The Venezuela Invasion, the Monroe Doctrine, International Law, and Trump Takeovers

Episode Notes

Transcript

Claire Finkelstein:

What’s so striking about the Trump administration and the seizing of Venezuela is that we’re barely pretending that we’re doing this in self-defense. We’re barely trying to justify the action under international law. We’ve said that we’re fighting narco terrorists and that they pose a threat, but it’s such a thinly veiled excuse that we’re really not pressing that concept at all.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I have three books out titled How to Get Sued, The Sled, and my newest book, How Would Yo Decide 10 Famous Trials That Changed History? You can find all three on Amazon. In addition, our new podcast miniseries, In Dispute, 10 Famous Trials that Changed History is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. In fact, given today’s episode, you may want to go back and listen to the Boston Massacre episode. It has some application here. Well, on January 3rd, 2026, the US military captured Venezuela’s President Nicholas Maduro and his wife and brought them back to the United States where they faced criminal charges related to drug trafficking. Many questioned the legality of the invasion and a policy from the 1800s called the Monroe Doctrine and was being alluded to by the current administration.

Trump’s reinterpretation of the Monroe Doctrine named the Donroro doctrine by Trump himself was an original policy created back in 1823 by then President James Monroe to oppose European interference in the Western hemisphere. Trump has reinvoked Monroe in his decision to take over Venezuela and publicly made threats to take over other countries. This moved by the Trump administration was met with condemnation from other countries and members of Congress on both sides of the aisle, claiming it was a violation of international law. In a recent interview with the New York Times, Trump responded, “I don’t need internationational law.” Today on Lawyer to Lawyer, we will discuss international law, the Monroe doctrine, the legality of the Venezuela invasion, and the threats from the Trump administration of possible takeovers of other countries. Without further ado, we’re joined by our returning guest, Claire Finkelstein. She is Professor of National Security Law and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania School of Law.

Claire’s current research addresses national security law and policy, democratic governance, and professional ethics. She is also an expert in the law of armed conflict and military ethics. And welcome back to the show, Claire.

Claire Finkelstein:

Thanks so much for having me, Craig.

J. Craig Williams:

Well, we’re thrilled to have you, Claire. How did you get interested in national security law? What’s your background?

Claire Finkelstein:

It really happened after nine eleven, which was a transformation for so many of us. I had worked on some issues in international law, in criminal law for many years, but more on the philosophical end of things. And when nine eleven happened, it was sort of a game changer. And then the role of lawyers in the aftermath of nine eleven and the interrogation program was deeply concerning to me. And since I worked on professional ethics, it was natural for me to start looking at our national security practices more generally to make sure that they conformed with a rule of law.

J. Craig Williams:

Well, we’re going to be talking about the Monroe Doctrine, which is nicknamed the Donroe doctrine. Can you give us some background about that?

Claire Finkelstein:

So the Monroe doctrine is a doctrine that dates from the early 19th century, really from a time that was before the rise of international law named for President Monroe, hence President Trump has dubbed it the Donrow doctrine so that it’s named for him rather than President Monroe in bringing it up to the current moment in time. And it was the idea that the US should be supreme in controlling the hemisphere in which the United States is situated, namely the North and South American hemisphere. It is not a legal doctrine. It’s not even US policy per se, but it’s really just a doctrine of ambition. As you may know, some years after the about 75 years after the Monroe doctrine was first articulated, the US launched a war against the Spanish to try to control the Spanish colonies in the Caribbean and eventually in the Philippines as well.

And that kind of expansionist war is a reflection of the philosophy that the Monroe doctrine stands for. It’s an expansionist doctrine that says we should be able to control any other countries that exist in our hemisphere.

J. Craig Williams:

How does this really differ from kind of other international law issues that we’re dealing with right now in Russia and China, their spheres of influence? Is it the same or is it different?

Claire Finkelstein:

So that’s a great question, Craig, because really Russia’s standpoint with regard to Ukraine is not so distinguishable from what you might call a revival of the Monroe doctrine here, that is Russia has taken the position in Vladimir Putin in particular, that Russia should be able to control any of the former Soviet territories so that Russia’s attempt to take over Ukraine is very much based on restoring the former empire to its previous holdings. The suggestion has been made, and we don’t have any proof of this, but that there’s been a kind of implicit understanding between Putin and Trump that we won’t interfere too heavily in Putin’s ambitions with regard to Ukraine if Russia doesn’t interfere in our attempt to take control of Venezuela and possibly I fear other countries in Latin and South America.

J. Craig Williams:

Do you think that Trump’s been kind of egged on by Putin from this standpoint or trying to imitate him or was this a Project 2025 issue?

Claire Finkelstein:

I wouldn’t say that Trump has been egged on by Putin because in some ways we’re in direct competition with Russia for control of Venezuelan oil. So I don’t think that Putin particularly relishes the fact that we have gone into Venezuela and are extracting Venezuelan oil, but I think there’s a sense of detant there that look, you are not going to be in a position to interfere with us reciprocally if you have ambitions in your own hemisphere. And you mentioned earlier the Chinese, there’s increasing worry now in the face of our takeover of Venezuela that the Chinese may feel emboldened to invade the Taiwan Straits. We have been committed for many, many years to defending the independence and autonomy of Taiwan even in the face of our being committed to a one China policy, but we’ve really drawn the line at Taiwan. Now I think that longstanding policy commitment is up in the air because it’s not at all clear that we have the moral high ground to defend Taiwan against Chinese imperialist ambitions if this is the position we’re going to take in our own backyard.

J. Craig Williams:

Certainly so. And do you believe that we’re looking at a new world order here? I mean, we’ve seen significant changes in the way that our own government is being handled.

Claire Finkelstein:

I think we really are on the cusp of the total breakdown of international law and a new world order. So Trump has been making threats with regard to Greenland, with regard to Mexico, with regard to Colombia, with regard to Cuba. And what’s particularly striking is that the administration is not particularly seeking to justify these ambitions in terms of international law. So again, if you go back to the Spanish-American War, we had stationed a carrier outside of Cuban waters and it got attacked. Well, excuse me, back up. We had stationed a battleship in Havana Harbor and there was an explosion and it turns out that explosion was almost certainly a spontaneous combustion that had nothing to do with Spain or any sort of attack, but we decided to cast this in 1897, I believe it was, or 1898 as an attack by the Spanish. The ship was called the USS Maine and the cry went up, remember the Maine, remember the Maine.

And this was our battle cry of self-defense to try to justify attacking the Spanish in the Caribbean and with regard to their holdings. And we engaged in significant expansion as a result of that war seizing control of Cuba, Guam and other territories, including laying claim to Hawaii basically, and then the Philippines. So we pretended, however, that it was a war of self-defense. What’s so striking about the Trump administration and the seizing of Venezuela is that we’re barely pretending that we’re doing this in self-defense. We’re barely trying to justify the action under internationational law. We’ve said that we’re fighting narco terrorists and that they pose a threat, but it’s such a thinly veiled excuse that we’re really not pressing that concept at all.

J. Craig Williams:

What role does Congress have in this? I mean, we’ve seen an introduction of a bill now to make Canada the 51st state. We haven’t seen Congress really do much in terms of the War Powers Resolution Act. We’ve seen some work from the Senate, but really nothing in the House. Where do you think Congress stands on this?

Claire Finkelstein:

So Congress has been asleep for many years. Maybe asleep is a gentle term, maybe we should say in a coma because despite having sole control over declarations of war under Article one of the Constitution, Congress has not exercised its war declaring authority since World War II. We have not seen an act of Congress with regard to war and peace for many, many years. And most importantly, despite passing the war powers resolution, to which you alluded, Congress in general refuses to confront the president with regard to unauthorized actions. It doesn’t have to be this way. The 2001 authorization for the use of military force immediately after nine eleven didn’t put any restrictions on the president whatsoever in using force to attack the authors of nine eleven. But what thin restrictions one can glean from that AUMF have not been enforced at all. And Congress has just sort of taken a backseat completely to successive presidential administrations.

For example, we fought iSIS under the 2001 AUMF, despite the fact that that authorization says that it is to fight those who perpetrated the attacks on nine eleven. Well, ISIS didn’t exist on nine eleven. ISIS was a later development, so it doesn’t mean we were wrong to fight iSIS, but Congress could have stepped up and said, “We need to pass another AUMF because the president is not authorized to fight ISIS under the 2001 AUMF.” But instead, Congress just sat passively by while several administrations stretched the meaning of that 2001 AUMF for its own purposes.

J. Craig Williams:

Why has Congress been so lax?

Claire Finkelstein:

Well, that’s a complicated question. I think that the idea that the members of Congress are going to serve as a check on the executive branch is really almost an outmoded idea. We teach it as part of basic civics to the extent that we still teach civics at all. We teach that the various branches of the federal government are supposed to check one another. We teach that the states are co-equal sovereigns with the federal government and that the states serve as a vertical check and balance on the federal government. But in fact, in point of fact, if you look at the practice, neither Congress nor the federal judiciary nor the states really can serve as a very effective check on presidents these days because presidential power has expanded to such a point that all of the different branches are either unable or unwilling to stand up to presidential abuses of power.

J. Craig Williams:

Let’s take a quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer to Lawyer. I’m back with Claire Finkelstein. She’s professor of National Security Law and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania School of Law. But let’s get back to the Monroe doctrine and the Donrow doctrine. How are they different?

Claire Finkelstein:

There isn’t much difference. And let’s be careful in talking about this as a doctrine because President Monroe named this as a doctrine, the Monroe doctrine, but it’s really more of an ambition than any kind of legal doctrine. I fear that when one gives something a name, people think that it has some kind of authority or some kind of legitimacy. And again, let’s remember that the Monroe doctrine is from the early 19th century before the rise of the United Nations, before both World Wars, before there was anything like a UN charter with rules for the use of force. And so we didn’t have an understanding or consensus around what was a legal use of force. And indeed, we didn’t even have the Kellogg Beyond Pact yet, which was an agreement that made the use of aggressive war illegal. And so aggressive war was sort of permitted at the time of the Monroe doctrine.

Flash forward to 2026 and the Monroe doctrine under the form of the Donro Doctrine is not an appropriate doctrine for a world in which we’re supposed to have a robust and functioning United Nations and a robust and functioning series of international laws and treaties that restrict what countries can do to one another and the degree to which they can violate one another’s sovereignty.

J. Craig Williams:

But who enforces international law? Obviously, Putin isn’t paying attention to it and Trump isn’t either.

Claire Finkelstein:

Well, that’s always been the problem with international law. The enforcement mechanisms are weak and is very, very difficult to get anything that looks like a sanction in internationational law. So we have a few different options, but none of them is foolproof. The first thing that we have is diplomatic condemnation. And you’ll remember that when Putin first sent Russian troops into Ukraine for the second time around in 2022, there was enormous international condemnation of Russia’s actions. The Chinese did not join in that condemnation, but it was a near unanimous response. And there was very widespread pickup of US-led sanctions against Russia and a kind of consensus that gave a lot of us hope that the norms of international law were not dead. It was a return to international armed conflict, which we hadn’t seen in a while. We thought that all wars were now going to be with non-state actors, and here we were, international armed conflict, a classic breach of sovereignty, the refusal to recognize Ukraine as an independent nation with its own rights and its own borders, and it was just a flagrant violation.

And the sanctions against Russia, they obviously didn’t succeed in convincing Russia to withdraw, but they have hurt that nation tremendously, and Russia is very eager to get out from under those sanctions, and corporations were willing to take a hit financially in order to abide by the announcement of sanctions. So sanctions is one possibility. Then we have two international courts, both led by the United Nations. We have the ICJ, Internationational Court of Justice, in which countries can bring a complaint to the court. So years ago when the US was backing the contras in Nicaragua, and it seemed seeking to overthrow the Nicaraguan governments, engaging in aggressive actions in Nicaraguan waterways, laying minds, and in general, getting involved in all sorts of military actions against Nicaragua. Nicaragua brought this complaint to the ICJ, and the US denied the accusations, and the ICJ came out and said, “Yeah, it looks like the US is involved in activities against Nicaragua that violate international law.” Now, the problem is what you do to take the next step because there’s no real international police force.

You can’t take a government and throw it in prison. And so it’s very difficult to impose the kind of penalty that would stop a nation from violating international law in that sense. But the pronouncements of the ICJ are of concern to countries. They’re feared and people and nations go to great lengths to avoid a negative judgment by the ICJ. So it’s a kind of shame sanction and there are measures that can be imposed by the ICJ that have to be complied with in theory as the result. Then finally, we have the ICC, the International Criminal Court, and that court can go after individuals who commit war crimes. So we have a number of heads of state who have been identified as war criminals and indicted, including Putin, including Netanyahu, including a Hamas leader and a number of African heads of state and so on. Now, the ICC has never actually convicted ahead of state.

They have never succeeded in doing that, either because they can’t get their hands on the person, such as in the case of Putin, no country has succeeded in arresting Putin and bringing him before the ICC, or because they can’t really muster the consensus or the evidence to bring a trial. In most cases, it’s because they just can’t get their hands on the defendant. So in all of these cases, international law is more of a normative construct than a body of law the way we think of it in the United States.

J. Craig Williams:

Certainly so. And seemingly quite ineffective at that. Well, just as a sidebar here, interesting that you mentioned what happened with the US in Nicaragua. This podcast had Rick Prado, who was the lead CIA agent in Nicaragua on the show on March 18th, 2022, shortly after you are in 2021.

Claire Finkelstein:

Fascinating.

J. Craig Williams:

That would be an interesting podcast to re-listen to given your context. It’s interesting that you say that international law isn’t doing anything. There was, with respect to Putin, and it’s not been effective, but with respect to President Trump invading Venezuela, there hasn’t been hardly a peep of international concern.

Claire Finkelstein:

Well, those of us who follow international law and who are authors and commentators on this have been really unanimous in condemning the action. Unlike, for example, President Trump strikes on Iran on the nuclear sites where there was more of a mixed reaction. But here, the condemnation has been absolutely consistent among international law scholars because there just really aren’t any arguments to justify this at all from the standpoint of international law. In the larger public arena, I think the reason we haven’t seen as much condemnation of this action as one might expect is because people really hated Maduro, hate him. A lot of Venezuelans who are in this country are celebrating this as a victory, and that’s a kind of maybe short-term victory. I think those of us who condemn the action as a violation of international law aren’t defending Maduro. Nobody is defending Maduro in this conversation.

So it really takes looking at the long-term implications of violations of international law and concerns about the major institutions of international law to be concerned about this because it’s very easy to say, “Well, we should just look at the fact that we’re getting a bad guy out of Venezuela.” But it’s more than that. But that’s not all there is to it. That’s right.

J. Craig Williams:

President Trump has said he’s the acting president of Venezuela and he’s talking to oil executives to try and convince them to get in there and take our oil back. What’s with that?

Claire Finkelstein:

Well, we are seizing oil from Venezuela. Now, the really ironic thing is that a number of these oil companies had lost their oil interests a number of years ago when Venezuela federalized the oil holdings and some of these companies lost billions of dollars. That would be an argument for condemnation of Venezuela for bringing legal actions, for an action in the ICJ itself potentially, but to seize the oil. And then ironically, Trump has pissed off the oil magnates because he has said, “Well, we’re not giving you back the oil.” So some of them who might have been supporting this move as part of a suggestion that they were going to get the oil that they had been cheated of many years ago are now furious because he’s saying, “You know what? We’re going to take the oil and the money from oil sales and we’re going to keep it and we’re going to make a deal with Venezuela.” And he’s saying, “Everybody’s going to be happy because we’re going to return some of the money to Venezuela, but we’re going to manage this much better as though he were the CEO of a company and he’s just making one more business deal.” The whole idea of international sovereignty and the idea that Venezuela has a right to its own natural resources doesn’t even come into contemplation here, let alone the putative claims of some of the former oil magnates.

J. Craig Williams:

Right. Well, let’s take that a step further and play the rest of the chess game with respect to Greenland or Greenland. How does NATO play into this? Are we entering also not only a New World order, but also an era of isolationism?

Claire Finkelstein:

So I’m extremely worried about the situation with Greenland, and I would have thought it too fantastical to even contemplate that the US could invade Greenland, except that every time one thinks that Donald Trump is not going to go there, that he’s not going to be that extreme, he goes there and more. So I think we have to take this threat very, very seriously. Now, as you know, Greenland is a protectorate of Denmark and Denmark is a NATO country. So if Greenland were to be invaded, NATO under Article five of the NATO charter would be obligated to respond. That’s the way that provision works, which is that an attack on one NATO country is an attack on all NATO countries. And it doesn’t matter that it’s another NATO country that would be doing the attacking if we are the-

J. Craig Williams:

No free pass.

Claire Finkelstein:

That’s right. If we are an invading force for NATO, then I’m afraid that other NATO countries are contractually obligated through this treaty to come to the defense of Greenland. So if you think about it, and it’s really a stretch, even applying the Monroe/Donro doctrine to say that Greenland is in our hemisphere, it’s really not. If you think about it, we’re now contemplating an action that could result in war with our European allies. I mean, when was the last time the US was in a war with France? I think you have to go back to the early 1800s for that, and we’ve been allied ever since. So the undoing, not only of international law, but of international diplomacy and the staunch allies and partnerships that the US has had for centuries are being dismantled and attacked.

J. Craig Williams:

At this time, let’s take a quick break to hear a word from our sponsors. Welcome back to Lawyer Lawyer. I’m joined by Claire Finkelstein, Professor of National Security Law and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania. We are solidly in a constitutional crisis right now in our own country. How would you phrase what is going on internationationally?

Claire Finkelstein:

I think that the weakness within US politics of the … Sex imbalances and the failure to stand up to presidential overreach has created an international rule of law crisis. The international order has depended on certain foundational doctrines such as the rejection of aggressive war, the respect for national boundaries. And it’s not that there are never attacks on those norms. Obviously, Russia’s invasion of Ukraine is a prime example, but you hope that the exceptions to those norms are outliers. You hope that there is a very strong consensus against aggressive actions that violate international sovereignty, such as was the case in 2022 when Russia invaded Ukraine, and there was such a strong reaction to that. And what Trump is doing is changing the norm, changing expectations and dismantling fundamental norms of reciprocity that have always been the foundation of international law even before there was international law.

The basic courtesy, if you will, of norms of international waterways, what eventually produced admiralty law was to sort of do unto others as one would have them do unto us and not this extreme and aggressive approach to other countries and other nations. So we are really undoing the fabric of international diplomacy here in a way that is extremely, extremely dangerous, especially in a nuclear age. Let’s remember that in 1823, the Monroe Doctrine was fashioned at a pre-nuclear time in our history. It’s an awfully dangerous doctrine to be touting in the nuclear age when getting along with other countries is more important than ever.

J. Craig Williams:

Well, don’t forget our Revolutionary Air Force.

Claire Finkelstein:

Yes, right.

J. Craig Williams:

It seems as though … And don’t take this the wrong way, but this is something I’ve always wanted to say back to a law professor because I have a very vivid memory in first year law school of making a similar statement that you made earlier when I answered a question standing up in class with the professor and said something to the effect of, “I would hope that the court would decide so forth.” And I remember very clearly the professors stopping and writing in giant letters from left to right across four or five boards on the front, hope springs eternal.

Claire Finkelstein:

Right.

J. Craig Williams:

And so there we are. But how are we viewed on the international stage by our international allies and other state actors? What is the world’s perspective looking at us? I don’t think people here understand that very well right now.

Claire Finkelstein:

Right now, unfortunately, we’re not viewed very well. We are viewed as aggressive. We are viewed as inconsistent in our norms. We are viewed, I think, as something of a kleptocracy. And I think those of us who try to put the brakes on the conduct of overreaching presidents are viewed as all too timid and all too quiet. Congress is … People have just about put a bow on the US Congress and consigned it to the duspin because Congress is utterly ineffectual and unable to act paralyzed over the most straightforward things. So I don’t think that right now other countries are looking at the American experiment in democracy and saying, “This is a big win.” Now, one has to say that democracies all around the globe are having profound challenges and some challenges of a similar nature with the extremes, the extreme right and the extreme left sort of dominating the airways and dominating the conversation and the more moderate voices in the middle, not getting much of a hearing, but the stability of international diplomacy depends critically on depoliticizing the major institutions of international diplomacy, being able to work with them, being able to work with NATO, being able to work with the EU, being able to work with United Nations.

And this administration has consistently gone about attacking all international organizations, either preemptively or after they criticize him to ensure that they have no hold on him whatsoever.

J. Craig Williams:

Who has standing to challenge this if Congress isn’t going to do anything?

Claire Finkelstein:

We have seen some standing up for the rule of law in particular in district courts. Now, let’s remember that the Supreme Court in 2024 handed President Trump criminal immunity on a platter. And I don’t think we should downplay the role of the immunity decision in Trump the United States as far as emboldening President Trump to do some of what he’s doing. I filed a brief in that case to try, along with 14 national security professionals, to try to warn the court about the impact of presidential immunity on the chain of command in the military and try to emphasize the fact that if you tell the guy at the top that he can commit crimes with impunity as long as he’s acting in his official capacity, you put those in the chain of command in a terribly difficult position because they cannot stick to the rule of law in their actions and their decision making without knowing that they are running a huge risk of retaliation from the lawbreaker at the top.

J. Craig Williams:

I can see Trump versus United States being extended down the line.

Claire Finkelstein:

That’s exactly. The court itself and Trump v. United States did not address the issue of subordinate liability. It did say that it might extend to those very close to the president, like members of the president’s cabinet, but it did not address, for example, those firing on civilian drug ships in the Caribbean, which should not be a target of acts of war or of lethal force because they don’t pose a deadly risk of an imminent nature to the United States. That may be a war crime. We’ve just had a report from the New York Times about perfecty, the use of a disguised plane to launch some of the strikes. Again, that may be a war crime. But when you tell the president that, “Don’t worry, so long as you’re acting in your capacity as president, you can’t be convicted of war crimes.”

J. Craig Williams:

But what kind of argument exists that he’s not acting in his capacity when he commits a war crime?

Claire Finkelstein:

Well, that is another question that the court left open, which is what is an official capacity action? How do you know when the president is acting in his official capacity? This is a question that has come up in a bunch of different contexts. It came up in the E. Gene Carroll case, for example, when the president was denying the accusations of Egene Carroll, who said that President Trump raped her in a Bergdorf Goodman’s department store and in a dressing room. And when he denied those accusations, bafflingly, Merrich Garland, who was attorney general, took over from the previous administration and said, “Yeah, we’re going to treat that as an official capacity statement by the president,” and spent a good number of months joining former President Trump in his defense. Eventually, the Justice Department changed their stance on that. But if denying a rape that happened long before the president was the president can count as an official capacity act, then almost anything can.

It came up again with regard to the January 6th, 2021 insurrection and a lot of the president’s apparent encouragement to the mob to go down to the Capitol and attack the Capitol building to try to disrupt the certification of the votes. And he was very likely acting as a candidate at that moment who was trying to reverse the results of a legitimate election. If you’re acting as a candidate, you’re not acting as president. You’re acting in your personal, not your official capacity. But his argument, one of his many defenses was, I was acting in my official capacity trying to make sure that the voting process and the certification process was lawful. Well, if the president can say anything he wants so long as he calls it official capacity, then the scope of his immunity is going to be very, very broad indeed. So some clarification on what counts as an official capacity act is very badly needed.

J. Craig Williams:

Well, thankfully what he says isn’t the last word.

Claire Finkelstein:

That’s right. So courts will have to determine that. And in the January 6th matter, it went back to the district court judge to make that determination with regard to the indictment that he was facing. And she never got a chance to fully address that question because of course all the prosecution’s ground to a halt.

J. Craig Williams:

Well, we could sit here and talk all day about this because this is the issues that seemingly never end, but we’ve just about reached the end of our show and it’s time to wrap up and get your final thoughts about where we are and where we’re going.

Claire Finkelstein:

So we are coming up on the midterms, as you mentioned, but here’s my concern. People put a lot of hope in these midterms and are hoping that the House and/or the Senate will flip. We have seen when Democrats were in charge of both houses that they still were not able to impeach and remove this president. They were able to impeach him. They were not able to remove him. And why is that? I have argued in Prince that the strategy has been too short term because they are focused on Donald Trump in the moment and focusing on immediate impeachment goals. They do not realize how much of the power of the executive branch can be brought to bear to actually derail impeachment itself or how much of the executive branch power can be brought to bear to derail the vote that occurs both at the midterms and in the presidential elections.

So we have a much bigger, longer term problem than just Donald Trump. This isn’t just about one man. This is about controlling the levers of our democracy and whether or not we’re going to let the office of the president have so much power that we have to hope for the right person in office in order to ensure that we’re a country of laws, not people, to co-opt an old phrase. We shouldn’t have to depend on getting exactly the right person in office. Democracy can’t be that fragile. So we’ve got to have those checks and balances that the framers put in place. And to do that, we’re going to have to go back to very basic principles of accountability and the willingness to push back on executive authority with regard to all sorts of privileges that courts and Congress and others in the system have been willing to extend to the presidency over the years.

J. Craig Williams:

I hate to ask one more question, but it just rings out. Do we need a new Constitution?

Claire Finkelstein:

No, we have a wonderfully designed Constitution. We have not been implementing that Constitution. Let’s think about all of the provisions of our Constitution that we are ignoring. We have a Constitution that says that only Congress can declare war. That’s a critically important provision that Congress itself has been ignoring and has refused to assert with regard to its authority over war and peace. We have a Constitution that says that senior nominations for key positions can only be made with the advice and consent of the Senate. Well, if the Senate gives a pass to everyone who is nominated, regardless of their character, their past history or their unfitness for office, their inexperience, their lack of judgment, then we can expect some of the results that we get. We have a constitution that allows one to examine the mental fitness of the occupant of the Oval Office. Something that this, even when the Democrats were in control, they were not willing to do.

And we allow courts to come up with all sorts of additional privileges and to assign them to presidents under an interpretation of Article two, executive privileges that are nowhere written out in the document. So I think the document is not at fault. It’s the interpretation of the document and the refusal to implement its provisions that needs to be reexamined.

J. Craig Williams:

Well, Claire, it’s been an absolutely fascinating conversation. It’s been a thrill to have you back on the show, and I am confident that we will do so again because this issue will continue to boil up and be something that needs to be discussed. Thank you so much for being on the show today.

Claire Finkelstein:

Thanks for having me, Craig.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. Obviously, as you can tell, it’s extremely complicated and involves actors on a world stage that you and I as individuals will be able to have little effect over other than voting, which as Claire points out, is likely not tremendously effective given where Congress is these days. So I suspect the only solution will be to elect an effect of Congress and good luck with that. Well, that’s it from my Rann on today’s topic. Let me know what you think. If you’d like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legalTalkNetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, the Employer to Lawyer.

Thanks

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