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Can Trump appoint Matt Gaetz without Senate confirmation? Here’s what to know about recess appointments
Washington — President-elect Donald Trump’s selection of former Rep. Matt Gaetz to be attorney general is his most controversial Cabinet pick yet, and the Florida Republican is likely to face obstacles in the confirmation process.
But Trump is seeking an important change to the Senate confirmation process that would allow him to install some officials and sidestep lengthy hearings and a floor vote, in which nominees need a majority vote to be confirmed.
Before Senate Republicans elected their leaders for the 119th Congress, Trump demanded that the candidates agree to recess appointments, which would give him the option of bypassing the Senate’s role of approving or rejecting the president’s nominations. Trump argued that without the ability to temporarily install nominees he would not be able to fill the positions in a timely manner.
The legal basis for recess appointments emanates from a constitutional clause that gives the president “the power to fill up all vacancies that may happen during the recess of the Senate.” A Supreme Court ruling in 2014 concluded that recess appointments could only be made when the Senate is not in session for 10 or more days, after President Barack Obama made controversial appointments when senators were on break.
Senators often leave Washington for long stretches of time, but have utilized pro forma sessions to prevent presidents from installing nominees without their consent.
“In recent years, the Senate — regardless of which party controlled it — has used pro forma sessions to ensure that it is never in recess for more than three days,” said Josh Chafetz, a law and politics professor at Georgetown University.
For Trump to make recess appointments, the Senate would have to agree, through a simple majority vote, to go on recess for at least 10 days. The House must also agree to allow the Senate to adjourn, but Chavetz says if the House does not agree, or if it disagrees with the Senate on the length of adjournment, then the president has the constitutional power to adjourn both chambers for a timeframe of his choosing.
“That second route has never been used before in U.S. history, so no one is quite sure how it would work,” Chafetz said.
A recess appointment, however, does not have the same benefits as a nominee confirmed by the Senate. Without Senate approval, the appointee would not be paid. The appointee can serve in the role for up to two years, depending on when the appointment was made. After that, the individual could be installed again through a recess appointment or the regular confirmation process.
Some senators, including Republicans who will be in the majority come January, showed little appetite for giving up their constitutional power, especially after Trump announced that he intended to nominate Gaetz to lead the Justice Department.
“I was shocked,” Republican Sen. Susan Collins of Maine said Wednesday. “If the president proceeds with that nominee, I think it shows the importance of having the Senate advice and consent process.”
Gaetz resigned from Congress on Wednesday after Trump announced his selection. The timing came days before a House panel was set to vote on releasing a report on whether Gaetz engaged in sexual misconduct. Gaetz was also the subject of a previous Justice Department investigation that sought to determine if Gaetz violated sex trafficking and obstruction of justice laws. No charges were filed, and Gaetz has denied any wrongdoing.
“We have a process around here for considering presidential nominees,” Republican Sen. John Cornyn of Texas said Thursday when asked by reporters about Gaetz. “That’s a constitutional responsibility of the Senate, and I intend to play my part as a member of the Judiciary Committee in doing that vetting and advice and consent.”
“I don’t think we should be circumventing the Senate’s responsibilities, but I think it’s premature to be talking about recess appointments,” Cornyn added.
The Senate Judiciary Committee is responsible for conducting confirmation hearings for the attorney general nominee. Several other Judiciary Committee members also weighed in Thursday.
“The bottom line is our responsibility in the Senate is advice and consent,” said Democratic Sen. Dick Durbin of Illinois, the committee chairman.
Republican Sen. Thom Tillis of North Carolina said recess appointments should be used “judiciously,” adding that he has concerns about “blanket recess appointments.”
Democratic Sen. Richard Blumenthal of Connecticut said he could name between “five to 10 Republicans who are seriously considering voting against” Gaetz “and insisting that there will be a vote.”
Republican Sen. Josh Hawley of Missouri indicated he would not have an issue if Trump made recess appointments, saying the president “has total authority to make recess appointments.”
Democratic Sen. Chris Coons of Delaware urged his Republican colleagues to protect their role in confirmations and encourage Trump to pick confirmable candidates.
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Nima Momeni has been found guilty of second degree murder in the fatal stabbing of Cash App founder Bob Lee, a verdict reached by a San Francisco jury after seven days of deliberations.
The verdict of second degree murder carries a 15 years to life sentence and includes an enhancement for using a knife in the crime. Momeni was found not guilty of the more serious charge of pre-meditated first degree murder.
Prosecutors Dane Reinstedt and Omid Talai were present in the courtroom for the verdict, as was Sgt. Brent Dittmer – who testified in the trial – and a handful of members of the DA’s office.
Defense attorneys Tony Brass and Zoe Aron were also present along with Nima’s mother Mahnaz Momeni.
Outside the courtroom, Lee’s brother Timothy Oliver Lee said the family was satisfied with the verdict.
“We we’re happy with the result today. We’re happy that Nima Momeni won’t be on the streets, no longer has the opportunity to harm anyone else in this world,” he said. “The verdict of murder two will put him away for a long time.”
Shocking murder
Momeni was accused of fatally stabbing tech executive Lee in a secluded part of San Francisco’s East Cut neighborhood under the Bay Bridge in April 2023.
Court officials announced late Monday afternoon that the jury had reached a verdict shortly before 4 p.m.
Prosecutors accused Momeni of stabbing Lee with a kitchen paring knife following a heated discussion regarding his sister’s relationship with Lee as well as their ongoing drug use. During the trial, Momeni’s lawyers claimed that their client acted in self-defense, alleging that Lee lunged at Momeni with a knife in his hand while high on ketamine and cocaine. The defense said Lee became erratic and aggressive after Momeni made a “bad joke” at the expense of Lee’s family.
Intense trial
The trial, which lasted six weeks, was punctuated by dramatic testimony, including an appearance on the stand of Momeni’s sister, Khazar Momeni. She testified as a witness for the prosecution and insisted during her first day of testimony that her brother didn’t kill Lee. She also detailed consuming several drugs with Lee and others in the days leading up to the fatal stabbing.
During cross examination by defense attorneys, Khazar Momeni described Lee as “all over the place” and “aggressive” while high on drugs. Her testimony was criticized outside the courtroom by Lee’s ex-wife Krista Lee, who accused her of trying to “make herself a victim.”
The testimony turned contentious when Nima Momeni took the stand, as the defendant sparred with the prosecution during cross-examination after earlier describing how Lee allegedly attacked him while his defense team questioned him about the confrontation.
Prosecutorial challenge
San Francisco Assistant District Attorney Omid Talai challenged Momeni’s version of the story and focused on his actions immediately after Lee’s death, including his calls to attorneys and text messages with his sister.
The case wrapped up in the first week of December with prosecutors trying to tear down Momeni’s defense in their closing arguments and asking why he didn’t call police or tell anyone about Lee allegedly attacking him.
The defense showed a bombshell video during their closing arguments, presenting surveillance footage they claimed showed Lee doing cocaine on the street outside a private club with the same knife used to kill him hours later. Defense attorney Saam Zangeneh used a cardboard cutout of the knife in court so the jury could see the size of the paring knife he said the video proved Lee had in his possession all along.
That video sparked a tense exchange between Zangeneh and Lee’s former wife, who let out a loud, mocking laugh as he showed the footage.
Zangeneh turned to directly address her, saying it wasn’t funny. Prosecutors quickly objected and the judge intervened to restore order in the courtroom.
The jury began deliberations on the morning of Dec. 4.
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