Transcript: How Trump Can Steamroll Senate with Gaetz Pick, Explained

The following is a lightly edited transcript of the November 19 episode of the
Daily Blast podcast. Listen to it here.

Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.

Donald Trump’s early picks for his administration are running into serious opposition. It’s not clear that Matt Gaetz, Robert F. Kennedy Jr., and Pete Hegseth can get confirmed, even with Republican control of the Senate. That’s why it’s suddenly time to ask whether Trump will exercise a nuclear option of sorts: recess appointments. Trump recently issued an angry threat by tweet, putting GOP senators on notice that they should be ready to support this. A conservative lawyer, Ed Whelan, issued a stark warning the other day on one way this might play out with the complicity of House Speaker Mike Johnson, so we thought we’d check in with Sarah Binder of the Brookings Institution, one of the most knowledgeable experts on congressional rules in the country. She’s going to help us walk through what all this could look like. Thanks for coming on, Sarah.

Sarah Binder: Sure. Thanks for having me.

Sargent: To set the table, Trump has picked Matt Gaetz for attorney general, RFK for secretary of Health and Human Services, and Pete Hegseth as defense secretary. These are profoundly unqualified, unfit people who are facing one brutal revelation after another. Sarah, does it appear to you as if Republican senators are eager to vote on these people? Seems like it puts them in a bad spot, no?

Binder: There was not a rush of Senate Republican enthusiasm across the board for these nominees. Granted, Trump had a fire hose of nominations here. Certainly, the Matt Gaetz one raised the most eyebrows and some outright concern by Senate Republicans. One of the issues to keep in mind here: Like we always say, what Trump does is not surprising, but it’s shocking. This is yet another example of that. He has said throughout the campaign [that] he wants vengeance and he wants to put people in place to take down these institutions that he thinks wronged him in term one. These types of appointments—not all, but putting Matt Gaetz and saying, I’m going to send him to the Department of Justice, that is a not surprising but still quite shocking [nomination] given that he’s the subject of an Ethics committee investigation, and that fellow House Republicans themselves don’t seem to approve.

Sargent: Yeah, every one of these picks seems like it’s designed to harm the institution that he’s picking them for. If GOP senators don’t want to vote on these people, that’s where recess appointments come in, right? The Constitution provides for appointments to proceed with the advice-and-consent of the Senate, but gives the president the power to fill vacancies that arise during recesses of the Senate. The Supreme Court has interpreted that pretty broadly, to make a recess almost anything. And Trump recently tweeted that GOP senators should be prepared to support this. Can you walk us through how Trump might pull this trigger now?

Binder: First, as you said, it’s in the Constitution. President has the authority to make what we think of as short-term, temporary appointments. They would last to the end of the current session. If a, let’s say, President Trump, when he’s inaugurated, were to make a recess appointment of RFK Jr. to head HHS—assuming no legal challenges, but we can come back to all that—that appointment would last, if he makes it in sometime in 2025, to the end of 2026 when Congress goes out of session. Short-term appointments; no involvement of the Senate through its advice-and-consent, through a vote on confirmation.

There are a couple of hoops here. The Supreme Court, in 2014, was called on to review the constitutionality of some of President Obama’s appointments. And the Court found that those appointments weren’t constitutional because the Court said that the Senate is able to say what a recess is, and recesses, the Court said, have to be 10 or more days of the Senate out of a session. And then that’s the green light, gate opens, president can make a recess appointment. So if there were to be a period in which the Senate is gone for 10 or more days, then yes, under the Constitution. This is an aggressive use of a recess appointment because, long ago, the recess appointments were not made when you can’t get your person confirmed. Recess appointments were made when the Senate was out of town for months on end, and this was a stop gap.

Sargent: So this would actually require the Senate to agree to be on recess for at least 10 days. To do that, a majority of senators would have to vote for this scenario, right? The idea would be Republican senators will be saying, Well, the president doesn’t want us to vote on his picks for all these cabinet slots, so we will not vote on them and we will voluntarily clear the way so that he can appoint those lunatics without us voting on them. Is that right?

Binder: That’s what would have to happen. The Senate would have to affirmatively vote, a majority vote, We are going to recess more than 10 days to let the president make those appointments.

Sargent: Is there a basis here for Democrats to resist, if you have a majority of Republican senators—presuming that what Republicans are going to have around 53 senators in the new term? Democrats could theoretically all band together in unison to oppose any move to recess, and Republicans would have to basically get the majority themselves, which they probably could do. Can you talk about that whole wrinkle here?

Binder: Sure. Motions to adjourn are like the most important privileged motions that there are. They break everything else; they go first in line. It only takes a majority vote, as you said, but importantly, relatedly, you can’t filibuster a motion to adjourn. You could amend a motion adjourn. There’s no limitations per se on offering amendments. If the motion says we’ll come back on a Tuesday in January, the amendment could be let’s come back tomorrow.

Sargent: And this could be a means of Democratic resistance, you mean?

Binder: It could be a little shot across the bow. Think about it. We have these episodes in the Senate that we call vote-a-ramas where amendments are unlimited. They eventually stop because no one actually wants to put the effort into it. So I don’t really think there’s a clear way to stop a majority motion if in fact a simple majority, 50 senators, are willing to go home on recess.

Sargent: Sarah, if Republicans can get 50 senators to support the idea that they should just disappear from town for 10 days so that the president can have an absolutely clear field to appoint whatever whack job he wants, they can do that.

Binder: They can do that with the consent of the House because the Constitution weighs in on recesses that last longer than three days.

Sargent: OK, I want to come to that in a second, but I want to ask you a quick question about all this. Is it possible that Republican senators might actually prefer this recess option? It means they don’t have to choose between either voting to confirm these misfits on one side, or standing in Trump’s way on the other. That’s a choice they might not want to make. Of course, it also would mean surrendering a lot of their power, which they might be willing to do to avoid that choice, right?

Binder: There’s a problem here for Senate Republicans because the president has threatened to recess upon them. So even if they had the guts to stand up in their view and say, We’re going to reject any of these nominees, they would fear the wrath of Trump and the person could yet get a recess appointment. If you are a Senate Republican, it’s a choice. It’s a trade-off. How badly do I care about these positions and these policies and how we run these institutions?

Sargent: Right. Here’s another version of the nuclear scenario, as I understand it. House Speaker Mike Johnson asks the Senate to go on recess. The Senate says no, putting the chambers at odds. Then Trump would simply adjourn the Congress under Article 2, Section 3 of the Constitution, which empowers the President to do this if the chambers disagree on adjournment. Once Trump has sent them all home, then come the recess appointments. This is the scenario that conservative lawyer Ed Whelan warned about on Twitter. He said, Mike Johnson must say no to this now. Sarah, I don’t think Johnson has said no to this. Is this a plausible scenario? Can you walk us through it?

Binder: There are two wrinkles here. Constitution says the president has the authority to send the chambers home. As you said in quote, “a case of disagreement.” Well, what is a case of disagreement? Disagreement has a formal parliamentary definition in the House and Senate, and it requires action by both chambers. If the House passes the adjournment resolution and the Senate ignores it because there’s reluctance to disagree, does that count as disagreement? Probably not, according to Senate precedents. Would the president make a proclamation sending them home anyway? That’s a whole legal step we are going to put aside.

Sargent: That could happen though, Sarah, right?

Binder: For sure. But then the wheels are coming off the bus. Keep in mind, no president has used this constitutional authority before, even though it’s in that same paragraph we all read about faithful execution of the laws. The language is ambiguous; we work it out in practice. That’s how we find the meaning of the Constitution. So that’s one wrinkle. What does it mean to be in disagreement?

Second, seems to me, even if they were in disagreement and the president adjourned Congress, the president can’t keep the Senate adjourned. There is what we call a standing order. It’s in the books on the Senate rules manual, and it says that the majority leader and the minority leader together can call the Senate back into session. If senators were really concerned about the nature of these nominees, so concerned that they wanted to prevent more recess appointments, majority and minority leaders together bring that chamber back in a day later. So the Senate is not powerless here, but Senate majority has to figure out: How are we going to look at this threat to our powers of advice-and-consent, and how do we weigh that against infuriating the brand-new president and his voters, who are also their voters?

Sargent: Right. In the scenario that I’m imagining around Mike Johnson, and the one that Ed Whelan is talking about, Republican senators would tacitly go along with the scheme. So Mike Johnson essentially says, Let’s adjourn. The Senate says no. Putting aside the difficulties of describing disagreements (let’s just assume for now that there actually is a disagreement), Trump adjourns them. Then he starts rolling out the appointments, right? The recess appointments: RFK, Bozo the Clown. At that point, Republican senators say, Jesus, we can’t get in the way of this bulldozer. They basically say, We can’t do anything, he sent us home. You see what I mean? There’s like a dance, in which Mike Johnson triggers the whole thing, then Republican senators go along with it.

Binder: It’s certainly a plausible outcome. We’re on the unchartered path here. I don’t want to call it choose your own adventure—choose your own constitutional adventure—but it’s entirely possible that a Senate majority would give into that, avoid having to take controversial votes if they didn’t want to on those nominations through the nomination process, especially knowing that they could be recess appointed anyway. So Trump has put this on their plate. He’s daring them and knowing that even if they stood up to him, he’s going to recess appoint them if he can.

Sargent: You really nailed it before when you basically said that behind all the procedural mumbo jumbo is a fundamental choice that Senate Republicans have to make. The choice is: Do they use their power to pronounce on Trump’s appointments or not? All the rest gets worked in around that decision.

Binder: Yes. It’s a pretty stark choice, right? Loyalty to Trump or loyalty to their roles as lawmakers. The Constitution gives them the ground to stake the ground if they want to. And that’s the first challenge for them, certainly at the outset of this new Congress.

Sargent: Right. Also, these Republican senators know that these people have no business anywhere near these agencies that Trump’s trying to put them in charge of. So it really is a choice between letting Trump just burn the place down or not letting Trump burn the place down. Isn’t that the fundamental choice as well?

Binder: That’s one way to read the choice for sure. Keep in mind, lawmakers are very good at finding explanations and rationalizations. There’s this norm: Presidents should make his own team. And they’re only there for two years if they’re recess appointed—that’s the counter argument that’s going through their mind. President was elected, [with] the right to make his team.

Sargent: Right. You can actually see them using this as a rationale for avoiding making the choice themselves. They can essentially say, Hey, the American people have spoken. They wanted President Trump to be in charge of who runs these agencies. We’re not going to get in the way of that. The president has said that he wants to do it by recess appointment. And then from there, the rationalization just unspools all the way to the final conclusion.

Binder: For sure. The number-one learning from the first Trump four years: The rules and the parchment, they can’t protect themselves. Rules can’t defend themselves. Constitutional provisions don’t just leap into action. Lawmakers and those affected—lawmakers have to rise to the challenge and make a choice.

Sargent: You’ve been a longtime observer of Congress. You know the players we’re talking about here. Senator John Thune is going to be majority leader, presumably. What’s your sense of where they’re going to end up? Mitch McConnell has really poured cold water on the recess appointment scenario. He and Trump have often been at odds over the years. What do you think happens here? What are the real possibilities?

Binder: One possibility here is that these nominations are so far beyond the pale that Senate Republicans, in fact, make it known to Trump that they’re not going on recess and they’re going to hold a confirmation hearing in a process. Keep in mind, we’re a couple of months away here and the amount of time here is probably not good for any of these controversial nominees. It is just more time for their opponents on either side of the aisle to dig up a case against them.

One scenario here is Senate Republicans say to Trump, We’re having a confirmation hearing, and someone eventually says, maybe Gaetz, you should withdraw. That scenario may play out. Or second scenario, they insist on the confirmation process and some of them get confirmed. Possibility too. Number three is, some pattern of the Senate confirming some, rejecting others, and the president giving them a recess appointment. It’s the full gamut here from the process working, advice-and-consent by senators working, to uncharted territory with presidents further stretching the power of recess appointments, certainly in a way that’s not been done in the past.

Sargent: Just to return to the various permutations here, if Trump really does have to resort to recess appointments in order to steamroll the senators, he needs Mike Johnson to pull that trigger, right?

Binder: Yes, because the recess has to be 10 days or more and the Senate needs help from the House to do that.

Sargent: Right. There would have to either be a deliberate, if tacit, arrangement between senators and Mike Johnson, or it would have to be Mike Johnson pulling the trigger and Republican senators essentially acquiescing after the fact.

Binder: Yeah. The assumption is that, were Speaker Johnson in cahoots with Trump to do this, that elevates more public pressure from Republican voters on those senators not to stand in the way. Either go on recess on your own or Trump will send you home.

Sargent: Yeah. By the way, I want to bring up something about confirmation hearings, which you mentioned as a possible thing that Republican senators could threaten Trump with. I got to think, the last thing that Donald Trump wants is confirmation hearings for RFK and Matt Gaetz. Maybe he just doesn’t give a shit about anything, but those are going to go badly.

Binder: On the one hand, one would think these those hearings would not go well. On the other hand, you can imagine an outcome where the Republicans rally around the nominees and Trump, and Democrats rally around the opposite. The analogy isn’t quite right. This isn’t exactly the Kavanaugh hearing because he was, many people would say, certainly qualified for seat on the Supreme Court. Regardless of whether that’s your view, those hearings, with having an accuser come forward—that completely or further amplified and fueled that partisanship into a really ugly partisan battle. It was already partisan, but that was just like everyone home to their trenches.

Could that dynamic take place with an RFK nomination or a Hegseth nomination? Possibly. I don’t think you can rule it out. However, more typical, shining the light on many these allegations certainly against Matt Gaetz, you would think, would derail a nomination to be the head attorney.

Sargent: You would think. It’s true that negative partisanship could really kick in very fiercely here.

Binder: Possible.

Sargent: About Mike Johnson though, to close this out—it doesn’t bode well that he’s demanding that the House Ethics Committee not release the report on Matt Gaetz. Here is a direct intervention on Donald Trump’s behalf in order to support a profoundly unqualified, unfit nominee.

Binder: I guess the question is: Is Speaker Johnson’s authority with that House Republican conference—and with those members on the ethics committee, those five Republicans—strong enough that others are going to back him up? This is as much a test for Johnson’s stature in that conference as it is for the question of this nomination.

Sargent: And the fact that he’s willing to go that far to protect Gaetz for Donald Trump really shows you that you can’t rule out the possibility that he would trigger the whole recess appointment nuclear meltdown for Trump if Trump asked him to, right?

Binder: For sure. And keeping in mind that Johnson was unopposed in the conference to be speaker again, surely due to support from Trump in the first place. I don’t find the tight bond between Trump and the speaker to be necessarily surprising, but it’s being put to some new uses for sure.

Sargent: Ultimately though, to people who watch Congress closely, like people like us who waste all our time on this, how bad is it if something like this happens? How bad is it for the health of the constitutional system for this nuclear option, in one way or another, to be exercised?

Binder: The Constitution is, as we always say, separate institutions sharing power to hold accountable one of the other branches. If senators throw up their hands and say, We’re not going to run a confirmation process, we’re going to let the president make any appointments he wants, even if it’s a temporary appointment, then shared institutions are no longer sharing powers. They’re ceding it all to the president. That’s not great for the health of the Constitution, or our polity that depends on separate institutions sharing those powers to keep power in check. But it certainly, in the case of failure to go through advice-and-consent, raises doubts about the Senate’s capacity to stand up to the executive.

Sargent: And this particular executive.

Binder: For sure. Certainly standing up to Trump seems a challenge for Republican senators.

Sargent: Sarah Binder, that was very cheery. Thank you so much.

Binder: (laughs) Thank you for having me.

Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.