As America turns its attention to the Republican National Convention this week, the Trump administration’s lack of transparency and failure to meet legal requirements governing the presidential transition process are cause for alarm.
Experts have found that a smooth presidential transition helps to ensure that ethics and national security infrastructure are in place for a new administration. Transitions are critical to government functions, even when an incumbent president is re-elected. Unfortunately, President Donald Trump's administration has provided little public information about this essential democratic process.
Experts have found that a smooth presidential transition helps to ensure that ethics and national security infrastructure are in place for a new administration.
Under federal law, an incumbent administration must report to Congress about its preparations for presidential transition. That’s exactly where the Trump administration’s failures began, after issuing its six-month progress report late, in May, and failing to address key questions, like how the administration is handling logistical challenges caused by the coronavirus or if there are pandemic experts advising its process. The administration’s three-month transition report was actually delivered on time at the beginning of August but remains thin on the details and deadlines needed to provide accountability.
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In May, my organization, CREW, requested documents from six federal agencies integral to a presidential transition to elucidate how the administration was preparing for a second Trump term or to transfer power to his successor. So far, we’ve received only a handful of documents.
On Aug. 3, we sued the agencies, including the Department of Justice, Office of Government Ethics and National Archives and Records Administration to get the information. In July, Government Executive reported that pursuant to its own records request, the Trump administration “redacted the meeting minutes pertaining to its presidential transition activities, which are required by law, raising concerns from former officials and experts.”
Promoting ethics in government is one key function of any presidential transition, which of course is one of the reasons why we’re so invested in making sure this transition is on track. To that end, OGE reviews “the financial disclosure reports of prospective Presidential nominees,” its website says, to resolve potential conflicts so they have a swift confirmation and “serve with integrity.” Regardless of who wins in November, their cooperation with OGE will be essential to building and maintaining an ethical government.
Trump had a notoriously chaotic transition to start his first term — and that chaos had consequences. A 2017 congressional report found that the “Trump Transition Team consistently ignored advice from the Office of Government Ethics (OGE) - resulting in ethical crises that extended beyond the transition period into the Trump presidency.”
According to CREW’s calculations, Trump’s failure to heed OGE’s advice to divest from his business has led to more than 3,300 conflicts of interest related to the Trump Organization. Obtaining OGE communications about the “critical milestones” for presidential transition in 2021 would reveal whether the Trump administration is following OGE’s guidance this time around.
As scholar Martha Joynt Kumar writes in her book “Before the Oath,” "perhaps the most important organizational and policy element of a contemporary presidential transition is the national security piece." After the terrorist attacks of Sept. 11, 2001, national security experts recognized presidential transitions as a point of vulnerability, especially following significant departures from the White House during a change in power. As a result, in 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act, requiring DOJ to conduct background checks and eligibility determinations that prospective transition team members need to access classified information after Election Day.
DOJ must also ensure it “is ready to work with the Office of the President-elect in providing security clearances for appointees and staff of the incoming administration,” a 2008 DOJ press release said. One need only recall the red flags raised about Trump’s national security adviser Michael Flynn, who later lied to the FBI about his communications with Russian ambassador Sergey Kislyak, to appreciate the significance of DOJ’s role in the security clearance process during a presidential transition.
While Attorney General William Barr continues his attempts to subvert the 2020 election by doubling down on Trump’s attacks against voting by mail, DOJ has failed to provide any documents in response to CREW’s Freedom of Information Act requests for communications about DOJ’s compliance with the laws governing presidential transition. This secrecy exacerbates concerns about whether Barr and DOJ are appropriately preparing for this process.
Another essential agency in the transition process is NARA, which is tasked with preserving presidential and agency records from the Trump administration. Unfortunately, we can’t know if the White House has begun transferring documents to NARA — but that’s why public disclosure of NARA’s communications with the White House related to the transition are so critical.
This secrecy exacerbates concerns about whether Barr and DOJ are appropriately preparing for this process.
Records from the Trump White House and political appointees are not only essential to the government’s institutional memory; they are necessary to evaluate or investigate an administration defined by corruption and, in far too many cases, criminality. Accountability for these myriad abuses is critical to restoring an ethical and trusted democracy. There can be no such accountability without documents, which is why NARA must produce more information about its transition process and take “all necessary steps” to prepare, including preventing the destruction of records should Trump lose.
Trump is the first president running for re-election to have to meet many of the new legal standards passed by Congress governing the transition process, but his administration's track record of violating the law does not engender confidence. Congress and the good-government community must use all available tools to ensure the Trump administration implements a transparent and effective transition.
The president has already taken numerous steps to undermine the upcoming election, including suggesting that Election Day be postponed and refusing to commit to accepting the results. These actions heighten concerns that Trump is not adequately preparing for the peaceful transition of power. Even if Trump wins re-election, a smooth transition will be critical to our national security and reversing some of the significant ethical failures during this term. Without transparency in and oversight of the presidential transition, our democracy and our nation could be at risk.
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