The Justice Department’s Office of Legal Counsel produced a signed memo declaring it lawful for President Trump to order the military operation that seized President Nicolás Maduro of Venezuela over the weekend, according to officials familiar with the matter.
The specifics of the memo are unclear. But Attorney General Pam Bondi promised members of Congress in briefings this week that the administration would share the memo with lawmakers, the officials said, speaking on the condition of anonymity to describe details intended to remain private.
At least 80 people were killed during the incursion into Venezuelan territory, including military personnel and civilians, according to a senior Venezuelan official. The operation raised a host of legal issues about international law and presidential power.
In particular, legal scholars say, it appears to have violated international law. Under the United Nations Charter, a treaty ratified by the U.S. Senate, a nation cannot use force inside the sovereign territory of another country without its consent, a self-defense rationale or the permission of the U.N. Security Council.
Before the United States invaded Panama to seize its strongman leader, Gen. Manuel Noriega, in 1989, the Office of Legal Counsel issued a memo saying that President George H.W. Bush had inherent constitutional power to violate — or “override” — international law constraints and authorize “forcible abductions” of criminal suspects in a foreign country without that country’s consent.
The memo was signed by William P. Barr, who later served as attorney general in Bush’s administration and during Mr. Trump’s first term. Mr. Barr is known for pushing an unusually expansive view of executive power. After his claim came to light, legal scholars disputed it.
The Office of Legal Counsel, now led by T. Elliot Gaiser, earlier issued a memo, dated Sept. 5, 2025, that blessed as lawful Mr. Trump’s extrajudicial killings of people suspected of smuggling drugs in international waters. That operation initially focused on Venezuelans, and has now killed at least 115 people in 35 attacks.
The memo, according to people who have read it, accepts and relies upon Mr. Trump’s determination that the United States is in a formal state of armed conflict with a secret list of two dozen drug cartels and gangs he has deemed terrorists.
The military is not permitted to target civilians who pose no imminent threat, even if they are suspected of crimes. A broad range of specialists in use-of-force laws have rejected the idea that there is an armed conflict with drug traffickers and that the killings are lawful.
The Trump administration has not made that memo public, nor has it disclosed any detailed account of its legal reasoning for the operation capturing Mr. Maduro.
The administration has styled the boat attacks as acts of war, and has said that makes them lawful. It has styled the military incursion into Venezuelan territory to seize Mr. Maduro as a law enforcement operation, saying the military provided support to the Justice Department.
Mr. Maduro had been indicted in the Southern District of New York in 2020 on drug-trafficking conspiracy charges. At an arraignment on Monday, he pleaded not guilty and declared that he was a “prisoner of war” and had been “kidnapped.”
In 1989, Noriega also faced drug-trafficking charges in the United States when President Bush ordered the U.S. military to help capture him. The U.N. General Assembly voted 75 to 20 to deem the incursion “a flagrant violation of international law.” Noriega was later convicted at trial and spent the rest of his life in prison.
The Bush administration initially concealed from Congress that the Barr memo included a principal finding that presidents could authorize arrest operations in foreign territory that violate the U.N. Charter. That aspect only came to light in The Washington Post two years later. The Office of Legal Counsel under the Clinton administration eventually published the memo.
Mr. Barr’s reasoning for why Mr. Bush had constitutional power to violate the U.N. Charter centered on the idea that Congress had not separately passed legislation repeating the treaty’s terms as a domestic statute. Once it was made public, the theory drew intense scrutiny.
In a Cornell Law Review article, for example, Brian Finucane, a former senior State Department lawyer, argued that Mr. Barr’s memo had mistakenly conflated the question of when courts could enforce the terms of treaties with whether ratified treaties bound the president.
Because the Constitution makes ratified treaties part of “the supreme law of the land,” Mr. Finucane argued, they count as the kind of laws that the president has a constitutional duty to faithfully carry out — regardless of whether courts can enforce them. He said the U.N. Charter was binding on presidents and was understood to be when ratified.
The Barr memo also addressed other issues that would have confronted Mr. Gaiser. One is whether a statute that gives federal law enforcement agents the power to arrest people for violating U.S. criminal laws extends to arrests in other countries.
In 1980, the head of the Office of Legal Counsel during the Carter administration, John M. Harmon, signed a memo saying the F.B.I. had no authority to apprehend and abduct a fugitive residing in a foreign state without the consent of the asylum state. Doing so, the memo added, could render F.B.I. agents subject to extradition to the asylum state to face kidnapping charges.
Mr. Barr rescinded that opinion, reaching the opposite conclusion in his 1989 memo. Noting that Congress had given some criminal laws — including those involving terrorism and narcotics — international reach, he asserted that “in order for the F.B.I. to have the authority necessary to execute these statutes, its investigative and arrest authority must have an equivalent extraterritorial scope.”
The memo did not address the use of military force to “support” law enforcement officials in carrying out arrests abroad. In the Maduro operation, the United States attacked air defenses along the corridor where helicopters carrying an Army Delta Force extraction team was passing, and the Special Operations killed Mr. Maduro’s bodyguards — many of them apparently Cubans — in a firefight.
During early reports of the operation, Senator Mike Lee, Republican of Utah, said on social media that he looked forward “to learning what, if anything, might constitutionally justify this action in the absence of a declaration of war or authorization for the use of military force.”
Hours later, Mr. Lee said that Secretary of State Marco Rubio, who also serves as Mr. Trump’s national security adviser, had called. Mr. Lee recounted that “the kinetic action we saw tonight was deployed to protect and defend those executing the arrest warrant.” He added: “This action likely falls within the president’s inherent authority under Article II of the Constitution to protect U.S. personnel from an actual or imminent attack.”
If Mr. Rubio’s explanation was based on the Office of Legal Counsel opinion, it is possible that the memo invoked the doctrine of inherent protective power. The idea, which dates to the late 19th century, is that the Constitution empowers the president, without any need for a specific statutory authorization from Congress, to use military force to protect federal personnel as they carry out federal functions, like enforcing federal laws.
Charlie Savage writes about national security and legal policy for The Times.
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