Trump’s immunity protections don’t extend to MAGA allies: ex-DOJ prosecutor

Tensions between the Trump Administration and Venezuela escalated when, on Wednesday, December 10, U.S. President Donald Trump announced that an oil tanker had been seized off of the Venezuelan coast in the Caribbean. Three officials, interviewed on condition of anonymity, told the New York Times that the tanker was carrying Venezuelan oil.

The incident followed a series of U.S. military attacks on Venezuelan boats that Trump and Defense Secretary Pete Hegseth allege were smuggling illegal drugs headed for the United States. Many critics of Trump's Venezuela policy are describing the attacks as "extrajudicial killings," alleging that the Trump Administration isn't following the rules of war.

Politico legal analyst Ankush Khardori, a former federal prosecutor for the U.S. Department of Justice (DOJ), addresses the legality of the boat strikes in an article published on December 11.

"Perhaps not surprisingly, Defense Secretary Pete Hegseth and senior military leaders have faced the worst of the political uproar from the Trump Administration's boat strikes off the coasts of Central and South America," Khardori explains. "The campaign has produced at least 87 deaths and one of the few episodes of bipartisan pushback in Trump's second term following the revelation that the U.S. military conducted a 'double tap' strike on an alleged drug boat that intentionally killed two survivors of an earlier strike. But very serious questions about the legality of the effort in its entirety — even setting aside the double tap strike — should be directed at the Trump Administration's top lawyers."

Khardori continues, "In particular, there is a dubious, but still classified, memo that was reportedly produced over the summer by the Justice Department's Office of Legal Counsel that signs off on the campaign and asserts that everyone in the chain of command is entitled to criminal immunity because the United States is said to be engaged in an armed conflict with drug cartels."

If any activity associated with the Venezuelan boat strikes are found to be illegal, Khardori warns, Trump officials won't enjoy the presidential immunity protections that Trump himself enjoys.

In its Trump v. the United States decision of 2024, the U.S. Supreme Court ruled, 6-3, that presidents enjoye absolute immunity from criminal prosecution for "official" acts but not "unofficial" acts committed while in office. The Nation's Elie Mystal, a scathing critic of the ruling, argued that it was dangerous because it give presidents "absolute" immunity rather than merely "qualified immunity."

Khardori notes that Trump v. the United States only offers immunity protections to Trump, not to others involved in the Venezuela operation.

"Trump may be immune from criminal prosecution in the U.S. thanks to the Supreme Court, but everyone else involved, in theory at least, faces the risk of federal prosecution in a future administration unless Trump at some point grants some or all of them a pardon," according to the former federal prosecutor. "For all of the Trump Administration's bravado, getting legal signoff for the boat strikes may not have been as simple as it now appears. Multiple media outlets have reported that proponents of the strikes were forced to push aside or ignore government lawyers who concluded that the military campaign is unlawful or otherwise questioned its legality."

Ankush Khardori's full article for Politico is available at this link.