As Prosecutors Prepare To Take On Maduro, Complex Legal Issues Await

Federal prosecutors face a long, fraught road to convict deposed Venezuelan leader Nicolás Maduro and his wife.

It’ll likely be years before a jury even begins to weigh whether Maduro is guilty of the charges against him. Before that happens, the court will have to grapple with a thicket of complex legal and geopolitical questions — whether his capture was legal, for example, and whether he was the legitimate president of Venezuela at the time.

Maduro and his wife, Cilia Flores, are charged with conspiracy to import cocaine, possession of machineguns and destructive devices and a related conspiracy charge. Maduro is additionally charged with narco-terrorism conspiracy. They have pleaded not guilty to all counts.

During their 30-minute arraignment last week, Maduro’s lawyer previewed the fights he expects to wage, saying he anticipates “substantial” pretrial arguments. “Mr. Maduro is the head of a sovereign state and is entitled to the privileges and immunities that go with that office,” his lawyer, Barry Pollack, told the judge. “In addition, there are issues about the legality of his military abduction.”

Legal experts said hurdles may also arise in relation to the narco-terrorism conspiracy charge, due to shifting terrorism designations over the years and because of the amount of time that is likely to pass between when Maduro was first charged, in 2020, and when the case goes to trial.

Given the case’s complex legal issues, the volume of discovery and the classified material involved, it will take “forever” to reach a jury, said Jeffrey Brown, a former chief of the terrorism and international narcotics unit at the Manhattan U.S. attorney’s office, which is handling the Maduro prosecution.

And that fact alone could shape the nature of the prosecution, since it is possible the cast of characters, including the president, U.S. attorney and even the judge, 92-year-old U.S. District Judge Alvin Hellerstein, may change by then.

The timeline, Brown said, is “a meaningful question.”

The military capture

Maduro will almost certainly argue that his arrest and transfer to the U.S. were unlawful and therefore warrant dismissal of his case. In court last week, Maduro described himself as “a kidnapped president, prisoner of war.”

A 1989 opinion from the Office of Legal Counsel, written by then-Assistant Attorney General Bill Barr, however, said the U.S. isn’t barred from carrying out “forcible abductions” abroad to enforce domestic laws.

In late December of last year, the Trump administration’s Office of Legal Counsel issued an opinion, made public in a redacted form Tuesday, saying it had advised that using a military operation to “forcibly” remove Maduro, “typically known as ‘irregular’ or ‘extraordinary rendition,’ would not endanger any subsequent U.S. prosecution.”

“We are not aware of any such precedent that addresses the situation where such an extrajudicial transfer occurred in the context of a military action that the President lacked authority to order, but we think the better view is that reasoning would permit Maduro’s prosecution even without the consent of the legitimate Venezuelan government.”

The closest parallel to the Maduro case, legal experts said, is that of Manuel Noriega, the Panamanian dictator who challenged his prosecution in the 1990s after being captured and brought to the U.S.

Manhattan U.S. Attorney Jay Clayton has said there are ample precedents supporting the legality of Maduro’s capture, including the arrests of people involved in the 2012 attack on government buildings in Benghazi, Libya, and the detainment of suspects in the 1988 bombing of Pan Am 103.

“There's examples in Syria and combatants during those wars being brought back to the United States,” Clayton added during an appearance on CNBC on the morning of Maduro’s arraignment. “From the perspective of where I sit, my people and I are completely comfortable with this prosecution.”

Chris Urben, a former U.S. Drug Enforcement Administration special agent, said Maduro is unlikely to prevail on any argument about the legality of what Urben called his “rendition.”

“The U.S. military, the CIA, in the global war on terror, plucked people from various places globally, and they were brought back and faced justice in the United States,” said Urben, who is now a managing director at investigative firm Nardello & Co. “So I think for Maduro, as wild as this was and what happened in terms of extracting him from there, I don't think he's going to win on that argument, not at the Southern District.”

Maduro’s immunity claims

“I am still president of my country,” Maduro said while entering his plea. Flores told the judge: “I am still first lady of the republic of Venezuela.”

Under a longstanding principle of international law — which was also recognized in an 1812 Supreme Court opinion —heads of state have immunity in foreign courts.

Prosecutors appeared ready for that argument from the outset, arguing in their indictment that Maduro hasn’t been the legitimate president for years. It describes Maduro in multiple instances as a “de facto” leader of an “illegitimate” government.

Maduro, the indictment says, “was previously the President of Venezuela, and is now, having remained in power despite losses in recent elections, the de facto but illegitimate ruler of the country.” The charging papers add that since 2019, more than 50 countries, including the U.S., have refused to recognize him as the legitimate head of state.

Clayton, during his CNBC appearance, likewise pointed to remarks by Secretary of State Marco Rubio who said the U.S., the European Union and others don’t recognize Maduro as the duly elected leader of the country.

A narco-terrorism complication

Maduro is charged with narco-terrorism, and the indictment lists several narco-terrorist organizations accused of “working in partnership” with him and his co-defendants. Those are the FARC, the Revolutionary Armed Forces of Colombia; the ELN, Colombia’s National Liberation Army; the Sinaloa cartel, the Zetas and Tren de Aragua.

The State Department designated the FARC as a foreign terrorist organization in 1997, but it removed that designation in late 2021. At the time, it added two FARC successor organizations to the foreign terrorist organization list.

The Sinaloa cartel, Tren de Aragua, and the Zetas, under the updated name of Cartel del Noreste, weren’t added to the list until February 2025.

Brown, the former head of the unit prosecuting Maduro and now a partner at law firm Dechert LLP, said the timing of the designations might become a hurdle for prosecutors.

“Those overlapping and underlapping terrorism designations for those organizations, it seems to me, create complexity that will present at least a little bit of a challenge. Whether that manifests as a legal challenge or as a factual challenge, or both, I think is yet to come into view, but I could see it becoming an issue.”