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Reporter’s Notebook: Why Senate may not see new ‘nuclear option’ any time soon



Reporter's Notebook: Why Senate may not see new 'nuclear option' any time soon

Senate Republicans have been chatting again about efforts to initiate a third “nuclear option” to alter Senate precedent and accelerate the confirmation of some lower-tier nominations. The effort is seemingly gathering steam and starting to command headlines.

Bottom line: this ain’t gonna happen any time soon.

To be clear, there is zero talk about eliminating filibusters for legislation. This is only a discussion about modifying current Senate practice for some nominees. And it’s not even about cutting off filibusters. It’s about shortening the time between a successful vote to end a filibuster and when the Senate votes to confirm a nominee. That’s why it may not even be accurate in portraying this goal as the “nuclear option.” It’s more the equivalent of a “suitcase nuke.”

To wit: Each week after the Senate GOP policy lunch, Sen. Roy Blunt, R-Mo., takes to the microphones alongside Senate Majority Leader Mitch McConnell, R-Ky. Blunt routinely makes a pitch for a change.

Senate rules permit up to 30 hours of debate once the Senate votes to end debate on any nominee. The Republican proposal would maintain the 30-hour window for Supreme Court justices, cabinet officials, high-level administration nominees and Circuit judges. Republicans would like to condense the time to a mere two hours of debate after voting to end a filibuster. This would speed things along considerably. Republicans have leveled criticism at Democrats for forcing senators to burn 30 hours at repeated intervals despite little opposition to some nominees.

The Senate currently requires a simple majority — 51 votes — to overcome a filibuster on any nomination. Senators have no intention of dropping that bar any further; 60 votes are still required to end a filibuster on legislation. The process of ending a filibuster is called “invoking cloture.” The Senate permits up to 30 hours of debate after “invoking cloture” on any issue or nominee. Sometimes the Senate just sits in stasis for hours, “burning” time off the clock “post-cloture.” This is the practice Blunt and others hope to truncate.

If Republicans wish to abbreviate the “post-cloture” time, they need to have at least a simple majority of senators who wish to establish a new precedent. And, they likely have to follow the playbook used for Nuclear Option I in November 2013 on all administration nominees except the Supreme Court and Nuclear Option II for Supreme Court nominees themselves.

Some background: “The Nuclear Option” is an extreme parliamentary maneuver to establish new Senate precedent, not a rules change. The Senate has 44 “standing rules.” However, the book of “precedents” is voluminous. Most of what the Senate does is based on precedent, not standing rules. Moreover, it takes 67 votes to end a filibuster on a rules change. That’s right: not 60 yeas, but 67. However, establishing a new precedent requires a simple majority. That’s a lot easier than rounding up 67 votes.

In November, 2013, Senate Democrats — then in the majority — initiated the nuclear option. They lowered the bar to break a filibuster from 60 yeas to 51 yeas on all executive branch nominees such as federal judges and cabinet secretaries, except the Supreme Court.

It is said that paybacks are hell. In April 2017, Republicans — now in the majority — initiated a nuclear option of their own, dropping the filibuster bar for Supreme Court nominees. That’s how they confirmed Supreme Court Justice Neil Gorsuch, and later, Justice Brett Kavanaugh.

Here’s what established the current “precedent” under which the Senate operates.

Gorsuch faced a filibuster. His nomination had more than 51 yeas for confirmation. But, he lacked 60 to end the filibuster. The Senate voted to close debate on Gorsuch’s nomination (cloture). But that roll call came up short — a failed cloture vote.

This is key and where the “nuclear option” comes in. McConnell obviously supported ending debate on the Gorsuch nomination. But, he switched his vote at the end of the failed cloture vote from yea to nay. The Senate allows senators to “revote” issues if they are on the prevailing side of the issue. In other words, Gorsuch got a simple majority. But the “no” votes prevailed. So, McConnell became a “no,” giving him the option of asking the Senate to “reconsider” the failed vote and take another run at invoking cloture.


Once McConnell switched his vote, he then could move to proceed to the failed cloture vote. That only needed 51 yeas. Then, he made a motion for the Senate to retake the failed cloture vote on Gorsuch. That also needed just a simple majority. So, after those parliamentary gymnastics, the Senate had returned to the failed cloture vote.

It is often said that the Senate has “unlimited debate.” Not really. There are only a few parliamentary cul-de-sacs in which the Senate harnesses debate. The do-over of a failed vote to end debate is one of them. This is where McConnell lit the fuse on Nuclear Option II.

McConnell simply followed the precent established by then-Senate Majority Leader Harry Reid, D-Nev., for Nuclear Option I in 2013. Senate Rule XXII (22) governs cloture in the Senate. So, McConnell raised a point of order that “the vote on cloture under Rule 22 for all nominations to the Supreme Court is by a majority vote.” A “point of order” is where a senator questions whether the Senate is operating under correct procedure. And, in fact, up until then, it had. It took 60 votes to end a filibuster on a Supreme Court nominee. But, what McConnell was asserting was that the Senate wasn’t operating under current procedure.

Senate Parliamentarian Elizabeth MacDonough ruled against McConnell, citing the Senate’s established precedent of 60 votes, not 51, to break a filibuster. McConnell was informed that the “point of order is not sustained.”

But, McConnell then asked the Senate to override the ruling. The Senate then would vote on “Shall the decision of the Chair stand as the judgment of the Senate?”

That initiated another roll-call vote. Republicans voted nay. After all, they didn’t want the “decision of the Chair” based on old Senate precedent to stand. So, if a majority of senators voted against the ruling, the Senate would establish a new precedent. In this instance, Republicans were rooting for the “no” votes to prevail.

In short, that’s the nuclear option.

If Senate Republicans want to prune the time the Senate can burn after stopping a filibuster, they’ll have to follow the template spelled out above.

Therein lies the rub:

Unless someone comes up with a new idea to change Senate precedent, senators must replicate the parliamentary posture it assumed when Reid moved Nuclear Option I in 2013 and when McConnell advanced Nuclear Option II in 2017. And, McConnell would have to have 51 senators willing to go along with his gambit.


The 116th Congress is only two months old. The Senate has no failed cloture votes on a nomination available for a revote at this stage. It’s unclear if and when the Senate could ever witness a failed cloture vote. Republicans may have hoisted themselves by their own petard here. After all, it’s now harder for the Senate to derail a nomination via a filibuster. The current precedent requires just a simple majority to end debate on a nomination. There are now 53 Republicans in the Senate. McConnell, Blunt and other supporters of this “suitcase nuke” tactic would have to find a Trump administration nominee who can’t even clear the meager filibuster bar. That’s a challenge. And, would Senate GOP leaders really want to use this artifice to confirm someone senators don’t want to confirm – just to establish a new precedent? That’s playing with Senate fire.

So, there may be a lot of talk in the coming weeks of a new “nuclear option,” efforts to step up the pace to confirm nominees, killing off the 30-hour clock. It makes good copy and conversation. But, no one should pay it much mind until the Senate fails to end debate on a Trump administration nominee, putting the Senate in the proper parliamentary posture to hit the red button.

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Judges lean toward Trump in hotel ’emoluments’ case




Judges lean toward Trump in hotel 'emoluments' case

(Reuters) – A three-judge U.S. appeals court panel signaled sympathy toward President Donald Trump on Tuesday in his appeal in a Democratic-backed lawsuit that accuses him of violating anti-corruption provisions of the U.S. Constitution with his Washington hotel.

FILE PHOTO: U.S. flags fly over the Trump International Hotel in Washington, U.S., August 3, 2018. REUTERS/Brian Snyder/File Photo

The judges on the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals indicated they may dismiss the lawsuit filed against the Republican president in June 2017 by the Democratic attorneys general of Maryland and the District of Columbia.

Maryland-based U.S. District Judge Peter Messitte last year allowed the lawsuit to proceed, a ruling that Trump appealed to the 4th Circuit. All three of the judges who heard the appeal were appointed by Republican presidents. Trump’s lawyers told the appeals court that Messitte, a Democratic appointee, should have dismissed the case.

The judges raised concerns about Messitte’s findings on the Constitution’s “emoluments” clauses, which prohibit a president from accepting gifts from foreign countries and U.S. states without congressional approval.

Trump opened the Trump International Hotel, just blocks from the White House, shortly before he was elected in 2016. Unlike past presidents, he has retained ownership of numerous business interests, including the hotel, while serving as president.

Since his election, the hotel has become a favored lodging and event space for some foreign and state officials visiting the U.S. capital. The lawsuit alleges that, in failing to disengage from the hotel, Trump has made himself vulnerable to inducements by foreign governments seeking to curry favor, violating the Constitution.

The Trump Organization, the president’s company now run by his sons, has pledged to donate to the U.S. Treasury profits that its hotels make from foreign governments. The company has reported making such donations, while also saying it is “impractical” to require customers representing foreign countries to identify themselves.

In his ruling, Messitte embraced a broad definition of emoluments. Messitte said the provision encompasses any “profit, gain or advantage” received “directly or indirectly” from a foreign government, U.S. state government or federal agency.

The appeals court judges indicated that Messitte’s definition was too broad. Judge Dennis Shedd said Messitte’s definition could deter from public service “anybody who has grown something successfully or has business interests.”

Judge Paul Niemeyer said requiring the president to divest his financial interest in the hotel would not remove the Trump name from it, and foreign officials would still use it.

The attorneys generals said in a joint statement they “will keep fighting to stop the president’s daily violations of our nation’s original anti-corruption laws, because Americans should never have to wonder if the president is working on their behalf or in his personal financial interest.”

Reporting by Jan Wolfe; Editing by Kevin Drawbaugh and Will Dunham

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Democrats face a 2020 choice problem




Democrats face a 2020 choice problem

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On the roster: Democrats face a 2020 choice problem – Beto, Warren call abolish the Electoral College – Report: Deutsche Bank loaned Trump over $2 billion – Keep an eye on Andrew Yang – Better late than never?

Boston Globe: “With the party’s first national debates less than three months away, and the New Hampshire primary less than 11 months away, the big challenge for … [candidates:] how to stand out in such a crowded pack, without doing anything so bold it could backfire. …  A big field without an obvious front-runner could shake out in any number of ways, but history suggests it will most likely end up following one of two paths. The first is the long, (mostly) collegial search for a consensus candidate. That’s what we saw with the relatively large Democratic field in 1988 (11 candidates, plus a few fringe). In that race, the big names either sat out or flamed out early, and the campaign turned into a slow-moving grind… The 2004 campaign started out in similar fashion… The model for the second possible path is a lot more recent: The Republicans in the 2016 campaign. … After all, what an effective primary campaign does is put the candidates through a punishing stress test that toughens and strengthens them, giving everyone confidence that they have identified the strongest possible contender for the general election. … So this is the tightrope that Democratic contenders will have to walk: They’ll need to be unfiltered and distinctive enough to break out of the pack, but not so candid that they get disqualified by the wrath of summary judgment on social media.”

California’s early primary poised to pull 2020 Democrats further left – Fox News: “Unlike past elections, California will hold its primary early in the season – on March 3, 2020. That means the West Coast state, and its famously liberal voters, will hold extra influence this cycle. And while the 2020 candidates still have to connect with supporters in earliest-voting Iowa and New Hampshire – with their more moderate-leaning electorates – California’s combination of an early primary and massive delegate count could motivate the field to run decisively in the progressive lane from the start. … In another sign of California’s emerging influence this cycle, putative front-runner Sen. Bernie Sanders plans to visit the state this week. … Not only is California’s primary now slated for Super Tuesday in March, but early voting is set to start around the time of the Iowa caucuses. With that in mind, Sanders’ visit this week is likely the start of a political gold rush of sorts, as the 2020 candidates look west for electoral gold.”

“The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes.” – Alexander Hamilton, Federalist No. 68

Atlantic: “To be clear, NASA’s ambitious plans for missions to the moon and Mars do not include dogs. … But dogs have been to space. In the 1950s and 1960s, the Soviet Union strapped dogs into capsules and launched them into the sky. … But [NASA] suggests that, unlike the Soviet dogs, a canine on Mars would not be a lab animal, but a valued companion on the journey to a distant land. … Designing a spacesuit for a dog wouldn’t be the hard part… NASA has decades’ worth of experience in manufacturing spacesuits, which are like little spacecraft of their own… The problem is the dog’s experience inside that spacesuit, which would circulate the same air over and over. … The enclosed environment of a spacesuit would be stifling. … There’s also the question of the dog relieving itself. Astronauts wear adult diapers during spacewalks; Mars explorers would have to train their canine companions to become comfortable with a similar arrangement.”

Flag on the play? – Email us at HALFTIMEREPORT@FOXNEWS.COM with your tips, comments or questions.

Trump job performance 
Average approval: 
41 percent
Average disapproval: 53.6 percent
Net Score: -12.6 points
Change from one week ago: down 1.8 points 
[Average includes: CNN: 43% approve – 51% disapprove; Gallup: 39% approve – 57% disapprove; Monmouth University: 44% approve – 52% disapprove; Quinnipiac University: 38% approve – 55% disapprove; IBD: 41% approve – 53% disapprove.]

Fox News: “Another 2020 Democrat has come out against the Electoral College. After addressing students at Penn State University on Tuesday afternoon, Beto O’Rourke lamented Hillary Clinton’s failure to take the White House despite winning the popular vote, adding there is ‘a lot of wisdom’ in calls for change. ‘I think there’s a lot to that. Because you had an election in 2016 where the loser got 3 million more votes than the victor,’ O’Rourke said in a video posted online. … ‘If we really want everyone to vote, to give them every reason to vote, we have to make sure their votes count and go to the candidate of their choosing. So I think there’s a lot of wisdom in that.’ O’Rourke’s support for potentially abolishing the Electoral College came one day after Sen. Elizabeth Warren, D-Mass., pushed a similar proposal. ‘Every vote matters and the way we can make that happen is that we can have national voting, and that means get rid of the Electoral College,’ Warren told an audience at the historically black Jackson State University in Mississippi.”

History shows Dems’ call isn’t all that surprising – WaPo: “Defenders of the electoral college system argue that it mandates visits to states like those above which might otherwise be overlooked. … That debate aside, there’s certainly no reason to be surprised that Warren would call for the electoral college system to be thrown out. There have been four elections since 1860 in which the electoral vote has given the presidency to the candidate who lost the popular vote: 1876, 1888, 2000 and 2016. As Rep. Alexandria Ocasio-Cortez (D-N.Y.) has pointed out, Republicans have won the popular vote only once in her lifetime, but have held the White House for 10 years. In each of those four elections where the popular vote winner lost the electoral vote, the losing candidate was a Democrat.”

Court-packing is another test on the left – The Hill: “Whether or not to expand the Supreme Court is emerging as a key litmus test in the crowded 2020 Democratic presidential primary field. Once dismissed as a fringe idea, reforming the nation’s highest court is gaining traction with a growing number of Democratic 2020 candidates as progressive outside groups and high-profile officials, including former Attorney General Eric Holder, have vaulted the idea into the national spotlight. The courts have emerged as a lightning rod during the Trump administration for the Democratic Party’s resurgent base, which remains deeply bitter over Senate Majority Leader Mitch McConnell’s (R-Ky.) decision to block Merrick Garland, President Obama’s final Supreme Court nominee. Supporters argue that sweeping reforms, including expanding the number of justices, are needed to counteract Trump and McConnell, who they say have ‘packed’ the judicial system with conservative judges — including two Supreme Court justices and a record number of influential appeals court picks.”

NYT: “Mr. [Donald] Trump and Deutsche Bank were deeply entwined, their symbiotic bond born of necessity and ambition on both sides… Then Mr. Trump won the 2016 election, and the German bank shifted into damage-control mode, bracing for an onslaught of public scrutiny, according to several people involved in the internal response. … More than two years later, Mr. Trump’s financial ties with Deutsche Bank are the subject of investigations by two congressional committees and the New York attorney general. Investigators hope to use Deutsche Bank as a window into Mr. Trump’s personal and business finances. Deutsche Bank officials have quietly argued to regulators, lawmakers and journalists that Mr. Trump was not a priority for the bank or its senior leaders and that the lending was the work of a single, obscure division. But interviews with more than 20 current and former Deutsche Bank executives and board members, most of them with direct knowledge of the Trump relationship, contradict the bank’s narrative.”

Politico: “He may not yet be a 2020 presidential candidate, but Fox News is already treating former Starbucks CEO Howard Schultz like one, complete with his own town hall event scheduled for next month. Fox News anchors Bret Baier and Martha MacCallum will host the event, which is scheduled for for April 4 in Kansas City, Missouri, the network announced Tuesday. The town hall event will focus on ‘Schultz’s potential candidacy and the issues he plans to tackle,’ Fox News said. Schultz sparked a wave of criticism from the left earlier this year when he announced he would explore a possible run for president as a centrist, independent candidate. In touting his potential bid, Schultz trashed the Democratic Party, of which he was previously a member, criticizing its lurch to the left in recent years. He argued that he could garner the votes of centrist Democratic and Republican voters unhappy with President Donald Trump but uncomfortable with voting for a liberal Democrat.”

Keep an eye on Andrew Yang – FiveThirtyEight: “[Andrew] Yang is the only 2020 candidate thus far to put a universal income front and center, and his campaign says it’s been key to attracting support. But it’s probably not a strong enough issue to propel Yang to victory on its own. A Gallup poll from 2017 found the concept to be divisive — 48 percent supported a universal basic income, while 52 percent opposed it. … That said, if Yang does indeed make the debate stage, he could succeed in making the issue a part of the national conversation. … We’d expect Yang to get a good deal of support from The Left; most Americans think providing a universal income is a socialist position (though it has conservative adherents as well), and Yang has taken progressive views on a host of other issues. But he may not speak the language of The Left: He’s frank in saying ‘I’m a capitalist,’ and his campaign manager, Zach Graumann, says that the campaign doesn’t subscribe to the ‘capitalist/socialist dichotomy.’ Yang’s strongest constituencies might be Millennials and Hispanic and Asian voters.”

Klobuchar lists accomplishments while facing obstacles – NPR: “Minnesotans like Democratic Sen. Amy Klobuchar. … She’s hoping that strong support in her home state… But on the way, Klobuchar faces some obstacles: her moderate politics (at least, relative to many of her competitors for the nomination) may turn off some Democratic primary voters, as may some of the reports that she has mistreated her staff. … Her route to ‘universal health care’ doesn’t mean putting everyone on a government-administered insurance plan. Rather, she first supports a … bill, which ultimately failed, would have stabilized the Obamacare exchanges. In addition, Klobuchar has said that she wants to allow people to buy into Medicaid via a bill sponsored by Sen. Brian Schatz, D-Hawaii — a ‘public option’ plan. That said, Klobuchar explains that she’s not exactly against Medicare for All.”

Booker swipes at candidates for bragging about marijuana use – WaPo: “Sen. Cory Booker (D-N.J.) appeared to take a swipe at two of his fellow 2020 presidential hopefuls during an MSNBC interview Monday night in which he criticized ‘senators bragging about their pot use.’ Booker did not mention anyone by name during the ‘Hardball’ interview with host Chris Matthews. But he suggested that it was inappropriate for lawmakers to make light of the issue when some in society face legal repercussions for similar actions. ‘We have presidential candidates — senators — bragging about their pot use while there are kids who can’t get a job because they have a nonviolent offense,’ Booker said. In a radio interview last month, Sen. Kamala Harris (D-Calif.) … laughingly acknowledged that she has used marijuana in the past… Sen. Bernie Sanders (I-Vt.), another 2020 candidate, has also recently spoken about having used marijuana, although his comments were not as widely reported as Harris’s. … Booker’s remarks in the MSNBC interview come one day after he made a similar statement during a campaign event in Davenport, Iowa.”

Bernie announces top staffers in wake of shakeup – Fox News: “One month after Sen. Bernie Sanders launched his second straight bid for the Democratic presidential nomination, his campaign is announcing major staffing decisions. The independent senator from Vermont on Tuesday formally announced a slate of national staffers. The move comes just four days after Sanders highlighted that his presidential campaign would be the first in history to unionize. And the announcements come three weeks after a major shakeup at the campaign, with several top advisers from Sanders’ 2016 White House bid heading for the exits. … Regardless of the shakeup, Sanders came out of the gate in strong position. He drew large crowds to his first two rallies in New York City and Chicago and along with former Vice President Joe Biden, who’s likely to announce his bid next month, is near the top of the public opinion polls.”

Give this a read: ‘The politics of Beto and Amy O’Rourke’s marriage’ – WaPo: “Then, there’s Amy and Beto. They are at once the most modern and most conventional of the families running for president in 2020. They are pioneers of social media, broadcasting much of their lives in real time; affluent, white and traditional — the political equivalent of ‘The Truman Show.’ They captured the hearts and minds of the left in their 2018 run for the Senate, but now, Beto won’t call himself a progressive. Amy, before putting her career on the back burner for her husband, ran a charter school. … In truth, even though Amy is fully on board, this isn’t the life she would have chosen. She recently finished Michelle Obama’s ‘Becoming.’ Like Michelle, Amy says of being first lady, ‘I wouldn’t put it on the list of things that I’ve ever aspired to.’”

Trump 2020 looks like another Facebook election Axios

Nadler ‘encouraged’ by documents provided in Trump obstruction probePolitico

Pergram: ‘Border wall standoff could lead to another government shutdown this fall’Fox News

SupCo rules in favor of Trump’s immigration detentionReuters

Cornyn prepares for 2020 fight Fort Worth Star-Telegram

Former House Speaker Paul Ryan joins board of new Fox Corp.Bloomberg

Trump admin proposes news limits on student loansAP

“I broke up with sleep last night and I’m dating coffee this morning. . . I appreciate her warmth and stimulating company.” – A series of old tweets from Sen. Cory Booker, D-N.J., from over the years have resurfaced about his on and off again relationship with sleep.

Share your color commentary: Email us at HALFTIMEREPORT@FOXNEWS.COM and please make sure to include your name and hometown.

Fox News: “A New Jersey man has finally returned a school library book he checked out 53 years ago. Harry Krame, of Fair Lawn, said he recently discovered ‘The Family Book Of Verse’ by Lewis Gannet while cleaning the basement of his home. ‘When he asked my name I told him I can’t give it to him because I was in the witness protection program,’ Krame, 65, told WCBS-TV. ‘I took it out to read and never brought it back.’ Krame checked out the novel when he was 13 years old in 1966. When he realized he still had the book all these years later, he said he felt guilty for ‘a few seconds. … It was like, I still have (it), sorry about that.’ Dominick Tarquinio, the vice principal of Memorial Middle School, told the news outlet he was shocked when a former student returned his late book. He said that at today’s rate, Krame would owe around $2,000 in late fees. However, he said: ‘We’re not looking to collect.’”

“Regarding terrorism, we’ve developed a fairly reasonable balance. But it took time. With Ebola, we don’t have time. Viruses don’t wait. The sooner we reset the balance — the sooner we get serious — the safer we will be.” – Charles Krauthammer (1950-2018) writing for the Washington Post on Oct. 16, 2014.

Brianna McClelland contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.

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Someone in State Department likely involved in bid to take down Trump: Herridge




Someone in State Department likely involved in bid to take down Trump: Herridge

Fox News’ chief intelligence correspondent Catherine Herridge believes a claim by Republican North Carolina Rep. Mark Meadows of a coordinated effort to hurt President Trump — including “sitting ambassadors,” the FBI and the Department of Justice — also likely involves someone in the State Department.

“I think the congressman is referring to someone within the State Department based on my reporting,” Herridge said Tuesday on Fox News Radio’s “Brian Kilmeade Show.”  “Because we have a pretty good sense now from these transcripts that have been revealed and then also records that were unsealed at the end last week in the defamation suit with BuzzFeed that … the government network was being pulsed with the dossier in the final months of the campaign and then during the transition period.  And that it was coming at the FBI and Justice Department through many different lanes or many different avenues, and the objective was to lend it credibility.”


Herridge added, “My recollection is there is a tie into the State Department, so we’ll see exactly who Congressman Meadows is referring to … but that is where I think it’s going.”

The deposition was released last week due to a lawsuit over BuzzFeed and their publication of the much-debated Christopher Steele dossier.

It was also revealed that Steele used a now deactivated “user-generated” website called “iReport” by CNN to gather much of the dossier information.

Meadows appeared on “Hannity” Monday, when he made the accusation that there was a “coordinated effort” aimed at the president.

“It’s additional information that is coming out that will show not only was there no collusion, but there was a coordinated effort to take this president down. We talk about the ‘Deep State.’ There are players now, even ambassadors, that are sitting ambassadors that were involved in part of this with the FBI-DOJ,” Meadows told Hannity

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