A 2020 law aimed at improving presidential transitions was hailed as a shining example of bipartisanship — a symbol that Congress can “stop politicizing ethics reforms,” as then-Congressman Mark Meadows described it on the House floor.
But one fateful assumption in the law — that presidential transition teams would actually want government support — has rendered the law toothless as a second Trump presidency approaches.
It’s a loophole legislators didn’t anticipate presidents actually taking advantage of, lawmakers and historians told NOTUS. The original Presidential Transition Act of 1963, subsequent updates to the law, ethics requirements, outside contribution limits and disclosure requirements all hinge on the president actually accepting government services.
President-elect Donald Trump’s unprecedented decision to decline that aid — coupled with a new level of involvement in transition efforts by an outside nonprofit, America First Policy Institute — raises a slew of ethical questions, experts told NOTUS, and few legal guardrails to answer them.
A wholly privately funded transition has received little congressional scrutiny thus far: Some of Trump’s closest Republican allies, including Sen. Rick Scott, told NOTUS they didn’t even realize it was happening. But it represents a massive shift in how the country transfers power and could leave the public in the dark as to who is trying to wield influence and how much they paid for the privilege.
“No one anticipated that a candidate, who was not yet sworn in, would cave so entirely to a handful of billionaires,” Sen. Elizabeth Warren, who helped draft the 2020 update to the law, told NOTUS.
Republican Sen. Ron Johnson, who co-sponsored the bill, framed the ethics provisions — which were described as “requirements” in discussions about the law — as mere suggestions now.
“I supported the law because you wanted to help a new president coming in transition to a new government,” Johnson told NOTUS. “Every president can handle that however he wants to.”
The Trump-Vance transition team did eventually publicize its internal ethics plans and stated that private “donors to the Transition will be disclosed to the public.”
But as long as he keeps rejecting public funds and services from the General Services Administration, actually complying with those commitments — and the level of detail in those disclosures — remains purely optional.
“We’re definitely in uncharted waters now because I don’t think the drafters of the legislation anticipated that someone would not want to take the funding,” Brookings Institution transition expert Kathryn Dunn Tenpas told NOTUS.
“This transition period is really influential in terms of dictating priorities, policy choices, personnel choices, and if you don’t know who’s donating money to Trump, it’s hard to know whether there were quid pro quos or there were other agreements where people donated because they wanted certain outcomes,” Dunn Tenpas added.
There is some ambiguity in what “services” could trigger any of the ethics and disclosure requirements. But because Trump’s entirely private approach to the presidential election is without precedent, this is the first time these limits are being tested.
Section 3 of presidential transition law, for example, calls on presidential candidates to submit candidates to “high level national security positions” to the FBI and other appropriate agencies “as soon as possible.” Section 6 in the law sets a $5,000 outside contribution limit “as a condition of receiving services under section 3.”
Could getting security clearances, something the Trump team needs to be prepared to take charge of, trigger the $5,000 contribution limit? Possibly, but it’s a gray area. Experts told NOTUS it’s also a fair interpretation to surmise contribution limits don’t apply in the face of only accepting security clearances. Trump has made no indication he plans to abide by the $5,000 outside contribution limit.
“This ambiguity is a perfect example of how much work we still have to do to ensure clarity, transparency and cooperation in the presidential transition process,” transition law expert Valerie Smith Boyd at the Center for Presidential Transition told NOTUS.
In 2021, the Biden-Harris transition team filed a more than 1,000-page report of private donors to the GSA, including the date of donation and amounts.
“It’s clear that they are sidestepping many of the safeguards the president-elect himself signed into law that were touted as bipartisan,” Daniel Weiner with the Brennan Center for Justice told NOTUS. “That reveals a pretty major loophole.”
The transition team did not provide specifics in response to questions from NOTUS about whether the team would interpret the law to count security clearances as part of the triggering set of services on the $5,000 contribution limit — and whether the team would disclose amounts of donations.
“The Trump-Vance transition is compliant with all applicable laws and regulations, including the MOU requirements, and donations will be disclosed as required,” Trump-Vance transition spokesperson Brian Hughes said in a written statement.
The heavy involvement of America First Policy Institute also means that Trump’s optional list of official donors may not reflect the real influencers in the effort.
Outside nonprofits and think tanks have long been feeders to new presidential administrations, but those who have worked on transitions in the past described AFPI’s role in the transition on a different dimension.
“They’ve created this, essentially, transition organization. It’s just a lot easier to keep it there than move it over the GSA,” Trump 2016 transition appointee Myron Ebell told NOTUS. “The fact that AFPI already had that infrastructure built. … I think it’s just much simpler.”
While The Heritage Foundation, which has aided Republican presidential transitions in the past, garnered Democratic scorn for its Project 2025 plan — the parallel America First Policy Institute remained larger under the radar but has significantly more power with Trump, sources told NOTUS and has been previously reported.
“An outside organization can do an outstanding job, but any lack of formal authority to represent the president-elect creates confusion at best,” Smith Boyd said.
Hughes said, “We are grateful for AFPI and several other organizations working hard to make this the greatest and most successful administration in history,” in response to NOTUS’ questions about AFPI’s level of involvement.
“AFPI is a 501(c)(3) organization that complies with all IRS regulations and guidelines,” AFPI spokesperson Hilton Beckham told NTOUS. “Any interactions with the Trump-Vance transition effort, a 501(c)(4), are conducted in accordance with applicable laws and do not present any conflicts of interest.”
Trump’s Senate ally in the 2020 ethics reforms law he’s now evading, Johnson, waved off those concerns, pointing to the way transition documents later haunted the Trump administration the first time around.
“He couldn’t trust the government to handle his transition properly, understandably,” Johnson said. “Last time around, they released his records, I think probably improperly, if not illegally.”
Trump has long-standing distrust of GSA: His attorneys and congressional Republicans accused the agency of illegally granting Robert Mueller access to transition documents in 2017. Transition-planning documents at GSA again became mired in legal wrangling in 2020.
But Democrats who worked on the law warn that abandoning GSA altogether is setting an early stage for American oligarchy.
“The 2019 bill that I worked on that he signed into law was designed to make certain that work in the transition was transparent and that conflicts of interest would be eliminated,” Warren told NOTUS.
“By doing an end run around those rules that he had agreed to,” she added, “Trump is signaling to the American people that he wants to run a government that works for billionaires but not anybody else.”
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Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.