President-elect Donald Trump announced on Nov. 13 that he would nominate Rep. Matt Gaetz (R-Fla.), one of his staunch supporters, to serve as his attorney general.
Gaetz, who has been seen as divisive within his own party, has attracted controversy in recent years.
The House Ethics Committee has been investigating allegations that Gaetz was part of a scheme that led to the sex trafficking of a 17-year-old girl. However, that probe ended with Gaetz’s recent resignation from Congress following Trump’s announcement.
Gaetz has denied all of the allegations and the Department of Justice ended a sex trafficking investigation with no charges against him in 2023.
Some Republican senators, who have to vote to approve presidential cabinet nominations like the attorney general, have expressed concerns about Gaetz since Trump announced the pick.
That led VERIFY reader AJ to ask if Gaetz is guaranteed to get his House seat back if he isn’t confirmed as attorney general.
THE QUESTION
Is Matt Gaetz guaranteed to get his House seat back if he isn’t confirmed as attorney general?
THE SOURCES
- House Speaker Mike Johnson (R-La.) comments during a news conference on Nov. 13
- Article I, Section 2, Clause 4 of the Constitution
- Congressional Research Service (CRS) report published in January 2021
- Florida election law
- Florida Gov. Ron DeSantis’ post on X on Nov. 14, 2024
- Peter Bergerson, Ph.D., professor emeritus of political science at Florida Gulf Coast University
THE ANSWER
No, Gaetz is not guaranteed to get his House seat back if he isn’t confirmed as attorney general.
WHAT WE FOUND
Matt Gaetz is not guaranteed to get his House seat back if the Senate does not confirm him as attorney general.
Gaetz “issued his resignation letter [from Congress] effective immediately,” House Speaker Mike Johnson (R-La.) said during a news conference on Nov. 13, the same day Trump announced Gaetz’s nomination for attorney general. That means Gaetz’s House seat is currently vacant.
But Florida Gov. Ron DeSantis could not automatically appoint Gaetz to his open House seat if he isn’t confirmed as attorney general.
That’s because the Constitution “requires that all House vacancies must be filled by special election,” according to the Congressional Research Service (CRS). Vacancies occur “when an incumbent member dies, resigns or leaves office for any reason before the end of their term,” the CRS says.
Article I, Section 2, Clause 4 of the Constitution says, “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”
In other words, state governors are responsible for ordering these special elections to fill vacancies, the CRS explains.
Florida law also says a special election will be held when House vacancies occur, but it doesn’t provide a timeline for the governor to order one.
After Trump announced Gaetz and two other Florida politicians as his cabinet picks, Gov. DeSantis said he asked the Secretary of State to expedite the special election process.
“I've instructed Secretary of State Cord Byrd to formulate and announce a schedule for the upcoming special elections immediately,” DeSantis said in a Nov. 14 X post.
Gaetz could run again in that special election if he isn’t confirmed as attorney general, Peter Bergerson, Ph.D., professor emeritus of political science professor at Florida Gulf Coast University, told VERIFY.
It’s also possible for DeSantis to appoint Gaetz to fill Marco Rubio’s vacated Senate seat. Trump nominated Rubio to serve as his secretary of state. However, Bergerson said such a move is “very doubtful” since “there is a long line of individuals very interested in the Senate vacancy.”
Trump has floated the idea of using something called “recess appointments” to appoint cabinet members, like Gaetz, more quickly. The Constitution does give him the ability to temporarily bypass the Senate confirmation process and appoint Cabinet members if there’s a vacancy during a congressional recess.
These appointments have sometimes allowed presidents to temporarily appoint people who “probably would not be confirmed by the Senate,” the CRS explains.
Recess appointments can remain in effect without Senate approval for up to two years, but eventually the appointee would need to receive approval. The length of a recess appointment depends on when the appointment was made.
It’s unclear whether the incoming Republican Senate Majority Leader John Thune will agree to a recess long enough to make this happen.
Thune has pledged to keep an “aggressive schedule until [Trump’s] nominees are confirmed,” but he is also not taking recess appointments off the table.
The Associated Press contributed to this report.
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