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greatest evil's war. join in the conversation with your phone calls, facebook comments, texts, and tweets. in-depth with chris hedges, live this sunday at book tv, on c-span two. spend about >> so, i am going to, this is a panel where we are going to spend some time, each of our panelists going to spend five or ten minutes introducing a particular presidential transition and highlight a few of the big takeaways, interesting points, lessons learned. and so, we will go, i will not go in program order we are actually going to go in chronological order of the elections that they are going to be highlighting. do that for about 15 minutes or so and then open it up for discussion and conversation and questions. so, i am going to go forth and introduce everyone all the talk,

and then they will go in turn. i'm going to introduce folks in the order in which they're going to speak. first we would have lindsey chervinsky, a senior fellow at the center for presidential history as southern methodist university, she is a historian of the presidency, political culture, and the government, especially the presidents cabinet. her first book, the cabinet, george washington and the creation of an american institution was published by the harvard university press in 2020 and it is now out in paperback. her next book, an honest man, the presidency of john adams is under contract and will be published in fall of 2024, i like that definitive. >> thank you. >> yes, all right, just in time for another election, she will be talking about the transactions after the elections of 1796 and 1800. second up is ted whitmer ted is a historian, writer, librarian, and musician who is currently a

professor in honors college at cuny, he also served as a white house speech writer and historical adviser to bill clinton, and wasn't adviser to hillary clinton when she served a secretary of state, he has taught a harvard, washington college, has served as director and librarian of the john carter brown library at brown university, and director of the center at the library of congress, his latest book is lincoln on the verge, 13 days to washington. he is also a 2022 recipient of the guggenheim fellowship. graduations, ted. nicely done. chad will be talking about the transition after the election of 1860. as you can tell, we are choosing the good ones. rachel sheldon is associate professor of history and director of the richards civil war era center at penn state university. she specializes in the long 19th century and writes and teaches about slavery and abolition in the u.s. south and political and constitutional history, she is the author of washington brotherhood,

politics, social life, and the coming of the civil war published by u.n.c. press in 2013. which received honorable mention for the wily silver prize for the best third first book in the american civil war. she is also co-editor with carrie gallagher of a political nation, near directions in mid 19th century american political history, published by uva press in 2012. her current book project, the political supreme court, examines the political world of the u.s. supreme court justices from the early 19th century to the 1890s, and rachel will be taking on 1876. joshua sellers is associate professor of law at the same today o'connor school of law and arizona state university, he holds it shady and a ph.d. in political science where he also served as a articles editor for the university of chicago law review. he previously taught at the university of oklahoma college of law and was a post doctoral fellow it syracuse university's

maxwell school, before entering teaching he was a law clerk at the u.s. court of appeals for the 11th circuit, and a litigation associate in washington d.c.. his principal areas of research and teaching our election law, legislation and regulation, constitutional law and school procedure, his scholarship has been published in the panel review, stanford roller review, among others. josh will be talking about hanging chats and the white board, yes, you got it election in transition of 2000. and, last but hardly lace, david is a scholar of and participant in this presidential administrations and transitions, and adjunct professor at the top school business the dartmouth, in 2021 he served in the biden administration as ceo of the u.s. finance corporation. he previously served as director of the nonprofit nonpartisan center for presidential transition, where he worked for the biden transition team on transition planning efforts, he also spent 12 years as managing director of the carlisle group and held

several positions in the clinton administration. david will bring us closer, or very close to the present day by discussing the 2020 transition, and what that i will turn it over to dr. chervinsky. >> thank you all so much for being here, i am very excited about this panel, which i had the privilege to put together and it was really just an excuse to talk about the things that i am working on, and was able to find people who were interested in many of the same topics, i am sure all of you will recall your history textbook lesson on the election of 1800, the revolution of 1800, this is usually described as the first major transfer of power. i would like to say that that is very wrong, i think it is really important that we look at both the election of 1796 and 1800 and the transitions that come after as two sides to the same coin. if we look at our constitution and what it says about presidential transitions, there

are some more statutes that have been written today about how these things are supposed to go, but in 1796 that was almost nothing on the page. and so, every single action from how people would enter a room, how the transfer of power would take place, what they would wear, who would be president, everything had to be crafted from scratch, the context is really essential because in 1796 the last transition that most americans had witnessed was the french revolution, which was, of course, characterized by a heavy use of guillotine and blood running through the streets. not a great model to follow, ideally. every one president, aware, participating in the situation was acutely concerned about the fact that this was pretty much unprecedented. it had never been done, it required extraordinary care and attention, and detail to make sure it went right. john adams wrote in his letters

to his wife that he was gratified and surprised that washington had shown up, that was not a guarantee, his presence was essential to giving the stamp of approval, and then he walked out of the room, behind john adams. i do not know that washington had walked out of a room behind anyone at least eight years, if not much longer. so, that entire process was one of crafting something from scratch, crafting something with really no model to follow, having to be very thoughtful and attentive about those details. everyone who was present in the room remarked later how remarkable it had been one son had risen another had set, and it hit all been done peacefully in the nation had not fallen apart. it sounds kind of hyperbole today because we know how it all went and we know the nation survived, there are many other elections, but they meant it and they were not being melodramatic at that moment. as you know it's just to remind

us of the timing of the transition, how this worked at that time, because there was no social media, there was no cnn, there was no decision task, there was no dave wasserman saying i have seen enough, they were not really sure what the results were going to be. john adams felt confident enough on december 30th, 1796, so several months after the elections had begun, she right back to abigail saying i believe that i know the outcome. but he was not sure, he was not sure until he himself opened the results on february 8th, 1797, and declared himself the winner. . that actually left him just about a month for the actual transition, to the timeline is essential, there. fast forward four years, the result was a little bit different, by the time he came around to opening, or, by the time jefferson opened the results in 1801 it was pretty clear, everyone knew that john

adams had lost but it was not clear who had actually won. as a refresher, of course, erin burr and thomas jefferson world tied in that election, it took 36 ballots to select who was going to be the next president, and in that process john adams, thomas jefferson, anne ehrenberg were all invited to meddle in that process, to try and put their thumb on the scale to determine who is going to be the right person. as his liberation's were taking place john adams invited thomas jefferson to a dinner at the white house, indeed at the white house at this point because he had just moved in, and they committed to one another they would not meddle in the election and would let the house decide who is going to be the next president. it must have been a spectacularly awkward dinner because at this point they hated each other and had spent months criticizing one another and their supporters saying dreadful things in the newspapers. nonetheless, they committed this peaceful transfer of power and it was the first transfer

one from one party to another. a couple of takeaways, of these two elections together. peaceful transfers of power did not just happen. they require attention and care, they require a commitment to that principle. the participants in 1796 and 1800 understood that, they understood how fragile these institutions were, they did not take peacefulness for granted. i think one of the greatest gifts to people that came after them with that we could take it for granted, at least until 2021. so, that commitment to ensuring the central piece of a democracy, although i get yelled it on twitter. a democratic republic, the commitment to ensuring that central piece was essential and understood by the early participants, and one of the things that we have lost a bit,

and one of the takeaways i would like to bring to our discussion. >> thank you, lindsay. nice to see david, i talked with a lot a year ago, and have not yet met in person. but, happy to be here virtually with david and physically with all of you, i will talk about 1860 which i think is still the worst transition of all time, it is close, we may have a spirited debate. i think the verdict is still up in the air and after last night, troubled all over again, thank god there was not a guillotine in washington on january 6th. rachel is also an expert on 1860 and she just reminded me. i was a moderator a year ago and what she was the expert on the 1860 transition. >> that was what happened on january 6th, that was one it was scheduled. >> that is right, so why was it

so bad? it reveals a fatal flaw in the architecture of our system, which is that the losers of an election would accept the results. and, in 1860, as in 2020, a very significant part of the population refused. but they did not claim the election was rigged, they simply left the united states of america. that is a simple version of what happened but at every level it was very complicated as the government slowly fell apart and then was rebuilt by a complete outsider who a little over, actually under a year before the election was so unknown to the american people that in late 1859 a book of which listed the 21 most likely people to give the republican nomination in 1860 failed to contain abraham lincoln's name.

and i was just one of many things i discovered in a whole lot of research that was really on only 13 days of lincoln's train trip at the end of the transition. but, in order to do all of that research i looked at what the country was like before the election, during the election, and in the very long aftermath between the election of november 6th 1860 and lincoln's first inaugural of march 1st 1861. that is just an extraordinary drama and i learned how much of it was already planned, kind of akin to what we are hearing on tv about january 6th. how seriously and concerted the plan was, well before the elections took place, i found an article in the richmond enquirer from december 1859 saying if a so-called black republican is elected we will simply leave the country. we will take the armaments, and we will conduct a new country

from richmond. very similar to what actually happened, and also in december of 1859, lincoln gives a speech and he is an extreme outsider at this point and says, if they fail to accept the results of a legal election we will have to deal with them as we have just dealt with john brown. because lincoln was a stickler for the law. he considered it before, during, and after the transition illegal to secede from the union. so, there are these two amazing dramas happening at the same time, in 1860 and early 1861, the actual shattering of the union, and the rise of a political supernova who was barely known. i think we overstate his popularity after the lincoln douglass debates of 1858, he was really an extreme outsider and there were all of these

very slight ways in which the doors open for him to watch walk through. one of the also happen in december of 1859, a vote of the republican party leadership voted by one vote to have the nominating convention in chicago and not in st. louis. if it had not been in chicago, we can probably would not have received the nomination. he is a dark horse, he gets an amish nomination in may, it is an extraordinary campaigning before the election, four people are running the democratic party split in half. it also has a north and south divide, just like the entire country, steven douglass is the candidate of the northern democratic party, he violates a taboo by traveling and giving campaign speeches. i think for the first time in american history, lincoln stays at home. it is clear to all observers that he will win, that the electoral strength in the midwest and north is such that lincoln is going to win the

election, even before it happens. and he does, and then we enter this strange twilight of for very long, difficult months. in which it is not clear how the united states government is going to keep it together. there is a president, james buchanan, he is a weak president coming in. in late 1860 he is really falling apart, it is a situation, kind of the opposite of trump in 2020. in which the president is just not doing anything, the schism of the country, of the body politic, seems to some observers to also be happening inside his actual body. he has facial tics and has trouble making up his mind, even the smallest decisions. it is a bit like woodrow wilson at the end of his presidency. and, his cabinet is split. there are a few northerners, a very strong southern wing,

three cabinet members especially who are actively involved in dismantling the united states government that is under their charge to get ready for whatever is coming next. the secretary of war is a virginian named john floyd and he is sending armaments into the south, the secretary of treasury is from georgia and he is essentially bankrupt in the united states treasury, and the secretary of the interior is a mississippian name to jacob thompson, who is traveling around the southern part of the united states drumming up support for secession, and he is also, when he is in washington, reporting on cabinet meetings and sending all of the information back to the secessionists in south carolina, planning to leave the country. so, it is as if, i don't want to overstate the comparison to 2020, but, it is as if there is another country ready to start and the people in the final

months of the u.s. government are putting all of the strength they can into this new country that does not quite exist yet. of course, there's a lot of activity in the south, especially in charleston, south carolina, where they leave no doubt about their intention to secede and there is a lot of militia activity. there are people walking around with rifles, interesting lee in a 2020 context they talk a lot about 1776, they call themselves minutemen, the gadsden flag, the don't tread on the flag is flown by them, i think we might as historians do a little more work to connect the very strange appropriation of the american revolution on january 6th with what is what also going on in the south in 1860 and 61 as they are doing the opposite of the american revolution, tearing the country apart. south carolina sends a diplomat

to washington to begin to negotiate for most favored nation status. for a short time south carolina is thinking it is a country unto itself called the palmetto republic. it's a seeds on december 20th, followed by mississippi, alabama, georgia, louisiana, and texas. seven states have gone out of the union by the 1st of february, which is still over a month before lincoln can get to washington. there is just a general panicky feeling in washington. the social quality of the city has evaporated, northerners and southerners cannot even go to the same parties together, there is some violence, congressman from new york is beat up while walking home from the capital one night. but, what is scariest in this winter, which henry adams who is a very perceptive observer called the great secession

winter, what is scariest is a feeling that washington is really extremely vulnerable in a military way to southern militias that might just come over from virginia. which is still in the union but has a lot of hotheads who are pro, south or maryland, which is also full of hotheads. washington is surrounded on all sides by slave territory, and without too many militias, it would have been a pretty simple matter to just invade the capital and take over the capitol building and maybe a couple other buildings. and began the operation of something that would have been very strange, but a bit like january 6th it would have been a continuation of the buchanan presidency but without james buchanan. who probably would have been removed, and perhaps's vice president would have been created as a kind of acting

president. he had actually just lost to lincoln in the 1860 election, he is from kentucky, he was the candidate of the south. but, fortunately, two very impressive southerners stand up to their fellow southerners and prevents a takeover of washington from happening. one is winfield scott, who is still the commander, he is very elderly and not in very good shape physically but he is still the commander-in-chief of the united states. he is so old and then firm he cannot sit on a horse anymore but he is impressive, he comes and surrounds the capital with cannons, and loudly threatens to manure the hills of washington of arlington with the fragments of the bodies of anyone who would try to take over the capital. he is a virginian defending the u.s. capital from southerners

in the crucial weeks of december and january and february. and john c breckenridge, who had just mentioned, the vice president is a lot very much like mike pence. i was always astounded by these echoes of my ancient research of what was happening in 2020 and 2021, breckenridge has to preside over accounting of the electoral search certificates held on february 13th 1861, in which just like on january 6th of the house and senate gather in the house chamber and each states electoral certificates are opened in the presence of john c breckenridge, who is the person he would have benefited most from a decision to throw out the results. and, i actually found that the electoral certificates themselves were sent to his office. so, he might easily have lost

them or declared that they were altered, or not signed or sealed, all of these ways you could clear on a document fraudulence. and to his eternal credit he declared the election was valid, and in reading newspaper accounts i found out they were angry mobs of people chanting outside the u.s. capital on the day of the counting, of the electoral certificates, exactly like january 6th but the key difference was winfield scott was there with his cannons, and he wouldn't let anyone and. so, the election came off as it should have. as that election happened lincoln was already en route, and the promise of my book is that the whole thing was just hanging by a very slender thread, but on the train he interestingly gained strength. just the act of coming into washington, which had been very difficult for earlier presidents, and one of the reason william henry harrison

may have died so soon after becoming president is because the trip came through a lot of snow and rain and he just seemed sick by the time he got to washington. with lincoln in this kind of the opposite, the train moves fast, he speaks to large audiences, he finds his flooding. and away it is the campaign he never had. he stayed home in the summer during the campaign but on the train in a finds his voice, his large size oppressive people, he seems to get a bit bigger every day as the south seems to get a little smaller. a crucial day is february 22nd, george washington's birthday where lincoln gives a beautiful, history loving speech, sort of taking back the american revolution and saying, what it was really about was about the declaration of independence and the promise of equality. and jefferson davis, who is already the president of the united states does nothing to remember that, current events

are a big deal in transitions but choosing what you remember from earlier history is also pretty potent politics and lincoln did that very well. >> i think council's press, this okay, plush, all right. it is great to be here, thank you to lindsay for organizing this panel i am going to try to talk briefly about the election of 1876 but anyone who knows anything about the election of 1876 knows how impossible that is because it was an incredibly complicated and difficult election and transition. but, i want to make three broader points about this election, and how it relates to our modern understanding of elections and electoral transitions, but also in what made this election different, and unique in some ways because of the context of partisanship and how partisanship worked in this period.

the structural's of the federal governance, federalism and the relationship among the various branches of government. also, the aftermath of the civil war and the meaning of that for understanding the context of how people were operating. just a general reminder of how the election operated, you had rutherford b. hayes, the republican from ohio facing samuel j children from new york. in 1876 union in 185 electoral votes in order to win the election, and as the polls closed it was clear that children had 184, but there were four states in dispute. south carolina, florida, louisiana, and oregon as a result of a rogue electoral vote problem. so, because of this congress convened and wasn't sure about what to do. debated for about two months, and then came together to

create the federal electoral commission, the first of its kind and the only of its kind, it has not existed again despite ted cruz's insistence that it should in the 2020 election. and that body consisted of five members of the senate, five members of the house, and five members of the supreme court, chosen by their partisan affiliation. this is an important thing to remember going forward. and then, over the course of february this commission heard all of these four cases, and resolve them on a party line vote, 8 to 7 in favor of rutherford b. hayes, just a couple of days before his inauguration, i want to talk about three parts of this transition that i think are really interesting, although there are many others that we could discuss, and one of them is probably what is most alarming about this electoral transition is that almost everyone saw it coming. this was not a surprise to congressman, they had been

talking about the problems with the electoral system for many years, for at least five years because there had been problems before, the. in the 1872 election louisiana had, just as they would in 1876, submitted two sets of electoral returns. this did not end up mattering because graham alone won in a landslide but it could happen, and yet they did not do anything to reform this particular problem. there was also a rule in place known as the 22nd joint rule, people who are congress nerds are probably really into this particular problem. this was passed in 1865 and the basic idea behind this role was, either of the houses could object to returns from any state and then they would be thrown out. you can imagine what happens if all of a sudden a divided congress, the house in the senate controlled by different parties, decide that they want to get involved in the election

and start road throwing electoral votes. this would send this particular election into the house of representatives, they knew this was a problem. democrats insisted that this was still in force in 1876, republicans disputed this. there was not clear resolution, one other incredible thing happened in 1872, which is that the losing candidate actually died between when the election happened and the counting of the electoral votes. all these problems, everybody knew about, it nobody had any solutions for it. i think the real reason for this is that the republicans in particular did not really see democrats as reasonable contributors to a conversation about how to reform the electoral process. because they were still thinking in terms of the democrats are the enemy, they are the enemy, they fought against us in the civil war, they did not believe in true small governance or democracy, we do not think they are

reasonable to negotiate with, and that created a real impasse in how any of this could be resolved. second thing i want to talk about is the makeup of the electoral commission, and this is the particular political and constitutional context, there. as i said, the commission was fundamentally partisan, and it was by design. partisan by design, partisans makeup, participants outcome. we assume that this is a bad thing because partisanship is a dirty word in some ways in our understanding of american politics. this is not the way people thought in the 19th century. although there were plenty of people who are anti party, this was not a large group of the american public that wanted bipartisanship. not a word that existed in the 19th century, not a word that anyone would have been in favor of. because politics was a life and death sport in this particular period, having a partisan

makeup of the commission was by design, and this was not necessarily a problem. i want to say, in particular this was not necessarily a problem for supreme court justices, who are on the commission. there are five members of the supreme court on the electoral commission. they are chosen specifically for their partisan background. or for their partisan proclivities in 1876. you had two democrats, known democrats, selected because they are democrats. known republicans, selected because they are republicans. they do a little thing about why they are choosing these people because of their circuits but everyone knows it is because there are two democrats and two republicans. and they were in charge of taking the fifth supreme court justice. this is one of my favorite stories in all of american history to tell you what happened with the electoral commission if you do not know the story already. the idea was that the fifth justice was going to be david davis, who was lincoln's campaign manager in 1860, while

serving as a judge on the illinois circuit court. he had come to the court by abraham lincoln, but was sort of disillusioned with the republican party to the point where he had been a presidential candidate in 1872 for the liberal republican party, not the same thing as the republican party, not an offshoot of the republican party, a separate party altogether. so, the idea in 1876 as you get this guy who's gonna be the fifth vote who is not a republican of democrat. they called him independent but that does not mean the same thing in 1876 as it does today. independent is a separate thing in the 19th century, glad to talk more about that. they decide they want to pick david davis, the illinois legislature, meanwhile, makes the decision that they are going to elect david davis to be the next senator from illinois. this happens just as the house and senate are passing the

federal commission bill. they decide they are going to choose davis, this is done in part because children's friends, including his nephew, were convinced that if they were able to get davis this position on the senate, that he would be compelled to vote for tilden on the federal election campaign. it was sort of a ride. this is how they understood if you read the letters from this time. and, so, this does not happen because davies, in unethically good way besides this is inappropriate and he cannot possibly serve on the electoral commission once he has been elected to the senate by the state legislature and illinois. so, he declines and he is replaced by joseph p bradley, a republican who vote with we are with the republicans. as a result you get this results of the election of 1876 where hayes is going to become president.

i want to stress, again, that this is completely understood to be a partisan issue. and that this result was expected once you get probably on the commission. some people think maybe he will change his mind but in general democrats have been very excited about the commission, they had been the ones pushing the commission and they had the upper hand because, if the 22nd joint role was enforced the election will go to the house and the democrats are running the house, so they thought we may be able to get this election after all. as soon as bradley becomes the fifth justice there is an understanding that this is not going to go their way. last thing i want to mention is that our understanding of the election of 1876 in modern times and in the context of the last election, i think, is really a problem. because there is this assumption that 1876 worked, that it went well. i mean, some people think it is

the fraud of the century, that is also a storyline about the election of 1876, but it actually did not work very well at all. we, many of you i am sure know the famous story of the compromise of 1877, which is a myth, it did not actually happen, that is the idea that haze got the presidency in exchange for ending reconstruction and pulling troops out of the south. lots of reasons why this is a myth, one of them being that they were not very many troops left to begin with in the south, and that southern governments had, or southern democrats had reclaimed power and most of the southern states i'm not really that concerned about the election from that perspective. because they have engaged in the kind of rules that they needed in their home states. so, the election did not really matter as much as you might expect. but the other reason why this

compromise is a myth, and is that democrats did not accept the results of the election. in fact, right after the electoral commission came down with its decision, the democrats in the house voted on the resolution said tilden was the rightful president. so, she did not accept it, they did not attend the inauguration, including the supreme court justices who are democrats not attend the inauguration. and, tilden insisted that his managers in the house in the coming years investigate the election. investigate what had happened in the election to prove it had been that. famously in 1878 was what was known as the -- witch tried to investigate what happened with the point of proving that republicans had engaged in all kinds of corruption, it backfired spectacularly. which i can tell you more about what i don't want to take up too much more time.

so, the things that i yeah think is the main takeaways about this particular election are that this was a real political battle that operated through partisanship in a way that people understood that partisanship could achieve certain kinds of goals. those were positive knowles from the perspective of the republicans. we won the civil war. we need to maintain the way that things operate now. for democrats, we want our power as well. from that perspective, i think there are similarities to today. it also was sort of a unique moment in american history. >> i have no idea about that. >> i thought it was -- >> everyone does. it is in every textbook. >> i'm going to bring us into the modern era. i want to talk about the on

eventful election of 2000 where nothing happened. no, when we think of 2000, we think of bush versus gore, of course. that is the first thing that comes to mind. we think about hanging -- we think about jeffrey toobin on national television falling around with a decision, trying to report on it quickly or something. what that protracted litigation left us with was a really compressed transition period. it was a 38 or 39 days when it was all said and on. that is one of the key features of this transition. it was very short. i thought it would be -- it will be chaotic and disorganized. the scholars who study this actually believe that this transition was pretty smooth all things considered. clay johnson was the executive director of the bush cheney transition. he has talked about how george bush told him as early as june

1999 to start preparing for the transition. we might hear that and think, you know, this is hubris on the part of bush or something. there is an important lesson for us to consider about just how long the transition actually takes and how much preparation is required to execute it effectively, particularly in the modern era. one of the biggest differences from these past transitions to 2000 is the size of the federal government, right? it's just a massive bureaucracy now. incoming presidents have thousands of appointments to make, over 4000. we have a vast civil service subsequent all of these events. we have active protection for the civil service. a new president is coming in trying to negotiate, right? he's trying to think about, how do i want to run this? who are going to be my people? if we are trying to conceptualize a framework and thinking about transitions, i think, obviously, the timing aspect and how early presidency

and would-be presidency should start should be at the top of our list. another important detail -- this was the first presidential election to occur after the amended presidential transition act. this was a statute which was first enacted in 1963, but had been amended over the years and actually has been amended subsequently. among other things, what this statute does is it authorizes the general services administration to give office space and staff compensation for members of the transition team. so, you know, folks who have worked on these transitions will tell you that there is a firm difference, market difference between the campaign staff and the transition team. so, thinking about how to finance the transition is another key aspects in trying to think about lessons we might take from 2000 and beyond. the presidential transition act and the subsequent amendments

also requires there to be orientation sessions between the outgoing administration and the incoming administration as well as a transition directory. so, one of the -- i was listening to lindsay's comments. this remains a pretty lawless period. there is just not a lot of rules and regulations governing presidential transitions. we will hear a lot about that when we talk about 2020. it's a lot of ad hoc. we might think about statutory ill forums that we formalize and regular eyes. a lot of that involves transparency. by requiring a transition director, the public can know, you know, who are these individuals? what role are they serving in the transition? a little bit in the weeds, but soon after the transition in 2001, this was the first time

that the statute was enacted in 1996. it was used to disapprove of an agency rule. during the presidential transition, the incoming administration is often concerned with a changing political party from one president to another. there is concern about reversing the regulations that came in in the last month of the outgoing administration, sometimes referred to as -- the congressional review act as a way for congress to within a 60-day period prevent some of those regulations from going into effect. at the same time, the incoming president is going to be overseeing what regulations -- they have individuals who are tasked with doing this, trying to assess which regulations are fresh, which are new. what do we want to reverse? what is the priority in the first month and beyond?

in terms of other lessons we can take from 2000, i think there is something to be said about the role of lawyers and private sector lawyers, the bush administration relied heavily on lawyers from the banking sector to come in and work on the transition. so, again, if we're talking about reforms, we might want to pay attention to who is serving in these positions. we are interested as well and folks moving from the campaign staff on to the transition team and some of the ethical issues that might be raised from those kind of moves. again, we just don't have rules and regulations to govern this process. we have a key -- i think this is one of the key lessons from this transition. getting national security positions staff quickly, right? the 9/11 report talked about how the failure to have a lot of the national security folks in place contributed to the oversight that led to 9/11.

if we're talking about staffing and personnel, filling those positions might be on the front and or before other positions should take priority to -- the center for presidential transition emphasizes this as a persistent problem and an accident of the bush cheney transition that still exists. i would also mention financing the transitions, right? this came up in 2000 again because it was protracted. the clinton administration said that we have funds that we can release to the bush train transition, but we're not going to do that until the election is decided. bush cheney transition team set up a 501c4. you can receive donations for purposes through that vehicle. you have private financing of the transition teams. this raises campaign finance concerns. it raises ethical concerns. reformers suggest that maybe we

devote more money through statutory command to the actual transition so that we do not have private foreigners who are actually financing the transitions. that is a concern as well. of course, we have to talk about the judicial role in resolving elections. it's not only that elections have become so contested now that we expect federal court and supreme courts to be involved during presidential transitions, it is at some of the arguments which are actually raised and found themselves into the bush versus gore opinion are actually being resurrected now by some of the conservative justices on the supreme court. i'm speaking specifically about what is known as the independent state legislature doctrine, the idea that slate right legislatures have autonomy and independence to decide electoral rules, particularly when there are cases of dissent or debate

about whether certain vote should be counted or not. this argument suggests that we should give unilaterally 30 to state legislatures to establish rules. it allows state legislators to override even the state supreme court, for instance, which would resolve these cases. the origin of these arguments is the bush v. gore decision. as our elections become more contested and as we can anticipate -- i mean, we hope this is not the case, but as we anticipate almost inevitable litigation in federal court during presidential transitions, those arguments that we first saw in bush v. gore kind of becoming for grounded. that is a quick summary of some of the lessons we can take from that transition. there's plenty more to discuss, including the role of dick cheney who, as you may recall, was first tasked with identifying a list of potential presidential candidates.

it shaped the pool site that he came off looking as the only real option. they ultimately thaw dick cheney was the way to go. i guess i will say one more thing. if we are thinking about this as it -- and trying to think about how we can think about this methodologically. how do we study presidential transitions? social network theory might be something that we can work with, just looking at key figures, whether it's clay johnson, dick cheney. look at who found themselves in the bush administration. these are all decisions made during transitions. there are people who are known commodities. there are people who were known to the bush family. many of them have worked with h.w. bush. we could talk about the fact that john roberts and brett kavanaugh are players in this litigation as well.

they found themselves on the supreme court. there is something to be said about the social network. we're not sure how you would study that, necessarily. that is definitely a lesson we can take from modern transitions. >> great, thank you. david? >> thank you very much. i'm sorry i can't be there in person. i wish i could. my son is graduating high school this morning. i should probably be there for that. hopefully he makes it till tomorrow. let me say it is great to see my friend -- i did consult with him a lot during the last cycle. for those of you who have not read his book about lincoln stranger to washington, it's a page turner. it's wonderful. i was thrilled that lindsay and others organized this panel for this conference. presidential transitions are

one of the least studied aspect of the american presidency. i have a book coming out with a couple of coauthors in october about the history of presidential transitions where we take a bunch of interviews that we did with historians and protagonists between transitions. we studied every modern presidential transition. we cited some of the worst transitions in history including 1860, 1932, and others. that book is been published by the university of michigan press. what interviewed a historian from davis for the book, he wrote a wonderful book on the 1932 to 1933 transition. i jokingly said, oh, why are you writing another book on roosevelt? there seem to be a lot of books on roosevelt. he said, well, i feel that the

hundred days before roosevelt took office were as important as the hundred days after he took office. most historians focus on the hundred days after. i felt like the hundred days before whereas important. after all, during that period, ted widmer highlighted the horrors of the 1860 transition with seven states succeeding before lincoln took the oath of office. in the 1932 to 1933 transition, the great depression peaked. we had bank runs in 25 states. japan withdrew from the league of nations, adding attention in asia. our european allies defaulted on their debt. there was an assassination attempt on roosevelt in miami, as you know. hoover's idea of cooperating with roosevelt was to convince him to end the new deal. after all, hoover looked at roosevelt as a person who is feeble in mind and body and not

worth a presidency. what we have learned through history is that the transition period can literally mean life and death for americans, success or failure, prosperity or recession. a presidential transition is challenging enough in normal times as josh highlighted. modern transitions are very challenging in a period of 77 days, a president needs to develop his or her personnel strategies. there are 4000 political appointments. they need to prepare a budget. they need to prepare executive orders which will survive legal challenges. they need to prepare a legislative agenda. importantly, they need to make the transition from campaigning to government, which ted highlighted how lincoln did during his famous stranger. in 2020, this is something that maybe this group could debate a

little. the nation faced four crises and perhaps the greatest crises that president elect faced since lincoln took office. president elect biden faced a global pandemic, a huge, deep recession with 25 million americans out of work, a racial and political reckoning over the killings in the united states with george floyd and others which led to protests, and also a political crisis, more americans died in january 2021 than any other month. 176,000 americans died during the into right number from covid, 106,000 americans. ken burns was nice enough to be interviewed for my book. he said that in june of 2020 he had an optimistic take on the

transitions. he said in the 233 years between the time when washington the reins to adams and whomever this excess or trump would be -- no arms had been raised. no shots had been fired. there had been peaceful transitions of power. all of that occurred until this year. what we did in preparation for this transition, the potential transition -- we obviously didn't know before the election. we look at history to figure out what lessons learned we could take from history to apply them to prepare for the potential of the most challenging transition since lincoln took office. we learned from ted widmer that a lot can change during the country during a political into regular. we learned as josh highlighted that every day counts. busch had 35 days compared to

78 in a typical transition. as josh said, that impeded people from getting into their seats. eight months after bush took office, 9/11 occurred. that moment, bush only had slightly over half of its national security officials in place at the d.o.d., department of justice, which obviously investigated terrorism, and the state department. every day counts. we learned from the bush to obama transition that the cooperation from the outgoing with the incoming is critical. bush actually gets credit for the gold standard for transitions. . . ,,,.

. . we learned from the carter transitions that focusing on white house taft as a priority over the cabinet is more important. carter and clinton focused on their cabinet. it set them back. biden and bush did a good job focusing on their white house staff versus their cabinet. we also learned from president carter that campaigns and the transition staff need to cooperate, something that josh highlighted. carter was the first moderate president to actually devote resources and put together a transition team. we had 15 people to vote in campaign resources. what he did not do is he did not tell the campaigns that he had a separate transition operation. about a week or two before the

election, stories started carrying in the press about what carter had planned. the campaign staff had no idea where it was coming from. where are these coming from? oh, i have this transition staff, they are preparing. we worked with the biden team on all of this. they actually took it one step further. they decided to create a work stream which they called unconventional challenges. it was to try to anticipate all of the issues that they might face as a result of president trump being unwilling to cooperate or unable to accept the outcome of the election. working together, they anticipated a potential delay, not only because of the delay in votes because of covid, absentee ballots being recorded, but also the potential delay if

trump did not authorize the general service administration to ascertain the outcome of the election, which we know happened. the actual cooperation was not a trigger for over a month. they anticipated a lack of briefings from the outgoing officials to the incoming officials. biden had teams to cover more than 100 agencies. six out of people covered 100 agencies. to meet with them and figure what was going on, with a priorities, are with the personal challenges are, they anticipated not being able to launch those because of the delay. they anticipated delays and intelligence briefings. typically, as soon as there is a president elect, they begin to get intelligence briefings. well, trump did not authorize those for sometime. most importantly, confirmation. josh highlighted in this. personnel is everything during a transition. you need to be able to get people in place quickly. the biden team focused on an unconventional strategy to get

the officials in place as quickly as possible. they had 1100 officials take office who were -- that it is more than obama and trump had combined in their presence. biden knew the senate could be slow in confirming the ascertainment. also, just because there was a georgia election on january 6th, the senate could not organize itself. confirmation hearings were held. 25 cabinet officers received confirmation hearings. more than a dozen officials to office. biden had one official in place who was confirmed on inauguration day, the director of national intelligence.

they were not confirmed until the next week. so, like we learned in 1860 and 1932, an effective transition is a matter of life and death. the key thing that the biden folks wanted to cooperate with the outgoing administration on was the covid-19 vaccine strategy. i remember talking to jake sullivan who was the national security adviser about the most important policy priorities. they said it is logistics. it's getting shots in arms. delayed confirmation, delayed cooperation made it more difficult for the biden team to get their strategy in place. they could not work with the -- they could not work with the office management positive on their distribution strategy. i would just close with this. historians love to create these issues. ted widmer and i say this quite a bit. the best transition in history

was bush to obama. it was the gold standard of cooperation and the laws that josh talked about we were put in place based on the example that president bush shaped on his outgoing administration. the worst transition in history has to be 1860, as ted highlighted. one can debate whether 2020 was worse than 1932. perhaps others can have a view on that. i am thrilled to participate. i'm sorry i couldn't be there in person. thank you very much for organizing this important session. >> thank you so much, david. thanks to all of you. around of applause to everyone. use i think of this veryi want to opeo questions and discussion. i have to -- i can't resist because i think of this very illustrious group. i happen to be maybe the only person who worked on both a campaign and a transition team.

so much of what was said here, particularly josh and david, was making me think about 1992, 1993. that was -- i was very young. i was -- one thing that was distinctive about that clinton transition was that the line -- i was in the little rock transition office. the line between campaign transitions was almost invisible. it was all the same campaign people. i think that it raises -- all five of you raise this interesting point. these transitions are such an interesting animal. are they political processes? are they administrative processes? when they work well, it is when some political person -- when george washington goes out behind john adams, when breckenridge counts the votes. all gore concedes, there is a

moment where somebody or george bush, george w. bush says, i'm going to do it right. that is particularly in the modern era, that is your critical. the other thing that reminds me of the clinton transition, way too much attention on the cabinet. the white house was really the same people in their early 30s who where the campaign aides. that was part of -- one of the problems of the first year. there was -- part of that was this real -- i'm curious what everyone thinks. i was struck by ted, your remark of, you know, basically everything falls apart, so abraham lincoln has to rebuild the government. that's the most dramatic moment. this kind of institutional-ism and institutional knowledge, one striking thing about the clinton transition and the early white house was this

really resolute turning away from anything from the carter administration by a large. there were a couple of people. dom was -- in terms of that institutional knowledge, carter was a one term president. he was the last democrat who had been on the job, so there was almost no institutional knowledge. there was so much resolute -- you end up with someone like mike mccarthy who is a business leader from arkansas who is the white house chief of staff. incredibly smart guy. i'm from arkansas. that's one reason i was on the campaign. it's a state of 2 million people. it does not prepare you for that. that is part of the problem. you ended up with these kind of junior hill aides like george stephanopoulos in very, very high level, consequential positions and a real turning away from anyone with institutional knowledge of the executive branch. that was a huge, huge problem.

that is my -- those are my reminiscent cities. it's so resident thinking about the weirdness of, is a political, it administrative? how is he being treated? how are different actors in 2020 -- you have an outgoing administration which was very much entirely political. >> that's a good point. i have a memory to share briefly. when bill clinton, he was elected governor very -- i think it was in about 1978. he lost. the only time he lost an election. one of the reasons he lost is because president jimmy carter sent in all of those cuban prisoners into arkansas, which was very unpopular. it helped clinton to lose in 1980, i think. maybe it was payback for that. >> [laughter] warren southern democrat politicians. i want to open it up to discussion, if anyone has a

question, comment. if you do, speak, please. get yourself near one of these lovely microphones. press at the bottom where it says push so the green light comes on. people in the outside world can hear you. any comments or questions? yes? >> hi. i'm from the in university of indianapolis. i enjoyed this discussion quite a bit. i'm trying to give something that all of you, whether you're here in person or out in the ether, could respond to. rachel, you talked about partisanship being a good thing. it strikes me that you probably have the only example of that where that is true. i'm wondering, for any of you, how you might see partisanship playing, whether it's 1796 or 2020, how the american public thinks about partisanship and transitions. how might we actually treat our presidential transitions if we had a different view of that? >> i would make one caveat.

maybe -- i don't know if i said this directly. maybe not a good thing, but it was not considered to be a bad thing. it would be a slightly different thing. what is important about that is that there is an assumption that it exists. it's just sort of a gimmick that people are going to behave in partisan ways. that partisanship does not have to go down the just a democrat or just a republican way that we assume it is today. there were many parties in the 1960s. that's the important point about david davis. partisanship is more complicated than just republicans and democrats. it's a lot about legitimacy from that perspective. i will let others jump in. >> well, i would love to -- i totally agree with that. i think so many -- to tie into -- i think you made this point that there have been several

moments in most of these elections, actually, where it was really clear that problems were coming in. they were pretty obvious many years in a row. hamilton had been trying to throw the election to the vp candidate and make sure that adams lost. it was clear to people that this electoral shenanigans were very much possible. they sort of seemed surprised. it in fact happened. 1860, 1866, but also in 2020. in 2016, trump said he would not accept the outcome of the election if he lost. there was a debate whether or not that would happen. i think a lot of our problems with anticipating issues are that we don't expect partisanship to come into play. we think that there are positions that people somehow check their partisanship out the door. if we were much more open about partisanship causing problems and it being a very intense, nasty element of our system, it's their.

let's own it and see what we can do to mitigate that. it would go a long way. one of the things that -- i don't remember if you talk about this or if i am stealing someone else's idea. the person who is responsible for the ascertainment it is a political appointee. it is responsible -- the person they are potentially kicking out of the white house. that was kind of the problem in 2020. if you have a non political appointee, if you have a civil service person, if you have a commission, whatever it is. it's not that partisanship won't come into play, but let's be a little bit more honest about those motivations. >> david, were you -- >> i would just add that, up until this year in the modern presidential transition context, which i would say since carter, the transitions have been largely bipartisan. there is a -- officials working and incoming and outgoing administrations that cooperate, that collaborate, that share

experiences in order to facilitate the smooth transition of power. for example, the organization that i was working with organizes a transition conference every cycle. everyone has traditionally come together for. for example, in the previous cycle, we had hillary clinton's team, bernie sanders team, ted cruz's team -- there were multiple players who participated. they all collaborated. they collaborative very closely with their successors. obviously, he didn't win, but he took the approach much like a management consultant and had a very methodical plan which others -- it was an exception. hopefully, in the future, we can get back to a nonpartisan approach for presidential transitions. >> great.

yes? here and then there. >> i have a question about the supreme court. i think it is at least in the first instance mostly for racial and josh, but also, as i think about it, lindsay with her sense of the back channels of communication in the early channels of -- you to each have presented on elections where the supreme court played a decisive role. er, worse.obviously, the role ws radically different. not everything needs to be better or worse, but i'm just wondering your thoughts, if you are to compare the role played in those circumstances, an overtly political role that we are calling on people to observe institutional credibility for versus an institutional role played by people who we -- i mean, right? both of them leave me uneasy.

i'm wondering how you, how anyone who thinks about that rule for an institution, has been an important legitimate or for the trail. >> do you want me to start or -- i will let you. >> we know of course that -- i don't think this is just because of legal reasoning. it's questionable. it really damages the institutional credibility. i'm aligned with many others. i think we have continued along that path. a lot of people point to bush v. gore and say that is the first time i really questioned the court. it is inconceivable to me, at least, that the justices were playing an active role today as seem to be the case.

i don't think we would gain anything by -- i don't think it will be necessarily preferable to have -- i don't want the court resolving elections, i guess. i don't want the court resolving elections, whether it is under the guise of neutrality. i don't want the court playing an active role in elections. i'm afraid that it will. president trump believed that they might. some of the justices seem eager to do so. i don't want them playing a role. i don't think that there is much daylight, to be honest, between the kind of partisanship that we saw in 76 and the kind of messages and signals that we are getting from some of the justices today. i just don't think there is very much between those. my suggestion would be, you

know, criticize. we can do our work of trying to expose when we see partisanship and bias creeping into these decisions and doing whatever we can to try to keep the courts out of the business of resolving elections. i could talk a length about that, how we have commitments strategies. having courts resolving these issues is worrying. >> i would say there has been a long tradition of saying that there were many people in the 19th century who won of the court to resolve the 1876 election. you read a lot of books and compare the 1876 election to the 2000 election in particular and say that. i don't think that's true it all, actually. i think there was a very small minority of folks who are really interested in the court deciding the election. they were mostly republicans. they expected the court will decide in favor of them. it was a mostly republican

court. in general, i think the main point there is that the court did not have that kind of power. it just didn't have the kind of power to decide anything involving elections. courts on the state level and local level played a huge role in the 1876 election. it's not true that courts were separate from the election itself. the supreme court, because the justices had these political proclivities and people knew that, it couldn't be in charge unless you really want to spin it for the republicans, which some people did. i would say that maybe the lesson is just that the court should not have so much power. if you accept that they are more of a political body and engaging in partisan politics in certain ways, you can still be an honest judge and have partisan proclivities. those things are not necessarily in conflict, right? if you acknowledge that and then the court doesn't have as much power, maybe it's not as much of an issue. i think there is an understanding going on in 1876.

maybe this relates to some of the other comments about the interrelationship among politicians in washington. all of the same people are involved in all of the same things. many of the lawyers who are presenting in front of the federal electoral commission are very close with the justices. they were part of their political campaigns and careers. there is no way of taking that out. it's a much better acknowledgment that that is just how things worked at a point. maybe it was not such a bad thing. when they got cases, they were deciding them on the basis of the case and not the partisan issue. in the 19th century, when you don't have finalist already over the constitution and the supreme court, it matters less that you have those partisan proclivities. other bodies and other people can say no, we don't agree with what the court is doing. >> if we take it a step -- , okay good.

i wrote down social network theory when josh said this. i mean, the early republicans were just the most incestuous place that there has ever been, one of the main sort of plots behind the election of 1800 was from alexander hamilton. he had written to john j wants. it was clear that the new york electors were going to go republican. john jay, who had been in the first chief justice and was now the governor of new york because chief justice wasn't prestigious enough, he said, why don't we change the way the electors are reported? that way, we can swing them to the federalist case. jay just kind of put the letter to the side so he didn't have to acknowledge that it happened. the election could go ahead smoothly. all of these people knew each other. all of these people had very close relationships. thomas jefferson and john marshall were cousins. they despised each other, which was what a lot of the supreme court animosities were about

for the first decade in particular. they were able to draw a distinction between partisan judges and super partisan judges. they knew the partisanship was there. they were just willing to accept it until they were so ridiculously partisan that jefferson try to get them kick out of the supreme court like samuel chase. i don't know if they're early republicans are a good supreme court model for what we should aspire to. i think that there is a space for partisanship which is accepted and acknowledged. i actually wonder if our supreme court, our relationship with the supreme court will be better if we stopped pretending like we were not partisan. we were not partisan and said, yes, the these are the spoils which come from the presidency. go and approach it that way. >> yeah. i saw a hand over on this side. yes? >> i think this is on. okay, i'm rob baker. i'm from georgia state. i'm having trouble formulating a coherent question here

because my head is spinning listening to this wonderful roundtable. it has been fabulous. i'm struck by the partisanship of the -- i knew the corrupt bargain wasn't real. >> all right. >> i did not know that there was a celebration of partisanship there. that actually struck me because people were elevating constitutionalism and office. benjamin are curtis came out of retirement to defend president johnson and the impeachment hearings. in 1864, we were holding an election in the middle of a war. these were moves where they were elevating democratic norms above what would be a personal partisan -- i'm wondering if there is a tension here with disappointment of the commission and this idea that it's a good thing that it's

partisan or -- >> just accept it, yeah. >> i guess i -- i don't want to believe that. i will put it that way. i don't believe you. >> my friend and coauthor eric alexander is in the audience. we've written quite a bit about that. i think the key is just to have a different understanding of what partisanship is and what it looks like in the 19th century. the idea that you have two political parties which are fighting each other out at all times was just not the case. there were lots of political parties. the idea that a political party is going to last forever is not universally held. i would say in 1864 nate -- that is upholding democratic norms. it is a different political party that he is trying to create with his own political organization, the union party. this is not like, well, i'm a

republican and i'm going to become a dictator. well, i need to build a political coalition and i'm going to do it in this way in 1864 as opposed to the other way. i don't think all of these people are super on principled. i think they had a different understanding that, you know, if you want to achieve something, organizing a group of people into a party to try to advocate for a political perspective was the way that you did it. even if people argued against partisanship, they were often just arguing against one party, not both parties. they were arguing just against the idea that, well, i don't like partisanship. i'm going to organize myself into a party to fight against the party that exists. that's the no nothing party right there. partisanship is going to inflict the way people behave. if you understand that, you can better understand why people are engaging in what they are engaging in. me to achieve something but

your political party is legitimate. i'm going to be partisan because partisanship is important for me to achieve something. the democrats, they are not a legitimate political party. they supported the confederacy. i think that it is more of a complicated relationship to partisanship than good versus bad and more of an acknowledgment from that perspective. i don't know if i answered your question or if i have convinced you. i would like to talk more. >> david, i would love to ask you a question. i'm sorry to put you on the spot. move forward, we had another election. in theory, there's another transition coming up. how does a bipartisan transition work if one side won't play along? >> great question. president biden has said that

he's running for reelection. he and his team will hope that they win the election. they will also be required under the presidential transition as amended as -- to prepare for a potential loss. he will need to instruct his cabinet, appoint transition coordinating councils, and instruct his cabinet to prepare memos and prepare a plan for if he does lose. there are requirements to report to the congress and the public on the implementation of the law at the six month mark prior to the election in the three months prior to the election. ironically, in the last cycle,

president trump's team did a very effective job up until the election, there was a fellow named chris who was the deputy chief of staff. he was also the person who ran the romney transition. he worked under the radar to implement the law as required. only after president trump got involved in the plans go off the rails. president obama did this under the law as well. he ran for reelection. his team actually worked with the romney's team to prepare for the potential that romney could've won. obama, on the way out in 2016,

actually did coordinate with both hillary clinton's team and with candidate trump's team. there is a law that requires this type of cooperation. the culture in washington up until this year has been that there is a group of bipartisan officials who care about transitions deeply and work to create an environment where it transition is seen as this holy and part of american democracy where the outgoing cooperate with the incoming. that has been the tradition. it's the law. hopefully, that will happen in the future. >> and i follow up on that, david? it's my understanding that these memorandum -- i have understanding that the respective campaigns agreed to -- there are these ethics laws

which are in place to provide event someone from coming in from a law firm and even certain things on the campaign then going back to the law firm, that kind of stuff. i don't know that any of that is actionable. >> it is actionable. there are a series of obligations that the incumbent administration has to execute. a memorandum of understanding with each of the candidates after the nominating conventions. the law recognizes the nominees to be official nominees after the nominee conventions. they start to get, as you mentioned, staff offices, access to government computers, mobile phones. in one of the post 9/11 reforms, they can submit names to the department of justice and the fbi to get security clearances so that their people are ready to receive intelligence

briefings. there is also a memorandum which one is negotiated between the united states and the campaign or the transition for how the outgoing and incoming cooperate. again, all of that was done prior to the administration under trump. it wasn't implemented until the election because trump impeded the execution of the plan that staff today good job of pursuing prior to the election. it is one of the untold stories of the transition that people who like trump actually did a good job of until the election. once the election occurred, trump did not allow them to execute the plan as required under the law. >> well, at least we know the laws are there. thank you. i want to thank all of our

panelists in person and virtual. i want to thank all of our audience members, in person and virtual. this has been a really terrific and really interesting roundtable. i'm feeling that the conversation will continue. thank you to all. thank you, lindsay, for bringing everyone together. >> thank you all. weekends on c-span two are an intellectual feast. every saturday, american history tv documents america's story and on sundays book tv brings you the latest in nonfiction books and authors. funding for c-span 2 comes from these television companies and more. this includes comcast. >> you think this is just a community center? no, it's way more than that. >> comcast is partnering with 1000 community centers to create wi-fi enabled lift systems students from low income families get the tools they need to be ready for

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