Immunity is likely to be among the defenses that Venezuelan President Nicolás Maduro will raise in a bid to dismiss his federal indictment in New York. Specifically, he may argue that he is entitled to “head of state” immunity as the leader of Venezuela. Courts have recognized such sovereign protection since long before the Supreme Court granted broad criminal immunity to former U.S. presidents in Trump v. United States.
But Maduro won’t necessarily benefit from that long-recognized form of immunity. The Department of Justice would likely argue that he’s an illegitimate leader and therefore isn’t entitled to such immunity. The indictment refers to Maduro as having “previously” been the Venezuelan president and by “having remained in power despite losses in recent elections” became “the de facto but illegitimate ruler of the country.”
The foreign immunity issue surfaced decades ago in the prosecution of Panama’s Manuel Noriega, whose case may be the most similar to Maduro’s. Ruling against Noriega on appeal after his conviction, a federal appeals court panel noted that the Florida federal trial judge presiding over Noriega’s case rejected his head-of-state immunity claim because the U.S. never recognized him as Panama’s legitimate ruler.
“Noriega has cited no authority that would empower a court to grant head-of-state immunity under these circumstances,” the 11th Circuit appellate panel wrote in its 1997 ruling.
Yet there’s at least one factor that could distinguish the Noriega case in Maduro’s favor. The circuit panel further noted that Noriega “never served as the constitutional leader of Panama,” while the U.S. seems to concede that Maduro was at least at one point Venezuela’s legitimate leader. That alone might not be enough for Maduro to win immunity, but his legitimacy — and who legally gets to decide that legitimacy — may play a key role in this litigation.
Maduro’s case is proceeding in New York, which falls under a different federal circuit, the 2nd, so the 11th Circuit ruling in Noriega’s case isn’t binding in New York. But New York courts can still cite it to inform their rulings in Maduro’s case.
Ultimately, the Supreme Court that granted Trump broad immunity may decide this or other aspects of Maduro’s prosecution, or both.
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