes government.
So the British elected the Labour Party on July 4th. And, you know, Keir Starmer walked into 10 Downing Street two days later, or something.The elapsed time is very brief.Why do we still have such a long period of time?
Is it a function of the number of personnel?Or is the number of personnel a function of the amount of time we have?And so we have to fill it up.And so we create more and more, you know, things for a transition to do.
I would actually argue that there's not enough time.I mean, if you look back on in history, you know, I mentioned the Bay of Pigs, Then remember Clinton's first term, you had the bombing of the World Trade Center.Then you had Black Hawk Down, 9-11.
The 9-11 Commission actually issued a report saying that they had less than half of their national security officials were confirmed by that point.
And so they put in their report that going forward, there should be a priority on national security confirmations in order to potentially avoid another disaster.
The Miller Center at the University of Virginia has a project called the First Year Project, where they identify all of the missteps and sometimes crises that occur during that first year.So if anything, I would say that the 75 day
you know, 11-week period is not long enough.I actually don't think it's that long.But I see what you're saying, if other countries can do it this way.
But I just think other countries have such a smaller percentage of appointees, and that makes a huge difference.And I think that having this sort of interregnum does allow for a peaceful transfer of power.
And I realize that recent history is not supporting that statement.But I think, generally speaking, it's been a rather seamless process until you get to maybe 2000.And I know there was some acrimony between the Reagan people going out and the Bush people coming in because they didn't, they thought they were going to be able to stay in their jobs.
And there are some wrinkles.
And when the Clinton people left for the Bush people, they took the W's off the, the keyboards and things like that.But, you know, by and large, I feel like until recently, it's, it's gone.It's been pretty seamlessly.
And I think they need all of that time to get all the FBI background checks, you know, other security clearances, briefings.It's a massive undertaking.
We are joined by Elaine Kamarck, our Brookings colleague.So have you ever, I can't remember in your many, many roles in different administrations, have you ever worked on a transition?
I worked on the 92 Clinton transition.And then I was in the White House in 96.So I was sort of, I mean, that wasn't really much of a transition.
So the 1992 transition, let's start with that one.And I want to get you to describe what a kind of a normal presidential transition looks like between a normal Republican White House and a normal Democratic White House.
And then I'm going to have scoundrels. I'm going to have Scott talk about it from an agency point of view.
And then I'm going to have Natalie, who worked on a, let's just say, a less than entirely normal transition four years ago, talk a little bit about that experience.
And then we can all recklessly speculate about what the coming transition will look like. Well, based on two roads that diverge in the woods.
So Elaine, talk to us about the 1992 transition between a kind of moderate-ish Republican conservative, like George H.W.Bush, and a centrist Democrat, like Bill Clinton.Katie mentioned that, you know, that the,
young incoming White House staffers or, you know, oh, I guess that was in the next transition when they pried the W's off the keyboards.But what did the Bush to Clinton transition look like?
Well, it was very tense.OK, there was a lot of I mean, remember, it had been 12 years since there'd been a Democrat in the White House.So it was kind of tense.There were a lot of people jockeying for for a position.
All transitions have sort of two levels, right?One level, which really ends up being the most important, is the people level, right?Who's going to get what jobs, who's going to be in what position, et cetera.And that's very intense.That was going on.
I was working on, among other issues, campaign finance reform. and dealing a lot with members of Congress and came out of the transition to tell the president, let's not bother with this.Not going to happen.
There's many other important things than this to do.But he had talked about it, as most candidates do during the campaign, and it just isn't a real high priority for the voter.They say this, but it turns out not to be.
And in Congress, it just got immensely complicated.So I was running up to the Hill, having a lot of congressional meetings on that topic, simultaneously worrying about my own position.Would I be in the White House?What would I be doing, et cetera?
What was your official transition role?
I was in charge of a series of campaign finance reform.In other words, they had people working on personnel and people working on issues.
And that was back in the day, I don't think they do it anymore, of people writing massive, massive briefing books for incoming people.And this was putting things together and going to the agencies, I'm sure
Scott will tell us what it looked like from his end.But going to the agencies, trying to figure out what was going on, when you come in after 12 years of Republican rule, you don't know very much.You just don't know very much.
That's especially true on the national security side, where even if you've been an astute student, you don't have a security clearance.So you're not in the loop, really.And you have to sort of start from ground zero.
I think in retrospect, a lot of people in the second Bush administration got into problems by not talking more about national security issues with what the Clinton people had seen coming down the road.But anyway, it's policy and it's people.
A lot of times the people that are doing the policy are also worrying about their own position, where they're going to be, how the president is going to prioritize what he does.In the Clinton transition, we had three big issues.
We had welfare reform, reinventing government, and healthcare.And the first big decision that got made was that the president had to put those three issues with lead people.
So welfare reform, in fact, went to, well, reinventing government went to the vice president.Healthcare went to the first lady.
And then welfare reform, they started Bruce Reed working on it, but you couldn't do that to Donna Shalala because she'd already
because she was well-respected and well-liked, and the healthcare package, a big piece of her portfolio, had been taken away.So she got welfare reform with a White House staff running it.
And that was the sort of New Democrat agenda that Clinton had to get going, and he had to staff it, and he had to get people.And so once Al Gore got reinvented government,
Me, having been one of the people who wrote a lot about reinventing government, I went to work for Al Gore.But that took a long time to sort out.I didn't start there till March.And a lot of this, it's a very tense time.
I mean, it should be a celebratory time, but it's actually a very tense time for the people who want to work in the government.And by the way, there's a parallel operation going on, which is the inauguration.
all of that stuff, which a lot of people work on it too.So it's a very complicated and very tense time and, you know, exciting, no doubt about it, but there's a lot happening.
All right, Scott, one of the things that's happening is that a whole bunch of agencies like, say, the State Department, have to go from the leadership of one party to another, or in some cases, from one party to someone else within the party, but a different leadership.
Tell us about when were you working on a transition and tell us about the circumstances of that transition.
Sure.Well, I was in government in 2012 when people were preparing for a potential transition, didn't end up actually happening in the middle of the Obama administration between the first and the second terms.
And I was specifically working on a variety of aspects of Middle East policy and related policies at the State Department on the legal side of those.
which were issues where there were pretty strong differences in views that were kind of high-profile images or primary issues and high-profile divisions across how people might approach certain issues.
This was a period right when we saw the US troops withdraw from Iraq, And I was actually in Iraq for the actual election and transition when it came up.
But, you know, as part of that effort, with both NL, the Office of Legal Advisory at the State Department, where I worked in coordination with policy clients and at the embassy, you know, we did prepare a number of, perhaps not as lengthy as they were, you know, 10 or 15 years earlier, as Elena was describing, memorandum, but a whole universe of memorandum packages
that are intended to provide kind of issue orientations to incoming officials.These were spearheaded at least in most of the ones I worked on by career staff.
I think on the logic that you kind of wanted to have it reflect an agency view without the potential
taint, I guess, or potential optics of looking like it was signed off on by a political person of the potentially outgoing administration if a different administration, in this case, a Romney administration were coming in.
But it was a very detailed endeavor that went on for several months.I remember I left for Iraq middle of the year in 2012, Well, early, even like April or May, and I had already worked on several by that point.
So a year out, there were at least efforts at putting these things together, at least around issues that people knew was going to be controversial or a moving target.
um uh the and there's kind of a as i recall kind of a bit of an iterative process going back updating them um adapting them at least a few were even adapted from the 2008 transition you you would start with a template of an issue that's been around for a while uh copy the first half pages in a long-vaunted government tradition of not doing more work than you have to uh and then adapt it moving forward um and trying to keep kind of institutional perspective
They also, as evidenced by the fact that we're still looking back at 2008 ones, became actually kind of valuable resources for people who wanted to take seriously an understanding and knowledge of what could be, particularly at the State Department, pretty complex issues involving a lot of fast-moving history.
So it really was a very lively effort.
Just for those who got hung up when you said between the first and second Obama terms, why does there need to be a transition at all when not only are we not switching parties, but we're not switching presidents?
Well, as I recall, there wasn't actually that much of a transition after the election, but you don't know who's going to win.So you're preparing months in advance for the contingency about who's actually going to be elected.
And it was a very real possibility in 2012, up until the actual election that Mitt Romney could actually win.And so it was prepared on that contingency.
Everything we wrote was kind of on the assumption that if this is going to be used, it is going to be used by a new incoming administration with a different policy perspective from the incumbent administration.
And therefore, again, that's why I think it was spearheaded to a heavy extent, or at least was most heavily authored by career personnel who are still gonna be there and shaping that perspective, again, trying to make clear these are issues that reflect an institutional perspective that is not a partisan political perspective informed by the outgoing administration, but instead reflects the best judgment of professional civil servants who have worked on these issues for a long time.
Those two things aren't always super easy to separate, but it is very real.I mean, a lot of policy perspectives have support within the bureaucracy, and it's not a deep state thing.
It's just because these are the people who actually work on these issues for a long time.And the goal was to package those views and provide a starting point.
And it is also an opportunity for particularly senior people in the career civil service to make the pitch for their preferred policies, to explain, here's why we do things this way.So think about this seriously.
That was a very big deal in the 2008 to 2009 transition, I say not from first-hand experience, but from seeing and working a lot of issues that kind of continued from that period around national security.
2008, 2009, it's been frequently remarked that the Obama administration's policies didn't end up looking that different from the outgoing Bush administration's policies in a lot of areas of national security.
Part of that is because they had become civil servant perspectives.The Bush administration had heavily adopted its approach to a lot of these issues by the time it left office.
And civil service felt very strongly, this is the best way to approach particularly these legal national security issues, built a strong case for it, put together a very effective transition memoranda.
And over the course of the first year or two of the Obama administration, as they do these internal policy reviews, where at least their approach was, we're going to freeze our policies, but conduct, unless they're like, we think they're a high problem issue.
And then we're going to conduct reviews, reviews, memorandum, internal agency processes to decide whether we need to change tack on these other policies.
They ended up coming out of a similar place a lot of times because that was what senior civil servant people were advising.
In other words, that's where the deep state really creeps in.Over eight years of the Bush administration, you guys wore them down.The Obama administration comes in rearing for change, and you're like, no, we already got this done.
Just follow our lead.And one of them takes six or eight years, but you guys wore them down over time.
by some accounts, perhaps.And I think your point is, you know, deep state, the most nonsensical part of it is the idea of being a deep.
This is all done very on the surface, very deliberately, very transparently, because we're writing memorandum and handing them to people to explain, like, please do things this way, and here's why we do them this way.
And that's, in my experience, the way most of these things usually happen.And again, once there is, if there had been a transition in 2012, my understanding of what would have happened in early 2013 is that
Romney administration, if it approached it like the Obama administration did, would have spent that first year, and in reality, probably first year or two, maybe even three for certain issues, reviewing, reconsidering, going through a whole process and working its way down these memoranda saying, are we going to keep things the way they are or adapt them?
But I suspect different administrations have a very different approach to that.That's just the tack that the Obama administration took in 2009.
All right, Natalie, we are now going to turn the ship toward the weird.You worked on the Joe Biden transition team in 2000.When the transition- 2020.2020, sorry. when the transition got, shall we say, delayed.
So first of all, for listeners who may not remember the truncation of the transition in 2020, give us a little description of
what happened then and tell us about how it affected you guys and what you ended up or did you sit there twiddling your thumbs and like, how did you spend your time?
Yeah, so I do actually think it's it's useful before even talking about the specifics of what happened with respect to the Trump administration's decision making about things to also remember that this is in the thick of COVID.
So everyone is working from home, including people in government, even more than you would have thought national security related people, though obviously many of them had to be in secure places.But everything was still very much affected by COVID.
Um, so the the sort of tick tock with that context in mind is election day happened november 3rd I'm sure people will remember that it took several days before Joe biden was actually announced as the winner that was on november 7th
the general services administrator did not actually ascertain the election until November 23rd, which maybe doesn't sound like that much, although as we have now heard, there is just an unbelievable amount to get done in a very short period of time.
So a matter of weeks is a pretty substantial percentage of the time that's allotted.And from a practical perspective, what that means is that
During that period, the transition didn't have access to a lot of money that's allocated under legislation for things like office space and paying people, right?
I mean, there were a lot of people who had to completely leave their jobs to work on this full-time plus, you know, a job and a half's worth of work, who had to do it for no salary.
And just to be clear, the significance of the verb to ascertain here is that, to go back to Katie's original point, that the certificate of ascertainment is what triggers the availability of federal funds for the transition to operate, right?
Um, so that that money, um, which should have kicked in, you know, immediately after the election, which already would have been delayed by a couple of days because the election results didn't become clear immediately, um, was delayed even longer.
Um, so during that time, people were not getting paid.There was no office space.Um, people couldn't start working on background checks for prospective individuals, all of these people who need to be confirmed.Um, as Katie was talking about,
couldn't access classified information, even those of us who had security clearances, it was much more difficult to figure out how that could work.Couldn't get government email addresses, couldn't start working with the Office of Government Ethics.
There are just a lot of practical implications, none of which sound all that important, but in combination and when you get down to the nuts and bolts of how much time this stuff takes and know the context of how much work there is to do.
It was really quite substantial.The other thing I looked back just to, again, for some scene setting purposes, in the national security space, which is what I was working on, I was on the national security and foreign policy legal team.
The things that happened between November 3rd and November 24th in the national security space included Anthony Fauci announcing that we could expect up to 200,000 more COVID deaths in the next two months.There was a major economic downturn.
DOD announced that it was withdrawing 2,500 troops from Afghanistan and Iraq. Iran's top nuclear scientist was assassinated.
And there was a major hack in there, which wasn't reported until later, likely by Russia that reportedly allowed hackers to get free access to treasury and commerce email systems.
So that's all during this period where the transition could have been working cooperatively with
the existing administration getting a sense of what's going on in, you know, in theory at least could have been getting a sense real time what's going on so that they could have a real time lay of the land as these emergencies and major national security incidents are happening.
But instead, still didn't have email addresses, still didn't have access to any of this stuff.So after ascertainment happened, It was still not all rainbows and sunshine because people have to choose to be cooperative and to want to work together.
I can't speak too much to what that was like for most people because those who are working directly with people in agencies were on a different team.I was doing really legal analysis and review.
But, you know, there's a lot of reporting out there from the time about just the difficulties of incoming Biden-Harris administration people trying to meet with their counterparts all over the national security agencies and everywhere else in government and just not being able to.
So that obviously slows in a dramatic way the ability to just get a sense of what's going on and what needs to be done. work that's going on on the transition side of sorting out, you know, what are our priorities?What do we need to focus on?
All of that has to has to happen in a, well, here's our best guess of what things look like on the inside.And here's what we're going to do to work on our priorities from there.
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So before we turn to the coming transition, Scott, I have two questions for you.One is, I want you to go over again what the statutory changes have been designed to address some of the issues in the last transition.And the second thing is,
you know, speculate a little bit for us about the work that has already been done on the inside, because as you described in your own experience, there's a huge amount of work that goes on presupposing a transition.
Here we're going to have a transition, but it might not be a big deal transition.It might be a kind of a little deal transition, or it could be a huge deal transition.How does that affect what the agencies are likely to have done?
Well, let me start with the statutory changes first, and that kind of leads us first back to look back at what happened in 2020.
The biggest legal problem that arose in 2020 that Natalie's already alluded to is a determination by the General Services Administrator that President Biden was in fact the candidate elect.
There's a determination that the GSA administrator was in their authority to make, that at a certain point, just a few days after the election, I think it was three or four days after the election, you had every major network and most major news sources saying,
Hey, we've determined President Biden has clearly won this.He is going to be the candidate elect.
But there wasn't a clear statutory mechanism compelling the General Services Administration, or Administrator Emily Murphy, I believe was her name at the time, to make that determination.
That failure to make that determination meant that the transition team couldn't get access to those foundational resources that Natalie's describing, offices, funding, a variety of other sort of resources.
This year, or probably not this year, in the past few years, since 2020, Congress enacted a law called the Presidential Transition Improvement Act that was actually enacted alongside the Electoral Count Reform Act that was intended to basically try and clarify a little bit or reduce some of the discretion that the GSA has to avoid giving these determination to these resources.
So what it essentially says is that five days after the election, there's five days to sort out whatever the election results are.
Anytime there's still multiple candidates who have not yet conceded the election, they're all going to be treated equally as potentially victorious candidates.
I think the exact term is apparent successful candidate is what the statutory language they settled on.After those five days pass,
there is a period where the administrator can make the determination that only one of those candidates actually is in fact the sole apparent, like apparent successful candidate based off of a number of sort of determining factors that say, okay, based off of the certified votes from the electors, based off the certified electorals slates that we have, I'm determining that just one of you actually qualifies for this.
So it gives the GSA the ability to winnow the field down to one, but not to say, I'm not making any determination whatsoever, and therefore you all are excluded, which was what happened in 2020.
Instead, everybody's presumptively included if they haven't conceded, and then it's up to the GSA to say, well, these certain thresholds have been met.
There is some discretion in those thresholds, but they're very careful to peg it to very specific considerations that are supposed to be weighed into the GSA's determination.
Then there are three specific dates where it says these are the periods where the GSA is supposed to be looking and determining is there only one sole successful candidate, apparent successful candidate.
First is the actual tallying of the electoral votes based off of the vote results and certified electors, so basically determining who the electors are after election day.
If that's one period where the GSA is supposed to look and say, can I say confidently that in fact this election has been resolved?Yes or no?Okay, if no, I can't.The next date is December 17th, at least this year will be December 17th.
That's the date we actually see all the electors come into their state designated locations and cast their votes for president, the three cast electoral votes.
After that, the GSA is supposed to come in again and say, okay, now we know who everybody says they are voting for among the electors.Can I now determine, yes, there's only one sole apparent successful candidate at this point?
They say no, then the next date is January 6th.And January 6th, or again, the date can be adjusted by statute, but usually January 6th is, of course, when they actually count the electoral votes in Congress.
After that, it says it's hard to imagine a scenario where if you have a successful completion of the count, that they could conclude something other than there's just one sole apparent successful candidate, but that's still a determination they're supposed to make.
So it's essentially a very guided reasoning exercise where it becomes increasingly
lacking credibility for the GSA to not reach a determination, except in a really extraordinary circumstance where the outcome is genuinely in question throughout the process.
So the goal is essentially you start with as many candidates as you have still in the race, but you winnow them pretty deliberately and determinedly down to one eventually.
It also has some additional appropriations, provides reporting to Congress to ensure you have sufficient resourcing, a couple other measures, but that's the main mechanism they install to try and take care of this problem.
In terms of your question about what works already happened, I'm confident without having direct knowledge of it that we're seeing career people throughout the government with the assistance from Biden administration folks who are currently in those offices preparing transition memos probably a lot like
I saw in 2012, like Elaine saw in 92 and 96.Again, when you're in government, this is frankly your best opportunity to really make a detailed case for what you think the right policy should be, and particularly around points of continuity.
Sometimes even maybe even points of disagreement can work their way in there with the current administration by saying, here's different options we've considered or different approaches you could take.
The degree to which the career people are allowed to drive that vote versus political people varies across administrations.
I'd be a little surprised if it's that different from how the 2012 Obama folks did it, because I think they have a similar philosophy of government.
It's a lot of the same people who were involved in government then are involved currently in the Biden administration.
you have this idea that if we are really preparing the transition we're most concerned about, even though there will be a presidential transition no matter who wins this year, the one where there's the biggest policy jump is presumably going to be the Trump administration.
And therefore, you're really going to want to make these pitches and have these memorandum waiting.
And frankly, they're probably eager to get them in the hands and begin having conversations with these incoming officials or incoming transition people who will connect them with incoming officials.
I think the biggest variable, the biggest, scarcest resource you have in scenarios like this is bandwidth.
As Katie alluded to at the top, it's the fact that you don't really have enough time to actually substantively have all the conversations you want to have for the huge wealth of issues you're suddenly gonna be responsible for.
And so people are jockeying to try and get whatever time they can with officials and incoming officials. and transition officials.And the less time you have, the more difficult it is to have that sort of sharing.
But you need certain parameters in place under the law and just practically to say, here's how we're going to handle this information.Here's who's going to handle this information, who's going to work on the transition, et cetera.
And without those parameters in place, you can understand why the GSA and the broader Biden administration, the executive branch generally would be hesitant to fully go forward with the transition on other terms, even if they could statutorily, which it's not clear they can.
All right, so with that as prologue, 41 minutes in, let's recklessly speculate about what a transition looks like in the event of A, a Harris victory, B, a Trump victory, or C, since we have seven states that are not merely within the margin of error, but within
you know, a point or a point and a half of each other, a situation of genuine uncertainty.So who wants to recklessly speculate about what a Harris transition looks like?
So if you wanted to sort of look at historical precedent in the 20th century, you would look to what happened with Reagan and Bush.Before that, it was going all the way back to Van Buren, where you've had a vice president become the president.
And then before that, It was Jefferson and then Adams.So it hasn't happened very often where the vice president has then become the president right away.
And I actually think that for many reasons, this is sort of the best case scenario for the country in the sense that there will be a great deal of continuity. She will likely ask for letters of resignation, but she does not have to accept them.
And what that does is because the Senate confirmation process is so bogged down and so slow, at least it allows some continuity for civil servants out there who would like to have a boss and somebody who's doing the job and knows what they're doing.
So there can be a wonderful carryover during that time while they're waiting for people to get confirmed. The other thing I wanted to point out is that if you accept GSA resources, you are required to sign these memorandums of understanding.
There was one that was needed to be at the deadline was September 1st.And that was just basically if you're going to use office space and our resources and our technology, you have to agree. to this set of sort of standards.
And the second memorandum of understanding was to be signed on October 1st.And that one has to do with publicizing and adopting a code of ethics for the people who are working on the transition team.
And the Harris transition team run by Johannes Abraham has signed both of those.So that means that if she wins, And the GSA administrator sort of ascertains that that the victor is Harrison Waltz.
They will then immediately have access to the agencies, the briefings, the memos, the background checks.FBI can run wild getting all these people security clearances.
And it's just because they've sort of played by all of the rules of the game during the whole transition phase.I think it will be much easier.And we'll talk later about the Trump.
But just to give you a short preview, they have not signed either of these memorandums of understanding. So, and I'll leave it at that and let Elaine take over.
I think there's one interesting aspect to say about the Paris transition, assuming she gets, she is the winner.
and which is that the White House itself, the configuration of the White House itself, turns out to be very important because in the modern era, the White House itself runs a lot of policy, or it runs a lot of new policy, and it leaves status quo to the agencies.
And frankly, a benefit of our system is that lots and lots of policy is in fact status quo.I think that What you'll see is you'll see some really big changes in the White House configuration if Harris wins.
I think you'll see changes in the cabinet if Harris wins.And that's about all you get done. during the transition.You really, if you can get to inauguration day with a White House staff in place, with a cabinet in place, that's it.
That's doing a good job because you can't really, realistically, can't get much more done.
And just to be clear, that means you're assuming that very large numbers of subcabinet officials stay, or that you're going to replace them in a kind of rolling system?
It's the second.You will be replacing them in a rolling system.It takes months and months to fill the subcabinet. given all the things people have to go through.
I mean, first of all, one of the first things you have to put in place is the White House Office of Personnel.And it's the personnel office that basically has control over the subcabinet positions.
And then there's a legal office that deals with them, et cetera, and then you go for confirmation.It can take six months.
and you're doing well, six months to get a cabinet and a subcabinet in place, not to mention the schedule Cs and all the other appointments that need to be made.
So really the transition, if you think of the transition from sort of about election day or about when the legal stuff kicks in to inauguration day, you're going to do the White House staff and you're going to do a cabinet.
and that everybody else can, they can stay put.They can leave early and have an acting, you know, a civil servant take their place, et cetera.But that's all you're going to get done.
And that- But in that case, Elaine, why not make it really easy on yourself and ask all the cabinet members to stay
pending your choice of their replacement, and that way you walk in with, you know, you're not under pressure to get an attorney general confirmed Tuesday and a secretary of defense.Why ask for the letters of recommendation?
Why not just say the exact logic that Elaine Kamarck is describing about the subcabinet applies with equal force to the cabinet itself?
There's one big reason, right, which is that the concern of every president is to take over and look like they are leading and in control.
And putting that team together, which is a very complicated business, particularly for Democrats, because they have to have women in there, they have to have Hispanics, they have to have blacks in there, they have to have the whole- Not such a problem for Trump.
Not such a problem for Trump.No, he obviously doesn't care.But for the Democrats, every piece of their coalition needs to be represented.So in fact, it becomes a game of checkers.I mean, I remember Bruce Babbitt ending up at Interior.
instead of at the AG for this very reason of where they were putting people and how they were putting people.
This can consume weeks and weeks and weeks of time, during which time, as Scott described, the career people are getting ready for these people, but sometimes it can be months before they have anybody to actually talk to.
All right, Scott, Natalie, do either of you have reckless speculative thoughts on what a Harris transition is going to look like?
I mean, I generally agree.I think you're going to see a lot of continuity and it makes a much smoother process in this particular case.One aspect of it that is new-ish, at least in terms of emphasis, is emphasis on acting officials.
That was really, really important in 2020.
The Biden administration was actually pretty notable in the work they did, I think, much to Natalie's credit and many of our colleagues' credit, in that they had surprising depth in acting officials lined up on day one.
particularly in a lot of national security offices and a lot of key kind of policy offices.
That was something I think is like less of a thing a few years ago, or a couple of transitions ago, but became such a big issue here because there was so much concern about attrition in the civil service, about frankly, people being a little, they're not being adequate transition being performed, and because of
the concerns about like, essentially, I think civil servants being worried about taking on leadership roles, potentially, because there had been stigmatization around, you know, involvement with prior administration, things like that.
And so there was this effort to like, really get a lot of people pretty low in the depth in an early stage.You get to skip that this time.Maybe that comes in.We'll talk about that in a second with the Trump administration.
But just want to flag that, that is like an added factor that for all these transitions, particularly complicated now, and it's a response to the trend that Katie mentioned already, which is that you can't get people Senate confirmed these days.
It just takes forever. you're going to have a huge amount of vacancies.So most of your work, your first year or two at least, if not longer, is going to be done by actings.And so having that depth of acting comes in.
Last time was fairly easy because it was a lot of people who were in those offices at the end of the Obama administration came back four years later for a little bit of an encore.
And we may see the same thing happen with the Trump folks this time around.I'm not sure.
All right, let's turn to the much more fun to speculate scenario, which is to say about, which is let's imagine we actually have a transition to a Trump administration.So Katie, you teased the first issue.
which is the fact that they haven't signed the MOUs yet.So walk us through what that means.Now, it's three days after the election.
There's a certificate-ish of ascertainment as per Scott's description of the new ascertainment regime, but it's pretty clear that Trump won. There are no signatures on the memos.So what happens?Let's talk through the chaos.What happens?
Yeah.I mean, these are uncharted waters.We don't know what happens.Um, I assume, I know I've heard that through with the memorandums of understanding that they tried to tweak them in a way.
Um, I had heard that the Trump administration or I'm sorry, the Trump campaign was worried about signing onto the EO, sorry, to the email system and the technology because Mueller was able to subpoena those things during that Russia investigation.
And so they're mad about that.And so they don't want anything to do with it.So I'd heard that the GSA tried to tweak these MOUs to make them more enticing to the Trump campaign to have them sign on, but they still didn't.
And in the end, I think it's, they're not going to sign them because the first one requires that you limit contributions to the transition to $5,000 per person.And they don't want to do that.
So I don't think they are going to sign them, but they will have to come up with some sort of agreement.
So I'm guessing that the GSA will have to give a lot of ground to come up with some sort of agreement where they can establish some requirements and standards that that other other candidates would have had to adhere to.
But they will give them a lot of leeway so that they can get access to the agency so they can't get the briefings. But as it stands now, without signing those, you don't then get the subsequent resources or the briefings.
And maybe they don't care about the resources, because maybe they have plenty of money.I'm not really sure. It's uncharted waters.It's unheard of.Usually candidates want these resources because it helps them set up office space.
It helps them start to vet personnel.As Elaine was saying, that's the most important thing they need to be working on now.
So I suspect that, I think it's called the America First Institute or America First Policy Institute, where Brooke Rollin and Stephen Miller and those folks, I assume they're doing a lot of planning.
And they've got other people from a prior administration that are working on some of their tangible plans.
Currently, they are not allowed to access that a Harris administration would have, or a Harris victory would allow because they have signed this memorandum.
Yeah, just one small addition there, a potential explanation for the reservations about signing this memorandum, which I find a slightly more sensible in my mind than the resources question, although I may enter into it as well.
Part of the code of ethics that's required is a conflict of interest requirement. that bars them from hiring people into the transition team that have conflicts of interest of the sort that would not be permitted for federal employees.
That's actually a fairly high bar.And particularly if you're planning on employing a lot of people who have prior business interests in particular areas, like regulated industries, to work on those industries,
would be a problem, potentially, if you were to interpret it strictly and apply it strictly.There may be wiggle room here.
Again, I mean, the statute's actually surprisingly clear on this point, so I'm not 100% sure there is a lot of wiggle room on that particular requirement.
And that might be a real sticking point, because I suspect an outgoing Biden administration is going to be hesitant to openly waive what is supposed to be a core conflict of interest and kind of public corruption requirement.
But there might be some wiggle room there to get around it.
But I kind of think that, in my mind, based off of the kind of bigger obstacles, that's one that might be a genuine problem for the Trump administration, depending on who's working their transition.
Obviously, it's being headed by two heads of industry, and that's probably the type of people they're likely to bring in, just as they did during the administration last time.And that strikes me as not clear to me that's an easy workaround there.
The resourcing question, if they're getting tons of money, they may not care as much.
But I'm sure they'd rather get that as campaign contributions as opposed to transition funding that they could put off to use to pay debts and other things or to legal defense funds, things like that.
And just to add what Scott said, the two leaders of the Trump transition are Howard Lutnick, who was the head of Cantor Fitzgerald.So you have sort of a finance expert.
And then the other one is Linda McMahon, who ran the SBA during the first Trump administration.So there is some experience there. But it's interesting.
And there was also a New York Times article on Sunday that I think everyone would be interested in reading, which basically says that the Trump administration is not going to abide by having FBI background checks, that instead they are going to hire private sector investigators and not use US law enforcement.
And it is, in fact, a norm.And there are memos about the requirement for security clearances and background checks.But it's not a statutory requirement. It's another sort of innovation, in quotations.I guess you might say.
Right.And of course, as we learned with Jared Kushner, the president can, in fact, give a security clearance to anybody who he wants by the nature of the system.But I think people should take this as a sign that he anticipates
appointing large numbers of people who could not pass a background check.And that, of course, raises the question of whether the Senate would confirm such people, again, without the benefit of an FBI background check.
Elaine, what are your thoughts in anticipation of a possible Trump transition?
Well, I was going to raise exactly what Katie just raised.I mean, this this business of having private investigators and not using the FBI to do security checks just rings bells are ringing.It's just mind boggling.
I mean, and it also raises the question that you guys at Lawfare probably know better than I do.If, in fact, somebody is deemed, you know,
secure by the president because he's had some private entity do the background check, is the CIA or DIA or anybody, are they obliged to give that person the nation's secrets?
I mean, can they withhold the nation's secrets because they haven't gone through, I mean, you can see what a mess this is.
It's a huge mess.And there's a look, there's a lot of different components of the answer to it.So the president is entitled to give a security clearance to anybody he wants to, and he's entitled to share
information, including classified information with anybody he wants to, up to and including the Russian ambassador and the foreign minister of Russia, to whom the former president, you know, blurted out secrets of an allied intelligence service.The
Different agencies have their own clearance processes.So, for example, the CIA famously doesn't like to recognize anybody else's security clearances for their own hiring purposes.And you know, agencies are protective of their own standards.
That said, if the president, you know, wants to put in place somebody in the White House in particular and share information with that person, there's nothing an agency can really do about that.
And so, Scott's going to correct me about this, and then we can fight about it.
I'm not going to correct you.You're 100% right once Donald Trump is president.That's the scenario we're discussing now.During the transition, it's a trickier issue.
The same statute, the transition statute, actually says for your leading national security officials, you're supposed to give their information to the FBI by name or another agency, not a private background investigation corporation, for review prior to inauguration day.
That's the statutory requirement so that they can be in place and have whatever review done by them.That's the normal procedure. Could President Biden waive security clearance procedures for a nominee of incoming President Trump?
Yes, he could during the transition.Is he likely to do so, given that the statute says you're supposed to go to the FBI for background checks?
Again, this is like one of these places where this bucking of norms really is running up against even a statutory requirement, not just the standard processes.And you would need Biden, not Trump,
during the transition to be the one waiving these standards, waiving these norms, and finding exceptions and backdoors.
I suspect that if the Biden administration, or if President Trump wins, the Biden administration will go far to try and have an effective transition.Again, that was the standard set in 2016.
I think you would see a lot of similar people take a similar approach again now.But there may be real limits to how far they can feel they can go because of these statutory requirements.And if you're not willing to align with them,
could lead to a much more chaotic transition.But there shouldn't be any illusion that this is the Biden administration withholding this information.They're doing it because these are requirements that are in the statute.
They're not things that are easily waived by the president.Theoretically, yes, the president could, but that's clearly not what Congress was intending to happen.
I also think that there are things that the FBI looks at in the course of an FBI background check that no private investigation outfit has access to.For example, is your name going to trip any of a million
databases that have, for example, you know, terrorism connections or, you know, you know, were you involved in repression of Uyghurs, right?These are not things that these are, you know, are you on a sanctions list of some kind, right?
Are you on the no-fly list?These are things that the FBI has access to, as well as the derogatory information that underlies it, that you just can't go sort of buy from a data broker.
Elaine, I wanted to ask you about the flip side of the question of cabinet members and sub-cabinet members hanging on.The last time Trump took power, the Attorney General, or the acting Attorney General, Sally Yates, hung on for 10 days until
until she announced she couldn't defend the travel ban whereupon Trump fired her.Normally, you have somebody stick around at the Justice Department because you need a Senate-confirmed official to sign FISAs to do.But I'm not sure I can imagine
any Senate-confirmed official in the Biden administration in any agency spending a day in the Trump administration.And I'm curious, how do you deal with that?
Is it just going to be vacant on day one and we're going to have relied on the Trump transition without cooperation of the FBI to install a bunch of actings?
I don't know.I mean, I think this we're in unknown territory here because the I mean, you know, just step back for a minute.This whole every signal they're sending is that they want to privatize the transition.
They want this run by private entities, whether it's for security clearances or for policy.I mean, I'm almost sure that the big fat policy books that everybody prepares in the transition
The first time Trump did a transition, nobody in the Trump world looked at those.And I'm pretty sure that nobody will look at those again if he wins this time around.
So he's really, you know, when it comes to the business of government, he's president chaos.He was in his four years and he will be again.And we'll start to see it in the beginning now.
If he finds that there are certain things like the signing of FISA orders, et cetera, that he wants to do, my guess is he'll find somebody who's willing to stay, maybe at the lower levels, but who's been Senate confirmed.
So he has one person in the agency to be signing things.I mean, look, the whole point of this conversation, the consequences of this for national security are so much bigger. and more consequential than they are for domestic politics.
Domestic politics, the data sources are huge and not under lock and key.And that's not the case on the national security side.
So you have a situation here with a very, very dangerous several months of a Trump transition as they blunder around trying to do this themselves and not use established procedures, etc.And let me say, there's precedent for this because when the H.W.
and the second Bush came in, they had that same kind of attitude towards the Clinton administration.And part of that attitude was was to filter out all the signs they didn't want to see.
They, in fact, there's multiple quotes in books written about this that the Bush administration thought that, you know, the Clinton administration was a little bit, you know, obsessed with terrorism and this guy Osama bin Laden.
And they learned their lesson and the second transition they did was much, much better.
The national security is where if you blunder around on health care for a while, nobody's going to get killed other than people who don't have health care, but nobody's going to get killed.
I mean, you blunder around on national security, people are going to die.And this is a very, very serious situation.And they're sending absolutely every wrong signal that they can send.
And I think the world is pretty terrified of them and for good reason.
All right.We are going to do two audience questions before we wrap up.I think I'm going to read them for efficiency's sake.
Esther asks, since the transition period can be one in which foreign groups might wish to test the United States in a variety of ways overseas, should a major international incident occur,
would there be any significant consultation as opposed to simply a courtesy review with the incoming team after the election?So this is obviously only a question with respect to a
Trump transition since Harris is, among other things, the sitting vice president.Natalie, what do you think?
What is the likelihood that you would have meaningful consultations between the outgoing president and the incoming president on something like this?
Yeah, I mean, I think this is sort of where the rubber meets the road in terms of the implications of the Trump transition team not abiding by the law or signing the memoranda of understanding that they're supposed to sign.
Because I think what this does is it puts Biden administration officials in the position of having to decide whether they are going to meaningfully share what is likely to be at least some classified information with people who do not have security clearances.
or who have not abided by the law in terms of signing the Memorandum of Understanding.
And they are essentially being put in the position of deciding whether they think it is more important to the nation's security to break those rules or more important to abide by those rules.I can't speak to it.
I think it probably depends on the person, depends on the situation.
The classified information problem is by far not the only one, but it is something that is unique to the national security space that I think is really very meaningful, especially in this interregnum period between the election, if Trump were to win, and the inauguration.
I have one.It's just sort of if you want kind of a historical precedent, and it's not foreign policy or national security policy, but everyone upholds the 2008-2009 transition as the gold standard.
Because you might recall the huge, intense financial crisis at the time, 2008 going into 2009.And there was a great deal of cooperation between the outgoing Bush people and the incoming Obama people.
So there is a precedent to have sort of this coordination and consultation.But again, the Obama people probably abided by all the memoranda that they were supposed to sign.And, you know, it was a what we would call a normal transition.
I think that, as Elaine pointed out, all of the signs that the Trump transition or the Trump campaign has demonstrated so far is that they're going going it alone and that the norms and the traditions and things of that nature don't really apply.
Yeah, just to emphasize Katie's point, I remember there's a New Yorker interview with Obama in which he specifically talked about the Bush to transition to him and how much it changed his opinion of George W. Bush.
And he described it as a great act of patriotism, that it was
you know, kind of model of the way all transitions should be done, and that he considered the care with which Bush did it and ordered his staff to do it to be a real gift to him when he came into office.
And when Trump won the first time, Obama instructed his staff that this was a great gift that Bush had given to him, and he meant to do the same thing for his successor.
And of course, as Michael Lewis has detailed in The Fifth Risk, that material sort of never got read, these volumes and volumes of briefing memo.
A final question from the anonymous attendee who writes, we know that since 1980, the Heritage Foundation has produced a plan for new Republican administrations.Project 2025 follows in that line.
Have such plans previously played roles in prior transitions, most notably in 2000? Elaine, what do you know about the history of these, you know, think tank created, they usually involve the word mandate, mandate for something or other.
Do the mandates actually mandate anything or do anything?
Well, the big one I know and I was personally involved with is the 1992 transition.The DLC wrote a book called Mandate for Change, and it talked about the three issues that became new democratic issues.
And in fact, Clinton veered away from those in the beginning of 1992.And then after getting a shellacking in 1994, came right back to them because they were
at the core of his political success, which is that he was gonna be a new Democrat, a different kind of Democrat, et cetera.And those were welfare reform, and those were reinventing government, front and center.
So in that respect, and Clinton had been chairman of the DLC, so obviously he had bought into the work of the think tank.I haven't seen a president since then who has been so clearly involved in ideas beforehand.
I mean, certainly Kerry wasn't, you know, Obama was a pretty young senator, didn't have any particular affiliation with the think tank.So there weren't any, I don't think anybody's been particularly like Clinton.
So when that happens, right, when there is something and it syncs with their politics, then they're very powerful.Now, the problem that Trump is having with 2025 is he keeps having to reject it with Project 2025.It is a blueprint.
It's definitely a blueprint, and it's definitely a blueprint that reflects a portion of the current Republican Party.But as they've run through this campaign, they've discovered that on issue after issue after issue,
the positions in 2025 are killers to the voters, which is why Democrats keep bringing them up again and again and again, right?
So they're gonna have, I don't think 2025 is gonna have quite the impact just because so many things in it, starting with the positions on abortion, have turned out to be, you know, cast to the side by the candidate himself.
We are going to leave it there.Elaine Kamar, Catherine Tempest, Natalie Orpit, Scott Anderson, you're all great Americans.It is great to see you.And I was going to say we will do this again, except that we won't, because one week
today will actually be an election and live election coverage is one of those things we just don't do here at Lawfare.So, you know, get out there and vote, do your thing, and we'll see you on the other side.
