Republican presidential candidate former President Donald Trump speaks with reporters at the National Republican Senatorial Committee, Thursday, June 13, 2024, in Washington, as from left, Sen. Rick Scott, R-Fla., Sen. Ron Johnson, R-Wis., Sen. John Barrasso, R-Wyo., Sen Roger Marshall, R-Kan., Sen. J.D. Vance, R-Ohio, and Sen. Steve Daines, R-Mont., listen. (AP Photo/Evan Vucci)
President-elect Donald Trump is reportedly holding the Federal Vacancies Reform Act of 1998 — a law that allows a legal maneuver used multiple times during his first presidency — over the heads of U.S. Senate members as he fights to get Matt Gaetz confirmed as attorney general.
On Monday, senators and sources close to Trump told CNN, Axios and the New York Times that he had been calling Senate members and GOP allies directly over the past week to ask for their support in his Gaetz crusade. Trump reportedly spoke with Republican leaders about using the FVRA to circumvent the Senate confirmation process for his cabinet picks, most importantly Gaetz, according to CNN.
“He clearly wants Matt Gaetz,” Sen. Kevin Cramer, R-N.D., told Axios after speaking with Trump over the phone. “He believes Matt Gaetz is the one person who will have the fearlessness and ferociousness, really, to do what needs doing at the Department of Justice.”
One source told CNN, “He is not going to back off. He’s all in.”
According to the Times, Trump has demanded that incoming Senate majority leader John Thune be on board with his plans — reportedly telling him to allow recess appointments — after making threats to carry them out earlier this month.
Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is…
— Donald J. Trump (@realDonaldTrump) November 10, 2024
The FVRA is supposed to be used to “temporarily fill vacant positions in Executive Branch agencies that require presidential appointment and Senate confirmation,” an online description says from the U.S. Government Accountability Office. “This act identifies who may temporarily serve, for how long, and what happens when no one is serving under the act and the position is vacant,” the description adds.
As previously reported by Law&Crime, Trump used the act to make recess appointments in 2020 and early 2021 for multiple cabinet picks, including a retired Army brigadier general — Anthony Tata — to the role of Secretary of Defense for Policy after the Senate Armed Services Committee ordered the cancellation of his confirmation hearing.
The way the FVRA loophole works is simple: Nominees are selected through recess appointments after first becoming assistants or seconds-in-command to whatever position they’re being nominated for; the FVRA is then used to extend their terms and keep them in office.
Legal experts have had mixed opinions on the FVRA power play, with some believing it can be done and others scoffing at it.
“Trump could not use the FVRA now to appoint Gaetz AG,” said former federal prosecutor Barbara McQuade in an interview with Newsweek. “The FVRA limits appointees to first assistants, people already serving as presidential appointees, and senior career employees who have already served the past 365 days. Gaetz falls into none of those categories.”
If Thune, however, greenlights the use of recess appointments — meaning Congress adjourns for recess and there’s no Senate confirmation — then Trump could possibly get his way, according to McQuade.
“In that case, Trump could appoint Gaetz without Senate confirmation,” she said. “His term would be limited to the duration of the two-year congressional session, but Trump could then leverage the FVRA to reappoint Gaetz for another 210 days.”
One of the biggest roadblocks Trump and Gaetz may face in getting him appointed as AG revolves around an allegedly “highly-damaging” report that’s emerged about the former Florida state representative, which is said to outline allegations against him of “sexual misconduct” from 2021 and other wrongdoings, according to House Ethics Committee members, who are said to be investigating.
“The Committee is aware of public allegations that Representative Matt Gaetz may have engaged in sexual misconduct and/or illicit drug use, shared inappropriate images or videos on the House floor, misused state identification records, converted campaign funds to personal use, and/or accepted a bribe, improper gratuity, or impermissible gift, in violation of House Rules, laws, or other standards of conduct,” said Rep. Ted Deutch, a Florida Democrat, in an April 2021 statement. Gaetz has denied the allegations.
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