The Supreme Court’s July 1, 2024, Trump v. United States decision, in which the court held that presidents enjoy immunity from criminal prosecution for official acts, was widely viewed as an enormous win for then-candidate Donald Trump, who was facing multiple criminal cases. That momentous decision arguably cleared the way for his reelection. But now that same decision has the potential to hand the Trump administration a great defeat in court — because it offers ousted Venezuelan President Nicolás Maduro a good defense in the case against him.
The 2024 Supreme Court decision could lead to a dismissal of charges against Maduro who is facing federal criminal charges.
Indeed, the 2024 Supreme Court decision could lead to a dismissal of charges against Maduro, who is facing federal criminal charges for, among other things, narco-terrorism conspiracy.
The Department of Justice alleges that Maduro used his official position and “leveraged government power to protect and promote illegal activity, including drug trafficking.” Based on the allegations in the indictment, at least some of Maduro’s purported criminal conduct could be seen as official acts, thus allowing Maduro to argue that he should enjoy the same protection afforded to Trump and any other president by the Supreme Court’s immunity decision.
In Trump v. United States, the court concluded that U.S. presidents must enjoy immunity from criminal liability for official acts — that is, actions taken while exercising core executive authority — to protect the independence of the presidency, give breathing room for presidential decision-making and guard against political retaliation and prosecutorial overreach. The decision drew a distinction between official acts, those taken pursuant to constitutional or statutory authority, and private conduct. Presidents do not enjoy any immunity for private conduct.
Critically, the court emphasized that whether an act is “official” does not turn on whether it was wise, ethical — or even lawful. The question is whether the act fell within the ambit of presidential authority. This functional approach could prove useful to Maduro’s defense.
Hence, as odd as it seems, it may actually be advantageous for Maduro to argue that he was acting in his capacity as head of state; that is that even if he did what the U.S. government accuses him of doing, then that would fall within the category of official acts. There is substantial room for Maduro to press this argument. The complaint against Maduro alleges that Maduro used the machinery of the Venezuelan state to facilitate drug trafficking, protect cartel operations and weaponize narcotics as a tool of political power. The theory of the DOJ’s case depends, at least in part, on the idea that Maduro used state authority and resources, as opposed to acting like a private individual.
This is not a slam dunk argument for Maduro.
Next, to successfully use Trump v. United States to defend against his federal charges, Maduro of course has to convince a U.S. court that the logic behind that decision, which protects U.S. presidents, extends to foreign heads of state. The Supreme Court concluded that it is essential to protect a chief executive’s ability to make official decisions, free of fear of criminal prosecution; Maduro could argue that the same logic applies to foreign heads of state.
This is not a slam dunk argument for Maduro. Courts could easily draw a line between giving immunity to our president and giving immunity to another country’s leaders. But the fact remains that Maduro has a good shot of handing the Trump administration a serious defeat by using the logic the Supreme Court used in Trump vs. United States.
This is not Maduro’s only argument regarding immunity. He will certainly argue that he is entitled to head-of-state immunity or foreign official immunity, regardless of the applicability of the Supreme Court’s decision in Trump v. United States.
But the bottom line is that the irony of this moment is hard to miss: A decision designed to protect the American presidency, and which greatly benefited Trump, may now complicate or undermine his efforts to bring charges against a foreign president.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist.