Trump Team Barred From Agencies Amid Legal Standoff

Advisers to Robert F. Kennedy Jr. reached out to the Health and Human Services Department multiple times after Donald Trump tapped him to lead the massive agency, hoping to jumpstart coordination before his takeover in late January. They were rebuffed.

Kennedy’s inability to communicate with the agency he may soon manage, confirmed by an administration official with knowledge of the episodes granted anonymity to describe internal deliberations, is just one consequence of the president-elect’s continued foot-dragging on signing the standard trio of ethics and transparency agreements with the federal government — something his team pledged to do shortly after the election.

The Trump transition’s unprecedented delay in signing the agreements has so far prevented the incoming administration from having any formal contact with federal agencies, including sending in groups of policy advisers known as “landing teams.” It also means they can’t access cybersecurity support or secure email servers for transition-related work, or request FBI background checks for their nominees.

Both the Trump transition and the White House confirmed to POLITICO that negotiations on the agreements are still underway. But until the standoff is resolved, Trump's Cabinet nominees will gain no more insight than the general public into the workings of the departments they're supposed to run.

Watchdog groups, ethics experts and former government officials say the delay in coordination with federal agencies, which typically begins by mid-November, means the new administration won’t be up to speed on the state of the career workforce and budget and what headaches may await them when Trump takes the oath of office on Jan. 20. The failure thus far to sign the memorandums has also troubled Biden officials, who are particularly concerned about the potential national security implications.

Without the agreements in place, Trump’s team can’t access any non-public government data — depriving it of a full view of efforts the White House and federal agencies are taking to safeguard against a range of threats. That includes classified elements of the administration’s involvement in conflicts in the Middle East and Ukraine, and details of high-level conversations with allies. The stalemate has also left the Trump transition largely in the dark on threats closer to home that could quickly mushroom into crises, like the continued spread of avian flu.

Members of Congress in both parties are also alarmed, with three Senate Democrats suggesting to POLITICO that the lack of FBI background checks could prevent Trump’s nominees from securing confirmation — pointing to revelations this week about Defense Secretary pick Pete Hegseth and Matt Gaetz, who decided to withdraw from consideration to be Attorney General on Thursday after a series of leaks about investigations into alleged sexual encounters with underage women.

"If there is a lack of proper investigation into a nominee, I don't think [the Senate Armed Services Committee] would allow the nomination to move forward,” said Sen. Tim Kaine (D-Va.), a senior member of the panel.

One Republican close to the transition suspected that Trump officials are in no rush to sign the agreements because they believe the operation is running smoothly from Mar-a-Lago without federal assistance.

And many on the right are urging Trump’s team to buck the rules by continuing to use private funds to pay transition staff and conducting their own personnel vetting as they prepare to take over the federal government.

“They don't need the hassle,” argued one Republican familiar with Trump’s 2016 transition and the current one, granted anonymity to speak about private deliberations. “[Without the public funding], they'd be left to organize [the transition] the way they want, instead of taking the public money, which opens them up to the GSA and quasi-public organizations whose sole mission will probably be to derail them.”

Even as ethics experts worry that the Trump transition hasn’t yet begun the agency review work needed to be ready to govern, they warned against starting that work before signing the three memorandums of understanding with the General Services Administration, the White House and the Justice Department.

“There is no basis for a president-elect's team to enter federal agencies and have discussions without” signing the MOUs, said Valerie Smith Boyd, the director of the Center for Presidential Transition at the nonpartisan nonprofit Partnership for Public Service, which assists all parties with transition planning.

“The main thing that it says is that the members of the transition team will be bound by an ethics agreement that ensures that they're using information appropriately, that they limit the use of lobbyists and foreign agents, and that individuals who leave the transition and go back to the private sector won't use this information for personal gain,” she said.

Several agencies, including the Pentagon and State Department, confirmed to POLITICO that they’ve received no formal outreach to date from the Trump transition — from the landing teams or other officials.

The Justice Department, meanwhile, offered just days after the election to start briefing the Trump team on ongoing operations and processing security clearances for its incoming officials, but cannot do so until the Trump transition signs the agreements. Without the DOJ agreement, the FBI also cannot conduct background checks of Trump’s Cabinet picks, which has already emerged as a potential hurdle to confirmation.

Soon-to-be Senate Majority Leader John Thune (R-S.D.) said Thursday that in the absence of that federal scrutiny, he and his fellow lawmakers who will be voting on the slate of officials will have to be “very thorough in vetting these nominations and ensure that the correct background information is available.”

Republican Sen. Roger Wicker (Miss.) was even more direct, saying “yes,” when asked if the president-elect’s team should be allowing the FBI to conduct background checks of nominees. “We need to do it by the numbers.”

Trump spokesperson Brian Hughes said his team’s lawyers “continue to constructively engage with the Biden-Harris Administration lawyers regarding all agreements contemplated by the Presidential Transition Act.” But he declined to explain the reasons for the holdup, which provisions have yet to be resolved, or when they expect to reach an accord.

Still, the Biden administration remains hopeful Trump officials will ultimately sign at least some of the agreements, and has both publicly and privately offered the incoming team whatever assistance they need to be ready to govern on Day One — well aware of the havoc even a temporary pause in transition prep can wreak.

The multi-week delay Biden’s team experienced in 2020 due to Trump’s refusal to concede, for example, blocked their access to government agencies and data and hampered their work on national security and controlling the then-raging Covid-19 pandemic.

“People involved in the Biden-Haris transition felt like they were not as prepared for the intelligence threats to the country on Day One as they should have been,” said Heath Brown, an associate professor of public policy at CUNY’s John Jay College who wrote a book about Biden’s 2020 transition. “They felt like they had not been fully briefed.”

And in 2004, the 9/11 Commission published its investigation that found the legal battle over who won the 2000 election that delayed the transition from getting underway was one of the reasons the eventual winner, President George W. Bush, and his administration were caught off guard by the terrorist attack months later.

Trump’s decision, thus far, to forgo federal transition assistance and cooperation is unprecedented in the modern presidential system. Kamala Harris’ team signed all three federal memorandums — with the General Services Administration, the White House and the Justice Department — before the November election. Trump’s team did as well the first time he ran in 2016, and Joe Biden’s team did in 2020.

Holding off on signing the agreements has freed the Trump transition from having to abide by a $5,000 cap on donations and a requirement to disclose their donors. But in addition to delaying coordination with federal agencies, it has prevented them from gaining access to secure government email servers, office space, and FBI background checks for incoming officials, sparking concerns beyond the incoming administration’s readiness to govern.

Amid an uptick in hacking this year — including breaches of Trump’s own team as recently as August — experts are alarmed that the transition is eschewing federal cybersecurity support, particularly as they begin to receive intelligence briefings.

And the public remains in the dark about potential ethical and financial entanglements of the transition staffers helping Trump select the bevy of Cabinet nominees he has announced in recent days.

“Until they sign this agreement, they’re not yet government employees. They can do anything they want. They can have any conflicts of interest they want. They could be taking money from foreign governments for all we know,” said Richard Painter, the chief White House ethics lawyer in the George W. Bush administration. Trump and his team “need to convince the American people, including the people who voted for them, that they’re working to help the country, not just make a bunch of billionaires even richer. Not signing these agreements is a great way to tell all those working class voters: ‘Thank you very much. Now eff you.’”

Hailey Fuchs, Ursula Perano, Joe Gould, Connor O’Brien, Robbie Gramer, Paul McLeary and Gavin Bade contributed reporting.