Can Matt Gaetz return to Congress after withdrawing as AG pick?

(WASHINGTON) — Former Florida Rep. Matt Gaetz withdrew his bid to serve as attorney general in the next Trump administration, but the question remains: can he go back to his old job as a member of Congress?

Gaetz, for his part, has only expressed an intent not to take the oath of office for the 119th Congress — which begins on Jan. 3, 2024 and for which Gaetz won reelection. He cannot preemptively resign from a session of Congress that has not yet convened or that he has not taken an oath to serve — that means he is still eligible to serve in the 119th although he cannot under any circumstances withdraw his resignation from the 118th to return to the lame duck session, according to House rules.

The House clerk read a resignation letter from Gaetz on Nov. 14 — after President-elect Donald Trump named his as his attorney general pick — which read: “I hereby resign as a United States representative for Florida’s first congressional district, effective immediately. And I do not intend to take the oath of office for the same office in the 119th Congress to pursue the position of Attorney General in the Trump administration.”

The rules of the House of Representatives mandates that at the beginning of the first session of Congress, members must make their presence known to occupy their seat. The rule reads: “House Rules 2. (a): At the commencement of the first session of each Congress, the Clerk shall call the Members, Delegates and Resident Commissioner to order and proceed to record their presence by States in alphabetical order, either by call of the roll or by use of the electronic voting system.”

If Gaetz or another member does not report to the Capitol to record their presence, that district’s seat will be designated vacant.

The House rules have very few further specifics. ABC News has an inquiry out to the Office of the Clerk for additional guidance.

And Florida’s own election laws seem vague on the issue.

Florida elections official Paul Lux, the Okaloosa County Supervisor of Elections, which is within Gaetz’s district, told ABC News that he anticipates that the primary for the special election to fill Gaetz’s seat once he announced his plans to resign would likely be sometime in February, and the general election would likely be in April — though he stressed nothing is final until the official dates come out of Florida Gov. Ron DeSantis’ office.

DeSantis, for his part, has yet to formally set a date for that special election.

ABC News has reached out to the Division of Elections in the Florida Department of State to inquire whether the language in Gaetz’s letter triggers any sort of automatic vacancy or if there is anything within Florida law that bars him from returning to the 119th Congress. Some Republicans in the district have already declared their intent to run, though one candidate, Joel Rudman, said he would support Gaetz if he wanted to return to Congress.

Gaetz has not publicly said what he plans to do next. His wife Ginger Gaetz posted a photo with him earlier Thursday on the steps of the Capitol with the caption, “The end of an era.”