Does It Matter That the Administration Prepared a Legal Opinion on Venezuela?
Likely not—but it should be released, along with answers about process
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The administration has reportedly prepared an Office of Legal Counsel opinion in support of the attack on Venezuela and the seizure of its president and his wife. The attorney general has told lawmakers that the opinion will soon be shared with Congress, but there is no word—and reason to doubt—that it will be made public. The earlier opinion prepared to justify the boat strikes remains under wraps; it was also made available only to the Hill. And we might assume that members of Congress who see the opinion will split along party lines in their evaluations, just as they did in the review of the boat strike opinion. Democrats will pronounce it unpersuasive and a sham, while Republicans will declare that they are satisfied.
So much, then, for the transparency of the administration’s position, and the quality of any more general debate about the strengths or weaknesses of its claim that it could act in Venezuela without congressional authorization. This is not just one in a long series of legally controversial defenses of deployments of U.S. military force abroad. Here, the legal question is raised by a U.S. attack on another country to depose its head of state and to assume effective control—according to President Trump, potentially for years—of both the government and that country’s oil industry. Moreover, the government has made clear that this is not a “one-off” action but the implementation of a national security strategy of dominance in the Western Hemisphere—a “‘Trump Corollary’ to the Monroe Doctrine”—that entails freedom of military action at presidential discretion. Barely had this operation concluded when the U.S. suggested that Venezuela could expect a second attack if the first did not fully achieve its intended effects, and it threatened Colombia and Greenland as well.
The question arises: Does it even matter what the OLC has to say about the law here? In the case of Venezuela, we may have reached the point where the office is simply not in a position to supply a credible legal defense of the U.S. military action. This is not to suggest that OLC lawyers are somehow at fault. The debate over OLC’s role in use-of-force issues, including views I have written about at length, has been going on for some time. Executive branch precedent supporting various deployments of force has expanded over the years under both Democratic and Republican administrations. OLC is also constrained by the process for issuing opinions, which limits its responses to only those questions that the White House chooses to ask and the “particular facts and circumstances” it elects to present in support of its request. And we have in hand no opinion on which to base an assessment of its quality. But the net effect—more pronounced in the circumstances of the Venezuela actions than ever before—is that the office is poised to become a convenient vehicle for the administration to make meritless, but politically useful, claims that it has taken law seriously in deploying U.S. military might.
These questions about OLC’s role—about the role of law—in this military action require answers on both substance and process. Obtaining those answers in the case of Venezuela would require not only the release of the opinion, but also more information about how the opinion was developed. These comments are necessarily provisional: Again, we do not have the opinion, but it is also fair to note that this is because the administration has declined, as it did in the case of the boat strikes, to release it.
The Law
As Jack has written, and as we discussed in a video chat, the OLC is working with executive branch precedent that makes it “fairly easy” to justify the Venezuela venture. In the absence of “boots on the ground” and any risk of an extended military engagement posing a risk of American casualties, the OLC lawyers can deploy a “meaningless” test of whether the “national interest” supplies the needed legal justification. Over time, OLC has relied on various asserted national interests: regional stability, humanitarian interventions to save lives, support for United Nations resolutions and vital American alliances, and actions to limit the use or spread of nuclear weapons. These are interests OLC has so far recognized, but the list is open-ended. In sum, OLC’s test is not constructed or applied in a way that limits what might be included. This permissive legal framework works well for presidents who are the ultimate judges, for one branch of government, of the national interest.
Yet, as easy it may be for executive branch lawyers to construct a legal justification, should OLC use the “national interest” test here, it will have significantly and dangerously stretched its application. Will that office conclude that the law supports the use of force to attack and then indefinitely assume control of a country deemed to have stolen from the United States its oil reserves and production facilities, thereby enabling the U.S. to assert control over oil production for its own benefit as well as that of the host country? Will it conclude that there is legal justification for the attack because the country in question drew too close to state and nonstate actors hostile to the United States, thereby posing a threat—in this and other ways—to unquestioned U.S. dominance in the Western Hemisphere?
Or will it “go narrow” and ignore what the president and other administration spokespersons have repeatedly said about those objectives? It might then rest its decision on the Panama/Noriega precedent and a 1989 opinion that purportedly provides for the enforcement of federal law against a head of state who is an indicted drug trafficker.
If we assume that the office chooses the narrow route and rests its conclusion upon the law enforcement rationale, then the opinion will have scant credibility.
First, as a threshold matter of credibility, the seizure and arraignment of Maduro and his wife leave in place senior Venezuelan government officials directly implicated in the commission of the same trafficking offenses. As the DOJ indictment alleges at the outset, Maduro, the defendant, “now sits atop a corrupt, illegitimate government that, for decades, has leveraged government power to protect and promote illegal activity, including drug trafficking.” The administration is now touting the cooperative relations our government enjoys with that same regime that Maduro sat “atop,” only minus Maduro, and it is reportedly exploring re-establishing diplomatic relations. I suppose that the principle of prosecutorial discretion may apply in this context. Yet considering the scope of this use of force—seizing control of a country and its natural resources for a period of years—the asserted “law enforcement” rationale in these circumstances does not impress as a serious legal rationale for the administration’s actions in Venezuela.
Second, the president and, with the exception of the attorney general, other major administration figures, have put little emphasis on this law enforcement objective and far more on these wider “national interest” claims in support of the use of force. Yes, Trump opened his announcement of the attack on Jan. 3 with a discussion of Maduro’s alleged narco-terrorist activities. But by Jan. 7, the president was focusing on the project of “rebuilding” Venezuela “in a very profitable way” and on the goals of “using oil” and “taking oil.” A day later, Vice President Vance was asked a question about the benefits of this military action to the average American and he cited the advantages of “leverage on our enemies,” “high quality, low-cost power,” and the demonstration of “military excellence, which makes people afraid to cross us in the future.” When Secretary of State Rubio toured the networks after the attack to defend the administration’s actions, he referred repeatedly to the “national interest” rationale, including the control and disposition of the country’s oil resources.
Still, the administration might seek to navigate this problem by posing to OLC only a question about the application of the 1989 opinion and extraterritorial law enforcement. Whatever else the president says, or how often he says it, or what the U.S. government’s actions since the attack indicate about its purposes, are then beside the point for the purposes of this exercise in legal justification. A White House engaged with OLC in this fashion can then presumably end up with a Noriega-type opinion, but it will be untethered from the realities and implications of this presidential use of force without congressional authorization. And yet such an opinion can be, and will be, passed off as the requisite “legal” support for the Venezuela military attack.
And what, if anything, will the OLC have to say about international law? There seems little doubt among a range of experts that the Venezuela attack violated it. The president and other spokespersons have hardly bothered to address this question, except to cite a dubious self-defense rationale, and the president himself has declared that he does not “need international law” and that the only check on his deployment of force is “my own morality . . . my own mind.” Deputy Chief of Staff Stephen Miller has elaborated on this point in a way that makes clear this is the administration view, not just a Trumpian riff: “We live in a world in which you can talk all you want about international niceties and everything else,” he stated in an interview with CNN. “But we live in a world, in the real world … that is governed by strength, that is governed by force, that is governed by power.” We do not now know if or how the OLC opinion addresses the international law issue, but if it does and stands by the self-defense rationale, it is hard to see how this would count as a credible legal rationale in light of what the administration at the highest levels has said about its indifference to international legal constraints.
The Process
Many administrations deploying force abroad in pursuit of perceived national security imperatives have jerry-rigged legal justifications of questionable persuasiveness. In cases such as the Kennedy administration’s quarantine of Cuba in 1962, risking a nuclear confrontation with the Soviet Union, or President Franklin Roosevelt’s destroyer-for-bases deal with Great Britain in 1940, major executive branch energies were devoted to weak excuses for clear violations of domestic and international law. And yet prominent senior government lawyers insisted that however controversial the legal position may have been, the law still mattered in the decision-making process: It was taken seriously. In words of Abram Chayes, Kennedy’s State Department Legal Adviser who wrote a full-length book in defense of the Cuba quarantine, law still functioned as a “moulding factor” in the development of policy even if the position finally taken was controversial.
To judge whether in this administration, law was taken seriously on issues of this magnitude requires in the first instance release of the opinion. A mess of an opinion speaks for itself. But the manner and extent of involvement of lawyers in the decision-making process also matters, and on this score, what is needed are answers to these questions:
Which lawyers were brought in, and when, in that process?
With what degree of independence were they given their charge of developing legal advice?
How was the advice received, weighed, and incorporated into the administration’s legal position and public presentation?
The answers would illuminate the role of OLC and of other lawyers, including the White House Counsel and lawyers in the defense and intelligence communities. They would clarify the extent to which, if at all, the law was a “moulding factor.” Rather than a particular case of a legally contestable use of force, the issue here is a major step in the implementation of a broad policy governing the use of force in the Western Hemisphere—and, as the president has suggested, perhaps elsewhere overseas—which would not require congressional authorization except where U.S. forces were put in harm’s way.
Of course, the administration could decline to provide this detail, invoking executive and deliberative privileges. This refusal would also be revealing.
Conclusion
OLC performs many important legal advisory functions within the executive branch. Those in which the president has a direct interest may be relatively few in number, but where he has such an interest, as in the realm of national security, it is keen. OLC’s advice in this area has been consistently responsive to presidential preferences, and more often than not its role—the extent to which it was consulted and its advice followed, and the opinions it rendered—has been controversial. The question in the aftermath of Venezuela is whether the involvement of that office in this field of law is any more meaningful than the open-ended “national interest” test it employs. The only way to know is to see the full text of the legal analysis the office has apparently prepared and signed, and to have a full accounting of its role in the process leading to the attack.