Republicans won the White House and the Senate, so why are we already talking about recess appointments for Donald Trump’s administration?

Matt Gaetz, that’s why.

Gaetz is the ultimate disruptor, argued our Douglas Andrews last week in explaining what Trump may be thinking in nominating the Florida congressman to serve as attorney general. Frankly, however, Gaetz is a terrible pick. Disruption is one thing, but the attorney general — the guy tasked with upholding and enforcing the Rule of Law at the Justice Department — should be above reproach.

Gaetz is not.

Multiple Republican members of the House said that Gaetz crudely boasted of his sexual conquests, made possible in part by drugs and energy drinks, sometimes even sharing nude pictures and videos of the female subjects of his promiscuous escapades. Gaetz denies it. Maybe Gaetz is telling the truth, and they’re all lying. I doubt it.

Worse, it’s not just high school-level braggadocio at issue here. The Justice Department that Gaetz aims to lead opened an investigation into allegations that he engaged in sex trafficking, including sexual intercourse with a 17-year-old girl in exchange for money. “No part of the allegations against me are true,” he said in 2021, countercharging that the investigation itself was punishment for his effectiveness as a firebrand in the House. He has his defenders on just this point.

He also said, “Every investigation into me ends the same way: my exoneration.” That’s not exactly true. The DOJ eventually declined to press charges, but investigators did not exonerate him. It seems they simply couldn’t produce sufficient evidence to prove the allegations beyond a doubt in court.

The House took up a bipartisan ethics investigation, but Gaetz’s nomination and subsequent resignation came just days before the report on that investigation was due to be released. Some of it has already been leaked, and the committee may still decide to release the whole thing. That leak is that two women told the House panel that Gaetz paid them for sex. One of them said she witnessed him engaging in intercourse with a 17-year-old in 2017 — after he had been elected to Congress.

In any case, Senator John Cornyn says the Judiciary Committee would call the same witnesses in confirmation hearings.

Does Gaetz deserve the presumption of innocence? Legally, absolutely. Does that mean he should be entrusted with leading the DOJ? Sorry, but I’m just not on board with this one.

All that brings me back to Trump’s call for recess appointments, “without which,” he said, “we will not be able to get people confirmed in a timely manner.” Which people? Again, Gaetz, though Pete Hegseth, Robert F. Kennedy Jr., and Tulsi Gabbard may also prove difficult to confirm.

First of all, Article II, Section 2 of the Constitution grants the president “Power to fill up all Vacancies that may happen during the Recess of the Senate.” Presidents have always made recess appointments, so this shouldn’t be controversial, right?

Heh.

Trump’s team also points to Article II, Section 3, which gives the president “on extraordinary Occasions” power to “adjourn” either or both the House and Senate “to such Time as he shall think proper.” In other words, long enough to make recess appointments. Former federal prosecutor Andrew McCarthy argues that the clause was “never before used for this purpose” and shouldn’t be now.

In Federalist 76, Alexander Hamilton touted the importance of the Senate confirmation process, calling it “an excellent check upon a spirit of favoritism in the President” that would “prevent the appointment of unfit characters.” (Then again, maybe Hamilton isn’t the ideal witness against Gaetz.) McCarthy rightly notes that the Framers built the system “to avoid vesting too much uncheckable power in the president’s hands.”

That said, the Constitution granted the president power to make recess appointments primarily because of the reality of 18th-century travel. According to the Congressional Research Service, “Until the beginning of the 20th century, the Senate was, on average, in session less than half the year.” A president shouldn’t be hamstrung by this, the Founders reasoned.

In the ensuing years, politics dictated various behaviors. Sometimes, recess appointments spared senators from making difficult votes on controversial nominees, while presidents benefited from having their picks in place without the Senate headache. There were also fights, and the Senate often declared pro forma sessions as a passive-aggressive way to avoid recesses and block recess appointments.

Barack Obama infamously tried to declare the Senate in recess anyway so he could make recess appointments, but the Supreme Court in 2014 sided with the Senate. In NLRB v. Noel Canning, all nine justices agreed, “The Senate is in session when it says it is.”

Incoming Senate Majority Leader John Thune said of confirmation hearings, “I’m willing to grind through it and do it the old-fashioned way.” The president’s nominees do deserve a hearing and an up-or-down vote.

Yet aside from Republican infighting, Democrats can either stonewall nominees or filibuster approval of a recess. Thune warned he won’t stand for that. “We must act quickly and decisively to get the president’s Cabinet and other nominees in place as soon as possible to start delivering on the mandate we’ve been sent to execute,” he said over the weekend, “and all options are on the table to make that happen, including recess appointments.”

There’s certainly a lot of posturing now, and we’ll find out exactly how that plays out come January. But a good barometer for whether something is a good idea is to reverse the roles. If a Democrat president advocated that the Senate deliberately take recess so as to allow him to appoint a questionable person to lead the DOJ, would Republicans balk?

Another question: If we’re talking about recess appointments because a president’s nominee can’t even gain the support of the president’s party, is that person really still the only person who can do the job?

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