When Matt Gaetz was announced as Donald Trump’s nominee for Attorney General, I was immediately skeptical. Not because I had anything personally against him, but because I just couldn’t make the math work out as far as getting confirmed. Sure enough, Gaetz has withdrawn his bid, saying that he did not want to become a distraction for an incoming Trump administration that needs to hit the ground running.
SEE: Matt Gaetz Withdraws From Attorney General Nomination
To those worried about what comes next, my message is simple: Relax.
This very well could be for the best, and I’m going to explain why. First, though, let’s discuss why the whole “recess appointment” thing so many people were talking about didn’t happen (and why it’s almost certainly not going to happen for any other major nominee either).
There was a fundamental misunderstanding of how recess appointments work, even in the press. Neither House Speaker Mike Johnson nor soon-to-be Senate Majority Leader John Thune had the power to call a recess and force through a nomination. While they both indicated they would allow that to happen, that was never the question because it wasn’t up to them.
Instead, it would have taken a full vote by both chambers to recess. In the House, that can happen with a simple majority. In the Senate, a recess vote can be filibustered, making 60 votes the threshold. What that means is that Democrats and the Republicans who opposed Gaetz could easily block any attempt at a recess appointment.
But what about the theory that Trump could force a recess with executive power? That would have also been precarious because the Constitutional language specifically applies to a disagreement between the chambers on when to recess. To trigger that, you would first need both chambers to vote to recess on different days. That wasn’t going to happen. It’s also worth noting that three of the five conservative justices on the Supreme Court have already made it clear they believe recess appointments are unconstitutional, which means any challenge would have likely succeeded given the makeup of the court.
There just wasn’t a plausible path for Gaetz to become a recess appointment, and whatever one thinks about his baggage, it was weighing him down to the point where a confirmation became increasingly in doubt. Practically speaking, the Trump transition team had to make a move, and that move was made.
With all that said, Trump will likely come out a winner in the end. Gaetz stepping aside has no doubt bought some goodwill with some wishy-washy GOP senators, and that will be needed to get some of these other nominees through. If you want Robert F. Kennedy Jr. to become head of Health and Human Services, that’s more possible now.
Further, Trump needs a clean fight over his nominees. There’s simply no time to waste on a drawn-out, scandal-ridden nomination process. I’m not arguing that is fair, but fairness really has nothing to do with this situation. Politics is the art of the possible, and with Democrats likely to retake the House in two years, the time to strike is now. That means getting people in place as quickly as possible who have the know-how to truly reform these various agencies.
It’s going to take a surgeon to fix the DOJ because the deep state will not go quietly or easily, and there are some very good options out there that may be better in the long run. Missouri AG Andrew Bailey (R-MO), who has led many major conservative legal battles over the last few years, was already in consideration for the job and would be excellent. Others have mentioned Sen. Mike Lee (R-UT), who has the experience and the motivation to tear things down. Sen. Eric Schmitt (R-MO) checks every box, too, if he’s willing to consider taking the job.
All of this is going to work out, and I don’t see Trump going soft on his promise to fundamentally change the DOJ. Whoever is nominated next will be on board with that pursuit, and I’m confident heads will still roll. This is just a minor detour, and it’s better it happened now than after Trump takes office.
