Donald Trump likes to test the limits of the system. It has long been the norm that the president appoints men and women with experience, competence, probity and character to his cabinet and staff. Not all presidents have succeeded in this, but it has been a largely consistent aspiration.
In his first term, Trump appointed patriots — men like Gen. John Kelly, Mark Esper, John Bolton and Gen. Jim Mattis — who pushed back against the most extreme and ill-advised of his executive actions. For this, they were punished with a Trumpian “you’re fired.” Trump obviously does not want this to happen again.
This time around, Trump has appointed people to his cabinet whose cardinal virtue appears to be loyalty to him — not to the Constitution. They have no appetite to push back against Trump’s desires to round up immigrants and deport them, arrest his political enemies, use the military against the American people and dismantle what he calls the “deep state” of government.
Journalist Maggie Haberman, who has studied Trump closely for over a decade, says of his most controversial cabinet appointments — such as former Rep. Matt Gaetz, Pete Hegseth, Robert Kennedy Jr. and former Rep. Tulsi Gabbard — that he wants to “shock and overwhelm the system so they can maximize what the system will tolerate.”
Trump likes to beat the system, and the legal system has proved itself inadequate to deal with his crimes, effectively holding him above the law. He learned how to do it from his mentor, the disgraced lawyer Roy Cohn, and then improvised to perfect the approach.
He stirred up a mob violently to assault the Capitol, relished the performance for almost three hours while they did it and took no steps to call them off. He got away with it. That should have disqualified him from holding office, according to the plain language of the Insurrection Clause of the Constitution’s 14th Amendment. He challenged that and won. He stole sensitive classified documents, kept them in an unsafe place in his Mar-a-Lago enclave, showed them to unauthorized persons — and, thanks to an inexperienced and gullible judge, got away with that one too.
Before Trump was president and in the run-up to the 2016 election, he covered up a tryst with a porn actress by falsifying business records to conceal the payments made to buy her silence. That case will either be dismissed or “frozen” for four years despite a jury verdict convicting him on 34 felony counts.
This legal feat is nothing short of miraculous, and historians will analyze the combination of disinformation, luck, prosecutorial incompetence and shrewd lawyering that brought about the result.
Roy Cohn was acquitted after trial on three federal indictments. Trump has escaped the hangman on two impeachments, two federal indictments and two state indictments. The pupil has surpassed the master.
Now, elected by the people and with a Republican Congress, he has a four-year pass from criminal prosecution. He will be free to commit crimes in office, thanks to the Supreme Court, and his satraps, if confirmed by the Senate, will help him accomplish them.
At the cornerstone of Trump’s domestic program is a wholesale roundup of undocumented immigrants followed by mass deportations. This will either break up families or accomplish the deportation of their children, many American citizens by a constitutional birthright that he has said he will not recognize.
Then there is his intention to arrest and prosecute “the enemy within,” which is to say Joe Biden, Hillary Clinton, members of the media, Gen. Mark Milley and others who have not seen things his way. We will have to see what even the ultra-conservative Supreme Court has to say about the latest enemies list. There are few lawyers who would help him do this from the post of attorney general, but Gaetz fits the bill quite neatly.
Gaetz is a shockingly controversial figure with no reputation for probity. When the appointment was announced, Harvard Law Professor Laurence Tribe erupted: “Matt Gaetz as Attorney General? You’re s—ting me!”
Gaetz is the subject of an unreleased House ethics report involving allegations that he attended numerous “sex parties” during his first term in the House and that he had sex with an underage woman. Gaetz resigned from Congress after the announcement of his appointment, and Speaker Mike Johnson promptly acted to bury the report.
Trump may be forgiven for one appointee with a zipper problem, but the appointment of two sets off alarm bells. Hegseth, the Fox News political commentator who is Trump’s nominee for secretary of defense, made a cash payment in 2020 in exchange for a non-disclosure agreement with a woman who accused him of sexual assault. Like Gaetz, Hegseth has denied wrongdoing.
What is more important than the assault charge is that Hegseth is grossly unqualified for the job. He has no executive experience, and the Defense Department is one of the largest employers in the world, with a budget upwards of $850 billion. That Hegseth wants to politicize the military is disqualifying. He claims that it has become dangerously “woke,” and says he will relieve “woke” officers from duty. Trump has said he will stand by his man.
Other questionable appointments present a smorgasbord for Senate rejection. Trump has tried to circumvent the customary vetting process by seeking to make recess appointments. But incoming Republican Senate Majority Leader John Thune has said it won’t be so easy to recess the body for more than the constitutionally necessary 10 days so Trump can make appointments without Senate approval. While Republicans will narrowly control the Senate 53-47, Thune admits that a number of GOP senators will not abdicate their advise and consent function under the Constitution. Meanwhile, even GOP senators are clamoring to see the House ethics report on Gaetz.
Our national security is on the line. We have a Constitution that some justices think gives the president extraordinary powers, but all might agree that the Constitution is not a suicide pact.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
