The Coming Shitstorm with the OLC Memo
The Trump administration’s Caribbean airstrikes have now killed nearly a hundred people. The Administration has not sought or received authorization from Congress. When pressed, it has pointed not to a statute or an Authorization for Use of Military Force, but to a classified legal opinion from the Office of Legal Counsel—an opinion that, once disclosed, is likely to deepen rather than resolve the constitutional crisis it was meant to contain.
House Republicans this week voted down two Democrat-backed resolutions that would have squarely confronted that reality, aimed at checking President Trump’s unilateral military conduct in the Caribbean—operations that to date have killed 99 people across 26 missions. Framed under the War Powers Resolution of 1973, the measures would have required the President, absent an imminent threat, to seek affirmative congressional authorization before continuing the airstrikes and related military operations directed at Venezuela.
The partisan outcome settles nothing about the legality of the administration’s conduct. To the contrary, Congress’s refusal to authorize force sharpens the constitutional problem. The War Powers Resolution was designed precisely to prevent sustained hostilities from drifting forward on presidential inertia alone, and the Republican vote this week ensured that the administration would continue acting without the approval the Constitution contemplates. Sooner rather than later—and I suspect sooner—the Administration will be forced to show its hand on the legal theory supporting the strikes: the now classified memorandum authored by the Office of Legal Counsel.
The White House has shared the OLC memo selectively with Republican lawmakers while resisting broader calls for disclosure. But the memo will come out. And when it does, the controversy over the Administration’s conduct, far from being resolved, will intensify, and likely cause multiple actors to duck and run.
https://harrylitman.substack.com/p/the-coming-shitstorm-with-the-olc