The aftermath of the Mueller Report has rightly been dominated by questions specific to the actions taken by President Trump and whether they rise to the bar of an impeachable offense. Lost in these conversations is what the report says about the presidential transition period. Special counsel Robert Mueller’s team has documented the shocking liabilities of one of the most important facets of our democracy: the peaceful transfer of power.
The report reveals the transition period to be recklessly informal and the existing regulations woefully inadequate to ensure future transitions won’t lead to major economic or security problems. The remarkable call for impeachment from an actual member of the Trump transition team shows the severity of this problem.
{mosads}For many, the transition period — the 11 weeks between Election Day and the Inauguration — remains shrouded in secrecy. This is a period that Congress has sought to reform in the recent past, especially through procedures to give security clearance for key transition officials, providing more federal funding and office space in DC, and transparency rules for accepting outside donations.
The Trump transition proves that these well-meaning changes are not enough.
According to the Mueller report, just hours after the election results were called, the Russians were already calling a campaign spokesperson seeking access to the transition team. The Russians knew that influencing the transition team is not legally considered lobbying, thus not covered by existing rules on foreign agents.
The informality of transitions thus lends itself to influence peddling. For example, Erik Prince, though he was given no formal position on the transition team, was known to the Russians as an insider based on his sister’s appointment to be secretary of Education. The report shows that Prince “frequently visited transition offices at Trump Tower, primarily to meet with Bannon but on occasion to meet Michael Flynn and others” where they would discuss “foreign policy issues and Prince’s recommendations regarding who should be appointed to fill key national security positions.” Little prevented Prince or the Russians from secretly influencing the incoming administration.
The fact that most transition activities were happening at Trump Tower in New York and Mar-a-Lago in Florida raises another set of worries. Federal law gives the transition team access to official office space in Washington, yet the report reinforces what we all saw on television at the time that little work of the team occurred in D.C. This caused problems when Michael Flynn and Jared Kushner met with the Russian Ambassador Sergey Kislyak. The report explains, “After Flynn explained that there was no secure line in the Transition Team offices, Kushner asked Kislyak if they could communicate using secure facilities at the Russian Embassy.” The refusal to make better use of the official transition offices in Washington created serious security problems for the transition team.
Members of the transition team also seem to have disregarded the communications technology provided to them by the General Services Administration (GSA). During July of the campaign, the Trump team signed a memorandum of understanding with the GSA that “encouraged” the use of government-issued cell phones because of “heightened cybersecurity threats associated with the presidential campaigns and elections.”
The report suggests many members of the transition team ignored the encouragement from the GSA. Many were not using these cell phones, though this seems to have resulted several dubious user error problems not a hack. As Prince surreptitiously met with Russians in the Seychelles, he corresponded by personal Blackberry cell phone with Steve Bannon back in New York. Though the Mueller team was given the phones, there are significant gaps in the record of their discussion. The report finds: “Prince’s phone contained no text messages prior to March 2017, though provider records indicate that he and Bannon exchanged dozens of messages.” Significantly, Bannon’s phone was also missing critical messages. Each denied deleting the messages and neither tried to preserve the transition-related information.
To be sure, the lying and deception of the Trump transition is a major national problem that Congress is sure to confront over the next several months. Nevertheless, the more mundane issues raised by the Mueller report about the transition period also call for congressional debate.
Rules should better shield the transition period from secret influence peddling, at the very least through greater transparency. Cybersecurity concerns should be a primary focus of preparing an incoming administration, covering everything from where the team meets to the technology it uses to better recordkeeping. And the loophole in foreign lobbying regulations should be addressed to limit the type of tampering in U.S. foreign policy that we saw during the Trump transition.
Heath Brown is an associate professor of public policy at City University of New York’s John Jay College. He is the author of “Lobbying the New President.”