Matt Gaetz, Donald Trump’s controversial pick to lead the Justice Department, could become attorney general without a confirmation vote in the Senate, via a little-known clause in the Constitution.
To become a confirmed Cabinet official, a nominee must receive the support of a majority of senators in a floor vote, usually after a hearing.
But Trump stated on Truth Social that he wants to use the recess appointment process to get his Cabinet picks into power more quickly.
That includes his most recent selection — embattled former Florida Rep. Matt Gaetz — to lead DOJ.
Gaetz was recently investigated by the FBI for alleged sex trafficking of a minor, although DOJ never filed charges. And the House Ethics Committee was wrapping up an investigation into his alleged illegal drug abuse and sexual misconduct.
As a result, his path to confirmation through the traditional process appears unlikely, as two Republicans – Sens. Lisa Murkowski of Alaska and Susan Collins of Maine – have already pledged to block him.
Former George W. Bush Justice Department official John Yoo told DailyMail.com that the only way Gaetz can seize power is through a recess appointment.
Gaetz’s path to confirmation through the traditional process doesn’t seem likely
“I don’t see the Senate confirming someone who has been investigated by the House and the Justice Department and who could be expelled from the House,” he explained.
But in reality, a recess appointment is a little more complex than it seems.
“The Constitution’s appointments clause essentially allows the president to appoint Cabinet officials for approximately two years without the need for Senate confirmation,” Yoo said.
However, that will only happen if the House and Senate “agree on when the suspension should occur.”
In recent decades, the Senate has never been on recess for more than a few days at a time, because they could hold ‘pro forma sessions’.
That prevents the president in power from making recess appointments whenever he wants.
The Supreme Court also ruled during Barack Obama’s term that the Senate must be in recess for at least 10 days before a president can use the mechanism.
Yoo went on to say that the Senate could take “retaliatory measures” by “refusing to suspend, refusing to confirm inferior officers, defunding these officers, and refusing to cooperate with Trump’s priorities.”
And the president-elect could try to force the Senate into recess itself or pressure Republicans to relinquish their own power, which is unlikely.
Trump announced his desire for recess appointments this weekend.
But Trump stated on Truth Social that he wants to use a “recess appointment” process to get his Cabinet picks into power more quickly.
Rep. Matt Gaetz will likely face an uphill battle to win Senate confirmation to become Donald Trump’s attorney general, given his controversy even among Republicans in the House
“Every Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments,” Trump wrote on Truth Social.
He went on to say that all of his cabinet positions must be filled ‘IMMEDIATELY’!
John Thune, R-S.D., who was chosen Wednesday to lead Senate Republicans after Mitch McConnell, R-Ky., resigned from leadership, has said he supports using the mechanism.
“One thing is clear: we must act quickly and decisively to get the President’s Office and other nominees in place as quickly as possible so that they can begin to fulfill the mandate we must deliver, and all options are on the table to to achieve that. happen, including recess appointments,” Thune said this weekend.
Top Oklahoma Republican James Lankford said Thursday that Gaetz should get a “fair shake” and go through the nomination process like any other Cabinet pick.
Allegations that Rep. Matt Gaetz has sexual relations with underage girls have resurfaced since his appointment.
Senator Markwayne Mullin blasted Gaetz earlier this year for showing images of girls he “slept with” to colleagues on the floor of the U.S. House of Representatives.
The Oklahoma senator now tells CNN he has confidence in Trump’s decision to pick Gaetz to join his Cabinet.
But he warned Geatz about questions he will face during Senate confirmation hearings.
While Republicans regained control of the Senate in the 2024 elections, Gaetz is controversial even among members of his own party.
Mullin said Gaetz was “looking for fame” when he initiated the motion to impeach House Speaker Kevin McCarthy last year because the media “didn’t give him the time” after allegations of inappropriate relationships came forward.
After an investigation, the Florida lawmaker was never charged by the Justice Department with sex trafficking or sex with minors.
“This is a man who the media ignored after he was accused of sleeping with an underage girl. And there was a reason why no one at the conference came to defend him, because we had all seen the videos he showed on the House floor… of the girls he had slept with,” Mullin told CNN earlier this year .
“He bragged about how he crushed up erectile dysfunction medication and topped it with an energy drink so he could go all night,” Mullin explained. “This is obviously before he got married. So when that accusation came out, no one defended him.”
“Suddenly he became famous for opposing the Speaker of the House of Representatives in November,” he concluded.
Trump announced Wednesday that he will nominate Representative Matt Gaetz to lead his Justice Department as attorney general
On Wednesday, video resurfaced of Oklahoma Sen. Markwayne Mullin alleging earlier this year that Gaetz showed girls he had a sexual relationship with to members of Congress on the floor of the House of Representatives
Gaetz is a hardline pro-Trump lawmaker and was one of the most outspoken supporters of the former – and now future – president. He is a controversial figure among Democrats and Republicans.
Democratic Rep. John Fetterman of Pennsylvania, who has praised Trump for some of his other picks for his Cabinet and White House in 2025, spoke out against Gaetz’s selection as attorney general.
“There are serious, qualified people nominated for positions, like Rubio or Stefanik. Eric Schmitt would be a solid choice for AG,” Fetterman wrote.
“But Dem opinions on Gaetz aren’t that interesting,” he continued. “The good ones will come from my Republican colleagues to justify a vote for that jerk.”
Fetterman’s X-post noted that Republicans also have strong opposition to Gaetz. But it will remain to be seen next year whether members of the Republican Party will officially vote against a Trump nomination.
Democratic Sen. John Fetterman said there are plenty of Republicans who will oppose Gaetz’s selection as attorney general
“Matt Gaetz and I, there’s no question we’ve had our differences,” Mullin said after Trump’s announcement Wednesday. “They’ve been very open about it.”
He noted, “I fully trust President Trump’s decision-making in this area.”
“But at the same time, he has to come to the Senate and sell himself,” Mullin countered. ‘There will be many questions. He has to answer those questions. And hopefully he can answer the questions well.’
“If he can do that, we’ll go through the confirmation process.”
Trump said he selected Gaetz, a member of the House Judiciary Committee, after he emerged as an outspoken critic of the agency his panel oversaw and called for serious reforms.
“Few issues in America are more important than ending the partisan weaponization of our justice system,” Trump wrote of Gaetz’s choice. “Matt will end the armed government, protect our borders, dismantle criminal organizations, and restore Americans’ deeply shattered faith and trust in the Justice Department.”