As states continue to certify the results of the 2020 presidential election and courts weigh in on various legal challenges to it, the federal government is preparing for the Jan. 20 swearing in of President-elect Joe Biden. The presidential transition from Donald Trump to Biden began last week, when Biden announced picks for top roles in his administration and the federal government allocated more than $6 million for transition-related expenses, such as hiring new staff.
Trump refuses to concede and claims the election was “rigged,” assertions the Associated Press has deemed “all wrong.” Meanwhile, vote recounts in two swing states — Wisconsin and Georgia — confirm Biden won there. On Dec. 14, electors from the Electoral College will meet in each state to cast ballots for president and vice president.
Until this year, the transfer of power from one U.S. president to another had been a relatively smooth process, with some exceptions. An example: the truncated transition for President George W. Bush in 2000, thanks to a lengthy legal battle that stopped a recount in Florida, handing Bush a narrow win over his Democratic opponent, then-Vice President Al Gore.
“All U.S. presidents, whether reaching the two-term limit (set by George Washington’s precedent and then by constitutional amendment) or defeated for reelection, have left office peaceably and often with an offer to assist the incoming president in the smooth transference of power,” writes Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center, on a university blog.
Perry told Journalist’s Resource that news outlets play a crucial role in helping the public make sense of what’s occurring and understand how a rocky presidential transition could harm the country. She points out that the National Commission on Terrorist Attacks Upon the United States, commonly referred to as the 9-11 Commission, cited Bush’s shorter transition period as contributing to the 2001 terrorist attacks.
“The Bush administration was simply understaffed,” Perry notes. “Such a danger exists now, especially in the midst of two crises: the global pandemic and economic hardship for many Americans. As the recent Iranian assassination proved, the U.S. continues to face challenges around the world, including enemies eager to expose and seize on our weaknesses.”
We asked Perry, whose books include 42: Inside the Presidency of Bill Clinton and 41: Inside the Presidency of George H.W. Bush, for pointers on how journalists can bolster their coverage of this presidential transition.
Here’s her guidance, offered via interviews conducted by telephone and e-mail.
1. Explain the history of presidential succession in the U.S.
For decades, there was no formal process for transferring power from one president to the next, Perry notes. The Electoral College twice unanimously elected the first U.S. president, George Washington, who refused to seek a third term. The second president, John Adams, in 1801 set the precedent for what many consider a hallmark of American democracy — the peaceful transfer of executive power between political rivals. For Adams and his successor, Thomas Jefferson, the need to sustain a young democracy was a priority.
Across history, incumbent presidents have vacated their offices to allow for an orderly takeover, even if some of them refused to attend the inaugurations of the men who replaced them. Perry urges journalists to help the public understand the history of the presidential transition process, which is symbolic as well as practical. “Go back a little bit and talk about where did transitions come from and why are we so fixated on them now?” she suggests.
As the U.S. grew, so, too, did the power and influence of its top leader, prompting the creation of a months-long transition process aimed at preparing the president-elect to take over immediately after being sworn in and assist the outgoing administration in finishing its work. “If this is not a smooth handoff, bad things can happen,” Perry says.
2. Familiarize yourself with the Presidential Transition Act.
In 1964, Congress formalized the transition process with approval of the Presidential Transition Act of 1963, which has been amended multiple times over the years.
This federal law codifies the complex process of switching presidents, establishes a timetable and authorizes funding for transition-related expenses. An April 2020 memorandum from the Office of Management and Budget lists the various agencies, departments and councils that oversee or help coordinate the change.
Perry recommends journalists examine the law and investigate whether and how the Trump administration is implementing it. She points out that Biden and his transition team initially were unable to obtain important information from the Trump administration, even though the Presidential Transition Act requires that the “apparent successful candidates for the office of President and Vice President” have access to the information and resources they need to prepare for their new roles.
“It doesn’t say certified [winners]” get that access, Perry says. “It says the ‘apparent’ winners.”
3. Consider Congress’ role in the selection of U.S. presidents.
Congress usually plays a limited role in determining who will be president. They gather for a joint session in early January following the general election to count Electoral College votes.
In rare cases — if there’s a tie or a challenge to Electoral College results, for example — Congress is required to step in and settle the matter, Perry explains. Donald Brand, a political science professor at the College of the Holy Cross in Massachusetts, covered the issue recently for The Conversation.
“President Donald Trump’s campaign is challenging results of battleground states with lawsuits, hoping to litigate its way to a win in the 2020 election,” Brand writes. “But the Founding Fathers meant for Congress — not the courts — to be the backup plan if the Electoral College result was disputed or did not produce a winner.”
Brand adds that the Trump campaign’s legal challenges could prompt Congress to get involved, even though it has not intervened in a presidential election since 1877. “That year, Democrat Samuel J. Tilden of New York won the popular vote and the electoral count,” according to the U.S. House of Representatives’ History, Art & Archives project. “But Republicans challenged the results in three Southern states, which submitted certificates of election for both candidates.” Republican Rutherford B. Hayes of Ohio ultimately became president.
The History, Art & Archives project explains: “While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission to investigate the disputed Electoral College ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award all the contested ballots to Hayes — securing the presidency for him by a single electoral vote.”
Scott Bomboy, editor in chief of the National Constitution Center, has written about the rarity of contested presidential elections and the lack of clear guidance for how Congress should handle them.
Perry suggests journalists investigate Congress’ potential role in the 2020 election and watch for clues that members are being pressured to act. “Who would have ever thought we’d be talking about that?” she asks.
On Wednesday, U.S. Rep. Mo Brooks, an Alabama Republican, announced he plans to challenge the Electoral College results when Congress gathers Jan. 6 to certify the presidential election. But the effort probably will not succeed, USA TODAY reports.
“Although members of Congress can raise objections to Congress’ counting of electoral votes and declaration of results, both a member of the House and Senate must raise the objection, and then both the House and Senate would have to approve it for the electoral votes to be excluded — an unlikely scenario with a Democratic-controlled House,” the news outlet reported today.
4. Help your audiences understand the significance of a president’s inaugural address and how this year’s ceremony might be different from prior ones.
Every four years, after their swearing in ceremony on Jan. 20, U.S. presidents give their inaugural address on the West Front lawn of the Capitol. Inaugural speeches often are “bipartisan and unifying,” offering the new president “a first ‘center stage’ opportunity to introduce his vision to the nation and the world,” notes the White House Historical Association.
The association continues: “Sometimes they are intended to persuade, as when Abraham Lincoln in 1861 urged the seceding southern states to avoid war, or to heal and reconcile, as when he stated his policy toward the defeated Confederacy in 1865, promising ‘malice toward none’ and ‘charity for all.’ Some presidents have spoken directly to the nation’s concerns. Franklin D. Roosevelt’s 1933 inaugural assertion, ‘The only thing we have to fear is fear itself,’ allayed the panic of a people gripped by the Great Depression.”
Perry says journalists often ask her for insights about these speeches. She wonders what next month’s address will be like, considering it will be delivered amid a global pandemic and after a hotly disputed election. “What kind of inaugural address do you give when there has been so much controversy over an election and when you have half the country not believing you were legitimately elected?” she asks.
After Biden’s swearing in, Perry says she wonders about Trump’s plan for leaving office. She says the “unprecedented Trump presidency may end in an equally unprecedented manner.”
Looking for more on U.S. presidential elections? Please check out our explainers on how the Electoral College works and how national news outlets project and call presidential winners.