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Democratic Lawmakers Sue President Trump For Violations Of Emoluments Clause

Trump Gavel

Following in the footsteps of several private organizations, and the governments of Maryland and the District of Columbia, a group of nearly 200 Democrats in the House of Representatives and the Senate has filed suit against President Trump alleging that he is violating the Emoluments Clauses in the Constitution:

WASHINGTON — Nearly 200 Democratic members of Congress filed a federal lawsuit on Wednesday accusing President Trump of violating the Constitution by profiting from business dealings with foreign governments.

The plaintiffs — believed to be the most members of Congress to ever sue a sitting president — contend that Mr. Trump has ignored a constitutional clause that prohibits federal officials from accepting gifts, or emoluments, from foreign powers without congressional approval.

It is the third such lawsuit against Mr. Trump on the issue since he became president, part of a coordinated effort by the president’s critics to force him to reveal his business entanglements and either sell off his holdings or put them in a blind trust.

Like the previous two federal lawsuits, this one, filed in federal court in Washington, accuses Mr. Trump of illegally profiteering from his businesses in a variety of ways, including collecting payments from foreign diplomats who stay in his hotels and accepting trademark approvals from foreign governments for his company’s goods and services.

 

But it creates a new group of plaintiffs who claim the president’s actions have damaged them: Democratic members of the House and Senate who say they have been wrongly deprived of their constitutional right to rule on whether Mr. Trump can accept such economic benefits from foreign governments, according to Senator Richard Blumenthal of Connecticut, who led the effort with Representative John Conyers Jr. of Michigan.

“The founders ensured that federal officeholders would not decide for themselves whether particular emoluments were likely to compromise their own independence or lead them to put personal interest over national interest,” the lawsuit states. “An officeholder, in short, should not be the sole judge of his own integrity.”

Mr. Trump now faces three distinct groups of legal opponents, each alleging they have been harmed in a different way. Earlier this year, private individuals who own hotels or restaurants or book events at hotels that they say compete with Mr. Trump’s joined a lawsuit filed in federal court in New York by Citizens for Responsibility and Ethics in Washington, or CREW, a nonprofit watchdog group.

On Monday, the attorneys general of Maryland and the District of Columbia filed suit in federal court in Maryland, accusing Mr. Trump of putting hotels, resorts and convention centers owned or operated by their governments at a competitive disadvantage. Some legal experts have suggested that this suit may be the most likely to proceed because a state is considered a “coequal sovereign” of the president.

The president’s critics are clearly hoping to find a federal judge who will agree that the plaintiffs have enough standing to let a case proceed to the fact-finding stage. “It is pretty much copy and paste from one suit to another,” said Andy S. Grewal, a University of Iowa law professor who has been critical of the lawsuits’ merits.

He said the complaint from members of Congress was “the weirdest one” because a court ruling that would for the first time in 230 years define what constituted an emolument would also cover them. “They could be really shooting themselves in the foot,” he said.

(…)

In a response to the initial lawsuit, Justice Department lawyers argued that the framers of the Constitution never intended to prevent a president from owning a business or to ban ordinary, arms-length commercial transactions. They also contended that even if the president had violated the Constitution as his opponents allege, it is up to Congress to take action, not a federal court.

As noted, this lawsuit differs from the lawsuit filed by Maryland and the District of Columbia earlier this week in that it is only alleging violations of the Foreign Emoluments Clause set forth in Article I, Section Nine, Clause 8 of the Constitution which forbids Federal officials from receiving without Congressional consent “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” In addition to that clause, the state lawsuit also accuses Trump of violating the Domestic Emoluments Clause set forth in Article II, Section 1, Clause 7 and which forbids Presidents from receiving any emolument in addition to their salary from the United States or any of the individual states. This difference could actually make the Congressional case stronger due to the fact that the Foreign Emoluments Clause provides that Congress must consent to any emolument that a Federal official receives. Because of this, the Plaintiffs here would seem to have a stronger argument that they have legal standing to sue Trump over this alleged violation of the Constitution since they are being deprived of their Constitutional role in either consenting to the emolument or withholding consent.

The one flaw in this argument is that it is similar to arguments that Members of Congress and Senators in other litigation against the President. For example, several times in recent decades Members of Congress have filed lawsuits in response to military action undertaken by Presidents without the Congressional consent seemingly required by the Constitution, which gives Congress the authority to declare war, and the War Powers Act, which gives seeks to clarify the Congressional role in authorizing military operations in the modern era. In each of those cases, the Plaintiff has asserted that their right to authorize or block military action under the Constitution was being violated by the President’s unilateral military action. As a report prepared by the Congressional Research Service[PDF] found in 2012, the relevant U.S. District Court has dismissed such lawsuits in part on the ground that individual Members of Congress lack standing to sue the President on the stated grounds. The decisions in those cases have specifically rejected the argument that depriving a Member of Congress or the Senate of the opportunity to vote on a matter gives rise to standing to file a lawsuit, even when that right to vote arises out of the Constitution itself. While military action differs from emoluments in several important respects, the fact that Courts have rejected the ‘lack of a Congressional vote’ argument in those case argues strongly that a lawsuit such as this would suffer from similar standing issues. If that’s the case, then the case would be dismissed before the Court got to the merits of the case.

In addition to these preliminary legal issues, the Congressional lawsuit suffers from many of the same legal defects as the one filed by Maryland and Washington, D.C. that I noted in my earlier post. First of all, there’s the fact that the emoluments clause itself has not been enforced and interpreted once in the entire history of the United States. As a result, it’s hard to say exactly what constitutes the type of “emolument” that the provision was intended to prohibit beyond a direct payment from a foreign government or government official to an individual President. That, of course, is not what we’re talking about in these cases. Instead, the Plaintiffs are alleging that the fact that foreign officials are spending money at hotel and resorts that are part of the overall “Trump Organization” constitutes a payment to the President that could influence his decision making. As I noted, though, these hotels and resorts aren’t owned directly by Trump but by legally separate business entities that Trump has an ownership interest. One can argue that this is a legal distinction without a difference, but it is relevant to the question of whether or not the emoluments clause was intended to apply to business entities owned by a Federal official. And if that’s the case, what does it mean for members of Congress who may own stock in corporations that receive benefits from foreign entities? These and other legal questions surrounding the application of the emoluments clause to these cases make the outcome of this case as uncertain and seemingly unlikely as the Maryland/D.C. lawsuit.

On a final note, regular commenter HarvardLaw92 made reference in a comment to my post about the lawsuit filed by Maryland and the District of Columbia regarding the real purpose of these emoluments lawsuits, namely to provide a legal ground to seek discovery of the President’s tax returns which he has to date declined to disclose. Indeed, both the private entities that filed an Emoluments Clause lawsuit earlier this year and the Attorneys General of Maryland and Washington, D.C. have admitted that they are seeking to get their cases past a Motion to Dismiss so that they can use the discovery process to get Trump’s tax returns. If they do get past the standing issue, the Plaintiffs in these cases would definitely seem to have grounds to seek a wide variety of information about Trump and his business entities in discovery, including copies of tax returns. It strikes me, though, that there are two problems with this strategy. First of all, it’s likely that Trump would still fight any effort to seek copies of the returns and other information as part of the discovery process. Even if those efforts were unsuccessful, though, it’s likely that they would be accompanied by a Court Order that would prevent the Plaintiffs from using the returns in any matter other than the pending litigation and that they keep the facts discovered and documents confidential beyond their use in the litigation. Additionally, admitting up front that the purpose of the lawsuit is to seek discovery of material tangentially related to the facts of the case arguably undercuts the credibility of the lawsuit itself and would likely be cited by the Federal Government and attorneys defending Trump in a Motion to Dismiss since it goes to the question of whether or not there was any bad faith in filing the lawsuit.

In any case, as I noted earlier this week this is very much a case of first impression for Federal Courts so it’s hard to say exactly how any Judge or appellate court is going to rule on this matter. It does add to Trump’s legal woes and will be worth keeping an eye on as it makes its way through the courts.

Here’s the Complaint:

Blumenthal Et Al v Trump Complaint by Doug Mataconis on Scribd

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    I wonder if the real purpose of these suits is to goad Trump into such a frenzy that he self-destructs. I’m serious. As I mentioned on another thread, the expansion of the Mueller investigation into the money laundering realm must have him positively rabid, if he knows about it yet.

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  2. Daryl's other brother Darryl says:

    This will probably be the end of Sessions.
    http://www.thedailybeast.com/russia-lobbyist-sessions-invited-me-to-dinner?via=desktop&source=copyurl
    Couldn’t happen to a nicer guy bigger racist.

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    Like or Dislike: Thumb up 13 Thumb down 0

  3. Pch101 says:

    @CSK:

    That’s part of it.

    At this point, the Dems need to be ruthless street fighters. If something rallies Democrats and/or destabilizes Republicans, then it should be pursued.

    Show no mercy. If the right is howling about it, then the Dems are on the right track.

    I’m all for it — it’s about time.

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    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  4. gVOR08 says:

    What’s the worst that can happen? Billable hours wasted on a frivolous suit. Wouldn’t slow the Republicans down one minute. It’s worth a shot. Like @Pch101: says, hit ’em with everything.

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  5. HarvardLaw92 says:

    @gVOR08:

    Agreed. The absolute worst case outcome here is that we accomplish nothing more than keeping Trump harassed and on the defensive, which just ensures that he’ll dig himself further into a hole of his own construction. There is little, if any, real downside for us in pursuing these lawsuits.

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  6. CSK says:

    The senate just passed the Russia sanctions bill 98-2. (Bernie Sanders and Rand Paul voted against it.) This will increase Trump’s agita.

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  7. CSK says:

    @HarvardLaw92:

    I’ve been saying this for what seems like forever. Trump is very easily goaded and very easily manipulated. You can jerk him around like a trout hooked on a line.

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  8. CSK says:

    Mike Pence has hired outside counsel to deal with Russiagate. The wheels really are falling off the Trump Train.

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  9. HarvardLaw92 says:

    @CSK:

    Would it make you smile if I told you that McGuireWoods is one of the firms that turned Trump away?

    😀

    Cullen is a heavy hitter in this arena. Pence retained serious representation. I’m not sure if Trump has actually grasped the degree of peril he’s in or he just wants out at this point.

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  10. CSK says:

    @HarvardLaw92:

    Oh, yeah, that makes me smile.

    My guess? Trump is enraged–perhaps insensate with rage–but no, I don’t really think he’s capable of grasping the magnitude of his self-created disaster. I am not sure he ever will be. He’d almost be pitiable if he weren’t so loathsome: a deeply stupid old bull wrecking his own china shop.

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  11. michael reynolds says:

    Now we have a WaPo story that Jared is under investigation for money-laundering. Will the little reptile flip on his father-in-law?

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  12. CSK says:

    @michael reynolds:

    Oh, he’d probably flip. He’d lose Ivanka–but the world is full of glamorous blondes with rich daddies.

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  13. michael reynolds says:

    @CSK:
    I suspect the one guy who can take down all things Trump is Jared. He’s the son Trump never had. Well, he had sons, but evidently he’s disappointed in them.

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  14. CSK says:

    @michael reynolds:

    Who wouldn’t be?

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  15. Junkboxgrad says:

    You guys are desperate lap dogs.

    and which forbids Presidents from receiving any emolument in addition to their salary from the United States or any of the individual states.

    I guess the fact that he isn’t taking a salary may just undermine that…

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  16. gVOR08 says:

    @michael reynolds:

    Well, he had sons, but evidently he’s disappointed in them.

    Whereas Jared is a chip off the old block, third generation in the family business, which he’s running into the ground by having paid way too much for a flagship property he just had to have to satisfy his ego. He really does take after his father-in-law.

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  17. DrDaveT says:

    @Junkboxgrad:

    I guess the fact that he isn’t taking a salary may just undermine that…

    Seriously???

    Dude. Your friends just called about that intervention…

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  18. Pch101 says:

    @Junkboxgrad:

    That must be from Article XII of the Constitution.

    http://www.cnn.com/2016/07/08/politics/sanford-questions-trump-constitution-gaffe/index.html

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  19. michael reynolds says:

    @DrDaveT:
    Sometimes it’s like an impromptu seminar in abnormal psychology.

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  20. Mr Bluster says:

    I guess the fact that he isn’t taking a salary may just undermine that…

    You Dimwit!

    Even as Zinke praised the president’s philanthropy, the internet buzzed about whether Trump could claim a charitable deduction for the gift. The answer is yes – assuming he took the amount into income and assuming he itemizes his deductions.

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  21. Junkboxgrad says:

    We are here today to focus on solving one of the biggest obstacles to creating this new and desperately needed infrastructure, and that is the painfully slow, costly, and time-consuming process of getting permits and approvals to build. And I also knew that from the private sector. It is a long, slow, unnecessarily burdensome process. My administration is committed to ending these terrible delays once and for all. The excruciating wait time for permitting has inflicted enormous financial pain to cities and states all throughout our nation and has blocked many important projects from ever getting off the ground…

    For too long, America has poured trillions and trillions of dollars into rebuilding foreign countries while allowing our own country—the country that we love—and its infrastructure to fall into a state of total disrepair. We have structurally deficient bridges, clogged roads, crumbling dams and locks. Our rivers are in trouble. Our railways are aging. And chronic traffic that slows commerce and diminishes our citizens’ quality of life. Other than that, we’re doing very well. Instead of rebuilding our country, Washington has spent decades building a dense thicket of rules, regulations and red tape. It took only four years to build the Golden Gate Bridge and five years to build the Hoover Dam and less than one year to build the Empire State Building. People don’t believe that. It took less than one year. But today, it can take 10 years and far more than that just to get the approvals and permits needed to build a major infrastructure project.

    These charts beside me are actually a simplified version of our highway permitting process. It includes 16 different approvals involving 10 different federal agencies being governed by 26 different statutes. As one example—and this happened just 30 minutes ago—I was sitting with a great group of people responsible for their state’s economic development and roadways. All of you are in the room now. And one gentleman from Maryland was talking about an 18-mile road. And he brought with him some of the approvals that they’ve gotten and paid for. They spent $29 million for an environmental report, weighing 70 pounds and costing $24,000 per page…

    I was not elected to continue a failed system. I was elected to change it. All of us in government service were elected to solve the problems that have plagued our nation. We are here to think big, to act boldly, and to rise above the petty partisan squabbling of Washington D.C. We are here to take action. It’s time to start building in our country, with American workers and with American iron and aluminum and steel. It’s time to put up soaring new infrastructure that inspires pride in our people and our towns.

    No longer can we allow these rules and regulations to tie down our economy, chain up our prosperity, and sap our great American spirit. That is why we will lift these restrictions and unleash the full potential of the United States of America. We will get rid of the redundancy and duplication that wastes your time and your money. Our goal is to give you one point of contact to deliver one decision—yes or no—for the entire federal government, and to deliver that decision quickly, whether it’s a road, whether it’s a highway, a bridge, a dam.

    To do this, we are setting up a new council to help project managers navigate the bureaucratic maze. This council will also improve transparency by creating a new online dashboard allowing everyone to easily track major projects through every stage of the approval process. This council will make sure that every federal agency that is consistently delaying projects by missing deadlines will face tough, new penalties…

    Together, we will build projects to inspire our youth, employ our workers, and create true prosperity for our people. We will pour new concrete, lay new brick, and watch new sparks light our factories as we forge metal from the furnaces of our Rust Belt and our beloved heartland—which has been forgotten. It’s not forgotten anymore.

    We will put new American steel into the spine of our country. American workers will construct gleaming new lanes of commerce across our landscape. They will build these monuments from coast to coast, and from city to city. And with these new roads, bridges, airports and seaports, we will embark on a wonderful new journey into a bright and glorious future. We will build again. We will grow again. We will thrive again. And we will make America great again.

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  22. HarvardLaw92 says:

    @Junkboxgrad:

    ORLLY?

    ReplyReply

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  23. HarvardLaw92 says:

    Helpful hint – six months into this somewhat pathetic and utterly predictable acid trip, none of that has happened.

    It hasn’t even started to happen.

    And it never will.

    Never underestimate the willingness of stupid people to believe someone who’ll tell them what they want to hear (while robbing them blind …) :roll:

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    Like or Dislike: Thumb up 13 Thumb down 0

  24. Junkboxgrad says:

    So many lulz
    Is this…

    Never underestimate the willingness of stupid people to believe someone who’ll tell them what they want to hear

    ..what u do as white shoed lawyer??
    ..I mean when you arent hanging out here shadow boxing trolls on the internet? You and asshat should quit your day jobs.
    You can spend even more time here

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  25. HarvardLaw92 says:

    One of the nice things about being an equity partner in a firm that operates on multiple continents is that, 24 hours out of every day, there are associates somewhere on the globe earning money for me. I think I’ll probably survive the occasional f’king about on the internet session.

    But thanks for your concern J E N O S :-)

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  26. CSK says:

    Oh, Lawd. Trump just threw Rosenstein under the bus. At 9:07, he tweeted this:

    “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director. Witch hunt.”

    Uuuhhh…didn’t he say firing Comey was his own idea?

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  27. HarvardLaw92 says:

    @CSK:

    The guy doesn’t know when to speak & when to shut up, and stabs everybody around him in the back (thus ensuring that their only loyalty will be to saving their own behinds …)

    This was the kind of clown I used to have dreams about as a prosecutor. He’s custom made for being prosecuted :-)

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  28. CSK says:

    @HarvardLaw92:

    The NYTIMES has, with remarkable understatement, just tweeted that “Trump appeared to attack the integrity of Rod Rosenstein…”

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  29. CSK says:

    Also from the NYT, categorized as breaking news: “Trump has acknowledged publicly for the first time that he is under investigation” in Russiagate.

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  30. CSK says:

    The timing of Trump’s trashing of Rosenstein is very odd, given that just last night Rosenstein issued a rather bizarre statement telling people not to trust news stories relying on anonymous sources.

    This is, of course, what Trump’s been bellowing about all along: Anonymous sources equal FAKE NEWS. Rosenstein appears to back him up in this claim. So Trump replays Rosenstein for the back-up by…trashing Rosenstein on Twitter.

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  31. iSeeDumbPeople says:

    So it looks like Rosenstein should recuse himself, no?

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  32. Jen says:

    @CSK: I just asked about that in the other thread:

    I’m a bit baffled by Rosenstein’s most recent statement. I get being cautious about anonymous sources, but what in the world is he trying to get at with a statement that includes:

    “Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch or agency of government — with which the alleged sources supposedly are affiliated.”

    Emphasis mine–what on earth is going on here? Is he insinuating that the leaks are coming from other countries, or is this a precursor to something dropping later today? I’m confused. (And maybe that is the objective–to confuse and obfuscate.)

    Any ideas? Some speculation on Twitter that it had to do with Kushner’s investigation, but WaPo says it was US sources. It really seems so weird to make that specific point out of the blue??

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  33. CSK says:

    @iSeeDumbPeople:

    According to a story I just read (ABC news), he was discussing the possibility of recusing himself earlier this week with Rachel Brand, who would take over from him.

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  34. CSK says:

    @Jen:

    I don’t know. It really is peculiar, isn’t it? With the business about not knowing what country the leaks are emanating from, was Rosenstein making some oblique reference to Russia being the source of anti-Trump leaks? And if so, what are the implications of that.

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  35. HarvardLaw92 says:

    @Jen:

    It sounds like an impromptu statement intended to quell the rampant speculation inherent with matters which can’t officially be discussed. The problem with those is that people can and will attempt to fill in the blanks for themselves, and what they concoct is often worse than the truth (which they can’t be told).

    It’s also a statement that someone in his role never should have made. He strikes me as a competent enough attorney to already know that, and know why, so he may be looking for a (reason to) exit.

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  36. michael reynolds says:

    @Jen: @HarvardLaw92:

    Look at it context. This morning Trump woke up and instantly annihilated his own message by issuing a tweet blaming the investigation on Rosenstein. Blaming his own guy. I spent half the day yesterday blocking Trump-Putin bots all pushing the message that Mueller is a Clinton stooge, and Hillary blah blah blah, and Mueller, Mueller, Mueller. And now it’s. . . Rosenstein!

    OK then.

    So here’s my scenario. Last night Trump was raging around the WH like the demented old creep he is, yelling and screaming and blaming his staff. (Plenty of stories on this.) He called up Rosenstein and started ranting at him, making insane demands (clear me!) and Rosenstein finally agreed to issue a statement on anonymous sources.

    Then Rosenstein wrote it in such a way as to be a secret, coded message that said: Help me! Help me! Trump saw the Twitter reaction, realized everyone saw his hand behind the statement, got madder still, and lashed out at Rosenstein.

    This is the man with the nuclear launch codes.

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  37. CSK says:

    Trump just tweeted that Rasmussen has given him a 50% approval rating: “Great news! MAGA!”

    @michael reynolds:

    Yeah. The launch codes. F#ckin’ swell.

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  38. HarvardLaw92 says:

    @CSK:

    This is all that you’ll ever get from him. For as long as I had the revolting experience of being around him, his abiding concern in life was always “do they like me? Am I the center of attention?”

    Sadly, that is all he ever thought about. In his brain, existence is a reality show and the goal is to be popular. He looks at the world basically like a 14 year old. He never had to – and refuses to – progress any further.

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