Political Temper Tantrums and the Constitution

The efforts by Speaker Pelosi and President Trump to leverage their institutional powers raise interesting questions.

The back-and-forth political posturing, characterized quite reasonably by Doug Mataconis and others as “temper tantrums,” are achieving their predicted results. Speaker Pelosi’s disinvitation of President Trump to address Congress on the State of the Union until the shutdown ends has been characterized by her supporters as a sign of her shrewdness and seasoning and by his supporters as an outrageous violation of the norms of our system. Likewise, Trump’s last-minute announcement that Pelosi would not be allowed to use military aircraft for Congressional delegations is being seen as just payback by the President’s supporters and a childish stunt damaging US foreign policy aims by hers.

Yet, both actions hamper the ability of the other party to carry out their Constitutional duties.

Article 2, Section 3 of the Constitution specifies that the President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” As many have noted, while George Washington and John Adams did this in person, Thomas Jefferson delivered it in writing and his successors continued that practice for well over a century until Woodrow Wilson resumed the in-person practice in 1913. While the Constitution therefore clearly does not require that Trump deliver the message in person, let alone in the Capitol building, that has indeed been the custom in the modern era.

Doug and I both took it as a given that Pelosi had the authority to decide whether and when Trump enters the Capitol. Dave Schuler argues otherwise. He points to the succeeding passage of Article 2, Section 3, which states:

he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

Dave argues:

The Congress does not have the authority to invite or disinvite the president to anything. If that is the custom, it is a courtesy not a requirement. It has generally been held that it does not even have the authority to issue a subpoena to the president.

Now I happen to think that the practice of delivering the State of Union message publicly in person should be abandoned. I think it’s a custom unbecoming of a democracy and only began with Woodrow Wilson as a tool for rallying support. But not only does the president not require an invitation from the Congress to deliver it he or she can actually summon both houses of the Congress to deliver it. [emphases added]

To the best of my knowledge, though, this passage has previously only been used to call Congress back into special session to deal with emergencies. It is a practice that has seldom been necessary in recent years, given that Congress essentially never goes out of session anymore. There is, as best I can determine, no case law whatsoever on the matter, indicating that the issue has never been litigated. My go-to resource on these things, FindLaw’s Annotated Constitution, offers no real insights on the passage in question:

This clause, which imposes a duty rather than confers a power, is the formal basis of the President’s legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress. 565 It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of ”usurping” legislative powers, 566 but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators. 567 Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld. 568 The President has frequently summoned both Houses into ”extra” or ”special sessions” for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

It’s obvious that the President has essentially unlimited power to “communicate” with Congress. It’s not obvious that this extends to summoning them to listen to him deliver speeches in their building.

As to the Pelosi-led CODEL to Afghanistan, no specific clause of the Constitution directly empowers, much less mandates, such trips. Still, Congress has all manner of broad duties specified in Article I, Section 8 vis-a-vis our armed forces and the oversight function is at least implied, almost certainly necessary, and unquestionably proper in carrying out said duties.

Does the President, then, have the rightful ability to deny them use of the aircraft from the military Congress has “raised” in accordance with their Constitutional duties in such a way that hampers their carrying out other Constitutional duties? Almost certainly.

While Trump’s rationale for denying the use of the aircraft is even more transparently petty than Pelosi’s absurd “security” pretext for postponing Trump’s speech, the authority to decide who can use them and when is inherent in his Constitutional role as Commander-in-Chief of the armed forces. Furthermore, as an AP piece notes, as a practical matter, these planes are a resource that must be allocated.

CAN HE DO THAT?

Yes, and not just because he’s the commander in chief. The military maintains a fleet of converted passenger jets used by the President, Vice President, Cabinet officials and other officials, from the iconic modified Boeing 747s known as “Air Force One” when the president is on board to smaller, modified Gulfstream jets. They’re based at Joint Base Andrews just outside of Washington.

The assignment of the jets is at the discretion of the White House Military Office and, ultimately, the President.

HOW IS THIS SUPPOSED TO WORK?

There are a limited number of planes available for travel and a large number of potential travelers. The Assistant Secretary of Defense for Legislative Affairs signs off on CODEL requests for military flights. The Office of the Assistant Vice Chief of Staff of the Air Force, Special Air Missions Division, is responsible for matching the request with the appropriate aircraft, prioritizing those from the White House, the Office of the Secretary of Defense and others.

HAS THIS HAPPENED BEFORE?

If no aircraft are available, lawmakers can be accommodated on a cargo aircraft if available or declined travel on a military aircraft all together. In such cases the trip may be canceled or carried out on commercial planes. It is not uncommon for there to be jockeying and lobbying of the White House among members of Congress and even Cabinet secretaries to secure the best aircraft. What is extraordinarily rare is for the president to personally intervene, and to announce in writing that he was denying an official a plane for nonoperational reasons, especially after it normally cleared channels.

One supposes that Congress could, with sufficient consensus, mandate in the National Defense Authorization Act that some number of aircraft be allocated at the discretion of its leadership. But that would require substantially more coherence than is presently in evidence.

In the meantime, however, this back-and-forth grandstanding has not only done the opposite of what Pelosi intended—taken the spotlight off of the shutdown—-but actually makes it even less likely than before that an accommodation is reached soon. Now, in addition to whatever pressures Trump felt to fulfill his campaign promise build a wall, he has been personally humiliated by being denied a platform for a big speech to the country. If he gives in and settles this thing without getting his wall—and he’s not getting his wall—before the 29th, it’ll look like he’s been outmaneuvered by Pelosi. His ego won’t allow that to happen.

FILED UNDER: Congress, Presidency, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Teve says:

    The first tantrum I remember is Newt Gingrich shutting down the government because he was asked to ride in the back of air Force one on time.

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  2. CSK says:

    The New York Times reported yesterday that Mick Mulvaney and a couple of other aides “goaded” Trump into grounding Pelosi.

    That must be the very first thing you realize when you go to work for Trump: How easily he’s manipulated.

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  3. I agree with James’s interpretation of the section of the Constitution that Dave Schuler relies on in his argument. Indeed, I am not aware of any time other than a Declaration of War that the President has used this authority, although I believe Lincoln used it to summon Congress to Washington after he took office in March 1861 to deal with the impending Civil War. Additionally, the provision does not state that the President can compel Congress to appear in Joint Session so he can address them.

    Instead, the custom has always been that Congress invites the President to deliver the SOTU and that the President accepts the invitation, and that this is done in writing. There is nothing in the Constitution that says that the President can force the opposition party to attend an address, for example.

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  4. Dave Schuler says:

    I agree that section of the Constitution is untested.

    An important consideration arises from Article I, Section 7:

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, forthe Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

    I do not know what power the Congress has delegated to the president over public buildings but I am guessing that their administration and control is under the executive’s budget rather than the Congress’s.

    The primary powers of the Congress over the president are the power of the purse and the power to impeach and remove. The powers of the legislative and executive branches are not reciprocal. So, for example, while the Speaker has the authority to engage in fact-finding with respect to other countries she does not have the authority to conduct diplomacy and, indeed, doing so is a direct violation of the law. Is it possible to meet with foreign dignitaries without conducting diplomacy?

  5. Michael Reynolds says:

    In the meantime, however, this back-and-forth grandstanding has not only done the opposite of what Pelosi intended—taken the spotlight off of the shutdown—-but actually makes it even less likely than before that an accommodation is reached soon.

    Baloney. The spotlight is right where it’s been: on the shutdown. It leads every local news broadcast in areas affected. And the blame is landing right where it should, on Trump and McConnell.

    It is not Pelosi’s job to cater to this a-hole’s temper tantrums. Exactly the opposite is true: it is her job to stop Trump and when possible remove him from office as a threat to the country he purports to lead. She owes him nothing. We owe him nothing. He is an illegitimate usurper, a criminal, and a traitor who has sold his shriveled soul to the enemy.

    The shutdown is Trump’s. He said so. He’s not getting his racist wall. He’s getting a prison cell instead, which we will be happy to pay for.

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  6. Not the IT Dept. says:

    Nancy Pelosi was willing to (re-)visit a war zone that Trump is too afraid to visit once because he might get shot. David Frum’s twitter feed has a bunch of photos of Nancy Pelosi visiting dangerous places over the years; this visit is not unheard-of for her.

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  7. Daryl and his brother Darryl says:

    Show of hands…how many of you think it’s a good thing that we have a President who is only being kept out of jail because he is the President?

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  8. Kathy says:

    Speaker Pelosi’s disinvitation of President Trump to address Congress on the State of the Union until the shutdown ends has been characterized by her supporters as a sign of her shrewdness and seasoning and by his supporters as an outrageous violation of the norms of our system.

    One wonders if they see the irony, as it’s unlikely they are doing self-parody.

    Norms are uncodified laws. As such, they apply equally to all. If one side won’t respect them, that’s their prerogative. But they can’t be surprised when the other side follows suit, nor do they have any moral standing to demand adherence to the norms.

    That’s what makes norm-breaking so corrosive. The side that starts it may think they’re clever, as they get a hand up and the other side can’t do anything about it. But then the other side breaks norms on their own, and then just about anything goes.

  9. James Joyner says:

    @Dave Schuler: It’s an interesting question. The powers you quote are Congress’ but, as you say, they’ve likely been delegated to the Executive for actual implementation.

    @Michael Reynolds: I don’t watch much television news. Certainly, I’m seeing a lot of back-and-forth over the shenanigans that might otherwise be about the impact of the shutdown. We agree that Trump is solely responsible, with a huge assist from McConnell and Senate Republicans.

    @Not the IT Dept.: Meh. Trump is a physical coward but the Secret Service doesn’t let any President go into harm’s way intentionally. POTUS and CODEL visits are always to the rear area, not the front lines.

  10. Jen says:

    I’d really like to see in-person SOTU speeches done away with altogether. They are silly and have turned in political, partisan grandstanding. We end up with news coverage of nonsense minutia, like who was invited and what the First Lady was wearing.

    And for all that is good and holy, please, please let’s not suggest that the President can randomly summon Congress. This will turn into a monthly event–Trump loves to order people around AND the spotlight. Suggesting that he has the Constitutional authority to summon them at his command is dangerous. Yes, I can read the words and understand what they mean, but UGH.

    The shutdown is still in the spotlight. Several things are apparent–one, it is deflecting attention away from the Mueller/Cohen/Russia mess, for the most part. Those stories are still being covered, but not top of the newscast. I am a bit concerned this might be perceived as a feature not a bug by Trump. Two, stories are about to get worse. I read yesterday that health insurance coverage is about to run out for these people–can that be confirmed? It sort of makes sense: no pay means no premiums are getting paid. But can a government shutdown really cause a lapse in coverage, if these people are still considered employed?

  11. al Ameda says:

    This is, most assuredly, not a ‘both sides do it’ extravaganza.

    Republicans engineered this situation, McConnell will not force the issue by bring the House-approved ‘open the government’ bills to thew floor of the Senate for a vote, and Trump continues to resist any any deal that does not give him a total victory.

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  12. James Pearce says:

    @James Joyner: I think you were a little warmer with this:

    In the meantime, however, this back-and-forth grandstanding…actually makes it even less likely than before that an accommodation is reached soon.

    Than this:

    We agree that Trump is solely responsible, with a huge assist from McConnell and Senate Republicans.

    Trump is responsible for forcing the crisis, yes, but Democrats in the House have some responsibility too. Accommodation? They do not want any accommodation.

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  13. gVOR08 says:

    Security concerns appear to be, if not compelling, legitimate. Even if you regard this as just tit for tat, you have to admit Pelosi’s play was far more skillful. And if they do, somehow, do a SOTU, I would expect the Democratic response to mention the dedication of Secret Service agents, willing to take a bullet for a President* unwilling to pay them.

    (Someone in a comment noted that furloughed employees’ health insurance may lapse soon. Are agents injured in the line of duty on their own insurance? I would hope there’s some other provision.)

  14. gVOR08 says:

    Security concerns appear to be, if not compelling, legitimate.

    Even if you regard this as just tit for tat, you have to admit Pelosi’s play was far more skillful. And if they do, somehow, do a SOTU, I would expect the Democratic response to mention the dedication of Secret Service agents, willing to take a bullet for a President* unwilling to pay them.

    (Someone in a comment noted that furloughed employees’ health insurance may lapse soon. Are agents injured in the line of duty on their own insurance? I would hope there’s some other provision.)

  15. Michael Reynolds says:

    @James Pearce:

    They do not want any accommodation.

    The House has passed the same bill the Senate passed by voice vote to fund the government and re-open. Pelosi has done her job. Trump refuses to negotiate, indeed stormed out of their last meeting before Pelosi could say three words. This ‘both sides’ thing of yours is b.s. This is not both sides, this is one side, just one.

    And contra your assumption and endless statements that the big alpha male would win, it kind of looks like the tiny woman from San Francisco is winning. You and the rest of the Trumpoids haven’t figured out that we also have a ‘base,’ and ours is just as determined, and it’s bigger.

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  16. Moosebreath says:

    @James Pearce:

    “Democrats in the House have some responsibility too. Accommodation? They do not want any accommodation.”

    Said without apparent irony by the person who has been saying for the last few weeks that the Democrats are not going to get any accommodation and will have to do what Trump wants.

  17. MarkedMan says:

    Please. The “let’s play pretend” act that Trump was delivering his constitutionally mandated state of the Union report was tossed into the trash when his spokesman came right and said that Pelosi’s motivation was to prevent Trump from making his case for the wall to the public. Trump was going to go off for an hour and a half about the dirty darkies invading the border and raping all the white women and giving them diseases, and Pelosi put a stop to it.

    I hope this kills the public State of the Union address once and for all. I haven’t watched one for as long as I can remember. They have devolved into a droning list of what the President wants to do in the coming year, an endless shoutout to special interest groups, and a contest to see who can throw the most shade by inviting various people who have made the news. One thing they are not: an actual description of the state of the country.

  18. James Pearce says:

    @Michael Reynolds:

    Trump refuses to negotiate, indeed stormed out of their last meeting before Pelosi could say three words.

    And what have you done with this information? “I, too, refuse to negotiate.”

    And contra your assumption and endless statements that the big alpha male would win, it kind of looks like the tiny woman from San Francisco is winning.

    The winning at all costs? The constant name calling? The advancement of partisan interests over all others?

    You’re more like Trump than you think.

    @Moosebreath:

    saying for the last few weeks that the Democrats are not going to get any accommodation and will have to do what Trump wants.

    When Trump canceled Pelosi’s CODEL, did you feel accommodated?

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  19. KM says:

    @James Pearce:

    And what have you done with this information? “I, too, refuse to negotiate.”

    OK, I don’t know if anyone’s ever explained this to you but negotiations require more then one side to, you know, negotiate. There is no such thing as one-sided negotiations but rather one side constantly sacrificing something just to get the recalcitrant group to even speak. What you’re talking about is called appeasement:

    verb (used with object), ap·peased, ap·peas·ing.
    to bring to a state of peace, quiet, ease, calm, or contentment; pacify; soothe:
    to appease an angry king.

    to satisfy, allay, or relieve; assuage:
    The fruit appeased his hunger.

    to yield or concede to the belligerent demands of (a nation, group, person, etc.) in a conciliatory effort, sometimes at the expense of justice or other principles.

    You are, in fact, demanding Dem appease Trump simply because you think it’s their duty to do so by being the adults in the room. You think it’s very gansta of him to just go “NO!!!” and expect others to bend the knee. It’s very clear you think the GOP has no obligation to offer accommodations, deals or anything even though they are not longer in full control of all 3 branches. That’s not a negotiation in any ways shape or form so stop pretending the Dems are at fault for calling the GOP and Trump out on their behavior.

  20. Another interested outsider... says:

    @Not the IT Dept.:

    Apparently Pelosi was prepared to travel commercially until the travel plans were leaked…

    https://www.huffingtonpost.com/entry/nancy-pelosi-trip-trump-afghanistan_us_5c41e80ae4b0bfa693c2f8b2@Not the IT Dept.:

  21. Moosebreath says:

    @James Pearce:

    “When Trump canceled Pelosi’s CODEL, did you feel accommodated?”

    If that was Trump trying to accommodate Pelosi, he’s even worse at negotiation than you are at keeping to a single story.

  22. James Joyner says:

    @gVOR08: Our insurance continues unabated. (DoD is funded, so I’m not impacted. But OPM has made it clear that regular health insurance premiums continue to get paid. Dental and vision insurance, on the other hand, only get paid through the first pay period and then the unpaid employees are billed. No idea why, other than separate systems.)

    @James Pearce: Refusing to concede to idiotic demands the President could have made at any time when Republicans controlled both Houses is not blameworthy.

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  23. James Pearce says:

    @KM:

    What you’re talking about is called appeasement

    Appropriating money for border security (or “the wall”) is not “appeasement.”

    @Moosebreath:

    If that was Trump trying to accommodate Pelosi, he’s even worse at negotiation than you are at keeping to a single story.

    This hasn’t been a “negotiation” for some time. It’s a zero sum game.

    @James Joyner:

    Refusing to concede to idiotic demands the President could have made at any time when Republicans controlled both Houses is not blameworthy.

    It is if you shut the government down for a month under the idea that you don’t have to concede anything at all.

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  24. Michael Reynolds says:

    @James Pearce:
    We didn’t shut the government down, you cretin, Trump and McConnell did. A bill has been passed in both houses. We supported it, as did Republicans. McConnell pulled it on orders from Trump. End of fcking story. Republicans won’t do their job, and we can’t make them, so zero percent of the blame is on us, 100% is on Republicans.

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  25. Franklin says:

    @James Pearce: But they *did* appropriate money for border security. Something north of $1.5b as I recall.

  26. Michael Reynolds says:

    The bottom line to everything Pearce ever says is: bitchez must submit to the alpha male. Over and over and over again, that’s his message. Democrats can only submit. Women can only submit. Resistance is futile. Boys will assimilate girls. Followed by, “Hey, I love football!” to remind us that he, himself, is a macho man.

    It’s just pitiful.

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  27. Moosebreath says:

    @James Pearce:

    “This hasn’t been a “negotiation” for some time. It’s a zero sum game.”

    And yet another new position rears its head. And it gets immediately contradicted by the next statement out of your mouth.

    “It is if you shut the government down for a month under the idea that you don’t have to concede anything at all.”

    If it’s a zero sum game, then there would be no possibility of conceding anything to the other side.

    But I’m glad you agree that Trump is to blame for the shutdown.

  28. KM says:

    @James Pearce:

    Appropriating money for border security (or “the wall”) is not “appeasement.”

    Yes it is. Trump literally scrapped an agreed-upon deal at the last minute to make a personal demand. This demand didn’t come from Congress or his party, who could have easily included it in the bill. He’s refusing to do anything until that demand is met, including walking out of meetings when told at the start it’s not on the table (common negotiation tactic of stating hard limits, mind you). So yes, it’s appeasement in every sense of the term that Trump be appeased before work can even begin.

    Just because you don’t like definitions doesn’t mean the word’s being used wrong. You just don’t like the connotations. And sucks to be you, a portion of Trump’s base is waking up to the fact that he’s demanding appeasement at their expense. Oh they might still totally be For the Wall! but they want the government re-opened and that be a separate negotiation. They’re starting to ask why here, why now, and why does it have to be their paycheck taking the hit.

  29. Teve says:

    If it’s a zero sum game, then there would be no possibility of conceding anything to the other side.

    no, if it’s a zero-sum game, you could concede things to the other side. Zero-sum just means that no side can make more than the other loses. The amount of benefit both sides get together doesn’t improve. In a zero-sum game there wouldn’t be any reason to concede anything, though.

    There’s no reason this has to be a zero-sum game though, unless you define Democrats winning as Republicans losing. Cleek’s Law. Which is what the Republicans often do, to the detriment of everyone. But it isn’t necessary.

  30. James Pearce says:

    @Michael Reynolds:

    Republicans won’t do their job, and we can’t make them, so zero percent of the blame is on us, 100% is on Republicans.

    You can say that…but Dems will be blamed anyway.

    (PS. I like basketball, too.) @Franklin:

    But they *did* appropriate money for border security. Something north of $1.5b as I recall.

    “We offered him a fifth of what he asked for and he said no. Deploy the nukes!”

    What master negotiator came up with that plan?

    @Moosebreath:

    If it’s a zero sum game, then there would be no possibility of conceding anything to the other side.

    Yes, that’s exactly what “both sides” have been selling: no possibility of conceding anything to the other side.

    I guess I feel comfortable just blaming Republicans too…

  31. Just nutha ignint cracker says:

    @Jen: YMMV, but I don’t find have the Mueller Investigation more in the middle of the newscast a particularly bad thing. First, there is no guarantee that the report will be made public (and if the GOP holds the Senate, no release may be a guarantee–but I don’t know which house gets to decide on that), second, there is no guarantee that some subsequent President will not impede a Federal trial with a grant of clemency “to avoid a Constitutional crisis,” third, it’s still possible that the issue is a nothing burger (although that gets less likely as events proceed), finally, hyping the investigation may be stoking false hopes that whatever comes of it will “heal the nation”–an unlikely prospect in a nation where 70+% of Republicans (and probably Republican leaning indies) have no problems with what Trump is accused of/did and many of the rest may be too stupid to see the problem.

    You and the rest of the gang may start downvoting this post in 3… 2… 1…

  32. Gustopher says:

    @Just nutha ignint cracker:

    First, there is no guarantee that the report will be made public (and if the GOP holds the Senate, no release may be a guarantee–but I don’t know which house gets to decide on that),

    Remember when someone on Trump’s legal team leaked their list of questions they feared the special council would ask the President? And then they tried to blame the special council’s office?

    There is no way the Meuller Report doesn’t get leaked.

  33. Gustopher says:

    @Just nutha ignint cracker:

    First, there is no guarantee that the report will be made public (and if the GOP holds the Senate, no release may be a guarantee–but I don’t know which house gets to decide on that),

    Remember when someone on Trump’s legal team leaked their list of questions they feared the special council would ask the President? And then they tried to blame the special council’s office?

    There is no way the Meuller Report doesn’t get leaked.

  34. Jen says:

    @Just nutha ignint cracker: Not going to down vote it (I don’t do that very often at all anyway).

    My point was, the shutdown is taking precedence over all other available news–including the death of four Americans. Yes, their deaths have been covered, but there was a time when that would have been the lead story and remained the lead for a couple of days. Not so–it’s already largely been pushed to the back burner already, and they just announced names today.

    So Trump is probably reasonably pleased with this.*

    *Edit: pleased with everything else, including his issues, being relegated to second-tier news.

  35. gVOR08 says:

    @gVOR08: Sorry about the duplicate comment. Please delete.

  36. An Interested Party says:

    Refusing to concede to idiotic demands the President could have made at any time when Republicans controlled both Houses is not blameworthy.

    The most important point made on this entire thread…anyone who can’t see this is delusional and/or acting in bad faith and shouldn’t have any time/effort wasted on him…

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