How Matt Gaetz could become Trump's Attorney General without a Senate vote

Matt Gaetz, Donald Trump's controversial pick to lead the Justice Department, could become the attorney general without a Senate confirmation vote through a little-known clause in the Constitution. 

In order to become a confirmed Cabinet official, a nominee must receive support from the majority of senators during a floor vote usually following a hearing. 

But Trump declared on Truth Social that he wants to use the 'recess appointment' process in order to get his Cabinet picks into office more quickly. 

That includes his most recent selection - embattled former Florida Rep. Matt Gaetz - to lead DOJ. 

Gaetz was recently under investigation by the FBI for alleged sex trafficking of a minor, although DOJ never brought charges. And the House Ethics Committee was wrapping up a probe into his alleged illicit drug abuse and sexual misconduct. 

As a result, his path to confirmation through the traditional process doesn't seem likely as two Republicans - Sens. Lisa Murkowski of Alaska and Susan Collins of Maine - have already vowed to block him.  

Former George W. Bush Justice Department official John Yoo told DailyMail.com that the only way Gaetz can grasp power is through a recess appointment.

'I cannot see the Senate confirming someone whom the House and DOJ have investigated and who could have faced expulsion from the House,' he explained. 

But in reality, a recess appointment is a bit more complex than it seems. 

'The recess appointments clause in the Constitution effectively allows the President to appoint cabinet officers for about two years without the need for Senate confirmation,' said Yoo. 

However, that only happens if the House and Senate 'agree on when to adjourn.'

Over the last few decades, the Senate has never been out for recess for more than a few days at a time, as they can hold 'pro forma sessions.'

That stops the president in power from conducting recess appointments whenever they wish.

The Supreme Court also ruled during Barack Obama's term that the Senate must be on recess for at least 10 days before a president can use the mechanism.  

Yoo went on to say that the Senate could 'retaliate' by 'refusing to adjourn, refusing to confirm any inferior officers, and cutting off funding to these officers and refusing to cooperate on Trump's priorities.'

And the president-elect could try and force the Senate into recess himself or pressure Republicans to abdicate their own power, which is unlikely.

Trump made his desire for recess appointments known over the weekend.

'Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments,' Trump posted on Truth Social. 

He went on to say that all his Cabinet positions must be filled 'IMMEDIATELY!' 

John Thune, R-S.D., who was elected Wednesday to lead the Senate Republicans after Mitch McConnell, R-Ky., stepped down from leadership, has said he's supportive of using the mechanism. 

'One thing is clear: We must act quickly and decisively to get the president's Cabinet and other nominees in place as soon as possible to start delivering on the mandate we've been sent to execute, and all options are on the table to make that happen, including recess appointments,' Thune said over the weekend.

Top Republican James Lankford, Oklahoma, said Thursday that Gaetz should get a 'fair shake' and go through the nomination process like every other Cabinet pick.

Allegations about Rep. Matt Gaetz having sexual relationships with underage girls have resurfaced since his appointment.

Sen. Markwayne Mullin slammed Gaetz earlier this year for showing images of girls he 'slept with' to colleagues on the floor of the U.S. House.

The Oklahoma Senator now tells CNN that he trusts Trump's decision to pick Gaetz to join his cabinet.

But he warned Geatz about questions he will have to face during Senate confirmation hearings. 

While Republicans regained control of the Senate in the 2024 election, Gaetz is controversial even among members of his own party. 

Mullin said that Gaetz was 'seeking fame' when he initiated the motion to oust House Speaker Kevin McCarthy last year because the media 'wouldn't give him the time of day' after allegations of inappropriate relationships emerged.

Following an investigation, the Florida lawmaker was never charged by the Justice Department for sex trafficking or engaging in sex with minors.

'This is a guy that the media didn't give the time of day to after he was accused of sleeping with an underage girl. And there was a reason why no one in the conference came and defended him because we had all seen the videos he was showing on the House floor … of the girls that he had slept with,' Mullin told CNN earlier this year.

'He'd brag about how he would crush ED (erectile dysfunction) medicine and chase 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.'

'All of the sudden he found fame because he opposed the Speaker of the House back in November,' he concluded.

Gaetz is a hardline pro-Trump lawmaker and has been one of the most vocal 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 2025 Cabinet and White House, spoke out against the selection of Gaetz as Attorney General.

'There have been serious, qualified individuals nominated to posts, 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 GOP colleagues to justify a vote for that jerkoff.'

Fetterman's X post noted that Republicans have plenty of opposition to Gaetz, as well. But it'll be left to see next year whether members of the GOP will go on record voting against a Trump nomination.

'Matt Gaetz and I, there's no question we've had our differences,' Mullin said following Trump's announcement on Wednesday. 'They've been very public about it.'

He noted: 'I completely trust President Trump's decision-making on this one.'

'But at the same time he's got to come to the Senate and sell himself,' Mullin countered. 'There's a lot of questions that will be out there. He has to answer those questions. And hopefully, he's able to answer the questions right.'

'If he can, then we'll go through confirmation process.'

Trump said he picked Gaetz, a member of the House Judiciary Committee, after he emerged as a vocal critic of the agency of which his panel provided oversight 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 pick. 'Matt will end Weaponized Government, protect our Borders, dismantle Criminal Organizations and restore Americans' badly-shattered Faith and Confidence in the Justice Department.'