Advisory Opinions - The Trump Picks ... So Far | Roundtable

Episode Date: November 15, 2024

In a special emergency Advisory Opinions/Dispatch Podcast crossover, Sarah, David, and Steve react to Donald Trump’s Cabinet picks so far, break down the constitutionality of recess appointments, and Sarah offers a ... controversial take on the Matt Gaetz pick.The Agenda: —Tale of two Januaries —The Gaetz report —Recess appointments —Justice Scalia on recess appointments —Sarah’s defense of Gaetz Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. It's all pretty depressing. Welcome to a special emergency podcast. It's an AO Dispod crossover. I've got David French, sure. I've got Steve Hayes, y'all. And Steve Hayes, as you know,

wasn't even aware until today that we have a legal podcast at the Dispatch. This is his, so Steve, that's the big news. That's the big reveal for you. What is this? I don't even know what a crossover is. It's the flagship of your company. This is this? I don't even know what a crossover is. It's the flagship of your company. This is the USS advisory opinion, Steve Hayes.

That's right. Oh my gosh. So I just want to explain to listeners what we're going to do and what we're not going to do. So for AO listeners, we are not going to do Supreme Court arguments, the circuit court cases and the Federalist Society convention follow-up stuff that we need to do, it will happen next week. Don't worry, regularly scheduled programming.

This is an emergency podcast that will focus on the names that Donald Trump, President-elect, has announced for his cabinet, the process for appointing some of those cabinet members, and whatever else we may get to about ethics investigations, resignations, yada, yada, yada. But we're not just going to talk about Matt Gaetz, of course. So Steve, I thought I would just run through some of the names since we were together earlier this week at the dispatch conference where we talked a lot about Rubio and Walls and those things.

So since then, we've had Governor Kristi Noem announced for Homeland Security. We've had Robert F. Kennedy Jr. announced for Health and Human Services. Pete Hegseth announced for Department of Defense. Tulsi Gabbard for Director of National Intelligence. And Matt Gaetz for Attorney General. Now, also I think it's worth noting, we've actually built out a lot at just DOJ. Todd Blanch announced as Deputy Attorney General

and John Sauer as Solicitor General. So that's why this is gonna be a little bit of an AO heavy emergency podcast. Also to my memory, we've only ever had AO emergency podcast. This is our first dispatch emergency podcast. So it's sort of like a who knows who knows how this is going to go as a dispatch emergency podcast. I love your addressing listeners, AO listeners, like there are AO listeners. That was really funny.

Oh, please. We're huge. We're huge, Steve. Okay. So I, I'm going to, I'm going to shock listeners, but I'm actually going to shock you too. And I'm still, I'm still thinking through this. My mind isn't made up on any of this, but I'm actually pretty bullish about the Matt Gaetz pick. You're bullish about the Matt Gaetz pick. Yeah. And I just want to be clear. I did have to look up just to make sure I was getting it right between bull and bear. But I just, I try to remember like bears eat you, but bulls also can gore you. So it's pretty actually confusing that animal metaphor. And I don't totally understand it, but yes, I'm actually bullish about the Matt Gaetz pick. It's not

who I would pick as attorney general. I think that goes without saying. But I'm curious if y'all want to give before we get into the details here, your overall end of the week take on the announcements we've had so far. Steve, I'll start with you. Anybody who's surprised at what we've seen wasn't paying attention. This is Donald Trump. This is what he does. This is what he believes. And he was going to do something like this, sort of no matter what if he if he won. And I think that's how he approaches this. I'd say that, you know, as you covered in your introduction, there's a wide range of people with a wide range of qualifications and a wide range of capabilities. But

the thing that I think that for me, the three most troubling nominees have in common and that's Tulsi Gabbard, Matt Gaetz. Tanner Iskra Are you just trying to block him out? David Tenenbaum Maybe that's what I'm doing. The thing that they, that they have in common is that they are vectors of bad information, whether it's Russian propaganda from Tulsi Gabbard, whether it's stop the steal, disinformation from Matt Gaetz, whether it's virtually anything

that comes out of RFK Jr's mouth. They have taken what was, I think, a pretty significant problem in our information environment, driven largely by Donald Trump over the past 10 years. And he is now seeking to institutionalize it. And I think it's a huge problem for the functioning of the parts of the government that they would run. But it's a bigger problem for sort of the republic at large.

Interesting. That's an interesting grouping. It's not the grouping I was going to make. So David? Yeah, I think of this as the tale of two Januaries. And here's what I mean. A lot of people voted for Donald Trump longing for January of 2017. In other words, they were thinking they had that nostalgia for the pre-pandemic Trump. They remember the days when Democrats were really upset that Trump had won. And then remember the trooping

of all of the most esteemed figures in the Republican Party and sort of the broader right-leaning establishments comes trooping through Mar-a-Lago. And out of that comes Secretary Mattis, Rex Tillerson, General Kelly, a very short interlude of Michael Flynn before you had H.R. McMaster, one of the most respected generals in the United States military. And you had this real sense, and I remember it very distinctly, that is, man, the Democrats were a bunch of pearl-clutchers and hand-wringers. I mean, look, he has brought on board some of the most respected and respectable people in the conservative world.

Let's fast forward to another January, four years later, January 2021, when Trump is in full berserker mode. He's trying to overturn the results of an election. All of those people that I just mentioned have been long gone from his administration and it's now being populated with sort of what you might call pure creatures of MAGA. And I think there was this just real, you know, there was just a divergence between the people who are voting for January

2017 and people who are voting for January 2021. And the way I would put it is the, you know, the difference between that pure MAGA base and the 76 million people and counting who actually voted for him to be president. And what we have here is a situation where he is absolutely governing for that MAGA Extended Universe 17 million right now. He's doing exactly what he said and what MAGA wanted

him to do. And for all of those who are listening to that rhetoric and saying, nah, he's not, he doesn't really mean it. No, come on, you're hand wringing if you think he'd do something like this. Well, he did. He's doing exactly what he said he'd do, as Steve said. So I look at this list, Steve, particularly Gates, Hegseth and Noam, although Gabbard and Kennedy to a different extent, I guess. And to me, they look like people the president likes out there defending him. They are TV defenders of the president. And I'll include in that list, by the way,

someone we didn't mention yet. But William McGinley has also been named White House counsel. And again, AO listeners, we'll get into some of the legal folks on future episodes. But he's been on Steve Bannon's podcast quite a bit. He was cabinet secretary in the first administration. So these are all people who have been out there relentlessly defending now president-elect Trump. And what's interesting to me in that list, the one that stands out is Kennedy, because he actually has policy goals, real policy goals, that are why he was out there defending the president. Like they're the odd bedfellows in some way, but the others defending the president. Like they're the odd bedfellows in some way, but the others

are more defenders of the president than they are policy vectors to borrow your term. And so I actually wonder how much they'll be running the day to day of their departments because they're not ideology warriors in any specific way that I can think of for those departments. Kennedy is though. And so that's the outlier to me in that group. Gaits? What do you mean? I would say I would see him as a defender of the president for sure, a TV defender of the president. But without question, the dude has a kind of ideological vision for the purging

and cleansing of the Department of Justice. That's not really to me an ideological vision. That's, that's an anti-ideal. Like it getting rid is not building, if that makes sense. But it can be if you describe yourself as a libertarian populist, which Matt Gaetz does. I do think that that he's part of an he has it there is sort of an ideology built in. I think he's primarily there because he's defends the president and

extols the virtues of the president. I guess I would I would challenge your premise on the Kennedy thing. I do think it's no question he has sort of a deep ideological set of motivations. Here, I would say ironically, they are the opposite of the ideological views of the Republican Party for the past 20 to 30 years in virtually every particular. But I do think that Trump likes him out there defending him too. I mean, I think we shouldn't overcomplicate the reason for some of these choices. And I think you

sort of get at some of it, Sarah. These are people who Donald Trump likes. He likes that they have shown sort of unqualified, unreserved loyalty to Donald Trump. At a time when many other people were criticizing Donald Trump or raising questions or I would say making basic observations about reality related to Donald Trump. These folks were willing to sort of bark at the moon on behalf of Donald Trump. And he loves that. So when he's making these choices, I think personal loyalty comes first. Behind that, a close second,

is the sort of central casting question. Jonathan Martin mentioned this on Tuesday morning at the Dispatch Summit on that initial panel and said, it really is the case that when Trump is considering these decisions, he looks at a TV screen and imagines what these people would look like to the country based on their physical appearance as they're arguing on his behalf. We have read in sort of the lookbacks on how Trump made decisions in his first term, in what he did after his first term ended.

We read about the way that he thought about these things. He would watch TV sometimes with the sound off. He would look to see who looked the part. He would talk openly about somebody looking like a secretary of defense or looking like this. I think it's one of the reasons he really liked James Mattis. I don't think we can overstate how big a role

that plays generally in Trump's thinking. And we'll learn, I think here, very specifically about a number of these. Okay, so let's dive in on Matt Gaetz, because I think it'll be helpful to go more deeply on one of these nominations. And we've picked Matt Gaetz. So Matt Gaetz was under investigation by one of the US Attorney's offices in Florida that was then joined by the Public Integrity Section of the Department of Justice for doing illegal drugs related to prostitution

with someone who was underage. That investigation was closed. No charges were filed. The House Ethics Committee then opens an investigation into him as well. They, we believe at least, her testimony from a girl who said she had had sex with Matt Gates when she was 17 years old. Matt Gates, after this announcement, resigned from this term of Congress. He was reelected though. So correct me if I'm wrong, Steve, you know House procedure better than I do. But the theory was that he resigned so that they wouldn't release the ethics report that we had heard at least was completed and that there wasn't much precedent.

There was no precedent for releasing an ethics report after a member of Congress resigned. But the report's done. This town leaks everything. Senators are inevitably going to ask for that report. Also though, Matt Gaetz was reelected, like I said, he is scheduled to be sworn into Congress again in early January before there would be any hearing held about his attorney general nomination. So I guess I don't really understand the point of resigning. Do you think he's going to get sworn back in or no or what?

No, I don't. You don't. he's going to get sworn back in or no or no. I don't like you don't know. I think the resignation took place for exactly the reasons you suspected it was the report was alleged to have been scheduled for release today. It was according to the people who had access to it, fairly devastating. We heard from the attorney of this young woman you mentioned, who suggested that there was testimony about his conduct. I think he wanted to resign so that it couldn't be released. You saw Speaker Johnson, when he addressed this, say there's no precedent for

releasing a report about somebody who's no longer a member of the body. And I think to that end, on a formal basis, I believe the Republicans on the ethics panel canceled a meeting with Democrats on the ethics panel where this was going to be discussed. So I don't think we'll see a formal release. I think you're right to suggest, Sir, that we will see details of what the report included. I think those details will not cast Matt Gates in a good light. Let me just say, I mean, I think this will be a theme on Matt Gates and on some of the other nominees that we talk about. There are these sort of hidden allegations about what Matt Gates is is supposed to have

done. But really, this stuff, in my view, that is totally disqualifying is what he did in the open light of day. It's that we don't need to see these reports. I mean, what's what's alleged is horrifying. I think if he was guilty of the conduct, he should either be punished in a court of law or through an ethics committee investigation. But even if he's not, the things that he's said and done in public, the things that the testimony that we have from his colleagues in the House of Representatives, including Senator Mark Wayne Mullen, who told Manu Raju from CNN that Matt Gaetz used to show on the House floor videos of, you know, effectively pornographic videos of him with girls and talk about the drugs that he took. I mean, this, I don't think that there's plenty of eyewitness testimony

on that sort of separate and apart from what happens on this ethics investigation. And to take a quick break to hear from our sponsor today, Cloaked. In today's digital age, your personal information is under constant threat. Hackers can expose your home address, contact info, and even your social security number in seconds. But there's a solution. Cloaked. Cloaked identifies and removes your personal information from data brokers and shady websites, then generates on-demand aliases to disguise your phone number, email addresses, and even your credit card. It's like an invisibility cloak for your personal information. Sign up for Cloaked today by visiting cloaked.com

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David, I wanna talk to you a little about this appointments process. And don't worry, folks, we're going to get to why I'm bullish about Matt Gaetz. I was, Sarah, I was literally going to ask you, okay, come on, you've got to produce here. Why are you bullish? We're going to get to it. But I do want to talk process because I think it's actually pretty important. So I tweeted right after the Matt Gaetz announcement that nobody in Washington was more excited about the appointment of Matt Gaetz to attorney general than Speaker Mike Johnson.

Matt Gaetz is not known to get along with his colleagues very well. He's not the most popular guy in Congress by any means. And so there's a little bit of a Teddy Roosevelt aspect to this that everyone's like, amazing. Yeah. Yeah. Stick him in the cabinet. Great plan. Get him out of our hair. Because Matt Gaetz, I think you can oversell it. But I also think a lot of people undersell it.

Matt Gaetz, Steve, correct me if you disagree with this. I think is the mastermind who took down Kevin McCarthy. Right. And like, I mean, I wouldn't think is the mastermind who took down Kevin McCarthy. Right. And like, I mean, I wouldn't use the word mastermind. You can, you can, we'll get to this, but I think Matt Gaetz, he took down Kevin McCarthy. I think Matt Gaetz is wildly underestimated for how smart he is. I think he's exactly as reckless as he seems to be. But I think he's a lot smarter than people give him credit for. But David, let's talk process. Okay. So a lot of senators have already come out, Republican senators included and said, I don't know about this. And there's been a question of whether Matt

Gates can get confirmed. In response, there's been a lot of folks saying, well, Donald Trump could simply use the recess appointments power to appoint Matt Gaetz and anyone else to his cabinet. By the way, even if they are going to confirm Matt Gaetz, maybe he should use the recess appointments power because it took too long to get cabinet members into office last time. Democrats used all sorts of delay tactics. No, they didn't filibuster them, but it still still, it took months to get Trump's team into place. Why are we messing with that?

The Constitution has this recess power built into it, and we should just do that, get them all in there week one, wipe our hands off, and get to work. This is where the AO portion of this is going to come in heavy, Steve. We're coming in real hard with some advisory opinions work here. I want to read the portion of the Constitution that deals with the recess appointments power. And then I want to talk about the 2014 Noel Canning case, David, and then I'm going to turn it over to you to see where you think this is going to go.

Okay. The first part that you need to understand from the Constitution in Article 2, the president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. This is gonna come up in Noel Canning as well. Next, he shall from time to time give to Congress information of the state of the union

and recommend to their consideration such measures as he shall judge necessary and expedient. He may on extraordinary occasions convene both houses or either of them and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, yada, yada, yada. Okay, so basically he can create the recess as long as the two houses can't agree on the adjournment. And then when there's a recess, he has the power to fill up vacancies during that recess. But I do wanna read that language one more time.

The president shall have the power to fill up all vacancies that may happen during the recess of the Senate. Okay. So in 2014, this question gets to the Supreme Court because a short version of the facts, President Obama, this case arose out of President Obama's appointments of three people to the National Labor Relations Board and Richard Cordray as the head of the Consumer Financial Protection Bureau. Basically, they had created this long weekend of a recess and then he had called that a recess and then appointed them to fill these positions, called them recess appointments. Of course, one of the regulated entities, Noel Canning, and

there is so much dispute over this name. Is it Noel Canning? Which I actually do believe is the correct name, but most people call it Noel Canning. They are literally a canning place. They are a Pepsi distributor. They can stuff. So I do not want all the emails about Noel Canning versus Noel Canning. I know the dispute and I'm just going to say it's Noel because it's easier. It's N-O-E-L. I know we don't always take the easy way out on AO, but sometimes we do. All right. So this was actually a unanimous opinion. Breyer wrote it. Majority opinion was joined by Kennedy, Ginsburg, Sotomayor, and Kagan. The-ant in the judgment only was Scalia, Roberts, Thomas, and Alito.

Okay, so basically what the majority said, we hold for the purpose of the recess appointments clause, the Senate is in session when it says it is, provided that under its own rules, it retains the capacity to transact Senate business. I.e., like going for a weekend and calling it a recess. No, no, no. But the concurrence is what I'm really interested in, David, because Scalia said, yeah, we agree that these appointments aren't lawful, that the president didn't have the power to appoint them. But that's because it only works when the vacancies arise during the recess, as in the whole thing has to be recess.

The Senate is gone, a vacancy arises, and so the president can appoint to fill the vacancy that arises during the recess and when he wants to appoint during that recess as well. It all has to be during the recess recess is what the Scalia team was saying. The Breyer team was simply saying, look, I don't know how long it needs to be, but it needs to be longer than three days. But no, it doesn't have to arise during the recess. He can fill during the recess. Okay. So David, that takes us to the recess power of Donald Trump. Whether you think the recess appointment power will allow him to fill his cabinet. I think you're going to know where I'm going to come out on this, but I'll give you the

short version up front. Hello, Goose. Please meet Gander. If you like using the recess appointments power, forget the legality of it. Just you think it's a fun thing. Then I hope you like Rashida Tlaib as attorney general and Neera Tanden who was prevented from being Senate confirmed last time around and the president was not able, President Biden was not able to put her in his cabinet. So I don't understand

why people think that Republicans will be in power forever and ever when in fact, I'm willing to bet a shiny nickel that Democrats will in fact win the next presidential election, not based on who's running, not based on what Donald Trump does, but based on these large historical international trends that we've seen of people being dissatisfied with the direction of their country and the world. And so they keep flipping back and forth and change elections because nobody's doing the normalcy and competency thing that they're actually elected to do. Anyway, recess appointments, David.

Yeah. So you've hit all the big issues. So the question is, number one, is there going to be a disagreement between the houses? So this whole thing depends on there being a disagreement between the two houses of Congress, between the Senate and the House of Representatives. So if Mike Johnson wants to adjourn and John Thune does not want to adjourn, here's your disagreement that theory is, according to the text, that Trump can then order the adjournment. And so I think, you know, my reading of the text, it's pretty plain if there is the disagreement

he can adjourn. Now, moving on to the recess appointment itself, now, the question I would have is, okay, the new Congress is sworn in before he is sworn in. He's sworn in, he orders the adjournment, when does the vacancy arise? If he orders the adjournment and then he fires the AG, then the vacancy arises during the adjournment. Or if he orders the adjournment and fires the acting AG. Or that's the question that I would have because if he is coming into office, aren't there a bunch of vacancies that arise just as a natural result of that and couldn't he time it to where the vacancy arises after he orders the adjournment. So I think that there's a way through even

the Scalia, that aspect of the Scalia concurrence if that vacancy does arise. But there is another element of the Scalia concurrence that did the appointments reset, the recess appointments clause was only meant to cover breaks between congressional sessions rather than breaks within them. And that is another interesting legal question. Wait a minute, hold on. Is this really a recess if the new Congress has already been sworn in? If the new Congress is sworn in, this is just a break in a session. It's not a real recess.

So that's another issue that could arise. And I don't know where the current court majority would fall on that. But under the holding in null canon and under the analysis you just said, Sarah, where the vacancy arises during the recess, I think they could engineer that. I think they could. If Johnson was a part of all of this, with Johnson's not a part of this or Thune is not a part of this, it can't happen. Well, except that, right, it's sort of either way it can. Let's say Johnson's the one who wants to go along with it. So Johnson says, we're gonna recess.

Either Thune agrees and they go into recess, or Thune doesn't agree and there's a disagreement and the president can put them into recess. That's right, that's right. So tails I win, heads you lose, which is kind of a weird part of this. But this actually, I think, gets to what Justice Scalia was writing in that concurrence, which again, it's

a concurrence in the judgment only. It's 5-4 that Noel Cannings decided this way. And he writes, the majority contends that the clause's supposed purpose of keeping the wheels of government turning demands that we interpret the clause to maintain its relevance in light of the new circumstance of the Senate taking an increased number of intra-session breaks that exceed three days. Even if I accepted the canard that courts can alter the Constitution's meaning to accommodate changed circumstances, I would be hard-pressed to see the

relevance of that notion here. The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that means the Senate is always available to consider nominations, even when its members are temporarily dispersed for an intra-session break. The recess appointments clause therefore is, or rather should be, an anachronism, essentially an historic relic, something whose original purpose has disappeared, the need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the president to circumvent the Senate's role in the appointments process. That does not justify reading it out of the Constitution, and contra the majority,

I would not do so, but neither would I distort the clause's original meaning as the majority does to ensure a prominent role for the recess appointment power in an era when its influence is far more pernicious than beneficial. I mean, I couldn't have said it better myself. And I think it is a dangerous thing. So legally, I think the four were right. Policy-wise, I think it is a dangerous thing, as he said,

more pernicious than beneficial, because we will end the advise and consent role of the US Senate. It will be done. But you know, look, you can talk about the bravery of Republican senators, Steve, or lack thereof, but at least it's something, right?

Yeah. I mean, look, I think let's play out the Gates nomination. I should say from the beginning, I think there is some possibility that the Gates nomination will be withdrawn before it gets to this. Maybe not a lot because Donald Trump himself is so strongly in favor of Matt Gaetz. And we're already seeing, just by way of background, these splits in Trump advisors on some of these controversial picks, where I think the sort of Susie Wiles more, I mean, I hate to use establishment minded, but sort of, so we say less insane cohort

of Trump advisors really doesn't want to do this, isn't excited about some of these picks and doesn't want to, and I think it remains mindful of the separation of powers arguments that we're talking about here. But the flip side of that is, as David mentioned earlier, the sort of super MAGA, MAGA plus, group of Donald Trump advisors care about this more than anything. I mean, they are willing to do sort of anything they can to get Matt Gaetz to be attorney general and we'll sort of fight to the end. So I think there have always, as you mentioned, Sarah, we've already seen some people raise

public objections or concerns at the very least to this Gates appointment. There have been I can tell you many, many more of those registered behind the scenes with Senate leadership. And I think we can expect that Matt Gates wouldn't get if this were a blind vote, like the one that the senators just had to choose their majority leader, Matt Gaetz wouldn't get 10 votes. But it's not a blind vote. Even though people want to support the president. But it's not a blind vote. And the pressure to give President Trump what he wants on those senators, I think, will be significant. So

let's go down that road. Let's say that there are eight to 10 brave souls who will say publicly, Matt Gaetz is unqualified to do the job. He's morally and ethically compromised in a way that we can't possibly support his nomination. It must be withdrawn. We won't vote for him. So, you have, you know, 43, 45 Republican senators who say that they'll support him. Is it the case that we are going to start building a cabinet or staffing the leadership of these crucial cabinet agencies with, you know, minorities of this party because of the president say so? I mean, I think the implications, as you suggested,

are so profound for a constitutional order. You know, I say that not to be dramatic, but that's just the reality here. And it's absolutely the case that if Republicans do this now, Democrats will do this later. I mean, we've seen that play out on any number of these kinds of constitutional questions, and we can be certain that that'll happen in this case. Steve, can I follow that that'll happen in this case. Steve, can I follow up with one important question that I've heard from a lot of people? Was Matt Gaetz intended to be a real pick, do you think?

Or was this Trump doing Matt Gaetz a favor to see if they can prevent this ethics report from coming out? He wants to run for governor in Florida, it's rumored. And Trump never intended to make Matt Gaetz attorney general. He's, in fact, a stalking horse, a drafting buddy on the bike. And that's what's going to allow Hegseth and Kennedy and all these guys to sail through is because Matt Gaetz pushes open the Overton window, if you will, on the other side. I think it has that effect.

I don't think that was the purpose. I think Donald Trump wants Matt Gaetz to be the attorney general of the United States. The timing of this and the way that the announcement came down and the fact that that it may sort of keep the official report from being released certainly may have factored in to the decision and the timing of the announcement. But I think Donald Trump wants Matt Gaetz to be attorney general. Look, Donald Trump ran on retribution. He did it again and again and again. He gave speeches about it. It was the common theme.

I would argue that it was the single most common theme of his campaign over the past two years. Nobody did retribution on Donald Trump's behalf like Matt Gaetz. This is a guy who toured the country with Marjorie Taylor Greene after January 6th, continuing to make the stolen election claims. This is a guy who went to Wyoming to hold rallies against Liz Cheney in her primary.

This is, this is somebody who believes in Donald Trump's retribution and who acted on Donald Trump's retribution. I think this is a reward for that. Donald Trump would like him to be attorney general of the United States. More importantly, or as important, so would all of the super Maga people. So would Steve Bannon. So what all of these others, Tim pool, who is the, the, the pro Trump Maga podcaster who was revealed to have had Russian money flowing to him.

He claims he didn't know about it. Um, but I would say Russia friendly. Podcaster Maga friendly podcaster, you know, sent out a tweet a few days ago and said, I'm keeping track of any Republican Senator who doesn't support Matt Gaetz and we're coming after you with everything we've got. The super MAGA part of Trump's base

wants Matt Gaetz as attorney general. I think that's why he picked him. Okay, so David, there's another little legal part to this little wrinkle, which is it takes a while for a case to get to the Supreme Court. And so even if they use the recess appointments power and let's say the Supreme Court, no dogs it. And it's like, this is an anachronism. Like Scalia said, this is a very different situation than even these board appointments in the recess from Noel canning from the NRLB and CFPB. It could be moot by the

time the Supreme Court decides it. Or you could set up a situation where Donald Trump gets to use recess appointments for two years, but then no other president is going to get to do it. Yeah, this is one of those examples of the fact that America has checks and balances and it's also run on an honor system. Both of them are true at the same time.

So the check here and the checks and balances you've had from the Constitution is the Supreme Court would review this and very likely say, or may say, I'm not very likely, may say, nope, nope, nope, this is not what this means. You can't do this. But that's a year later. What's Matt Gaetz been doing for a year, for example, how much can be unwound, how much of it would be actually deemed,

it's just a giant, giant mess. That's why you have the honor code. The honor code says, wait, I'm a, you know, I am one of the leaders of a branch of government. This is, I'm thinking, speaking of Thune and Mike Johnson. And no, I'm not simply going to abdicate my Constitutional role. There's no reason for us to be in recess there. We are here We are able to perform our conscience constitutional functions and we're not going to abdicate them because Donald Trump tells us to

That's your honor code element And this is what's been faltering in American life for a very long time or not a very now nine years that's getting on to a very long time. There is a loss in the constitutional honor code. And yeah, you can go to courts and you can ameliorate some of that damage, but you can do an awful lot of damage with unlawful acts or acts that are technically lawful such as this adjournment when the two houses don't agree, but absolutely are not, in no way would you say

that's demonstrating constitutional integrity, even if it complies with the letter of constitutional law. So this is why I said Johnson and Thuner under the spotlight, more so than the Supreme Court right now. I'll give you my prediction of what the Supreme Court would do. Because right, there's the ending merits at the Supreme Court, but there's also where

they would let it lie on the emergency docket in between when it happens and when it actually gets to the Supreme Court. So do they allow the president to have these appointments in the interim, right, with those preliminary injunction standards, basically. So because of the Noll-Canning precedent, which I think they would really be overturning it, frankly, like maybe there's a few ways that you could like squirm around through it, but I don't think so, if they said no. So here's what I think they would do.

Because of the Noll-Canning precedent, you would have to let the president have these appointments. You would not enjoin him from recess appointments because under existing precedent, that's the law as long as it meets the Noll-Canning standards, right? They're adjourned for more than three days. There's some other little tiny factors in there, but okay. And then I think they would reverse Noll-Canning. So you would end up in my situation, which is that basically Trump gets one free recess appointments out of jail card. And then that power would disappear for all future presidents, which is kind of a hot mess. And I'm sad that I'm giving everyone that idea on a podcast, but it is what I think would happen.

Okay, so now we've reached the part of the podcast where I'm going to give you all my five reasons that I'm kind of in favor of the Gates appointment. I cannot wait for this. And you know what you did, Sarah, you did the sports talk radio thing. You know what I'm talking about. It's where they tease at the very opening of the podcast, the very counterintuitive hot take, and then you don't deliver it for right now 40 plus minutes. So, yeah.

It's so anti-Dispatchian what Sarah has been doing throughout this entire, not just the substance of what we're about to hear, but it's like the fantasy football, bold takes where people have total entire podcasts where they announced that they're going to give bold takes. And most of the takes are just awful, but they're bold. And so people listen, I'm not previewing yours, Sarah. It felt very much like that.

So let me give my, you know, prefatory cough coughs. I said, like, Matt Gates wouldn't be my pick for attorney general. I want to be very clear about that. And two, that I'm not totally sure about this. It's a close call. Let me start by saying he wasn't indicted for the conduct that we talked about, and I have not seen the ethics report. So all I know is that he has been accused of violating the law. And that does matter to me when you're appointing someone to attorney general.

I'm not saying you'd have to be convicted, but it's also to me not enough to have a rumor. And then the Department of Justice says that they don't have enough evidence to even bring charges. So this is really important to me. And I just don't quite know where I fall on it yet. So if you will, dear listener, put that aside for a second of whether he has broken the law in some important ways.

Even though I'll also just footnote, those would kind of be, for those who have watched Legally Blonde, those would be malum prohibitum crimes, strict liability, right? We don't determine her maturity and her ability to consent at 17. We just say, nope, the age of consent is 18. That's a strict liability crime. It's not about mens rea. It's not an individual assessment. I know I'm not using strict liability exactly right there. But versus, we'll get to my first reason that I'm good with the Gates pick. Don't think that the next runner up will be better. It very, very likely would be worse. Your most compelling point.

Right? There are people out there who Donald Trump was considering, who I consider Malem Insay candidates, as in it's a crime of moral turpitude. And I think the pushback to that, which is very reasonable, is the Senate should reject them too. But let's live in real world now. How many of them do you think the Senate can reject? One, two, three, because I can think of several nominees after Matt Gaetz that would make you long for the nomination of Matt Gaetz. So think long and hard. Who, honestly? Ken Paxton, the attorney general of Texas,

who is still under investigation by the Department of Justice, was brought up on impeachment charges in the Texas House and then not convicted in the Senate for serious issues of corruption, of using someone who was under investigation, basically having that person pay him money, put his mistress on payroll. His wife was one of the senators in the Texas Senate during this time. It is a sorted tale that I will get all the details wrong, but it involves true bribery, corruption, illicit sex stuff, all of it. It's all the stuff. But he wasn't convicted either, correct? They haven't dropped the charges though, the investigation like they have against Matt Gates.

I don't think Ken Paxton has aorted enough sexual past to become attorney general in the Trump administration. Steve, the other distinction also is that we've, I've read the full report from the Texas house about Ken Paxton, which I have not about Matt Gates. So you're right. Maybe this is just an information gap that I have the information about what I think are the Malam in say accusations with evidence against Ken Paxton that I don't have against Matt Gates. I'm fully willing to acknowledge that. Yeah. Well, let's get, we'll get, let's get back to your, to your reasoning. My, what I said earlier was that I don't care much about the legal issues facing

Matt Gates because there are so many other things that he's done in public that allow us to come to judgment that he would be awful. Yeah. So that takes us directly to my number two. Trump should actually get to have the attorney general that he wants. And I think that it was a problem in the first term. And I've written about this in the Washington Post, which you guys both read right after I left my position, that I think it's very easy to say we should have good

people in government and we should encourage them to serve. I obviously thought that was true. And I do think it is true to some extent. But when you fill an administration with people who are not loyalists of any kind to the president, you end up with this tension and the tension between a sort of enthusiasm for his agenda versus keeping things off his desk, delaying loyalists of any kind to the president, you end up with this tension and the tension between a sort of enthusiasm for his agenda versus keeping things off his desk, delaying things, seeing yourself as a guardrail and an indispensable one at that. I think it was bad during the first administration. And I don't think it gave the American people a view of what Donald Trump would actually be like as president. I think it is a large part of the reason that he got reelected is because when

people think back on the Trump administration and they point to things, some of those things were against Donald Trump, if you will. I don't think it's correct. None of those people were elected. I certainly wasn't elected. And I think it was a bad idea. So I think Donald Trump should actually get the cabinet he wants. I agree there is a role for the advice and consent of the Senate. That's where we get back to my huge disclaimer at the top. I have not read the ethics report about Matt Gaetz, but also he wasn't charged with any crimes.

They do have a role of not allowing someone to go into the attorney general's role who is unfit qualification wise, or obviously a patsy if you will. Donald Trump puts someone in he knows has committed a crime because he knows that person can't actually execute the job of attorney general and will simply do other stuff for him or something like that. But on the qualification, we'll get to number three now. As I said at the beginning, Matt Gaetz is a lot smarter than anyone seems to think he is. This guy isn't a dummy. He's very smart and can be charming and quite clever. I mean, he also has a short legal pedigree. He graduated from William and Mary Law School and worked as a lawyer for a couple months. You know, between the two of us, it's hard to say that

either of us are real lawyers. And I also acknowledge he is as reckless as you think he is. But he's smart. So then number four, this gets to how the Department of Justice actually works. We often don't have real lawyers running the Department of Justice. The way it works is you have an attorney general.

They are largely a, they're the queen, if you will, to the deputy attorney general's prime minister. That's going to vary with different attorney general models, but the attorney general in the platonic ideal sets the vision for the department. They have three priorities that they want everyone to focus on. Then the deputy attorney general actualizes those into strategies and tactics. So AG sets goals, DAG's office strategies, and then hands down those tactics to the lower offices.

So that makes, for instance, Todd Blanch, a very important and powerful nomination for deputy attorney general. And he has exactly the resume that you would expect from a deputy attorney general. He worked in the Southern District of New York as a federal prosecutor. He clerked for judges, long time, serious lawyer. Of course, you may recognize the name. He was Donald Trump's defense lawyer in some of these criminal cases against Donald Trump. But Donald Trump should get his pick.

And also, we should be far more focused on Todd Blanch because Matt Gaetz doesn't know how the department works and will be, I think, an exceptionally weak attorney general in that case. You're worried about him firing everyone. Well, guess what? They have civil service protections. That's not really in that case. You're worried about him firing everyone? Well, guess what? They have civil service protections. That's not really how that works. I mean, he can fire them and then they're all going to turn around and sue and basically

bankrupt the treasury with winning all of those lawsuits unless Congress wants to change civil service laws. That's the schedule F idea, all of that. Okay. This gets me to my last point about Matt Gaetz, about him being a weak attorney general. Good. This is the progressive vision for America that we currently live in. I don't mean the political progressives that we talk about now. I mean the progressive era progressives. They didn't like the way

that Article One, the legislative process, was slow and required compromise. And it wasn't filled with experts. It's filled with these dumb, dumb members of Congress. And so they envisioned an energetic executive filled with experts and administrative agencies that could do things quickly and didn't need to wait on Congress. That's the world we live in. That's the huge amount of presidential power we have, where these cabinet officials are like mini presidents themselves, and the congressional branch continues to atrophy. So, I think that Gates and Hegseth and Kennedy even to a large extent, Christy Noem, they

don't know how these places work. That will make them weak because that's how institutions and bureaucracies function. If you don't know how they work, they will not respond to you. And that that's a good thing. So those are my reasons for being bullish with said caveats that wouldn't be my pick because if I'm president, I want to actually get things done and I'm going to pick someone who can get things done at the Department of Justice and picking someone who's not really a lawyer and only knows the Department of Justice from being on the other end of the defense table, probably not my pick. But there, there are my reasons.

Steve, I'll let you eviscerate me first. You've heard me tell you privately, and I've said publicly that I admire your ability to steal men really crappy arguments. And I separate that from your ability to make really crappy arguments, which you do sometimes as well. I'm not sure exactly which one this is, if you're just steel manning this,

because you knew that David and I would come with probably some shared views on this, and you wanna be provocative and get us to explain ourselves or if you actually believe this, I would submit it. If you actually believe this, I don't know you nearly as well as I thought I did. I think that feels a little personal. Wow. Man. What did the kids say? Drive by. I don't think that's the correct usage, David, but sure. Okay. No, I mean, I usually find myself persuaded by some of your arguments, even some of your

steelmanning arguments and even more when you make arguments that you really believe. I'm not persuaded at all by any of this. I think it's a totally unpersuasive, nonsensical argument that requires you to set aside so many other objections about Matt Gaetz personally and about this process now. Matt Gaetz, do you remember, does the name Darren Beatty mean anything to you, Sarah? No. He was the speechwriter who was fired from the Trump White House

because he was too close to white nationalists. He'd given some speeches that is part of venues that Richard Spencer, the noted white nationalist, has spoken of. So he was fired from the Trump White House for being too close to white nationalists. Matt Gaetz then went on to hire him and was proud to have hired him.

Matt Gaetz brought a Holocaust denier to the State of the Union. As I said before, Matt Gaetz participated not only in Trump's stolen election arguments, not only in Trump's stolen election arguments, obviously amplifying ridiculous lies. I mean, these aren't sort of controversial legal arguments that Matt Gaetz was embracing, and we can say, oh, well, on the one hand, on the other hand,

no, these were demonstrable, provable lies that Donald Trump was telling that Matt Gaetz embraced. He embraced them through January 6th. And as I said, stood by them after January 6th and after the violence. He has been associated in the past with Proud Boys, other violent extremist groups on the far right. And I'm, note again, I'm not relying at all in any way on these arguments about the prosecuted the aborted prosecution of Matt Gaetz or the Ethics Committee things. I think that there's a requirement if you're a senator to make judgments, make these kind

of moral judgments and judgments about what's in the best interest of the country. That's exactly why we have an advising consent. I am very much in favor of giving presidents who they choose as a general proposition, but there's a reason that you don't, and this is the reason. Yeah, I'm not the world's foremost expert on Matt Gaetz. I will acknowledge you are saying things

that I actually don't know about him, which I'll think about. I think mine are more theoretical than yours are. Yours are specific to Matt Gaetz. And David, I will say also that I think the Senate's advise and consent role, and this is extra constitutional for what that's worth, but I think the Senate's advise and consent role is different for members of the president's cabinet, or rather that standard should be different than it is, for instance, for Supreme Court justices who are an independent branch with life tenure and not as their primary role to advise the president. I will also say one potentially devastating part of Matt Gaetz as attorney general, but

again, this is the president's choice and it's why I wouldn't pick Matt Gaetz as attorney general. But again, this is the president's choice. And it's why I wouldn't pick Matt Gaetz. Speaking with a number of people at the Federalist Society who support the president and were looking to go back into an administration or go in for the first time to an administration in the Department of Justice, they're going to stay at their law firms. Matt Gaetz is simply not someone that they can go and work for. And so it's not just the talent drain that people are talking about of people leaving the Department of Justice, which I have a whole album side on that David of, we have so many lawyers who simply think that as civil servants, they get to pick and choose which cases that they work on at the department. That if they don't agree with the administration's position, they should not have to work on that case.

Then by all means, you should leave the Department of Justice because that's not your job. It is probably a reason for serious civil service reform. Not just if you're a conservative for policy reasons, but if you're a conservative who believes in the unitary executive. But the brain drain of people not going in, who would otherwise go in because Matt Gaetz as attorney general is going to be a problem for the Department of Justice. Yeah. You know, look, I'm just going to go to a core AO, part of the core AO ethos, Sarah, Congress do your job. And what is the job? What is the job? And if I think-

What do you think the standard should be? I'm curious. Well, I'm going to turn to, I don't see one of the things about, you know, as constitutional conservatives, we don't just fabricate our own standards, Sarah, we turn to the founders who've helpfully outlined, provided some advice for us now on how to exercise advice and consent. And I like what Hamilton said, the Senate's power to approve or reject a president's top nominees, quote, would tend greatly to prevent the appointment of unfit characters, including those who, quote, had no other merit than that of possessing the necessary insignificance and pliancy to render them the obsequious

instruments of the president's pleasure. It's a good quote. It's a good quote. It's a good quote. I have been mulling it. Yeah. I mean, that should be the standard. I agree. Yeah.

And I think that one of the problems we've had in the Trump era is that consistently we don't uphold the standard. We'll do a technical compliance with the law. So for example, there was no technical requirement to convict Trump when he was impeached in 2021. But if anything ever met, the definition of high crimes and misdemeanors, trying to overthrow an election would have done it.

And so the members of Congress there just didn't do their job as intended by the founders of the country. And here again, if you're waving through Matt Gaetz or RFK Jr., etc., you're just not doing the job as intended by those who wrote the structure of the Constitution. Now I don't claim that they're infallible. Obviously Alexander Hamilton could make mistakes. There were mistakes made in the drafting of the constitution. But when you have a system that's set up and they articulate a reason for it, and you just

blow through the system and the reason, and you're supposed to be the party of constitutional conservatism, I mean, it's like, it's not just flattening Chesterton's fence, Sarah. It's like flattening it, putting it into the mulcher. I have a question for you. If you were in the US Senate at the beginning of George Washington's term and you had full information, which they did not have, although within Jefferson's lifetime they certainly did but not at this point, would you have confirmed Thomas Jefferson? Oh, you mean if you knew he was raping Sally Hemings?

Yeah, and keeping his own children as slaves. Would that have met the standard? Would that have been an extra like a separate problem? Right? You're right. Yeah. I'm trying to sort of get to like what is like Steve's making a compelling point that we need to separate sort of Matt Gaetz and what he does as a politician and says versus any sort of insidiousness of Matt Gaetz and what he does as a politician and says versus any sort of insidiousness of Matt Gaetz's personal behavior. I think Thomas Jefferson's behavior is obviously worse than Matt Gaetz's, but it's of the same separateness, if you will, to some extent. Although, of course, slavery was absolutely going to be a big topic of conversation during any administration.

Although again, there was then the gag order later. Well, you know, it's, it's, that's a, that's a very good and fair question. You know, I, I, at the moment- He's a brilliant mind, Thomas Jefferson. Brilliant mind, brilliant mind. But here's, here's my problem with some of these comparisons. So I've been dealing with these comparisons for a long time. Here, here was one that was in 2017 dealing with Roy Moore, right? Well, George S. Patton had a lot of problems. So did Thomas Jefferson. These people had a lot of problems. Yeah,

I will freely admit that there are people whose brilliance in one area, so for example, Patton's brilliance as an armor commander, created a very difficult problem because you needed his brilliance, but his corruption was a problem at the same time. That's not where we are, Sarah. That's not where we are. That's not the decision we're making here. Oh, fine. All right. Steve, I have a last question for you. And then for AO listeners who are not Dispatch Podcast listeners, we are going to do just a brief moment of not worth your time here. Steve, you know, Senator John Thune, the new Republican majority leader. What do you think he's thinking right now?

I mean, he literally won the election from his peers and about 30 minutes later, Donald Trump announced Matt Gaetz. I mean, it's it's it was a pretty incredible succession of events that day. I mean, really as it has been every day since the election. Yeah, I profiled John Thune back for the weekly standard when he was considering running for president in 2012. I spent time with him in his hometown of Myrto, South Dakota. I met Kristi Noem before she was a big thing. I spent a day with her at a county fair and spent a bunch of time reporting on him. Look, I think Thune is a good person. I think he's an institutionalist. I

think he cares about the Senate. Worked sort of at Mitch McConnell's side for the better part of the past decade. I think he learned from Mitch McConnell. He came to appreciate the kinds of things that McConnell cared about as it relates to the institution. I also think he's a, John Thune has principles, he cares about things. I think he is now with this job been thrust into an impossible situation.

It's not unlike Paul Ryan when he was speaker of the house after Trump was elected in 2016, where Paul Ryan came to Washington to do big things, and because he believed in certain policies and had a certain worldview and had certain principles, but had to find a way to try to work with Trump because so many of the members of the House were either fans of Trump or willing to work with Trump, and Trump had won an election.

I think Thune will face very similar tests pretty quickly. I think there are still a good number of senators who sort of share either skepticism about Trump personally, or are concerned about these sort of excesses of Donald Trump that we're seeing who will be supportive of Thune as he navigates this. But it also has to be said, there are a lot of senators, particularly the newer ones, who are not, who are very Trumpy and sort of anything goes on this stuff. And I think Thune will have to contend with them. I guess my sort of bottom line for Thune, as I expected, he's going to do as much as he can. He's a deeply religious man. He does sort of think about long term issues. He does care about things

like integrity. I think he'll do everything he can to sort of keep things on the rails, but he is going to become the guardrail in some senses. And I think that's going to be really, really challenging moment for him. All right. A quick not worth your time question mark. So I have mentioned this to both of you before that in my youth, I had a rule and the rule was that if a man had the courage to ask me out on a date, that you as a woman should simply say yes to a first date. Now, there's important points to this rule. I don't put out on a first date like it's really just to get to know you.

And there's certainly no guarantee of a second date. If on the first date, I know that there's not going to be a second date, I also like to pay for myself. I'm not looking for a free meal here either. I'm not scamming the system. But I think it's a pay it forward system. You want men to have that courage because you want the guy who you actually like and want to end up with to have the courage. If he's been shot down 20 times in a row and he sees you and he's like, what's the point? And he just walks off, that would be a real bummer. So it's a pay it forward system. So that important policy that I had has led to two first dates with people who are currently in the news.

And I thought you guys would get a kick out of it. Oh boy. One, which my students always just hooted and hollered about when I was teaching undergrads, Ben Shapiro, he took me out for hot chocolate and laid out his plan for life. It was a very almost like business style interview as a first date. And he told me he was going to be bigger than Rush Limbaugh, that he was going to have this media empire. And I was like, yeah, I don't go on second dates with guys in fantasy land. So that should tell you how good I am at those type things. And the second one is our newly announced Solicitor General, John Sauer. And David, I'm sure we'll talk more about a bunch

of the DOJ appointments on AO proper at some point. But John Sauer is truly one of the smartest human beings I have ever spent three hours with. He took me to a Shakespeare play. It was one of the Henrys, and I don't remember which one. And under his breath was basically just reciting all of the lines because he has that kind of memory. Not that he thinks this Henry was particularly special, but that his memory and mind is so expansive. He can speak wildly intelligently on any subject.

A really interesting and smart person who will be the next solicitor general of the United States. So I don't know, is my policy worth the time for young women because you end up going on first dates with interesting people? What do you all think? I was not expecting to answer that question. I don't know. I tend to prefer- You're a man. Do you think it's insulting? I think I would prefer if somebody actually did not want to genuinely go on the date for them to say no. Okay.

My also thing is I'm a terrible judge of character. So like I would judge a book by its cover and be like, no, but then it turns out if you had an hour of my time, I'd be pretty won over. Who knows? But that's a little bit of a separate issue. I think most people are bad at that, I guess, not uniquely me. But if you're really good at it, then yes, like you know that that person's odious, then I don't think you have to go.

But if you just don't know them very well. Okay, Steve, what do you think? Is it insulting or is it a good policy? I will tell you where I thought that this was going. And I thought that you were going to end up telling us that you went on a date with Matt Gates. Why you are defending him at this point.

I did spend quite a bit of time with him at the White House Correspondence Dinner a number of years ago, but he was actually using me to try to get a date with a, well, I'm trying to think of whether I should tell this. It was a reporter at CNN who was single at the time. I don't think she went out with him. Okay, y'all heard the joke, right? That Donald Trump is thinking of using his recess appointments power to make Matt Gaetz attorney general.

And Matt Gaetz is really familiar with that because recess appointments is what he calls his dates. Yeah, that's a Jim Guaranty joke, I think. Yeah. Wow. That was clever. Get it? That's brutal. I'm with David on the, I think on the policy. I was. Yeah. Wow. That's brutal. I'm with I'm with David on the, I think on, on the, on the policy.

I was pretty shy. I wasn't great at asking people out back in the day, but, but I don't think I would want anyone to go out with me because of a formal dating policy. I think I'd want them to go out because they wanted to go out with me rather than a, I don't reject anybody than a, I don't reject anybody on an I don't reject anybody basis. So I'm not sure.

I don't think I'll be advocating for my daughters to embrace your approach. They're gonna miss out on a whole range of interesting humans and like, you know, an hour of delicious hot chocolate. All right, well with that, thank you for joining this emergency advisory opinion slash dispatch crossover. The flagship meets one of its smaller sister

ships in a clash of what? Okay. Anyway, regular podcasting to return next week. We have so much to talk about for advisory opinions and Steve for DispatchPod. We got to pick up with all sorts of things that we really, I mean, the end of the election needed multiple podcasts and I feel like now it's overtaken by events, but I still want to get back to what we learned and large future out projections of the political parties and American electoral politics, not two years out but 10, 20 years out. We might need to do an emergency emergency or do like a Joe Rogan style three hour long disk pod.

Side pods. Yeah. So lots more to take. We have so much more to talk about in the weeks to come. Hope you all have a good one. Right off the bat.