December 13, 2016

ABA panel: Trump team has hands full with presidential transition process

Presidential transitions represent “the largest takeover on Earth,” said panelist David Eagles at a recent ABA Section of Administrative Law conference in Washington, D.C. Eagles is director of the Center for Presidential Transition, at the Partnership for Public Service, a nonpartisan nonprofit. Approximately 9,000 jobs are filled in a 73-day period, Eagles said, adding that it’s a huge job that “no modern president has really done well.”

During the time between the election and the January 20 inauguration, President-elect Donald Trump’s “landing teams” are visiting various federal agencies and asking questions to figure out how they work. “You cannot fix the airplane once you’re flying,” Eagles said of the work being done by the teams.  “This is the only time, if you’re committed to making government more effective, that these incoming teams can figure out how they want to make government work.”

Last year, Congress passed the Presidential Transitions Improvements Act of 2015, which provides the incoming presidential teams with office space and services to ensure continuity of government and to protect the institutions of the United States.

The transition team of President-elect Trump took longer than usual to begin the process because there was a change in leadership in the transition team mid-campaign, said panelist Jamie Gorelick, who served as deputy attorney general under President Bill Clinton from 1994-1997. She said members of the landing teams are very familiar with how the federal agencies function. Before the election, the transition teams will have identified nominees for the top level positions at the cabinet level, so the president-elect can begin making decisions.

Gorelick said the process can be daunting. When she joined the Clinton administration, “I received big, fat books written by hundreds of people who were on transition teams who had written policy papers on every policy that one could imagine arising in those agencies. I read zero.”

She said her firm — Wilmer Cutler Pickering Hale and Dorr — is helping transition teams right now with ethics rules, spelling out what they can and can’t do. She said nominees are also wondering about the confirmation process and who can help prepare them for that. 

Washington is very active now with people coming and going, and there is peril in the transition. “While the career people provide incredible ballast … the feeling is that your hands are on levers that aren’t attached to anything. And that is a scary, scary feeling,” Gorelick said. “And we’re not the only ones who know we’re vulnerable.”

Panelist Marcus Peacock, a distinguished research professor at George Washington University Regulatory Studies Center, said there is a bump-up of midnight regulations, which are enacted in the waning days of outgoing administrations.

There are around 340 midnight regulations currently in the works, and 59 of those are deemed economically significant, which means they are expected to have an impact on the economy of $100 million or more.  The midnight regulation period used to be from Election Day to Inauguration Day, but the period has lengthened in recent decades.

If there are concerns during a transition about protecting a president’s legacy, an outgoing administration may try to institutionalize those policies before the next president comes in, Peacock explained. Experts believe the number of midnight rules expected from the Obama administration will be higher than in the past by almost half, which will be a record number. Subject to the Congressional Review Act, some of these rules may be revoked by the incoming administration.

Panelist Andrew Wright, who served as associate counsel to the president in the Obama White House, said the goals of the team transitioning in include selecting and vetting personnel and facilitating the necessary security clearances. “It’s a little like the game Hungry Hungry Hippos (that his 5-year-old son plays),” Wright said. “Where you just hit it as fast as you can to get as many marbles as you can. That’s very much what Washington looks like during transition period.”

The transition period presents great opportunities on the policy side, Wright said. After selecting personnel, a transition team prepares its affirmative policy agenda to take advantage of the political momentum of a new administration. “You have to find legal authorities; know which levers you control, and you’ve got to start engaging with all the various stakeholders that you are going to either disappoint or are going to need as allies to get that agenda through,” he said.

Wright also said that President-elect Trump must negotiate between the career agency experts and Congress as he formulates policy.  Wright recalled that incoming President Dwight Eisenhower famously complained that his orders were not “being obeyed” at the agencies. But Wright said agencies have ways of fighting back against the White House if they think they’re overreaching, by enlisting allies in Congress, the media or Inspector Generals.

Other goals during a transition period are projecting competence and reassuring allies.

“It’s very important to try and project competence and instill confidence in the electorate and foreign powers that are watching us going forward,” Wright said.