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Who Is Advising POTUS or Is He Soloing?

Rexedgar

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There seems to much blow-back surrounding Trump’s new AG pick. Reports say many top people in the WH were caught off-guard. Is this constitutional? WH argues that opinions rendered as a private citizen have no bearing on the AG selection. Many opinions in both camps are citing problems with this pick. What about you Constitution scholars?
 

Captain Adverse

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There seems to much blow-back surrounding Trump’s new AG pick. Reports say many top people in the WH were caught off-guard. Is this constitutional? WH argues that opinions rendered as a private citizen have no bearing on the AG selection. Many opinions in both camps are citing problems with this pick. What about you Constitution scholars?

The President can appoint anyone (other than currently serving elected officials who must resign to accept such office) he wishes to a Cabinet position, subject to the Advise and Consent of the Senate.

However, pending permanent appointment due to the death or removal of a cabinet member temporary appointments are allowed:

Who Runs Departments Before Heads Are Confirmed?...The incoming administration has the power to designate acting heads of the various departments until the confirmation process is complete. Usually those acting secretaries are long-term civil servants, but they can also be lower-level appointees of the old or new administration.
https://www.propublica.org/article/who-runs-departments-before-heads-are-confirmed-090122


Moreover, under The Federal Vacancies Reform Act of 1998 P.L. 105-277:

"(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-

"(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

"(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

"(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346...
https://www.gsa.gov/governmentwide-...view/the-federal-vacancies-reform-act-of-1998

So I believe that this temporary appointment is Constitutional pending permanent appointment via Advise and Consent.
 
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Cordelier

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The President can appoint anyone (other than currently serving elected officials who must resign to accept such office) he wishes to a Cabinet position, subject to the Advise and Consent of the Senate.

However, pending permanent appointment due to the death or removal of a cabinet member temporary appointments are allowed:

https://www.propublica.org/article/who-runs-departments-before-heads-are-confirmed-090122


Moreover, under The Federal Vacancies Reform Act of 1998 P.L. 105-277:

https://www.gsa.gov/governmentwide-...view/the-federal-vacancies-reform-act-of-1998

So I believe that this temporary appointment is Constitutional pending permanent appointment via Advise and Consent.

Nobody is questioning that the appointment of Whitaker is legal... the question is if the Vacancies Reform Act is constitutional. So far as I'm aware, no President for the last 20 years has invoked it to appoint a non-confirmed interim cabinet officer, and so the law has never had standing to be challenged in the courts. Every decision Whitaker makes as interim Attorney General is now going to be examined in the light of the law's constitutionality. That means every investigation and every Federal prosecution that is signed off on by the Acting Attorney General could be potentially overturned if his appointment is challenged and found to be unconstitutional.
 

Captain Adverse

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Nobody is questioning that the appointment of Whitaker is legal... the question is if the Vacancies Reform Act is constitutional. So far as I'm aware, no President for the last 20 years has invoked it to appoint a non-confirmed interim cabinet officer, and so the law has never had standing to be challenged in the courts. Every decision Whitaker makes as interim Attorney General is now going to be examined in the light of the law's constitutionality. That means every investigation and every Federal prosecution that is signed off on by the Acting Attorney General could be potentially overturned if his appointment is challenged and found to be unconstitutional.

The Act was originally designed to prevent President's (like Clinton) from appointing anyone they wanted into "temporary" assignments.

The Constitutional argument is about allowing Congress to bypass the Senate's Advise and Consent powers by limiting the President's Constitutional authority to appoint who he chooses subject to Advice and Consent.

Prior to the Act President's often filled vacancies in Executive Branch jobs with interim/temporary appointees pending selection of a permanent candidate via Advise and Consent. Usually, but not always, the senior deputy under that Office.

The argument seems to be an attempt to undermine Presidential power to run the Executive Branch by preventing any interim/temporary appointments unless they meet some Congressional standard or have approval of Congress, as Congress tried with Stanton back under the Presidency of Andrew Johnson.

The President should have such power IMO, as long as it is truly "temporary," i.e. holding the job pending a swift submission of a candidate for the office and approval of the Senate. Otherwise you hamstring the Executive Branches ability to function properly.
 

Cordelier

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The Act was originally designed to prevent President's (like Clinton) from appointing anyone they wanted into "temporary" assignments.
e
The Constitutional argument is about allowing Congress to bypass the Senate's Advise and Consent powers by limiting the President's Constitutional authority to appoint who he chooses subject to Advice and Consent.

Prior to the Act President's often filled vacancies in Executive Branch jobs with interim/temporary appointees pending selection of a permanent candidate via Advise and Consent. Usually, but not always, the senior deputy under that Office.

The argument seems to be an attempt to undermine Presidential power to run the Executive Branch by preventing any interim/temporary appointments unless they meet some Congressional standard or have approval of Congress, as Congress tried with Stanton back under the Presidency of Andrew Johnson.

The President should have such power IMO, as long as it is truly "temporary," i.e. holding the job pending a swift submission of a candidate for the office and approval of the Senate. Otherwise you hamstring the Executive Branches ability to function properly.

Here's my problem with Whitaker's appointment... the Appointments Clause of the Constitution (Article II, §2, cl. 2) provides that the President:

"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

This indicates that there are two classes of Presidential appointments - inferior officers, over which Congress has the power by law to regulate (such as with the Vacancies Act) and non-inferior, or "principal" officers, who must be confirmed by the Senate. The Attorney General of the United States is undoubtedly such a principal officer, and therefore it is unconstitutional to appoint someone to the office - even on an interim basis - who has not been confirmed by the Senate. Vacancies in the Office of the Attorney General are covered by 28 USC §508. Within this section, the following positions are listed:

1. The Deputy Attorney General (Rod Rosenstein)
2. The Associate Attorney General (currently filled on an interim basis)
3. The Solicitor General (Noel Francisco)
4. Assistant Attorney Generals (Too many to list)

All of these positions require Senate confirmation, and the Senate saw fit to confirm these individuals in the full knowledge that they were prospective Acting Attorney Generals. If the President saw fit to appoint any of these individuals as Acting Attorney General, I would have no problem with it. Similarly, if the President saw fit to give Matthew Whitaker an interim appointment to an inferior office (such as Associate Attorney General), I also would have no problem with it. The problem, as I see it, that as an unconfirmed Justice Department employee, his interim appointment as a principal officer is in sharp violation of the Appointments Clause of the Constitution, and that any decisions he renders as Acting Attorney General have a high potential to be nullified in future court challenges. To give you an example of what I'm talking about, I'll refer you to NLRB v. SW General, Inc., specifically Justice Thomas' concurring opinion in which he ruled that the General Counsel of the NLRB is a "principal officer" of the Government and therefore his interim appointment to the post would have been unconstitutional, even if it did not violate the letter of the Vacancies Act (which it did).
 

ClaraD

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The President can appoint anyone (other than currently serving elected officials who must resign to accept such office) he wishes to a Cabinet position, subject to the Advise and Consent of the Senate.

However, pending permanent appointment due to the death or removal of a cabinet member temporary appointments are allowed:

https://www.propublica.org/article/who-runs-departments-before-heads-are-confirmed-090122


Moreover, under The Federal Vacancies Reform Act of 1998 P.L. 105-277:

https://www.gsa.gov/governmentwide-...view/the-federal-vacancies-reform-act-of-1998

So I believe that this temporary appointment is Constitutional pending permanent appointment via Advise and Consent.

you missed this

the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

This guy wasn't the first assistant....Rosenstein is...and this guy hasn't been approved by Senators.
 

upsideguy

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There seems to much blow-back surrounding Trump’s new AG pick. Reports say many top people in the WH were caught off-guard. Is this constitutional? WH argues that opinions rendered as a private citizen have no bearing on the AG selection. Many opinions in both camps are citing problems with this pick. What about you Constitution scholars?

If you want a get a good sense of how the White House operates under Trump, I suggest Bob Woodward's book "Fear". It is an excellent read. Although I am sure Trump fans will tell you its a hatch-job, it is not (ask these people if they have actually read the book). Woodward did his homework (as is his "MO"). It will make you feel you are sitting at John Kelly's desk.
 

Captain Adverse

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you missed this

the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

This guy wasn't the first assistant....Rosenstein is...and this guy hasn't been approved by Senators.

Actually...YOU missed:

"(2) notwithstanding paragraph (1), the President (and only the President) may direct... {and} (3) notwithstanding paragraph (1), the President (and only the President) may direct...
https://www.gsa.gov/governmentwide-...view/the-federal-vacancies-reform-act-of-1998


Reading is fundamental... :coffeepap:
 

Helix

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Who Is Advising POTUS or Is He Soloing?

his advisory team appears to be a combination of Fox and Friends and the last person he spoke with.
 

Jetboogieman

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He told us he has a very good brain and that he talks to himself about important stuff so I'm assuming he's got this.

 

Mycroft

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Nobody is questioning that the appointment of Whitaker is legal... the question is if the Vacancies Reform Act is constitutional. So far as I'm aware, no President for the last 20 years has invoked it to appoint a non-confirmed interim cabinet officer, and so the law has never had standing to be challenged in the courts. Every decision Whitaker makes as interim Attorney General is now going to be examined in the light of the law's constitutionality. That means every investigation and every Federal prosecution that is signed off on by the Acting Attorney General could be potentially overturned if his appointment is challenged and found to be unconstitutional.

Actually, a LOT of people are questioning whether the appointment of Whitaker is legal...and some are questioning the Vacancies Reform Act.

shrug...

To those people, I say trot out your lawsuit. Let's get it sorted out.

But it doesn't really matter, does it? To most who object to Whitaker, it's all about their fear that he will, somehow, derail Mueller. That's what they care about. They don't want anything to put an end to the Mueller investigations.
 

Captain Adverse

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Here's my problem with Whitaker's appointment... the Appointments Clause of the Constitution (Article II, §2, cl. 2) provides that the President:

"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

This indicates that there are two classes of Presidential appointments - inferior officers, over which Congress has the power by law to regulate (such as with the Vacancies Act) and non-inferior, or "principal" officers, who must be confirmed by the Senate. The Attorney General of the United States is undoubtedly such a principal officer, and therefore it is unconstitutional to appoint someone to the office - even on an interim basis - who has not been confirmed by the Senate. Vacancies in the Office of the Attorney General are covered by 28 USC §508. Within this section, the following positions are listed:

1. The Deputy Attorney General (Rod Rosenstein)
2. The Associate Attorney General (currently filled on an interim basis)
3. The Solicitor General (Noel Francisco)
4. Assistant Attorney Generals (Too many to list)

All of these positions require Senate confirmation, and the Senate saw fit to confirm these individuals in the full knowledge that they were prospective Acting Attorney Generals. If the President saw fit to appoint any of these individuals as Acting Attorney General, I would have no problem with it. Similarly, if the President saw fit to give Matthew Whitaker an interim appointment to an inferior office (such as Associate Attorney General), I also would have no problem with it. The problem, as I see it, that as an unconfirmed Justice Department employee, his interim appointment as a principal officer is in sharp violation of the Appointments Clause of the Constitution, and that any decisions he renders as Acting Attorney General have a high potential to be nullified in future court challenges. To give you an example of what I'm talking about, I'll refer you to NLRB v. SW General, Inc., specifically Justice Thomas' concurring opinion in which he ruled that the General Counsel of the NLRB is a "principal officer" of the Government and therefore his interim appointment to the post would have been unconstitutional, even if it did not violate the letter of the Vacancies Act (which it did).

All that the Section of the Constitution you cite means is that whenever Congress creates an Agency or support section of the Courts (i.e. SCOTUS staff positions and Court police/marshals) it can designate to those Agencies and Courts the power to appoint personnel to those sub-sections/ sub-departments. So this means that the Director of the EPA can appoint section chiefs, asst. Directors etc. for purposes of the normal operation of that Agency.

That was a good idea, otherwise the President would be spending most of his time trying to find appointees for every job title created in every agency and court and have no time to actually run the government he presides over.

However, the Constitution clearly gives the power to appoint the Chief Officer(s) to the President. Thus in the case of a temporary/interim Attorney General that power rests with the President. The Vacancies Act cited clearly allows the President to do exactly what he has done with his temporary appointment of Whitaker.
 
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Risky Thicket

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If you want a get a good sense of how the White House operates under Trump, I suggest Bob Woodward's book "Fear". It is an excellent read. Although I am sure Trump fans will tell you its a hatch-job, it is not (ask these people if they have actually read the book). Woodward did his homework (as is his "MO"). It will make you feel you are sitting at John Kelly's desk.

I am reading it. It is an excellent read. Eye opening and extremely well researched. Those who seek to credibly refute facts presented in the book should be prepared to do a lot of homework and research.

One thing I have gathered from the book is that Trump doesn't actually make informed decisions. In fact, he often does not decide anything. Much of what he does is impulsive. It's the way he has always done it. Everything Trump says or does is subject to change at any time - and for no good reason.

Trump has no organizational skills. None. He is a complete **** as a leader of any kind and apparently always has been.

His business partners, associates and employees have often been shady characters, shysters, criminals (foreign and domestic). Trump is attracted to them and they are attracted to Trump. He has a White House and Cabinet full of much the same. It is what he knows. It is where he is comfortable.

Hell of a book, so far.
 

Cordelier

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Actually, a LOT of people are questioning whether the appointment of Whitaker is legal...and some are questioning the Vacancies Reform Act.

shrug...

To those people, I say trot out your lawsuit. Let's get it sorted out.

But it doesn't really matter, does it? To most who object to Whitaker, it's all about their fear that he will, somehow, derail Mueller. That's what they care about. They don't want anything to put an end to the Mueller investigations.

I don't have standing to file a suit, Mycroft.... but it's worth taking a closer look at who might. Let's pull a plausible scenario out of a hat. Last year there were 948 FISA warrants issued... and what they all had in common is that they were certified by the Attorney General of the United States. Now let's say that the FBI has a suspected terrorist cell in their sights and they request the Acting Attorney General to sign off on their FISA request... which he does while he's having his first cup of morning coffee next Tuesday. The Judge then approves the surveillance and the FBI then obtains evidence which leads to the arrest of the suspected terrorists. If I'm the defense lawyer for one of those suspects, do you know what the first thing I'm going to do is? I'm going to challenge the validity of the FISA warrants that led to my clients arrest by challenging the constitutionality of the Acting Attorney General's appointment. And that's just one example.

Take off the partisan blinders and stop focusing on Mueller for a moment....the Attorney General of the United States is the chief law enforcement officer of the nation. If every action he takes is subsequently subject to question, what effect do you think that could potentially have on Federal law enforcement activities?
 

Cordelier

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All that the Section of the Constitution you cite means is that whenever Congress creates an Agency or support section of the Courts (i.e. SCOTUS staff positions and Court police/marshals) it can designate to those Agencies and Courts the power to appoint personnel to those sub-sections/ sub-departments. So this means that the Director of the EPA can appoint section chiefs, asst. Directors etc. for purposes of the normal operation of that Agency.

That was a good idea, otherwise the President would be spending most of his time trying to find appointees for every job title created in every agency and court and have no time to actually run the government he presides over.

However, the Constitution clearly gives the power to appoint the Chief Officer(s) to the President. Thus in the case of a temporary/interim Attorney General that power rests with the President. The Vacancies Act cited clearly allows the President to do exactly what he has done with his temporary appointment of Whitaker.

I agree that the Constitution clearly gives the power to appoint to the President... but it also clearly limits that power through the Senate's advice and consent. The Senate has exercised that power to confirm a Deputy Attorney General, a Solicitor General, and numerous Assistant Attorney Generals that were nominated by the President with the clear knowledge that each could potentially be called upon to serve as Acting Attorney General in accordance with 28 USC §508. There was no shortage of qualified personnel in the Department of Justice from whom the President could have chosen to serve as Acting Attorney General. Matthew Whitaker, however, was not one of them. If you disagree with that assertion, then I invite you to cite the relevant provision of the Constitution which gives legitimacy to an unconfirmed official being appointed to a Cabinet office.
 

Mycroft

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I don't have standing to file a suit, Mycroft.... but it's worth taking a closer look at who might. Let's pull a plausible scenario out of a hat. Last year there were 948 FISA warrants issued... and what they all had in common is that they were certified by the Attorney General of the United States. Now let's say that the FBI has a suspected terrorist cell in their sights and they request the Acting Attorney General to sign off on their FISA request... which he does while he's having his first cup of morning coffee next Tuesday. The Judge then approves the surveillance and the FBI then obtains evidence which leads to the arrest of the suspected terrorists. If I'm the defense lawyer for one of those suspects, do you know what the first thing I'm going to do is? I'm going to challenge the validity of the FISA warrants that led to my clients arrest by challenging the constitutionality of the Acting Attorney General's appointment. And that's just one example.

Take off the partisan blinders and stop focusing on Mueller for a moment....the Attorney General of the United States is the chief law enforcement officer of the nation. If every action he takes is subsequently subject to question, what effect do you think that could potentially have on Federal law enforcement activities?

As I said..."To those people, I say trot out your lawsuit. Let's get it sorted out."

But...to be clear...I'm not worried about some defense lawyer and his attempts to get his client off. I'm talking about those who think Whitaker shouldn't be named AAG right now.
 

Cordelier

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As I said..."To those people, I say trot out your lawsuit. Let's get it sorted out."

But...to be clear...I'm not worried about some defense lawyer and his attempts to get his client off. I'm talking about those who think Whitaker shouldn't be named AAG right now.

There is no constitutional basis for Whitaker to be named Acting Attorney General. As I've been pointing out to Captain Adverse, all principal officials of the US Government can only be appointed subject to Senate advice and consent. It clearly says so in the Appointments Clause. Moreover, the Constitution draws no distinction between permanent and interim appointments... it has one criteria for such appointments - the individual must have been confirmed by the Senate. The Deputy Attorney General, the Solicitor General and all of the Assistant Attorney Generals in the DOJ were all confirmed by the Senate with the clear knowledge that they could be potentially called upon to serve as Acting Attorney General consistent with 28 USC §508. Matthew Whitaker was not, and therefore is not constitutionally qualified to fill the role. His appointment, and the questionable constitutionality thereof, is therefore a potential threat to the legitimacy of all Federal law enforcement activities under his watch. The Attorney General of the United States must be like Caesar's wife - beyond reproach.... and when he/she is not, all hell is apt to break loose.
 
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Mycroft

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There is no constitutional basis for Whitaker to be named Acting Attorney General. As I've been pointing out to Captain Adverse, all principal officials of the US Government can only be appointed subject to Senate advice and consent. It clearly says so in the Appointments Clause. Moreover, the Constitution draws no distinction between permanent and interim appointments... it has one criteria for such appointments - the individual must have been confirmed by the Senate. The Deputy Attorney General, the Solicitor General and all of the Assistant Attorney Generals in the DOJ were all confirmed by the Senate with the clear knowledge that they could be potentially called upon to serve as Acting Attorney General consistent with 28 USC §508. Matthew Whitaker was not, and therefore is not constitutionally qualified to fill the role. His appointment, and the questionable constitutionality thereof, is therefore a potential threat to the legitimacy of all Federal law enforcement activities under his watch. The Attorney General of the United States must be like Caesar's wife - beyond reproach.... and when he/she is not, all hell is apt to break loose.

shrug...

So get a judge to rule on the issue.

Case closed.
 

Cordelier

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shrug...

So get a judge to rule on the issue.

Case closed.

Why do you even bother to post if you don't want to debate the issue?
 

Mycroft

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Why do you even bother to post if you don't want to debate the issue?

I know. I state my position. You keep harping about yours on and on. Why do I even bother?

See you later.
 

Cordelier

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I know. I state my position. You keep harping about yours on and on. Why do I even bother?

See you later.

That's the way it works Mycroft... you state your position, I state mine and then we debate the relative merits of each argument.

I will say this, though.... if you think the President should be allowed to act however and whenever he likes without regard to the Constitution, then you clearly have a more expansive vision of Executive Power than I do. Presidents are human beings, and as human being they make mistakes. It doesn't matter what party they come from. I came of age during the Reagan Administration... most conservatives I knew back then backed Reagan to the hilt - but I never got the feeling then that it was unconditional support. When he screwed up, they weren't afraid to call him on it. The same went for both of the Bushes. I don't get that feeling anymore with Trump supporters.... it seems to me that he screws up everyday and conservatives just end up praising him all the more for it. He can violate the constitution, he can bend the laws to his will and you all end up praising him all the more for it. I just don't get it. The United States of America is more than some political parlor game... what it stands for is bigger than one man. It's bigger than one ideology or political party. It needs us all contributing to it's continued success. All of us, regardless of our age, our color or our creed.... we ought to be the United States and heed no voice that seeks to divide us - even if it's the President's voice.
 

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It's a matter of both. On the day to day aspects of how to run the country he has no platform or vision and defers to the cabinet and the GOP. On grander matters of policy and performance it's a simple equation: what's good for him personally and makes him feel good at the moment. If he's allowed to do what he wants he'll do that. If his advisers manage to convince him it would be politically damaging, he won't. But it doesn't always work because he clearly respects no opinion other than his own and they don;t always get to him in time. He will always return to what he thinks makes him feel/look good at the time.
 

Rexedgar

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Trump, from the WAPO interview:

"I'm doing deals and I'm not being accommodated by the Fed," Trump told the Post in an interview. "They're making a mistake because I have a gut and my gut tells me more sometimes than anybody else's brain can ever tell me."

"One of the problems that a lot of people like myself, we have very high levels of intelligence, but we're not necessarily such believers," Trump told the Post. "You look at our air and our water, and it's right now at a record clean."



I keep hearing, “watch what he does, not what he says.”

I find that a bit difficult.

I’m thinking SOLO............
 
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