Ousted Venezuelan leader Nicolás Maduro, currently detained in a Brooklyn jail alongside his wife Cilia Flores following an intense pre-dawn apprehension in Caracas on Saturday, is poised to argue for immunity from prosecution as a head of state, according to hints dropped by his attorney during a court session on Monday.
Contrarily, the United States is expected to contest Maduro’s legitimacy as Venezuela’s leader, having invalidated his re-election in 2019 due to alleged fraudulence. However, both sides may face challenges with their respective arguments.
Legal expert Margaret Donovan, a former U.S. federal prosecutor and Yale Law School lecturer, suggested that the U.S. Department of Justice could convince a judge that Maduro lacks true head-of-state status and was not legitimately elected, a stance likely supported by many nations worldwide.
Despite potential obstacles, Donovan noted that opting for a defense centered on immunity is a logical move, especially given the current U.S. administration’s emphasis on presidential immunity.
During the court appearance where both Maduro and Flores pleaded not guilty, Maduro’s defense lawyer, Barry J. Pollack, asserted that his client, as the head of a sovereign state, is entitled to the privileges associated with that position. Pollack also raised concerns about the legality of Maduro’s apprehension by the military, promising extensive legal filings to address these issues.
Maduro, Flores, and others are accused of colluding with drug cartels to enable the smuggling of large quantities of cocaine into the U.S. The charges include narco-terrorism conspiracy, possession of firearms and explosives, and conspiracy to possess such weapons, carrying potential life imprisonment upon conviction.
Drawing parallels to the arrest of Panama’s Manuel Antonio Noriega, the U.S. has underscored similarities between the two cases. However, distinctions exist, such as Noriega’s lack of a presidential title during his de facto rule compared to Maduro’s claims of multiple electoral victories, despite disputed re-election results.
Miami defense lawyer David Oscar Markus highlighted the stronger sovereign immunity defense that Maduro could wield compared to Noriega, as the former was a sitting president at the time of his arrest. In a separate case, former Honduran president Juan Orlando Hernández, previously sentenced for drug trafficking, was recently pardoned by former U.S. President Donald Trump.
Regarding the narco-terrorism charge against Maduro, the U.S. has framed cocaine trafficking as a national security threat, blending criminal justice with anti-terrorism efforts, a strategy viewed as creative yet potentially subject to challenge.
At a recent U.N. Security Council meeting, the U.S. positioned Maduro’s arrest as a law enforcement operation and refuted claims of initiating a war, while emphasizing Maduro’s alleged role in drug trafficking and destabilizing the region.
Noteworthy is the absence of fentanyl-related charges in the indictment, unlike previous allegations made by Trump against Venezuela. The charges specifically focus on cocaine trafficking, with experts indicating that the majority of fentanyl originates from Mexico, not Venezuela.
Maduro may challenge the circumstances of his arrest, including the military intervention that reportedly led to casualties, as well as the firearms charges associated with his alleged drug trafficking involvement, which are notoriously challenging to prove.
