The transition team of President-elect Joe Biden is strongly considering its legal options over the federal government’s delay in recognizing the Democrat’s victory in last week’s elections, an official for Biden said Monday.
The president-elect’s transition hangs in limbo as President Trump continues to insist that he can reverse the results of the election, despite not having any victories in court or producing any convincing evidence to back his claims of widespread fraud. On Tuesday, the president tweeted, “WE WILL WIN!”
The General Services Administration (GSA) typically recognizes a presidential candidate after their election victory becomes clear, so that the transition between the two administrations can begin.
However, this hasn’t been the case despite U.S. television and news networks declaring Biden the winner on Saturday after he managed to clinch key battleground states, securing the necessary 270 electoral votes to secure the presidency. Trump, in the meantime, only earned 214 – far less than the minimum needed to secure reelection.
Biden has already begun planning his transition, naming his team of experts on Monday who will tackle the coronavirus pandemic. Yet Biden remains unable to move into any government office space or receive government funding without the GSA determining formally that he was the victor in the 2020 race.
The law doesn’t spell out how or when the GSA must act, and the law by which it is governed – the 1963 Presidential Transition Act – is extremely vague on this matter.
“There’s no legal standard contained within this act as to what constitutes the ascertainment [of the winner],” Robert MacKichan, general counsel to the GSA during the Reagan and George H.W. Bush administrations, told NPR.
The GSA said in a statement that its administrator “ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.”
The agency cited the outcome of the 2000 election, when George W. Bush was eventually declared the winner over Al Gore, as “prior precedent.” In that case, Gore conceded following a December Supreme Court ruling.
Donald Trump unleashed a series of Tweets on Tuesday alleging that “big process” was being made in his legal battle to overturn Biden’s victory in the election, although it remains doubtful whether any of his grievances will come before the Supreme Court.
The president posted several all-caps tweets Tuesday, claiming to his nearly 90 million online followers: “WE ARE MAKING BIG PROGRESS. RESULTS START TO COME IN NEXT WEEK. MAKE AMERICA GREAT AGAIN!”
However, many of the legal challenges to the election have fizzled out or, even if they are successful, will not be able to change the results.
The Trump campaign’s lawsuits have been thrown out in Michigan, Georgia, Nevada and Pennsylvania, where judges said they were not credible or were otherwise frivolous. And on Monday, it was revealed that Daryl Brooks, one of the key witnesses alleging vote-counting fraud in Pennsylvania, is a convicted child sex offender.
A Biden transitional official told reporters that the transition team is considering legal action if the GSA continues to withhold ascertainment recognizing the president-elect.
“Legal action is certainly a possibility, but there are other options as well that we’re considering,” said the official, who spoke on condition of anonymity.
Without ascertainment, the Biden team has no access to federal funding for salaries, consultants, and travel; the ability to meet with officials at intelligence agencies and other departments; or access to any classified information.
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