Updated November 22, 2024 at 17:09 PM ET
On the surface, President-elect Donald Trump's transition is ahead of schedule, with intended nominees for almost all Cabinet posts already announced. But, because of a paperwork problem, Trump's team is behind when it comes to the nitty-gritty of taking over the controls of power. They are missing out on access to agencies and national security briefings meant to help the incoming administration hit the ground running.
Now nearly three weeks after the election, the Trump transition has failed to sign at least three required formal agreements, memoranda of understanding, with the Biden administration. Under law, two of these documents were supposed to have been signed by Oct. 1.
One of the results of that is that the president's Cabinet picks aren't getting the FBI background checks that the Senate has traditionally required before confirming them.
"This failure undercuts the fundamental purpose of presidential transition laws," wrote Sen. Elizabeth Warren in a letter sent Thursday to the Biden administration.
Warren's letter, meant to draw attention to this delay, demanded that the Biden administration explain why they haven't been able to get the Trump team to sign these agreements.
"In effect, President-elect Trump is undermining his administration's ability to manage urgent national security threats, health and safety threats, and serious conflicts of interest starting on day one of his presidency," the letter states.
A lot of work was done to standardize and improve the transition process following a commission report on the Sept. 11 terror attack. One of the lesser-known findings is that the lengthy dispute over the presidential election in 2000 cut into the transition period in half — and that contributed to the lack of preparedness.
"This loss of time hampered the new administration in identifying, recruiting, clearing and obtaining Senate confirmation of key appointees," the report said. The changes that followed included accelerated access to agencies and background checks, so the incoming administration wouldn't miss a beat.
In a statement, the Trump transition says it hasn't ruled out signing the agreements.
"The Trump-Vance transition lawyers continue to constructively engage with the Biden-Harris Administration lawyers regarding all agreements contemplated by the Presidential Transition Act," said Brian Hughes, a Trump-Vance transition spokesman. "We will update you once a decision is made."
This is nearly word for word what they said more than two weeks ago.
The Trump team is moving at a rapid clip
While Trump hasn't taken the formal steps to gain access to the government he will soon lead, he has already announced more than a dozen Cabinet picks, putting him well ahead of schedule.
At this point eight years ago, Trump had only announced one pick, his attorney general; meanwhile, President Biden hadn't announced anyone at this point in his transition. But people who study presidential transitions say this pace masks a real worry: Trump's transition is actually behind schedule in other ways and appears to be skipping the usual vetting processes.
It's easy to put out a press release, but the actual process of getting someone ready for confirmation is hard. Just look at what happened with Trump's first pick for attorney general, former congressman Matt Gaetz. He withdrew himself from consideration after days of churn around a House ethics investigation into accusations of sex with a minor and drug use. Gaetz has said the allegations are without merit.
The whole point of the transition period is to set the new administration up for success and to make sure there isn't a lapse as one administration hands over the keys to the next. David Marchick, who wrote a book about presidential transitions, says he sees no indications the Trump team is doing the behind-the-scenes work needed to get these nominees properly vetted and ready for confirmation hearings in early January.
"That's really important so that the government can be truly staffed, so the country is as safe as possible and the government is running as effectively as possible," Marchick said on a call this week put on by the Council on Foreign Relations. "None of that is happening today."
What's needed for confirmation
The Senate has traditionally required three things before moving forward with confirmation hearings: an FBI background investigation, an ethics agreement with the Office of Government Ethics and responses to a detailed questionnaire.
The ethics agreement comes at the end of a process where a prospective nominee works through and resolves conflicts. In some cases it requires divesting stock or otherwise unwinding business relationships. And traditionally this begins long before a nominee is even announced.
"There's just no way Trump has cleared these recent nominees through the Office of Government Ethics, because we know that process takes weeks," said Walter Shaub, a former director of the office who tangled with the first Trump administration over ethics.
In 2017, Senate confirmation of some of Trump's nominees was delayed because they had so many potential conflicts to unwind. Shaub fears the lesson Trump and his allies learned from that experience is the wrong one. Rather than getting started earlier, he suspects they are trying to do an end-run around the entire process.
"The only enforcement mechanism is on the back end, which is the conflict of interest law which makes it a crime for an executive branch official, other than the president or vice president, to work on things in which they have a financial interest," Shaub said.
But he said there's little risk of a Trump administration Justice Department pursuing such a case.
"They can be absolutely certain that they will never be prosecuted for ethics violations," Shaub predicted.
As for FBI background checks, the Trump transition hasn't yet signed a memorandum of understanding with the Justice Department that is needed to begin the process. Trump also harbors deep distrust for the FBI after facing multiple investigations during and after his presidency, including a search of his Mar-a-Lago resort.
In a statement, the Department of Justice said it was committed to ensuring an orderly and effective transfer of power.
"We are prepared to deliver briefings to the transition team on our operations and responsibilities, and we stand ready to process requests for security clearances for those who will need access to national security information," it said.
Chris Christie, who ran Trump's 2016 transition until he was fired two days after the election, said on the Council of Foreign Relations call that he is confident these background checks will ultimately happen.
"The president-elect has made clear that he has no use for the entire Department of Justice," said Christie. "But the Senate will demand it, so FBI background checks will be done on these folks, because the Senate will demand that they be done."
But just how much of its traditional prerogative the Senate will demand remains an open question. Republicans will control the chamber in January, so what exactly the new committee chairs will require may not be clear until early next year.
Some senators have expressed a desire to see background checks, for example, but have not indicated if they would hold up Trump's picks without them or if they would hold the line on ethics agreements.
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