Justice Department Memo Reveals Legal Basis for Trump’s 2026 Venezuela Incursion
The geopolitical backdrop
Since the collapse of Nicolás Maduro’s legitimacy in 2025, Venezuela has become a flashpoint for proxy confrontations involving the United States, regional allies, and trans‑national criminal organizations. After the 2025 presidential election—deemed neither free nor fair by international observers—Washington imposed sweeping sanctions on PDVSA, senior officials on the U.S. “Specially Designated Nationals” list, and narcotics networks operating in Apure and Zulia.[1]
Intelligence in late 2025 indicated that the “Los Llaneros” cartel was using Venezuelan airfields to ship cocaine and precursor chemicals into the United States, while cross‑border clashes between Venezuelan forces and Colombian guerrillas threatened the fragile tri‑border peace.[2] The Trump administration framed a limited military response as essential to protect U.S. citizens, secure the drug‑interdiction corridor, and bolster the opposition movement.
What the memo says
The Justice Department’s internal memorandum, dated 3 January 2026, outlines a five‑point legal rationale for the incursion:
- Presidential Commander‑in‑Chief authority – Cites Article II, Section 2 of the Constitution, asserting the president may direct armed forces to address an “immediate threat” of large‑scale narcotics shipments.
- International law considerations – Interprets the 1907 Hague Convention’s self‑defence doctrine to include pre‑emptive action against non‑state actors posing a direct danger.
- Statutory authority – Argues the 1976 War Powers Resolution does not automatically revoke presidential power when the operation is limited in scope, duration and geography; references NDAA provisions allowing a 48‑hour report to Congress, which the administration says it fulfilled.
- Operational parameters – Lists three objectives: secure two airstrips near San Fernando de Apure, interdict a convoy of ~30 vehicles carrying 1,200 kg of cocaine, and gather intelligence on cartel leadership. The force comprised 150 Special Operations personnel, a C‑130 transport and unmanned aerial systems, with a planned withdrawal after mission completion.
- Congressional notification – Records a classified briefing to the Senate Armed Services Committee on 5 January, satisfying the “prompt notification” requirement, and notes intent to seek a formal AUMF if the mission expands.
Legal and constitutional ramifications
The memo’s central claim—that the president can unilaterally order a cross‑border operation against a sovereign nation—revives a debate dating back to the Vietnam era. Georgetown Law Professor Elena Marquez warns that the memorandum “effectively lowers the threshold for unilateral action, conflating the threat posed by non‑state actors with the traditional concept of an armed attack by a foreign state.”[3]
Supporters argue the speed of drug‑trafficking operations demands flexibility. Former Deputy Secretary of Defense James Whitaker told a Brookings Institution forum that “the president’s ability to act decisively against transnational criminal networks is essential to safeguarding national security.”[4]
By framing the incursion as a pre‑emptive act under Article 51 of the UN Charter, the administration sidesteps the traditional “armed attack” requirement, potentially setting a precedent for future operations against non‑state threats.
Regional and diplomatic fallout
Venezuelan President Nicolás Maduro condemned the operation as “an act of aggression” and called for an emergency session of the Organization of American States (OAS). The OAS, already divided over the 2025 elections, will hold a special meeting with Brazil, Colombia and Peru expected to voice concerns about regional norms.[5]
Colombia and Panama expressed tentative support, citing shared concerns over cocaine flows, but both urged multilateral coordination through the OAS and United Nations to prevent broader escalation.
In Washington, Senate Majority Leader Karen Reed (D‑CA) announced a resolution demanding a full congressional review, while House Speaker Michael Torres (R‑TX) defended the president’s actions as constitutionally sound.[6] The debate is set to dominate the legislative calendar for weeks.
Impact on the drug‑trafficking fight
A preliminary Department of Defense after‑action report says the Special Operations team seized 1,200 kg of cocaine and disrupted a key logistics hub used by Los Llaneros.[7] Analysts caution that the cartel’s redundant routes and deep financial networks may absorb short‑term setbacks.
The operation marks a shift toward treating large‑scale narcotics trafficking as a quasi‑military threat, raising concerns about civilian casualties, sovereignty violations, and potential “blowback” from affected local populations.
Looking ahead
Legal challenges are expected in federal courts, with civil‑liberties groups and Venezuelan diaspora organizations likely to argue violations of the Constitution and international law. The episode may also prompt Congress to revisit the War Powers Resolution, which many view as outdated for rapid, low‑intensity conflicts.
Diplomatically, the United States must balance pressure on a regime it deems illegitimate with the risk of a broader war. The OAS meeting scheduled for early February will test whether regional actors can forge a collective response that blends sanctions, targeted security assistance, and diplomatic engagement.
Conclusion
The Justice Department memorandum provides a rare glimpse into the legal calculus that enabled a U.S. president to order a unilateral military foray into Venezuelan territory. By weaving constitutional authority, statutory interpretation and a narrow definition of self‑defence, the memo seeks to legitise an operation at the intersection of anti‑drug policy, counter‑insurgency and geopolitical rivalry. Whether the justification survives judicial scrutiny, congressional oversight or public opinion will shape the future balance of presidential war powers in an era of fast‑moving, non‑state threats.
