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Terry H. Schwadron

We’re quickly seeing the effects of Donald Trump’s resistance to conceding his electoral loss in a petulant and stupid refusal to follow through on appropriate, expected and necessary cooperation on setting up the myriad aspects of the presidential transition.

Even as Trump commands a dwindling number of Republicans willing to say the election remains unsettled, his administration is stuck trying to carry out Dear Leader’s wishes, as will be the case for the next two months.

The result pits a restless Joe Biden and company, who seem over-eager to jump in on governing during the malaise of a paralyzed Trump White House, against the “Steal-the-Election” crowd over issues that have nothing to do with elections, but concern the normal takeover planning duties.

There’s nothing wrong with giving Joe Biden access to the daily presidential briefing even while pursuing court cases about supposedly fraudulent votes. There is nothing wrong with cooperating on behalf of the country – but Trump prefers petulance and personal pique.

• Emily Murphy, head of the General Administrative Services (GSA), so far is refusing to provide office space, computers and the $10 million in congressionally approved money for transition activities.
• Trump’s abrupt firing of Defense Secretary Mark Esper and other members of his own administration whom he perceives as opposing him is adding to transition problems by introducing new appointees late in the administration’s days. Why this had to wait until now is confusing and potentially dangerous to national security. Is Trump planning something else that Esper would oppose, including withdrawal of the last U.S. troops in Afghanistan or a new action against Iran?
• The Trump White House may be destroying, encoding or hiding national security records, despite a Presidential Records Act that Trump apparently finds optional, say White House sources. We or the Biden administration may never see the transcripts of Trump calls with Russian President Vladimir Putin, for example, or the impeachable call with the Ukrainian leader.

However long the Trump tantrum, it will come to an eventual end – or end up creating the nation’s most severe constitutional knot ever if Trump tries to get the Supreme Court to overturn a decision by 74 million voters, a four million-vote majority.

Biden’s Complications

Meanwhile, the Biden would-be steamroller looks to be working to fend off early hints of political problems even in picking its own team – both from Senate Republicans, whose majority is hanging on two runoff elections in Georgia, and from the left, where progressives are seeking input into more liberal choices for some key Cabinet positions.

Poliico.com has offered a useful, if early, assessment of top contenders for most Cabinet selections while noting that Republicans are already at work to keep to the most moderate choices and progressives pushing for more openly liberal candidates. What is immediately apparent is that the proposed names include a much more diverse picture of players than any view of the Trump team, and seems to favor actual technical or subject-matter expertise. Under the banner of attacking the “deep state,” Trump preferred appointees who actually hated regulation by the departments they were to oversee.

Biden’s team is driving for urgency in attacking the list of Trump executive orders that can be overturned simply because they were never backed by legislation. An early list starts with moves to restore ways to shore up Obamacare that Trump had undercut to can canceling efforts to undercut Civil Services protections for federal workers.

Plus, each incoming administration has to fill about 4,000 positions, and reports suggest that this process is already underway.

On top of all of this, Biden’s team will be reaching out to key people in Congress. In the case of Speaker Nancy Pelosi, presumably friendly conversations are needed to align agendas and the order in which to seek legislation, particularly with a potentially opposition Senate. In the case of Senate Majority Leader Mitch McConnell, it will be to find areas of commonality to tackle either together, or with minimal opposition. So, some kind of stimulus package will be upfront, possibly followed by such topics as infrastructure and outdoor construction jobs during a pandemic.

For Biden, the transition is about lining up the dominoes to start falling on Day One.

National Security Records

Of all of these, the most curious may be compliance with the Presidential Records Act, presuming we get by this temporary resistance to accept election results and reach the detail of actual transition.

The National Archive already is going to have its hands full trying to determine if all the presidential tweets are part of the presidential records – advice is that they are. Just preserving them and figuring out how to catalog them will be a chore.

But larger issues loom for national security documents and transcripts.

“The mysteries have swirled over the past four years: What was really said during Trump’s many phone calls and one-on-one meetings with Russian President Vladimir Putin? What has Trump’s son-in-law Jared Kushner discussed with Saudi Arabia’s Prince Mohammed bin Salman on WhatsApp, where messages can be automatically deleted? Did Trump’s aides memorialize any of the reported conversations he had with U.S. and foreign officials about boosting his business empire?” asked Politico.

With no real enforcement teeth, the Presidential Records Act requires a president to preserve and ultimately make public all records relating to the performance of official duties, through the Freedom of Information Act beginning five years after the end of an administration.

The National Archives says the act covers any documentary materials “created or received” by the president, immediate staff, or anyone in the Executive Office of the President. But Trump likes to rip up documents and has made clear he is also hostile to note-takers. Trump also confiscated notes taken by an interpreter during one of his first meetings with Putin. He has kept his letters with North Korean leader Kim Jong Un private.

Of course, other agencies keep copies of their records, and all emails are archived. Still, presidential daughter Ivanka and Jared Kushner made frequent use of private email servers, ironically the source of continuous Trump criticism of Hillary Clinton.

As has become usual with Trump, we cannot count on him doing his job even in transition.

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