Will Trump Break Congress to Confirm Matt Gaetz?

No position in President-elect Donald Trump’s Cabinet is as important as the attorney general. During his first term, Trump chafed against the post-Watergate tradition of independence for the Justice Department; he has promised to demolish it his second time around. The president-elect openly desired to use federal law enforcement to shield his friends from legal consequences and to target his political foes with vengeful punishments.

On Wednesday night, Trump announced he’d chosen someone for the position who rather fittingly embodied both of these principles: former Florida Representative Matt Gaetz, who resigned from the House shortly after the decision became public. Even with a supine Republican majority in the Senate, it is hard to imagine that Gaetz will have an easy road to confirmation. His nomination instead suggests that Trump may actually attempt a constitutionally dubious maneuver to install Gaetz as the nation’s top lawyer and law enforcement official.

The news stunned even the most inured public figures in Washington this week. Republican senators and representatives alike expressed shock, horror, and dismay at the selection. Gaetz is intensely unpopular on Capitol Hill for multiple reasons. But the ones that stand out are his leading role in the ouster of former House Speaker Kevin McCarthy last year and the chaos that followed, his belligerent and childish interactions with other members, and the various scandals that have surrounded him in recent years.

Mostly notably, the Justice Department and the House Ethics Committee have each investigated Gaetz for allegations of child sex trafficking, the statutory rape of a 17-year-old girl, and illegal drug use. (The former lawmaker has denied any wrongdoing.) Federal prosecutors declined to bring charges against him in 2023, reportedly because of concerns about witness credibility. The Ethics Committee was set to vote on the release of a report about the allegations on Friday, but its release is now questionable after Gaetz’s sudden (and convenient) resignation from the House on Wednesday night.

Then there is the question of his qualifications. Gaetz graduated from law school at the College of William and Mary in 2007 and was admitted to the Florida state bar in 2008. But there is no evidence that he ever practiced law in any meaningful way. After working at a North Florida law firm for just over a year, he ran for a seat in the Florida House of Representatives in 2009 and served there until he was elected to Congress in 2016. This is not the résumé of your typical attorney general, to say the least.

Of the 13 lawyers to serve as attorney general in Gaetz’s lifetime, all but one previously served as a state or federal prosecutor, as a state or federal judge, or as a high-ranking member of the Justice Department itself. The sole exception, Reagan appointee William French Stewart, spent more than 20 years in private practice at one of the nation’s top law firms. Gaetz, on the other hand, has no significant experience as a lawyer in any form. He would undoubtedly be the least qualified attorney general in the history of the republic.

So why did Trump pick him? The obvious reason is loyalty. Gaetz spent his congressional career as a die-hard MAGA loyalist and as one of Trump’s closest allies. As attorney general, he would almost certainly transform the Justice Department into a vehicle for the president’s own whims and grievances, throwing aside its ethical obligations and lashing out at whichever political adversary frustrates Trump at any moment. Confirming Gaetz would be a dark day for the rule of law.

The only thing standing in Trump’s and Gaetz’s way is the Senate. The Constitution allows the president to install top officials in the executive branch only with the “advice and consent” of the upper body. In practical terms, this means any presidential nominee must receive an up-or-down vote from senators before taking up their post. There is only one way around the Senate’s approval: When the Senate is in recess, the Constitution says that presidents “shall have power to fill up all vacancies that may happen” during that recess “by granting commissions which shall expire at the end of their next session.”

The recess-appointments clause is best understood as a product of the times in which the Constitution’s Framers lived. In the early republic, Congress did not sit continuously all year as it effectively does today. Senators and representatives journeyed to the capital for monthslong sessions, then returned home for monthslong breaks. Recess appointments allowed presidents to temporarily fill vacancies when the Senate could not speedily or readily gather, thus ensuring that the federal government could continue to function even when lawmakers were out of town.

Presidents continued to make some recess appointments until the 2010s. Starting in 2007, Senate Democrats stopped regularly adjourning the chamber even when they left town and instead held pro forma sessions every three days to ensure that George W. Bush couldn’t make further recess appointments. No business was conducted during these sessions; a senator simply gaveled the chamber open and then immediately adjourned it. Senators from both parties largely continued that practice even when the White House and Senate were held by the same party.

In January 2012, Barack Obama tried to bypass this hurdle by announcing recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was in a three-day pro forma session. The Supreme Court unanimously ruled that those appointments were invalid two years later in NLRB v. Noel Canning. Justice Stephen Breyer, writing for five of the justices, left open the possibility that presidents could make appointments if a recess was 10 days or longer. Justice Antonin Scalia and the court’s other three conservatives at the time argued for a much stricter limit.

Scalia scathingly criticized his colleagues in the majority for leaving the door open to future mischief by presidents and described the recess appointment power as an “anachronism” in general. “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process,” he wrote in an opinion that concurred only with the outcome, not the reasoning used by his five colleagues to get there.

Installing Gaetz through a traditional recess appointment would not make much sense on a practical level. Adjourning the Senate to create the opportunity for a recess appointment would still require a majority vote. If 50 senators (plus Vice President JD Vance, the tie-breaking vote) are already willing to vote for a recess, then Gaetz would already have the votes necessary to be confirmed the normal way. Recess appointees only serve on a temporary basis and are generally barred by federal law from earning a salary from their position until the Senate confirms them.

But Trump reportedly has an even more dubious option in mind. The Constitution states that if the House and Senate cannot agree on a time to adjourn, the president “may adjourn them to such time as he shall think proper.” This is the only mechanism by which a president can force Congress out of session. This stands in sharp contrast to the British kings who previously ruled the Thirteen Colonies, who could dismiss Parliament at will. The Framers did not discuss this power any further in the Federalist Papers or other contemporary sources, except to draw that distinction.

What would this look like in practical terms? Nobody knows, because not once in the nearly 250-year history of the American republic has a president forcibly adjourned Congress under this power. When two Heritage Foundation lawyers wrote about this option in 2020 in response to the Senate’s inaction on some of Trump’s nominees at the time, even they admitted that they had no idea what it would look like in practice or when a president could do it. Instead, they assumed that Trump would just do it and it would all be sorted out by the Supreme Court.

It’s worth noting that their scenario imagined that then-Speaker Nancy Pelosi would be the one who refused to adjourn and Senate Republicans would be instigating the conflict. (At the time, Democrats held the House and Republicans held the Senate.) Proroguing Congress this time would likely only happen if Speaker Mike Johnson filed a motion of adjournment and the Senate didn’t act on it. In other words, the president and the House would be conspiring to deprive the Senate of its constitutional duty to confirm presidential nominees—a despotic and unprecedented move that would nullify the Constitution’s checks and balances.

Whether the Supreme Court would validate such a move is an open question. During Trump’s presidency, the justices ruled against him in multiple high-profile cases, including on Deferred Action for Childhood Arrivals recipients, a citizenship question on the census, and whether New York prosecutors could obtain his financial records. But this is also the same Supreme Court that gutted the Fourteenth Amendment’s disqualification clause so that Trump could run again and handed down a heretical ruling on “presidential immunity” to save him from prosecution earlier this year. After those decisions, one could hardly blame Trump for thinking the Supreme Court’s conservative justices would sign off on another step toward dictatorship.