On January 6 2021, Bill Barr, who had recently resigned in exasperation as Donald Trump’s attorney general, issued a statement: “The violence at the Capitol Building is outrageous and despicable. Federal agencies should move immediately to disperse it”.
The next day, Barr went further: “Orchestrating a mob to pressure Congress is inexcusable. The president’s conduct yesterday was a betrayal of his office and supporters”.
Compare and contrast the behaviour on January 6 of the Florida congressman, Matt Gaetz, subject at the time to a criminal investigation into sex trafficking launched by the Department of Justice under Barr. “Some of the people who breached the Capitol today were not Trump supporters,” he declared on the floor of the House. “They were masquerading as Trump supporters, and in fact were members of the violent terrorist group Antifa.”
Gaetz was one of 147 Republican lawmakers who voted not to certify the 2020 election results. He has been a relentless defender of the insurrectionists and claimed that the House January 6 committee was “a bigger threat to America than the J6 rioters”.
Last Wednesday, Trump nominated Gaetz as attorney general. To grasp quite what an outrage this is, it is important to understand the character, gravity and scale of the role.
Created by Ulysses S Grant in 1870, the Department of Justice is one of the four most powerful in the US government, alongside Defense, Treasury and State.
From the Robert F Kennedy Building in Pennsylvania Avenue – named after one of the most distinguished holders of the office in US history – the attorney general oversees every aspect of federal law enforcement, including the FBI, the US Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration, the Federal Bureau of Prisons and 93 US attorneys in federal districts.
The AG is one of the mightiest officials of state, expected to be a figure of irreproachable integrity. Though the DoJ’s investigation into Gaetz, who is now 42, was closed in February 2023, the House ethics committee has continued to scrutinise his alleged misconduct – including claims that he had sex with a girl under the age of 18, whom he flew to the Bahamas for a vacation; paid for sex with other women; and used illegal drugs.
The committee’s report was due to be published imminently – a process stopped in its tracks by Gaetz’s abrupt resignation from his congressional seat last week.
Though Speaker Mike Johnson has requested that the findings not be released – “I think that would be a terrible precedent to set” – it is all but certain that they will leak, in part or in whole. It is hard to see how Gaetz’s nomination can proceed in these circumstances.
Or it would be, if the normal rules of politics still applied. For Trump, the federal and congressional investigations into his nominee are not liabilities but assets. They do not disqualify Gaetz from running the DoJ; they make him the ideal candidate.
The heart of the president-elect’s campaign was his supposed persecution as the victim of the Deep State’s “lawfare” (“They’re not coming after me, they’re coming after you”). In this respect, he regards Gaetz – a long-time ally – as a fellow survivor rather than an embarrassment to the Republican Party.
Yes, the nominee practised law for barely a year and is scarcely a towering practitioner of jurisprudence or litigation. But as Barr observes drily in his memoirs: “Trump was not one to discuss judicial philosophy with any precision”.
The president-elect doesn’t want a jurist at DoJ. He wants a loyal enforcer to pursue his enemies, expedite his wishes and ensure that the apparatus of American justice is turned into an instrument of his will.
Many Republicans were infuriated by Gaetz’s long and ultimately successful campaign to oust Kevin McCarthy from the speaker’s chair. Trump, in contrast, was impressed by his savage persistence.
During the hardline MAGA campaign to overturn the 2020 election result, Barr reminded his boss that “the department is not an extension of your legal team”. Yet that is precisely what it will soon become if Trump gets his way.
Last week, he named Todd Blanche as deputy attorney general and Emil Bove as principal associate deputy AG, both of whom defended him in the New York hush-money trial. As head of the solicitor general’s office, he has recruited Dean John Sauer who represented him in the Supreme Court immunity case and is notorious for arguing that a president should be protected from prosecution for ordering the assassination of a political opponent.
Like the nominations of Tulsi Gabbard as director of national intelligence, and of Robert F Kennedy Jr as health secretary, Trump’s selection of Gaetz is another milestone in the decline of “credentialism”: the belief in qualifications, proficiency and experience as the best measure of a person’s ability to do a job.
In The Death of Expertise: The Campaign against Established Knowledge and Why it Matters (2017), the US scholar Tom Nichols writes that “Americans have reached a point where ignorance, especially of anything related to public policy, is an actual virtue. To reject the advice of experts is to assert autonomy, a way for Americans to insulate their increasingly fragile egos from ever being told they’re wrong about anything. It is a new Declaration of Independence”.
The phenomenon is not uniquely American. Remember Michael Gove during the referendum campaign claiming that “the people in this country have had enough of experts from organisations with acronyms saying that they know what is best and getting it consistently wrong”?
What started as a theme in right wing populist campaigning has now become a foundation stone of the next phase of nationalist government. The old world of politics resembled the résumés on LinkedIn; the new world has more in common with the brutality of Elon Musk’s X.
All of which is to say that Trump’s nomination of outsiders and mavericks with an axe to grind is not, as some progressives lazily assume, mere trolling or semi-senile mischief. It reflects his determination to turn the federal establishment inside out, to replace the settled ethos of the Beltway with the insurgent spirit of MAGA. It is a feature, not a bug.
Gaetz has always understood Trump’s methods, intentions and vanities. In the 2020 documentary The Swamp, directed by Daniel DiMauro and Morgan Pehme, the young congressman is seen on the phone to the then-president who thanks him effusively for challenging Robert Mueller, the special counsel who led the investigation into alleged Russian interference in the 2016 election. “He’s very happy,” Gaetz says to camera, grinning like a youthful clone of Jack Nicholson at his most devious.
Like Trump, he also sees politics as a branch of the entertainment industry. In his memoir Firebrand: Dispatches from the Front Lines of the Maga Revolution (2020), he writes that “stagecraft is statecraft” – to which end, he is remorseless in his pursuit of political drama and media sensation. As he puts it: “If you aren’t making news, you aren’t governing”.
When Steve Bannon, Trump’s former chief strategist, was in prison, Gaetz guest-hosted his War Room podcast. Last week, restored to the presenter’s chair, Bannon made no attempt to conceal his vindictive glee: “Pray for our enemies. Because we’re going medieval on these people… Matt Gaetz is the fiercest of the fierce warriors.”.
Will he get the chance to “go medieval”? In Washington folklore, a special place of honour is reserved for Eliot Richardson who resigned as attorney general, along with his deputy William Ruckelshaus, after refusing President Nixon’s instruction to fire the Watergate special prosecutor, Archibald Cox: the so-called “Saturday night massacre” of October 20 1973.
Nixon was pardoned before he could be prosecuted. Now, a convicted felon is heading for the White House, and has chosen as attorney general a MAGA caporegime with instincts and priorities that are diametrically opposed to Richardson’s.
This, along with Trump’s other controversial nominations, is not only a sign of how he intends to govern. It is a specific challenge to the Senate – now Republican-controlled – to do his bidding; to see if the grandees of the Upper House, many of whom are actively hostile to Gaetz, dare to obstruct his ascent to one of the most powerful jobs in the land.
A constitutional quirk – dating back to the days when it took lawmakers many days to reach Washington – enables a president to make so-called “recess appointments”. Last Thursday, incoming Senate majority leader John Thune signalled his readiness to explore this possibility, insisting that “we have to have all the options on the table”.
The problem with recess appointments, politically expedient as they may be, is that they can be deployed only as a temporary measure and, according to a much-quoted opinion written in 2014 by the late conservative Supreme Court Justice Antonin Scalia, are of doubtful legality, their “only remaining use [being] the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process”.
Let us say, then, that Gaetz’s appointment is indeed put before the Senate judiciary committee, which will be chaired by the 91-year-old Iowa Republican, Chuck Grassley. Those hearings will be popcorn-worthy political drama, as Gaetz’s insalubrious past is paraded on screens all over the world.
Whatever recommendation the committee makes, a majority of the full Senate is required to approve the appointment. If the upper chamber votes according to party lines – there are 53 Republicans against 47 Democrats – Gaetz will sail through.
But some GOP senators have already made their reservations public. Lisa Murkowski of Alaska said she did not “think it’s a serious nomination for the attorney general”, while Susan Collins of Maine said she was “shocked” by Trump’s choice. Many others are reported to be privately opposed.
In the Before Times, Gaetz’s nomination would already have been withdrawn. Trump’s transition team would have been discreetly informed that his candidate stood no chance of surviving senatorial scrutiny and that the president-elect should think again. This has often happened in the past when a whimsical or ill-judged nomination has run into political trouble.
But Trump is not interested in compromise or retreat. He is perfectly aware that the idea of Gaetz at DoJ horrifies most establishment Republicans – which is one of the principal reasons that he picked him.
Having returned from the political abyss – twice impeached, convicted on 34 felony counts, found liable for sexual assault by jury – he now bestrides the American polity. His question to the Senate is: do you dare defy me? Because if you do: bring it.
Yet again, Trump is testing the very constitutional fabric of the republic. The dignity, credibility and history of the upper chamber absolutely require it to reject Gaetz – and his fellow, spectacularly inappropriate nominees.
But senators also know that they are up against a new kind of president – different even to the Trump of 2017-21, in his sheer ferocity, narcissism and vindictiveness. They understand that disobedience will be punished, by challenges in primary contests arranged by the MAGA machine; by tax investigations; perhaps worse.
Many recall that Mitt Romney, outgoing senator for Utah, and a strong opponent of Trump, has had to spend $5,000 a day on security to protect his family. Beyond the president-elect’s institutional power, there is a shadowy network of militias and fanatics who think nothing of threatening his opponents with violence and harassment. In many minds, the protection of precious institutional norms is being weighed against the protection of life and limb.
The Texas congressman Troy Nehls captured the present mood of his party last Wednesday when he said: “If Donald Trump says ‘jump three feet high and scratch your head’, we all jump three feet high and scratch our heads, and that’s it”.
Having smashed the Democrats into catatonia, Trump is now purging all remaining pockets of resistance in his own party. How the Senate conducts itself in the coming weeks will be the next great test of America’s readiness to submit to autocracy.
