The following is a lightly edited transcript of the November 19 episode of the
Daily Blast podcast. Listen to it here.

Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.

Donald Trump’s early picks for his administration are running into serious opposition. It’s not clear that Matt Gaetz, Robert F. Kennedy Jr., and Pete Hegseth can get confirmed, even with Republican control of the Senate. That’s why it’s suddenly time to ask whether Trump will exercise a nuclear option of sorts: recess appointments. Trump recently issued an angry threat by tweet, putting GOP senators on notice that they should be ready to support this. A conservative lawyer, Ed Whelan, issued a stark warning the other day on one way this might play out with the complicity of House Speaker Mike Johnson, so we thought we’d check in with Sarah Binder of the Brookings Institution, one of the most knowledgeable experts on congressional rules in the country. She’s going to help us walk through what all this could look like. Thanks for coming on, Sarah.

Sarah Binder: Sure. Thanks for having me.

Sargent: To set the table, Trump has picked Matt Gaetz for attorney general, RFK for secretary of Health and Human Services, and Pete Hegseth as defense secretary. These are profoundly unqualified, unfit people who are facing one brutal revelation after another. Sarah, does it appear to you as if Republican senators are eager to vote on these people? Seems like it puts them in a bad spot, no?

Binder: There was not a rush of Senate Republican enthusiasm across the board for these nominees. Granted, Trump had a fire hose of nominations here. Certainly, the Matt Gaetz one raised the most eyebrows and some outright concern by Senate Republicans. One of the issues to keep in mind here: Like we always say, what Trump does is not surprising, but it’s shocking. This is yet another example of that. He has said throughout the campaign [that] he wants vengeance and he wants to put people in place to take down these institutions that he thinks wronged him in term one. These types of appointments—not all, but putting Matt Gaetz and saying, I’m going to send him to the Department of Justice, that is a not surprising but still quite shocking [nomination] given that he’s the subject of an Ethics committee investigation, and that fellow House Republicans themselves don’t seem to approve.

Sargent: Yeah, every one of these picks seems like it’s designed to harm the institution that he’s picking them for. If GOP senators don’t want to vote on these people, that’s where recess appointments come in, right? The Constitution provides for appointments to proceed with the advice-and-consent of the Senate, but gives the president the power to fill vacancies that arise during recesses of the Senate. The Supreme Court has interpreted that pretty broadly, to make a recess almost anything. And Trump recently tweeted that GOP senators should be prepared to support this. Can you walk us through how Trump might pull this trigger now?

Binder: First, as you said, it’s in the Constitution. President has the authority to make what we think of as short-term, temporary appointments. They would last to the end of the current session. If a, let’s say, President Trump, when he’s inaugurated, were to make a recess appointment of RFK Jr. to head HHS—assuming no legal challenges, but we can come back to all that—that appointment would last, if he makes it in sometime in 2025, to the end of 2026 when Congress goes out of session. Short-term appointments; no involvement of the Senate through its advice-and-consent, through a vote on confirmation.

There are a couple of hoops here. The Supreme Court, in 2014, was called on to review the constitutionality of some of President Obama’s appointments. And the Court found that those appointments weren’t constitutional because the Court said that the Senate is able to say what a recess is, and recesses, the Court said, have to be 10 or more days of the Senate out of a session. And then that’s the green light, gate opens, president can make a recess appointment. So if there were to be a period in which the Senate is gone for 10 or more days, then yes, under the Constitution. This is an aggressive use of a recess appointment because, long ago, the recess appointments were not made when you can’t get your person confirmed. Recess appointments were made when the Senate was out of town for months on end, and this was a stop gap.

Sargent: So this would actually require the Senate to agree to be on recess for at least 10 days. To do that, a majority of senators would have to vote for this scenario, right? The idea would be Republican senators will be saying, Well, the president doesn’t want us to vote on his picks for all these cabinet slots, so we will not vote on them and we will voluntarily clear the way so that he can appoint those lunatics without us voting on them. Is that right?

Binder: That’s what would have to happen. The Senate would have to affirmatively vote, a........

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