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By Andrew Stanton
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Some of President-elect Donald Trump's allies are eyeing a tool they hope could help him push through Matt Gaetz's nomination for attorney general—but the law likely wouldn't apply to the former congressman's Cabinet appointment, according to experts who spoke with Newsweek.
Trump last week nominated Gaetz, a staunch conservative and loyalist, to lead the Department of Justice (DOJ), quickly sparking backlash from critics who argue he is not qualified for the position. It is unclear whether there are enough votes for him to be confirmed in the U.S. Senate, but several Republicans have raised doubts on his nomination.
Supporters of Trump have been looking for ways for the president-elect to push through nominees like Gaetz, who may struggle to garner enough Senate support. They have floated whether Trump could use recess appointments for his Cabinet picks. In this scenario, Congress would adjourn for recess, allowing him to skip the Senate confirmation process to appoint his Cabinet nominees.
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Some have also questioned whether Trump could use the Federal Vacancies Reform Act on these nominations. Claims that this law could be used on Gaetz's appointment spread across social media Monday morning and were pushed by several conservative X profiles with large followings. Trump has not said he plans to use the FVRA on his appointments.
But Trump would not be allowed to use the law in Gaetz's appointment anyway, former federal prosecutor Barbara McQuade told Newsweek.
"Trump could not use the FVRA now to appoint Gaetz AG. The FVRA limits appointees to first assistants, people already serving as presidential appointees, and senior career employees who have already served the past 365 days. Gaetz falls into none of those categories," she said.
It could come into play if Trump were to appoint Gaetz using recess appointments, she said.
"In that case, Trump could appoint Gaetz without Senate confirmation. His term would be limited to the duration of the two-year congressional session, but Trump could then leverage the FVRA to reappoint Gaetz for another 210 days," she said.
Former federal prosecutor Neama Rahmani told Newsweek that Trump could appoint an acting attorney general for a period of up to 300 days only if they were the "first assistant" or another senior member in the agency.
"Because Gaetz is not a Department of Justice employee, nor holding another Senate confirmed position, he is not eligible to serve as Acting Attorney General under the Federal Vacancies Reform Act," he said.
Newsweek reached out to Trump's transition team for comment via email on Monday.
The FVRA states that a person may not serve as an acting officer if they did not "serve in the position of first assistant to the office of such officer" or serve "in the position of first assistant to the office of such officer for less than 90 days" in the one-year period preceding the vacancy.
The Government Accountability Office notes that the act only authorizes the president to "direct a presidentially appointed, Senate confirmed officer or a senior agency employee meeting certain criteria to serve as the acting officer."
In a brief published Sunday, Jeff Clark, who served in Trump's DOJ, suggested the law could be used to extend the tenure of those appointed under recess appointments.
"The FVRA process can also be lawfully used to extend recess appointments by up to 210 days and this has occurred in the past without incident," he wrote, noting it was used to extend the appointment of Eugene Scalia when he served as solicitor of labor under President George W. Bush.
Confirmation hearings on Gaetz and Trump's other Cabinet picks will begin next year once he takes office. At the moment, some Senate Republicans have been critical of the picks but have shied away from saying they would definitively vote against them.
Senator Susan Collins, a Maine Republican, told reporters last week that the Gaetz nomination "shocked" her.
Assuming Republican Rich McCormick holds onto his lead in Pennsylvania's Senate race, where Democratic Senator Bob Casey hasn't conceded amid a recount, Republicans are poised to hold a 53-47 majority in the Senate. This means that four GOP senators would need to oppose any of Trump's Cabinet selections to sink the nominee. If three vote against confirmation, Vice President-elect JD Vance would serve as the tiebreaker.
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