A recently declassified legal opinion has shed light on the Trump administration’s justification for the military operation that ousted Venezuela’s Nicolás Maduro, revealing lawyers deemed the action would “not rise to the level of war in the constitutional sense” and served “important national interests”. This perspective underscores a muscular view of presidential power.
The heavily redacted document from the Justice Department’s Office of Legal Counsel (OLC), released this week, offers new insight into how the administration concluded it was legally permissible to proceed with the stunning middle-of-the-night military operation on January 3. This action ultimately removed Maduro as Venezuela’s president.
Dated December 23, the 22-page opinion was specifically prepared for the legal adviser to the White House National Security Council. It was drafted by lawyers within the OLC, an office historically tasked with resolving complex and often thorny questions of law for the executive branch.
Crucially, the opinion grappled with the specific question of whether President Donald Trump possessed the authority to order the military to assist law enforcement in removing Maduro from power, thereby enabling him to face criminal prosecution in the United States.
The answer, the opinion said, was yes. It cited five separate reasons, including what it said were “severe” allegations against Maduro contained in a drug-trafficking conspiracy indictment; the “numerous other highly dangerous activities” that he and his associates were alleged to be involved in; the possible need of military force to protect civilians in Venezuela and abroad from Venezuela; and the potential that U.S. personnel would encounter an “armed resistance” protecting Maduro.
“Here, we were told to assume that there were as many as 200 armed guards in a literal fort who have been sent from and armed by another country purely to ensure Maduro’s safety,” the opinion said. “This level of expected armed resistance supports the need for military forces to provide security for law enforcement personnel carrying out the rendition.”
Though the opinion does identify what it said were significant risks in the military operation, depending in part on Maduro’s precise location at the time of the action, administration lawyers judged a low likelihood that it would lead to an all-out war that would require congressional approval.
Republican leaders have said they had no advance notification of the raid to seize Maduro and his wife, Cilia Flores. Facing pressure from Trump, Senate Republicans voted to dismiss a resolution Wednesday that would have limited his ability to conduct further attacks against Venezuela.
“While we cannot speculate as to any presidential decision in response to the significant loss of U.S. service members, we were assured that there is no contingency plan to engage in any substantial and sustained operation that would amount to a constitutional war,” the opinion said.
“We were further assured that there is no contingency plan that would involve using U.S. forces occupying Venezuela should the removal of Maduro result in civil unrest in that country. Based on that assessment of U.S. intentions, we do not currently plan any action that would amount to a constitutional war,” it added.
The legal opinion also says that the fact that a president “can lawfully authorize the operation does not by itself render any and all use of force in its completion lawful.” The personnel involved, the opinion said, “must implement his lawful order in a reasonable way.”
