Emily Murphy and a Writ of Mandamus

A Writ of Mandamus is :

A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation , Municipal Corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.

Emily Murphy is the Trump-appointed Administrator of the General Services Administration. One of her duties is to “ascertain” that there is a presumptive winner of a presidential election, and authorize the beginning of the transition to the president-elect. This action by her does not make that person the winner. It doesn’t certify any votes, whether or not they are in dispute. All this does is allow the transition to the presumptive president-elect to begin.

Ms. Murphy has so far refused to perform this duty.

I have several questions, and I’m hoping the more legal-scholarly among us can shed some light:

  1. I assume Joseph Biden, having been declared the presumptive winner by several reputable news agencies, has standing to sue Ms. Murphy in Federal court with the intent of having a WoM issued. Is this a correct assumption? Does he have standing? Does he have standing before Dec 14 when the Electors officially vote? Is suing her personally how this process would work?

  2. Does anyone else have standing? Do I, as Joe Citizen as an individual who is being harmed by Ms. Murphy’s continued refusal to perform her legally-mandated duties, have standing to sue?

  3. Assuming Biden sues and prevails and a judge issues a WoM, are there any legal remedies if she continues to refuse? Can she be held in contempt? If she’s held in contempt, can she be jailed until such time as she complies?

To my knowledge, which isn’t all-encompassing, the GSA has the authority to issue a letter of ascertainment, but that is a different thing from saying that it has a legal obligation to do so. My understanding is that this is exhibit whatever-the-millionth of a thing that is traditionally done, customarily done, but more of what you might call a general guideline.

In order to get a court to issue a ruling that something must be done, you have to demonstrate to the court that it is legally required. I don’t think Biden or anyone else would be able to do that, as I don’t think there’s any statutory guidance on the question.

I would bet that in government and legal terms, the media’s declarations have exactly zero weight. And nor does the popular votes in the various states. What does count is the Electoral College, and they have yet to convene.

So Murphy’s entirely in her right to not yet issue that letter of ascertainment or start the ball rolling on the transition, as in terms of the actual process, it’s still indeterminate.

In all prior transitions, the GSA authorized funding & initiated the transition process well in advance of the Electoral College’s certification. In prior cycles, it was evidence like the AP’s call which the GSA relied on to make the ascertainment.

There’s no question that Murphy is acting in contravention of the expectations of her position. There’s no question that it’s an unprecedented politicization of a function that has never previously been administered in any other way than pro forma. The only question is whether it’s a failure of an actual legal obligation, or just another custom. I don’t think it’s a legal obligation, and so in that sense she’s “entirely in her right.” But it certainly isn’t true that she’s enacting the role in the way that she’s expected to.

There’s a front page CNN article on Emily Murphy. It doesn’t directly address your questions, but it seems to suggest that this is more a question of agency policy and policy precedent, rather than a well-defined legal issue.

The notion that she’s in a “no-win situation” and claims cited in that article that she’s “a deeply moral person, but also a very scrupulous attorney who is in a very difficult position with an unclear law and precedence” rather than just a Trump stooge seem highly dubious. Pandering to Trump’s willful denial of reality vs acting ethically to respect the democratic process and enable a smooth transition that could save thousands of lives does not seem to me like a no-win situation.

That article is a bunch of fucking bullshit. Neither the law nor past precedent are in any way unclear.

I’m slightly willing to give her the benefit of the doubt and note that if she does start the transition, less than 20 minutes later she’ll be fired by tweet, someone else will be named Acting Administrator who will try to unstart it - but there’s no precedence for that either, and that will end up in even more chaos.

How Republicans are not disgusted with themselves, I do not know.

Was just reading a Twitter thread about this here. This analysis suggests that any lawsuit would face a steep uphill battle because of the broad discretion written into the Act.

Here’s my question - what is Ms. Murphy’s motivation in acting this way? She’s only got her job for the next 2 months. Why should she be so afraid of drawing Trump’s ire? Or does she honestly, sincerely believe that the election results are in such doubt that there could actually be a second Trump administration? What is in it for her in placating Trump this way?

It’s not just about Trump, presumably her longer term future will depend on what others in the Republican Party think of her.

I presume that she realizes that her ascertaining Biden as the presumptive winner would be reported as a major indicator that Trump did not win the election, because that’s the kind of thing that is still news in 2020. She probably did not expect, and does not want, to make headlines by virtue of doing the kind of anodyne paperwork the GSA generally does. I imagine she has an idea in her head of what it means to administer the GSA, and there’s no space in that vision for making waves by actually moving the needle on the public’s perception of who won an election.

Hard to sympathize too much when the option of not serving Donald Trump was available, of course. She certainly should have been able to (and I think did, ultimately) see this coming. I think a lot of appointees operate on the assumption they can just keep their head down and do their own job and that will somehow insulate them from the chaos at the top. I think they shouldn’t think that, but they do.

Thanks, I saw that article about an hour after I posted by questions.

And I take it back. She’s lied to congress before to help Trump grift.

Now, I think she’s in line for kickbacks if she keeps obstructing.

-Future cushy positions from Republican donors/politicians
-Cash money under the table
-Go fund me campaigns
-Adulation and kudos from Trumpers

On the other hand, if she does not placate Trump:
-Future unemployment
-Death Threats from Trumpers

Hmmm… Decisions, decisions.

Assuming Agency head Murphy cannot be compelled under Mandamus to issue the order releasing transition funds, can POTUS be so compelled because he is the one standing in Murphy’s way?

She’s an employee of the executive government, Trump is president, and will continue to be so until January 20th. She has a moral, democratic and legal duty to follow the directions of executive government.

The USA has a constitution, the rule of law (a ‘republican’ form of government), a democratic process, and a separation of powers that doesn’t put her under the direction of ‘the media’ or ‘what most people would like’. If you think that as a government employee, you should just do ‘whatever is right’, like *****, ********, or ******* did in the 20th century, then I hope you never rise to a position of power and influence.

Can you link to the actual law? I believe you are correct, but I cannot find the law.

In other words, she (and Trump) do this for the same reason that a dog licks his balls… because he can.

Does not matter if it is good for the country. Nope.
They do it because they can.

What a sad indictment of the right.

Or, alternatively: She signs the order, Trump tweet-fires (twitcans?) her quickly, and then Trump issues an Executive Order shutting down the transition. Can that stand?

Actual text of the Presidential Transition Act of 1963 (begins partway down the first page, under Public Law 88-277):

A key point is that the act repeatedly uses the language “the Administrator is authorized…” As written, there doesn’t actually seem to be a requirement that the GSA Administrator provide the authorized support. The only actual mandatory language I can find is Section 3(d), which basically mandates that the President-Elect and Vice President-Elect receive free mail services for any mail related to the transition.

In other words, she does it because she believes in representative government, rather than anarchy or fascism. And doesn’t throw a hissy fit when she doesn’t get her own way.