Advisory Opinions – "The Legality of U.S. Operations in Venezuela"

Episode Date: January 6, 2026
Hosts: David French (guest hosting for Sarah Isgur), with guest David Lat
Podcast: Advisory Opinions (by The Dispatch)

Episode Overview

This episode dives deeply into the legal ramifications of the United States’ recent military operation in Venezuela, during which U.S. forces entered Venezuelan territory, captured President Maduro and his wife, and brought them to the United States. The hosts focus on the constitutional, statutory, and international law aspects of this bold move, as well as the implications for U.S. executive authority. The legal rationale, the historical context, limits of presidential power, and wider consequences for international law are all unpacked in a rigorous but accessible tone. The latter part of the episode examines the Supreme Court’s Trump v. Illinois decision, concerning the federalization of the National Guard, before wrapping up with discussion on legal industry trends and the impact of AI on legal practice.

Key Discussion Points & Insights

1. U.S. Military Operation in Venezuela – Legal Justification

[03:32–15:24]

• Framing the Legal Issue: The Biden administration ("Trump administration" in the transcript, presumably either ongoing or due to error/context not fully clear) claims the operation was a law enforcement action, since Maduro was under U.S. indictment for narco-terrorism and drug trafficking.

  • David Lat quotes Vice President Vance (Yale-trained lawyer):
    “Maduro has multiple indictments in the United States for narco terrorism. You don’t get to avoid justice for drug trafficking in the United States because you live in a palace in Caracas.” [04:36]

• Reliance on 1989 OLC/Barr Opinion on Panama:
  The legal opinion used to justify the operation was originally formulated for the 1989 U.S. action against Manuel Noriega in Panama, asserting that:

  1. The FBI can legally arrest people extraterritorially.
  2. The President could lawfully order such arrests, even if it violated customary international law.
  3. The Take Care Clause allows the president further leeway beyond statute.
  4. UN Charter Art. 2(4) doesn’t restrict the president as a matter of domestic law.
  5. The authority could be delegated to the Attorney General.
  6. Such arrests abroad wouldn’t violate the Fourth Amendment.
  • David French questions the logic:
    “If you apply it, you could say... Bush didn’t need to go to Congress to authorize the Iraq War. He could have indicted Saddam Hussein for trying to kill his father... and said, ‘This is a law enforcement operation...’ It strikes me as just a remarkable bit of reasoning…” [10:30]

• The Limiting Principle Problem:
  Both Davids agree a key flaw is the lack of a limiting principle. If indicting a foreign leader justifies military action, any president could skirt congressional war authorization.

  • Lat observes:
    “As you point out, what is the limiting principle here?... Can you have a situation where just indicting someone then authorizes a military operation?” [11:16]

• Proposed Sensible Limit:
  French suggests arrest authority should end “the moment that extraterritorial law enforcement would constitute an act of war under international law.” [12:52]

2. International Law, Enforcement, and Double Standards

[15:24–23:39]

• Debate on International Law’s "Realness":
  Is international law “real” if major powers violate it at will? French describes large-scale voluntary compliance, but notes major power defiance undermines the system.

  • French:
    “If three of the five [UNSC members]... start to act as if the international law of armed conflict is not even a set of guidelines, just... virtue signaling, then it’s lost.” [21:30]

• Role of the UN Security Council
  Permanent members can veto enforcement, making it almost impossible to address violations by powerful states, as shown by Russia’s Ukraine invasion or the current U.S. action.

  • Lat:
    “Any one of the five permanent members can block the UN Security Council from adopting a resolution. So... the United States could just veto [condemnation].” [27:02]

• Potential Erosion of the International Order:
  U.S. disregard for legal limits could cascade into global lawlessness, weakening the post-WWII order designed to avoid spheres of influence and “gunboat diplomacy.”

3. U.S. Executive Overreach & Future Scenarios

[29:20–32:58]

• Threats Beyond the Law Enforcement Narrative:
  French notes that President Trump threatens Venezuela’s vice president to comply with U.S. oil interests, suggesting motivations unreconciled with legal justification and echoing 19th-century imperial tactics.

  • “If... the vice president of Venezuela says, ‘No, we’re not going to reopen our oil fields to American oil companies’... Can you bomb Venezuela?... Now, at this point, we’re just engaging in pure thuggery.” [29:47]

• Historical Echoes:
  French remarks: “The 1880s are calling and they’re getting their foreign policy back. American gunboat diplomacy... violated any conception of... international law...” [30:50]

4. Supreme Court Decision: Trump v. Illinois (National Guard Deployment)

[32:58–48:45]

• Case Recap:
  The administration deployed the National Guard to “permit immigration officials to execute the laws” during protests, citing 10 USC §12406. The dispute involved whether “regular forces” meant civilian law enforcement or only active-duty military.

• Supreme Court’s Holding:
  Majority (unsigned): “Regular forces” refers only to the U.S. military, not civilian police, so the President cannot federalize the Guard unless the regular military is unable to execute the law.

  • Also refused to recognize inherent authority to federalize the Guard separate from statutory language.

• Significance:

  • Lat: “Big loss for the administration. ... It is a decision that’s already having practical consequences because the administration has essentially... abandoned its efforts to deploy the National Guard in Chicago, Los Angeles, and Portland.” [37:01]
  • The decision was influenced by an amicus brief from Marty Lederman, a liberal legal scholar, illustrating cross-ideological persuasion via originalist textual analysis.

• Dissent (Alito/Thomas):

  • Criticized the Court for reviving an argument (meaning of "regular forces") dropped by the parties—raising "party presentment" concerns.
  • French: “I thought the party presentment argument was the most persuasive element of the dissent...” [39:28]
  • Lat counters: “Party presentment can’t change what the law is. ... Courts have to apply the law...” [42:38]

• Gorsuch’s Position:

  • “We’re just not in a position to answer these questions... right now.” [44:47]

• Notable Kavanaugh Footnote:

  • Kavanaugh clarifies that “reasonable suspicion” for immigration stops cannot be based solely on ethnicity and distinguishes between stops and arrests, attempting to counter critics who characterized prior Supreme Court opinions as legitimizing “racial profiling.” [48:45]

5. Inside the Legal Profession: Top Stories and AI in Law

[50:30–58:36]

• David Lat’s Top 10 Legal Stories:

  • Major story: Big Law firms’ deals with the Trump administration to avoid punitive executive orders, particularly commitments for ideologically broad pro bono work.
    • Lat: “In the law firm world, the sort of Trump v. Big Law story was a major story of the year.” [51:01]
  • The second most-read story: High-profile Supreme Court litigator Neil Katyal’s lateral move between top law firms.
    • French: “It’s fascinating to me how many people eat up inside baseball.” [52:26]

• AI’s Perils in Legal Practice:

  • Lat reported on law firms turning in briefs with “hallucinated” citations from AI tools.
    • “We have to be aware of the perils and the limitations of these tools…” [55:32]
  • French: “I cannot tell you how many times I will ask AI a question that I know the answer to and it gets it wrong... For right now, it is way too risky.” [56:26]
  • Discussion of possible return to handwritten blue books for law exams due to AI-driven cheating.

Notable Quotes & Memorable Moments

• On International Law’s Frailty:
  French:
  “If you take the United States out of the international legal enforcement equation, what you’re left with is...lesser powers trying to maintain an international structure. And... they just cannot do it.” [21:55]

• Steel-manning the Admin’s Legal Argument:
  French:
  “They’re actually relying on... a 1989 legal opinion... related to the American attack on Panama... If you apply it, you could say, for example, Bush didn’t need to go to the Congress to authorize the Iraq war. He could have indicted Saddam Hussein...” [10:13–10:43]

• On Precedent and Historical Regression:
  French:
  “The 1880s are calling and they’re getting their foreign policy back. American gunboat diplomacy in Central and South America violated any conception of... international law…” [30:51]

• Lat on Judicial Independence:
  “This is a rare loss for the Trump administration on the... emergency... docket. The administration has a very high win rate on this docket, but in this case, they lost…” [37:01]

• Kavanaugh’s Clarification on Reasonable Suspicion:
  Summarized by French:
  “I think what Kavanaugh was trying to do here is just to make it very crystal clear... that reasonable suspicion is for a stop only, not an arrest. And reasonable suspicion cannot be based solely on ethnicity.” [44:47]

• On AI in Law:
  French:
  “I cannot tell you... how many times I will ask AI a question that I know the answer to and it gets it wrong. Just a ton... For right now, it is way too risky.” [56:26]

Timestamps for Key Segments

| Timestamp | Segment | |----------------|-------------------------------------------| | 03:32–15:24 | U.S. operation in Venezuela: Legal grounds, OLC opinion, executive power, and international law | | 15:24–23:39 | International law’s limits and enforcement, UN role, precedents, and collapse scenarios | | 29:20–32:58 | U.S. threats to Venezuelan VP, “gunboat diplomacy” analogy | | 32:58–48:45 | Supreme Court’s Trump v. Illinois decision, regular forces, dissent analysis, and Kavanaugh footnotes | | 50:30–58:36 | Law firm news, original reporting, AI in law, “hallucinations,” and blue books return |

Episode Tone & Takeaways

The discussion is rigorous, skeptical, and deeply informed, yet approachable. David French and David Lat break down complicated and high-stakes legal issues with a commitment to constitutional order and rule of law, peppered with pointed skepticism of executive overreach. They also maintain a collegial, conversational style, balancing serious critique with light banter and inside-baseball legal world tidbits.

For listeners wanting the critical takeaways:

• The legal justification for the Venezuela operation is historically rooted but dangerously broad and arguably violates both domestic and international law.
• The U.S. eroding its own legal and constitutional limits could unravel the global order it once built.
• Recent Supreme Court decisions show even a Trump-era majority will not always back executive overreach.
• The intersection of current events, legal theory, and professional trends (like AI in law) is both fraught and fascinating.

Memorable Closing

French: “I do wonder if it might be time to bring back the old blue book.” [58:25]
Lat: “That’s what my friend is doing...The time has come. Let’s make what old is old new again.” [58:28]

Recommended for:
Legal professionals, constitutional law enthusiasts, SCOTUS watchers, and anyone seeking an in-depth, principled overview of United States law and international order when tested by real-world events.