Trump’s appointment of Maga firebrand Matt Gaetz puts US justice on trial

During months of ferocious campaigning, Donald Trump’s friends and enemies agreed on one thing. That his second term, if it happened, would be more professional than the bruising chaos of his first.

But the nomination of Matt Gaetz for attorney general has left even some Trumpian loyalists open-mouthed. One senior Republican said she was shocked; “reckless” was another word used, with yet another suggesting that the nomination could not be serious.

So why is this such a controversial appointment, and what constraints might there be on the power of a president who has won not only the White House but control – it is now confirmed – of both Houses of Congress? Where are those famed US constitutional checks and balances when you have a president like Trump?

The problems with Gaetz come on several different levels. They relate first to his character. A lawyer and member of the House of Representatives from Florida, he was investigated over allegations of trafficking young girls for sex – claims he denied and were subsequently dropped, but a House Ethics Committee inquiry remains open.

The very idea that someone with such a taint hanging over him should be considered a contender for public office is part of what many find shocking. But another part, of course, is the position on offer. To be US attorney general is to be the country’s chief law officer. How could even Trump not foresee the evident mismatch here?

Or does he perhaps – which is a third layer – see Gaetz, an arch-loyalist to the point of supporting the Capitol rioters of 6 January 2021, as some sort of angel of vengeance?

Trump makes no secret of his belief that his first presidential term was effectively sabotaged by the Washington establishment – with the “Russia-gate” claims (that his election had been assisted by Vladimir Putin) their weapon of choice. Many of his supporters agree with him, which explains how the various court cases brought against him since he left office – from sexual assault to fraudulent accounting – only worked to his political advantage.

All these considerations are what makes Trump’s nomination of Gaetz so controversial, culminating in the idea that Trump could be set on using, or misusing, the justice system in his favour, as – he believes – it was manipulated politically against him from 2016. (A useful clarification here is that, in a country where most judges are elected, the principle of a politicised judiciary is not as alien as it is in the UK and other countries.)

This does not mean, however, that the president, even one with control of the executive and the legislature, and a majority of the popular vote, can exercise his power as autocratically as some – including his erstwhile electoral opponents – have suggested.

First, it is not all clear that Gaetz’s nomination will be confirmed by the Senate, as is required. The Republicans’ three-seat majority is slim, and enough of them have already voiced misgivings to make confirmation look unlikely. It could even be argued that the very act of nomination is thank-you enough.

However, Trump may also be hoping that by making his nominations in advance, they can be treated as recess appointments, meaning they will be permitted to stand until the next congressional term with no need for confirmation. That would give Gaetz – and all of Trump’s other nominees – as long as two years in office, though opposition from Congress could prove to be fierce.

Even with Republicans in control of both Houses of Congress, and however well organised his White House might be this time around, Trump’s exercise of power might not be quite so unencumbered as is feared. While he now has the moral majority of having won the popular vote, it should be remembered that he was in a similar position at the start of his first term, yet faced one obstacle after another.

One lesson from those years is that the Supreme Court, even with a majority of Republican-appointed justices, cannot always be relied upon to favour party above their interpretation of the law. Another is that even if Trump manages to bend federal justice to his will (via Gaetz and perhaps other appointees), the states and cities enjoy considerable autonomy, in judicial affairs as in much else. This could effectively frustrate federal intent.

There could well be legal tussles – for instance, over any federal effort to deport undocumented migrants from so-called sanctuary cities, which have vowed to protect them. It is also possible that the charges pending against Trump in the state of Georgia and in New York could tie him up in legal complexities, even if the actual proceedings, as seems likely, are delayed or abandoned.

Trump’s time for such even relatively unfettered action may also be limited. The Republicans’ hold on both Houses of Congress could be vulnerable at the midterm elections in two years – which is where Trump’s presidency came additionally unstuck the first time around, with the Democrats re-taking the House.

It could be countered that, for a well-ordered and determined president, such as Trump 2.0 may turn out to be, two years is not nothing, and he could do a lot of good or ill in that time. But as in his first term, there are the courts, there are non-Trump dissenters from his own party in Congress, there are state governors with executive power, judiciaries and legislatures of their own, and – as there were in Trump’s first term – there may well be civil groups expressing their opposition on the streets.

Even a president who has won as convincing a victory as Trump in 2024 faces constraints on his power. The recruitment of such an unquestioning loyalist as Matt Gaetz as his chief law enforcer is unlikely to eliminate checks on executive power that have endured reasonably intact for more than 200 years.