As Trump 2.0 Looms, Durbin Urges DOJ to Rescind War Powers Opinions

The top Democrat on the U.S. Senate Judiciary Committee this week urged the Department of Justice to rescind some war powers-related legal opinions and release certain records, a call that came in the lead-up to Republican President-elect Donald Trump's return to the White House.

Sen. Dick Durbin (D-Ill.) made the request in a Tuesday letter to U.S. Attorney General Merrick Garland, stressing the Constitution's division of treaty-making and war powers between Congress and the president, as well as the president's obligation "to take care that the law be faithfully executed."

Highlighting that the DOJ "has previously withdrawn flawed or outdated" guidance, Durbin identified five opinions from the department's Office of Legal Counsel (OLC) that he believes should be taken off the books:

• A 1989 opinion about the Federal Bureau of Investigation's authority to apprehend suspects overseas that concludes the president can unilaterally "override" the United Nations Charter's prohibition on the use of force;
• A 2001 opinion finding the president could effectively wage the entire "War on Terror" without congressional authorization;
• A 2002 opinion suggesting the president could wage the Iraq War without congressional authorization;
• A 2020 opinion related to the U.S. assassination of Iranian Gen. Qassem Soleimani that—though redacted—asserts the president has the authority to order an attack on a senior official from Iran; and
• A 2020 opinion claiming that a requirement for the president to give Congress advance notice of plans to withdraw from a treaty is unconstitutional.

"Congress and the executive branch may have differing views in some respects as to the separation of powers between them," Durbin wrote. "However, these opinions are concerning outliers even by the standards of the executive branch's own legal doctrine. Indeed, it does not appear that OLC has relied upon these opinions in other publicly available legal memoranda. For these reasons, I urge the Department of Justice to withdraw them."

The senator also gave Garland a list of 20 records to release "relating to the president's authority to deploy U.S. armed forces within the United States, and the activities in which those military personnel may or may not engage."

"The need for transparency regarding these legal interpretations is particularly urgent today given the risk of domestic military deployment to suppress protests or carry out mass deportations," he wrote to the outgoing attorney general.

Sharing the letter on social media Wednesday, Durbin more clearly said, "Donald Trump has promised to deploy the military for mass deportations, and we have a right to know how the Justice Department interprets this authority."

Durbin sent the letter on the same day that Trump, during a press conference at Mar-a-Lago, refused to rule out using military force to take over the Panama Canal and Danish territory Greenland, sparking global condemnation.