EMILY MURPHY - CROOKED PIG
Traditionally, the day after a presidential election, November 4th, the GSA anoints the apparent winner. The act, known as ascertainment, not only formally acknowledges the victor; it also makes available to the incoming administration office space, funding, access to federal agencies, intelligence briefings, and other vital governing infrastructure. But in a startling break with precedent, the GSA administrator, Emily Murphy, a Trump appointee, refused to ascertain Biden’s victory.
This was no idle act. “Ascertainment is not a ceremonial process,” explained Mary Gibert. “It has potential life and death implications.” The Biden team was furious. Between the election and inauguration, they had just 78 days to ramp up their administration. They’d recruited 500 volunteers to visit every federal agency and report back on who was doing what. Now they were sitting on their hands.
Biden’s contingent had prepared for almost any eventuality. “We had 600 lawyers working long, long hours, producing thousands of pages of memos for all sorts of stuff,” said Bob Bauer, the campaign senior legal adviser. “This was a genuine national security issue: The fact that the president-elect of the United States would be denied access to the tools and the resources for an effective transition was literally, directly, every day, harmful to the country—and in the middle of a public health crisis.” Bauer and his team were prepared to sue Murphy and the GSA. But after a spirited debate, the campaign decided to stand down.
TWENTY DAYS LATER - THE FILTHY CROOKED PIG FINALLY DOES HER DUTY
Finally, on November 23, GSA administrator Murphy declared Biden the winner. But the foot-dragging had been costly. Every day Biden’s team couldn’t access information about Trump’s vaccination program meant delays in getting shots into people’s arms. Every day Biden’s team was denied intelligence briefings meant less time to prepare for potential foreign crises. On January 20 at noon, all CIA covert operations ordered by Trump would immediately belong to Biden. During previous transitions, the major party nominees would receive the President’s Daily Brief (PDB) after their party conventions. Biden and the vice president-elect, Kamala Harris, didn’t get their first intelligence briefing until November 30.
The self-inflicted agony
of Emily Murphy
Trump’s head of the General Services Administration is in the throes
of a faux dilemma.
On the Saturday after Election Day, the Associated Press and the four major networks called the presidential race for Joe Biden. Nonetheless, 36 hours later Murphy had not ascertained the result. GSA spokesperson Pamela Pennington emailed The Washington Post to say, “An ascertainment has not yet been made, and its Administrator will continue to abide by, and fulfill, all requirements under the law.”
That was a weekend, so perhaps one could forgive Murphy for not moving immediately. Ten days later, however, she has still not ascertained the results. According to CNN’s Kristen Holmes and Jeremy Herb, the pressure is starting to get to her: “Emily Murphy is struggling with the weight of the presidential election being dropped on her shoulders, feeling like she’s been put in a no-win situation, according to people who have spoken to her recently.”
At first glance one can sympathize with Murphy’s predicament. It was a close election in a highly polarized moment, and ordinary Americans seem awfully eager to scold people on social media without doing their due diligence. Murphy clearly did anticipate the perils of a close election, consulting with her predecessors to see how controversies were handled in the past. Most of Murphy’s friends and colleagues who talked to CNN attempted to paint her in a positive light, describing her as “a technocrat and policy wonk.”
When we get to Murphy’s agonizing decision, however, CNN’s report raises a whole bunch of red flags: “It’s not clear what specific actions Murphy is waiting on before granting ascertainment. Sources tell CNN she is basing her decision on what she sees as the precedent set by the 2000 election, where there was not a clear winner for more than a month.”
The hard-working staff here at Spoiler Alerts has stared at that last sentence for a while now, and has come to the conclusion that it makes zero sense. Because let’s be clear: There is no comparison between 2000 and 2020.
In the 2000 contest between Al Gore and George W. Bush, the contest hinged on the results of a single state. The margin between the two candidates in Florida was roughly 500 votes, a margin that a recount could have altered. As time passed and recounts proceeded, the margin between Bush and Gore narrowed. And the litigation between Gore and Bush was a legitimately seesaw affair, with the Florida Supreme Court siding with Gore and the U.S. Supreme Court eventually siding with Bush.
In 2020, Joe Biden is the clear winner. For Trump to win he would need to overturn the results not of one state, but three. The margin between the two candidates in those states is in the tens of thousands; no recount has ever overturned a U.S. election result in which the margin was that large. As time has passed, Biden’s lead in every swing state except Arizona has widened considerably. And as for the ongoing litigation, Trump’s campaign has won only one of the dozens of cases it has brought and subsequently lost that case on appeal. Rudy Giuliani has been put in charge, which is all you need to know.
The better comparison to 2020 is 2016. Trump won a couple of states by a narrow margin, and there was some push for recounts, but the outcome was not really in doubt after Election Day. The only difference between 2016 and 2020 is that the losing candidate in 2016 acted like a mature grown-up.
To use the language of ascertainment, in 2020 Biden is the apparent successful candidate and it’s not close. If Murphy is looking for guidance about how to handle a mercurial boss who does not want to admit defeat, might I suggest this clip from “Michael Clayton":
I want to take Murphy at her word. In my experience folks who work in government, whether as political appointees or civil service employees, try to do the right thing. I want to take Murphy’s word when she said in her 2017 confirmation hearing that, “I am not here to garner headlines or make a name for myself. … My goal is to do my part in making the federal government more efficient, effective and responsive to the American people,” and not cynically presume she’s seeking a private-sector parachute.
Each day Murphy abstains from her responsibilities, however, it becomes harder to see her in that light. Without her ascertainment, Trump can continue to block Biden’s landing teams from engaging with their departments, deny Biden access to intelligence briefings that would allow a seamless transfer of power, and sabotage any effort to bring an end to the pandemic.
Right now, without any apparent logic, Murphy is guaranteeing to make the federal government less efficient, less effective and much less responsive to the American people. I feel her pain. But she seems oddly unaware that it is self-inflicted.