Trump Is Risking A Constitutional Crisis Over Appointments

WASHINGTON ― Four years after sending a violent mob to the U.S. Capitol to coerce Congress into giving him a second term despite his election loss, Donald Trump is again trying to bully lawmakers, this time by demanding they adjourn and let him bypass their constitutional role if they will not quickly confirm his choices for his administration.

The test cases could be Matt Gaetz, a former congressman being investigated by his colleagues over accusations of having sex with a high school student, and Robert F. Kennedy Jr., a conspiracy theorist and vaccine opponent.

The former and soon-to-be-president wants Gaetz to be attorney general and Kennedy as secretary of health and human services.

“Both the Gaetz appointment and the RFK appointment are sort of as a ‘fuck you’ to America,” said Ty Cobb, a lawyer in Trump’s White House during his first term who, like many others who had worked for Trump, now see him as a threat to democracy. “He’s not trying to show anyone who’s boss…. It’s actually more to see what impediments he has to supremacy.”

Trump said this week that if senators won’t confirm his nominees, then the Senate should get out of his way so he can make “recess appointments” ― effectively telling senators to abdicate one of their core responsibilities under the Constitution.

Trump lawyer Alina Habba said late Thursday that he means what he says. “President Trump doesn’t fold to pressure or make decisions lightly. He stands by the people he trusts, and I’ve seen firsthand that he picks leaders who will deliver for America. The American people voted for change, and that’s exactly what’s coming,” Habba wrote in a social media post.

Looming in the background is a course of action that Trump actually threatened to take in 2020: to adjourn Congress himself by invoking a never-before-used power of the presidency and then install his Cabinet by fiat.

Rep. Jamie Raskin (D-Md.), a former constitutional law professor, said he suspects Trump doesn’t actually want a constitutional crisis ― but also doesn’t care if he triggers one if that’s what it takes to get a loyalist like Gaetz running the Department of Justice.

“He wants what he wants, and he’s not going to allow the Constitution to stand in the way,” Raskin told HuffPost. “But you know, he has happened upon, really, one of the Senate’s core functions.”

Raskin is optimistic that Republican senators, who this week elected Sen. John Thune of South Dakota as their incoming majority leader, will stand up for their institutional prerogatives. Thune has said he wouldn’t discard the filibuster, for example, and offered only a half-hearted endorsement of allowing recess appointments.

“I don’t think, in the final analysis, that members of Congress are going to surrender our essential constitutional functions,” Raskin said.

Former Democratic House Speaker Nancy Pelosi, meanwhile, could see no good outcome if the choice is between installing the likes of Gaetz into the top law enforcement job in the country or bringing on a constitutional crisis.

“I don’t even know what the difference is, what you just described. They both sound like the same thing,” Pelosi said.

For his part, Thune suggested Thursday evening in a Fox News interview that if Trump did not have the votes to get someone like Gaetz through the Senate, then he also did not have the votes he would need to have the chamber agree to an adjournment.

“The same Republicans… that might have a problem voting for somebody under regular order probably also have a problem voting to put the Senate into recess,” Thune said.

George Conway, whose former wife ran Trump’s 2016 campaign and who backed Trump that year but soon became among his most vocal critics, said people are making a mistake if they think Trump is not ready to adjourn Congress on his own to get what he wants.

“He’s being completely nihilistic at this point,” Conway said. “Stop thinking like a rational non-sociopathic human being and you will understand this better.”