Earlier this month, I wrote about Emily Murphy, the administrator of the General Services Administration who was refusing to sign an “ascertainment” acknowledging that Joe Biden and Kalama Harris had won the election. As I explained, this simple administrative act is required before the Biden transition team can gain access to intelligence briefings, appropriated funds, office space, the government email system, and ready access to various federal departments. In 2016, the ascertainment was signed by Barack Obama’s GSA administrator on November 9, the day after that year’s election, even as Democrat Hillary Clinton and Green Party candidate Jill Stein were weighing recounts in Michigan, Pennsylvania, and Wisconsin.
In that initial piece, I argued that it was “unfair” to expect Murphy to recognize Biden’s victory before Donald Trump and Mike Pence were willing to do so. Twelve days later, with Trump’s lawyers going 1-for-31 in court challenges to the election results, Murphy can no longer use this excuse, and as Kyle Cheney reports for Politico, House Democrats are out of patience:
Four senior House Democrats are demanding that GSA Administrator Emily Murphy brief them Monday on the reason she has yet to ascertain Joe Biden’s win in the presidential election, warning that her answers will determine whether they intend to haul her to Capitol Hill for a public hearing, along with other senior General Services Administration officials.
“We have been extremely patient, but we can wait no longer,” said House Oversight Committee Chairwoman Carolyn Maloney and House Appropriations Chairwoman Nita Lowey, in a four-page letter joined by Reps. Gerry Connolly and Mike Quigley.
This isn’t the first time that Murphy has found herself in the crosshairs of congressional Democrats. She’s been severely criticized for her handling of the lease on the Trump International Hotel in Washington, D.C., which the GSA’s own Inspector General found should have been terminated when Trump became president because of a proviso that no one in the federal government could be awarded the lease. She was also strongly questioned about her decision to cancel the planned relocation of FBI headquarters to Maryland, a move widely seen as an effort to prevent a competing hotel from being constructed on the site of the current headquarters just blocks from Trump’s.
She now faces a difficult decision. If she refuses to brief the House Democrats or if she doesn’t satisfactorily answer their questions, she will likely to be subpoenaed to testify on national television. She could, like many Trump officials before her, refuse to comply with the subpoena, but she lacks the executive privilege protections generally granted to White House officials like former White House counsel Don McGahn who is still fighting a Russia investigation-related congressional subpoena in court, or John Bolton who famously altogether avoided a subpoena to testify in Trump’s impeachment inquiry.
There are two ways that Congress can enforce a subpoena. They can ask the Justice Department to bring charges if there is non-compliance, which sounds like a less than fruitful path while William Barr is attorney general. The alternative is for it to ask a federal judge to step in and compel Murphy to testify. Trump’s Justice Department refused to help Congress, forcing them into court in McGahn’s case and dissuading them from even issuing a subpoena to Bolton, lest they lose the case and establish a dangerous precedent. Murphy can anticipate no such protection from a Biden-run Justice Department and could be charged with contempt next year if she refuses to comply and Democrats are in a mood to pursue an investigation into this chaotic interregnum.
Yet, she no doubt is feeling tremendous pressure not to avoid this risk by issuing the ascertainment. It’s not just Trump’s fire and fury menacing her. Georgia Secretary of State Brad Raffensperger and his wife have received death threats for the simple offense of Raffensperger contradicting Trump about the existence of fraud in his state’s elections. There’s no reason to think that Murphy would be spared that kind of intimidation.
The Republican base is convinced that Biden’s win is illegitimate, despite the lack of evidence of any widespread fraud. A Reuters/Ipsos survey conducted between November 13 and November 17 found that only 29 percent of Republican voters recognize Biden’s victory. They found unanimity on this point when conducting interviews with Trump supporters:
In Reuters interviews with 50 Trump voters, all said they believed the election was rigged or in some way illegitimate. Of those, 20 said they would consider accepting Biden as their president, but only in light of proof that the election was conducted fairly. Most repeated debunked conspiracy theories espoused by Trump, Republican officials and conservative media claiming that millions of votes were dishonestly switched to Biden in key states by biased poll workers and hacked voting machines.
Many voters interviewed by Reuters said they formed their opinions by watching emergent right-wing media outlets such as Newsmax and One American News Network that have amplified Trump’s fraud claims. Some have boycotted Fox News out of anger that the network called Biden the election winner and that some of its news anchors – in contrast to its opinion show stars – have been skeptical of Trump’s fraud allegations.
This puts Murphy in the position of prioritizing her legal situation against her physical safety, future employment opportunities and standing in Republican politics.
Of course, she has two options that can skirt or mitigate the worst of these problems. She can comply with the subpoena and take the heat for refusal to issue the ascertainment. She’d be blistered by Democrats and the media for endangering our national security and worsening our COVID-19 pandemic response, but she’d become an Oliver North-style hero to the right and most likely avoid criminal liability.
Alternatively, she could ask the House Democrats to subpoena her and use it as an excuse to go ahead with the ascertainment. Basically, she could argue that she held out as long as she reasonably could, but she wasn’t willing to deny Biden’s win under oath or adopt Trump’s dubious legal arguments in a congressional hearing. It wouldn’t satisfy everyone, but it’s a middle ground. Her employment opportunites with corporations and DC lobbies and trade associations might be enhanced by a reversal of her position.
If I were her, I’d adopt this last option because it has the advantage of being the right thing for the country and it also provides legal protection along with, hopefully, some physical protection, too.
It’s a shame that the House Democrats must put her in this position, but they can’t just do nothing while Trump attempts a naked coup, nor can they be silent when Biden’s presidency is being sabotaged before it has even begun and the nation’s health and security are put at needless risk.