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Volokh Conspiracy

Was Trump's executive order an impeachable offense?


This post has been updated.

[UPDATE 1/31

Commentary about this post was unusually vigorous. Let me try to respond. I asked a question: "Do you have an alternative explanation [other than that it was driven by Trump's business dealings] of why, say, Saudi Arabia and Turkey are exempted from the ban? What is it?" Many of had an alternative—the one also provided by Press Secretary Spicer over the weekend: "the seven countries that we've identified [were those] that, in fact, the Obama administration had previously identified needed further travel restrictions."

The reference, as many of you pointed out, was to the list of 7 countries affected by President Obama's 2015 Executive Order. That Order amended the Visa Waiver Program, which allows citizens of 38 countries to travel to the United States without obtaining visas (and gives Americans reciprocal privileges in those countries). The Order removed from the Visa Waiver Program dual nationals who were citizens of four countries (Iraq, Iran, Sudan, and Syria), or anyone who had recently traveled to those countries; three more countries (Libya, Somalia, and Yemen), were added to the list in early 2016.

So in the spirit of reasoned discussion, I agree: I asked for a plausible alternative explanation, and that is a plausible alternative explanation. I appreciate the efforts of those who took the time to write.

It's an odd explanation, to be sure. I thought a major thrust of Trump's view on anti-terrorism was that Obama had done a terrible job and made a real hash of things. To simply pluck the list from Obama's list—to say "The Obama Administration designated these as the bad guys, so we'll take their word for it"—as part of a measure vastly broader in scope than the one for which the original list was prepared, and one in which lives, actually, are at stake, strikes me as odd (though I concede: not impeachable, standing alone).

So where does this leave us? Now there are two alternative explanations, both consistent with the facts. Which is true?

This is a problem, as the "alternative facts" debacle of the first week illustrated, that we will be facing over and over again in the coming years. A number of commenters said: The President, and his explanation for his actions, deserve respect.

I disagree. I think he has forfeited, by the manner in which he has consistently manipulated the truth, that respect. It may well be that he just lifted the list from the one on the shelf; it may well be that he is in hock to a Saudi bank and the Saudi royal family for a gazillion dollars, and that influenced his decision. We don't know.

And that, of course, is the problem. I recognize that Trump's plan for dealing with his conflicts of interest is already old news—but we should not let it disappear from view. He has information about his business dealings that he has chosen not to share with the American people so that we can judge his actions accordingly, and I don't think he is able to fulfill his constitutional responsibilities until he does so.]

My co-bloggers Ilya Somin, Jon Adler, Orin Kerr and Will Baude—not to mention Ben Wittes's withering critique over at Lawfare—have already dissected President Trump's executive order (misleadingly titled "Protecting the Nation from Terrorist Attacks by Foreign Nationals") (full text here) and addressed many of its more appalling features, including its cruelty, ineffectiveness and the truly staggering incompetence with which it was drafted.

But there's more. Wittes correctly points to the absence of any "rational relationship" between the countries targeted by the ban and "any expected counterterrorism goods."

The 9/11 hijackers, after all, didn't come from Somalia or Syria or Iran; they came from Saudi Arabia and Egypt and a few other countries not affected by the order.

[interstitial_link]Greg Sargent: Trump's refugee ban could get much, much worse. That's why it must be stopped.[/interstitial_link]

But there could be, it turns out, an explanation for why some countries are inside, and others outside, the ban. It has nothing to do with counterterrorism. You should take a quick look at this graphic (and accompanying documentation) put together by Bloomberg News. Here's the list of predominantly Muslim countries in the Middle East covered by Trump's order:

Iran, Iraq, Libya, Syria, Sudan, Somalia, Yemen.

Here's the list of predominantly Muslim countries where the Trump Organization has done business:

Saudi Arabia, Turkey, Egypt, United Arab Emirates, Azerbaijan.

What a coincidence; there's no overlap. The places where the Trump Organization has done business are exempted from the ban.

Even Saudi Arabia, for goodness' sake! The one country we know for certain has allowed, if it did not actively encourage, emigrants who attacked the United States on 9/11. But Trump has business interests in Saudi Arabia, and a guy shouldn't have to give up his business interests just because he's going into "public service," now should he?

This adds up to malfeasance of the highest order. Can we now stop the debate about whether Trump's business interests might influence his policymaking, and move on to the more important question, which is how do we protect ourselves from this despot and start the work of getting him removed from office?

[Update: Some commenters, fairly, suggested that there could be alternative explanations for the inclusion/exclusion, and that this doesn't, standing alone, constitute malfeasance. Fair enough—perhaps the answer to the question I posed in the headline is: "We're not sure—but it sure as hell could be. But we can't really know without knowing more about Trump's business activities, which he has continued to withhold from the American people." So I'll modify my call for impeachment, and ask instead, in the face of potential conflicts that can cause untold misery and hardship for many thousands of people who are among the most vulnerable on the planet, he step down until he releases all of his financial information so we can figure out for ourselves whether or not our fears are justified.

And I could have been clearer: I don't think that the possible use of presidential power for personal gain is the only—or even the most serious—problem with this Executive Order; other commentators, though, in the postings cited and elsewhere, have already covered its many other repellent (and potentially impeachment-worthy) characteristics.]

In his inaugural speech, Trump said that from now on, "Every decision on trade, on taxes, on immigration, on foreign affairs will be made to benefit American workers and American families."

That was, not to put too fine a point on it, bulls-. Some will be made to benefit Trump.

I know some VC readers still count themselves among Trump's supporters, and are interested in engaging in serious discussion of his presidency. In that spirit, I'd ask you: Do you have an alternative explanation of why, say, Saudi Arabia and Turkey are exempted from the ban? What is it? Or do you think that Trump allowed business interests to interfere with his public policymaking, but you don't think that constitutes an impeachable offense?