Trump’s Venezuela Attack Is a Uniquely Dangerous Threat to the Constitutional Order
INSIDE: Abrego Garcia ... Hannah Dugan ... Jack Smith
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
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We’re kicking off the new year with our first Morning Memo Live event on Jan. 29 in Washington, D.C.
I’ll be moderating a panel discussion on the politicization of the Justice Department, featuring:
Stacey Young, a former 18-year DOJ veteran who is the founder and executive director of Justice Connection, a network of DOJ alumni providing support to current and recent DOJ employees;
Aaron Zelinsky, a former assistant U.S. attorney in Maryland who served on Special Counsel Robert Mueller’s team, where he prosecuted Roger Stone, and who is now a partner at Zuckerman Spaeder in Baltimore; and
Anna Bower, a senior editor at Lawfare who covers rule of law issues and fields wacky Signal messages from Lindsey Halligan.
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Trump’s Venezuela Misadventure
As ghastly as the lawless U.S. attacks on alleged drug-smuggling boats had been, it was clear all along that they were merely a prelude to an equally lawless but more robust military action against Maduro’s regime in Venezuela. The weekend’s surprise decapitation strike — in violation of international law, U.S. law, and Venezuela’s national sovereignty — sets the United States on a familiar course of both historical Latin American interventionism and 21st century regime change with no plan or exit strategy.
What is unfamiliar about it and makes it more alarming than previous foreign escapades by the United States is that President Trump is claiming and exercising an unbridled form of executive power not heretofore seen in the United States, unconstrained by a pliable GOP-controlled Congress that has abdicated its constitutional powers.
Trump’s comments last night on Air Force One suggest that no country is safe from his impulsivity, especially as his domestic political fortunes darken amid his lame duck status:
In addition to a second strike against Venezuela, Trump threatened Cuba, Mexico, Colombia, Iran, and Greenland.
Sen. Lindsey Graham (R-SC): “You just wait for Cuba.”
“We’re in charge” of Venezuela, Trump said again.
Maduro and his wife are scheduled to appear in federal court in Manhattan at noon for arraignment on a newly unsealed four-count superseding indictment alleging (1) a narco-terrorism conspiracy, (2) a cocaine importation conspiracy; (3-4) possession of and conspiracy to possess machine guns and destructive devices.
As of last evening, the Trump administration still had not briefed the Gang of Eight, according to Hill Democrats.
The Lawlessness
While U.S. presidents have increasingly bypassed Congress and engaged in hostilities abroad on a largely unilateral basis, no prior president has simultaneously asserted such wide-ranging executive authority while aggressively sidelining the legislative branch not just in foreign affairs but in matters of the purse. It sets up a uniquely dangerous threat to the constitutional order:
Just Security: “[S]triking Venezuela and abducting its president, is clearly a violation of the prohibition on the use of force in Article 2(4) of the UN Charter. That prohibition is the bedrock rule of the international system that separates the rule of law from anarchy, safeguards small States from their more powerful neighbors, and protects civilians from the devastation of war. The consequences of flouting this rule so brazenly are likely to extend well beyond the case of Maduro’s forcible ouster.”
Steve Vladeck: “[A] blatantly unlawful use of military force overseas will go un-remedied—because there’s no viable legal pathway to challenge it; and because the one branch of government historically in a position to hold the executive accountable in these cases (you might remember it—Congress) has become completely feckless not just in general, but in pushing back against unlawful unilateral uses of military force, specifically.”
NYT’s Charlie Savage: Can the U.S. Legally ‘Run’ Venezuela After Maduro’s Capture?
In another egregious move, the Trump White House posted video of a perp walk of Maduro.
How We Got Here
By nearly all accounts, the U.S. attack on Venezuela was not an inevitability at the start of Trump II, nor the result of a clear ideological through-line or grand strategic bargain. It was, like so many Trump II initiatives, the result of an easily manipulated, feckless president who has no clear sense of the U.S. national interest. Was it the oil? Sure. The rare earth elements? Perhaps. But are those reasons any more plausible than Trump’s fetish for violence and Stephen Miller’s thrill in taking punitive measures against brown people?
As TPM’s Josh Marshall put it: “[I]’s a mistake to think there’s a ‘real’ reason mixed in with other subterfuges and rationales, or that it’s important to find out which one the ‘real’ reason is. It’s not that linear or logical.”
The real answer is “all of the above” and whatever other rationales the Trump White House seizes on in the comings days, weeks, and months to bolster its position.
The Never-Ending Nobel Madness
The WaPo reports on why Trump isn’t elevating Venezuelan opposition leader María Corina Machado:
Two people close to the White House said the president’s lack of interest in boosting Machado, despite her recent efforts to flatter Trump, stemmed from her decision to accept the Nobel Peace Prize, an award the president has openly coveted.
Although Machado ultimately said she was dedicating the award to Trump, her acceptance of the prize was an “ultimate sin,” said one of the people.
“If she had turned it down and said, ‘I can’t accept it because it’s Donald Trump’s,’ she’d be the president of Venezuela today,” this person said.
The Alien Enemies Act Was the First Salvo at Venezuela
As a reminder that the first attack on Venezuela under Trump II was the lawless invocation of the Alien Enemies Act in March, the Trump DOJ last night cited the ouster of Maduro in asking U.S. District Judge James Boasberg of D.C. for an extension of today’s deadline to submit a proposal for how to provide the original AEA detainees with due process:
Given substantial changes on the ground in Venezuela and the fluid nature of the unfolding situation, Defendants respectfully move for an extension to respond to this Court’s Order … directing them to propose a remedy by Monday, January 5. Over the weekend, the United States apprehended Nicolas Maduro. As a result, the situation on the ground in Venezuela has changed dramatically. Defendants thus need additional time to determine the feasibility of various proposals. Defendants therefore request a 7-day extension to evaluate and determine what remedies are possible.
Here’s the backstory on what Boasberg had demanded from the administration.
The Biggest News Over the Holiday
U.S. District Judge Waverly Crenshaw of Nashville unsealed his Dec. 3 order that found high-level Trump DOJ officials were involved in pushing the prosecution of Kilmar Abrego Garcia, bolstering his case for vindictive prosecution.
The finding that acting U.S. Attorney Robert McGuire may not have been the sole decision-maker contradicts repeated assertions made in court by the Trump DOJ to try to avoid scrutiny into the roles of top officials, including Deputy Attorney General Todd Blanche.
From Crenshaw’s much-anticipated order:
Specifically, some of the documents suggest not only that McGuire was not a solitary decision-maker, but he in fact reported to others in DOJ and the decision to prosecute Abrego may have been a joint decision, with others who may or may not have acted with an improper motivation. …
These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with Singh and others. … Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences.
An evidentiary hearing is scheduled for Jan. 28 on Abrego Garcia’s vindictive prosecution claims.
Hannah Dugan Resigns
Convicted of interfering with the arrest of an undocumented immigrant in her courthouse, Wisconsin state Judge Hannah Dugan has tendered her resignation from the bench, under threat of impeachment for statehouse Republicans.
ICYMI: Jack Smith Testimony
In a New Year’s Eve news dump, the Republican-controlled House Judiciary Committee released the transcript and video of former Special Counsel Jack Smith’s deposition testimony. Your regular reminder that Smith is being targeted by Republicans as political retribution for his investigations of Trump:
The Corruption: White Collar Crime Edition
“President Trump’s first year back in office turned the world of white-collar enforcement upside down,” the WSJ reports.
There Is Always More Epstein
WSJ: The Incident That Prompted Trump to Ban Epstein From Mar-a-Lago’s Spa
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Welcome back David.
Hope you enjoyed the
holidays! A lot going on
and none of it good.
What a summary David. Thanks.