As I’ve said many times, the President doesn’t need to concede. He has a warrant to exercise the executive powers of the United States until noon on January 20th when that warrant expires. He can board himself up in the White House and refuse to come out. But it doesn’t matter. That’s it. But that’s January 20th, more than two months from now. The modern presidency has a formal process called the transition, which goes back to 1963. That’s a matter of statutes and there a defeated incumbent President has some room to play games. Trump is already doing that.
Legally the transition is a process that allows the incoming President to get up to speed to become President, to get the keys literally and figuratively. The incoming team starts getting briefings, starts getting a budget to run background checks on new staff and nominees, budgets to get everything ready. But the decision to start that process comes down to a Trump appointee who runs the Government Services Administration. That is an important but mundane and little remarked agency that basically serves as the government landlord, runs the buildings and so forth.
That person, Emily W. Murphy, has to write a letter that says it’s clear who won in advance of the electoral college actually meeting. So we’re going to start this process. So far President Trump has prevented her from making that finding and writing that letter. So all the stuff that normally happens cannot happen. At least not yet.
As I said, this doesn’t fundamentally change anything. But it risks making the whole process much bumpier and getting the Biden administration off to a slow start.
I don’t think this can go on until January. The electors meet and vote in the states on December 14th and their votes must be received by the President of the Senate by December 23rd.
Those are hard constitutional facts. To date, the head of the GSA can reasonably say that we don’t really know as a fact who the next President is. Most states really are still counting and I don’t think any of them have certified their results. The point of the Presidential Transition Act is to allow things to get prepared in advance of these formalities. By December 14th we will know. And I suspect that will force Murphy’s hand. But until then, if President Trump doesn’t admit he lost, we’re in this holding pattern.
Again, this isn’t about who gets to be President. It’s about allowing the new President access to information and budgets and government services that allows them to prepare to be President. As you’d expect, President Trump is exploiting his rapidly evaporating power to make it as complicated as possible.