Analysis-Maduro’s immunity claim tests US power to prosecute foreign leaders

By Tom Hals

Jan 6 (Reuters) - Nicolás Maduro’s first appearance in a U.S. courtroom offered a glimpse of the legal battle ahead over rarely tested questions — chief among them whether he can claim immunity from prosecution.

Maduro, who pleaded not guilty to narco-terrorism and cocaine charges on Monday, defiantly claimed that he remained the president of Venezuela -- setting up a showdown over the legal protections customarily given to heads of state.

His lawyer, Barry Pollack, signaled a second line of attack at the arraignment, promising voluminous litigation challenging what he called Saturday’s "abduction" by the U.S. military of Maduro and his wife.

At the heart of the case is whether Maduro, 63, is entitled to head-of-state immunity under international law -- a doctrine that would protect him from being prosecuted for his alleged role in what the Justice Department calls a decades-long narco-terrorist conspiracy. 

The U.S. argues that Maduro has not been Venezuela’s president following a disputed 2018 election — a position that would weigh against granting him head-of-state immunity.

But Venezuela’s attorney general counters that the United States lacks jurisdiction and that Maduro remains immune as the country’s leader.

Caren Morrison, a law professor at Georgia State College of Law and a former federal prosecutor, said immunity could pose a challenge for prosecutors, who claim Maduro was corrupt and used his office in the conspiracy.

Legal experts say the issue may hinge on whether Maduro’s alleged actions were part of his official duties as president. Most believe prosecutors are likely to prevail in the end.

NORIEGA UNSUCCESSFULLY INVOKED SIMILAR ARGUMENT

Head-of-state immunity is rarely litigated in criminal cases. Former Panamanian strongman Manuel Noriega unsuccessfully invoked it against charges of drug trafficking and money laundering after his 1989 capture by U.S. forces during the Panama invasion. Unlike Maduro, Noriega never held the formal title of president.

U.S. courts have dismissed civil lawsuits against heads of state recognized by the State Department, including one against Philippine President Ferdinand Marcos in 1975 and another in 2022 against Saudi Crown Prince Mohammed bin Salman over the killing of U.S.-based journalist Jamal Khashoggi.

But courts can also throw out cases against former leaders and other government officials who can show their actions were part of their official duties. They can, however, be found liable for certain illegal acts. 

A civil case involving a former prime minister of Somalia ultimately went to the U.S. Supreme Court, which kicked it back to a lower court that held he was not immune from being held accountable for torture and extrajudicial killings.

DEFENSE TO PRESS CASE AGAINST ABDUCTION

In addition to challenging the prosecution on immunity grounds, Maduro's lawyer told the court on Monday his client would challenge what he called the leader's "military abduction," which scholars said may have violated international law.

Noriega made a similar argument after his capture, but a federal appeals court rejected it, citing Supreme Court rulings that forcible abduction does not violate due process or a court’s jurisdiction over a defendant.

Noriega was convicted by a U.S. jury in 1992 and later served sentences in the United States, France and Panama, where he died in 2017.

PROSECUTORS MAY BE CHALLENGED TO LINK MADURO TO OTHERS

If Maduro cannot get the indictment dismissed, legal experts say he may still contest the government’s case. 

The indictment describes a decades-long drug operation, but few events directly tie Maduro to the alleged narcotics and terrorism conspiracy described by U.S. prosecutors.

"When you look closely at that indictment, there's really not a lot of Maduro in there," said Zachary Margulis-Ohnuma, a defense attorney who represented Hugo Armando Carvajal Barrios, a former Venezuelan official who pleaded guilty to narco-terrorism charges.

To prove conspiracy, prosecutors must show Maduro agreed with others to commit a crime. The indictment is thin on links to terrorist groups, said Richard Broughton, a professor at the University of Detroit Mercy School of Law.

He said the Justice Department may be holding back evidence to protect witnesses. 

"Was a particular terrorist organization paid by Maduro and his associates for any kind of protection, for assisting with any kind of shipment?" Broughton said. "That's the kind of stuff that I would want to know."

(Reporting by Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and Howard Goller)