As a matter of American law, the ex-dictator hasn’t a leg to stand on.
As a matter of American law, the ex-dictator hasn’t a leg to stand on.
H ere are a few observations about the stunning developments this past weekend in Venezuela.
There are significant legal questions about the legitimacy vel non of the dictator Nicolás Maduro’s forcible extraction by U.S. armed forces, working in tandem with American intelligence and law enforcement agencies. It is unlikely, however, that the federal criminal case against him in Manhattan’s Southern District of New York (SDNY) will be an effective forum for pressing any objections.
As a matter of American law, unadorned by any treaty obligations, Maduro really hasn’t a leg to stand on. Even if illegality has attended the arrest of an accused, including any unlawful search of his person or premises, that would not vitiate the charges in an indictment. It would, at most, give the accused grounds to challenge the admissibility of any statements he may have made, or any evidence seized, at the time of arrest.
In the case of Maduro and Cilia Flores de Maduro, his wife and co-defendant, the narcotics charges were filed based on evidence that the government possessed and presented to a grand jury prior to the arrest, so the underlying case would still be viable.
The U.S. military action against Venezuela was not authorized by Congress, and our nation was not under any threat of attack (notwithstanding the Trump administration’s strained “narco-terrorism” jargon, equating drug shipments with foreign terrorist activity or military attacks, against the weight of federal law). Nevertheless, as I’ve previously acknowledged, the president’s case for taking military action against Maduro’s regime is stronger than the case for using lethal force against suspected drug-ferrying vessels the administration labels “non-state actors” and “narco-terrorists” (I’ve extensively argued that the latter strikes are indefensible).
That is due to both (a) the Noriega precedent (President George W. Bush’s 1989 extraction from Panama of its then–de facto leader, Manuel Noriega, who was similarly facing narcotics charges brought by the Justice Department); and (b) the Justice Department’s expansive view of the chief executive’s inherent authority to use force when he perceives a threat, however vague, to American interests — particularly since President Barack Obama’s unauthorized use of military force against Libya which, like Venezuela, was not threatening to attack the U.S. (see, e.g., here and here).
All that said, though, claims that the American invasion this weekend (in which at least 80 were reportedly killed) violated the Constitution will be unavailing for Maduro and his wife. Such claims are neither a basis to dismiss criminal charges nor a defense against them. They are matters for Congress to consider. The courts will not use the Maduros’ case as a pretext for intervening in constitutional questions about the commander-in-chief’s authority to launch a military invasion.
The Maduros’ case has been assigned to Judge Alvin Hellerstein, a senior Clinton appointee. Hellerstein is perceived as hostile to President Trump, having essentially upheld the authority of Manhattan’s elected Democratic district attorney, Alvin Bragg, to try Trump in New York State court on the ludicrous “hush money” business records fraud charges. (Trump was found guilty in the spring of 2024; the convictions are being appealed.) But, assuming that Hellerstein remains assigned to the Maduro prosecution, and if he were to entertain objections that the invasion of Venezuela violated the Constitution, he’d quickly be reversed. (To be clear, I do not believe Hellerstein would do that. When I question whether he’ll remain assigned to the case, I simply mean that this could be a very demanding litigation for a 92-year-old jurist — I am not suggesting that there is any colorable bias claim for Hellerstein’s removal.)
What about international law? The U.S. is a member of the treaty establishing the United Nations. Article VI of the Constitution makes ratified treaties the supreme law of the land — the equivalent of congressional statutes and part of the laws that the president is obliged to faithfully execute. Our government has long interpreted the U.N. Charter to prohibit the unilateral use of force except in self-defense (see U.N. Charter, especially Article 51).
It is highly likely that the U.N. General Assembly (which leans anti-American) will find that the invasion of Venezuela and extraction of Maduro were not in self-defense and will condemn the actions as violations of international law. Nevertheless, in the U.N. Security Council, which is of more consequence, any proposed condemnatory resolution will be vetoed by the United States. This is what happened after the invasion of Panama and extraction of Noriega: The General Assembly approved a resolution “strongly deplor[ing]” it (see Dec. 28, 1989, GA Res. 44/240), but the U.S. vetoed a similar Security Council action (see Dec. 22, 1989, Draft Res. S/21048, vetoed the following day).
As with the U.S. constitutional claims, no international law claim against the legitimacy of Trump’s invasion of Venezuela will undermine the criminal prosecution of Maduro and his wife. Treaties are not self-executing. Even if Trump arguably violated international law, there is no statute or other provision of federal law enabling a criminal defendant to raise an illegal invasion as a defense to criminal charges. As longtime readers know, my default take on international law is that, in the main, it is international politics aspiring to be taken seriously as enforceable law. Regardless of whether I am right about that, it won’t be enforced in this instance.
Another interesting legal aspect of the weekend’s developments is the revelation Saturday that the incumbent Trump Justice Department recently superseded the 2020 indictment of Maduro, which had been brought by the first-term Trump Justice Department.
It is worth a separate post to explore what has been changed and why. For now, suffice it to say that while both charging documents allege mega-drug offenses involving the importation to the U.S. of thousands of tons of cocaine, the new indictment portrays Maduro as the center of a sprawling enterprise involving several violent international drug cartels. The earlier indictment — which involved mostly different codefendants and did not include Cilia Flores de Maduro — principally centered on an alleged joint enterprise between the regime of Maduro (as successor to Hugo Chavez) and the FARC (Fuerzas Armadas Revolucionarias de Colombia), the notorious Marxist insurrectionist organization that, for decades, levied war against the Colombian government (but has since laid down its weapons and been removed from our State Department’s list of designated foreign terrorist organizations).
Again, I’ll analyze the indictments in a separate post. What matters at the moment is that the Maduros were arraigned today. Indeed, as this was written, he arrived, under heavy guard, at Manhattan federal court. Arraignments tend to be short proceedings: pleas of not guilty were entered, and the Maduros will surely be detained pretrial — probably for the duration of the proceedings, but certainly for the time being.