Bob and Jack discuss the legality of the U.S. invasion of Venezuela to capture President Nicolás Maduro, how law matters to presidential uses of force, and what legal issues to expect at Maduro’s trial.
Mentioned:
“On the Legality of the Venezuela Invasion” by Jack Goldsmith (Executive Functions, Jan. 3, 2026)
Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (2024)
Thumbnail: President Trump delivers remarks at a press conference at Mar-a-Lago in Palm Beach, Florida, following Operation Absolute Resolve in Venezuela. (White House Photo.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Bob Bauer: Good morning, Jack.
Jack Goldsmith: Morning, Bob.
Well, since the last time we spoke, much has happened.
We’re going to focus on what you most recently wrote about—and that is the deployment of force by the United States in Venezuela—and the different explanations the administration has provided. But in the course of that, of course, they seized the president and first lady of the country, brought them out of the country to the United States to be tried. Let’s break down some of the points in your most recent posting, the one that you put up over the weekend, and talk about that also somewhat in light of questions that have been raised just generally on this topic since then.
Does that work for you?
That’s great. We should also talk a bit about the trial going forward and some of the legal issues there.
Absolutely. So as you begin in your post, you say there are few, if any, effective legal constraints on presidential deployments of force.
So the question I have for you, and you walk through that, explain that at length, the question that I have for you is, should somebody take from the way you have described the evolution of presidential authority in this area, opinions produced by the executive branch and so forth, practice. Should somebody conclude that the whole question of the legality of this kind of deployment of force is really largely a pointless question, that what we’re going to look at now is a political struggle between the branches, if there is one, but there really isn’t any law to be discussed in any meaningful sense?
So this is kind of a hard, I basically agree with that, but it’s kind of a hard question to answer, and let me explain why. I mean, first of all, we don’t have any Supreme Court precedents. So the court really has not engaged with the question ever about the circumstances under which the president can use unilateral force.
The only context really was in the prize cases in the Civil War when it basically upheld Lincoln’s exercise of essentially self-defense there. So when we’re talking about law, one major source of law is just not there. So what are the sources of law?
Well, we’ve got the constitutional text and we’ve got 250 years of practice. Now, there’s a great debate over the original understanding of the War Powers and the Declare War Clause, the Commander-in-Chief Clause, and the like. There’s been 250 years of practice since then.
It’s all been in favor of the president. The president has exerted over 250 years greater and greater and more extravagant and extravagant uses of force without congressional authorization. Congress has basically acquiesced.
The War Powers Resolution in 1973 was Swiss cheese and has not proven to be much of a check on the president. And Congress in these uses of force (and there have been lots of them) tends not to rise up and check the president. So when we’re talking about law here, we can either look to the founding documents, which are contested and have been overtaken by practice in 250 years, or we can look at the executive branch precedents.
My point in the piece was that under the executive branch precedents, which I’m not saying are the definitive statements of the law, that this was fairly easy to justify. And the final point I’ll make is, and it’s basically where you started, I’ve been emphasizing this for a while and we’ve talked about it for a while. I just don’t think there are effective legal constraints on the president, i.e. a situation where an executive branch lawyer is going to tell the president in a situation where he thinks the use of force is necessary, that there’s a powerful argument against it. The only possible legal argument in the OLC opinions against unilateral uses of force in any situation where the president might want to, is in an extreme boots-on-the-ground situation where there’s a persistent US presence and a serious threat to US troops on the ground. And in that situation, OLC has held out the possibility that congressional authorization may be necessary. But right now, anyway, we’re not near that.
Let’s go to practice just for one more second here. What is the legal significance of that? So let’s assume presidents—and I’m going to put this in deliberately sort of blunt terms—they get away with it because the political process just is simply not structured to respond effectively to presidents who overreach their authority, give reasons of national interest, rally public opinion behind them.
Congress just is weak in that circumstance. What does it mean that the president has repeatedly gotten away with it as a legal matter? How does that bear on how we should think about the law?
I don’t know how to answer that beyond what I just said. It’s not clear what one would refer to as the relevant legal principles. They’re contested.
One can make an argument from founding sources, and even this argument is contested, but one can make an argument from founding sources that where the president is in his claimed authority to use force now is unconstitutional. One could look at the Declare War Clause and have a certain interpretation of that. One could have a certain interpretation of the Commander-in-Chief Clause.
So there are legal materials one could draw on, but they’re contested. All of these principles are contested. So I’m not sure what it means to say that the president got away with it.
I mean, this is an area where presidential legal interpretation has been dominant, and the only force that can potentially check it is Congress. Congress did assert a theory of Article II in the War Powers Resolution. It stated its theory of what the president’s powers were.
Congress has plenty of tools to assert its own legal prerogatives, its own view of the Constitution, and to check the president. There are many ways Congress can push back through funding, through conditions, through oversight, and it has at times. I mean, in the Somalia matter, in the Lebanon matter in the 1980s, Somalia in the 1990s, Congress rose up, pushed back against the president.
But this is an area where we can talk about law, and the executive branch has all these opinions. But the truth is, it’s really law in the hands of the political branches, and it’s up to the political branches to sort it out. That’s the way I view it.
So let me just restate the question to make sure I understand, again, the legal significance of practice. Presidents do something. Congress is unable as a political matter to respond, and the absence of that response means presidents have added to the law in their favor.
We’ve done it before, so we clearly can do it again. You have acquiesced, and therefore that has legal significance that you didn’t respond in that situation to the claim of authority that I, the president, made.
So that’s not quite the argument I was making, but let me clarify. So there are two ways to think about it. Let’s imagine that this case actually came before the Supreme Court, that the Supreme Court set aside the political question doctrine, set aside standing concerns, and that there was a justiciable case that could brought before the Supreme Court.
And the question then would be, well, what are the president’s powers to use force without congressional authorization? The president would make the argument you just made, that there’s been a long course of practice that has been acquiesced in by Congress, and that this practice liquidates the meaning of the Constitution in separation of powers, and that therefore that long practice of congressional irrigation of power has liquidated into an interpretation of articles one and two that allow the president to use this force. That would be the constitutional argument. It would be a tough argument to make.
Curt Bradley’s got a great book on this, on the role of practice in foreign affairs and political branch practice and understanding the meaning of separation of powers. It would all hinge on whether Congress could be deemed to have acquiesced, and Congress would claim, or the parties representing Congress would claim, no, they haven’t actually acquiesced. They had the War Powers Resolution, and you can’t view silence as acquiescence because there hasn’t been affirmative acquiescence.
That would be the terms of the debate if we’re trying to figure out the significance of practice for the meaning of the Constitution. It would be, how do we think about liquidation as informing separation of powers? I think that answers your question.
That’s, I think, the legal or legalistic answer. As a practical matter, however, the courts aren’t going to adjudicate this. At least, they haven’t yet, and I don’t believe that they will.
As a practical matter, separate from what I just said, the president has lawyers who, over the course of time, have written dozens and dozens of these opinions that now constitute a body of precedent that drives executive branch decision-making. There’s no judicial force to stop that. Only Congress exercising its political prerogatives, perhaps making legal arguments, can check that.
Does that make sense?
Yes, it absolutely makes sense. But turning now to the precedents that the executive branch itself generates, again, somebody would say, well, what can we make of that? Normally, presidents get out of their lawyers what they want.
I’ll say that maybe uncharitably because that’s not always true. But by and large, the president, and certainly this president, has been very selective about the lawyers chosen for the task. What does it mean that presidents order up these legal opinions, and that in turn shapes the legal debate when they’re entirely self-serving?
The branch is basically not constraining itself in any way.
Yeah, I definitely do not think that that has historically been true as a general matter. There are lots of instances of executive branch lawyers saying no to the White House or advising the White House that some course of action is unlawful, and the White House acquiescing in that. There are lots of examples of that.
Yes, of course, there are lots of examples of executive branch lawyers finding ways to allow the president to do what he wants to do. In the war powers context, especially, I believe the lawyers have three, because these are the highest possible stakes. When the president decides that he thinks he needs to use force, and I’m talking about a whole run of presidents, not just Donald Trump.
Given the long, long line of practice of presidents using unilateral force, going back to the 18th and 19th century, at least, early 19th century, it’s very hard for lawyers in light of all those precedents and all those opinions. I’m not saying it’s impossible. I’m just saying it’s very hard for them, and it obviously depends on the circumstances, to say no.
This is the point I’ve been making for years now. The presidents are so overwhelmingly in favor of the president, of the president, both on the self-defense front, hugely capacious precedents and opinions, and on the offensive use of force front, that I just don’t think, as I’ve said this many times before, and people don’t like it when I say it, but I believe it’s true. I just don’t think that even within the four corners of the OLC opinions, that there’s much constraint on the president.
I’m not sure if that answers your question.
No, it does. I think you’re right about, certainly in my experience, such as it was, there are certainly cases where OLC does not concur in a request that the White House makes or the president makes for a legal blessing of a particular initiative. But as you point out, the situation changes dramatically when it’s really important to the president, particularly in the national security and foreign policy context.
And there, it isn’t easy to find many cases where the lawyers in the administration, wherever they may be found, who ultimately are relied upon to produce the opinion, stand up to the president and say, no, you can’t do it in a way that effectively constrains the president.
I’ve got a few scars myself from my time in office in dealing with that, but I agree it doesn’t happen very often. Okay.
Let’s talk about some of the doctrines or legal justifications that appear in executive branch precedent. National interest. Secretary Rubio took to the networks yesterday.
I don’t know that he swept all the Sunday TV shows, but he was on many of them. And he kept on bringing up the subject of national interest. It was our national interest.
And he interpreted it or he applied it very broadly. Here’s a quote, and I’d like to have your comment on this. It’s just a matter of its fidelity to executive branch treatment of this particular term, national interest.
Quote, and the first steps are securing what’s in the national interest and also beneficial for the people of Venezuela. And those are the things that we’re focused on right now. Again, here are the interests, no more drug trafficking, no more Iran Hezbollah presence there, no more using the oil industry to enrich all our adversaries around the world and not benefiting the people of Venezuela, or frankly, benefiting the United States and the region, unquote.
So there’s a whole range of things there. And I could mention a few others that I think by implication, he included in the term national interest. Is there any boundary to the president’s self-proclaimed legal authority to declare something to be in the national interest and therefore support the deployment of force?
There’s no declared boundary in the OLC opinions. The OLC opinions have invoked the national interest as a basis for the president’s offensive use of force. It’s come up with a long list of national interests.
Some of them were hinted at there, self-defense is one, Hezbollah matter, humanitarian concerns have been one, regional security is often invoked as a national interest. These are very capacious national interests as a basis for the president to use unilateral force abroad. It’s one of the reasons this national interest test is one of the reasons why I think the opinions are not meaningfully constraining on the president, because even after you have that long list, the list doesn’t purport to be exclusive.
And they’ve been adding to them in recent decades. So this has the patina of legal analysis, but there are no stated limitations on the national interest test in the OLC opinions, other than that point I made earlier about significant boots on the ground with significant presence that poses a significant threat to US troops. OLC has recognized that as a check on the national interest, but for operations like this one, where it’s in and out quickly, it’s mostly force at a distance, although not completely, there are no stated constraints on what can be the national interest.
Some of the ones he mentioned haven’t been mentioned in prior OLC opinions, but I have no doubt that he used the word national interest to kind of key off of what the lawyers were telling him was the important word. And another important word that they used a lot during the press conference was that this was an apprehension operation and that this was an FBI arrest supported by the US military. That ties into another legal justification, the bar memo that I referred to in my piece, that basically says that the executive branch can enforce arrests extraterritorially.
So in other words, on the national interest point, just to bring it sort of to a conclusion, a president could plausibly, and I think this administration has come close to saying this, maintain that it is in the national interest of the United States, and therefore the president can deploy forces necessary to ensure that no regimes take hold south of our border in Central or South America that we deem hostile.
I mean, there’s nothing in the precedents that would rule that out. You would have to bring it into the language of the OLC opinions and talk about regional stability and the like. But look, Bob, as I mentioned in my piece, it’s not like there’s not a long history of United States intervention in South and Central America violating sovereignty and running things.
I mean, and this is another problem for the OLC lawyers, there’s a very long history of just this kind of action or something very similar to it. So, and I’m sorry to sound so skeptical about legal constraints here, but I just don’t believe that, and I haven’t for a while believed that there are significant ones. And let me just say, I think this is a very important point to underscore.
Immediately after these operations happen, every time this happens, Libya, Kosovo, Iran, all of these unilateral uses of force without congressional authorization, we immediately jump to the law and commentators immediately say this is illegal depending on whether they like the war or not, or they defend it as being lawful. And we have this debate about whether it’s lawful or not. And I frankly think it’s kind of a meaningless debate in almost every circumstance.
The issue is why has Congress given the president this massive military force without constraints? Why does it continue to acquiesce in the president’s use of force? Why isn’t Congress exercising its prerogatives to its constitutional prerogatives and constitutional responsibilities to check these things?
The lawyers tend to flee to the legal arguments. I think the legal arguments in this context are not terribly meaningful and that the focus should be on the politics of this. And the politics are that Congress has let the president get away with it knowingly across administrations, left and right, Democrat and Republican.
And the Democrats tend to complain about Republican uses of force and vice versa. But all of this stuff takes place in the rhetoric of law that I think is largely meaningless.
Before we move on to the trial, now the Maduro’s in the United States and I think is being arraigned today, I assume also the first lady, let me just ask you one last question about the sort of debate that you correctly say erupts immediately on episodes like this. Is it important that we even indulge those kinds of debates? Isn’t it important that anybody actually cares enough to raise the question of whether something is legal?
Because if it passes completely from the dialogue in the aftermath of something like this, then we’re really sort of completely outside the zone of any concern for law. Or is it healthy that we don’t bother with it so that we can stay focused on the political struggle, which you think is really the material concern?
I’m not saying people shouldn’t make legal arguments. I mean, law is the language through which we criticize presidential uses of war powers. That’s just the natural language that we use.
And, you know, and people tend not to get down into the weeds the way I do in terms of and the way others do. I’m not saying I’m the only one down into the weeds of what these opinions say, what the historical practice is, what the contestation about the founding was. I’m not saying people shouldn’t make the argument.
I’m just saying that I’m not sure. I’m just not sure what purpose it serves. There’s not going to be judicial review.
And there’s the president has his precedents. The legal rhetoric, if it’s relevant, it’s relevant for influencing the politics, I think. And there are occasions when Congress rises up.
I mean, they came very close. It was by a split vote. Congress almost denied Clinton.
It was a tie vote, the authority to continue the war in Kosovo. And as I say, they’ve pushed back in other contexts. So I’m not saying that people should not argue in the language of law.
They can argue in whatever means they want. And sometimes I suppose that this legal rhetoric can be useful to the politics. The point is that, frankly, it’s the politics that are going to matter in checking the president.
It’s the politics of what the president thinks he can get away with, the politics of how this is going to play out, owning Venezuela, the politics of whether there’s going to be pushback in Congress, the politics of whether Congress can get his act together to do anything.
So let’s turn to an area where I think we’re in a much more clearly defined zone of law, and that is the trial that will take place, or at least legal proceedings will take place, who goes to trial, doesn’t go to trial, I don’t know, in the Maduro case. Talk for a second about what the impediments may be for a court hearing the case, or if a court hears the case and dispenses with any argument that it can’t, what legal defenses, based on the extraordinary circumstances of his arrest and rendition to the United States, what legal defenses are available to Maduro, and how would you assess their strength?
Sure. So I think we’ve seen this play out already. And I think that the issues in the Noriega trial that took place in the 90s, I believe it was, a lot of the issues that are going to be fleshed out in the Maduro trial, assuming the trial goes forward, were anticipated and resolved in the lower courts in the Southern District of Florida and the 11th Circuit in the and brought back to stand trial in the United States for violating U.S. federal criminal law. And the first issue is going to, and I’ll just tick through them, and I might not cover them all, but these are the ones I know that will come up. Did the abduction, or whatever you want to call it, the snatch or the extraterritorial arrest, does that by itself constitute a due process violation such that Maduro can’t be trialed?
The answer to that question will almost certainly be no, under a doctrine called the Care Frisbee Doctrine. It goes back to the 19th century, some Supreme Court cases that basically said the circumstances in which the person is brought to trial do not impact due process. That turns entirely on the process given in trial.
He’ll also maybe try to invoke the UN Charter. First of all, he’ll probably try to invoke head of state immunity. He’ll claim immunity from prosecution.
It’s pretty clear to me he won’t get head of state immunity. The executive branch’s views on this will have a lot of weight, if not dispositive weight with the courts, and the executive branch will claim that he wasn’t a I don’t think there’s a case called Alvarez-Machain that involved another US extraterritorial arrest where the Supreme Court said that the extradition treaty, unless it expressly precluded extraterritorial kidnapping, did not prevent the trial from going forward.
I doubt that the UN Charter will work. It didn’t work in the Noriega trial because the treaty wasn’t self-executing and didn’t confer individual rights. I doubt that he’ll be able to claim POW status since there wasn’t, unlike in the Noriega context where Noriega had declared war against the United States, there was no war here.
Those are some of the standard defenses that I’m sure will come up. They’ve all been fleshed out in the 11th Circuit and in the Southern District of Florida. I’m not saying, I mean, I basically think the courts there got it right, but it’ll all be relitigated.
Certainly those decisions aren’t going to be binding. So all of these issues and others will be relitigated. There’ll be a question about the extraterritorial application of the federal criminal laws.
I think the government will win that. I want to emphasize that I’m giving thumbnail sketches of these legal issues and thumbnail sketches of how I think they’ll come out. They’re all more complicated, but those are some of the main legal issues that will come up.
Let me press further on one question. Noriega was the de facto head of state. Maduro, who we’d recognized as the president of Venezuela for some time until an election that was widely understood to be fraudulent, the United States recognized him as a head of state.
He was, as of the time of his capture, he was the quote-unquote president of Venezuela. Does that make any difference here that Noriega was in a different position than Maduro?
I don’t actually know the factual answer to this question about whether Maduro was the recognized head of state by the United States at the time of capture. I don’t believe that’s true, but I actually don’t know the answer to that question. That will inform the answer, but also I believe, although this is not set of law, that the United States would be able to prevail on a head of state immunity defense if it said he doesn’t warrant it, even if he were the recognized head of state.
That’s a more complicated issue. If he was the recognized head of state, obviously, recognition is an exclusive presidential power. He can be de-recognized or recognition can be removed by the president unilaterally.
The executive branch has been given extraordinary deference by the courts in the determination of who warrants head of state immunity, but I don’t actually know the status of recognition at the time of capture.
An extraordinary set of circumstances. But as you point out in your piece, this is not only where we are, but where we have been for a long time.
I think it is, unfortunately. The president gets to decide how to use military force abroad, and that’s where we are.
Thanks, Jack.
Thank you, Bob.
