Questions linger in Congress about DOJ legal rationale for Venezuela strike

WASHINGTON (CN) — Top Senate Democrats signaled Tuesday that they had yet to receive a formal legal rationale for the Trump administration’s strike inside Venezuela, which ended in the capture of President Nicolás Maduro.

And it remains unclear whether the Justice Department’s Office of Legal Counsel prepared such a memo for last weekend’s strike, though it has produced similar legal justifications for the administration’s recent military actions in the Caribbean.

White House officials and congressional Republicans have maintained that the operation to capture Maduro, which involved U.S. special forces and included sorties by attack helicopters and fighter jets, was a legally sound law enforcement operation against a person indicted under U.S. law. The deposed Venezuelan president, now standing trial in New York, was initially charged in 2020.

“The U.S. military operation in Venezuela was a decisive and justified action,” House Speaker Mike Johnson told reporters Monday following a closed-doors briefing with administration officials, including Attorney General Pam Bondi. “Nicolás Maduro is responsible for the deaths of untold thousands of Americans after years of trafficking illegal drugs and violent cartel members into our country. This is undisputed.”

But lawmakers have so far provided few details about the White House’s legal justification for capturing Maduro.

Virginia Senator Tim Kaine, who has led the charge among Senate Democrats to clamp down on the Trump administration’s use of war powers to conduct air strikes on purported Venezuelan drug smuggling boats in the Caribbean, told Courthouse News that he’d seen “zero” legal rationale from the Office of Legal Counsel backing the weekend’s operation.

Kaine said he had only seen a 40-page classified opinion provided to lawmakers late last year as justification for the boat strikes. “What’s not in that opinion is any legal rationale for a strike other than in international waters.”

The Virginia senator said he had not seen a separate Justice Department justification for the strike that captured Maduro.

An aide for Senate Minority Whip Dick Durbin, the top Democrat on the Senate Judiciary Committee, told Courthouse News that his office had also not yet received such a legal opinion from the Justice Department but did not say whether the lawmaker hoped to procure one.

Durbin and Iowa Senator Chuck Grassley, chairman of the Judiciary Committee, took a phone call with Bondi on Tuesday morning to discuss the Venezuela strike. The Illinois Democrat told reporters following the call that the attorney general had answered his questions.

The Judiciary Committee leaders were excluded from Monday’s briefing, though the White House has framed the Venezuela strike as a law enforcement operation requested by the Justice Department — the agency for which the Senate’s legal affairs panel conducts oversight. Grassley and Durbin issued a rare joint statement at the time criticizing their exclusion.

Durbin told reporters Bondi was surprised that the Judiciary Committee had been left out at first.

Asked whether Grassley was interested in getting a legal opinion from the Justice Department’s legal counsel office, a spokesperson for the committee chairman referred Courthouse News to social media posts about his phone call with Bondi.

In a post on X, Grassley thanked the attorney general for her briefing and said the Judiciary Committee would continue to work with the Trump administration “as the case develops.”

Lawmakers present at Monday’s briefing were similarly tight-lipped about whether the Justice Department had offered a legal opinion justifying the Venezuela strike. Florida Representative Brian Mast, chairman of the House Foreign Affairs Committee, declined to say directly whether Bondi had provided an Office of Legal Counsel justification.

Mast told Courthouse News instead that the administration had given Congress “every legal justification that was required.”

A spokesperson for the Justice Department declined to comment on whether the Office of Legal Counsel had prepared an opinion for the Maduro operation or whether the agency had provided such a document to lawmakers.

If such an opinion exists, it wouldn’t be the first time in recent history that the Justice Department has offered legal cover to a military operation aimed at capturing a foreign leader and returning him to the U.S. for trial. The Office of Legal Counsel in 1989 published similar justification for the invasion of Panama, during which federal law enforcement arrested the country’s de facto ruler, Manuel Noriega.

Bill Barr, who would later go on to serve as attorney general under Trump’s first administration, authored the Justice Department opinion, which argued that the FBI could investigate and arrest people abroad “even if those investigations and arrests are not consistent with international law.” The opinion also held that the president has constitutional authority to direct the FBI to make arrests that violate international law.

Some legal experts have pointed to the Noriega operation as the closest corollary to Trump’s arrest of Maduro. But experts have argued that, unlike Venezuela, the government of Panama had formally declared war against the U.S. in 1989 and that Panamanian forces had killed a U.S. Marine ahead of the invasion.

Meanwhile, Maduro, held at a federal prison in New York, was arraigned Monday on narco-trafficking charges. The deposed Venezuelan leader has pleaded not guilty.

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