So, Matt Gaetz Won’t Be AG. Can He Go Back To Congress?

Former Florida GOP Rep. Matt Gaetzwithdrew his nomination as attorney general on Thursday as new allegations about sexual relationships he had with a minor emerged. Gaetz had already announced his immediate resignation from Congress, but it’s possible he could take his seat in the next Congress in January.

How would this work? First, Gaetz would have to rescind his intention to not take the seat that he won in November in the Congress that begins in January 2025. He officially resigned from Congress on Nov. 13 when he submitted a letter declaring his resignation “effective immediately.” Adding, “I do not intend to take the oath of office for the same office in the 119th Congress.”

There is no existing precedent for a member of Congress resigning from one session of Congress, but then taking the same seat they were elected to in the next. That makes this a bit murky — and there are competinglegal analyses for the situation.

If Gaetz claimed that he now intends to take his seat in January, someone could sue to prevent him from doing so. That could be the Florida Secretary of State, who could claim that his resignation was official and the special election to fill his seat was already under way. It’s unclear how courts would rule in such a situation because it’s unprecedented.

Alternatively, the House could refuse to seat him. But the Supreme Court ruled in the 1969 case of Powell v. McCormack that Congress cannot use criteria outside of the Constitution’s qualifications for office to refuse to seat a duly elected member. Again, courts have not adjudicated the question of a member rescinding their intention to not take their seat. If this were to happen, Gaetz could theoretically sue to claim his seat.

The other option would be to let Gaetz take his seat and then expel him. Expulsion, however, requires a two-thirds vote of the House and is a step rarely taken. Only six members have ever been expelled from the House, with three of those expelled for siding with the Confederacy in the Civil War.

This could all be moot if Gaetz decides not to go back on his resignation. And he has every incentive to do that. Among the aftereffects of his resignation is the fact it stopped the release of a report by the House Ethics Committee detailing allegations that he had sex with a 17-year old girl. Gaetz has denied the allegations. The committee voted against releasing the report on Wednesday since he was no longer a member of Congress. Were he to take his seat, the ethics investigation would remain live and the report would likely be released.

The Florida Secretary of State’s office has already been tasked with setting a date for a special election to fill Gaetz’s seat. If he honors his resignation decision, that special election will go forward.

So far, Gaetz has given no indication on his political future after pulling his attorney general nomination.