Trump has ideas for installing his controversial cabinet picks. He didn't use them on Matt Gaetz
From recess appointments to more radical steps — his allies have ideas
Donald Trump and his allies have signalled their willingness to fight to install the cast of controversial characters he's picked for his cabinet, though it looks like Matt Gaetz is no longer part of the plan.
Trump's polarizing pick for attorney general suddenly withdrew his name from consideration Thursday, amid evidence that the former Florida congressman lacked the support to get confirmed by the U.S. Senate which, normally, must approve any cabinet nominees.
Trump reportedly told Gaetz, according to the Bulwark news outlet, that he didn't "have the votes" and that the senators who'd balked at his nomination "aren't moving."
The news came as a shock, atop the initial shock of Gaetz's nomination, because Trump — and his myriad spokespeople, advisers and allies — had repeatedly voiced a willingness to fight, fight, fight.
In fact, they'd discussed some novel paths for working around the Senate and bypassing the normal confirmation process.
Trump has himself publicly raised one possibility — recess appointments, which in essence means plowing ahead while the Senate is on break.
Trump aide Stephen Miller confirmed to Fox News this week that recess appointments are being considered, adding the U.S. president-elect will "use all lawful, constitutional means" to fulfil his mandate.
But that Plan B comes with caveats and complications. It could also lead to a constitutional conflict if it fails.
If the Senate doesn't vote for a recess but the House does, some Trump allies are also talking about a Plan C: forcing Congress into a recess, a gambit critics call potentially unconstitutional, depending on how it's done.
And if all that fails there's a possible Plan D — a 1998 law that allows temporary appointments, although this too comes with conditions. A key condition is that the nominee can't be official, meaning, in an ironic twist, that Gaetz could now potentially qualify for an interim post.
Gaetz was picked for attorney general while being investigated in Congress for alleged sex with a minor, payments for sex, illegal drug use and accepting improper gifts.
The fate of the other unconventional picks remains unclear. There could be months of drama ahead.
The choice for defence secretary, Pete Hegseth, a veteran and Fox News host who opposes women in combat, dislikes the Geneva Conventions against torture, and once paid to settle a rape claim he calls untrue.
A number of Republicans have also expressed doubts about two ex-Democrats Trump wants to appoint: a critic of U.S. intelligence, Tulsi Gabbard, to lead U.S. intelligence; and a vaccine-, pharma- and food-industry critic, Robert F. Kennedy Jr., to lead the health bureaucracy.
"My expectation is that most of these nominees get through," said David Lewis, an expert on presidential appointments at Vanderbilt University.
He correctly predicted, before Gaetz backed out, that one or two might run into serious trouble, then either withdraw or get stuck in limbo.
The fundamental reality, he says, is that Republican senators face competing incentives.
There's the institutional pressure to preserve the power of the Senate, but their own political careers may rest with backing Trump. Fighting him has been a career-ending move for several Republicans.
"They are cross-pressured," Lewis said.
Splitting the difference
These competing demands were evident in the vacillating public comments from several Republicans about Gaetz and the other nominees.
Like Sen. Markwayne Mullin of Oklahoma, who had made clear his disdain for Gaetz on a personal level, but was hedging on whether he'd vote to confirm him. Maybe, maybe not.
Republicans are also offering mixed messages on whether they agree with the Plan B of recess appointments. Some like Sen. Rick Scott of Florida appear to wholeheartedly endorse it.
Others disagree.
Sen. Thom Tillis says recess appointments are fine for low-level officials. They've happened hundreds of times over the generations. But they're inappropriate for senior cabinet roles, he says.
"That should be absolutely off the table," the North Carolina senator told reporters Wednesday. "These positions are too important and carry too much weight internationally."
There are restrictions on recess appointments. The Supreme Court has said Congress must be on break for a minimum of 10 days, which rarely happens without a pro forma meeting interrupting the break.
The top Republican in the Senate, John Thune, sounded skeptical in an interview with local media in his home state of South Dakota.
Without ruling out the idea, he said going on recess requires an adjournment motion in both chambers, which could be amended and dragged out ad nauseam by Democrats.
That has Trump allies talking about Plan C: forcing Congress to shut down. The Constitution allows the president to do this when the chambers disagree on adjournment, a remnant of the prorogation power in the British system.
"It's an awful and anti-constitutional idea," according to Ed Whelan, a legal analyst who writes for the conservative but Trump-skeptical National Review.
He also called it an abuse of the rules.
But that plan would fall apart if both chambers of Congress oppose a recess, and a few Republicans are balking. The Bulwark reports that Trump is souring on the option.
Then, as a final backup, there's the 1998 Federal Vacancies Reform Act. A lawyer who tried helping Trump overturn the 2020 election says the president can use that.
Jeff Clark, who served in Trump's Justice Department, described this option in the podcast hosted by his ally Steve Bannon.
A candidate could be installed on a temporary basis for 300 days, provided they were not formally nominated after Trump takes office on Jan. 20.
Trump has "tools in his quiver," said Clark, who has been fighting disbarment for actions he took as Trump's acting assistant attorney general in 2020.
All these options have pros and cons. But as for the president shutting down the Senate?
"Then the wheels are coming off the bus," Sarah Binder, an expert on presidential-congressional relations at the Brookings Institution, told a liberal podcast hosted by The New Republic.
"We're sort of [on] the uncharted path here."
She said the key point is Republican lawmakers have power here — but only if they choose to use it.
They could, for instance, always re-gavel the Senate back into session, and reset the recess clock at zero days, thwarting Trump's plan.
It's a big "if."
"The No. 1 learning from the first Trump four years: The rules on the parchment can't defend themselves. Rules can't protect themselves," she said. "Lawmakers have to leap into action and make a choice…. Certainly standing up to Trump seems a challenge."
In the case of Gaetz, it appears none of these of these novel theories are being tested. At least not yet. We'll see what Trump has planned for the rest.
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