How detrimental will President-elect Donald Trump’s second term be to the rule of law? We got the answer with Wednesday’s announcement of his intent to nominate Florida Rep. Matt Gaetz as attorney general: worse even than the worst-case scenario we had imagined.
This isn’t just hyperbole from a harsh Trump critic. It’s a sober assessment, albeit a distressed one. In both his character and capacity to carry out justice, Gaetz is the opposite of an appropriate candidate to lead the Department of Justice. He is the anti-attorney general.
The announcement shocked even members of Congress whose lockstep loyalty to the president-elect is otherwise unquestioned. The New York Times reported that Senate Republicans’ immediate reaction was “alarm and dismay” and that many avoided expressing support. The most independent senators were incredulous: Lisa Murkowski (R-Alaska) said, “I don’t think he’s a serious candidate.”
As a Justice alumnus, I’m confident that department veterans of both parties see Gaetz’s selection as perfectly awful. How so? Let me count the ways.
First, he has little apparent legal ability. He has no prosecutorial experience, and his only legal experience was a brief stint in private practice. More than 400 of his classmates at William & Mary Law School signed a petition declaring him “unfit to write or determine the law.” He would be the least legally qualified attorney general in more than a century, if not U.S. history.
Second, he is a flagrant partisan who has demonstrated beyond dispute that he would put Trump’s interests over any fair application of the law. A strident, even hysterical defender of Trump throughout his scandals, Gaetz asserted that the Jan. 6, 2021, insurrection — the basis for the largest prosecution in the history of the Justice Department — was the work of far-left agitators masquerading as Trump supporters. He staunchly opposed both Trump impeachments while co-sponsoring impeachment resolutions against Homeland Security Secretary Alejandro Mayorkas and President Biden.
He would perfectly fulfill Trump’s oft-expressed desire for an attorney general who acts as his personal lawyer, fighting off any challenges to his power or misconduct in the style of Roy Cohn, who served as Joseph McCarthy’s chief counsel and became a mentor to Trump.
Trump’s first attorney general, the conservative former Alabama Sen. Jeff Sessions, outraged him with his fidelity to the rule of law at key junctures. Like John Ashcroft, who was attorney general under George W. Bush, Sessions was a former partisan who took his institutional role and oath of office seriously once he became attorney general. Gaetz’s selection leaves no doubt about Trump’s resolve to avoid any such measure of integrity, much less an attorney general in the distinguished nonpartisan tradition of Edward Levi, Robert Jackson or Merrick Garland.
Third, Gaetz holds the neutral application of law and other proud traditions of the Justice Department in contempt. He has dismissed federal investigations of Trump as “witch hunts,” savaged the work of FBI Director Chris Wray (whom he would supervise) and characterized federal agents as “cockroaches.” And he is preoccupied with partisan matters that have little to do with the overwhelming bulk of the department’s vast nationwide law enforcement portfolio.
Fourth, it stands to reason that Gaetz bears the Justice Department personal rancor given his record. He was a subject of a federal investigation of allegations of sex trafficking of minors and illegal drug use. He even sought a pardon at the end of Trump’s first term. While his longtime associate Joel Greenberg was sentenced to 11 years in prison, Gaetz ultimately dodged an indictment because of doubts about the credibility of witnesses at the center of the allegations.
The same charges became the subject of an inquiry by the House Ethics Committee, which was reportedly set to release a scathing report on Gaetz Friday. Gaetz refused to cooperate with the investigation and abruptly resigned from Congress after the announcement of his nomination, ending the committee’s jurisdiction over him — though not the possibility that the report could still become public.
While Gaetz escaped formal charges or sanction, his conduct is widely reported and not in serious doubt. And it falls far short of the probity expected of the nation’s highest law enforcement officer.
Fifth, Gaetz’s personal conduct renders him unfit for the position. He is widely considered among the least popular members of Congress. He has left a long trail of repugnant statements about women and minorities. These include calling pro-choice protesters fat and ugly, defending the racist and antisemitic “Great Replacement” conspiracy theory, and associating with Holocaust deniers.
For all these reasons, Gaetz’s confirmation is in doubt even with a Republican-controlled Senate. Hence Trump’s cynical strategy to slip him into position through a recess appointment, which would insulate him from a full background investigation and an excoriating examination by Democrats. Many Senate Republicans might actually prefer it to having Gaetz’s disqualifying features and overall ugliness aired in public.
If Gaetz becomes the 87th attorney general by any means, the consequences will be immediate and severe, starting with a mass exodus of horrified career employees. Far worse will be the long-lasting erosion of the integrity of the department, whose fidelity to the principle of justice without fear or favor is a cornerstone of American democracy. Gaetz himself may be a joke, but his impact would not be.
Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman
