Gaetz? Not so smart.

President-Elect Trump has nominated Florida Congressman Matt Gaetz to be the next US Attorney General. Even among Republicans it's a controversial choice.

WASHINGTON - For those who have been hoping to get rid of Matt Gaetz, the disruptive Republican Congressman from Florida with the Beavis—of Beavis and Butt-Head fame—styled pompadour and acidic demeanor, there’s good news. He resigned from Congress this past week. The bad news? President-elect Trump has nominated him to be the next United States Attorney General.

If any of Trump’s picks for his upcoming administration have been an “FU” to the establishment, it’s Beavis, umm I mean, Gaetz. According to numerous press reports, Gaetz’s nomination and nearly immediate resignation from the House comes as the House Ethics Committee (led by Republicans, by the way) was rumored to be ready to release a scathing report including allegations that Gaetz “engaged in sexual misconduct,” “illicit drug use,” and corruption. By resigning, Gaetz has halted the investigation, and quite possibly the release of the Committee’s report itself—though certainly not from the scrutiny that is sure to come as his nomination moves forward.

If nothing else, Gaetz has been controversial during his four terms in the House. And while controversial politicians are nothing new in the circus that is Washington, many see Gaetz as its top clown. Washington insiders often joke that the most dangerous place in the nation’s capitol is between Chuck Schumer and a microphone. Gaetz makes Schumer look camera shy. “If you aren’t making news,” the Wall Street Journal reports Gaetz describing his legislating style, “you aren’t governing.” Beavis couldn’t have said it better.

You might remember that Gaetz was the ring leader of a small cabal of eight far-right Republicans, eight out of 218 Republicans, who ousted then Speaker Kevin McCarthy in 2023 for reaching out to Democrats to pass a temporary spending bill intended to keep the government functioning and from defaulting on its debts. Only in the the bizarre world of Washington math is 8 greater than 210. No wonder we have a $35 trillion national debt.

Let’s Gaetz together!

In perhaps unexpected ways, however, Gaetz has brought Democrats and many Republicans together—in their shared contempt for him. “It takes hard work to be universally unpopular in Congress,” writes Wall Street Journal columnist Kimberly Strassel, “but it’s the one job Mr. Gaetz has done well.”

Is this Trump, the Evil-Genius, at work? Has he nominated Gaetz, who has called for abolishing the FBI, praised the January 6 rioters, and made political enemies of friend and foe alike, because he believes he’d make a fine Attorney General—the top law enforcement officer in the United States—or has he nominated him to get rid of him?

Is he hoping the US Senate will fail to confirm him, knowing he might not have the votes in the Senate? Is Trump sending up his nomination as a sacrificial wolf so that Republicans in the Senate might flex some institutional muscle and at least appear to stand up to the President-elect? “The nomination was bad enough,” writes Strassel, “to make many Republicans wonder if Mr. Gaetz is this cycle’s sacrifice.”

Trump, or his advisors, must—or should—have known that Gaetz would be a uniquely controversial and unpopular choice. Despite being a Trump sycophant, he has little to recommend him—and reports of inappropriate behavior, including with underage girls, have dogged him for some time.

Literally minutes after Trump announced Gaetz’s nomination, two Republican moderates, US Senators Susan Collins (Maine) and Lisa Murkowski (Alaska), said they would not vote to confirm Gaetz. Collins said she was “shocked” by the nomination and Murkowski said that he “was not a serious contender for the job.” Cabinet-level positions require the consent of the Senate—and that’s two of the Republicans already slim 53-47 majority who have pledged to vote against his confirmation.

“I have very few skills — vote-counting is one,” Senator Thom Tillis (R-North Carolina), a member of the Judiciary Committee, told the Washington Post, “and I think he’s got a lot of work to get 50.” It’s virtually assured that Gaetz—who has taken great pleasure in taunting both Democrats and those Republicans he deems insufficiently right-leaning or obedient to Trump—will get zero Democratic votes.

“For me the message to the administration is simply that Matt Gaetz has a very long, steep hill to get across the finish line and it will require the spending of a lot of capital,” Senator Kevin Cramer (R-North Dakota) told the Washington Post. “That ethics report is clearly going to become a part of the record.”

Even loyal Trump supporters are skeptical. Oklahoma Sen. Markwayne Mullin, for example, told CNN: “I completely trust President Trump’s decision-making on this one, but at the same time, he’s [Gaetz] got to come to Congress and sell himself. There’s a lot of questions that are going to be out there, he’s got to answer those questions, and hopefully he’s able to answer the questions right.”

Not unexpectedly, left-leaning media outlets like the Washington Post and New York Times have been critical of many of President-elect Trump’s nominees—but aghast at Gaetz’s. “The most irresponsible,” argues a New York Times editorial, speaking of Trump’s nominees, “was his choice for attorney general.” But opposition to Gaetz’s nomination has not been limited to just the Times, the Washington Post, or others in the liberal-minded press.

“This is a bad choice for AG that would undermine confidence in the law,” said a Wall Street Journal editorial. “Mr. Trump lauded Mr. Gaetz’s law degree from William and Mary, but it might as well be a doctorate in outrage theater. He’s a performer and provocateur, and his view is that the more explosions he can cause, the more attention he can get.” Gaetz, the editorial continued, “has no interest in governing.”

Even the conservative National Review found Gaetz’s nomination appalling. “Gaetz is so utterly unworthy of being attorney general, so transparently farcical as a serious pick,” wrote Jeffery Blehar a National Review columnist, “that his selection at all is indefensible.” Peggy Noonan, President Reagan’s former speechwriter had this reaction to the Gaetz nomination. “The choice obviously isn’t meant to reassure anyone outside the MAGA base—or even those within it who are intelligent,” she wrote. “It is an insolent appointment, guaranteed to cause trouble and meant to cause friction.”

Will the Senate “bend the knee?” Or be knee-capped?

With Republicans taking over the Senate—there’s also another possible explanation or two for the Gaetz nomination. One, that Trump may be hoping, ”scheming” says a Wall Street Journal headline, that the Senate won’t have to vote at all—and allow him to appoint his nominees without Senate approval. Or two, that by his sheer MAGA will he can bring the Republicans in the Senate to heel to rubber-stamp his nominees.

But what’s this about the Senate not having to vote at all? Doesn’t the president need the consent of the Senate to make appointments? There is an exception to the “advice and consent” clause in the Constitution that allows presidents—in supposedly limited circumstances—to fill vacancies without Senate approval “that may happen during the Recess of the Senate.” Not surprisingly, these are known as “recess” appointments.

Due to the primitive nature of 18th century transportation and the long distances traveled, the founders anticipated that Congress might not meet for months at a time—so they gave the President what they thought was the limited power to make temporary appointments when the Senate was in recess. But having given the president an inch, they have mostly tried to take a mile.

While just about every president—including modern presidents like Clinton, Bush and Obama—have made fairly liberal use of recess appointments and tried to “sneak” more than a few past the Senate—never before has a president tried to use the recess power to appoint a Cabinet-level official, or their entire Cabinet—or to pre-emptively suggest the Senate make themselves scarce so that they could.

Earlier this week, as Senate Republicans gathered to elect a leader for their new majority after Mitch McConnel announced he would step down, Trump posted on his Truth Social platform “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate, must agree to Recess Appointments.”

“The idea is anti-constitutional,” the Wall Street Journal said in an editorial, “and it would eliminate one of the basic checks on power that the Founders built into the American system of government.” So far, the new Republican leader and next Majority Leader, John Thune of South Dakota, seems cool to the idea of walking away and allowing Trump to make appointments without Senate approval. “I’m willing to grind through it and do it the old-fashioned way,” Mr. Thune said. So far so good. That’s the first clue that the Senate—even one led by the Republicans—might sometimes stand up to Trump.

The founders had no illusions that the president would always pick the best people. In Federalist #76, Alexander Hamilton got right to the point of the Senate’s responsibility to oversee presidential appointments. “To what purpose.” Hamilton asked, “then require the co-operation of the Senate?” It would be, he wrote, “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters…from family connection, from personal attachment, or from a view to popularity.”

I told you so!

Democrats, who warned that on day one Trump would declare himself a dictator and claimed he is an “existential threat to democracy,” are shaking their heads and saying “see, I told you so.” And so they did. But I will reply the same way I replied back in 2016. That a Trump Presidency will prove, yet again, to be one of democracy’s finest moments. Not because of what he does, or tries to do. But what he can’t.

Does Trump sometimes test the boundaries of the Constitution—sure. But there’s a long history of Presidents trying to force their agenda by almost any means necessary, including ignoring the Constitution, stretching it to its limits, or pursuing workarounds. Just think of the Alien and Sedition Acts in 1798 that President John Adams pushed through Congress, making criticizing the government, including the President, a crime. Or Franklin Roosevelt’s plan to “pack” the Supreme Court so he could get more favorable decisions. Fast forward to the the Biden Administration’s ignoring a Supreme Court decision ruling on student loan forgiveness, and the many Presidential power grabs in between.

President Biden has warned, time and again, that “Democracy is Fragile.” I disagree. Democracy, and if anything, our democracy, is incredibly resilient. We have, for example, weathered a Civil War, numerous Constitutional crises, World Wars, McCarthyism, and bad Presidents. It survived Trump I.

So, back to Beavis…I mean Gaetz. Is Gaetz a bad choice? I think so, for many reasons. As I mentioned before, the founders were not so naive as to think that Presidents would never try to put forward the nominations of “unfit characters.” It’s why they gave the power of “advice and consent” to the Senate.

I know that many on the left believe that President-elect Trump has the Republican Party in his pocket—and that the incoming Republican majority in the Senate will fall all over itself to placate him. But even given his stunning victory, I’m not convinced. The Senate has often been where Presidential overreach has gone to die.

“[I]t has been objected that the President,” Hamilton wrote, “by the influence of the power of nomination, may secure the complaisance of the Senate to his views.” But, he wrote, “the supposition, that he could in general purchase the integrity of the whole body would be forced and improbable.” And so it is today.

Will Trump be given deference on some of his nominees? Sure. All presidents do when the Senate is controlled by their party. And certainly, some Republicans in the Senate will heel to Trump’s command. But I have faith, though some might think it misplaced, that the Senate will not abdicate its Constitutional responsibilities to act as a check on presidential power.

You might think me naive, but already some Republicans, like Collins, Murkowski and Thune, have shown that the Senate will jealously guard its prerogatives. So, there is cause for my faith in the Senate, and in the checks and balances and separation of powers that are the bulwarks of our constitutional democratic republic. Like the previous Trump Presidency, our system of government will prove stronger than any one person—as it has for nearly 250 years.

And while the nomination of Gaetz will likely prove not so smart, it will prove that the founders were.