For the most part, the Republican Party is still basking in the warm afterglow of Trump’s victory. But there are some signs of danger ahead. One of them is named Matt Gaetz.
Last Wednesday, president-elect Donald Trump announced his intention to nominate the Florida congressman to be the next attorney general. MAGA World was ecstatic. Here was a loyalist who despised the deep state as much as Trump, and now was set to lay waste to a Justice Department that had tormented the incoming president for years. Rep. Lauren Boebert summed up the mood for the MAGA faithful when she posted on X three flame emojis and a photo of her and Gaetz carrying assault rifles.
But not everyone in the Trump coalition is thrilled. At the annual meeting of the Federalist Society over the weekend, the mood might be described as—well, nauseous would probably be a good word.
This group of center-right lawyers is like the dog that caught the car. Since 1982, FedSoc (as it is known) has battled with the liberal consensus on the courts, in the administrative state, and at law schools. And mostly, it’s won. Look no further than the Supreme Court.
One big reason why FedSoc has claimed so many victories is because of Donald Trump, who in 2016 performed a hostile takeover of the Republican Party, and as president appointed Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the highest court in the land, changing the balance of power there for a generation. And that’s to say nothing about Trump’s other appointments of constitutional originalists to the federal bench.
Trump’s back—but this time it’s different. Gone are conservative institutionalists like his attorneys general in his first term, Jeff Sessions and William Barr. Now conservatives are stuck with Gaetz—a man who practiced law in Florida for less than two years and reportedly showed nude photos of his sexual conquests to his colleagues in Congress.
(Oklahoma Republican senator Markwayne Mullin told CNN last year that Gaetz bragged to House members about how he took erectile dysfunction medication with energy drinks to perform with his sexual conquests.)
Privately, many of the FedSoc lawyers told me they find Gaetz “deplorable” and “distasteful,” and not just because of his checkered personal life. He signed on to the lunatic theory that Texas could invalidate the votes of other states in the 2020 election. He supported Trump’s unconstitutional request for his vice president at the time, Mike Pence, to send the electors back to the states on January 6 for a do-over.
There are few things that signal greater disregard for the Constitution and its plain meaning than endorsing the legal hokum that led Trump and some of his supporters to pressure Pence not to certify the 2020 election.
But few lawyers at the FedSoc convention were willing to say any of that on the record.
First, they have to worry about access in the new administration. Most of them do not want to make enemies of the new ruling party before Trump’s presidency even begins. Some of them are hoping for appointments of their own.
Second, there is real sympathy among their ranks for the aims of a second Trump term: to reform a politicized Justice Department and FBI. It’s just that Gaetz is not the man to do it.
One FedSoc member who did not hold his tongue was Michael McConnell, a former judge who sat on the Tenth Circuit Court of Appeals and currently teaches law at Stanford University. When asked what he thought of the Gaetz nomination, he said, “I think it’s an appalling choice.”
When asked why, McConnell first pointed to the House Ethics Committee investigation into Gaetz that examined allegations the lawmaker had frequented websites that featured “sugar babies”—young women looking to be paid for dates with prosperous men.
On Friday, House Speaker Mike Johnson said he did not think the report should be released because Gaetz formally resigned his seat on Wednesday when he was nominated. Johnson argued that the committee has jurisdiction only over serving members of the House. “There is a very important protocol and rule that we maintain, that the House Ethics Committee does not extend to nonmembers of Congress,” he told CNN on Sunday.
“The ethics charges seem to have some weight,” McConnell said. “If he wants to make the investigation public and it exonerates him, fine. But the fact that he resigned in order to keep it from coming out seems like almost a confession that it goes against him,” he added.
He pointed to the former congressman’s lack of real litigation experience and his advocacy for the “Stop the Steal” campaign in 2020. “It’s just a terrible appointment because it makes it hard for the administration to get established and get moving,” he said.
“Given the president’s enormously ambitious domestic agenda, which requires significant attention to a whole array of complex legal principles, and many hundreds of skilled Justice Department lawyers to execute it, it seems imprudent to nominate someone for attorney general who wants to wreck the department,” said Jack Goldsmith, a Harvard Law School professor who served as the head of the Justice Department’s Office of Legal Counsel under President George W. Bush. Gaetz has promised to bring retribution to the Justice Department for its targeting of Trump in his first administration.
Even if many of the lawyers at FedSoc were not willing to go on the record to voice objections to Gaetz, a few Republican senators already are.
Senator Susan Collins has said that she expects the results of the Ethics Committee investigation to surface in the nomination process. Senator John Cornyn said he wants to see the committee’s report as well. Senator Markwayne Mullin has also called for the report to be released.
And the Ethics Committee’s investigation is only part of the Gaetz story. There was also a Justice Department probe into the congressman that closed in 2023. That probe focused on a friend of Gaetz, a Florida tax collector named Joel Greenberg, who was sentenced to eleven years in prison for wire fraud and sex trafficking a minor. The Justice Department never charged the congressman, but the investigation into him leaked to the press and showed both the politicization of the justice system as well as allegations that Gaetz bedded a minor.
And for movement conservatives, Gaetz has been a constant source of frustration. Many Republicans credit Gaetz with being the arsonist who toppled former House Speaker Kevin McCarthy in 2023. In April, McCarthy said he lost the speakership because “one person, a member of Congress, wanted me to stop an ethics complaint because he slept with a 17-year-old.” He was referring there to Gaetz. On Bloomberg television Thursday, McCarthy said “everybody knows” Gaetz will not be confirmed.
Even with a 53- to 47-seat GOP majority in the Senate, Gaetz’s chances for confirmation are slim, according to three Republican insiders who spoke to The Free Press. “I think he would be lucky to get 40 votes in the Senate,” one said. “He’s toast,” said another. “Why does Trump want to start a fight with his own party before his administration even starts?”
If Gaetz can’t get through a confirmation process in the Senate, one possibility is that he will be Trump’s first recess appointment, which would bypass a Senate vote on the Gaetz confirmation. The incoming president has asked the Senate for the ability to short-circuit the Senate’s advice and consent process by appointing posts when they are out of session—a power that is granted to the president in the Constitution, but with a catch. The courts have ruled that the recess appointment clause of the Constitution applies only to vacancies that occur when there is an actual recess, not at the start of an administration, when it is filling agencies and departments with its new appointees.
In the 2013 NLRB v. Canning decision, the Supreme Court ruled that President Barack Obama violated the Constitution when he appointed three members of the National Labor Relations Board while the Senate was on a three-day break. In a concurring opinion, the late conservative justice Antonin Scalia wrote that the recess appointment clause “may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during that intermission.”
In short, that means that unless Trump is willing to leave the attorney general slot vacant for a year, when a real recess takes place, then he won’t be able to appoint Gaetz without a confirmation process.
Former assistant U.S. attorney Andy McCarthy told The Free Press the incoming Trump team “wants to interpret the Constitution to allow Trump to manufacture a Senate recess, which he would then use to get his appointees in.” He added that he expects the new conservative majority in the Supreme Court (three of whom were appointed by Trump in his first term) would side with Scalia’s interpretation of the recess appointment clause in the Constitution—and prevent Trump from getting his way.
All of this poses a challenge to Senate Republicans. They have to strike a balance between supporting the leader of their party on the eve of his second administration, while preserving the constitutional authority of the Senate itself. Trump has already made clear that he wants Gaetz and will not budge. Very few senators want to be the first to tell him he has to reconsider.
Eli Lake is a Free Press columnist. Read his piece “Meet the People of Trump World 2.0,” and follow him on X @EliLake.
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