Gaetz faces rocky road to confirmation as pressure builds for release of House ethics probe

(CNN) — Top Senate Republicans are withholding support for President-elect Donald Trump’s pick of Matt Gaetz to serve as attorney general, while Democrats and at least one prominent GOP senator call for the release of an ethics report into the former congressman.

Sen. John Cornyn, a member of the Senate Judiciary Committee, said he “absolutely” wants to see the House Ethics Committee’s findings on Gaetz. “I think there should not be any limitations on the Senate Judiciary Committee’s investigation, including whatever the House Ethics Committee has generated,” he said.

A long-awaited report from the ethics panel was expected to be released as soon as Friday, according to two sources familiar with the discussions. But Gaetz resigned from Congress after Trump announced his intent to nominate the Florida Republican to be attorney general and it is now uncertain if the information will ever be made public. Gaetz has repeatedly denied any wrongdoing.

Republicans on the ethics panel canceled a scheduled Friday meeting with Democrats that was expected to address the long-awaited report, according to two sources familiar. The Republican members huddled privately Thursday night but declined to comment to reporters as they left.

The Gaetz nomination could set up a major clash between Trump and the new Senate GOP majority as the president-elect has vowed to get his nominees installed.

Sen. John Thune, the incoming Senate majority leader, will face an early test over the controversial nomination and can only afford three defections if Republicans end up with 53 seats.

Trump has pushed to keep all options on the table to greenlight his nominees, including recess appointments, which would bypass the typical Senate confirmation process.

But several GOP senators have expressed reservations over that prospect, creating another potential point of contention with the president-elect.

Sen. James Lankford, a newly elected member of GOP leadership, argued that the use of recess appointments “shows the Senate is not doing their work.”

“That’s a totally different issue. I think the Supreme Court would even step in on those roles,” he said. “The Supreme Court has already spoken to the time period it would take. Quite frankly the Senate should be here, do its work. A recess has to be more than two weeks already, and that would say that Congress is not here already doing its tasks. So we need to be able to be here and do its tasks.”

“I don’t think we should be circumventing the Senate’s responsibilities,” Cornyn told CNN. “But I think it’s premature to be talking about recess appointments right now.” Previously, when he was running for GOP leader, Cornyn had indicated that he was open to using recess appointments to bypass Democratic opposition to Trump’s nominees.

However, Sen. Rick Scott told CNN, “I believe in recess appointments.” Scott had supported recess appointments during his bid for GOP leader, which he lost to Thune.

Scott also indicated his support for Trump’s intended nomination of Gaetz, saying, “I think he’ll do a good job.”

Meanwhile, Senate Judiciary Chairman Dick Durbin, as well as other top Senate Democrats on the committee, Sen. Richard Blumenthal and Sen. Chris Coons, called on the ethics panel to release its findings and raised concerns over Gaetz’s move to resign before the report came out. The ethics panel only has jurisdiction over a member when they are serving in Congress.

Durbin told CNN, “The timing of the resignation and flight with President-elect Donald Trump suggests that he believes that this report is not friendly and favorable, so I want to read the report and find out what the investigation behind it brought out.”

Blumenthal said, “Matt Gaetz has chosen to resign from the House, but he can’t choose to conceal that information.”

Coons added that Trump “is entitled to his nominations, but he’s not entitled to a confirmation of any, literally any, nominee.”

Asked if the Senate should get the House ethics report on Gaetz, Thune said, “I haven’t given that any thought yet. I just know that the nomination isn’t formalized yet, but when it is, we’ll process it in the way we typically do and provide our advise and consent.”

Sen. Chuck Grassley, who is set to reclaim the chair of the committee in charge of vetting Trump’s judicial nominees, would not say if he’d ask for the House Ethics report in the vetting process his committee will do.

“We’ve got a professional staff on Judiciary that will do a full job of vetting and all those questions (about Gaetz) will be answered by the vetting process,” Grassley said.

Top Republicans on the Senate Judiciary Committee, including Sens. Lindsey Graham and Thom Tillis, were careful to keep their options open on the nomination.

Tillis said it is “up to” the ethics committee, and Graham said, “I don’t know what the rules are.” Sen. Josh Hawley added, “That’s really a matter for the House.”

Graham said that he has “voted for a lot of people I didn’t like,” and said, “The process I will follow here is what I’ve done with everybody. Elections have consequences, he chose Matt Gaetz. Matt will come before the committee, and he will be asked hard questions, and we’ll see.”

Tillis said, “I barely know Gaetz. All I know is he likes to pick fights on social media. You’ll have to deal with that in committees. But I don’t know his background.”

Pressed on whether he would support Gaetz’s nomination, Tillis said, “I expect us to treat every nominee coming from an administration, whether they’re Democrat or Republican, with respect, but at the end of the day, you got to have the votes and you better have the resume. That’s how this process works.”

And Cornyn did not rule out backing Gaetz. “We have a process around here for considering presidential nominees, and that’s where all the questions that you have and that we have will be considered under oath,” he told reporters. “So that’s a constitutional responsibility of the Senate, and I intend to play my part as a member of the judiciary committee.”

Controversy over recess appointments

There is very little that Democrats can do if Republicans insist on moving forward with recess appointments. If the two houses of Congress want to put the Senate into a recess long enough for the recess appointment window to open, it just takes a concurrent adjournment resolution of the two chambers.

That can pass with a simple majority in the House and the Senate. And Republicans will have a majority in both.

That doesn’t mean Democrats wouldn’t, or couldn’t, try to fight it. These adjournment resolutions are not debatable but they are amendable so Democrats could try and delay this with a vote-a-rama-style amendment process, but those last only hours, not long enough to block a cabinet pick forever.

The Supreme Court has ruled on questions about recess appointments, which makes the outcome of taking these questions to court uncertain. But, multiple sources warned CNN that it’s too soon to know how Democrats would proceed if Thune really did move ahead with this tactic.

Ultimately, Democrats’ best defense against recess appointments may be Republicans senators themselves. The Senate would have to pass an adjournment resolution with a simple majority and that means, again, Thune couldn’t lose more than a handful of his GOP members.

The key question then would be whether some Republicans would be willing to stand in the way of the executive branch circumventing their advise and consent role.

This story has been updated with additional details.

CNN’s Sarah Ferris, Annie Grayer, Ted Barrett, Morgan Rimmer, Danya Gainor and Emma Newman contributed to this report.

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