If U.S. Democratic nominee Joe Biden wins the presidential election on Nov. 3 or, as happened to President George W. Bush in 2000, his victory over President Donald Trump is confirmed several weeks later, it will signal the beginning of a presidential transition — a precarious and often hectic period, lasting less than three months and occurring every four or eight years, during which the democratic norms and traditions of the United States are at their most vulnerable.
As some observers have pointed out, a Trump-Biden transition could pose unique problems, not least of which is the fact that the incumbent has repeatedly declined to commit to accepting the results of the election, if he loses, as well as facilitating a peaceful transfer of power.
However, assuming for now that the theoretical possibility of an unprecedented constitutional crisis is not realized, how exactly do presidential transitions work? What are the various participants required to do, by law? And what are some of the interregnum traditions that have emerged in recent decades?
Overview
If the incumbent does not win the election, or is not running for reelection, the transition between presidencies begins once the result of the election is known (typically election night) and continues until Inauguration Day. This time around, that would mean 78 days between the Nov. 3, 2020, election and the Jan. 20, 2021 inauguration. If we don't know the result until later, as was the case in 2000, then the transition will be shorter.
Either way, preparations for a potential transition start many months in advance and are coordinated by the General Services Administration (GSA), an independent federal agency not overseen by any government department. Roughly speaking, GSA's role can be broken up into five areas:
- Eligible candidates: GSA can provide support and facilities, like office space and communications systems, to help major-party candidates with their preliminary preparations for a potential transition. This can happen after a candidate is formally nominated at their party's convention but can happen earlier when they are the presumptive nominee.
- President-elect and vice president-elect: If a transition is to take place, the GSA steps up its assistance to the incoming president and vice president, including: office space; IT and office equipment; communications systems; mail management; parking; compensation for staff; expenses for consultants and travel, and so on.
- Inter-agency: GSA coordinates the transition strategy of various federal agencies, including managing the changeover in non-career staff (i.e. political appointees) at those agencies.
- Inauguration: GSA can provide support and facilities to the incoming administration specifically relating to the inauguration. This involves working with the Presidential Inauguration Committee, as well as the Armed Forces Inaugural Committee, which oversees the U.S. military's central involvement in inauguration ceremonies and events.
- Outgoing president and vice president: GSA can provide support and facilities to the outgoing president and vice president, in order to ensure their efficient and orderly departure, and the departure of their staffs. GSA also works with the National Archives and Records Administration to help outgoing presidents set up their presidential libraries.
The extent of the funding and staffing made available for presidential transitions might surprise some readers, especially when one considers that a transition might not ultimately take place. In its May 2020 update to Congress, GSA said it had a budget of $9.62 million to carry out its transition-related duties, and it estimated the following staff requirements for various phases:
- Eligible candidate preparations (regardless of whether a transition takes place): Staff of around 100-120
- Presidential Transition Team (only in event of transition): Typically 500-700 staff, including volunteers
- Outgoing president and vice president: Around 12-24 staff to help facilitate the orderly departure of the outgoing president, vice president, and their staffs
- Presidential Inaugural Committee: Staff of around 700-900, including volunteers.
What Must Happen
Some transition preparations are required by law, while others are governed by convention and tradition. Here's a breakdown of some of the activities that must take place, by law:
Security and intelligence
Section 7601 of the 2004 Intelligence Reform and Terrorism Prevention Act legally requires executive branch officials to give the president-elect a "detailed, classified, compartmented summary" of "specific operational threats to national security, major military or covert operations, and pending decisions on possible uses of military force." This must be done as soon as possible after Election Day.
Section 7601 also requires that, as soon as possible after Election Day, the president-elect submit to the Federal Bureau of Investigation (FBI) or other relevant agency, a list of names of candidates for high-level national security positions, down to the level of cabinet undersecretaries. The FBI or other relevant agencies must complete those background checks before the inauguration. Under Section 7601, major-party candidates must also submit names of likely transition team members early enough that those background checks can be completed and security clearances provided so that transition team members can receive classified briefings beginning on the day after the election.
Federal planning
Under the 2015 Edward “Ted” Kaufman and Michael Leavitt Presidential Transitions Improvements Act, the GSA is legally required to do the following:
- Set up an Agency Transition Directors Council (ATDC) to "address interagency challenges and responsibilities around Presidential transitions and turnover of non-career appointees; coordinate transition activities among the [Executive Office of the President], agencies, and the transition team of the eligible candidate(s) and the President-elect and Vice President-elect." The ATDC's members include: transition directors from 11 cabinet departments and five prominent federal agencies including NASA and the Environmental Protection Agency; representatives of each presidential candidate. The ATDC is co-chaired by the head of the GSA; the Deputy Director of Management for the Office of Management and Budget; and the Federal Transition Coordinator
- Appoint a Federal Transition Coordinator, who is "responsible for coordinating transition planning across the Executive Branch and who serves as a liaison to eligible Presidential candidates," and who co-chairs the ATDC, as outlined above.
- Set up the White House Transition Coordinating Council (WHTCC) to "provide guidance to Executive departments and agencies and the Federal Transition Coordinator regarding preparations for the potential Presidential transition," including: succession planning and preparation of briefing materials; facilitating communication and information sharing between the transition representatives of the eligible candidate(s) and senior employees in agencies and the Executive Office of the President (EOP); and preparing and hosting interagency emergency preparedness and response exercises. The WHTCC is made up of various White House officials, details of which are available here.
Under the 2019 Presidential Transition Enhancement Act, executive branch agencies are legally required, by Sep. 15, 2020, to have a succession plan in place for every "senior non-career position" in each agency.
Ethics
The 2019 Presidential Transition Enhancement Act also legally requires presidential candidates to prepare and publish by Oct. 1, 2020, at the latest, an ethics plan that would come into force in the event of a transition. According to the legislation, the ethics plan will "guide the conduct of the transition" and must:
- Address transition team interactions with registered lobbyists and registered foreign agents
- Prohibit transition team members with conflicts of interest from working on issues related to those interests
- Contain a Code of Ethical Conduct, which transition team members are required to sign, and which would require them to: keep confidential any nonpublic or classified information they receive during the transition; not use that information for their own financial gain; obtain permission from transition team leaders before even seeking or requesting nonpublic information
- Contain explanations as to how the transition team will enforce the provisions of the ethics plan.
The Biden-Harris campaign's ethics plan has been published, and is available here.
Appointments
Incoming presidents typically use the transition period to hash out their policy priorities, a plan for their "first hundred days," and an overall strategy for their time in office, but the most logistically onerous task for any transition team is undoubtedly identifying, vetting, and appointing thousands of executive branch officials, in particular high-profile positions like cabinet secretaries.
Article II, Section 2 of the U.S. Constitution, known as the appointments clause, states that the president and U.S. Senate are jointly responsible for the appointment of certain officials:
"[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."
These appointments, known as PAS ("presidential appointments subject to Senate confirmation"), are also subject to Section 2634 of the Code of Federal Regulations, which legally requires nominees to file public financial disclosure reports. The practical advantage of this legal requirement is that, in principle, it allows the incoming administration, with the assistance of the Office of Government Ethics, to identify potential conflicts of interest that might make a particular individual unsuitable for an executive branch position.
In December 2016, according to the U.S. Senate and U.S. House of Representatives "Plum Book," the executive branch of government contained no fewer than 1,242 PAS positions, all of them subject to Senate confirmation, with nominees legally required to file financial disclosures. In order that the incoming administration can "hit the ground running" after the inauguration in January, would-be presidential appointees often file their financial disclosures soon after the election, in November. Under the 1978 Ethics in Government Act, PAS nominees must file an initial financial disclosure within five days of the president's sending their nomination to the Senate.
Handwritten Notes and Office Pranks
If Biden does win the election, whether that result is known on the night of Nov. 3 or some weeks later, focus will turn to the demeanor of the outgoing president, vice president, their staffs, and advisers.
Assuming, again, that the United States is not thrust into a full-blown constitutional crisis, it will be intriguing to observe the outgoing Trump administration's comportment toward their successors, and how it compares with recent occupants of the Oval Office.
In recent years, outgoing presidents have placed an emphasis on civility and encouragement toward their replacements. In 2017, departing President Barack Obama reportedly left a lengthy note for President-elect Trump, writing: "Millions have placed their hopes in you, and all of us, regardless of party, should hope for expanded prosperity and security during your tenure."
Obama was perpetuating a modern tradition that, according to presidential historian Mark Updegrove, began with Reagan and was cemented, in difficult circumstances, by George H.W. Bush. In 1993, after failing to secure a second term in office, Bush left the victorious President Bill Clinton a handwritten note in which he famously wrote, "Your success now is our country's success. I'm rooting hard for you."
In 2009, President George W. Bush continued the tradition, leaving a note for Obama that read:
There will be trying moments. The critics will rage. Your “friends” will disappoint you. But, you will have an Almighty God to comfort you, a family who loves you, and a country that is pulling for you, including me. No matter what comes, you will be inspired by the character and compassion of the people you now lead.
By all accounts, the Bush-Obama transition was executed with an exemplary level of civility and cooperation. Martha Joynt Kumar, an academic, writer, and expert on the transition of power, called the 2008-09 interregnum "the best in anyone's memory."
The transition between Clinton and Bush, however, was cut short by the Florida recount, with Bush's victory over outgoing Vice President Al Gore not finalized until nearly five weeks after Election Day. It was also marred by allegations, some of which were later substantiated, that departing Clinton administration staff had vandalized offices in the White House complex.
The U.S. General Accounting Office investigated the allegations and, in a 220-page report, found that the letter "W" had been removed from several keyboards (a reference to Bush's middle initial and nickname "Dubya"); several desk drawers had been glued shut; and stickers had been found with the slogan "Jail to the thief," a common refrain among critics of Bush at that time, who claimed he had "stolen" the 2000 election from Gore.
Even then, Clinton himself upheld the traditions of civility and collegiality that had been passed down by the elder Bush, leaving behind a handwritten note that read:
"You lead a proud, decent, good people. And from this day you are President of all of us. I salute you and wish you success and much happiness."
It remains to be seen whether Trump, who has made relentless personal attacks upon Biden and his family during the course of the 2020 campaign, will leave behind a note of his own, or whether Biden, who has denounced Trump as a "clown" and a "racist," would have any interest in reading it.