By Richard W. Painter and Norman L. Eisen
January 29, 2017
President Trump’s executive order banning travel to the United States from seven predominantly Muslim countries is being rightly challenged in the courts for, among other things, its unconstitutional interference with free exercise of religion and denial of due process. Overlooked in the furore is another troubling aspect of the situation: President Trump omitted from his ban a number of other predominantly Muslim nations where his company has done business. This adds further illegitimacy to one of the most arbitrary executive actions in our recent history, and raises significant constitutional questions.
The seven countries whose citizens are subject to the ban are relatively poor. Some, such as Syria, are torn by civil war; others are only now emerging from war. One thing these countries have in common is that they are places where the Trump organization does little to no business.
By contrast, other neighbouring Muslim countries are not on the list, even though some of their citizens pose just as great a risk — if not greater — of exporting terrorism to the United States. Among them are Saudi Arabia, the United Arab Emirates and Egypt. A vast majority of people living in these countries, like the people living in the seven subject to the immigration ban, are peaceful and law abiding. But these three countries have exported terror to the United States in the past. They accounted for 18 of the 19 terrorists who perpetrated the Sept. 11 attack on American soil (an attack which was directed by another Saudi, Osama Bin Laden, with the assistance of an Egyptian, Ayman al-Zawahiri).
These countries, unlike those subject to the ban, are ones where Donald Trump has done business. In Saudi Arabia, his most recent government financial disclosure revealed several limited liability Trump corporations. In Egypt, he had two Trump companies registered. In the United Arab Emirates, he had licensed his name to a Dubai golf resort and a luxury residential development and spa. Some of these entities have since been closed, and others remain active.
A look at other nations with large Muslim populations only reinforces this troubling pattern. Turkey, India and the Philippines could all pose similar risks as the banned countries of origin that concern the president. Yet Mr. Trump has done business in all three places. They, too, are omitted from his list.
Our point is not, of course, that any of these other countries should be added. A country-specific ban, which experts say is an ineffective way to combat terrorism, should not exist. Our government should instead screen all immigrants for potential links to crime or terrorism, as it has long done. Discrimination based on national origin is a thinly veiled attempt to discriminate on the basis of religion. And indeed, President Trump has admitted that he wants to prioritize the settling of Christian refugees.
The arbitrary and discriminatory nature of this order is bad enough; but if the president is also considering payoffs to the Trump organization, it’s much worse.
As we have pointed out in a lawsuit we have filed against the president in his official capacity, payments to the president are not only unethical but unconstitutional if they come from foreign governments or entities controlled by foreign governments, such as sovereign wealth funds and state owned banks. The Emoluments Clause of the Constitution prohibits anybody holding a position of trust with the United States government, including the president, from receiving economic benefits from business dealings with foreign governments.
Without President Trump’s tax returns and other information about his privately held businesses, we do not know the extent of the economic benefits he receives from governments of countries that pose a terrorism risk but are not on his immigration ban list. What we do know is that President Trump has generally refused to divest himself of his businesses, to disclose foreign government benefits coming into those businesses and to release his tax returns, and has insisted that simply because he is president, as opposed to some lower official, he “has no conflict of interest.”
And now, only a week into President Trump’s term, we see the devastating consequences of this conflict of interest. It appears that immigrants from countries that can afford to do business with the Trump organization are free to come and go from the United States. Immigrants from countries that cannot afford such transactions may very well be detained at the airport and sent home, where some may perish.
After the election we often heard the phrase “to the victor belong the spoils.” But there are ethical and constitutional limits to that maxim. In this case, an already suspect immigration ban is subject to yet more doubt because President Trump may be looking to his business interests at the same time as he makes decisions about human beings who want to come to America to study, earn a living, and avoid persecution and in some instances, to survive.
Richard W. Painter, a professor at the University of Minnesota Law School, is the vice chairman and Norman L. Eisen is the chairman of Citizens for Responsibility and Ethics. They were chief White House ethics lawyers for Presidents George W. Bush and Barack Obama, respectively.