President-elect Donald Trump is in the midst of political machinations that could upend the business-as-usual approach to governance in the nation’s capital. With the GOP House majority now official and Senate leadership in place, there is growing suspicion that the former and future president is engaged in a series of gambits that will send shockwaves through the establishment and allow him to hit the ground running.
The Senate Gamble
Yesterday, November 13, Republican senators voted to elevate John Thune (South Dakota) to the Senate Majority Leader position. Prior to the highly anticipated ballot, Trump made it clear that any candidate "must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.”
Thune has indeed signaled his willingness to go this unconventional yet constitutional route. Republicans may well remember when Democrats tried to block Jeff Sessions' confirmation as Attorney General in 2017. Opting for the Recess Appointment strategy would allow the soon-to-be president to bypass the advice and consent aspect of the nomination process.
As has happened numerous times in the past, if the Senate is on recess for ten or more days, positions can be filled unilaterally. In this case, Mr. Trump is essentially asking senators to step aside voluntarily. If incoming Majority Leader Thune agrees, the more than 1,000 appointments could be swiftly put in place. However, they would only last – at most – the length of the incoming Congress. And with some of the more notable nominations being contentious even among his fellow Republicans, this presents a conundrum that could become an internecine battle.
Duck, Duck, Goose!
When Donald Trump started announcing his nominations, there appeared to be a general air of approval from both his supporters in the public and his colleagues in DC. That camaraderie soon soured with the news that firebrand Representative Matt Gaetz of Florida would be offered the Attorney General of the United States position.
While most GOP senators kept quiet on the controversial pick, others openly espoused their concern. Some even expressed their support, like Tennessee’s Marsh Blackburn, who posted, “@realDonaldTrump is keeping his promise to root out the Deep State. As Attorney General, that's what @mattgaetz will do." There is also a growing chorus of voices inside the Beltway that suggest Gaetz is not a serious appointment, epitomized by Democratic Senator for Pennsylvania John Fetterman, who said:
“I would describe it as God-tier level trolling, to just trigger a China syndrome … to own the libs in perpetuity.”*
But here’s the rub. Senator Thune can opt for the recess and get Donald Trump’s picks in place to begin fulfilling his campaign pledges, or he can try the traditional route and deal with the inevitable stonewalling. It would be politically problematic in terms of public perception to rubber stamp some positions and not others, setting up an internal divide even before Trump takes office.
However, even if Thune decides to draw the process out, Mr. Trump has other options that may make the equation – if not more palatable – easier to swallow.
Realms of Possibility
Should Matt Gaetz not receive the consent of Congress, President Trump could appoint an acting Attorney General without using the Senate confirmation process. While this may not be immediately applicable to Mr. Gaetz, the Department of Justice outlined in 2018 that:
“The President’s designation of an official who does not hold a Senate-confirmed office to serve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official’s position into a principal office requiring Senate confirmation.”
An acting AG can serve up to 210 days in office under the Federal Vacancies Reform Act. This period can be extended by a further 90 days should the vacancy date from the inauguration. That’s a total of 300 days. There would likely be legal challenges to such a pathway as Mr. Gaetz is not currently within the DOJ, but a lot can be achieved while that argument makes its way through the courts.
Of course, it could also be that there is another game in play, that Trump expects Gaetz to be rejected and is treating him as a bargaining chip. But if that is the case, then the question becomes: what is he angling for?
Opening Salvos and End Games
When Donald Trump first became president in 2016, he took advice on appointments from those apparently “in-the-know.” He recently admitted that this was his biggest mistake. This time around, he appears determined to have Washington, DC, march to his own drumbeat. With the Senate, the House, and the presidency joined in a power triumvirate, not to mention a decisive Electoral College win and the popular vote, Trump has a mandate to deliver. But it won’t last forever.
Come 2026, the Senate tables will almost certainly turn, as the in-built advantage that transpired this year will be reversed while the next class of Senate seats goes back to the ballot box. Trump has two clear years to effect the changes he feels will secure his legacy and, ultimately, put an end to the progressive era. So, whether he gets his front bench through is paramount. It seems he may be willing to expend as much political capital as it takes to ensure he hits the ground running on his first day in office.
*”God-tier” is a video game reference about playing at the hardest possible level.
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