The former Justice Department official who authored the post-9/11 “torture memos” cautioned that President-elect Donald Trump’s nomination of former Rep. Matt Gaetz to serve as attorney general “would plunge the DOJ into a political and legal quagmire” — and that a recess appointment could even be “unconstitutional.”
“Gaetz would serve the returning president better by withdrawing,” wrote John Yoo, who has served in all three branches of government, in an op-ed published Wednesday and co-written with the legal scholar Robert J. Delahunty.
Yoo served as deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice under President George W. Bush and penned the legal memos that justified torture methods like waterboarding for prisoners detained outside the U.S.
Gaetz, a Trump loyalist with few allies in Congress and a trail of ethics probes, will face a difficult Senate confirmation for the country’s top law enforcement role. The House Ethics Committee is meeting today amid pressure to release its report into him, which Democratic senators and at least one Republican have signaled an interest in seeing before the confirmation.
But Trump has made clear he wants to be able to go around the Senate to appoint his Cabinet officials through a process called recess appointment, which would allow Trump, when he becomes president, to name his nominees to their roles when the Senate is out of session.
That could be unconstitutional, Yoo and Delahunty argued, under the rationale of a 2014 Supreme Court case. “Such an attempt would probably be far more damaging to the administration than merely letting the Senate reject Gaetz ’s nomination,” they wrote.