CapturedVenezuelan President Nicolás Maduro's declaration in a New York federal courtroom Jan. 5 that he is"still president" of his countrymight have sounded like a political statement. It turns out, it's also a legal defense.
The imprisoned leader's own lawyer,Barry Pollack, said in court that the defense team will be arguing Maduro is immune from criminal charges as the head of a foreign government.
It's one of a series of defenses Maduro could raise to try to quash the charges before any trial takes place, according to criminal defense lawyers who spoke with USA TODAY. Those include saying Maduro was illegally abducted and that PresidentDonald Trumpis targeting him vindictively.
"The goal, if you are the defense counsel, is to make this prosecution go as slowly and be as much of a mess as possible, in the hopes that eventually it goes away," said Mitchell Epner, a former federal prosecutor.
Photos show authorities bringing Nicolás Maduro to court in NYC
It might seem far-fetched, but recent history even gives Maduro reason to consider warming up to his captor. The Trump administration has offered several pardons, commutations and dropped prosecutions to criminal defendants who have taken that approach, includingformer Honduran President Juan Orlando Hernández,former New York City Mayor Eric Adams,Rep. Henry Cuellar, D-Texas, andformer Rep. George Santos, R-NY.
"Ask Kim Jong Un," Epner said, referring to thesometimes-warm relationshipTrump has had with the North Korean dictator. "He could become Trump's best friend six months from now," Epner said of Maduro.
Here are six different ways Maduro could fight the charges and why each strategy comes with its own challenges:
Maduro immune as Venezuela's leader?
Maduro isn't the first foreign leader to argue that his American charges should be thrown out because he is a country's head of state.
Manuel Noriega, a former Panama general, made the same argument after he was captured by U.S. forces and made to face charges of drug trafficking and money laundering. Noriega wasn't formally elected the president of Panama, but he was widely regarded as the country's actual leader, directing the actions of puppet presidents.
However, that argument failed for Noriega. The U.S. Court of Appeals for the 11th Circuitruled in 1997that he wasn't immune from prosecution under the immunity provided to heads of state because the U.S. executive branch of government "manifested its clear sentiment" that he wasn't entitled to such immunity when it pursued his capture and prosecuted him.
The appeals court added that Noriega never served as the constitutional leader of Panama, that his home country hadn't sought immunity for him, and that he was prosecuted for acts related to pursuing his personal enrichment. The Supreme Courtdeclined to review the ruling.
Maduro could argue that his case is different because he was serving under the formal auspices of the Venezuelan presidency.
However, vote tallies collected by the opposition to Maduro and analyzed separately by theWashington Postand theAssociated Pressindicated he likely lost the 2024 Venezuelan presidential election.
And the Trump administration isn't alone intreating Maduro's presidency as illegitimate.President Joe Biden's State Departmentincreased the reward for help in capturing Maduroin January, shortly before Trump re-took office, stating that Maduro "clearly lost the 2024 presidential election."
"I don't think that's going to succeed, because Maduro took power through force and fraud," said Dave Aronberg, a Florida criminal defense lawyer and former state attorney for Florida's Palm Beach County.
"He is not a legitimate head of state, and it didn't work for Noriega, nor should it work for Maduro," Aronberg added.
Illegal capture?
Pollack, Maduro's defense lawyer, also said at the Jan. 5 proceedings that he expects a legal fight over Maduro's "military abduction" – seeming to suggest the defense will challenge how Maduro was captured.
That argument also failed for Noriega.
The 11th Circuit appeals court ruledthat, despite a U.S.-Panama extradition treaty, the U.S. never "affirmatively agreed not to seize foreign nationals from the territory of its treaty partner."
Andthe appeals court saidthat, under Supreme Court decisions dating back to1952and1886, known together as the"Ker-Frisbie doctrine,"Noriega couldn't stop his prosecution by arguing that procuring him through a military invasion violated the U.S. Constitution's protections for due process of law.
Maduro would have to show why his case is different, or why rulings in other cases misinterpreted the law.
It wouldn't be enough for Maduro to say his capture violated international law, according to Epner. The defense would need to argue that Maduro's capture violated some international law that was put into a multilateral treaty and then ratified by the U.S. Senate.
Vindictive and selective prosecution
Maduro could also argue that he is beingvindictively and selectively prosecuted, and the charges should therefore be thrown out. The two defenses deal with the government retaliating against defendants for exercising their legal rights or singling out defendants based on protected characteristics or activity, such as their race or political work.
Aronberg expects Maduro to point to Trump's pardon of former Honduran President Juan Orlando Hernández, who prosecutors said helped to bringmore than 400 tons of cocaine into the United States. Hernández was a conservative politician, whereas Maduro is a socialist.
"He got a pardon because Trump liked his politics," Aronberg alleged. "Now you have someone who's accused of trafficking and is facing serious criminal charges because Trump doesn't like his politics."
However, those defenses are hard to win. Trump and former PresidentJoe Biden's son,Hunter Biden, both lost motions challenging federal criminal cases they faced in recent years on the grounds of selective and vindictive prosecution.
Epner said the prosecution can probably overcome a selective prosecution defense by showing they prosecute drug traffickers all the time.
Maduro's defense team may focus on the vindictive prosecution argument, Epner said, "the theory being that the Trump administration only prosecutes people who are heads of state for drug trafficking if they are left wingers, not if they are right wingers."
Outrageous conduct
Maduro could also argue that his case should be dismissed because the government has engaged in "outrageous conduct" or conduct that "shocks the conscience." This type of challenge falls under the Constitution's protections for due process.
Epner said Maduro might make a version of this argument that focuses on his belief about why he was taken from his own country.
"What that would look like is that, 'This is a prosecution that is a fig leaf to cover up the expropriation of Venezuela's oil resources,'" Epner said. Maduro's defense team could point to Trump's comment, following the invasion, that,"We're going to get the oil flowing the way it should be."
Noriega made his own version of this argument to the Florida federal district court that handled his trial. He alleged the U.S. government committed "outrageous" and "shocking" atrocities as part of invading Panama to seize him, and so his case should be dismissed.
However, the trial court said Noriega was improperly inviting the court to try to manage and control foreign policy, which is designated under the Constitution for the president and Congress, not for the courts.
Challenge the prosecution's evidence
If Maduro's case makes it to trial, his legal team will almost surely seek to poke holes in the evidence and testimony the prosecution puts on.
In justifying his pardon of former Honduran President Juan Orlando Hernández, Trump said the former president was"treated very harshly and unfairly,"while a Trump administration official said the case rested on the testimony of "cooperating witnessesandnotoriously violent drug cartel leaders."
"You can be sure that the defense at some point will raise criticisms of the key witnesses against Hernández to say, 'If the president says, 'Do not believe the witnesses against Hernández,' why should we then believe similar witnesses against Maduro?'" Aronberg said.
Seeking a presidential pardon
Then there's always the possibility that Maduro tries to change his relationship with the Trump administration, which has the power to drop the charges and even permanently shield him from a federal criminal case with a pardon.
Aronberg thinks that's unlikely, however, even if Trump has shown a willingness togrant pardons to an array of criminal defendantssince retaking office in January. He noted that Secretary of StateMarco Rubiohaslong been critical of Maduro's government.
"I do think the most powerful person in that White House when it comes to this mission is Marco Rubio, and he has always been a hawk when it comes to American intervention in Latin America," Aronberg said.
"I can't imagine that all it takes is Maduro to say some nice words, and then he's he's set free," he added.
This article originally appeared on USA TODAY:Maduro's defense strategy could challenge capture and claim immunity
