Resisting Reality

            It took more than two weeks after the nation’s major news organizations declared Joe Biden the winner of the 2020 election for Emily W. Murphy, the Director of the General Services Administration, to issue a letter marking the commencement of the presidential transition process.  While the GSA’s principal function is to manage the facilities of the federal government, it is empowered by the Presidential Transition Act of 1963 to oversee the transition from one administration to the next, a process that begins when its Director “ascertains” the identity of the “apparent winner” of the presidential election. 

            The Transition Act was intended to assure that government services would continue uninterrupted and the security of the nation would not be endangered in the wake of a new president’s inauguration. The statute places the responsibility of determining election’s “apparent winner” solely on the GSA Director because the sitting president could have a conflict of interest, a possibility that has been made clear in this year’s election.  In order to provide the incoming president with the maximum amount of time to prepare his/her administration, the law does not call for the GSA Director to wait until the Electoral College has acted or even until there has been a concession by the losing candidate, but rather until the likely winner can reasonably be identified.

            Declaring the “apparent winner” of a presidential election has ramifications that go far beyond simply adding the Director’s name to a chorus of others who have already reached the same conclusion. The GSA Director’s recognition of the “apparent winner” starts the whole presidential transition process.  It entitles the incoming president’s transition team to office space and money with which to conduct its efforts to secure personnel who will staff the new administration and to facilitate obtaining the requisite security clearances for those individuals.  It also opens the door for the new president to receive intelligence briefings and for his/her team to interact with the current president’s transition staff so they can better prepare for the challenges that they will face. In this way, the team can develop plans for carrying out the new president’s agenda. This year the need for thorough preparation is more critical than in past presidential transitions because of the ongoing threat of the coronavirus pandemic and the nation’s rapidly deteriorating economy.

            In the almost sixty years since the Transition Act has been in effect, the determination of the “apparent winner” has only once proven to be a problem. That was following the 2000 election, the resolution of which did not become evident until December 12th when the Supreme Court’s issued its decision in Bush v. Gore.  In most election years, however, the GSA Director’s determination has been made the day after the election was held. While the high volume of mail ballots prevented the election’s outcome from being determined on the night of the election, all of the television networks were able to make that determination by the end of the week. Yet, for reasons which GSA Director Murphy declined to explain, she delayed for over two more weeks before declaring Vice President Biden to be the President-elect.

            The obvious explanation for her delay was that President Trump was himself proclaiming victory and his reputation for not acting kindly toward those who contradict him had not escaped her. In a very real sense, she was like a deer caught in the headlights wanting to bolt but not knowing in which direction safety lay. It would have been altogether imprudent (as well as uncharacteristic) for the President to have instructed the GSA Director to delay making her determination.  Her two-plus week failure to proceed in the face of the uniform determinations of the television networks was already arguably, if not conclusively, a criminal violation.  Thus, encouraging her to continue to ignore her legal duties would have made the President a party to her crime. On the other hand, to say nothing might have conveyed the false impression that he was ambivalent as to how she should proceed. The White House, therefore, sought to circumvent this issue by rushing out a statement proclaiming that it had had no communications with GSA Director.  This was neither a blessing nor a condemnation of her actions, but rather a not-so-subtle hint that she should continue to delay making her determination. She maintained this position until election officials in both Michigan and Pennsylvania had determined Biden to have won the elections in their states.

             As an attorney who had worked at GSA during three prior presidential elections, Ms. Murphy was clearly aware of her legal responsibilities.  She had even sought the advice of her agency’s legal counsel and one of her predecessors, the latter of whom is reported to have advised her to delay no further.  Still she chose to ignore the unambiguous wording of the statute as well the gratuitous advice of political pundits and even a host of former government officials and business leaders.  On top of that, she was reportedly receiving threats against herself, her family and even her pets for her refusal to act.  It raises the question why would an obviously bright and knowledgeable public servant expose herself to criminal liability and infamy in this fashion?  Understanding her actions requires an analysis of what we can infer was going through her mind. 

             One of the President’s less appreciated qualities is that he is exceeding proficient in getting people to do what he wants them to do even without actually giving them explicit instructions. As Michael Cohen, one of the President’s many former attorneys, has explained, “the President operates like a mob boss.” Every time someone does something that displeases him, he simply terminates their employment, making it clear that the individual’s unceremonious departure was due to something that he or she had said or done to earn the President’s ire.  In this way, he doesn’t have to actually instruct his subordinates what to do.  He simply has to state what he would like to happen, usually via a tweet to his 60 million Twitter followers. The list of people within his administration that he had already fired for not making his desires come true was so long that Ms. Murphy clearly must have understood what would befall her if she did not act as the President expected her to do.  The President’s modus operandi thus has a dual effect: it removes those who are immune to his bullying and it serves to intimidate those who are not. Ms. Murphy appears to have been among the latter group.

             During the two-plus weeks that Ms. Murphy chose not to act, she ignored assertions by Vice President Biden and a host of former public officials that her continued failure to act was putting lives in danger because the Vice President’s incoming team could not begin to develop plans for the distribution of the coronavirus vaccines now being produced by Pfizer and Moderna.  With the virus claiming roughly 1,500 lives a day, even a few days of delay in initiating the vaccination process might consume more lives than were lost on 9/11.  These warnings, however, proved unpersuasive (perhaps because they related to the lives of others). The considerations preventing her from fulfilling her statutory duty were those that would adversely affect her personally; namely, her loss of employment and the humiliation that would surely be visited upon her by the President.

            The only thing that might have motivated her to act was a realization that she was facing a realistic possibility of criminal prosecution. Weighing this possibility, I’m sure she took comfort from the fact American leaders have a tradition of not asserting criminal charges against personnel serving in the prior administration. She was also undoubtedly aware that Vice President Biden had already stated that he did not favor pursuing criminal charges against members of the Trump administration.

             Director Murphy would have also considered what defenses she might be able to assert should the incoming Attorney General or a renegade U.S. Attorney harbored different feelings about pursuing a member of a prior administration.  There has never been any litigation involving the GSA Director’s compliance with the dictates of the Presidential Transition Act.  Thus, she might contend that she had no clear duty to act under the given circumstances. Considering the purposes of the statute and the fact that all of the major news organizations along with a handful of Republican Senators had already concluded that Vice President Biden was the apparent winner, that argument probably would  not have passed the “red face” test. In addition, she had already begun the process of looking for a new job and that certainly would not have helped her case.  Thus, throwing herself on the mercy of the jury could prove to be an unwise choice, particularly if the delay that she had caused turned out to have tangible and traceable detrimental effects.

             Also passing through her mind must have been the possibility of a presidential pardon.  After all, she was helping to keep the President’s election hopes alive.  She had also proven her loyalty by carefully ignoring the fact that the lease covering the President’s Washington hotel prohibits it from being owned by a government employee. In addition, she had scuttled the FBI’s plans to sell the its building to a real estate developer intending to use the property to erect a hotel that would compete with the President’s.  But, would her past deeds be sufficient to warrant a pardon or would the President simply reject that idea, concluding that he would no longer have need for her services?  Equally disquieting was her recognition that of the more than two dozen pardons the President had already granted, none had been bestowed on a woman.  Even these thoughts seemed less troubling than the fact that it wouldn’t be clear that she would even need a pardon until after the President had left office.

            In the end, the GSA Director chose to take her chances and wait until after election officials in Pennsylvania and Michigan had certified Biden’s slate of delegates to the Electoral College, actions which would seal President’s loss.  Accordingly, on Friday, November 20th, she informed the White House that she would be making her determination on the following Monday when those actions were scheduled to take place.  The President magnanimously responded by tweeting that he had instructed Ms. Murphy to proceed.

             This unusual chain of events raises questions as to why President Trump has been so determined to be declared the winner and why it was so important that GSA Director Murphy delay her finding as long as she could.  One obvious answer is that the President is facing a number of potential criminal charges and a second term, during which he would effectively be immune from prosecution, could shield most of his crimes during the remainder the relevant statutes of limitations.  This reasoning, however, fails to take into account the President is a one-man crime wave which has continued during his current term in office and is likely to continue were he to serve a second term.  This means that many of his actions would remain subject to criminal prosecution even after a second term. Even so, another four years in office for a 74-year-old man represents four more years that he would not be spending behind bars.

            The President, however, may not need a second term to avoid criminal prosecution for federal infractions. President-elect Biden has already voiced his disinclination to pursue litigation of any variety against his predecessor.  There was also a good chance that Biden’s Attorney General and the U.S. Attorneys in the three key federal court districts might similarly be inclined to uphold the nation’s tradition of not seeking vengeance on the members of a preceding administration.  He could also buy himself some insurance against criminal prosecution by granting himself a pardon, or better yet, enticing Vice President Pence to do so following his own timely resignation. That would still leave the possibility of his facing criminal charges initiated by the New York Attorney General and the Manhattan District Attorney. Neither his re-election nor a pardon would give him a free-pass with respect to such state-based actions or against the various civil charges he might face. Nevertheless, holding on to the White House would at least provide significant assurance that he would not have to face federal civil tax claims.

            Another likely answer is that the President has a pathological fear of being viewed as a “loser,” a title that he relishes pinning on his adversaries.  Being a “winner” is a part of his brand; and his brand is vitally important to him. That’s why he insists that all of his loses are attributable to unsavory conduct on the part of his adversary. He also operates under the belief that if you are viewed as a “winner,” others will gladly associate themselves with you.  For that reason, he often races to claim victory even in situations in which he has suffered defeat. 

             The President’s old friend, Anthony Scaramucci, has suggested that the President is claiming fraud and drawing out the possibility of an election victory simply to raise additional monies from his supporters to pay his debts.  He has been doing this with Save American, his new super-PAC, which is purportedly seeking funds with which to continue his legal efforts to disqualify votes for Biden in the key battleground states. In Trump fashion, the fine print in his solicitation efforts provides that only individual contributions over the threshold amount of $5,000 will actually go to his legal defense efforts.  All other proceeds get split between Trump and the Republican National Committee. Trump operates under the Grifter’s Code which provides that once you identify a “mark” keep at him until you have bled him dry.

             Scaramucci and others have also suggested that Trump is drawing out the election, depicting himself as a victim so as to solidify his hold on the Republican voters.  This will enable him to exercise control over the Republican Party during the Biden presidency and possibly position him to run again in 2024.  It also will have the added benefit of helping him secure a featured role on talk-radio, TV or right-wing media which could be worth scores of millions in compensation that could enable him to pay off his large debts that are coming due over the next few years.

            There are two other reasons that explain why Trump has chosen to defer the election’s inevitable conclusion.  The first is that he wants to propagate the notion that Biden was elected by foul play and, therefore, is undeserving of the respect and deference normally accorded a sitting president.  These machinations have also helped delay the new Biden administration’s access to what is transpiring inside the government and Trump has been using that time to take actions which will make life for the incoming administration that much more difficult. In this way, he is showing what a “bad loser” he can really be.

            While Trump’s merry band of legal charlatans have been hop-scotching from one battleground state to the next making absurd and unsupported claims of election fraud and losing one court case after another, most Republican legislators have been uncharacteristically silent.  Admittedly, Lindsey Graham and Ted Cruz both echoed Trump’s claims of voter fraud, and Mitch McConnell voiced his support for the President’s right to seek to demonstrate that he is the true winner of the election. And yes, a handful of Republican senators broke ranks and called upon the President allow the transition process to begin. Still, the vast majority of elected Republicans have chosen to remain silent even after the GSA Director named Biden to be the President-elect. 

            It’s not that their actions represent a refusal to recognize reality, it’s just that their silence represents the recognition of another reality. They understand that, as a result of the President’s actions, 77% of Republican voters have now come to believe that Joe Biden’s election was the result of voter fraud.  This is incontrovertible proof that Donald Trump has seized control of the hearts and minds of their supporters and their silence is a simply a recognition that their political futures are now captives of that narrative.