Heads of state are congratulating Joe Biden. President Trump’s national security adviser has promised the Democrat a “very professional transition.” The Georgia recount has kept the state in Biden’s column — and Trump’s legal efforts to overturn the election results are crumbling.
Emily Murphy, head of the General Services Administration, has refused to declare Biden the “apparent” winner, as the law requires for the transition to begin. And she still has not determined when she will, her aides and associates say, leaving the changeover in a vacuum that threatens essential functions of government.
Day after day, Murphy, a loyal Republican the president appointed three years ago, weighs her options but declines to say what fact or development she is waiting for. She has told agencies that the first step in the transfer of power, which would release millions of dollars and give Biden access to the government, may be weeks away.
Murphy’s silence has plunged a normally apolitical, ministerial process into precedent-setting territory as Democrats target her in nasty, personal tones and even some high-profile Republicans — among them former president George W. Bush, whose administration she served — urge her to get on with it.
“It is clear to anyone with a brain that Joe Biden has won this election, and her refusal to do her duty when the facts are so clear is brazenly political,” said Claire McCaskill, a Democratic former senator from Missouri whose family is acquaintances with the Murphy family.
Late Thursday, House Democrats summoned Murphy to brief them immediately on her continued blocking of the transition and threatened to bring her, her deputy, her chief of staff and her general counsel to testify before Congress at a public hearing. On Friday, Trump’s press secretary, Kayleigh McEnany, said that the White House had not pressured her.
Murphy is said to be considering several mileposts that would give her a political comfort level in declaring Biden president-elect. She could act after the states finalize voting results. (As of Friday, 15 had certified.) Or she could wait until the electoral college meets Dec. 14.
In 2000, when the candidates were separated by 537 votes in Florida, the GSA named Bush the winner after the Supreme Court’s ruling in Bush v. Gore but before the electoral college met.
If her boss continues to make unfounded claims that the election was stolen from him, Murphy could hold off until Congress counts the electoral votes Jan. 6.
Murphy, through a spokeswoman, declined to be interviewed.
“There are no updates at this time,” Pamela Pennington, a GSA spokeswoman, said in an email. “An ascertainment has not yet been made. GSA and its Administrator will continue to abide by, and fulfill, all requirements under the law and adhere to prior precedent established by the Clinton Administration in 2000.” Pennington would not say whether Murphy eventually will designate Biden as the apparent winner.
A senior Trump administration official said Murphy is confiding to others that she feels extreme pressure, knowing that whatever decision she makes will bring her scrutiny, including the possibility that Trump could fire her if she crosses him. She has instructed others in the government to be ready for an “ascertainment” but has suggested it could be weeks away, this person said.
“She wants to see what happens with all of the states, and she is looking for cues from the White House,” said the official, who was not authorized to comment publicly and spoke on the condition of anonymity. “She doesn’t want to be disloyal to the administration that hired her.”
She is upset, this person said, at becoming a figure of intense scorn despite her reputation as a behind-the-scenes bureaucrat who has mostly avoided politics. “She is not a bona fide Trump person,” the official said. “She is not a Seb Gorka or Steve Bannon or Stephen Miller type” — a reference to three hard-liners who have served in the White House.
Federal agencies have received instruction to prepare briefing materials but not provide them or take any calls from Biden’s team. The president “does not want a transition,” the official said. “He’s made that very clear, and we are following orders.”
Each possibility denies Biden an array of resources to help him form a new government, from daily intelligence briefings to binders of information career employees assembled over months to inform the incoming team what is going on at their agencies.
Biden said Thursday that Trump was showing “incredible irresponsibility” by contesting the election results and delaying the start of the transition. Biden has publicly asked Murphy to move forward.
Trump's support
Murphy’s staff says she cannot give timetables because she is considering each factor, the unstated one being the moment Republicans on Capitol Hill give her enough cover by publicly accepting Biden’s victory.
“By law, the GSA administrator reports to the president and is subject to his direction and control,” said Jack St. John, who was Murphy’s chief of staff and then general counsel before taking a private-sector job last month. “So to the extent Emily has been instructed to withhold ascertainment, she really doesn’t have any good options.”
The president has signaled his support. “Great job Emily!” Trump tweeted Sunday, retweeting a 10-day-old appeal from Murphy to service-disabled veterans to apply for federal contracts.
In 2000, GSA leaders leaned heavily on their general counsels for advice on when to determine the winner and release transition resources to Bush. Murphy’s top lawyer is 35 years old and new to the subject. Trent Benishek was appointed five days before the election from a junior role in the White House Counsel’s Office, which he joined last year to help with impeachment proceedings and other congressional investigations.
As pressure on her mounts from Republicans to stay the course and from Democrats to recognize Biden’s victory, Murphy commutes from her home outside Washington to the GSA’s headquarters at 1800 F St. NW, a few blocks from the White House. She projects a business-as-usual demeanor to her staff, people who work with her said, befitting her reputation as a hard-working and respected leader in the arcane world of federal procurement, in which she has excelled over a career in government and on Capitol Hill.
She holds regular videoconference calls on GSA business with her senior staffers, many of whom work remotely, and tries to block out the political noise swirling around her, associates said. On most calls she thanks her colleagues for their support and tells them there are “no new developments” in her history-making turn as the one person right now who could formally call the presidency for Biden.
“The GSA Administrator does not pick the winner in the Presidential election,” said Pennington, the GSA spokeswoman.
But Trump’s refusal to concede and accept the election results has put Murphy in that role. And it’s making her a growing target for angry Democrats.
McCaskill, who introduced Murphy to Senate colleagues when Trump nominated her to lead the GSA in 2017, echoed others who said Murphy’s refusal to act was starting to damage her career prospects when she leaves the Trump administration.
“Even the most hardened Trump supporters understand what has happened here,” McCaskill said, calling Murphy “an important player in subverting democracy.”
Murphy’s refusal to declare Biden the winner does not appear to have broken any laws. The transition law Congress passed in 1963 is vague on the criteria that lead the GSA to “ascertain” an “apparent winner.” It is uncharted territory.
Republicans argue that the law gives Murphy full discretion. “There’s nothing in there which affords the administrator any more detail as to what constitutes an apparently successful candidate,” said Robert C. MacKichan Jr., who was GSA general counsel for Presidents Ronald Reagan and George H.W. Bush and served with Murphy on the Trump transition team.
The controversy has led Democrats on Capitol Hill to consider changes to the law that would lay out a far clearer road map when a president refuses to concede.
“This is not going to be an anomaly,” said one senior congressional aide involved in the discussions who was not authorized to speak publicly. “It will be a precedent.”
Stepped-up pressure
Liberal Democratic groups stepped up their pressure campaign this week. They bought ads in media outlets, MoveOn delivered a petition with 250,000 signatures to GSA headquarters, and a political action committee, MeidasTouch, issued a video admonishing Murphy and calling her a partisan hack and a traitor. Liberals have started a hashtag campaign on Twitter: #SignTheLetter.
By Thursday, top business leaders, including the U.S. Chamber of Commerce, the powerful lobbying group that backs Republican presidents, had urged Trump to recognize Biden’s victory.
Allowing Biden access to transition tools and planning would not stop Trump from continuing to wage his lawsuits in various states, experts on the law said.
“The reality is that ascertainment does not preclude President Trump from pursuing his legal claims,” said Max Stier, president and chief executive of the nonpartisan Partnership for Public Service, adding, “Trump is in no way harmed by moving forward.”
Murphy knew early on what she would be up against as she reached out to David Baram, President Bill Clinton’s GSA chief, as absentee votes were being counted in battleground states. They talked on a videoconference call and have exchanged several text messages since, he said.
Baram said he told her: “You have to do the right thing.”
“She doesn’t want to get blacklisted in either direction,” he said.
The GSA, formed under President Harry S. Truman to centralize the overhead function of the government, oversees federal office space and public buildings and buys supplies for federal agencies. It is an internal arm that meets the needs of other agencies but has little interaction with the public. It generally does not make policy.
Murphy, 46, is single and devoted to her work, say former co-workers. Her family is active in Republican circles in Missouri, where she grew up. Even so, she is more quiet bureaucrat than political operative.
“She’s a very by-the-book person,” said a former GSA official who knows Murphy, speaking on the condition of anonymity to discuss a delicate situation.
She is close with Mick Mulvaney, the former South Carolina congressman and former Trump chief of staff. She met him soon after graduation from law school at the University of Virginia, when she joined the staff of a House panel that oversees the Small Business Administration.
Mulvaney planned to hire Murphy into a senior role at the White House budget office before she was offered the GSA post.
She has shown lasting power in an administration high on turnover. Her staff and outside stakeholders give her high marks for her vision of how government employees will work in the future (in far fewer offices with fewer desks than they do now) and how to structure fair and competitive buying practices across government.
She also stepped up required ethics training for her political appointees, telling Congress in 2018 that it “is essential that they have a crystal clear understanding of what constitutes appropriate and inappropriate behavior from day one.”
As most agencies under Trump moved away from telework, believing it would discourage hard work and create a unaccountable workforce, Murphy did the opposite, following the example the Obama administration had set at the GSA by encouraging remote work. During the pandemic, she urged her staff to keep working from home, earning plaudits from her workforce of 11,000.
She has shown loyalty to the Trump White House as two issues of personal importance to the president became sources of controversy for her: the lease Trump’s company holds with the agency for its D.C. hotel, located in the federally owned Old Post Office Pavilion, and the consolidation of the FBI headquarters, whose relocation and replacement with a planned hotel could threaten the president’s property.
On these issues she made enemies of some congressional Democrats.
“If this continues, Administrator Murphy should be compelled to testify before Congress,” Rep. Peter A. DeFazio (Ore.), a top Democrat on the House committee that oversees the GSA, said of the transition controversy.
Murphy, he said, “has clearly fallen right in line with the other political hacks appointed to do the president’s bidding.”
Alice Crites contributed to this report.
Correction: An earlier version of this report stated the GSA named George W. Bush the winner when the electoral college convened in 2000. It did so before that, after the Supreme Court ruling in Bush v. Gore.
