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Biden growing impatient with transition but concerned legal action could backfire

The president-elect's team is concerned that taking legal action could risk further delaying the transition.
Image: U.S. President-elect Joe Biden holds online video meeting with governors in Wilmington, Delaware
President-elect Joe Biden at an online meeting with members of the National Governors Association executive committee in Wilmington, Del., on Thursday.Tom Brenner / Reuters

WILMINGTON, Del. — President-elect Joe Biden is growing impatient with President Donald Trump’s refusal to allow his administration to cooperate in the transition, but his advisers are concerned that any legal action to try to force such cooperation could backfire, according to four people familiar with the internal discussions.

The worry is that Biden could be left with little recourse if the courts were to rule against his case, these people said, putting a transition on indefinite hold.

“This work has to start now,” one Biden adviser said.

Biden’s transition team said in the days after he secured an Electoral College victory that he might pursue legal action if Trump didn’t allow the General Services Administration to begin the transition process. But the president-elect quickly sought to tamp down the expectation that his team would take the legal route, urging patience.

Privately, though, people close to Biden said his patience has been wearing thin, and he’s become angry that the transition process is stalled at a time of dual public health and economic crises. Taking legal action is “still an option on the table,” one official said.

“This is serious,” another Biden ally said. “It’s a real concern.”

BIden on Thursday acknowledged the shortcomings of taking the legal route, saying, “it's not going to speed it up considerably.”

"My judgement is that we'll get further along by actually working with our Republican colleagues now,” he said, but added: “We haven’t ruled it out."

If Biden’s lawyers did sue to try to achieve the transition that the law mandates for a president-elect’s team, a lawsuit would focus on the requirement that the GSA ascertain the “apparent winner” in an election to begin the transition process, according to a Biden adviser. But the adviser also noted that the law, as written, is too vague and does not stipulate a timeline for when the cooperation during the transition has to start.

Some of Biden’s advisers are concerned the courts might cement that the executive branch has broad power over transitions, while others believe he could have a viable case given that he is widely seen as the “apparent winner” of the election.

The GSA has said the agency would not ascertain the “apparent winner” of the Nov. 3 election race so long as there are pending legal challenges or active vote counting. The Trump campaign has multiple lawsuits pending and has requested a partial recount in Wisconsin. The deadline for completion of the Wisconsin recount is noon on Dec. 1.

One Biden adviser, noting how carefully the team had been planning for this transition period before the election, said that due diligence included contingencies for Trump's refusing to acknowledge the result or concede. Components of that plan included expressions of patience from the top, as Biden often has given, and downplaying concern while the transition team itself works on an “outside-in” strategy to take stock of federal agencies by working with recently departed officials or groups that conduct business with them.

But twice this week Biden himself has taken a more urgent tone particularly as it relates to the impact it is having on his team’s ability to deal with the Covid-19 crisis.

“We're going to be behind by weeks or months,” Biden said at a roundtable discussion with front-line workers on Wednesday. And Biden advisers are increasingly troubled by the prospect of Trump or his allies seeking to disrupt the casting of Electoral College votes in December — even if they don’t believe it will be successful.

On Thursday Biden, who has previously called Trump’s refusal to concede “embarrassing,” went further.

“He will go down in history as being one of the most irresponsible presidents in American history. It's just out of the — not even within the norm at all,” he said.