The head of the General Services Administration has yet to recognize the incoming Biden administration — a delay that could have consequences for the president-elect's plan to move swiftly on the coronavirus.
More than 48 hours after media outlets projected that Joe Biden had defeated President Donald Trump to win the White House, GSA chief Emily Murphy had yet to sign the letter of "ascertainment" — a previously mostly noncontroversial process since the passage of the Presidential Transition Act of 1963. Signing the paperwork when a new president is elected triggers the release of millions of dollars in transition funding and allows an incoming administration access to current government officials.
Murphy was appointed to the job by Trump in 2017.
With the ascertainment delayed, the Biden transition team has been prevented from meeting with officials heading Operation Warp Speed and other Trump administration coronavirus efforts.
"America's national security and economic interests depend on the federal government signaling clearly and swiftly that the United States government will respect the will of the American people and engage in a smooth and peaceful transfer of power," a Biden-Harris transition spokesperson said Monday in a statement.
The Biden transition official said Murphy's hold-up could also affect the Biden team's access to classified information for incoming national security officials; access to secure locations for private discussions about personnel, budget and policy issues; and access to the $6.3 million of congressionally appropriated funds designated for transition activities, office space and equipment.
Asked later Monday whether Biden's team might take legal action to force the GSA to recognize the transition, a Biden transition official said: "Legal action is certainly a possibility. But there are other options, as well, that we are considering."
Chris Lu, who led President Barack Obama's transition in 2008, said: "Close cooperation between the outgoing and incoming administrations is always important, but it's especially critical when the country is facing a public health crisis and an economic recession.
"It's time for Donald Trump to put the national interest above his political interest," he added.
Maryland Democratic Sens. Ben Cardin and Chris Van Hollen sent a letter to Murphy Monday urging her to officially recognize the presidential transition.
“We hope you will recognize that every hour between now and January 20, 2021 is critical for the transition team’s preparations for taking on the multiple, pressing challenges our nation faces," they wrote, reminding Murphy of the 1963 law that requires her to certify the start of the transition.
"In the spirit of national unity and common purpose in addressing the needs of the American people, we request that you extend the necessary funding, resources, and assistance to the transition team upon their request and without delay."
On Capitol Hill, Sen. Mitt Romney, R-Utah, who congratulated Biden on his victory, was asked if the GSA should finalize the election.
"Yeah, they should. There’s a very likely prospect that there will be a change in administration and for the purposes of smooth transition and national security, we have a national interest in the transition proceeding as rapidly as can be done."
In a statement to NBC News on Tuesday, the Office of the Director of National intelligence said it will not communicate with the Biden transition team until GSA decides it’s clear who won the election.
“ODNI follows the statutory direction provided in the Presidential Transition Act, which requires ascertainment of the candidate by the administrator of GSA prior to supporting a potential presidential transition,” the statement said. “ODNI would not have contact with any transition team until notified by the GSA Administrator.”
There has been little controversy around such paperwork after previous elections, and this marks the most significant delay since 2000, when the outcome of the election between George W. Bush and Al Gore hinged on a Supreme Court ruling during the Florida recount dispute.
The GSA did not indicate Monday when the paperwork would be signed. Trump has refused to concede the election, promised legal battles and said he would ask for a recount in Wisconsin. It appears as of now that no legal challenges have been filed that could overturn Biden's Electoral College victory.
"An ascertainment has not yet been made. GSA and its Administrator will continue to abide by, and fulfill, all requirements under the law and adhere to prior precedent established by the Clinton Administration in 2000," a GSA spokesperson said, pointing to the transition from President Bill Clinton to Bush.
Initially, the spokesperson said Sunday, the agency "does not pick the winner in the presidential election," adding that the administrator "ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution."
"The administrator's ascertainment is done for the purposes of making additional services provided by the PTA (Presidential Transition Act) available," the spokesperson said.
"Until an ascertainment is made, the statute allows for the Biden Transition Team to continue to receive the pre-elect services from the government (e.g., office space, computers, background investigations for security clearances). GSA has met all statutory requirements under the PTA for this election cycle and will continue to do so."
When the ascertainment was delayed by more than a month in 2000, Bush administration officials like Vice President Dick Cheney said such delay was dangerous for national security.
Norman Ornstein, resident scholar at the American Enterprise Institute, said a delay of a few days or a week is "no great problem."
"If it goes on longer, [it is] a potentially very big problem," he said, adding that it is most concerning as it relates to the pandemic and national security matters. "This is a disturbing sign."
Meanwhile, the Partnership for Public Service's Center for Presidential Transition said in a statement Sunday that it was time for the transition process to begin.
The statement was signed by veterans of Democratic and Republican administrations, including former Bush chief of staff Josh Bolten and former Bush administration Health and Human Services Secretary Michael Leavitt.
"While there will be legal disputes requiring adjudication, the outcome is sufficiently clear that the transition process must now begin," the statement said, adding, "We urge the Trump administration to immediately begin the post-election transition process and the Biden team to take full advantage of the resources available under the Presidential Transition Act."