Joe Biden may file lawsuit to make transition happen; experts wary

President-elect names aide Ron Klain as White House chief of staff

US President-elect Joe Biden is looking to get Donald Trump to stop delaying his transition and could file a lawsuit this week. But, legal experts say that this move could backfire in Biden’s face, if a judge took the President’s side and handed him the election. 

By law, the head of the General Services Administration (GSA) is charged with recognising “the apparent successful candidate” in a presidential election and (if necessary) disbursing crucial funds and resources — such as office space, computers, phones, printers and so on — to the incoming administration to smooth its transition. This allows the new team to meet with executive-branch agencies, access essential documents, and otherwise hit the ground running after Inauguration Day.

True to form, the Trump administration is blocking the standard bit of civic diplomacy. Murphy has yet to acknowledge Biden’s victory. The $6.3 million Congress has appropriated for the process has yet to be doled out. And Biden’s team has been left to make the best of things. (“I think it will not help the president’s legacy,” Biden said Tuesday, summoning perhaps more tact than the situation called for.) 

While holding up the decision aligns with Trump’s claim that the election isn’t yet decided, his assorted legal challenges have no prospect of success and releasing the resources wouldn’t amount to a concession anyway. The delay is simply a slight to the rightful victor, an affront to voters and an assault on the norms that usually guide the transfer of presidential power. It will only make life harder for the transition team and hence for the country. 

It also raises serious national-security concerns. Without the administrator’s say-so, Biden can’t receive top-level military and intelligence briefings. His staff won’t have access to secure facilities or sensitive documents, and his transition team can’t request background checks or security clearances for potential nominees. All this will make it more difficult for the next president to promptly appoint officials to critical positions. This isn’t a theoretical worry, nor does it apply to only one party: The September 11 Commission found that delays following the disputed 2000 election — which cut the normal transition time in half — may have impeded George W Bush’s national-security team from getting key personnel in place in time. 

Meanwhile, Biden has tapped veteran political operative Ron Klain as Chief of Staff, elevating his "invaluable" longtime aide to one of the most powerful positions in the White House.  The White House Chief of Staff manages the president's daily schedule. He is often described as the president's gatekeeper. According to Reuters, a Biden transition official said it was time for the GSA's administration to grant what is known as an ascertainment recognising the president-elect, and said the transition team would consider legal action if it was not granted.

"Legal action is certainly a possibility, but there are other options as well that we're considering," said the official.

The transition team needs to be recognised to access funds for salaries, consultants and travel, as well as access to classified information. In addition, the team has no access to the State Department, which usually facilitates calls between foreign leaders and the President-elect.