#WTH Matt Gaetz, we hardly knew ye

And more on the perils of nominations in haste, and recess appointments

Donald Trump thinks the Department of Justice has weaponized its vast power against him, and against Americans with whom its leaders have political grievances. Many Americans agree. So he nominated now ex-Congressman Matt Gaetz to be Attorney General. Knowing that Gaetz would face an uphill battle to be confirmed, Trump floated a recess appointment for Gaetz and anyone else the Senate didn’t confirm in a hot minute. Both ideas were terrible: Terrible for the Constitution, terrible for Donald Trump, and everything he hopes to achieve.

Stepping back a moment, let’s talk about recess appointments. We had our dear pal John Yoo on the pod this week to talk all the details, so listen here for that deep dive. Long story short, recess appointments were a product of the 18th century’s lack of trains, cars, and planes, and intended to allow a president awaiting the return of the Senate to enjoy the services of his appointed staff. Anachronistic perhaps, this remains the letter of the constitutional law.

Normal people outside Washington may ask why it is that in other countries, prime ministers and presidents can appoint whoever they damn well please without having to wait for the opinions of 51 elected members of the legislature. As Ed Whelan of the Ethics and Public Policy Center notes in an excellent National Review piece, the framers had a reason for their construction of the Advice and Consent Clause. Per Alexander Hamilton in Federalist #76:

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure

Yes, Virginia, these are called checks and balances, and in America, we don’t like too much power to repose in the hands of one branch of government. This, among other reasons, is why we don’t have a King, and do not bow to Charles or Camilla.

But that’s enough erudition. Let’s talk simple facts, first about the recess appointment foolishness, and for a moment or two, Matt Gaetz. On recess appointments, we understand that the confirmation process has become an embarrassment to the Senate. First, the filibuster was used to deny presidents their chosen nominee on no other grounds than party, and when former Senator Harry Reid (D-Nev) nuked the filibuster for confirmations, the cloture process (60 votes to end debate) was abused to slow roll the process. Democrats began regularly voting against any R nominee no matter how qualified, and Rs returned the favor.

As a result, many of Donald Trump 45’s nominees never saw the light of day, and he was, unsurprisingly, unimpressed with the whole Advice and Consent thing. Thus, the recess appointment workaround. If you want to understand the whole tortuous plan, read Whelan’s piece on how it might work here. The flaws in this scheme, and the weaknesses of the legal geniuses behind it, betray a failure on the once and future president’s part to understand how things went wrong for him after January 6. Because similar legal geniuses claimed to him that he could indeed claw back the election after Joe Biden was declared the winner. Apparently, it was not enough to be rejected in every single court in the land.

One might understand the impulse to circumvent the Senate more if the opposition party were in the majority. Then, the odds of rapid confirmation for Trump nominees would be low, and workarounds might even be a tolerable response in some cases. But the Senate will be in GOP hands beginning on January 4, 2025, and leadership has committed to moving all nominees with alacrity. And there’s another problem too: When one hopes to upend the status quo, as Trump has made clear he does, ideally one does so with the maximum of legitimacy. The confirmation process confers that legitimacy, and allows the nominee to move forward as the constitutionally kosher appointee. Not so the dodgy recess appointee.

Let’s imagine that Trump somehow forced his plan upon a supine Congress. What would then happen? If you instantly imagined a man or woman in black robes with a gavel, mazel tov. The lawsuits would fly thick and fast, and that recess-appointed lady or gentleman would suddenly be in legal jeopardy. And more: Every single decision they took would be subject to legal reversal. Every single firing, hiring, rule, or prosecution would be in question. Every. Single. Act. This is not what we call an auspicious beginning.

And so we come to Matt Gaetz. To echo the cadence of one of my favoritest stories (read here about the infamous lush Brit Foreign Minister George Brown), even if Matt Gaetz had not been the engine of his own Speaker’s demise in the House; even if he had not been the object of an Ethics Committee investigation for trafficking and sex with a minor; he still would have been a dreadful nominee. If Donald Trump intends to clean up DoJ, Gaetz was the equivalent of bringing a slingshot to a gunfight. (I can’t comment on Pam Bondi, as I know little about her.)

Of course, Trump would have realized what a creeper Gaetz is had he actually used the FBI background check procedure. Instead, the Trump team is reportedly using PIs (“Magnum PI” — John Yoo) to dig into their nominees' backgrounds. Thus, we discover that DoD nominee Pete Hegseth paid off a woman after she accused him of sexual assault. Weird he didn’t include that on the forms the campaign asked him to fill out. 🤷‍♀️

Donald Trump has picked some really solid nominees — Marco Rubio, Elise Stefanik, Chris Wright, Doug Burgum, and plenty of others. They deserve a proper hearing and a vote on the Senate floor. Others like Tulsi Gabbard and RFK Jr deserve a proper hearing.

The former president should understand the perils of a dodgy process. He has had rubbish suits against him thrown out across the land. Does he want his own actions to be reversed the moment he steps away from the White House on January 20, 2029? Or does he hope to have a lasting legacy as the man who slimmed down the Federal Government, upended the sinecural bureaucracies, and changed the relationship of the government with the American people? Sure, it’s a tall order. But the right place to start is with a solid, legal group of troopers who understand the complexities of government and the law. Not a bunch of drunks and weirdos whose main claim to fame is that they know Vladimir Putin’s secret cell phone number, scored with a hot chick at the hotel bar, or weaseled out of alimony because of a brain worm.

HIGHLIGHTS

What are recess appointments?

JY: The founders realized that the Senate would not be in session all the time. So they have a clause article II section II, which says that when there's a recess of the Senate, the President has the power to fill up vacancies and those appointments are just as good as if you've been advised and consented to, but you can only hold the power till the next session.

How often have recess appointments been used and what’s different about how Trump is trying to use them now?

JY: That's been regularly used and as I said, President Obama abused this power and there was a case that went all the way to the Supreme Court about this, and the Supreme Court only decided five to four with the conservative justices in the minority. There were conservative justices and I'll explain a little bit more about this later, who didn't think President Obama could use this power.

So the new thing that Trump has said, this clause has never been used before. Most people didn't even know it was in there. This is in the next section and it basically says when the House and the Senate disagree about adjourning, the president can adjourn the Congress, which would effectively create a recess. So no president as far as we know, has ever used this power, but what Trump's transition team is floating out there is that say Speaker Johnson says, "We want to go to adjournment." And Majority Leader Senator Thune and the caucus don't want to go in adjournment. That's a disagreement. And then President Trump could say, "I adjourn Congress and now I'm going to make a thousand recess appointments." That's what the Trump team's talking about.

There is a recess in between Congresses but can Congress recess during the year?

JY: So Justice Scalia, for example, with Justice Thomas, Justice Alito, and Chief Justice Roberts, believe it or not, have said an opinion from 10 years ago, that's the only kind of recess that exists. You can't have a break during the year.

If that's true, then Donald Trump's proposal is going to totally collapse, and that's also why whatever he does, whatever Trump does, whatever he does with Gaetz, you're going to go to the Supreme Court because I actually could see easily five or six justices now agreeing.

Congress does go home periodically though, is something such as August break a recess?

JY: So the Supreme Court majority 10 years ago, which I'm not sure this current court would agree with, they said the Senate has to be out for at least 10 days. If the Senate goes out for 10 days, they're not in session for 10 days, not meeting... The wrong word, they're not meeting for 10 days, then the President can start making recess appointments. But what has never happened is Dany's point is how is it that the House and Senate would disagree? The Senate just decides when it's in and out and the House decides when they're in and out, they don't have to be meeting or not at the same time. That actually reinforces Scalia's view.

The Constitution says that in the case of a disagreement between the chambers, the president can put Congress on recess. Can Trump decide to recess Congress for the time he chooses?

JY: First of all, this shows actually the danger of reading the provision this broadly, because if this were true, Trump could say, "I'm putting you out of session for a year." Which was actually one thing the founders, when you look at this provision, I looked it up in the Federalist papers, I don't think people have talked about this yet in the public debate. This was represented as a restriction on the presidency because the king in England could cancel the Parliament for years-

How did the founders view this provision?

JY: And so actually, when Hamilton talks about this provision, he says, "This is probably never going to be used much, but this is to make clear that the president can't prorogue the Congress or the Senate."

Why is this a bad idea for Trump, would anyone have jurisdiction to sue the president over skirting the content and approval process?

JY: Here's how it would come up. So this is an excellent question, but this goes to the core of my view, why this is actually a bad idea for Trump is because, okay, you put Matt Gaetz in office. Matt Gaetz theoretically approves every federal prosecution in the country, every federal investigation, every lawsuit by the Justice Department. So anything the Justice Department does while Matt Gaetz is the recess appointed attorney general is constitutionally questionable. Every defendant will say, I'm being prosecuted by an illegal Justice Department.

In the case of recess appointing the attorney general, how would that affect the justice department and the reforms Trump is trying to get through?

JY: Every single decision of the Justice Department for however long it takes, this would take probably a year. And so that's one. So all those people will challenge it, every single witness and defendant in a Justice Department lawsuit will challenge this.

But second, here's even the better one, and this is why it also I think, really hurts Trump. Suppose you're someone who works at the Justice Department, suppose you're a civil servant or an officer and Matt Gaetz wants to fire you or reassign you because Trump wants to reform the Justice Department. You just say, no, I won't do it. You're an illegal officer. I don't have to obey you. I'm going to keep suing everybody to force voting districts that Biden likes, until someone who's really the attorney general tells me to stop. Those could all produce litigation too.

But think about it, the year or two that it will take to resolve all those cases will stall any effort to change the Justice Department. In fact, if I were a never Trump or burrowed into the FBI and I wanted to stall Trump's reforms, I couldn't ask for anything better than this.

How do recess appointments change the balance of power between the branches of government?

JY: If you accepted this approach to appointments, you would actually really change fundamentally the balance of power between the executive branch and the Senate and the appointments process. Because Dany's right, you guys are right. If Trump does this, then every president at the beginning of their term will spark the disagreement and they will recess appoint every Executive Branch officer, whatever it is, like 2000 people for the most important positions in government. And if you're like Trump and you were going to fire most of them after a year or two anyway, you have effectively kick the Senate out of the appointments process, down from the secretary of defense all the way down to the assistant secretary for policy in the Defense Department.

What can the Senate do in response?

JY: So what can the Senate do in response? So there's a variety of things we all know that the Senate can do to really screw over the Executive Branch, like cutting funding. Why should the Senate confirm any other official in the Justice Department? But here's the interesting thing. I think politically what Marc says is an interesting idea, go ahead and have the confirmation hearings anyway, go ahead and have a committee vote in a floor vote anyway, and deprive who anybody appointed in this way of any kind of political legitimacy.

So the defendants may not win their cases if this is considered a legitimate recess appointment, but it'll be impossible to reorganize the Justice Department. No career official is going to listen to this guy. They'll say, you were just voted down by the Senate, I'm not going to take your orders. Fire me if you want to get rid of me, but I'm not going to listen to you. He would have zero political credibility. Again, setting back the cause of reform of the Justice Department and the FBI.

Why is Trump not background-checking his cabinet appointments with the FBI?

JY: Look, I can see their side of things because the FBI did try to bring Trump down in 2017, and so I could see why they're distrustful of the FBI. But this is a different part of the FBI where the people who do the background investigations are, I mean, you've probably been interviewed and gone through it, I have two for the classification clearance, and this is not the same people who are cooking up the Russia hoax scheme.

These are often long-term FBI civil servants who are, they're just trying to compile a file to make sure there's nothing in your background that the Russians or the Chinese could blackmail you about. These are probably the agents who probably voted for Trump. These are not the agents who are working at headquarters with Jim Comey trying to bring Trump down.

So I totally get why the transition is suspicious of the FBI, but they think of it all as just sort of just one organization against him when it's just a gigantic agency.

What precedent does accepting the use of recess appointments set for future administrations?

JY: If you were in favor of good government, but if you are conservative, who do you think is going to make most use of this recess appointment power in the end?

I think it's whoever wants to appoint the most radical people who could not get through the Senate. I think over time that's going to be progressives, right? They're the ones who want to engineer big change through the government and want to put ideologues in like all the people you mentioned.

In fact, Senator Warren's a good example. President Obama wanted to make her head of the Consumer Finance Protection Board, but couldn't get the votes. Why does he need the votes now? He could have just put her in then.

Why does Trump feel the need to use recess appointments?

JY: Isn't he like classic general fighting the last war? He attributes the lack of success at the end of his term to the resistance put up to him by the FBI, the Justice Department, Mueller investigation, the impeachments, which he saw, he believes leaked by the National security bureaucracy. So I think this kind of makes sense to me, is you would only act this way if you really want to take on the bureaucracy. And so, someone like Gaetz, it's just like giving a middle finger to the whole Justice Department, right? "I think so little of you, and I'm going to so change the way the Justice Department and the FBI work that I'm going to put someone like Gaetz in." Someone outside the range of responsible nominees, that's the only thing that makes sense to me.

But you're right, Marc, that's not the war he needs to fight in the future. He's got a lot of support, I think, for an idea of we've got to reform the administrative state. And so, he doesn't need to put wild people in charge. I mean, there are plenty of people he could appoint who are very respectable people who would still carry out a serious reform of the Justice Department or if HHS you. And then you're right, it's going to take away from the political capital he has to get his agenda through Congress that he needs to get through.

Can you tell us a little bit about the progress of Trump’s pending trials and investigations after his electoral victory?

JY: This is amazing. Trump has run the table. I mean, he's a gambler. It's like he's rolled craps seven times in a row. I mean, he has really won lawfare. So we know for sure that the two federal investigations, the most serious ones, actually, the only ones I think were really valid, potentially valid, the special counsel investigation to January 6th, special counsel investigation into classified documents. The minute the president takes office, he can order those dropped. President Trump can order those dropped and he can fire Jack Smith. And the reports are that Jack Smith knowing this is going to try to issue some final report, which special counsels can do and then quit.

So those cases are over. The New York case, we're in the middle of it right now. President Trump has been convicted by a jury, but he hasn't been sentenced. The trial judge there who I think made a number of serious mistakes in the case, and some of which include going forward with after the Supreme Court issued its immunity decision saying that there were flaws in the New York case. This judge has now been delaying the sentencing and he's asked for a briefing on whether he should declare mistrial and hold another trial.

So that case looks like it will not take place during President Trump's time in office. The last case was this Georgia case, which I call the real prosecutors of Atlanta, because you may remember, we were all transfixed by the testimony about the DA and her boyfriend who she also appointed special counsel to investigate Trump and paid him an outrageous amount of money. And so, that's on appeal. There's never been a real proceeding in that case because Trump has successfully not just brought out all the dirty laundry, but he's got an appeal up in the Georgia courts that the whole prosecution now was infected and flawed by this conflict of interest. And people didn't notice this, but the Georgia Appeals Court just canceled the arguments in that case, which make people think that they might just summarily fine for Trump.

And so, I think I would not have predicted this two years ago when this all started, but it looks like Trump has defeated lawfare.

How can we move away from lawfare in the future, should Biden pardon Trump?

JY: I think here's the real systemic problem, is once you've launched this lawfare, the only way to stop it is for Trump or Republicans to retaliate against the Democrats. The Democrats might say, "We're never going to do this again," but why would Republicans ever believe them? So the route that you guys are identifying is one way that Democrats can to heal the system and say, "I will pardon Trump. I will pardon his family to the extent they were being investigated, because this whole law fair campaign was a mistake, and we will never do it again. Please believe us."

Because we can all agree that the norm should be, don't use prosecution to prosecute the former people in power, don't use prosecution to interfere with the current election. But once the Democrats cross the Rubicon, how do you restore that principle? The Democrats have to do something to show that they can be believed when they say, "We're not going to do this again." And pardoning Trump would be a good first step in that, in repairing the bridge.

Read the transcript here.

SHOWNOTES

Gaetz Nomination Seen as Doomed by Some Senate Republicans (WSJ, November 15, 2024)

Trump’s team skips FBI background checks for some Cabinet picks (Evan Perez, Zachary Cohen, Holmes Lybrand and Kristen Holmes, CNN, Nov 15, 2024)

Thune Says ‘All the Options’ Are on the Table to Confirm Nominees after Trump Demands Recess Appointments (Brittany Bernstein, National Review, Nov 15, 2024)

Trump’s Cabinet Picks Test Senate G.O.P.’s Deference (Karoun Demirjian, Carl Hulse and Maya C. Miller, NYT, Nov 14, 2024)

The House Has No Authority to ‘Disagree’ with Senate’s Decision to Remain in Session (Ed Whelan, National Review, November 17, 2024)

Mike Johnson must block Trump’s scheme on recess appointments (Edward Whelan, WAPO, Nov 14, 2024)

Trump’s Recess-Appointment Scheme (The Editorial Board, WSJ, Nov 14, 2024)

Supreme Court Could Invalidate Intrasession Recess Appointments(Ed Whelan, National Review, Nov 13, 2024)

There Are No ‘Mandates,’ There Is Only Constitutional Authority (Charles C. W. Cooke, National Review, Nov 15, 2024)

Putting RFK Jr. in charge of health breaks the first rule of medicine (Editorial Board, NY Post, Nov 14, 2024)

On Trump’s Foolish, Futile Matt Gaetz AG Nomination (Andrew McCarthy, National Review Nov 13, 2024)

Matt Gaetz Is a Bad Choice for Attorney General (The Editorial Board, WSJ, Nov 13, 2024)

Pete Hegseth Is a Disruptive Choice for Secretary of Defense. That’s a Good Thing (John Noonan, National Review, Nov 12, 2024)

Donald Trump calls for ending taxes on tips, drawing mixed reaction from Republicans (Scott Wong and Sahil Kapur, NBC, June 17, 2024)

Tuberville: ‘We’re gonna try to get you out of the Senate’ if you vote against Trump (Alexander Bolton, The Hill, Nov 14, 2024)