Will Trump’s First Big Gambit Fail?

Trump may have overreached by appointing Matt Gaetz as AG, and the consequences of that are now being felt.

Photo of embattled AG nominee, Matt Gaetz by Jonathan Ernst/Reuters

Update: Gaetz has withdrawn from consideration moments ago, both proving this piece correct and making it moot!

Donald Trump did not win a mandate on November 5th to govern. It is now clear that he received less than 50 percent of the popular vote and that his margin of victory was the lowest in generations for an elected president. Nonetheless, Trump continues to act like he has a mandate. Specifically, he has foisted unqualified, damaged and in some cases criminally toxic nominations on the American public, daring the GOP Senate to reject them.

And they just might. If they do, they could start with his most important and most dangerous pick: Matt Gaetz for Attorney General.

If Trump’s nomination of Gaetz fails, it will be a sign of discord, ineptitude and worst of all, weakness. The finger pointing would then begin, starting with whoever backed and pushed Gaetz internally within the Trump camp without having fully appreciated just how compromised and exposed he was.

Today I want to lay out a few possible scenarios, from the “nuclear” option of forcing a congressional recess to ram Gaetz and others through, to the very real possibility that Trump’s AG pick might not survive, either because he goes down in a vote or he is forced to withdraw from consideration. The former would trigger a Constitutional crisis at the very top of Trump’s second term, while the latter would be an embarrassing start to it and could carry longer term consequences for his agenda.

Forcing Congress into recess

Last week, I wrote about the possibility of a forced congressional recess, something that has never happened in the history of our Republic. Trump may seek to cause such a recess in order to slip his appointments through unchallenged. The U.S Constitution expressly authorizes recess appointments, stating in relevant part,

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I noted that if Trump used this mechanism, “it would effectively gut the Senate’s traditional check on presidential power.” At the time, I didn’t lay out precisely how he would push these through, but I identified a loophole in the language of the Constitution that he could exploit. The Constitution contains a provision that permits the president to unilaterally adjourn Congress, specifically

“on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”

I worried that a GOP leader (say, Speaker Johnson) could be devising a way to give Trump not only the power to adjourn Congress but also to keep it adjourned “to such Time as he shall think proper.” This could trigger a Constitutional crisis because, in theory, Trump could adjourn Congress and keep it adjourned.

Perhaps Trump wouldn’t dare go so far, but we should never assume that. For argument’s sake, let’s say Trump simply wants to work with Speaker Johnson to create a break long enough—in this case ten days—for his appointments to be authorized under the recess appointment power. Could he really do that?

As Fox recently reported, Trump and his allies are working on just such a plan:

If Johnson proposes to take the House and Senate out of session and the Senate resists, then there is “disagreement,” the theory goes, and Trump could send everyone home for as long as he wants.

“We're still looking at that,” Rep. Chip Roy, R-Texas, chair of the House Judiciary Committee’s subcommittee on the Constitution and Limited Government, told Fox News Digital. “I’m actually talking to a bunch of folks who have been a part of litigating this in the past … reviewing it to kind of figure out the history and the contours of that particular provision, because that's kind of in the zip code of unprecedented.”

That is quite the understatement. Creating a pre-textual “disagreement” over adjournment in order to allow the President to unilaterally adjourn Congress so that he could make recess appointments would nullify the power of the Senate to give advice and consent on appointments. Going forward, all any president would ever need is a speaker willing to go along with his plan and create a “disagreement” with the Senate Majority Leader… and abracadabra! No Senate confirmations needed. Everyone gets in through the “recess appointment power.”

That’s an exception big enough to drive a garbage truck through. There is something fundamentally absurd about this end-run, indicating that it’s an exceptional case that the Framers probably never intended to allow to swallow the rule. Why grant the Senate the power to confirm the President’s appointments only to zero that out by allowing the House Speaker to force a recess and force through all the appointments with no input from the Senate? The law, and our Constitution, isn’t supposed to be interpreted to reach absurdities, yet here we are, arguing absurdities.

Rep. Roy admitted that there was “zero question that the House and Senate can choose to adjourn,” and he’s right about that. At such a point, Trump legally could make his recess appointments. But asking incoming Majority Leader Sen. John Thune (R-SD) to concede this traditional authority is a very different question than whether the Speaker can force an adjournment through a pre-textual disagreement with the Senate. “We just kind of gotta work through what is the position of the House and the Senate on adjourning and then figure out… that specific question,” Roy said.

Thune likely isn’t keen to cede to Speaker Johnson the power to call Thune’s own Senate majority out of session and take away its power to confirm nominees. The mere suggestion is likely to raise hackles. More likely, the threat of an end-run around the Senate could serve as a “nuclear option” threat should Thune refuse to go into recess. Thune will have to decide whether to call their bluff and take the matter before the courts.

There’s another question, however, before we even get to this point. Johnson has to get re-elected as Speaker, and it looks like he will have only the thinnest of majorities. If there are any holdouts to his leadership, or if the Freedom Caucus decides it wants even more say over who is in charge, there could be another leadership fight in the House—just as we saw in early 2023, when it took 15 rounds and brutal, knee-capping concessions for Kevin McCarthy to assume leadership of the GOP in the House. At this point, it isn’t even clear Johnson will be in a position to play this kind of parliamentary chess in early January 2025.

In any event, Trump won’t become president until January 20, 2025. By then, the fate of some of his more outrageous nominees might be sealed.

Preparing for a bruising Senate confirmation

If Trump and Johnson can’t manage to find a way to force a recess because, for example, Thune doesn’t want to cede that power and Johnson doesn’t want to call his bluff, then a second path would be for the White House to try and win over at least 50 of its 53 GOP senators to vote to approve Gaetz.

That may be quite difficult and politically costly. Gaetz would go before the Senate Judiciary Committee for a hearing, and it would play out like a mini-trial, even if the House Ethics Committee Report on Gaetz never sees the light of day. (The Committee deadlocked 5-5 on Wednesday over whether to release the report.) The Judiciary Committee could call witnesses, including the two who already appeared before the House. There are already highly damaging reports (and graphics!) prepared by Justice Department investigators showing Gaetz’s multiple Venmo payments to girls in exchange for sex, with at least one of the victims a minor at age 17 at the time.

A diagram obtained by The New York Times shows how federal investigators mapped out payments between Mr. Gaetz, his associates and women.

Nor is this a simple tale of she said/he said. It’s more like she said/he said/he left a damn Venmo trail.

Indeed, every lurid detail about Gaetz’s alleged attendance at drug-filled sex parties and his association with convicted sexual trafficker Joel Greenberg would come to light if his nomination proceeds. The press would find the sordid nature of this irresistible, and the public would be transfixed, once again reminded that this is what a Trump presidency really means: the sullying of our institutions through blatant criminality and serious sexual misconduct.

And that’s just Gaetz. Other nominees, including proposed Defense Department head Pete Hegseth, stand accused of sexual misconduct as well. In Hegseth’s case, a woman alleged Hegseth sexually assaulted her after a Republican conference back in 2017. A 22-page police report emerged from the attack. No charges were filed, but Hegseth wound up paying his accuser an undisclosed settlement and signing a non-disclosure agreement with her. No bueno. His lawyer claims Hegseth paid her off only to buy her silence out of concern he would lose his job at Fox. But any proper vetting of Hegseth would have produced this damning allegation and NDA, and it should have given any president with less hubris than Trump some significant pause.

For his part, Gaetz is proceeding as if there will be hearings and that he will need to win over dubious senators. To this end, he has been reassuring them in private meetings that he won’t be out for vengeance against Trump’s political enemies, even though this is what Trump has repeatedly and expressly threatened.

As The Bulwark reported, Gaetz told senators in one-on-one meetings, “Look, I’m not going to go there and indict Liz Cheney, have storm troopers bust through the studio door at MSNBC, and arrest Anthony Fauci in my first week.”

Wait, in his first week? What about after?! The senators weren’t mollified.

“We’re not doing that,” Gaetz said, according to The Bulwark’s sources. “We’re breaking the cycle of weaponizing DOJ.”

Right. The only problem is, that’s not what Trump campaigned on, and it’s not what he will direct his new AG to do. And it’s hard to see how Gaetz would refuse to obey Trump’s direct wishes to go after his enemies.

These concerns, along with the sexual misconduct, could be too much for GOP senators to bear. A fair number of them have expressed concerns publicly about Gaetz already, and the public hearings are going to be, for lack of a better descriptor, a shit show. Not a great look or a great start to the GOP Congress.

Trump pulls the nomination or asks Gaetz to withdraw

At the risk of getting out ahead of myself, I have to point out that presidents have withdrawn attorney general candidates with far fewer skeletons in their closet. Remember when President Clinton withdrew his AG nominee, Zoë Baird, when it was reported she and her husband had employed undocumented migrants as a chauffeur and nanny for their kids?

That was called “Nannygate” back in 1993, and Newt Gingrich was the loudest voice demanding that Clinton withdraw Baird from consideration. She went ahead anyway with a day of hearings, but that was enough trauma, and by the second day she had withdrawn.

How far the GOP’s standards have fallen since. It’s fashionable to say, “There is no bottom,” but Matt Gaetz as AG may be perilously close to it. If Thune manages to signal strongly enough to the incoming administration that they won’t have the votes to confirm Gaetz, and that no, Thune won’t go along with a recess for the express purpose of ramming through appointments, then Gaetz, like Baird, would have no path forward. The logical way out, which would avoid everyone embarrassment and an even bigger and more dramatic loss for Trump, would be to withdraw Gaetz’s name.

Trump is still on his second political honeymoon after his electoral win, however, and he may not wish to hear about the possibility of retreats and defeats until it is too late. We may soon see whether there is anyone with enough sense of the political winds, and enough clout to bend Trump’s undamaged, orange-stained ear, to convince him that this is a stinker of a nomination and it’s time to cut bait.