Nicolas Maduro is trying to get his ‘unprecedented’ indictment tossed out of court

Deposed Venezuelan leader Nicolas Maduro has asked a federal judge to toss the indictment against him, arguing that he is immune from prosecution as a foreign head of state despite the Trump administration’s efforts to characterize him as an illegitimate leader. “This unprecedented prosecution violates the absolute immunity from criminal jurisdiction to which heads of state and foreign officials acting in their official capacities have been entitled for hundreds of years,” Maduro’s lawyers, Barry Pollack and Anna Estevao, wrote in a 60-page memo filed in federal court in New York on Wednesday. Since early January, when U.S. forces took the extraordinary step of abducting Maduro and his wife and flying them out of the country, the former Venezuelan leader has indicated he would fight narcoterrorism and drug trafficking charges by arguing the Trump administration lacks the authority to prosecute him. “I am a kidnapped president, prisoner of war,” Maduro said when he pleaded not guilty alongside his wife, Cilia Flores, who is also charged with drug trafficking. They are scheduled to go to trial next summer. His lawyers argue in the memo that “complete immunity for sovereign heads of state is a bedrock [principle] of customary international law and is firmly embedded within the common law.” The Maduro prosecution, they wrote, “is in flagrant violation of common law principles.” Both the indictment against Maduro and the Trump administration’s public statements since Maduro’s abduction have sought to characterize him as an illegitimate ruler of Venezuela. But the former leader’s lawyers say that framing is a “political act” designed to enable prosecution. And, they wrote, the characterization is irrelevant because Maduro need not be formally recognized as the country’s leaders to enjoy head-of-state legal protections. “For immunity purposes,” they wrote, “it is enough that Mr. Maduro exercises the powers of the Venezuelan presidency as, at minimum, the de facto head of state.” Maduro’s lawyers also offered a second argument for tossing the indictment, writing that he is also immune from prosecution because the conduct alleged in the charges consisted of official acts undertaken on behalf of a sovereign nation. “The Indictment makes clear that his alleged criminal acts were performed in his official capacity and allegedly undertaken through Mr. Maduro’s exercise of official powers and state instrumentalities,” they wrote. “Because such actions are attributable to the Venezuelan state itself, permitting the prosecution to proceed violates the axiomatic principle that courts may not adjudicate the actions of a foreign nation performed in its sovereign capacity.” To bolster their argument, Maduro’s lawyers turned to a legal precedent familiar to the Trump administration: the Supreme Court’s ruling last year on presidential immunity, which held that “courts may not inquire into the President’s motives” when determining what qualifies as official conduct. The same is true for Maduro, they argued, and therefore the court must determine if his actions were official acts without assessing whether they were illegal.