The arrest of Venezuelan President Maduro has ignited a firestorm of legal debacles and constitutional concerns. The same could be said for the January 6th insurrection.
Thankfully, Andrew Weissmann, Professor at the NYU School of Law, joins Jen for an expert analysis on when the use of military force is legitimate, congressional abdication, rules of law surrounding arrest operations, and the threat to today’s global order. The pair discuss possible accountability measures for both crises and the weight of civilian harm in military operations.
Andrew Weissmann is a professor of practice at NYU school of law who served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office and as General Counsel for the FBI. Stay connected with Andrew on his Substack here.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief of The Contra, and we’re delighted to have back in the new year Andrew Weissman, the former General Counsel for the FBI, and the perfect person to talk about all things Venezuela and January 6th. Andrew! The FBI in the past has conducted, operations overseas. How is it supposed to work? And what do you make of arresting someone via a military incursion and essentially kidnapping them from a foreign country? Emphasize that this is a head of state of a foreign country.
Andrew Weissmann
So, so one, I’ve never been involved in anything where we’ve had a head of state, even one who has contested head of state, which I think is fair to say Maduro is, because a lot of people, me included, think that… he actually lost the election. Sounds familiar. Yes. And so, it is… I want to make sure people understand, it is extremely rare. To… Essentially engaged in, sort of, self-help. The normal way in which, if you have somebody who is wanted for a crime here in the United States, a legitimate crime, they’ve been indicted or charged, and they’re in, let’s say, England. Let’s take a… there is a treaty that exists between England and the United States that works both ways. So if England wants somebody who’s here, and we want somebody there. There’s a process that’s been worked out under that treaty, under a rule of law regime. A treaty is nothing but an agreement between the two countries here in the United States. It is voted on and passed by Congress. It is not unilateral to the executive. And the person is brought here pursuant to that treaty. And the person who is sought by the United States has process in England to raise issues about all sorts of things. That I have dealt with. There are all sorts of legal claims someone can make, and after those are all adjudicated, and assuming the United States is successful, they are brought here. That is what it means to be a rule-of-law country, and not, as Stephen Miller said, might makes right. Or another way, a sort of more colloquial way, is law of the jungle, which is what he has set forth as the way that you should proceed. And that is, I think, in many ways what we’re seeing with Maduro, which is it is self-help. And even there, there are domestic law constraints, there are international law constraints. that are complicated, that here were not adhered to, in my view, in any way, shape, or form. And I think, Jen, as you know, and I’ve been discussing on the contrarian, I think there’s no… I think, as Ryan Goodman has said, there’s no sort of credible, serious scholar who has been able to justify this as an international law matter.
Jen Rubin
Alright.
Andrew Weissmann
So anyway, Maduro was essentially just brought here under a military operation in circumstances that are far, far different than other times when the United States is engaged in things that might look similar, but I think, for most part, are not.
Jen Rubin
Got it. Now, the administration likes to have it both ways. When we were murdering people on the high seas, we were told this wasn’t a military operation, it was law enforcement. Or, I’m sorry, whether we were blowing up people on the… We’re gonna cut that part, guys, and we’re gonna say, the administration wants to have it both ways. When we were blowing up people on the high seas, it wasn’t a… law enforcement operation, it was a military operation. Now, when we are going into another country, killing 80 civilians, we’re told, oh no, it’s not a military operation, this is a law enforcement operation. Which is it, and why can’t they have it? both ways. This seems to be really hide-them-all kind of stuff.
Andrew Weissmann
Sure. There also is a huge dichotomy or discrepancy between the government saying, in the immigration context, where they’re trying to use the Alien Enemies Act, that we’re at war with Venezuela, and your point that now they’re saying, no, no, no, we’re not at war, this isn’t regime change, we’re just doing this to effectuate and arrest of Manjuro for… an existing indictment. So here’s, some of the problems with the, it is just law enforcement. So… let’s just take the president’s own words, which is that we’re going to control Venezuela Whether it is, you know, by force, whether it is through threats, that is not what you do if it is just arresting somebody and bringing them to this country. It is… there is no precedent for that in this country. There might be precedent in Germany. In… at the outbreak of World War II. For this kind of activity, and I don’t make those analogies lightly. And in terms of… and again, not… I’m not relating it to the deaths of World War II, I’m relating it to the land grab and the invasion of.
Jen Rubin
Yes.
Andrew Weissmann
And so, the president himself has said things that are just flat-out inconsistent with the idea that this is just a law enforcement operation. His threats to Colombia, to Greenland, to other countries, again, inconsistent. He has been asked about how is it that you, if this is about drug dealing and law enforcement, how is it that a New York minute ago, you released and pardoned another president from Honduras who was convicted of importing into this country 400 tons, that’s 800,000 pounds of cocaine, at a high level, a sort of high potency, so that it came to what was estimated to be 1 billion dosages, with a B. That person was, freed by President Trump, and yet we’re supposed to believe this is about drug dealing and protecting America from drug deals. The president’s answer to that is, well, I was told This is Donald Trump speaking. I was told that that case, the Honduran case, was… he was railroaded, and that there wasn’t evidence, and it was just… he was like me, he was innocent. But let me just… analyze that for a moment. Where was the Honduras… Honduran case? Where was it prosecuted? And where’s the Maduro case prosecuted? They’re both in the exact same district, the same Southern District of New York, so they’re railroading one president, but they’re not railroading Maduro, and by the way, the president uses that phrase, but has not given any evidence of it. Final little kicker, do you know who is reported to be one of the prosecutors on the so-called railroad case? It’s Emil Beauvais. He was the president’s own defense lawyer. He was selected by the president to be the number 2 to Todd Blanch. He was selected by the president to be sitting on the Third Circuit, a Court of Appeals in New Jersey. That’s somebody who was railroading the president of Honduras with no evidence being supported. So the claim that this is just what you would do in a law enforcement operation… is belied by all of that, the words and activity. And can I just give one final thing as a policy matter? Jen, if you came to me at the FBI and said, we need to do this arrest, and it needs to be… let’s not even say overseas, let’s say we’re gonna effectuate an arrest. Of somebody that’s in New Jersey for a case in New York, and we need to go out and arrest them. But I just need to tell you, is it okay that there’s a risk that we might kill 80 people? So, when I was general counsel, I had to authorize, the use of deadly force, when it was used. And so. You would just be, are you crazy? Unless the person had a bomb that would go off and threatened many, many more, and even then, there would be a host of other questions. about why you needed to do it. That, sort of as a policy matter, would not be something that would be authorized, and anybody with good judgment would not be saying just to arrest, somebody that we would be willing to kill 80 civilians. Or even if they’re not civilians.
Jen Rubin
We are in this position because Republican majorities won’t stop Donald Trump in the House and the Senate. They could have passed a War Powers resolution. They could cut off funding for this. They could have impeached him. They could have impeached Pete Hexatt. They could have impeached Marco Rubio. They’re doing none of that stuff. It may be as things turn south, and there’s no indication that things are gonna go swimmingly from here on out, that they sour on him, and they decide to step forward and do something. What would a responsible Congress, in your view, be doing to unravel this, to constrain this, to make sure that we’re no longer playing an imperial colonial power? How do you back us out of this?
Andrew Weissmann
So I think the big picture, which is what I’m gonna go to, because you sort of touched on various levers that they have to pull right now, but I think the big picture, is I keep on going back to a decision by Justice Robert Jackson… who, served in the Supreme Court, and took a leave to be the lead prosecutor at the request of President Truman at the first Nuremberg trial. And he then came back, and he wrote a very famous concurrence in a case called Youngstown. People stay with me, it’s not gonna be really nerdy. And in it, the most… I thought the most important part of that, which was… is imbued by his experience seeing authoritarianism. And it wasn’t just… his examples were not just Germany, although obviously Germany was top of mind. Where he goes through the history of the United States and the growth of presidential power, and how much, Congress has receded, and how much this is… way beyond what the framers had anticipated in terms of the de facto power of the president. And to me, Congress, I think, has understood that people do not vote based on international and foreign relations, so… and they’ve… they’ve been… they’ve had… been burned in the past, when they’ve gotten involved in that. So, Congress sort of keeps on receding from this area. And that is something that Robert Jackson pointed out in the 1950s, 1950s. Well, now we’re 75 years later, and it is only that much worse, where the checks and balances that are necessary to freedom And to not have autocracy. are very much going by the wayside, and what you need is, one, the populace that needs to be engaged in foreign relations, needs to understand the importance of it. Even, by the way, from an America-first point of view.
Jen Rubin
Yes.
Andrew Weissmann
in the sense of, like, it is in our self-interest, in terms of how we operate, as well as a principled way to operate. And I think that Congress really needs to, at the very least, needs to pass a war powers resolution. It is the, it is the Constitution of the United States that gives the power to declare war, to Congress. point that is, period, the end. It is Congress’s power. There is a very limited exception for a short period of time in sort of essentially True def… national emergency defense situations. And there’s some complicate… you know, there’s some… you can… you can argue around the edges, of… but that’s not where we are right now. Where we are now is that… and… and we’ve seen other presidents have this sort of slippery slope, and… and they can be faulted for that. But it’s… this is somewhat apples and oranges in terms of where we are now. This is… this is the use of force in a foreign sovereign. It is not justified because you don’t like the foreign sovereign. It is not justified because, in fact, the foreign sovereign has been accused of horrendous drug crimes. It is not excused because the foreign sovereign, you may think, is not legitimately elected. The message to Putin, the message to China. I think in many ways, is an intentional one, which is that we’re just gonna carve up the globe, and guess what? The American hemisphere is ours. There is reporting that came from Fiona Hill that there was a lot of discussion with… that Russia sort of was proposing this. Not so subtly, as, like, we essentially take Ukraine, and you can have Venezuela. And… to me, Stephen Miller has said the quiet part out loud, that this is sort of the new way of thinking, which is antithetical to the League of Nations, it is antithetical to the United Nations. It is antithetical to a world of peace, where nations respect each other’s sovereigns, and you don’t have continual war, and people act out of principles, and not just who has the biggest stick.
Jen Rubin
Yes, and to go back to World War II, 60 million people died, and in an effort to prevent that from happening again, we constructed this international system, including the UN, which is now embodied in U.S. law. And we will miss it when it’s gone, because it will not inure to Americans’ benefit. I have to say that in addition to every brilliant point you have made. There is something that is, I guess almost pathetic about people who want to call themselves United States Senators, congresspeople, and do nothing. absolutely nothing, that is required of them, that is part of their oath, and that is simply, on a kind of a moral level, distasteful. If you don’t want to do your job, get the hell out, and let somebody who actually Has some views, and is going to take the oath seriously to… Go forward on this. there are many ramifications yet to come, including the potential that Maduro could be exonerated, or could be dismissed. We could become further engaged, because when I just had a conversation with a individual who is, born in South America. The violence on the street of Venezuela is now increased, surprise, surprise, so there’s chaos, so we have a lot to worry about. There is a sense of, frustration. We now have learned that there are no consequences for Donald Trump, because the Supreme Court ruled out criminal prosecution, impeachment as a joke. Is there no ramifications for the Marco Rubios, for the, Stephen Millers, for the Pete Hegseth, who lie to Congress, who have engaged in these actions, who have violated, international law, who have murdered civilians? Is there no legal or even political remedy that It’s gonna catch up with these people?
Andrew Weissmann
Well, the political remedy, is, you know, is one that I’m not really the expert on, and there could obviously be political ramifications, particularly for, you know, Marco Rubio, who, you know, is sort of very much reported to be, you know, he’s an ambitious guy, I don’t say that pejoratively. Yes. If, you know, this is something that he will stay with him, and, you know, to me, it’ll be interesting to see, the sort of… if you have a… vying between the Vice President and him. where they’re going to be on this issue. I don’t see the Vice President as out front as much, and so it’ll be quite interesting to see how this plays out politically. But focusing on the legal. I think that, internationally, again, I don’t think that’s maybe the thing they’re most worried about, because there’s sort of limited international jurisdiction, but I would note that, you know, President Putin is charged internationally in an international court for his conduct, in Ukraine. And the treatment of soldiers and civilians there. And so there… it can be international repercussions. You know, ironically, Jack Smith was involved in the… when he was in The Hague with those kinds of investigations and prosecutions, and he was very aware of the rule of law as it should apply internationally, because we want to live in a civilized world, not in a jungle. And so, that’s one aspect. Domestically, You know, that would be, if there is a regime change, and that could happen with a responsible Republican or a responsible Democrat, in office. So, you know, think of, Liz Cheney, somebody you might disagree with, politically, but is principled, is proved to be principled. I’m using her just as an example, there are many others, and you have to have the same thing as a Democrat. I think one of the things that we have learned, and I have lived through. Is the idea that we should just look forward, and not look back. at what are provable crimes. I mean, you have to have a predicate. There has to be sufficient evidence. You can’t be engaging in a sort of James Come and Letitia James vindictive prosecution, where there’s no facts. This is where facts and law matter. But assuming you do have that. It is… I think it is such a mistake to take the lesson from what we have lived through that you do not hold those people to account. If you do not have repercussions, then guess what’s gonna happen? People are not going to be thinking about that. They’re not going to be thinking about, what could happen if they violate the law. And that includes lying to Congress. Yes, yes. And people have gone to jail for that. I have prosecuted people for that. It is, you know, lying to Congress should be… taken very seriously. You have an obligation to them. They are our elected representatives. They are the, in some ways, the most democratic institution we have, and granular. So that is… At least a potential, if those facts are there, and we have learned the lesson from the Trump… years, and I should say not just Trump. I mean, this… you could fall to Obama in connection with, the CIA saying, let’s look forward, and just give you one example, and not thinking, you know what, we need to… hold those people to account. This is not something where you just say, let’s move on, and let’s bygones be bygones, because you’re really not setting an example for the next time.
Jen Rubin
Exactly. And as for Pete Hegseth, we now have gotten a reminder that if you’re a veteran, your rank can be lowered. You can be subject to discipline after, you retire. He, of course, has invoked that on spurious, unconstitutional grounds against Mark Kelly, but, he has a particular vulnerability, in addition to the fact that most Republicans hate him anyway. So, he may be on thinner ice, than even Marco Rubio. We’d be remiss if we didn’t talk about January 6th. 5 years ago, on one hand, it seems a lifetime, on the other hand, it seems, almost incredible that the time has passed, and even more incredible that Donald Trump is sitting in the White House, committing even graver constitutional outrages. When you look back, putting on your FBI hat and putting on your hat as someone who desperately believes, has done… spent his whole life supporting the rule of law. what’s the real legacy at this point of January 6th? Is it you can get away with stuff? Is it a warning signal that should keep flashing red light, you know, for us going forward? How do you look at January 6th.
Andrew Weissmann
So, I think of the two… Most, sort of, important events, sort of politically, that have happened, in my, sort of, adult lifetime. You know, I’m old enough to remember various assassinations, but I wasn’t an adult at the time. And for me, 9-11 And, January 6th stand out. I can tell you exactly where I was. almost minute to minute, and I can… and I can remember and feel the horror of what I was seeing. And in some ways. January 6th was worse in that… The attack, the literal defecation. on… The seat of government, the seat of power.
Jen Rubin
Yes.
Andrew Weissmann
our democracy was happening. I think there are a lot of Things that need to be done. that, I mean, obviously there’s a political component to this, but the idea that… That, for many people. It can… there can be whitewashed, that there can be disinformation and misinformation I think is a bigger general problem that we have because of the information environment that we’re in.
Jen Rubin
Yes, yes.
Andrew Weissmann
and… you know, the people listening to this, God help them, and I, you know, I think it’s absolutely fantastic to do this, and for a whole variety of reasons. But we no longer are, able to communicate in sufficient numbers to a sufficiently large group to get at least some shared commonality of facts. then you can have a debate about what should be done about them. Let’s just go back to Liz Cheney. Liz Cheney has many different views than I do about a woman’s right to choose, about the constitutionality of Obamacare, things that are very, very core and fundamental, but it’s not because those are… policy choices or views of the law that are different. She doesn’t say, that just didn’t happen. There’s no, dispute about the actual facts. And that’s where, as a lawyer… you know, this is… I’m such an institutionalist, and I grew up in court, basically.
Jen Rubin
Yes.
Andrew Weissmann
And I keep on going back to something that… something that Judge Amy Berman Jackson said during, I believe it was the Manafort case, which, I wasn’t involved in that And she said, you know. Court is a place where facts and law still matter.
Jen Rubin
Patrick.
Andrew Weissmann
So… You know, I think there’s just a lot of work that needs to be done. I’m not a big fan of that we just need better education, because I think that’s right, and of course that’s true, but that is a long-term solution for a grave, immediate crisis.
Jen Rubin
Yes.
Andrew Weissmann
So, you know, I… but I… I do think that there… there’s a lot to… to… to be done about that. Let me just give you one sign of hope, because I was just listening.
Jen Rubin
Yes.
Andrew Weissmann
the Democrats had a hearing today, about January 6, and in the first panel that my podcast co-host Mary McCord was on, and of course she was spectacular, as I would suspect she would be, but next to her was, Ms. Hempel, who was, was… viewed as sort of the MAGA grandmother, but she is the woman who pleaded guilty and then rejected the…
Jen Rubin
Yes.
Andrew Weissmann
Friends.
Jen Rubin
Exactly.
Andrew Weissmann
And did so, and she was so… moving, and talking about that, and saying, I was guilty. I deserve to be punished. I deserve to do my time. what I did was wrong.
Jen Rubin
I did it because I believed…
Andrew Weissmann
the lie. She… talked beautifully about the Capitol Police, even though she was engaged in this crime, helping her when she was down on the ground and helping her, through this, and she said it was just so touching. And she… they deserve such respect, and it… to me, that is such an example of… She is not alone in the people who act out of principle, and also people who can Revise their opinions about something.
Jen Rubin
Exactly.
Andrew Weissmann
not be… Sort of so hardened that they’re not willing to actually look at another side of things.
Jen Rubin
Absolutely, and I think that’s what I struggle with, every day, is to keep a sense of the possibility of renewal, of self-reflection. of reform. We’ve gone to some very, very dark places in our past, and this is one of them, and somehow we have figured out how to come out the other end. It’s a ongoing struggle, but, I can’t thank you enough. Andrew, we always say this, that it’s wonderful to talk to you, and it’s horrible to talk to you, because there’s always something horrendous going on. But actually, I think, There is a growing… population out there, and maybe it’s because of economics, maybe it’s because of other reasons that they don’t like Donald Trump, that are uniquely now willing to listen, and to pay attention, and I think that’s the benefit of this moment, that people are perhaps, more open to persuasion and logic and facts than they used to be. So, I hope so. I hope so. I hope so. Exactly. Well, good seeing you, and we’ll see much more of you in 2026. Take care.
Andrew Weissmann
Yes, have a healthy and fulfilling new year to you and everyone listening.
Jen Rubin
Thanks so much.
