The selection of former Florida Rep. Matt Gaetz as nominee for attorney general elicited political consternation in the Capitol, and could serve as an early test of Senate Republicans’ allegiance to Donald Trump.

Trump has said repeatedly that he would choose an attorney general based on that person’s fealty to him, not to an institution Trump deeply dislikes given his personal experience with DOJ investigations and the department’s traditional independence in law enforcement matters.

Gaetz resigned from the House of Representatives Wednesday, the same day Trump selected him to oversee the Department of Justice. Gaetz is widely known in Washington as a firebrand, the word he chose to title his podcast. 

The House Ethics Committee had planned to vote Friday on whether to release its report on a lengthy investigation of Gaetz, who has been accused of sex trafficking in a case involving a 17-year-old girl, parties with drug use and illicit payments, the Associated Press reported. 

The House committee released a statement in June about the inquiry, which dates to last year. Gaetz had denied the allegations made against him, the committee said. Gaetz’s immediate departure from the House is likely to end the committee’s work, according to media reports Thursday.

Sen. Dick Durbin, chairman of the Senate Judiciary Committee, asked House investigators to share their report on Gaetz as part of the Senate’s role in reviewing his nomination.

“The sequence and timing of Mr. Gaetz’s resignation from the House raises serious questions about the contents of the House Ethics Committee report,” Durbin, who will lose his majority status in January, said in a statement. “We cannot allow this valuable information from a bipartisan investigation to be hidden from the American people.”

The course of Gaetz’s nomination in the Senate will prove a test for Trump’s second White House tenure. Gaetz was largely responsible for engineering the House’s ouster last year of Rep. Mike McCarthy as Speaker, a move that was condemned by multiple congressional Republicans.

Gaetz earned his law degree from William & Mary Law School in Williamsburg, Va., in 2007. He practiced law at Keefe, Anchors & Gordon in Fort Walton Beach, Fla., for about two years before he was elected in 2010 to the Florida House of Representatives.

“During the Russia Hoax and subsequent partisan impeachment inquiry into President Donald Trump, Matt was a staunch defender of the President and a fierce advocate for his acquittal,” Gaetz posted in the biographical section of his website.

Recess appointments

One of the primary questions surrounding Gaetz’s nomination will be the Senate confirmation process, with many Republicans surprised by the choice.

“I don't think this is a serious nomination for attorney general,” Sen. Lisa Murkowski, a Republican from Alaska, told reporters Wednesday, according to CBS News. “We need to have a serious attorney general.”

Days after his election, Trump urged Senate Republicans to allow recess appointments to install his nominees quickly next year. Such a move could give some of Trump’s nominees – including those who might not gain Senate affirmation – until the next mid-term elections to serve in their roles.

Sen. John Thune had said before Gaetz was announced that he’d entertain the use of recess appointments. “We must act quickly and decisively to get the president’s nominees in place as soon as possible, and all options are on the table to make that happen, including recess appointments,” the South Dakota Republican wrote Sunday on the social media site X. Thune was made majority leader in a vote by Republican senators on Wednesday.

The maneuver is generally allowed when the Senate is out of session for 10 days or longer. The Supreme Court ruled unanimously in NLRB v. Canning that the Senate had authority to restrict the president’s use of recess appointments.

The case concerned a soda bottler’s challenge of three additions to the National Labor Relations Board by President Barack Obama during a three-day Senate recess.

The NLRB decision came with an extensive concurrence by Justice Antonin Scalia, who decried the court’s willingness to let the Senate cede authority to the executive branch. Scalia argued that the recess appointment power should be considered anachronistic, relegated to the extremely minor role it played in executive branch authority for more than 100 years.

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia wrote in his 2014 concurrence, which was joined by Justices John Roberts, Samuel Alito and Clarence Thomas.

“Under the majority’s view of the matter, the President would have had no need ever to seek the Senate’s advice and consent for his appointments: Whenever there was a fair prospect of the Senate’s rejecting his preferred nominee, the President could have appointed that individual unilaterally during the recess, allowed the appointment to expire at the end of the next session, renewed the appointment the following day, and so on ad infinitum,” Scalia wrote.

“It is unthinkable that such an obvious means for the Executive to expand its power would have been overlooked during the ratification debates.”