President-elect Donald TrumpIt is choice of Matt Gaetz as attorney general comes alongside the story of the Roman Emperor Caligula deciding to appoint his horse, Incitatus, as consul.
United States Members Senate should think about this legend. This doesn’t work simply because Gaetz is completely unqualified for the job. The gesture attributed to Caligula did not just suggest a prank. This was Caligula’s explicit way of expressing his contempt for the Roman Senate. It was a way to prove that he could not only bend senators to his will, but that he could also humiliate them.
So, will the US Senate side with Trump? Senators must respect the president’s discretion in choosing his cabinet members. But the president must also respect the role of advice and consent the Senate plays by confirming these nominees. If the Senate accepts Gaetz, when will it ever be able to say no to Trump?
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The Attorney General is the primary law enforcement official in the country. In its hands rest the safety of the public, the civil rights of the oppressed and the guarantee of democracy. He has the ear of Supreme Court. He is a role model for lawyers, judges and the public.
Gaetz is a most unlikely example. While he escaped federal prosecution for child sex trafficking, the House Ethics Committee reportedly on the verge of publishing a highly critical report over his sexual involvement with minors, his use of illegal drugs, his misuse of campaign funds and his abuse of House privileges. Gaetz only escaped this judgment by abruptly resigning from the House.
Gaetz has very little legal experience and has never been a prosecutor. Merrick Garlandthe current attorney general was a clerk to the United States Supreme Court, a respected federal prosecutor, and chief judge of the United States Court of Appeals for the Washington, D.C. Circuit. His predecessor, William Barr He was actively practicing law, working in the White House, serving as deputy attorney general, and before Trump appointed him, he had served as attorney general under George H. W. Bush. His predecessor, Jeff’s Sessions was a federal prosecutor, Attorney General of Alabama, and United States Senator. And yes, even Bobby Kennedy had worked in the Justice Department and was an assistant counsel to a Senate committee before being appointed attorney general.
There is simply no precedent for this appointment. Even more worrying, it is the realization of the worst fears of those who believed that Trump was unfit to be president because of his lawlessness. Trump did not hide his desire slavish obedience of his appointees. He did not hide his desire to politicize the Ministry of Justice. He remembers bitterly that when he asked the Justice Department to back up his lies about the 2020 election, it refused. When he engages in law-breaking acts during his term in office – and he will – he wants encouragement from the nation’s top law enforcement officer.
Remember, Trump will already have frighteningly expansive powers thanks to the Supreme Court ruling granting broad immunity to presidents prosecution when they commit crimes as part of their “official” actions. The court notably emphasized that the president is absolutely immune from prosecution if he directs the attorney general to investigate or prosecute innocent American citizens. A president with these powers needs an attorney general who controls him, not one who takes the bit in his teeth and indiscriminately tramples on his adversaries.
Trump was not elected to do this. The turning point in the presidential election likely reflects a vote against Democrats – for high prices, increased vigilance and illegal immigration. It would be wrong to think that this critical group intended to condone Trump’s anarchy. Some of them may have wanted to break the status quo. But destruction of our institutions? Trump should not think that those who gave him the majority voted for this.
Trump will bring many disruptions to the federal government without Matt Gaetz against the rule of law at the Ministry of Justice. The Senate should not impose its responsibility on us. He should give this latter-day Incitatus a full hearing. When this is over, it should be abundantly clear that there will be only one fair way to vote for the Justice Department.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association’s Committee on Employee Benefits. He is the author of the new book, The common flaw: unnecessary complexity in the courts and 50 ways to reduce it.
The opinions expressed in this article are those of the author.