What A Day - Can Trump Really Bypass Senate To Fill His Cabinet?

Episode Date: November 21, 2024

The reality show that is President-elect Donald Trump’s White House appointments keeps on rolling. In the last few days, Trump has picked World Wrestling Entertainment co-founder Linda McMahon to be his Secretary of Education, former acting Attorney General and toilet scammer Matthew Whitaker for U.S. ambassador to NATO, and billionaire former finance executive Howard Lutnick for Secretary of Commerce. Can any of these people win confirmation from the Senate? TBD! But Trump’s team says it doesn’t really matter because they want to force the president-elect’s unqualified picks through with recess appointments. Casey Burgat, director of the Legislative Affairs program at George Washington University’s Graduate School of Political Management, explains how that would work.And in headlines: Independent Vermont Sen. Bernie Sanders forced a Senate vote to stop the U.S. from selling weapons to Israel, more details emerge about the sexual misconduct allegations against former Rep. Matt Gaetz, Texas has offered up thousands of acres of land to the Trump administration to construct deportation facilities.Show Notes:Check out Casey's pod – https://tinyurl.com/mphevfxbSubscribe to the What A Day Newsletter – https://tinyurl.com/3kk4nyz8What A Day – YouTube – https://www.youtube.com/@whatadaypodcastFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday

It's Thursday, November 21st. I'm Jane Coaston, and this is What a Day, the show where we will not stop calling Campbell Soup, Gamble Soup, despite their efforts to rebrand. Because that's what it is. It's soup. Made by Campbells. This isn't hard. On today's show, Texas offers Trump land for his mass deportation plans, and there are

new details about the allegations against Matt Gaetz. Let's get into it. The reality show that is President-elect Donald Trump's White House appointments keeps on rolling. But unlike other bad reality TV, we are all a captive audience to the cast of clowns being paraded in front of our eyeballs. Late Tuesday night, Trump picks Linda McMahon, the former chief executive of World Wrestling Entertainment to be his next Secretary of Education.

Does she have a lot of hands-on education experience? No. But she did spend about a year on the Connecticut State Board of Education before two failed runs for Senate. On the other hand, if confirmed, McMahon will almost certainly be the first cabinet secretary to be body slammed, or more specifically, tombstoned — by a professional wrestler on TV. Then there's Trump's pick for ambassador to NATO. On Wednesday, he selected former acting Attorney General Matthew Whitaker for the job.

Does he have a foreign policy background? No. But in addition to his previous work in the Justice Department, he did help run a scam hawking toilets for well-endowed men. And finally, there's Trump's pick for Commerce Secretary Howard Lutnick, a billionaire former finance executive and Trump's current transition advisor. Trump said this week that Lutnick will quote, "...lead our tariff and trade agenda, an agenda a lot of Republicans aren't really

on board with because they don't like tariffs. So the big question a lot of us are asking is, how many of these people can actually make it through the Senate confirmation process? Or through a single episode of Jeopardy, for that matter. And that's where something called recess appointments come in. Trump and his team are touting it as a way to get his picks in place, bypassing the Senate altogether. Stephen Miller, Trump's incoming deputy chief of staff for policy, told Fox News Tuesday night that that's the plan. The president has won a mandate and he will use all lawful constitutional means

to fulfill that mandate on behalf of the people who voted for him in record numbers. First we should have a conversation about what a mandate is, but anyway. So to talk through what this would all actually look like and whether it's even constitutional, I spoke with Casey Burgett. He's the director of the Legislative Affairs Program at George Washington University's Graduate School of Political Management.

And he hosts GW's political podcast, Mastering the Room. Casey, welcome to What A Day. Thank you, thank you. Good to be here. So give us a little primer on recess appointments. What are they and why do they exist? Oh boy, here we go. So within the constitution,

the president has appointment power, right? Cabinet level secretaries, federal judges. Typically you get a nomination. The Senate provides advice and consent. That's their constitutional duty. And then we get the appointment. But there's also recess appointments written in the late 1780s for a time when there was no cars,

no roads really, no internet. So basically when the Senate was often more not in session than they were in session. And so there's this appointment process that gives the ability to the president when the Senate is in recess to fill seats within his cabinet, federal appointments to allow the government to continue. It was written for a different age, and now it's being dusted off

in a more aggressive way to apply in 2024 and 2025 and beyond. How frequently have recess appointments been used by other presidents, and have they ever been used for a cabinet-level position like Trump wants? Let's start at the easy one. No, not on the cabinet level. This is an escalation. If we know anything about presidents, they're going to try to take as much power as they can.

And so long as Congress lets them, they're going to just keep doing it. And so this is that next iteration of the recess appointment power by Trump. But other presidents have used them, including Obama, including former President Bush, where they use them for not cabinet-level secretaries and not Supreme Court justices, but lower-level appointments, usually later in their terms to fill seats that they just want the work to continue on.

And they've been frustrated with the Senate's less-than-fast way of confirming their appointments that have typically sat there for a long time. And for the person who's appointed this way, is it just the same as someone who was confirmed by the Senate? Because recess appointments are supposed to be temporary. They are temporary. Not supposed to be, they are by definition. And so they exist until the next Senate session expires. So you do it immediately, let's say then you get two years basically in a temporary position.

But it does come with all of the powers of the office the same way that an acting secretary could. So yes and no, they have all the powers of the office, but everyone knows them as a recess appointee. It's kind of this inside baseball type of this person didn't get the real Senate confirmation process treatment. But even then, they issue orders to their bureaucracies and they're going to follow them the same way they would a cabinet level secretary. But they also don't get paid. Good point! Yes, and so this is one of the big trade-offs there too, in that if you are not confirmed by the Senate, then you are not eligible to be paid the same way that a typical cabinet secretary would. So let's game this out, and let's use former Florida Congressman Matt Gaetz as an example.

Trump has picked him to be his attorney general. Walk us through the process of installing him in that job via a recess appointment. How would that work? Would it involve dismissing both houses of Congress? What goes on here? Not so far as dismissing, though I do appreciate the House of Cardzi and kind of way of thinking about this,

because this is a huge escalation here. But what has to happen is that the Senate needs to go into recess, hence recess appointments. And the only way they can do that, if the House and Senate decide to, they need to be gone for 10 days minimum. That is what the Supreme Court has ruled. If the House and Senate disagree about adjourning for longer than three days, stay with me here, this matters.

If they disagree about adjourning for longer than three days, then the president then has the power to basically put Congress into a recess. It's typically only seen as a break glass in case of emergency type scenario, like a terrorist attack or something like that where Congress, you better get out of Dodge, I'm telling you as your commander in chief.

This explicitly isn't that. So we would likely to see a challenge of the constitutionality question of does his adjournment power, the president's's extend as far as him being so blatant and partisan to say you guys get out of town so I can get the people I want without going through the actual process. So if Trump did try to adjourn Congress could lawmakers just say no? It depends if he has a Senate and a House majority which he's obviously walking into the next Congress with that he can go pretty far

without them saying boo. There's no outside umpire here saying, no, no, no, you can't do this, you're breaking the law. So long as the House and Senate go along with what the president wants to do, he can go pretty far in terms of his powers. But Democrats are gonna object big time, and they're likely going to take this to the courts

to decide this constitutionality question of does the president's adjournment power, can it be used for such explicitly and short-term partisan ends, like a recess appointment? Can that be the basis of his adjournment power that would likely be run up to the Supreme Court who is the body that decides these constitutional questions? Would they have other means of holding this up?

Man, you're gonna have to get really procedural. And if you have a united majority in the Senate and you have a united majority in the House, this is where it's really tough to broker all of those procedural obstacles that we think that are just existing in the House and Senate. You gotta have a united front to do it. And without the majority, it's really tough to do. Just from a raw politics standpoint,

it's super weird that Trump is talking about bypassing a Senate that is controlled by his own party. Like, it's bonkers that we're even talking about this What does that tell you about the moment that we're in right now on the kinds of nominees Trump is floating? That they wouldn't get a confirmed without this process, right? You don't float this especially With with a Senate controlled by your own party You're making your own people check your own power with series basically Basically, and maybe that's the end goal here if we're giving a lot of credit to Trump here, the chest, not checkers argument of like, let's see how far these folks are willing to support me. Are they willing to literally adjourn themselves, give up their power as a check on my appointment

power and just leave town when I say to like, is this the congressional equivalent of me say jump and we say how high it's you leave town and I say to. Like, is this the congressional equivalent of me say jump and we say how high it's? You leave town and I say you bet for how long? Do you think Senate Republicans would actually try to prevent Trump from sidelining them? Because like, they do enjoy being senators, right? Like, they enjoy the power.

It's not just like getting to hang out in Capitol Hill and having an office. Yeah, I think you can have both at the same time. And they do like the power, especially when the president is of the opposite party. But this is where like the, when we say these things like the Trump takeover, the Republican party is complete. This is where it really starts to matter.

And that when you start ignoring these institutional processes, when we, this has existed for over 200 years, but we've never talked about it until someone actually wants to use it for such explicit partisan ends. And now we're relying on members of his own party to check that power. And so far, I've been encouraged about what senators have said of like, no, this isn't an option. We're not giving this up. This isn't the way we're supposed to be doing this.

That's one thing to say right now. But when the lights get bright and when he starts calling and threatening maybe a tweet on your name, we'll see if they stand up that way too. You know, it's probably not great that we are like neck deep in procedural questions right now. That's how you know things are a problem. Like, I don't, I'm not feeling 100% good about this, but Casey, thank you so much for joining me. Absolutely, anytime.

That was my conversation with Casey Burgett, Director of the Legislative Affairs program at GW's Graduate School of Political Management. We'll get to more of the news in a moment. But if you like the show, make sure to subscribe, leave a five star review on Apple Podcasts, watch us on

YouTube and share with your friends. More to come after some ads. And now the news. You cannot condemn human rights around the world and then turn a blind eye to what the United States government is now funding in Israel. People will laugh in your face. Independent Vermont Senator Bernie Sanders forced a Senate vote on Wednesday that would stop the U.S. from selling American weapons to Israel amid the war in Gaza. It failed, only getting support from a handful of Democrats.

Sanders introduced the legislation after President Biden said last week that he would not punish Israel for the worsening humanitarian crisis in Gaza. Biden's position contradicted the administration's previous statement in October, when it threatened to cut off military aid to Israel if conditions did not improve. Sanders had this to say on the Senate floor ahead of the vote. Bottom line, the United States government must obey the law. Earlier in the day, the U.S. vetoed a U.N. resolution calling for a ceasefire in Gaza, crushing the governing body's attempt to bring peace to the besieged strip for the fourth time. The most recent resolution calls for an immediate

humanitarian pause in Gaza with no conditions. Deputy U.S. Ambassador Robert Wood cast the vote on behalf of the U.S., the only member of the U.N. to vote no. And he said that the U.S. cannot support the resolution because it did not require Hamas to return the remaining Israeli hostages before ceasefires called. A durable end to the war must come with the release of the hostages. These two urgent goals are inextricably linked. Mr. President, are you reconsidering the nomination of Matt Gaetz? No. President-elect Donald Trump confirmed Tuesday that he still supports the nomination of former Florida Congressman Matt Gaetz as his attorney general. That's despite the investigation into allegations of sexual misconduct made against Gaetz.

But that was on Tuesday. On Wednesday, the House Ethics Committee deadlocked along party lines on whether or not to release a potentially explosive report by the committee. However, this is 2024 and leakers be leaking. Part of the leaked investigation, which was first obtained by ABC News, reported that Gates sent at least $10,000 to two women in exchange for sex. A lawyer for the women says the report contains, quote, numerous damning photographs as well. Behind the scenes, Gates and Vice President-elect

JD Vance have been having meetings with Republican members of Congress to try and rally support for his nomination and address potential concerns. But Gates may be running out of time. Representative Sean Cassin from Illinois announced Wednesday that he's going to introduce a motion to force the entire House to vote on whether the report should be released.

The state of Texas has offered the Trump administration thousands of acres of land to construct deportation facilities. In a letter to Trump, Texas Land Commissioner Dawn Buckingham said her office is ready to work with the Department of Homeland Security, Border Patrol, and Immigration and Customs Enforcement to help coordinate, quote, the largest deportation of violent criminals in the nation's history. What's it called again when you round up a population and concentrate them in one facility? But Trump's plan to use the military for mass deportations is already getting pushback, not just from Democrats. Here's Kentucky Senator Rand Paul on Newsmax Tuesday. I'm not in favor of sending the army in uniforms into our cities to collect people. I think it's a terrible image and that's not what we use our military for.

We never have. And it's actually been illegal for over 100 years to bring the army into our city. Paul said that the role should instead be done by police and should be focused on criminals. Trump has said he'll begin deporting hundreds of thousands of undocumented immigrants on the first day of his presidency, and has nominated former ICE director Thomas Homan as border czar to oversee the operation. House Speaker Mike Johnson changed house rules on Wednesday because of transphobic nonsense. Johnson announced all transgender people will be banned from using bathrooms

that align with their gender identity on the Hill. He said the role will apply to facilities in the Capitol and House Office buildings. We told you on yesterday's show about how South Carolina Congresswoman Nancy Mace introduced a resolution this week that would ban trans women from women's bathrooms on the Hill.

It's aimed squarely at Delaware Democratic Congresswoman-elect Sarah McBride, the first openly trans member of Congress. McBride put out a statement on Wednesday in response, saying she'll follow whatever House rules are in place when she assumes office. She said she's quote, not here to fight about bathrooms, because she's focused on, you know, doing her job. And that's the news. One more thing.

I don't talk about my own religious views on this show. It's personal and generally I don't want to do it. But I think it's worth speaking as a Christian with a deep familiarity with Christianity and Scripture when discussing efforts by Republicans in states like Louisiana to enshrine their beliefs, and that's the critical point here, into law and our schools. In June Republican Governor Jeff Landry signed a bill that would require every public school classroom in the state to display a copy of the Ten Commandments. In response to concerns from parents who objected,

Landry said in August that there was an easy solution. And so what I would say to those parents is that if those posters are in school and they find them so, well, could you tell the child not to look at it? Sure. Anyway, on Wednesday, a court ruled that the state couldn't take action on its plans while litigation stemming from parents objecting to the law continues.

Now, on its face, it seems like a pretty simple separation of church and state issue. But when you dig down into it a little more, it's actually a separation of churches from other churches and synagogues. Because there are actually three versions of the Ten Commandments detailed in the Old Testament. You can find them in Exodus 20, Exodus 34, and Deuteronomy 5. They aren't identical. The Ten Commandments described in Exodus 34 feature such edicts as,

Do not offer the blood of a sacrifice to me along with anything containing yeast. Super handy for our nation's third graders. But wait, because the version Louisiana wants to post isn't actually in the Bible, but it is in the 1956 movie The Ten Commandments. And many Protestants use that version, but many Catholics and Jewish people don't. Now, the argument from the state of Louisiana is that this isn't about religion at all, but history. That's the same reasoning Oklahoma is using to argue for incorporating the Bible into

lessons in public schools. Because a kid reading about the time Elisha got made fun of for his baldness by a group of children and then sent bears to maul them, 2 Kings 2, 23-24, is really going to help them understand... um... something. But it clearly isn't about history. It's about wielding the Bible and the Ten Commandments as a weapon. Or more accurately, as a talisman. These people don't read scripture, because scripture is hard and complicated and involves

way, way, way more rape and murder than you might think. But they want to wave it in front of their problems, both real school shootings and imaginary, kids being LGBT. Which is ironic, because using talismans is expressly forbidden in The Bible. Before we go, on hysteria's latest episode, Alyssa and Erin are breaking down the rights, the wrongs, and the risks of Trump's latest unhinged cabinet nominations as they try to answer the question on everyone's mind. Who will even make it to inauguration?

Tune in for tips on staying mentally and physically prepared for a second Trump presidency. Listen to Hysteria now wherever you get your podcasts. That's all for today. If you liked the show, make sure you subscribe, leave a review, think about the amount of time we're going to spend discussing different wrestling finishing moves over the next four years, and tell your friends to listen. And if you're into reading and not just about how the WWE became a springboard for politicians like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com slash subscribe.

I'm Jane Coaston, and honestly, I'm kind of surprised Stone Cold Steve Austin hasn't been picked around the FBI. What a Day is a production of Crooked Media. It's recorded and mixed by Desmond Taylor. Our associate producer is Raven Yamamoto. Our producer is Michelle Eloy. We had production help today from Tyler Hill, Johanna Case, Joseph Dutra, Greg Walters, and Julia Clare.

Our senior producer is Erica Morrison, and our executive producer is Adrian Hill. Our theme music is by Colin Gileard and Kashaka. ["Sweet Home Alone"]