How the Presidential Transition Process Works

And Why This One Will Be Like No Other

by Michael W. Cotter

The sub-title is not quite accurate, since each administration transfer happens a bit differently. But not this different. At least in living memory there has not been a transfer to a candidate with so little political experience and who to boot was not his party establishment’s choice. And that makes this a unique event. As background I’ll summarize the standard transition procedures from the perspectives of policy and personnel, and then talk about some international relations issues.

I. The Normal Transition Process
A. Policy Issues

Given how bureaucratic a country we are, it won’t surprise you to learn that there is a law that prescribes the transition process—The Presidential Transition Act. It provides funding for the transition and establishes accounting procedures for outside funding raised by the president-elect.

Transition mechanics are pretty prosaic. The Economist magazine described them succinctly in one sentence, although it then editorialized a bit:

Usually, the transition from campaign to administration involves the candidate’s policy wonks working from his speeches to produce a coherent platform. But Mr Trump had no serious policy advisers before his election, and most of his instincts about foreign policy are “unexecutable”. [The Economist, 12/17-23/2016 “Pax Trumpiana: Allies and Interests.”

Since we choose nominees through primary elections, “policy wonks” are hard at work defining candidates’ positions well before the conventions. Once the nominee is chosen, his or her positions are turned into the party platform.

For its part, the outgoing administration will have instructed its departments and agencies to prepare detailed briefing books describing the status of programs, funding and legislative issues, and other matters that will need attention as the new administration settles in. Obviously how well this works will depend on whether the transition is friendly or hostile. After the election final adjustments would be made to briefing materials. Since most polls suggested Mrs. Clinton would win, the briefing materials probably needed significant revision. Departments also set aside office space for the president-elect’s transition team, where they could familiarize themselves with  issues and flesh out the new administration’s executive and legislative programs, and look at personnel and organizational changes they wish to make.

For example, last summer the State Department instructed embassies to submit reports on the status of our relationship with every country in the world and any issues requiring early action or decisions. They were then compiled into briefing materials. State Department briefers have to prepare the transition team for issues that don’t appear on most domestic department agendas:

• Coordinating on urgent global crises, a process continuously updated between the election and inauguration.
• Managing congratulatory phone calls that begin pouring in immediately after the election. (Which should the president-elect receive, possible talking points, and staff to ensure accurate interpretation and keeping a record.)
• Deciding which foreign heads of state to invite to Washington and in what order. Generally focus is on close NATO allies, Israel, Japan, possibly China. This may sound petty, but is not, as these decisions signal priorities of the new administration.
• Perhaps planning for early foreign travel by the president if he or she is interested in doing so, as work on the logistics would have to begin immediately.

B. Personnel Decisions

Well before the election each party begins vetting names of possible candidates for cabinet and sub-cabinet-level positions in order to be prepared to begin confirmation hearings as soon as possible after the inauguration. Given the increasingly contentious nature of those hearings and the need to ensure that candidates have no skeletons in their closets, doing this thoroughly is important. Even something that might seem trivial, such as whether housekeeping staff are legal and appropriate FICA taxes are paid on their behalf, is checked out. You may recall “nanny gate” from the Clinton days.

More significant is the financial disclosure information required by the Ethics in Government Act, about which we’ve heard so much in recent weeks. It requires that nominees for any office requiring Senate confirmation provide detailed financial information to include income, assets, transactions and liabilities. Several offices are charged with ensuring compliance with this requirement—the congressional ethics committees, government agency ethics offices (still under the control of the outgoing administration, of course) and, in the case of executive branch officials, the Federal Office of Government Ethics.

Whether a candidate must divest him or herself of investments is covered by a different law, that covering crimes and criminal activity (18 U.S. Code, Chapter 11). In essence it prohibits a USG employee from participating in decisions on any matter in which he or she, a family member, a partner, or business of theirs have a financial interest. As anyone who has been reading the press is aware, provision is already causing difficulties for Mr. Trump’s nominees

Who are the people to whom these provisions apply and how many of them are there? Here’s what the Constitution says:

Art. II, Section 2: “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not otherwise provided for, and which shall be established by law: but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President, alone, in the Courts of Law, or in the Heads of Departments.”

It is worth highlighting that the only specific executive branch officials mentioned are diplomats— ambassadors, consuls and ministers. In the early years of the republic we actually had few ambassadors, and individuals accredited to other governments were usually given the title of ministers. Most of our representation overseas was by consuls, there to protect American shipping interests.

Article II gives Congress the power to determine which “other officers” must be confirmed by the Senate. It does so periodically through legislation adding or subtracting positions. A publication called “United States Government Policy and Supporting Positions” known as “The Plum Book” (for its cover color, not as a description of the positions), identifies all presidentially appointed positions within the federal government. There are over 9,000 Federal Civil Service positions that may be filled by noncompetitive appointment, although most don’t require Senate approval. Some 1200-1400 positions do require Senate confirmation. The current plum book lists 620 positions in State, 675 at Defense, 470 at DOJ, 282 at Treasury, etc. The Plum Book is available at: https://www.gpo.gov/fdsys/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf

The point of noting all of this is that the transition doesn’t end with the inauguration or even the nomination of key officials.  As we have seen over the past two decades, the confirmation process can take seemingly forever. Even after a cabinet nominee is confirmed, getting all of the other senior staff in place can take months. So long in some cases that nominees withdraw in order to get on with their lives. And all of those lower level positions are critical if the administration is to implement its policies.

II. Why this transition will be like no other

Mr. Trump is an unusual candidate. He did not have a policy record prior to the campaign, his statements over the past year have been all over the map and often contradictory. He has a small staff, few of whom have any experience in government. And he still seems to be in campaign rather than presidential mode.Given his distance from GOP professionals and the fact that even he was surprised when he won, it is not certain that GOP transition planning was shared with him prior to the election. Nor is it clear that his team understands how the process works. A transition website, GreatAgain.gov, was up two days after the election, but it provides just basic information on nominees for cabinet and agency positions.

So this time around we are in uncharted waters. Here is where I think things stand.

A. Policy

The GOP does have a platform, but there are deep divisions within the party, many of which were glossed over in that document. Party priorities span a broad range of issues, and Mr. Trump has not made his views known on many of them. And on others he has issued contradictory statements.

On the domestic policy side a sense should emerge soon of how the relationship between the president and Congress will develop. Mr. Trump has said that he will issue a number of executive actions quickly. They won’t have an immediate impact because public notification is required in many cases and there undoubtedly will be legal challenges. For its part, the new Congress appears to be planning quick passage of legislation on a number of issues where Mr. Trump’s views appear to differ (e.g., repealing Obamacare without an immediate replacement) or are simply not known.

Nor is it clear how “embedded,” to use a word that seems embedded in current jargon, transition teams are in the various departments and how much has been done to flesh out new policies. I heard Secretary Kerry say on PBS Tuesday that he hadn’t yet met Mr. Tillerson, but hoped to do so in the near future. Based on two leaks I’ve seen there are indications the process is working. They come from people at DoE and DoS unhappy about being asked to identify positions responsible for climate change and gender issues. Interestingly, the State leak included what is called a “tasker” to respond to transition requests. It is pretty typical of how departments deal with transition team questions. (From the shading you can see it was photographed!)

B. Personnel

The effort to confirm cabinet and other senior officials quickly is underway. But for several reasons it is unlikely to happen as quickly as Mr. Trump would like. One is the requirement for FBI background checks. It may complete them quickly as FBI Director Comey undoubtedly wants to begin his relationship with the new administrative on a positive footing. Then there is the critical issue of financial disclosure and divestiture requirements and how they will be applied. Mr. Trump’s press conference responses raised more questions in that regard than they answered regarding his financial matters. Senate committee hearings on cabinet appointees have begun, but it seems clear that Democratic pressure will delay some until legal requirements have been met.

It is not clear where things stand with nominees to the hundreds of sub-cabinet positions that will also require confirmation. But it is reasonable to assume that having them in place will take at least as much time as with prior administrations. The bottom line is that most government departments and agencies will be without political direction for an extended period.

I do want to say something about one kerfluffle that was overdone by the media – that of requiring political ambassadors to leave their posts within seven days after the inauguration. All ambassadors, career or political, submit resignations in an election year, effective January 20 if the incoming president chooses to accept them. Every president does accept those of most if not all of his predecessor’s political appointees. But I’m not aware of any previous incoming administration requiring that all leave their posts within seven days after the inauguration. Will this cripple our foreign relations? No. It will create hardship for those individuals and their families, but long gaps between ambassadors for even key posts are not unusual. At times Congress has shown little respect for the position, placing holds on ambassadorial nominations for extended periods, even for non-controversial posts.

C. International Relations

Let’s turn to an area where a new president can and must have an immediate impact.

First, some general observations. The U.S. has been the major actor on the world stage for 70 years and almost every policy statement we make and position we take has a global impact. So well before the actual election, every country, friend, foe or neutral, follows a presidential election campaign with great interest, hoping to divine what it means for them. And, as we’ve seen, some countries may try to influence our elections. By that I mean actions beyond Russia’s overt efforts this time. If North Korea tests a nuclear weapon or a missile during our campaign, candidates have to take positions on it. Ditto if there is a revolution or terrorist incident. And once the election is over the media begin drawing conclusions even before the president-elect makes any policy statements. So almost immediately Mr. Trump’s election was taken as endorsement by the American people of the Brexit campaign in Great Britain, improved chances for Ms. Le Pen in France and a new dawn for conservative nationalism elsewhere in Europe.

The length of our presidential election campaigns, now spanning at least two years, and the six weeks between the election and inauguration cause uncertainty in our foreign relationships. For example, they give candidates time to do things that can have serious policy implications. Doing so overtly, as Mr. Trump did in late November when he called Taiwan’s president, or when he urged Egyptian president Sisi to withdraw the UN resolution on Jerusalem, is probably not as pernicious as previous secret efforts to influence policy. For example, in 1968 candidate Richard Nixon pressured the South Vietnamese government not to agree to peace talks until after the election, so that Hubert Humphrey would not get credit for beginning our withdrawal. And there are accusations that candidate Ronald Reagan was in contact with the Iranian government about postponing a hostage release already being negotiated until after his election.

Mr. Trump’s telephone contact with Taiwan’s president, apparently orchestrated in part by Robert Dole, now a lobbyist for the Taiwanese government, is a good example of the weakness of his transition. Actually, the NYT reported that by Nov. 17 he had received 32 calls from foreign leaders, before his staff was even in touch with the State Department. His transition team has not commented, and there may be no record of what was said during them. We don’t know who interpreted in the case of leaders, such as President Putin, not fluent in English. Thus the foreign interlocutors are free to spin what was said and what commitments might have been made. And then there were missteps, such as British media reported Mr. Trump as having suggested to British PM Theresa May during a short conversation, “If you travel to the US, you should let me know.”  Hardly the best way to establish a relationship with what is generally considered our closest ally, and disparaging to someone who might turn out to be the equivalent of what Margaret Thatcher was to President Reagan. There is a reason the State Department wants to coordinate, provide professional translation for, and keep a record of such congratulatory exchanges.

Given many of Mr. Trump’s other statements both before and after his election, these protocol issues may seem like small potatoes, but relations between countries often depend on such niceties. The most important country in the world simply cannot take a cavalier attitude toward them.

Now for comments on some foreign relationships that have come to the fore as a result of the campaign: Russia, China, Japan, Korea, and the Middle East.

Russia, mainly because of the publicity Mr. Trump’s warm regard for President Putin, combined with Russia’s effort to affect our election, has generated. Both things do raise serious questions about basic tenets of U.S. foreign policy since the end of W.W. II. What is the future of NATO and, more basically, the Atlantic Alliance? We have worked very hard to free Eastern European and Baltic countries from decades of Russian domination. How do they deal with a Trump administration? Do we now accept that Russia has the right to determine the fate of its “near abroad?”

And what is the future for nuclear arms control agreements initiated by President Reagan?  For example the Intermediate-Range Nuclear Force (INF) Treaty that banned the deployment in Europe of missiles with 300 mile range. The Russians have developed cruise missiles that we claim violate the treaty. The Russians in turn object to our deployment of defensive missiles in Eastern Europe. The INF treaty led to the destruction of almost 2,200 missiles. Abandoning it could lead to a new nuclear arms race in Europe.

Apart from other foreign relationships that are influenced by our bilateral relationship with Russia, Mr. Trump’s warming to Moscow will also have a significant domestic impact. The Congress, or at least key national security figures like Sens. McCain and Graham, have made clear that they oppose any softening on Russia and indeed prefer tougher sanctions. A battle over this issue is something Mr. Trump surely does not need as he tries to cement relationships with Capitol Hill. One wonders if he understands that. At least Gen. Mattis seems to. During his confirmation hearing yesterday he commented that we have made many attempts to “reset” our relationship with Russia over the years but have little to show for them. Indeed.

One relationship that is much more important for our future and that of the world in the longer term is that with China. Campaign rhetoric based on false information about our trading relationship with China was useful in stirring up Mr. Trump’s base, but the economies of the U.S. and China are so interdependent that a trade war would cause major disruption to the global economy. Yet Mr. Trump continues to repeat the same misinformation. And by reaching out to Taiwan he satisfied no one except for that island’s lobbying firm and perhaps U.S. defense companies. Anyone who believes the U.S. would go to nuclear war to keep China from absorbing Taiwan is living in a dream world. And it would come to that as we have no capability short of nuclear weapons to deter China from a concerted effort to do so.

Another key issue with China is that of the South China Sea. We and our allies in the region have opposed China’s efforts to dominate it. I’m not aware that Mr. Trump has taken a position on it, but I note that he is reported to have had a pleasant chat with Philippine president Dutarte. At least according to Mr. Dutarte’s report, the only record we have of it. Of course Dutarte is the only putative U.S. ally in East Asia to ally himself with China’s position. Dutarte also claimed Mr. Trump had invited him to visit Washington. Although the Trump transition team has not confirmed that, it is worth noting Trump companies are apparently planning a major hotel project in Manila. Will his press conference promise of no more international projects cancel that one? Talk about mixed signals.

Turning to a close ally, Japan, the most notable of Mr. Trump’s limited references to it have been to lump it with China as a country abusing our open trade rules. On the positive side, PM Abe seems to have found the key to managing an early meeting with Mr. Trump. Happening to be in the U.S. at the right time, he had a 90-minute meeting recently. Hopefully that allowed him to stress the importance of the economic and defense relationships between our countries.

While I’m on Asia, a word about North Korea. Kim Jong Un claims that his country is almost ready to launch an ICBM that could reach the U.S.  Mr. Trump tweeted the other day: “won’t happen,” and has criticized China for not doing enough to rein in North Korea. I read a report recently that Mr. Trump said he wouldn’t visit North Korea, but if Kim wanted to come to the U.S. he would receive him. The Kim family has not remained in power for 70 years because they are “erratic” or “crazy,” but by demonstrating that any effort to remove them would result in a conflagration that no one can afford. Kim is not about to launch a nuclear, or even conventional, missile at the U.S. even were he actually able to do so. That capability is his insurance against any U.S. attempt to oust him. The danger here, to my mind, is that Mr. Trump might consider a pre-emptive strike against Kim’s missile complex, thereby setting off the conflict that no one wants.

Now the Middle East. With the conflicts in which we are deeply involved, it is the one region on which the Trump administration will have to clarify its positions quickly. With the Syrian civil war at a critical point, will we abandon what remains of the non-Islamist opposition and join Russia, Turkey and Iran in bringing the conflict to an end on Mr. Assad’s terms? But then what about our commitment to the Kurds there and in Iraq? And will we continue to support Saudi Arabia’s very destructive effort to stop Yemen’s civil war? Thinking of Saudi Arabia, will Mr. Tillerson propose stronger steps to reduce that country’s support for promoting its conservative version of Islam elsewhere?

The one foreign relationship in the Middle East on which Mr. Trump has made his position very clear is Israel. With his intervention on the UN Jerusalem resolution, by naming a very conservative ambassador to Israel, and by committing to moving the U.S. embassy from Tel Aviv to Jerusalem Mr. Trump solidified both his relationship with PM Netanyahu and his support among conservative Jewish and fundamentalist Christian groups in the U.S. That said, Mr. Trump is not the first president to propose moving the embassy. Every president since Ronald Reagan has made an identical campaign promise. Until now, shown the impact that move would have region-wide, all have chosen to rely on a national-security loophole to avoid doing so. Moving the embassy would impact countries like Jordan and Egypt that are critical to regional peace. Doing so would also affect our military operations in Iraq, Syria, and Afghanistan. Concern that Mr. Trump might break with tradition has led even conservative Israeli commentators to recommend that he follow his predecessors’ examples. Stay tuned.

The Trump campaign rhetoric on the Middle East misrepresented the Obama administration’s and Mrs. Clinton’s policies in the region. Neither has demonstrated diminishing support for Israel (as distinguished from the Netanyahu administration). Nor has their only interest in the region been to assuage oil-rich Arab countries. Reality in the Middle East is much more complicated and just preventing further deterioration will require nuanced policies. It remains to be seen if Mr. Trump and his national security team are up to the task.

Iran is another critical country with which our relationship may be changing. Mr. Trump and the Republican Party have both promised to undo the 2015 nuclear agreement. Were it possible, doing so might please both PM Netanyahu and Saudi Arabia. But it is a multilateral agreement involving not only us, but France, Germany, the U.K., Russia and China. Even if we were to withdraw, the other countries have stated that they intend to continue it. The only ones hurt would be our international reputation and industries like Boeing, that expect the agreement to help create jobs. The fact of the matter is that, whatever the flaws of the agreement, it has postponed Iran’s ability to build nuclear weapons from a few months to a decade or longer.

To bring this to a close, a word about intelligence information, the intelligence community, daily briefings and such. Mr. Trump’s statements indicate that he has no idea of the breadth and depth of intelligence and overt information the U.S. collects. The briefing on Russia’s hacking exposed him to just one facet of it. What is worrisome is his expressed indifference to receiving a daily intelligence briefing. He will have a steep learning curve and will need all of the information he can get in order to understand the responsibilities he has undertaken.

Intelligence agencies, and there are a lot of them collect and analyze information from different perspectives and with different goals. Some work domestically, others internationally. In some cases the two areas overlap and cause problems. Some collect intelligence with the goal of bringing judicial action, others to understand the goals and operations of adversaries. And they are often reluctant to share information.  So it is not surprising if there is seldom unanimity of views among them. I’m actually surprised that all of our agencies agreed that the Russians hacked the campaign, but I’ll bet there are lots of footnotes even to that analysis.

Competition among intelligence agencies is not unique to the U.S. During his testimony the other day on Russian hacking, DNI Clapper said he had spoken with his Russian counterpart who denied any involvement. Assuming that his counterpart was the director of the Russian Federal Security Service, he could have been telling the truth. I gather that most of the hacking was done by the GRU, the foreign intelligence arm of the Russian military. I am certain that the GRU and the FSB actively compete and probably only President Putin and his close advisors have access to all the activities in which those two bodies engage.

But the real facts at this point strongly indicate the plain truth that, given the wildly unpredictable history of the primaries through the election and transition to date, what comes next is surely anybody’s guess.