If Joe Biden wins big in November, no one should breathe easily until he takes the oath of office on Jan. 20. The period from Election Day until Inauguration Day will be ugly, according to a range of experts from both political parties who anticipate President Trump’s refusal to accept defeat could destroy any semblance of a peaceable transfer of power.
There is a body of law governing the transition between administrations, but it is built on the assumption that the parties involved will cooperate. There is occasional mischief, like when the Clinton people supposedly removed the “W’s” from some computer keyboards to irritate the incoming George W Bush administration.
What Trump might do is no joke and could have serious ramifications on his successor’s ability to govern—which of course is the point. Larry Wilkerson, who was Secretary of State Colin Powell’s chief of staff, blames the shortened transition in 2000-01 for the Bush administration’s failure to fully recognize the danger posed by al Qaeda.
The 2000 election was effectively decided by the Supreme Court on Dec. 12, 36 days after Election Day, severely truncating a transition that would otherwise have been 70-plus days. “I am convinced that one of the reasons the administration was not fully versed on alQaeda, we didn’t have an NSC meeting until August,” a month before the 9/11 attacks, Wilkerson told the Daily Beast.
He described tabletop exercises conducted last month by the Election Integrity Project, a bipartisan group of political operatives, academics and former government officials created in 2019 before the current crisis over Trump’s attack on the Post Office and mail-in balloting. Even after a huge Biden win of the Electoral College and popular vote, Wilkerson said in an email that the exercises imagined that Trump “not only fleeces the government to the extent possible, travels all over the world meeting with leaders everywhere, badmouths the incoming government, sets up MAGA-TV to delegitimize the Biden administration, etc. etc., all the while refusing to take part in any sort of transition at the cabinet/agency head level and probably one or two tiers below. That could be dangerous, as it was for Powell and me in 2000-01 after Florida and only 26 days to transition.”
There is a body of law in place that governs transition, and White House chief of staff Mark Meadows is chairing the White House Transition Coordinating Council, set up in May, with deputy chief of staff Chris Liddell, who headed Mitt Romney’s transition effort in 2012, serving as vice chair and point person for the Biden team.
“He is trying to make sure this is extremely low-key and doesn’t attract the attention of the president, and so far, that’s been working,” says John Podesta, who was Clinton’s chief of staff and helped usher in the Bush team in 2001.
“There are all kinds of ways they could slow things down,” Podesta continued in a telephone interview with The Daily Beast. An early indicator will be the FBI clearance process. Biden, immediately after clinching the nomination, can begin submitting names to the FBI for security clearance. “If they don’t clear people—(FBI Director Christopher) Wray might resist that, but (Attorney General) Barr might order him to do that—you can’t hit the ground running if people aren’t cleared.”
With polls showing Republicans more inclined to vote in person while Democrats favor mail-in ballots, Podesta says Trump appears to be setting up a differential that would allow him to argue that “rigged fake mail-in ballots” don’t count, and the person ahead on Election Day is the winner. Trump said this week there might have to be an election “do over.”
Asked for the top three things he most fears post-election, Podesta cites contested ballots that could take an enormous amount of time and resources to litigate and that, in the worst case scenario, could lead to competing slates of electors in key states like Florida, Pennsylvania, Wisconsin, Michigan and Arizona, where Republicans control the legislatures.
The Constitution gives enormous leeway to legislatures to name electors, and Trumpian governors acting in concert with GOP legislatures could follow Trump’s lead in claiming mass improprieties and fraud—not to say they would be accurate, or that it will work, but it is a ploy that given Trump’s authoritarian impulses must be considered.
The good news for Democrats is that thanks to an 1887 law, which states that the Congress, in deciding which slate to accept, must defer to the one with the governor’s signature, which keeps Pennsylvania, Wisconsin and Michigan—the three blue states that gave Trump his victory in 2016 and now have Democratic governors—potentially out of Trump’s grasp.
“Almost certainly his people will be in the streets,” Podesta continues. “And if his people are in the streets, our people are in the streets.”
The second thing Podesta worries most about is “the suite of things” that could be used to keep the Biden transition team from accessing the government. “You deny them eyes on what’s going on, you blind them from knowing what’s happening for those few months.”
Wilkerson echoes that concern, questioning whether the Trump administration will make its top people available to the Biden team for briefings on sensitive issues like Venezuela policy or Russia sanctions. “We’re talking about implementing a policy of change, but we don’t know from what,” he says.
Podesta’s third concern is what he calls, “You’re on Mike Flynn ice here.” We have one president at a time and Flynn got in trouble for trying to cut a separate deal with the Russian ambassador to potentially undo sanctions President Obama had imposed on the Russians. As tempting as it might seem during the transition, “Whatever they (Biden’s people) do, they should do it out in the open. These authoritarian leaders he likes to hang around with, those are places for mishaps.”
Podesta recalls certain courtesies extended during a handoff between administrations that likely won’t be available from Trump. Clinton at the end of his term had negotiated a missile control regimen with North Korea. “We didn’t want to do it if Bush didn’t want it because he would have to implement it. They (Bush) kind of waved us off.” Clinton didn’t push it.
The gold standard in transitions was Bush to Obama in 2008-09 when Bush chief of staff Josh Bolton arranged for all the living chiefs of staff from both Republican and Democratic White Houses to meet with incoming chief of staff Rahm Emanuel. The notion of Trump COS Mark Meadows assembling such a gathering in the wake of a Trump loss seems unlikely, even preposterous. Also, the Biden people, who are not newcomers to public office, may well conclude they have nothing to learn.
In the four hypothetical scenarios tested by the Election Integrity Project (narrow Trump win, narrow Biden win, big Biden win, and contested outcome), there is one thing in common: protests in the streets of people refusing to accept the results. Edward Foley, a professor of election law at Ohio State University, told The Daily Beast that “our politics are so much more acrimonious than 20 years ago that either side is very unlikely to accept defeat the way Al Gore did. If they had a next move, they would play it.”
Gore conceded the election the day after the Supreme Court ended the recount in Florida, effectively making Bush president. Gore adviser Ron Klain had a plan to fight on that Gore, after sleeping on it, decided against. This time, Obama said in his convention speech that the country and democracy itself won’t survive a second term of Trump. “When you raise the stakes that high, you can’t accept defeat,” says Foley.
The same is true on the Trump side, setting the stage for a contentious battle in the courts and on the streets that could extend well beyond Election Day. Our institutions will be tested, says Foley, but that’s OK. “As long as the president inaugurated is the one who’s supposed to be inaugurated,” Foley said, “the system works.”