Wednesday, November 20, 2024

Why an Attorney General Matt Gaetz Would Backfire on Trump

By John Yoo & Robert J. Delahunty

Wednesday, November 20, 2024

 

In nominating Matt Gaetz for attorney general, President-elect Trump has signaled his support for radical change at the Justice Department. As former DOJ attorneys, we do not doubt that the nation’s premier federal law enforcement agency would benefit from significant reform. But by proposing a nominee as unqualified and as troubled as Gaetz, Trump would frustrate the very forces of reform that he would unleash.

 

The roadblocks to Trump’s agenda would grow even more difficult if the returning president were to resort to an unprecedented, untested theory of appointing Gaetz without Senate approval — a gambit that would plunge the DOJ into a political and legal quagmire.

 

The DOJ’s fall began with the FBI’s 2016 efforts to investigate Donald Trump for alleged ties to Russia and culminated in special counsel Jack Smith’s failure to drive Trump off the 2024 ballot. The Biden-Garland DOJ has pursued an agenda to divide Americans based on race and gender (see its defense of racial quotas in college admissions and its effort to force states to use race in drawing voting districts); it has sought to suppress free debate and discussion (such as the FBI’s efforts to coerce social media to censor “misinformation”); and it has applied the law in ways that appear clearly biased (e.g., in failing to protect churches and pro-life clinics from vandalization from pro-abortion extremists).

 

There are few reasons to nominate Gaetz to face the daunting challenge of reforming the nation’s most powerful law enforcement agency. But there are also bad reasons to oppose him. Among the bad reasons is the complaint that Gaetz is a “Trump loyalist.” A president has every right to expect his attorney general, and indeed all his appointees, to be “loyalists.”

 

Attorneys general do not enforce the law as if they were neutral judges without robes. An attorney general is, inescapably, a political appointee and serves at the will of the president. A president must make political choices — from interpreting the Constitution to allocating resources for fighting crime — in deciding how to fulfill his constitutional responsibility to “take Care that the Laws be faithfully executed.” As the Supreme Court has made clear, an attorney general is an executive branch officer who only assists the president in performing this core executive authority.

 

Because of the sensitivity of this duty, many presidents have chosen loyal friends and allies as attorney general: FDR and Robert Jackson, John F. Kennedy and his brother Robert Kennedy, Ronald Reagan and his longtime associates William French Smith and Ed Meese, Barack Obama and his close friend Eric Holder.

 

Nor is it a valid objection that Gaetz is a controversial and outspoken advocate of the MAGA movement. Or that he is a firebrand who led the insurrection of House Republicans against ousted speaker Kevin McCarthy. For those who supported Trump, these may be desirable qualities.

 

The real problem with Gaetz’s nomination is that there are unanswered, fundamental questions about his character and fitness for the office. Gaetz stands accused of statutory rape and sex trafficking. To be sure, the DOJ did not file these charges after investigating them, though it has convicted several of his associates who also appear to have been involved.

 

But the House Ethics Committee has also investigated the accusations, and that committee was on the point of issuing a report of its findings when Gaetz’s nomination — and ensuing resignation from Congress — intervened.

 

Although House Speaker Mike Johnson has expressed a desire to keep the report confidential, he does not control its disclosure, which is the prerogative of the Ethics Committee itself. And at this point it looks as if that committee may well release the report (even though it is said to be incomplete), at least to the Senate. In any case, it is highly unlikely that the Senate would confirm Gaetz without seeing it. In the past, the Senate Judiciary Committee has opposed nominees who refused access to their executive-branch files, for example. Unless the House report clears Gaetz, the Senate will not — and should not — confirm him.

 

If the next attorney general is to overhaul the Justice Department in the radical manner that Trump and the voters expect, he cannot perform his duties with his credibility already significantly damaged. Deporting illegal aliens who have engaged in sex trafficking has — rightly — been a signature issue for President Trump. This cause would not be served by an attorney general who former House colleagues believed had committed the same offense.

 

Gaetz’s legitimacy will be further undermined if he enters office through a legally dubious route. As the chances that the Senate will confirm Gaetz diminish, Trump might try to make an end run around the Senate and install Gaetz through a recess appointment. Such an attempt would probably be far more damaging to the administration than merely letting the Senate reject Gaetz’s nomination.

 

According to Article II of the Constitution, the president shall have the power to “fill up all vacancies which may happen during the recess of the Senate” until its next session (generally a period of two years). As Alexander Hamilton explained in Federalist No. 76, the Senate’s advice-and-consent power acts as “an excellent check upon a spirit of favoritism in the President” and would operate to prevent “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Allowing the president to unilaterally appoint officers made more sense when the Senate was often not in session because senators traveled to the Capitol by horse and sail and communicated with hand-carried letters.

 

More recently, presidents have resorted to recess appointments when partisan resistance has slowed appointments. Presidential frustration with the Senate’s slow pace is understandable, and the incoming president obviously wants to hit the ground running. But the Senate has been able to protect its constitutional role in the appointments process by staying constantly in pro forma session even when it has no scheduled votes or other business — a practice upheld by the Supreme Court in the 2014 Noel Canning case.

 

Indeed, a recess appointment of Gaetz might even be unconstitutional under the reasoning of Justice Scalia’s opinion in the Canning case — which was joined by three other conservative justices: Roberts, Thomas, and Alito. Scalia wrote that “the recess appointment power is an anachronism.” In Scalia’s view, the president can make a valid recess appointment only between sessions of Congress, not within a single session. The Senate recess in which Gaetz would notionally be “appointed” is within a session, not between sessions.

 

Resorting to a recess appointment is in any case a strange maneuver when the same party controls both the White House and Congress. The Republican Senate has every political incentive to consider Trump’s nominees speedily, to which new Majority Leader John Thune (R., S.D.) has committed.

 

But a recess appointment of Gaetz might rest on even more legally dubious grounds. According to press reports, Trump is considering invoking a never-used constitutional provision that allows the president to throw Congress into adjournment when the House and Senate themselves cannot agree when to go out of session. To trigger the president’s power, the House would have to pass an adjournment of Congress that the Senate rejects. Trump could then adjourn Congress himself and appoint not just cabinet officers, but every nominee for whom Senate consent is required.

 

The Senate has ample tools to strike back. It could immediately call itself back into session and end the recess. Gaetz’s nomination would remain in limbo, and Trump would have succeeded only in antagonizing the Senate. The Senate could even go so far as to call up Gaetz’s nomination and vote it down as a show of its institutional independence.

 

Gaetz would still remain in office, but a Senate rejection of his nomination would deprive him of any political legitimacy. Senate-confirmed inferior officers, such as the U.S. attorneys who oversee federal prosecutions in every state and major American city, might ignore Gaetz’s commands with few political consequences.

 

A House that might have found Gaetz unfit to sit in Congress could find him unfit to sit in the executive branch and launch an impeachment investigation. Emboldened senators could use the fight over Gaetz to stall more nominations, even those to the judiciary, and delay other Trump priorities such as renewing tax cuts or boosting funding for border control.

 

The fight over Gaetz could therefore upend the new administration’s entire program.

 

If Trump tried out this novel gambit, moreover, a torrent of litigation over Gaetz’s appointment would ensue. Defendants could challenge every DOJ investigation and prosecution as the work of an unconstitutional attorney general. The courts might well agree. Not only would that hand the administration embarrassing defeats, but the litigation would ensnarl, delay, and possibly undo the very DOJ reforms that Trump seeks. Distracted from his duties by the widespread litigation, Gaetz would lose focus in driving through personnel and policy changes. And in the worst case, the Supreme Court could void all of Gaetz’s decisions while occupying an illegal recess appointment. Trump’s legal program could be set back by one or two years.

 

President Trump would not be well served by having an attorney general who was preoccupied for a year or more with his own fate. For much of Trump’s prior term, Jeff Sessions, his first attorney general, was recused from the “Russian collusion” investigation for having had contact with a Russian official before Trump took office. That recusal sidelined Sessions from the Justice Department’s most important business. Sessions would have served the president better by resigning. And Gaetz would serve the returning president better by withdrawing.

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