Trump’s refusal to concede creates strange gap between Biden and Harris on classified intelligence

Vice President-elect Kamala Harris took part in a classified briefing of the Senate Intelligence Committee this week and emerged in a strange position — being more informed about current threats than President-elect Joe Biden but bound by congressional rules to keep that information from him.

Harris’ twice-weekly committee briefings fall well short of what the incoming administration is usually getting at this point in a transition but she currently finds herself with more access to classified intelligence than the next commander-in-chief because his predecessor, President Donald Trump is refusing to provide Biden with briefings traditionally offered to an incoming president.

Biden and his transition team are becoming increasingly frustrated that they are being blocked from accessing the most sensitive information generated by the US intelligence community as Trump refuses to concede he lost the election.

It’s complicating their efforts to build an administration that will take charge of the nation’s security in fraught and unprecedented circumstances that include a deadly pandemic.

Experts and advisers tell CNN there’s a world of difference between what Biden can learn from outside experts and the depth of knowledge he would gain from even a limited classified briefing — which he has not received since becoming President-elect.

Different levels of access

Senators on the intelligence committee can get daily updates from the intelligence community, but they don’t receive highly detailed and in-depth background information. They also aren’t presented with developing information about the latest threats nor highly sensitive matters.

By contrast, the Director of National Intelligence could give a higher-level briefing to the President-elect if he wasn’t being blocked from doing so by Trump. During that briefing, the DNI could go into greater detail about specific threats and underlying intelligence to support the analysis.

Separately, Biden is not currently receiving the President’s Daily Brief, also known as the PDB, which is by far the most comprehensive intelligence product made available for top US officials. The PDB is put together by the DNI so that the commander-in-chief can make timely and sometimes fast-breaking decisions about national security.

The PDB provides “timely, objective and (hopefully) accurate information from all available sources, grants insights that cannot be gained simply from open-source information and the transition team’s own national security advisers, no matter how experienced they are,” according to David Priess, a former CIA officer who served during the Bill Clinton and George W. Bush administrations.

Biden is well aware of the gap between what information he’s getting and what the President-elect ordinarily would be seeing at this point in the transition. He has called, with an increasing sense of urgency in recent days, for Trump to clear the way for him to receive classified briefings.

“The good news here is my colleague is still on the intelligence committee, so she gets the intelligence briefing,” Biden said of Harris. “I am hopeful that the president will be mildly more enlightened before we get to January 20th.”

Harris’ work on the Intelligence Committee is entirely separate from her role as the Vice President-elect, a Biden transition official told CNN, adding that “there is no co-mingling of those roles and responsibilities whatsoever.”

In the meantime, anxiety is rising over the blocking of information and not just where Biden and Harris are concerned. Dozens and dozens of staffers have an obscured view, and it limits them in crafting policies specific to the actual threats.

Some of that red tape could be peeled off this week if Trump’s General Services Administration grants ascertainment, formally initiating the transition period and allowing current intelligence officials to engage with Biden and his team, according to a spokesperson for the Office of the Director of National Intelligence.

The Biden team has struck an increasingly urgent tone in recent days, as they call for the GSA to certify the election results.

“It is in America’s national security interest for an incoming administration to have access to intelligence briefings, threat assessments, and all of the data gathered by civil servants on the threats we face,” a Biden transition official told CNN on Wednesday.

“For the past 60 years, since Congress passed the Presidential Transition Act to ensure a smooth and orderly transfer of power, the GSA Administrator has usually recognized the winner as the President-elect within 24 hours of the election,” they added, placing the immediate burden on the GSA to certify the results.

Outside experts dispute that classified briefings for Biden can only begin once GSA declares ascertainment.

“President-Elect Biden should be getting access now to the same information that is traditionally provided to the president-elect, namely intelligence information and reporting, including the Presidential Daily Brief,” said Jamil N. Jaffer, founder and executive director of George Mason University Law’s National Security Institute and former Associate White House Counsel to President George W. Bush.

“Of course, the President is entitled to deny the President-elect access to any and all such information, but just because he can do so, doesn’t make it right,” he added. “Denying the President-elect access to such information is downright dangerous because it makes it harder for the incoming President to be effective when he ultimately does take office in January 2021.”

The Director of National Intelligence could give a higher-level briefing to both Biden and Harris, but his office is waiting for the green-light from the GSA before making contact with the transition team, according to an ODNI spokesperson.

ODNI, which is overseen by Trump’s handpicked intelligence chief John Ratcliffe, referred all questions about Biden and the PDB back to the White House, underscoring the fact that the decision regarding Biden’s access to the nation’s most highly classified secrets rest with the President who will leave office in a matter of weeks.

For now, experts say, the problem is that Biden doesn’t know what he doesn’t know. It’s a fundamental problem that could last until Inauguration Day.

Information block raises national security concerns

To date, the Office of Director of National Intelligence has refused to engage with the Biden team, cutting off what would normally be a crucial national security resource for the President-elect.

It all makes ensuring the continuity of government that much harder for the incoming Biden administration, and could lead to gaps in how crucial intelligence is passed along on everything from geographic hotspots and cyber security threats to the state of negotiations with the Taliban and North Korea.

Even Sen. Lindsey Graham, a close Trump ally, urged the President to allow Biden to receive classified intelligence briefings on Wednesday, as Trump continues to wage legal challenges in an attempt to delay the certification of election results.

Asked to respond to concerns about whether Biden was being briefed adequately on vaccine efforts by the Trump administration, Graham responded, “You know, the President is contesting the election, and I would urge him to give intel briefings to Biden.”

“How much further to go, I don’t know. We’re going to be fine at the end of the day. This thing will work itself out. It always has and it will here,” he added.

He did not say whether he had personally spoken with the President on the matter.

At the same time, transition officials say the delay is not only a national security concern because it is preventing Biden and Harris from being briefed on the most classified intelligence, but also because it could impact the incoming administration’s ability to full key positions.

“The 9/11 Commission Report found that the delayed 2000 transition significantly hampered the incoming administration’s ability to fill key appointments, including national security personnel, and left the country less prepared for a crisis. That’s why in the elections since, the transition process has begun almost immediately,” the transition official told CNN.

“It could also pose significant challenges to getting President-elect Biden’s team in place given the role of FBI background checks and security clearances for potential nominees and incoming national security officials,” they added.

Trump’s call

For now, the Biden team has accepted ODNI’s assertion that it is bound by GSA ascertainment and can only engage with the transition once the election results are certified — a claim that has been disputed by experts who say Trump could allow the President-elect to start receiving intelligence briefings, including at the PDB level, as soon as tomorrow if he chose to do so.

“On the PDB, it is Trump’s call,” according to Priess. “Without any order from Trump, to start giving it to Biden, the leadership at the ODNI did something that I think is quite reasonable, which is they said, ‘Look, we’re in a bind. If we start briefing Biden, when Trump hasn’t said to, we’re at least violating the spirit of the commander in chief’s lack of an order.’ So they wait for the GSA administrator’s decision.”

But that said, experts agree the GSA administrator does not unlock the PDB, and that the decision is ultimately up to Trump, but at the same time, ascertainment does allow for ODNI and the transition team to meet in the middle.

“Once that ascertainment is made, it does unlock a whole bunch of things. And it presumably the full range of intelligence community support to the transition team up to and including Biden would commence,” Priess told CNN.

“But that does not unlock the PDB. That’s a separate determination,” he added.

Regardless, Biden should request the full range of information he is entitled to once ascertainment is made, according to Jaffer.

“To the extent that the Biden campaign is willing to wait until ascertainment, which is a process laid out by the Presidential Transition Act and isn’t directly relevant to whether and when the President-elect can or should get the PDB, when that happens, they should certainly request and get access to the same information made traditionally available to the President-elect,” said Jaffer.

But even after ascertainment occurs, Jaffer told CNN that Trump and Ratcliffe could still limit Biden’s access to certain classified material if they choose to do so.

“With respect to whether and what material the Office of the Director of National Intelligence may provide going forward after ascertainment, it is worth noting that the President can decide to provide what ever he wants, and it is certainly likely that DNI Ratcliffe, notwithstanding any prior commitments made, will abide by the President’s wishes,” Jaffer said.

It also remains to be seen if Trump and his top officials will try to block members from the Biden team from meeting with members of various national security agencies even after GSA certifies the election results.