Days before the U.S. military operation that removed Venezuela’s Nicolás Maduro from power, Trump administration lawyers blessed the action by saying it would “not rise to the level of a war in the constitutional sense” and would serve “important national interests,” according to a legal opinion that articulates a muscular view of presidential power.
The heavily redacted version of the Justice Department’s Office of Legal Counsel opinion, released this week, sheds new light on how the administration came to conclude that it was legally permitted to oust Maduro as Venezuela’s president in a stunning middle-of-the-night military operation Jan. 3.
The opinion, dated Dec. 23, was prepared for the legal adviser for the White House National Security Council. The 22-page document was drafted by lawyers at the Office of Legal Counsel, which is historically called upon to resolve thorny questions of law for the executive branch.
In this instance, the opinion wrestles with the question of whether President Donald Trump could order the military to aid law enforcement in removing Maduro from power so he could 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 the potential for 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 operations, administration lawyers judged a low likelihood that it would lead to an all-out war requiring congressional approval.
Republican leaders have said they had no advance notification of the raid to seize Maduro and his wife, Cilia Flores. The Senate last week advanced a resolution that would limit Trump’s ability to conduct further attacks against Venezuela, sounding a note of disapproval for his expanding ambitions in the Western Hemisphere. Trump has been pressuring Senate Republicans to vote down the resolution Wednesday.
“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.
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