Can the U.S. 'run' a foreign sovereign nation? No, say U.S. legal scholars

The unprecedented "capture" of Venezuelan President Nicolas Maduro and his wife by U.S. special forces in a military operation has been widely seen as a breach of international law and violations of the Charter of the United Nations.

In a Wednesday evening interview with the New York Times, U.S. President Donald Trump doubled down on his claim that the United States will "run" Venezuela, asserting that the U.S. expects to "run" the Latin American country and extract its vast oil reserves "for years."

During his first appearance in a U.S. court, Maduro pleaded not guilty to all U.S. charges, saying that he had been "kidnapped" during the raid on Caracas and told the judge that "I am still president of my country." Maduro's legal team characterized the U.S. operation as a "military abduction," challenging the legal basis of his "arrest."

CGTN interviewed via email David Super, a law and economics professor at Georgetown University Law Center, and Mitchel Sollenberger, a political science professor at the University of Michigan-Dearborn, to dissect three primary legal hurdles challenging the Trump administration's move.

1. Is it an act of war or a law enforcement action?

Though it has officially framed the operation as a law enforcement action to execute criminal indictments for narco-terrorism, the Trump administration has not consistently taken this position, Super told CGTN.

"President Trump himself described this as 'war,' and his comments about running Venezuela and taking oil revenues are incompatible with this being a law enforcement action," he said.

"And under Article I, Section 8, Clause 11 of the U.S. Constitution, only Congress has the power to declare war," Super added.

However, at the moment, most Republicans in Congress continue to be afraid to challenge the U.S. president, and as a result, any cut-off of funds for Venezuelan activities seems unlikely to come to a vote in the House of Representatives or to pass in the senate, he noted.

"But the lack of effective enforcement mechanisms does not mean that this is legal or constitutional; it is not," he said of the U.S. military operation against Venezuela. "It is overt defiance of U.S. law."

Sollenberger said the executive branch has created a legal rationale for bypassing the Constitution which stipulates that Congress must declare war on offensive military actions.

He critiqued the idea that U.S. domestic law can be used to override both the Constitution and even international law.

But the view remains "controlling" in a practical sense because the other branches of government – congress and the judiciary – have failed to provide an effective "check" on this executive overreach, Sollenberger said.

2. Can U.S. 'run' a foreign sovereign country?

The two U.S. scholars were united in their view that the Trump administration's attempt to govern Venezuela would be illegal under U.S. law.

Sollenberger said there is no constitutional or statutory framework that would give justification for such a proposition.

He also highlighted the administration's use of two incompatible legal arguments for the same action.

"The logic of what the Trump administration is arguing (i.e., that this action is based on domestic law enforcement law) goes against its view that there was a military operation and therefore the U.S. has assumed control over a country as an occupying power," said Sollenberger.

Super said U.S. law provides no authority for its president to "run" foreign countries.

Congress has appropriated no funds for such a task, and the U.S. Constitution forbids spending money without a valid congressional appropriation, he said. "Any attempt by President Trump to govern Venezuela would violate U.S. law."

3. Can a sovereign head of state be tried in a U.S. court?

Under international law, Maduro enjoys immunity as a sitting head of state, shielding him from the jurisdiction of domestic courts, including those in the United States.

However, Super predicts that U.S. courts will effectively ignore Maduro's status as a foreign head of state during his "trial."

While he expects Maduro's attorneys to raise legal challenges based on this status, Super believes those efforts will only cause minor pretrial delays and will not ultimately impact the proceedings or the trial's outcome.

Sollenberger shared the belief that there will be legal defense challenges, ranging from Trump's authority to "arrest" Maduro to Fourth Amendment protections – the very legality of how he was seized and brought to the U.S. court.

"In my view, there is not a consensus in the U.S. legal community and the international community should be concerned as this case sets a troubling precedent moving forward," he said.

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