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Dec. 4, 2020

Time to amend the Presidential Transition Act of 1963

There are typically about 5,000 federal job openings that a new administration needs to fill; prospective Cabinet and sub-Cabinet nominees need to be interviewed, vetted, and subjected to detailed FBI background investigations. Time and efficiency are of the essence.

Mathew S. Rosengart

Partner, Greenberg Traurig LLP

Entertainment Law, Litigation

1840 Century Park E Ste 1900
Los Angeles , CA 90067-2121

Phone: (310) 586-3889


Boston Coll Law School

Mathewis a former supervisory assistant United States attorney and U.S. Department of Justice Trial Attorney, where he received the Justice Department's Special Achievement Award, among other honors, and is now a litigation partner with Greenberg Traurig, LLP. Rosengart has been recognized as one of the nation's leading entertainment litigators in The Hollywood Reporter's "Power Lawyer Report" and Variety's "Legal Impact Report," and he represents an array of high-profile clients in entertainment and complex commercial and business disputes. Rosengart previously served as an adjunct professor of law at Fordham Law School where he taught "Criminal Procedure and Grand Jury Law & Practice."

On November 7, after careful and extensive deliberation, each of the major networks, including Fox News, called the election in favor of Joe Biden. Customarily, that would have triggered a concession and the General Services Administration's release of funds to the Biden transition team, in order to facilitate the transition process. Given any incoming administration's need to build a government in less than three months, the expeditious release of GSA funds to an incoming administration is always important. There are typically about 5,000 federal job openings that a new administration needs to fill; prospective Cabinet and sub-Cabinet nominees need to be interviewed, vetted, and subjected to detailed FBI background investigations, including the preparation and review of federal SF-86's (intrusive forms the FBI uses to conduct background investigations); and national security briefings, including access to the President's Daily Brief, or "PDB" -- the U.S. intelligence community's classified compilation of pressing world events -- need to occur.

Time and efficiency are of the essence. As Max Stier, a leading civics and transition expert and president of the Partnership for Public Service cautioned in regard to the brief, ad hoc nature of transitions -- which are traditionally left to the good faith and goodwill of incoming and outgoing administrations -- "You have the most important takeover of any organization in history, and it is done in a dangerous and terrible way." Even more starkly, President George W. Bush's Chief of Staff Andrew Card openly agreed with the 9/11 Commission's conclusion that the truncated 2000 transition from president Bill Clinton to president Bush resulting from the Bush v. Gore litigation might have helped facilitate (or at least hindered the preclusion of) the 9/11 attacks.

Thus, while under ordinary circumstances a smooth and orderly transition of power is important, in times of crises, including national and international instability and a once-in-a-century pandemic, it is critical. Indeed, responding to the GSA's refusal to release transition funds and the Trump administration's failure to cooperate in a transition, more than 150 bipartisan business leaders ranging from the CEO of Goldman Sachs to the chairman of Bloomberg urged that President Donald Trump recognize Biden as president-elect so the process could begin. As their open letter provided, "Every day that an orderly transition is delayed, our democracy grows weaker in the eyes of our own citizens and the nation's stature on the global stage is diminished. ... Withholding resources and vital information from an incoming administration puts the public and economic health and security of America at risk." Similarly, more than 100 Republican former national security officials including William Webster and Tom Ridge (the former head of the FBI and CIA, and the former secretary of homeland security under George W. Bush, respectively) wrote that Trump's refusal to concede, as a predicate for a timely and orderly transition, posed a "serious threat" to the country and demanded that Trump "cease his anti-democratic assault on the integrity of the presidential election."

Finally, after two contentious weeks, on November 23, GSA head Emily Murphy declared Biden the "apparent" winner, allowing the release of much-needed funding for the formal transition to begin. Politics aside, what was the legal basis, if any, that allowed for this delay? And why was this monumental decision left to a relatively low-level political appointee, beholden to the existing president?

The answers lie in the vague language of the Presidential Transition Act of 1963, 3 U.S.C. Section 102. Although the act ominously warns that "any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people," its vagueness and lack of a discrete, objective triggering mechanism mandating an outgoing administration to release funds and cooperate are recipes for dangerous confusion and delay.

Specifically, the act provides that transition funds shall be released by GSA to the "President-elect" and "Vice-President-elect," when they "are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the [GSA] Administrator following the general elections." Notably, the act fails to define "apparent successful candidates" and it provides no guidance as to how or when even the best-intentioned GSA administrator must make that determination.

The GSA adminstrator's decision was not designed to be difficult. In fact, Florida Rep. Dante Fascell argued on the House floor during the 1963 legislative debate that the "Secret Service and the Secretary of the Treasury have had absolutely no difficulty in determining who the President-elect . . . might be, so far as carrying out the administrative duties under that law is concerned. Therefore, I do not see why the [GSA] should have any difficulty under the pending legislation." Although well-intentioned, Fascell's views now seem quaint. And they fail to account for an outgoing president's refusal to comply with well-established norms by failing to concede. Essential questions include: When should the GSA act? Are major news network calls enough? What if some networks but not all declare a winner? What if all major networks announce a "winner" but that winner isn't certified by the states? What if a recalcitrant outgoing president effectively holds transition funds hostage, ordering the GSA administrator not to cooperate so long as there is ongoing litigation that threatens to affect election results -- even if that litigation is apparently meritless and the president's own attorney general declares (as William Barr has just done) that the Justice Department has "not seen fraud on a scale that would have effected a different outcome in the election"?

There are no bright-line answers to these questions, and recent events (including those of 9/11) have revealed the act's drastic flaws. Accordingly, Congress should reexamine and amend the act. Indeed, in her November 23 letter announcing her decision to release funds to the Biden transition, GSA administrator Murphy herself urged that "Congress consider Amendments to the Act." In so doing, there are two key issues that Congress should consider. Initially, as Professor Todd Zjwicki argued after 9/11, rather than vesting the power to determine the "apparent" winner (and the power of the purse) exclusively in a relatively minor political appointee of the sitting administration who is subject to political influence (like a GSA head), these powers should instead be vested in an independent, bipartisan commission, perhaps comprised of former government officials from both parties, who sit for 8 or 12 year terms. Second, the phrase "apparent successful candidate" should be defined to include certain objective criteria that, when met, compel the transition process to begin. Those criteria might range from the point at which one candidate reaches 270 electoral votes after a substantial majority of votes are counted (further defined with a fixed percentage), to when, as Professor Zjwicki has suggested, one candidate has "a majority of certified and pledged electors." The latter scenario is less desirable, because, among other things, in addition to creating an incentive for an existing administration to pressure electors, precious transition time could be lost between Election Day, when a candidate reaches the 270 number, and when the results are formally certified. Nevertheless, it would be an improvement over the existing statute.

Regardless of which tack Congress ultimately takes, it is clear that the act must be changed. As former White House Chief of Staff John Sununu testified after 9/11, "A one-month delay now will be reflected in a six month or one-year delay in getting things really started." History has taught that every day is crucial. Even in the best of times, delay can be dangerous. In times of crises that include a pandemic, it can be deadly. Accordingly, as recent events have revealed, it is time to shine a spotlight on the language of the Presidential Transition Act, for the sake of good government -- and for the good of the country. 


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