Northeastern legal scholar Dan Urman says “there’s no exact parallel for a cabinet nominee who was under investigation when nominated.”
President-elect Donald Trump’s nomination of former U.S. Rep. Matt Gaetz of Florida to be his attorney general sent shockwaves throughout Washington.
Should Trump decide to sidestep Congress and install Gaetz through a recess appointment — as some are suggesting he might — a fierce legal battle could ensue, says Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court.
Prior to the election, Trump had demanded that Republican congressional candidates agree to “recess appointments,” according to CBS News. The “recess appointments clause” in the U.S. Constitution gives the president the power to make appointments when Congress is not in session.
“If Trump tried to use a recess appointment to install Gaetz, I could imagine this spilling over to the courts with a lawsuit challenging the recess appointment,” Urman tells Northeastern Global News.
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Article II, Section 3 of the Constitution states that “in Case of Disagreement between them, with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he shall think proper.” The president could, therefore, exercise this power to adjourn both chambers of Congress if one chamber votes to recess while the other does not, Urman says.
Former President Barack Obama tried to continue the practice, but the Supreme Court stepped in. The case (NLRB v. Canning) concluded that presidents can make recess appointments, but only during proper recesses — not during brief Senate breaks or “pro forma” sessions, Urman says. The opinion also noted that presidents can force a recess.
Former President Bill Clinton made 139 recess appointments during his tenure, and former President George W. Bush made 171 — but neither used the process for “top-level Cabinet positions,” according to the Associated Press.
While the Constitution says that the president can adjourn the House of Representatives and the Senate, no president has ever done so to make appointments, Urman says.
“That fact won’t deter Trump,” he adds. “The Supreme Court seems happy to rule for Trump, and the 2014 precedent is good for him, so he might prevail in a lawsuit over his authority to adjourn the Senate and make a recess appointment.”
A firebrand and Trump loyalist, Gaetz led the campaign to unseat former Republican Speaker of the House Kevin McCarthy last year in an episode that aired longstanding divisions within the Republican Party. Those divisions have split the party into two congressional factions: the “MAGA” House Freedom Caucus and the more moderate Main Street Caucus.
Prior to resigning from Congress, Gaetz had been under investigation by the House Ethics Committee for allegeding having sex with a 17-year-old girl who was being paid for her services and illicit drug abuse. The Justice Department also investigated Gaetz but never filed charges.
Urman says: “There’s no exact parallel for a cabinet nominee who was under investigation when nominated.”
“Gaetz appears to be the least qualified candidate for attorney general in history, scandal aside,” Urman says. “The investigation will likely be very damaging for his reputation. Nominees with questionable ethics or behavior were withdrawn or voted down by the Senate. Supreme Court Justices Clarence Thomas and Brett Kavanaugh are arguably counter-examples, in that they were credibly accused but ultimately confirmed to their [lifetime] positions.”
Urman says he would be surprised if Gaetz got confirmed by the Senate — the Republican majority notwithstanding.
“He is an unpopular figure in Washington even in his own party,” Urman says. “At this point I don’t see 50 Senate votes for him.”