Days before a U.S. operation removed Venezuela’s President Nicolás Maduro in a nighttime action on Jan. 3, lawyers for President Donald Trump argued that the president could legally order the military to help law enforcement remove Maduro so he could face criminal proceedings in the United States, according to a Justice Department legal opinion made public this week.
The version released by the government was heavily censored, but the disclosed sections describe the legal reasoning as well as the risks the authors said were considered. The opinion is dated Dec. 23 and was prepared for the White House National Security Council counsel, according to the Associated Press.
The memo is described as a 22-page document drafted by lawyers in the Justice Department’s Office of Legal Counsel, an office that is often called on for complicated questions involving the executive branch. In this case, the opinion focused on whether Trump could direct the U.S. military to assist with the steps needed to remove Maduro from power.
The opinion concluded that Trump’s order would be authorized, the AP reported, and it cited multiple justifications. Those reasons included what the memo described as serious accusations against Maduro contained in a narcotics conspiracy indictment, along with “numerous other activities highly dangerous” in which Maduro and his associates were allegedly involved.
The memo also described a possible need to use force to protect civilians in Venezuela and abroad, and it addressed the possibility that U.S. personnel could face “armed resistance” while carrying out the transfer, AP said. The document includes a quoted account of assumptions officials asked lawyers to make about how many guards could be present and what conditions would likely be encountered.
In one passage, the opinion states: “Here we were told that we should assume that there were up to 200 armed guards in what literally is a strong, which have been sent and armed by another country only to ensure the security of Maduro.” It adds that “This level of anticipated armed resistance supports the need for military forces to provide security to the law enforcement personnel who carry out the handover,” according to the AP report.
Even as the opinion identified significant operational risks—depending in part on Maduro’s precise location at the time of the action—it concluded that the chance of the operation leading to a constitutional war requiring congressional approval was low. “Although we cannot speculate about any presidential decision in response to the significant loss of United States military personnel, we were assured that there is no contingency plan to engage in any substantial and sustained operation that would equate to a constitutional war,” the memo states, as quoted by AP.
The opinion further says officials were “assured” there was no contingency plan involving U.S. forces occupying Venezuela if Maduro’s removal triggered civil unrest. “Se nos aseguró además que no hay un plan de contingencia que involucraría el uso de fuerzas estadounidenses para ocupar Venezuela en caso de que la remoción de Maduro resulte en disturbios civiles en ese país. Basándose en esa evaluación de las intenciones de Estados Unidos, actualmente no planeamos ninguna acción que equivaldría a una guerra constitucional”, AP reported the memo as saying.
The memo also distinguishes between authority to authorize an action and the legality of how the action is carried out. It says that the fact a president “can legally authorize the operation” does not automatically mean that “any use of force in its execution is legal,” and that involved personnel, according to the opinion, “must implement” the order “reasonably,” the AP report said.
While Senate Republicans have accused the administration of not giving them advance notice about the incursion to capture Maduro and his wife, Cilia Flores, the new disclosure arrives as lawmakers debate limits on future actions. The AP reported that the Senate has approved a resolution aimed at restricting Trump’s ability to launch additional attacks against Venezuela, and that Trump had been pressing Senate Republicans to oppose the resolution at a Wednesday vote.