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Speaker Mike Johnson

Trump’s First Defeat

The Atlantic

www.theatlantic.com › ideas › archive › 2024 › 11 › trumps-first-defeat › 680748

Well, that was fast.

Last Wednesday, President-Elect Donald Trump shocked even his allies by nominating Representative Matt Gaetz as attorney general. Today, Gaetz has pulled out of consideration, one day after meeting with senators on Capitol Hill.

“It is clear that my confirmation was unfairly becoming a distraction to the critical work of the Trump/Vance Transition,” the Florida man wrote on X. “There is no time to waste on a needlessly protracted Washington scuffle, thus I'll be withdrawing my name from consideration to serve as Attorney General. Trump’s DOJ must be in place and ready on Day 1.”

For at least one presidential nominee to withdraw at some point in the process is very common. What is unusual is how quickly Gaetz’s nomination fell apart. Eight days is not the record, but it’s close. (Recall that White House Physician Ronny Jackson’s nomination to lead the Department of Veterans Affairs took nearly a month to collapse.) Just two days ago, Trump was insisting he had no second thoughts about picking Gaetz.

[Listen: What Pete Hegseth’s nomination is all about]

The reason why Gaetz withdrew is no secret and no surprise. He’s been shadowed for years by allegations of sex trafficking, paying for sex, drug use, and sex with an underage girl. Trump doesn’t appear to have bothered to vet Gaetz in any serious way before nominating him, but all of this was known. The Justice Department investigated Gaetz for years but in 2023 decided against bringing charges; the House Ethics Committee was still probing him. Gaetz himself denies any wrongdoing. The fact that Gaetz, like Trump, has a personal vendetta against the Justice Department seemed to be his main credential for the job.

When Gaetz was nominated, he also resigned from Congress. That froze the House Ethics Committee investigation, since he was no longer a member. Speaker Mike Johnson, a Gaetz ally though he is primly conservative where Gaetz is a libertine, opposed releasing the committee’s work, and the committee deadlocked in a vote. But Gaetz’s victory was hardly complete. His nomination dislodged lots of damaging new information, including testimony about him twice having sex with a 17-year-old, though witnesses believed Gaetz did not know she was underage. A lawyer for two women said they testified to the House that Gaetz paid them for sex. The New York Times published an impossibly elaborate diagram outlining payment schemes. Gaetz fooled around, and the public found out; by accepting the scrutiny that comes with a nomination, he also fooled around and found out.

But don’t cry too much for Gaetz, and not only because of his record as a scoundrel. (He’s detested by House colleagues, and many reports indicate he shared naked videos of paramours on the House floor.) His infamy hasn’t prevented his rise so far, and he is believed to have designs on running for governor of Florida when Ron DeSantis’s term ends.

The question now is what this defeat portends for the rest of Trump’s slate of outrageous nominees. The president-elect likes to take a gamble, even if he sometimes loses, but as I argued last week, the presence of so many unqualified picks might perversely make it easier for some of them to get through—after all, the Senate couldn’t reject them all, right?

[Read: The perverse logic of Trump’s nomination circus]

Gaetz’s quick exit shows that Senate Republicans aren’t willing to accept literally anyone who Trump throws their way, and the fact that they were able to send that message so quickly suggests just how deep their reservations were. If the rejection is a sign of weakness for Trump, it is also one for his vice president-elect, Senator J. D. Vance. Vance was given the tough job of squiring Gaetz around Senate offices yesterday to drum up support, which obviously did not go well.

The Gaetz failure doesn’t mean that senators will reject any other picks, but with Gaetz out of the way, the troubled nomination of Pete Hegseth to lead the Pentagon will be able to get more attention. A police report about a sexual-assault allegation against Hegseth from 2017 was released today, and it’s a stomach-churning read. Alternatively, Gaetz could end up looking like a sacrificial pick to save the others, or like a stalking horse for Trump to appoint someone else at DOJ. It seems unlikely that Trump intended either of these—he doesn’t usually play to lose—but that could be the effect.

Before Trump chose Gaetz, he reportedly concluded that other contenders simply didn’t have what he wanted in an attorney general, according to The New York Times. Now he’ll have to go back his lists to choose someone who has one thing that Gaetz conspicuously lacked: the ability to get confirmed.

How Trump Could Make Congress Go Away for a While

The Atlantic

www.theatlantic.com › politics › archive › 2024 › 11 › trump-cabinet-recess-appointment-senate › 680697

Power-hungry presidents of both parties have been concocting ways to get around Congress for all of American history. But as Donald Trump prepares to take office again, legal experts are worried he could make the legislative branch go away altogether—at least for a while.

Several of Trump’s early Cabinet nominees—including Representative Matt Gaetz of Florida, Robert F. Kennedy Jr., and former Representative Tulsi Gabbard of Hawaii—have drawn widespread condemnation for their outlandish political views and lack of conventional qualifications. Their critics include some Senate Republicans tasked with voting on their confirmation. Anticipating resistance, Trump has already begun pressuring Senate GOP leaders, who will control the chamber next year, to allow him to install his picks by recess appointment, a method that many presidents have used.

The incoming Senate majority leader, John Thune of South Dakota, has said that “all options are on the table, including recess appointments,” for overcoming Democratic opposition to Trump’s nominees. But Democrats aren’t Trump’s primary concern; they won’t have the votes to stop nominees on their own. What makes Trump’s interest in recess appointments unusual is that he is gearing up to use them in a fight against his own party.

[Read: The perverse logic of Trump’s nomination circus]

If Senate Republicans block his nominees, Trump could partner with the GOP-controlled House and invoke a never-before-used provision of the Constitution to force Congress to adjourn “until such time as he shall think proper.” The move would surely prompt a legal challenge, which the Supreme Court might have to decide, setting up a confrontation that would reveal how much power both Republican lawmakers and the Court’s conservative majority will allow Trump to seize.

“None of this has ever been tested or determined by the courts,” Matthew Glassman, a senior fellow at Georgetown University’s Government Affairs Institute, told me. If Trump tries to adjourn Congress, Glassman said, he would be “pushing the very boundaries of the separation of powers in the United States.” Although Trump has not spoken publicly about using the provision, Ed Whelan, a conservative lawyer well connected in Republican politics, has reported that Trumpworld appears to be seriously contemplating it.

Trump could not wave away Congress on his own. The Constitution says the president can adjourn Congress only “in case of disagreement” between the House and the Senate on when the chambers should recess, and for how long. One of the chambers would first have to pass a resolution to adjourn for at least 10 days. If the other agrees to the measure, Trump gets his recess appointments. But even if one refuses—most likely the Senate, in this case—Trump could essentially play the role of tiebreaker and declare Congress adjourned. In a Fox News interview yesterday, Speaker Mike Johnson would not rule out helping Trump go around the Senate. “There may be a function for that,” he said. “We’ll have to see how it plays out.”

Presidents have used recess appointments to circumvent the Senate-confirmation process throughout U.S. history, either to overcome opposition to their nominees or simply because the Senate moved too slowly to consider them. But no president is believed to have adjourned Congress in order to install his Cabinet before. “We never contemplated it,” Neil Eggleston, who served as White House counsel during President Barack Obama’s second term, told me. Obama frequently used recess appointments until 2014, when the Supreme Court ruled that he had exceeded his authority by making them when Congress had gone out of session only briefly (hence the current 10-day minimum).

[Watch: What’s behind Trump’s controversial Cabinet picks]

Any attempt by Trump to force Congress into a recess would face a few obstacles. First, Johnson would have to secure nearly unanimous support from his members to pass an adjournment resolution, given Democrats’ likely opposition. Depending on the results of several uncalled House races, he might have only a vote or two to spare at the beginning of the next Congress. And although many House Republicans have pledged to unify behind Trump’s agenda, his nominees are widely considered unqualified, to say the least. Gaetz in particular is a uniquely unpopular figure in the conference because of his leading role in deposing Johnson’s predecessor Kevin McCarthy.

If the House doesn’t block Trump, the Supreme Court might. Its 2014 ruling against Obama was unanimous, and three conservative justices who remain on the Court—John Roberts, Clarence Thomas, and Samuel Alito—signed a concurring opinion, written by Antonin Scalia, saying they would have placed far more restrictions on the president’s power. They wrote that the Founders allowed the president to make recess appointments because the Senate used to meet for only a few months of the year. Now, though, Congress takes much shorter breaks and can return to session at virtually a moment’s notice. “The need it was designed to fill no longer exists,” Scalia, who died in 2016, wrote of the recess-appointment power, “and its only remaining use is the ignoble one of enabling the president to circumvent the Senate’s role in the appointment process.”

The 2014 ruling did not address the Constitution’s provision allowing the president to adjourn Congress, but Paul Rosenzweig, a former senior official in the George W. Bush administration and an occasional Atlantic contributor, told me that the conservatives’ concurrence “is inconsistent with the extreme executive overreach” that Trump might attempt: “As I read them, this machination by Trump would not meet their definition of constitutionality.”

Thanks in part to those legal uncertainties, Trump’s easiest path is simply to secure Senate approval for his nominees, and he may succeed. Republicans will have a 53–47 majority in the Senate, so the president-elect’s picks could lose three GOP votes and still win confirmation with the tiebreaking vote of Vice President–Elect J. D. Vance. But the most controversial nominees, such as Gaetz, Kennedy, Gabbard, and Pete Hegseth (Trump’s choice for defense secretary), could struggle to find 50 Republican votes. And as Thune himself noted in a Fox News interview on Thursday night, Republicans who oppose their confirmation are unlikely to vote for the Senate to adjourn so that Trump can install them anyway.

Thune, who had been elected as leader by his colleagues only one day before that interview, seems fine with helping Trump get around Democrats. Letting Trump defy Thune’s own members and neuter the Senate is a much bigger ask. Then again, if Trump takes his power play to the limit, the new majority leader won’t have a say at all.