Tangle - Trump pushes for recess appointments.
Episode Date: November 14, 2024On Sunday, President-elect Donald Trump tweeted that any Republican senator hoping to obtain the position of majority leader would have to approve of recess appointments for his cabinet nomi...nees. Typically, nominees for Cabinet positions, executive offices, or high-level ambassadorships undergo a hearing where they are asked questions by members of the Senate who then vote on whether to confirm an appointee. Only a simple majority is needed for confirmation. Ad-free podcasts are here!Many listeners have been asking for an ad-free version of this podcast that they could subscribe to — and we finally launched it. You can go to tanglemedia.supercast.com to sign up!You can read today's podcast here, our “Under the Radar” story here and today’s “Have a nice day” story here.We are hiring!In the last month or so, the rapid growth of our readership has accelerated a planned expansion of our team. We are hiring for two positions:1) Customer service lead. We are looking for a highly organized, dedicated professional to help us provide the best possible service to our readers and listeners that we can. This is a crucial role to fill, and we'll be hiring as soon as possible. Job listing here.2) Assistant to the editor. We are also looking for a highly organized individual dedicated to Tangle's mission who has a passion for multimedia and politics. This person will be working directly with Tangle's executive editor Isaac Saul out of Tangle HQ in Philadelphia, with a start date in February-March. Job listing here.Check out Episode 8 of our podcast series, The Undecideds. Please give us a 5-star rating and leave a comment!Take the survey: What’s your opinion on recess appointments? Let us know!You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here. Our podcast is written by Isaac Saul and edited and engineered by Jon Lall. Music for the podcast was produced by Diet 75. Our newsletter is edited by Managing Editor Ari Weitzman, Will Kaback, Bailey Saul, Sean Brady, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo. Hosted on Acast. See acast.com/privacy for more information.
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From executive producer Isaac Saul,
this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place
we get views from across the political spectrum, some independent thinking, and a little bit
of my take.
I'm your host, Isaac Saul, and on today's episode, we're going to be talking about recess appointments and some of Donald Trump's most recent nominees for big cabinet positions,
including I think three of the most controversial people pretty unambiguously that he has nominated
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and I'll be back for my take.
Thanks Isaac and welcome everybody here are your quick hits for today.
First up, President Joe Biden hosted President-elect Trump at the White House, where the two discussed
the presidential transition of power, as well as the wars in Ukraine and Gaza.
Number two, CIA official Asif Rahman was arrested in Cambodia on charges of violating the Espionage
Act for allegedly leaking classified documents about Israel's preparations for a retaliatory strike on Iran.
Number 3.
The 12-month inflation rate was 2.6% in October, up 0.2% from the month prior.
Housing and food prices drove the increase, according to the Bureau of Labor Statistics.
Number 4.
Special Counsel Jack Smith and his team planned to resign before President-elect Trump's
inauguration in January. And number five, the Pennsylvania Senate race between Senator Bob Casey and Republican
Dave McCormick will go to an automatic recount. Counties must finish the recount by November 26th.
President-elect Trump says he wants the next Senate Republican leader, the majority leader, to allow what we've discussed earlier called recess appointments.
This would allow the White House to temporarily bypass confirmation votes for high-level appointments
when the Senate is out of session.
And in a post on social media, Trump said, quote, sometimes the votes can take two years
or more.
This is what they did four years ago ago and we cannot let it happen again.
We need positions filled immediately.
Recess appointment power is enshrined in our constitution.
Typically, the constitution requires that the United States Senate confirm high level
federal officials, cabinet officials, federal judges and the like.
But it also says that when the Senate is in recess, basically when the senators are not
in session, when they've all dispersed to their home states, the president can appoint officials through a recess appointment,
which does not require Senate confirmation.
So historically, this has been something that presidents will use typically when they suspect
that the Senate will not confirm the nominee they'd like to put in the job.
On Sunday, President-elect Donald Trump tweeted that any Republican senator hoping to obtain the
position of majority leader would have to approve of recess appointments for his cabinet nominees.
Typically, nominees for cabinet positions, executive offices, or high-level ambassadorship
undergo a hearing where they are asked questions by members of the Senate who then vote on whether
to confirm an appointee. Only a simple majority is needed for confirmation. However, Article 2 of the Constitution allows for recess appointments,
which were designed to prevent vacancies in the event the Senate is adjourned for an extended
time. Presidents of both parties have used recess appointments to avoid confirmation
hearings in the past, but the practice was widely curtailed after the Supreme Court's
2014 decision undoing President Obama's recess appointments to the National Labor Relations Board.
Part of the court's decision was that Congress had to be out of session for at least 10 days
for a recess appointment to take place, and Senate leaders have recently used three-day
recesses with pro forma sessions to block the process from taking place.
This week, President-elect Donald Trump has tapped a number of future cabinet members
and high-level executive staff for positions within his incoming administration.
However, several of Trump's nominees—Governor Kristi Noem for Secretary of Department of
Homeland Security, Representative Matt Gaetz for Attorney General, former Representative
Tulsi Gabbard for Director of National Intelligence, and veteran and former Fox News anchor Pete
Hagsteth for Secretary of the Department of Defense,
are highly controversial and likely to undergo a difficult confirmation process.
The new Congress will convene on January 3, 2025, and Trump will formally nominate his
selections after he is sworn in on January 20. At that time, the Senate or House leader may call
a recess. However, a recess of three days or more must be approved by a majority in each chamber.
Therefore, in order to pass recess appointments,
Trump needs a Senate leader willing to call a recess
and both a Senate and House that will pass the request.
Republicans will control both chambers in 2025.
On Wednesday, Senator John Thune was elected
Senate Majority Leader over Senators John Cornyn
and Rick Scott in a secret ballot election
among Senate Republicans.
Trump surrogates like Elon Musk, Charlie Kirk, and Vivek Ramaswamy had pushed for Scott,
but he was eliminated in the first round of voting.
Thune has stated that the Senate must quickly and decisively confirm the President-elect's
nominees, adding all options are on the table to make that happen, including recess appointments.
Today, we'll get into what the left and the right are saying about the recess appointments,
and then Isaac's take.
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All right, first up, let's start with what the left is saying. The left opposes Trump's push for recess appointments, arguing the move would be an
abdication of the Senate's oversight duties.
Some suggest that Trump is using recess appointments to test senators' loyalty.
Others say the move highlights Trump's authoritarian impulses.
The Washington Post editorial board said,
Senate Republicans should not surrender to Trump on appointments.
Mr. Trump wants opportunities to circumvent the Senate confirmation process even though
Republicans will have a clear majority of seats, at least 52, according to the latest count,
signaling his intention to elevate appointees whom even some Republicans cannot tolerate.
Senators should refuse to squander their constitutional prerogatives in this way," the board wrote.
In general, presidents should be able to assemble the executive branch teams they want.
The bar for opposing a cabinet nominee should be high, but it should not be insurmountable.
Mr. Trump tried to skirt the Senate confirmation process during his first term,
when his party held a narrower majority.
He routinely abused the Federal Vacancies Reform Act to install acting secretaries with dubious legal authority,
the board said.
Senators should fight his efforts to evade their scrutiny
in his second term.
Regardless of what the next Senate GOP leader
has promised Mr. Trump,
there will be ample opportunities for objections.
Republicans, as well as Democrats, should take them.
The Economist asked,
why is Donald Trump keen to use recess appointments?
Mr. Trump has previously threatened to oblige the Senate to go into recess.
The Constitution requires each House to seek the other's permission to adjourn for more
than three days.
In 2020, Democratic obstruction compelled the Senate to stay in session so as to prevent
Mr. Trump from making recess appointments.
Frustrated, he talked about exercising a never-before-used
constitutional power that allows a president to force Congress to adjourn. He did not go
through with it, and the maneuver might not have worked if he had tried, the authors wrote.
This time, too, it's not clear how serious Mr. Trump is about using recess appointments.
Mr. Trump may just be unwilling to wait for confirmation hearings to happen.
He may also worry that some Republicans might refuse to confirm some of his appointees,
the authors added.
The Senate's responsibility to confirm appointees is supposed to be a check on presidential
power.
By asking would-be leaders of the chamber to forego that responsibility in some circumstances,
Mr. Trump may be indicating that he expects unquestioning loyalty.
In the New York Times, Charlie Savage framed Trump's push as an early test of a radical second term.
The demand to weaken checks and balances and take for himself some of the legislative branch's usual power
underscored Mr. Trump's authoritarian impulses. While there is no obvious legal obstacle to Mr. Trump's request,
it would be an extraordinary violation of constitutional norms, Savage wrote.
There is no historical precedent for a deliberate and wholesale abandonment by the Senate of
its function of deciding whether to confirm or reject the President's choices to bestow
with government power.
While previous Presidents have occasionally made some recess appointments, none has ever
tried to systematically bypass Senate approval to unilaterally fill their administrations.
It remains to be seen whether Republican Senators, fearful of Mr. Trump's ability to end their
careers by backing a primary challenger, will give up one of the most important powers and
prerogatives of their office.
Alright, that is it for what the left is saying, which brings us to what the right is saying.
The right is mixed on the proposal, with many expressing hesitancy about the Senate voluntarily
handing its power to the president.
Some say recess appointments are a smart way to circumvent democratic obstructionism.
Others note that relying on recess appointments could delay Trump's agenda in different ways.
National Review's editors argued Donald Trump doesn't need
recess appointments. One can comprehend the president-elect's desire to hit the ground
running, especially given that in our era of sprawling government, there are indeed too many
positions that require confirmation. Nevertheless, his request is wholly inappropriate within the
American system of government and ought to be rejected with prejudice, the editor said.
The core purpose of our unique system of separated powers is to reduce the authority
that any one person or faction enjoys with the federal apparatus.'
Were a prospective Senate-majority leader devout to help Trump get around this arrangement,
he would not only be undermining that principle, but doing so by abdicating his own oath of
office and weakening the institution that he had been selected to protect.'"
As president, Trump controls the executive branch.
He has no power over the legislature.
Republicans understood this in 2012, when they successfully sued to prevent Barack Obama
from making illegal recess appointments to the National Labor Relations Board.
They understood it in 2016, when they successfully blocked Obama from appointing Merrick Garland
to the Supreme Court.
They understood it in 2021, when they blocked President Biden from nominating Neera Tanden,
David Chipman, and others to the executive branch.
Nothing has changed since then, other than that the shoe, for now, is on the other foot.
In the Wall Street Journal, Don McGahn wrote about why Trump needs recess appointments.
During his first term, President Trump struggled to staff senior government posts.
Some 1,200 jobs require Senate confirmation.
The upper chamber moved extraordinarily slowly in processing nominations, which routinely
took several months or even years.
The average length of a Senate confirmation process during Mr. Trump's first term was
more than twice as long as under President Reagan.
As a result, much of the federal government wasn't staffed by the president's nominees, McGahn said.
Without recess appointments, it is doubtful President Trump can fulfill his constitutional
mandate to ensure that the executive branch officials are supporting the policies the
people voted for. After his recent and decisive election victory, he asked the Senate to return
to its long-standing tradition of taking recesses long enough for the president to make some
recess appointments.
This is a good idea," McGann wrote.
Returning to the long-standing tradition of recess appointments would ensure that every
elected president is able to staff the government with senior officials who share his policy
vision.
It would reduce the extraordinary time demands on the Senate to process presidential nominees.
It would prevent senators from gratuitously delaying nominations.
And it would help ensure
that the executive branch implements the policies the American people voted for.
In The Washington Examiner, Ramsey Touchbury suggested Trump's demand for Senate recess
appointments could undercut his agenda.
President-elect Donald Trump's bid to shake up how the Senate confirms his cabinet and
other appointments has more potential to weaken his agenda rather than kickstart it, Touchbury
said. Being off of work for extended periods could undermine Congressional Republicans' stated
objective of passing an ambitious legislative agenda within the first 100 days of Trump's
second term presidency and the political message they are ready to get to work for the country.
Democrats could put up a fight to recessing, which only needs a simple majority, by flooding a recess
resolution with endless amendments and debate.
Republicans would need 60 votes to put an end to it and support from at least seven
Democrats, Touchbury wrote.
Perhaps most importantly, Senate Republicans already plan to jumpstart the transition process
when they take control on January 3, so they are ready to confirm nominees when Trump takes
office on January 20.
This includes holding confirmation hearings and vetting individuals in the weeks between
the new Congress and Trump entering the White House, further undercutting the argument for
recess appointments.
All right, let's head over to Isaac for his take.
All right, that is it for what the left and the right are saying, which brings us to my
take.
So 24 hours ago, my take on this issue looks something like this.
Trump's demand for the Senate majority leader to support recess appointments is probably
just a test of loyalty and not something that should prompt genuine alarm about the separation
of powers between the executive and legislative branches.
But after the past few days' reports about who Trump nominated for key posts, I see his
call for recess appointments in a different light.
I'm going to address a few overarching points before getting into the specifics of Trump's
strategy or lack of strategy.
First, Democrats really don't have much leverage here.
I understand the Trump team's concerns that the minority party could delay the important work of filling cabinet
and other key positions in a timely manner through procedural obstructions. Senate Democrats
already seem to be gearing up for a disrupted every turn type of strategy, so much so that
some party members are questioning whether five term Senator Dick Durbin from Illinois
has enough energy to
lead the fight as the top Democrat on the Judiciary Committee. In that context, I get why Trump would
want to move urgently. But remember, while Democrats can delay, there's ultimately nothing
they can do to stop Trump from getting his picks confirmed. As long as Republicans are behind him.
During Trump's first term, when Republicans started with 52 Senate seats, his entire cabinet
was confirmed within the first 100 days. That's faster than Obama's was by one day. While Democrats
did obstruct the process for some nominees, many others were held up simply because they needed to
sort out their business interests with the Office of Government Ethics. Second, I think writers on
the right have made an even stronger case against recess appointments than those on the left.
Most left-leaning commentators frame Trump's strategy as following authoritarian impulses
or as a dangerous power grab.
This is part of a trend in how the left criticizes Trump over using alarmist terms in ways that
devalue them.
It's hard to see leveraging a process that is outlined in the Constitution that other
presidents before Trump have used regularly as an authoritarian takeover.
Instead, I find myself agreeing with writers like National Review's editors, The Dispatch's
Chris Stierwalt and Hot Air's Ed Morrissey.
Trump shouldn't need recess appointments with 53 Republican-held seats in the Senate.
Trump should be able to staff the federal government with the people he thinks are best
for the job. That's just an extension of the democratic will of the
people who elected him. And I'd say the same thing about any president. However, recess
appointments are a way for a president to avoid a fundamental check on executive power.
And in this case, Trump is trying to avoid a check by his own party, which is alarming.
When we wrote about Trump's initial cabinet picks on Tuesday, I praised the president-elect for selecting respected, competent people like
Suzy Wiles, Lee Zeldin, and Marco Rubio for key roles. Even picks like Stephen
Miller and Tom Homan, who I disagree with on approaches to immigration policy, are
perfectly capable of enacting the government agenda Trump campaigned on.
Of these picks, I suspect the ones that require Senate confirmation to get
it without much trouble. But Trump's latest picks suggest he might need recess appointments
after all. Tulsi Gabbard is perhaps less controversial than Hegseth or Gates, but her foreign policy
record is cause for legitimate concern. Immediately after the pick was announced, intelligence
experts on the right and left criticized the pick, primarily on the grounds that she is
too sympathetic to America's adversaries. Personally, I've
always found the most extreme allegations about Gabbard, that she's a Russian agent
or asset, to be laughable, and I respect her staunch anti-war stance. But I also have a
hard time taking her seriously. After all, days after Putin invaded Ukraine and began
ransacking towns and killing civilians,
Gabbard is the woman who called for embracing the spirit of Aloha.
I suspect some establishment Republican senators to balk at her nomination, and I think they
should.
Pete Hegsest will have an even harder time getting confirmed as Secretary of Defense.
The pick makes sense as a move to shake up the national security establishment, but his
inexperience is an issue for a post of this magnitude. I question the wisdom of nominating a Fox News host with
little command experience as Secretary of Defense, even if there are some compelling
reasons to put a combat veteran in that role. The Department of Defense has serious issues,
wasteful spending, inventory issues, shaky leadership, and now two major ongoing conflicts.
But a leader
who rails against the political left as domestic enemies, says women shouldn't serve in combat
roles, and generally blames all of the military's problems on wokeness is not the right person
to address the DOD's biggest problems. Some Senate Republicans are already expressing
doubt about the pick, and I think Hegseth is in for a bruising confirmation fight. And finally, we have Matt Gaetz, who is simply not a good choice for attorney general.
I don't really know how else to say that, and I know some people might disagree, but
this guy reeks of ethics issues and sleazy behavior.
In the midst of still unproven accusations that he had sex with an underage girl, multiple
members of Congress spoke on the record about Gates showing videos on the floor of Congress of women he had slept with and talking openly
about drug-fueled sex parties. Even worse, a nonpartisan House ethics group was about
to release an apparently damning report on Gates before he resigned yesterday, which
prevented the report from coming to light.
Gates also lacks the qualifications we typically associate with a role like attorney general, although inexperience alone isn't a strong reason to oppose his
nomination. President John F. Kennedy appointed his 35 year old brother, who had never argued
a case in court at the time for attorney general, and Robert F. Kennedy ended up having a very
effective tenure. I'm much more skeptical that Gates is a good pick because of the ethical
concerns surrounding him and because he does not appear to
have the requisite support for confirmation.
A lot of smart people have suggested that Gates's appointment is some kind of ploy to either give him a graceful exit from Congress and an
ethics investigation or to feed him to the wolves so Trump can get his real pick for attorney general later.
I have to say I find both of these ideas preposterous.
Trump was investigated by his own FBI and DOJ during his first term.
Then Biden's attorney general came after him after he left office.
He wants to throw a grenade inside the DOJ and see what happens.
That is his governing style for better or for worse.
He's going to try earnestly to get Gates, Gabbard and Hegseth appointed, even if he has to use recess appointments to do it.
Ironically, I think their nominations actually decrease the chance of Trump being able to
get anyone through without Senate support.
Each of them individually are so objectionable to so many Republican members of Congress
that I suspect some genuine bipartisan pushback is coming.
Will all three get blocked?
I doubt that, but I'd be shocked if all three made
it through too. John Thune, the Republican from South Dakota, the new Senate majority leader,
has a long history of both opposing Trump and adhering to Senate traditions. And he said on
Wednesday that he plans to approach the nomination process, quote, the old fashioned way. Furthermore,
recess appointments require a recess and any Senate adjournment of 10 days or longer
would need the consent of a majority in the House.
That would be an even harder task
than just confirming a nominee on a straight vote,
considering Republicans' already small House majority
is growing smaller by the day,
and considering how many enemies Gates has made
in the lower chamber.
More likely than not, Trump will push for recess appointments,
the Senate or the House will block it,
and the Senate will confirm most but not all
of his selections through the normal confirmation process.
And that, by the way, is how it should be.
I hope Thune and other congressional Republicans
hold the line.
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All right. That is it for my take, which brings us to your questions answered. This one's from Julian in New York City. Julian said, in a reader question, you had a couple of
simple answers for how to get money out of politics, restricting members of Congress
from being allowed to trade stocks and make active investments while in office and prohibiting
politicians from taking jobs as lobbyists or industry regulators after they leave office.
Both sound good to me, but I'm wondering,
can you think of any unintended consequences
that these seemingly common sense ideas might have?
I love this question.
It's a helpful reminder that writing good policy is hard
because common sense ideas will always carry with them
unexpected costs.
That doesn't mean they're not worth enacting, just that nothing ever comes for free. So what are those costs? Let's start with forbidding
members of Congress from trading stocks or making active investments. Obviously, this would
disincentivize business-oriented people from running for Congress. Another drawback is that,
if enforced correctly, this rule would make members of Congress pay less attention to the market when maybe being clued into it is helpful for drafting legislation.
Lastly, it would invite corruption.
If I'm a senator who can't trade stocks and learn that a bill is likely to pass or will
soon enter committee, I might want to tell my family, friends, or staff to make an investment
for me.
Either that would create new issues or we'd have to make congressional staff unable to
trade stocks as well, which would make the first two disincentives even costlier. Next, prohibiting
politicians from lobbying or regulatory positions after they leave office would prevent experts in
legislation from joining firms that draft legislation and prevent experts in the different
congressional committees from joining industry regulators. That knowledge strain would hurt
lobbying firms and regulatory
bodies which do important work in government. Another possible side effect would be the
replacement of salary posts for congressional retirees with stacked consultation fees that
would be harder to make legal and harder to track. Is this an exhaustive list? No. Does it mean these
reforms aren't worth enacting? Not in my opinion, but it is definitely helpful to think about these
consequences before pushing for these reforms so we can anticipate the next problems we'll have to
solve. All right, that is it for your questions answered. I'm going to send it back to John for
the rest of the pod and I'll see you guys on Sunday, maybe tomorrow too. We'll see. We're
going to try our best to get out a pod version of tomorrow's newsletter, but definitely Sunday, Ari and I are going to chop it up about some of this and the latest news.
So we'll see you soon either way. Have a good one.
Thanks, Isaac. Here's your Under the Radar story for today, folks.
Five months after New York Governor Kathy Hochul paused a plan to implement a congestion toll on motorists entering Manhattan below 60th Street, the governor announced she's
reviving the program.
The new plan will reduce the fee that most drivers will pay to enter Midtown and Lower
Manhattan from $15 to $9, but likely without the extended environmental review process
that mired the original effort in delays.
Hochul is fast-tracking the plan, putting it before the Metropolitan Transit Authority Board for approval next week, and it could go into effect before President-elect
Trump takes office in January. Hockel faced intense scrutiny from public transit advocates
for her decision to pause the program in June. Eminey speculated that her decision was intended
to give vulnerable state Democrats political cover in their campaigns. Now, with the election over,
Hockel is framing the reduced fee as a compromise that will help fund New York City's mass transit
system while limiting the financial burden on motorists. Gothamist has this
story and there's a link in today's episode description.
Alright, next up is our numbers section. The approximate number of positions in
the executive branch that requires Senate confirmation
is 1,200 to 1,400, according to a 2012 estimate by the Congressional Research Service.
The number of recess appointments made by President Bill Clinton was 139.
The number of recess appointments made by President George W. Bush was 171.
The number of recess appointments made by President Barack Obama was 32. The number
of recess appointments made by President Trump and President Joe Biden during their terms
was zero. The number of days between Donald Trump's first inauguration and when his full
cabinet was confirmed by the Senate was 97. The median number of days between the official
nomination of a presidential cabinet member and a full Senate vote on their nomination for the four presidential administrations preceding
Trump's first term is one.
The number of Obama, Bush, and Clinton cabinet nominees, respectively, who failed to be confirmed
by the Senate is three, one, and one.
The median number of days between the official nomination of Trump's cabinet members and
a full Senate vote on their nomination during Trump's first term was 25, and the number of Trump's first term
cabinet nominees who failed to be confirmed by the Senate was one.
And last but not least, our Have a Nice Day story.
As a child, Sarah Bryce was a patient at Boston Children's Hospital.
Now, she works at the hospital as the program manager of Culinary Experiences, where she
creates exciting meals for children, usually between the ages of 4 and 16, while they undergo
treatment.
Recently, Bryce hosted a pickle party for Emerson Bace, an 8-year-old heart transplant
candidate.
Due to fluid restrictions, Bace has a craving for salty dill spears.
So Bryce made Bace's pickle making dreams into a reality.
Today has this story and there's a link in today's episode description.
All right, everybody, that is it for today's episode.
As always, if you'd like to support our work, please go to readtangle.com and sign up for
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And if you'd like to receive ad free podcasts, including Friday editions and Sunday editions,
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Friday edition podcast, and then Isaac and Ari will be back for the Sunday podcast. And I will
return on Monday. For the rest of the crew, this is John Maul signing off. Have a fantastic weekend,
y'all. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Wall.
The script is edited by our managing editor, Ari Weitzman, Will K. Back, Bailey Saul, and
Sean Brady.
The logo for our podcast was designed by Magdalena Makova, who is also our social media manager.
Music for the podcast was produced by Diet 75.
If you're looking for more from Tangle, please go to readtangle.com and check out our website.
Are you sure you parked over here? Do you see it anywhere?
I think it's back this way.
Come on.
Hey, you're going the wrong way.
Feeling distracted?
You're not alone.
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the Government of Canada.