Call U.S. Move on Venezuela What It Is: Regime Change

(Bloomberg Opinion) -- The U.S. and about a dozen other countries recognized opposition leader Juan Guaidó as the legitimate president of Venezuela on Wednesday, even as President Nicolás Maduro maintained his grip on the office.

But is that even a thing? Under ordinary principles of constitutional and international law, can one country simply declare that someone who manifestly isn’t the president of the country actually is, and act accordingly?

Well, no. Not really. Maduro is a terrible president who has not only broken the Venezuelan economy but also repeatedly broken the Venezuelan constitution himself. His re-election in 2018 by a reported 67.8 percent wasn’t free or fair. It’s defensible as a matter of foreign policy for the U.S. to seek his ouster.

But the constitutional argument that Maduro isn’t really president is nothing more than a fig leaf for regime change. Even as fig leaves go, it’s particularly wispy and minimal. The U.S. policy is, in practice, to seek regime change in Venezuela. It would be better to say so directly.

It may seem convenient now for the U.S. to hide its objective behind a constitutional argument. In the long run, however, it’s far from clear that President Donald Trump’s administration should be embracing a legal argument that invites foreign countries to rely on doubtful interpretations of the local constitution and declare that they know who the president genuinely is. That kind of argument can be flipped against governments the U.S. wants to support — or even, albeit symbolically, the U.S. itself.

The policy argument in the U.S. should be about the genuinely important question of whether the U.S. should pursue regime change in a Latin American country. That debate shouldn’t be obscured by the implausible, technical suggestion that the U.S. is actually just recognizing the legitimate government there.

The official State Department declaration of recognition for Guaidó cites Article 233 of the Venezuelan charter, one of the world’s longest. Beyond that, it doesn’t give much legal justification.

In fact, Venezuela’s constitution doesn’t allow for impeachment by the National Assembly, of which Guaidó is the leader. Instead, it specifies that the president can be recalled by popular vote.

Article 233 doesn’t say that the assembly can remove the president. It just says that the president of the National Assembly can fill the office of the presidency for 30 days if the president “shall become permanently unavailable to serve.” It lists the bases for permanent unavailability, which include removal from office by the Supreme Tribunal of Justice, physical or mental disability, or abandonment of office.

None of those conditions has been met. In an op-ed article in the Washington Post, Guaidó offered the brief argument that “there’s no legitimately elected president,” presumably because Maduro’s election was tainted. But nothing in the constitution says that that decision is up to Guaidó or the National Assembly.

Guaidó also cited two other articles of the constitution, 333 and 350. The first calls on citizens to restore the constitution if it isn’t being followed. That’s more a nice sentiment than a legal duty. The second calls on the people to reject a government that violates democratic values and human rights — ditto.

The State Department didn’t consider these other constitutional arguments even worth a mention, which tells you something about their weakness.

So if the constitutional argument for Guaidó being the legitimate president is so weak, what about the authority of foreign countries like the U.S. to recognize him?

It’s an established principle of international law that governments have the right to recognize each other. Suppose there was a genuine civil war within a country, and a dispute about which government was a legitimate one. It would be up to each foreign state to make its own determination. So there’s no power that can tell the U.S. or the other countries that recognized Guaidó that they must reverse themselves.

What’s more, in the U.S., recognition is treated as a political act. The executive branch is given near-total deference to decide what governments it wishes to recognize under a recent Supreme Court decision, Zivotofsky v. Kerry, that dealt with the State Department’s policy of listing Jerusalem, and not Israel, as the birthplace on passports of Americans born in the city. So the Trump administration’s decision can’t easily be second-guessed by Congress.

Most of the time, however, the U.S. makes some effort to justify its recognition decisions. That’s where the fig leaf of Article 233 comes in — and where its inadequacy matters.

Imagine that the U.S. wants to support a government under threat, like, for example, the government of Ukraine when Russian President Vladimir Putin was invading Crimea. When that happens, the U.S. insists vociferously that its ally is a sovereign state and that no other government can de-recognize it.

When the U.S. plays fast and loose with recognition, it undercuts its moral authority in such situations.

In the extreme case, you can imagine U.S. opponents announcing that Trump isn’t president, because they think he’s guilty of high crimes and misdemeanors — even though he hasn’t been impeached by the House and removed by the Senate. Those are, after all, just procedures — like the procedures of the Venezuelan constitution that the American declaration flouts.

To be sure, declaring that Trump wasn’t the president would put a country at odds with the U.S. Americans would consider it an effort at regime change.

That’s exactly what the U.S. is doing in Venezuela. Everyone in Venezuela knows it, whether they support Maduro or Guaidó. In this case, we would all be better off with the truth.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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