The trappings of law await Nicolás Maduro at the courthouse at 500 Pearl Street in lower Manhattan. There is an indictment. There will be prosecutors and defense counsel, a judge and briefs. In the end, when all is said and done, and if the Trump administration does not colossally bungle this case, there will probably be a conviction and a hefty prison sentence.
But we cannot lose sight of what has brought us here — to the surreal and yet somehow entirely foreseeable situation in which the Trump administration has illegally abducted the leader of Venezuela, a country that has engaged in no hostilities with the United States, without even the appearance of an effort to enlist the support of the American public or their elected representatives in Congress, and without even the semblance of a stated plan for how the country will be governed.
Congress is supposed to declare wars under the U.S. Constitution, and we have laws that are supposed to constrain unilateral military deployments without congressional consultation. The Trump administration has blown through both of those domestic legal prohibitions, either because they could not be bothered to get consent from Congress or they did not think they would get the votes. The administration has also thoroughly undermined the international legal order at the same time, and there are likely to be consequences across the globe.
“The action against Venezuela is manifestly illegal under international law, and cannot plausibly or by any reasonable standard be characterized as a law enforcement action,” Philippe Sands, an expert on international law, told me in the wake of the military action.
“What now is the plan?” he continued. “One need only to think of Nicaragua, Afghanistan and Libya, amongst others, to imagine what the consequences might be, and the encouragement it will surely give to others to act with such brazen disregard for the international legal norms that bind us all.”
Trump, of course, is not the first U.S. president to sideline Congress on matters of war and peace. Stretching the bounds of executive authority on military action may be especially tempting as many lawmakers appear increasingly eager to shirk the responsibility of such decisions. But the latest episode appears unique compared to previous interventions; more on that below.
Meanwhile, the average American might be shocked by the turn of events, but no one in Washington can seriously claim to be surprised.
The Trump administration spent months openly flaunting lethal and illegal boat strikes against alleged drug traffickers and threatening to topple the Maduro regime. When even the boat strikes became impossible to defend under the law after the revelation in November about a “double tap” strike that killed survivors clinging to a boat, the administration stonewalled. Despite the apparently indefensible nature of that attack, Republicans in Congress eventually rallied around Trump and Defense Secretary Pete Hegseth. There is a famous children’s book about what happens in these sorts of situations.
Trump declared in November that the airspace above and around Venezuela was closed, and weeks later he ordered a blockade of the country. Both of these actions were essentially acts of war — or, at a bare minimum, very clear statements of the administration’s intentions about what was coming.
Meanwhile, the Trump administration never made an honest and coherent case to the American public about what they were doing and why. Trump has repeatedly peddled the transparently ridiculous claim that each boat strike saved 25,000 American lives from drug overdoses. An emerging journalistic consensus now holds that administration officials coalesced around ousting Maduro based on three rationales — oil, drugs and immigration — but three different bad reasons to launch an illegal regime change war do not add up to one good one.
The idea that this reflects a serious effort to stymie drug trafficking was already rendered a farce by Trump’s decision last month to pardon former Honduran President Juan Orlando Hernández, who was serving a 45-year prison sentence after being convicted of trafficking hundreds of tons of cocaine into the U.S. — pretty much the exact same thing that Maduro is now accused of. You also cannot legally depose a sovereign nation’s leader because the country’s citizens are illegally immigrating to your country or because you want to seize their natural resources.
The Trump administration’s intellectual shell game should have been familiar to anyone who lived through the run-up to the Iraq war, when President George W. Bush’s administration offered up shifting and factually unsupported claims in the months before they took the country into war. That war is now widely understood as a historic mistake — something that Trump himself used to get elected in 2016 — but this obvious parallel appears to have eluded many in recent months.
What happens next on the ground in Venezuela is anyone’s guess at this point, but it is also a logical consequence of our current political situation — one in which Congress and the Supreme Court have largely let Trump have his way since returning to office. There is, however, nothing permanent about this arrangement, and the public has the power to change it.
Already, there have been efforts by administration defenders to draw legal comparisons between Trump’s actions in Venezuela to those of other presidents in different contexts. The comparisons are premature at best and facile at worst.
“This pushes precedents very far, but we don’t know just how far yet, because so many facts and plans are unclear,” Matthew Waxman, a Columbia Law School professor and former George W. Bush Administration official, told me.
“All modern presidents have claimed broad power to use substantial military force without congressional authorization,” he continued. “Some of those contemplated regime change. One might call any of these violations of Congress’ prerogatives, but because these questions don’t get litigated in court, it falls to Congress to defend its own powers.”
The supposed precedents include Trump’s first-term strike against Qasam Soleimani, Barack Obama’s NATO-led bombing campaign in Libya, Bill Clinton’s participation in the NATO campaign against Yugoslavia and George H.W. Bush’s arrest and prosecution of the onetime Panamanian leader Manuel Noriega.
There are obvious factual distinctions. Soleimani was a senior military leader in Iran but not the head of state, and Trump did not decide that we would “run” the country afterward. Obama and Clinton each had the support of a robust international coalition and a legitimate humanitarian rationale for their decisions. (Obama, in any event, has said that his worst mistake in office was “failing to plan for the day after” the Libya intervention.)
Bush’s invasion of Panama in 1989 and arrest of Noriega appears most on point, but in that case the U.S. facilitated the swift installation of an opposition leader who had won a presidential election. Waxman acknowledged that the episode provided “some parallels and precedent” as a legal matter, but he noted that even “that operation strained constitutional and international law.” On top of that, “if this really does turn into a protracted occupation of Venezuela, it could far exceed the Panama case in terms of presidential unilateralism,” Waxman said.
Sometimes, however, a fine-grained legal analysis can obscure just as much as it illuminates.
Even if there were no distinctions between Trump’s actions in Venezuela and those earlier military campaigns, what would that prove? Many Americans were not even alive when some of those events happened, and all of those actions — by Trump, Obama and the first Bush — appear to have been illegal under U.S. law, international law or both.
What many people are really talking about when they invoke these comparisons is whether as a matter of policy, those interventions were as good or as bad as what Trump just did — not whether they were lawful. That is a different and legitimate discussion, but it is not one that legally vindicates the Trump administration.
We should have seen something like this coming — Congress, the press corps and the rest of official Washington.
Trump has spent the last year running roughshod over the American public’s representatives in Congress, with the Republican majority happy to play ball. Utah Sen. Mike Lee, a prominent anti-interventionist Republican, underscored this approach after the strikes on Venezuela — raising concerns with the move’s constitutionality only to back off two hours later.
Democrats, for their part, have been focused in recent months on releasing millions of pages of unvetted information from the Justice Department’s criminal investigative files on Jeffrey Epstein. In the process, they have generated even more conspiracy theories that will probably exist in perpetuity, and they have positioned the party behind the irresponsible and thus-far unsupported claim that there is a large “Epstein class” of rich and powerful criminals who will be decisively taken down once the public scours through everything that the Justice Department missed or intentionally covered up under both the Trump and Biden administrations.
This is not to equate the Democrats’ actions with the Republican Party’s institutional backing of the Trump administration, but if these are the adults in the room, I would hate to see the children.
Meanwhile, the Supreme Court justices — the six Republican appointees, more specifically —bear considerable responsibility for Trump’s actions and the chaotic state of American politics today.
Trump likely would not have been reelected without their intervention during the 2024 campaign had the court not rewritten the Constitution to grant him sweeping criminal immunity and effectively shut down the Justice Department’s prosecution over Trump’s effort to overturn the 2020 election results.
The decision — which immunizes Trump from future prosecution for pretty much anything that he can plausibly structure or describe as an “official act” of the presidency — has clearly emboldened Trump in his second term. How could it not?
On top of that, the Republican appointees on the court have facilitated Trump’s executive overreach and power grabs for most of the last year. The court has only recently started to put up the most basic effort to maintain some democratic guard rails. Last week, they finally brushed back Trump’s deployment of the National Guard in major U.S. cities run by Democrats after nearly a year of needless chaos and uncertainty. The justices also appear poised to invalidate Trump’s “emergency tariffs” after wasting several months taking up the dispute in the first place — and after a year of Trump antagonizing U.S. allies and adversaries alike and destabilizing the U.S. and global economies in the process.
Perhaps the most ominous feature of Trump’s foray in Venezuela is that it took place less than a year into Trump’s term. There are three more years to go and countless opportunities for more international interventions that are illegal, unwise or both.
Are there any checks that can be put on Trump? There is nothing the public can do about the Supreme Court (at least in the very short term), and American voters may have to overcome even more legal obstacles from the Republican appointees on the Supreme Court before the midterm elections. But the public will have an opportunity to change the composition of Congress in November, and it is possible that fact will weigh on GOP lawmakers even before then.
Republicans can see Trump’s approval rating sliding amid growing concerns about affordability. If chaos comes to Venezuela or Maduro’s arrest further upends the globe, they might be more reluctant to let Trump run wild. And if partisan loyalty proves too powerful, as is perhaps likely, they are set to hand Democrats control of at least the House. An emboldened opposition party might be able to impose some sort of meaningful constraints on Trump’s power in his final years.
