The Venezuela Boat Strikes and the Justice Department’s Golden Shield
How the Office of Legal Counsel Helps the White House in its Summary Killings
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Many commentators have argued that the Trump administration’s Venezuelan boat strikes are unlawful. Marty Lederman, for example, maintains that the strikes lack any basis in Article II and violate the assassination ban as well as the criminal murder prohibitions in the U.S. Code and the Uniform Code of Military Justice.
The Trump administration has concluded otherwise. Charlie Savage reports that “[t]he Justice Department’s Office of Legal Counsel — which Mr. Trump sidelined for most of the year until appointing an official to lead it in August as preparations for the attacks ramped up — has produced a memo apparently blessing the campaign.” This classified unpublished memo is crucial inside the government because it confers a “golden shield” of immunity from criminal prosecution on anyone who acts in reliance on it.
The Golden Shield
The attorney general—and, by delegation, OLC—wields a power akin to an advance pardon: the ability to insulate executive officials from future criminal liability through legal advice. When the DOJ advises the president or another officer that a proposed action complies with federal criminal law, that opinion effectively guarantees immunity from prosecution by a later administration.
Former Central Intelligence Agency general counsel John Rizzo called such advice a “golden shield.” He had in mind the legally flawed OLC opinions that concluded that the CIA’s post-9/11 enhanced interrogation techniques (EIT) did not violate the criminal ban on torture. Rizzo viewed the OLC opinions as “the Executive Branch’s functional equivalent of a Supreme Court opinion [that] would protect the Agency and its people forevermore.”
The OLC EIT opinions failed to protect the agency from political fallout but did protect it from prosecution when the Obama administration took power. Before entering office, Eric Holder, President Obama’s attorney general, condemned the CIA program (among other Bush-era initiatives) as “excessive and unlawful” and called for a “reckoning.” During his confirmation hearing he agreed that waterboarding, one of the EIT techniques, was unlawful.
Yet when he later ordered an investigation into the Bush-era interrogation practices, Holder made clear that the DOJ would “not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
How the Golden Shield Works
Holder never explained this decision, but several legal and practical considerations support OLC’s “immunity-conferring power.”
First, the attorney general and, by delegation, OLC exercise the president’s Article II power to determine governing law for the executive branch.
Second, under the doctrine of entrapment by estoppel, it violates due process to prosecute someone who reasonably relies on an authorized government opinion that the vetted conduct is lawful, even if the opinion turns out to be flawed. The government cannot advise someone that an act is legal and later punish them for doing it. At oral argument in Trump v. United States, the special counsel’s attorney, Michael Dreeben, invoked this principle in trying to persuade the justices that a presidential immunity defense from criminal prosecution was unnecessary. He stated that “it would be a due process problem to prosecute a President who received advice from the Attorney General that his actions were lawful.”
Dreeben mentioned possible limits on entrapment by estoppel—“collusion or conspiracy that itself represented a criminal violation”—but also said that he did not see these limits as “a realistic option.” (For criticisms of the doctrine, see here.) One of several reasons why the limits are not a realistic option is that even if an OLC opinion approached the limits of entrapment by estoppel, the doctrine would likely not be tested in court because of the third element undergirding OLC’s immunity-conferring power: inter-administration DOJ comity.
Prosecution by one administration’s DOJ of officials who relied on a prior administration’s OLC opinion would undermine the efficacy of all OLC opinions, including legally sound ones, in the controversial contexts where they are most important. This in turn would disincentivize officials from seeking legal advice from DOJ lawyers which, in the aggregate, promotes compliance with the law. Regardless of whether you buy this last point or dislike OLC opinions, an attorney general (as Holder demonstrates) will not lightly act in a way that predictably and systematically undermines DOJ’s legal counsel role.
The logic of inter-administration DOJ comity is one reason why every White House acting near a criminal restriction has preferred a supportive Justice Department opinion above even the president’s technically legally superior but often practically less efficacious legal blessing on an operation. (It explains, for example, why even the Trump administration wants an OLC opinion here.) This logic has operated, as Holder’s flip-flop shows, even when the incoming administration believes that the prior administration’s OLC opinion was deeply flawed.
All that said, the norm of inter-administration comity after Trump 2.0 may not hold, or may not hold to the same degree, given the radicalness of the Trump administration’s approach to law and norms. The next Democrat-run DOJ will plausibly be indifferent to events after it leaves power, just as the current Trump administration appears to be. A winner-take-all-now attitude toward power renders norms irrelevant, as we are witnessing.
But even if this came to pass after Trump 2.0, it would be an uphill battle to convict those who rely on OLC opinions due to entrapment by estoppel and related doctrines. And it would likely even be an uphill battle to investigate contrary to the current norm, once one takes into account the president’s larger array of tools, including the pardon.
The Larger Array of Tools
Lederman says that in the Venezuelan boat strikes, the “U.S. military personnel crossed a fundamental line the Department of Defense has been resolutely committed to upholding for many decades—namely, that . . . the military must not use lethal force against civilians.”
He notes that military officials have a duty (enforceable by legal sanctions) to obey superior orders. But he adds—quoting the on-the-nose Commander’s Handbook on the Law of Naval Operations—that this duty “does not apply to a patently illegal order, such as one that directs the commission of a crime (e.g., an order directing the murder of a civilian [or] a noncombatant …”).
Any military officials involved in the clearly legally controversial Venezuelan boat strikes must negotiate their twin duties of following a superior order and not following a patently illegal order. An OLC opinion blessing the operation eliminates the difficulty and immunizes the officer (and everyone else) who relies on it from subsequent punishment.
Used this way, the golden shield supports the Trump administration’s broader effort to “blunt executive branch legal obstacles to President Donald Trump’s will.” Other elements of the effort include an executive order declaring the president’s and attorney general’s legal views controlling on all officials; fierce loyalty screening for all executive branch appointments (including, presumably, the new-ish OLC head, T. Elliot Gaiser); and quick-trigger dismissal for any whisper of disagreement or insubordination.
And then, of course, there is the president’s pardon power, the after-action and more powerful equivalent of the before-action OLC golden shield. President Trump in his first term used the pardon power to reward and help his friends, and he is continuing to do the same in his second. I do not believe Trump has yet issued preemptive pardons to protect persons not charged, as President Biden did earlier this year, and as other presidents have done.
But one can be absolutely certain that Trump will issue preemptive pardons at or near the end of his second term, probably on an enormous scale—especially since, as noted above, he will anticipate that a Democratic administration may have little reason to respect Trump OLC opinions in deciding whether to prosecute Trump officials. Pardons blunt this possibility. I expect Trump to issue hundreds and possibly thousands of preemptive pardons to everyone in his administration who may conceivably be subject to future investigation or prosecution, especially if a Democrat wins the presidential election in November 2028.
Conclusion
The Trump administration is not the first to use an OLC opinion to clear away concerns that a controversial new form of warfare might violate the law. The Bush and Obama administrations did likewise. Nonetheless, the OLC opinion on the boat strikes is—beyond its still-undisclosed substance—significant for two reasons.
First, it marks a reversal of the administration’s early practice of sidelining OLC. With a confirmed Trump appointee now running OLC, the White House has apparently discovered that the office can be helpful in alleviating legal concerns across the bureaucracy, especially in the military. It is a convenient discovery as the president expands the scope and scale of boat strikes on alleged drug traffickers, enlarges the United States’ Latin American military presence, and plans, according to some, to start a war with Venezuela.
Second, OLC’s golden-shield-conferring authority amplifies the administration’s already prodigious efforts to clear away legal constraints on Trump’s will and bring him closer to realizing his famous claim: “I have an Article II, where I have the right to do whatever I want as president.”
Thanks to June Lee and Tia Sewell for editorial assistance.