Donald Trump, Matt Gaetz, and Caligula's Horse | Opinion
President-elect Donald Trump's choice of Matt Gaetz for attorney general ranks next to the story of Roman Emperor Caligula deciding to nominate his horse, Incitatus, as a consul.
Members of the United States Senate should give this legend some thought. It doesn't work merely because Gaetz is profoundly unqualified for the job. The gesture attributed to Caligula didn't just suggest a prank. It was graphic way for Caligula to express his contempt for the Roman Senate. It was a way of proving that he could not merely bend the Senators to his will, but he could humiliate them as well.
So, will the United States Senate truckle for Trump? Senators should respect a president's discretion in choosing his cabinet members. But the president must also respect the advice and consent role the Senate plays in confirming those nominees. If the Senate accepts Gaetz, when can it ever say no to Trump?
The attorney general is the chief law enforcement figure in the land. In his hands rests the safety of the public, the civil rights of the oppressed, and the guarantee of democracy. He has the ear of the Supreme Court. He is an exemplar to lawyers, to judges, and the public.
Gaetz is a most unlikely exemplar. While he escaped federal prosecution for child sex trafficking, the House Ethics Committee was reportedly on the cusp of releasing a highly critical report about his sexual involvement with minors, his illegal drug use, his misuse of campaign funds, and his abuses of House privileges. Gaetz only escaped that judgment by abruptly resigning from the House.
Gaetz has very little legal experience and has never been a prosecutor. Merrick Garland, the current attorney general was a clerk at the United States Supreme Court, a respected federal prosecutor, and the chief judge of U.S. Court of Appeals for the D.C. Circuit. His predecessor, William Barr actively practiced law, worked in the White House, was deputy attorney general, and, before Trump appointed him, he had served as attorney general under George H.W. Bush. His predecessor, Jeff Sessions was a federal prosecutor, the attorney general of Alabama and a United States senator. And, yes, even Bobby Kennedy had worked in the Justice Department and was assistant counsel to a Senate committee before he was appointed attorney general.
There is simply no precedent for this appointment. More worrying, it is the fulfillment of the worst fears of those who believed Trump was unfit to be president because of his lawlessness. Trump has made no secret of wanting slavish obedience from his appointees. He has made no secret of his desire to politicize the Justice Department. He bitterly remembers that when he demanded that the Justice Department support his lies about the 2020 election, it refused. When he engages in lawlessness during this term of office—and he will—he wants to be cheered on by the chief law enforcement officer of the land.
Remember, Trump will already have chilling, sweeping powers thanks to the Supreme Court decision granting presidents broad immunity from prosecution when they commit crimes in the form of their "official" acts. The court emphasized in particular that the president is absolutely immune from prosecution if he instructs the attorney general to investigate or prosecute innocent American citizens. A president with these powers needs an attorney general who will reign him in, not one who will take the bit between his teeth and indiscriminately trample the president's adversaries.
Trump wasn't elected to do this. The decisive swing in the presidential election likely reflected a vote against the Democrats—for high prices, high wokeness, and illegal immigration. It would be wrong to think that this critical group intended to endorse Trump's lawlessness. Some of them may have wanted disruption of the status quo. But destruction of our institutions? Trump shouldn't think those who gave him a majority voted for that.
Trump will deliver plenty of disruption to the federal government without Matt Gaetz bucking the rule of law at the Justice Department. The Senate shouldn't saddle us with him. It should give this latter-day Incitatus a full hearing. When it's over it should be abundantly clear that there will be only one just way to vote on the Justice Department.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer's own.
