When deposed Venezuelan leader Nicolás Maduro makes his first appearance in New York courtroom to face US drug charges, he will likely follow the path taken by another Latin American strongman toppled by US forces: Panama's Manuel Noriega.
Maduro was captured Saturday (local time), 36 years to the day after Noriega was removed by American forces. And as was the case with the Panamanian leader, lawyers for Maduro are expected to contest the legality of his arrest, arguing that he is immune from prosecution as a sovereign head of foreign state, which is a bedrock principle of international and US law.
That argument is unlikely to succeed and was largely settled as a matter of law in Noriega's trial, legal experts said. Trump's ordering of the operation in Venezuela raises its own constitutional concerns because it was not authorised by Congress, now that Maduro is in the United States. But American courts are to allow Maduro's prosecution to proceed because, like Noriega in Panama, the US government does not recognise him as Venezuela's legitimate leader.
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“There’s no claim to sovereign immunity if we don’t recognise him as head of state,” said Dick Gregorie, a retired federal prosecutor who indicted Noriega and later went on to investigate corruption inside Maduro’s government. “Several US administrations, both Republican and Democrat, have called his election fraudulent and withheld US recognition. Sadly, for Maduro, it means he’s stuck with it.”
Noriega died in 2017 after nearly three decades in prison, first in the US, then France and finally Panama. In his first trial, his lawyers argued that his arrest as a result of a US invasion was so “shocking to the conscience" that it rendered the government’s case an illegal violation of his due process rights.
Justice Department opinion allows 'forcible abductions' abroad
In ordering Noriega's removal, the White House relied on a 1989 legal opinion by then-Assistant Attorney General Bill Barr, issued six months before the invasion. That opinion said the UN Charter's prohibition on the use of force in international relations does not prohibit the US from carrying out “forcible abductions” abroad to enforce domestic laws.
Supreme Court decisions dating to the 1800s also have upheld America's jurisdiction to prosecute foreigners regardless of whether their presence in the United States was lawfully secured.
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Barr's opinion is likely to feature in Maduro's prosecution as well, experts said.
Drawing parallels to the Noriega case, Barr today pushed aside criticisms that the US was pursuing a change of government in Venezuela instead of enforcing domestic laws. As attorney general during the first Trump administration, Barr oversaw Maduro’s indictment.
“Going after them and dismantling them inherently involves regime change,” Barr said in a Fox News Sunday interview. “The object here is not just to get Maduro. We indicted a whole slew of his lieutenants. It’s to clean that place out of this criminal organisation.”
Key differences between Noriega and Maduro in court
There are differences between the two cases.
Noriega never held the title of president during his six-year de facto rule, leaving a string of puppets to fill that role. By contrast, Maduro claims to have won a popular mandate three times. Although the results of his 2024 reelection are disputed, a number of governments — China, Russia and Egypt among them — recognised his victory.
“Before you ever get to guilt or innocence, there are serious questions about whether a US court can proceed at all," said David Oscar Markus, a defence lawyer in Miami who has handled several high-profile criminal cases, including some involving Venezuela. "Maduro has a much stronger sovereign immunity defence than did Noriega, who was not actually the sitting president of Panama at the time.”
For US courts, however, the only opinion that matters is that of the State Department, which considers Maduro a fugitive and has for months been offering a $50 million (NZ$86.7 million) reward for his arrest.
The first Trump administration closed the US Embassy in Caracas, the capital of Venezuela, and broke diplomatic relations with Maduro's government in 2019 after he cruised to reelection by outlawing most rival candidates. The administration then recognised the opposition head of the National Assembly as the country’s legitimate leader.
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The Biden administration mostly stuck to that policy, allowing an opposition-appointed board to run Citgo, a subsidiary of Venezuela's state-owned oil company, even as the US engaged in direct talks with Maduro's government that were aimed at paving the way for free elections.
“Courts are so deferential to the executive in matters of foreign policy, that I find it difficult for the judiciary to engage in this sort of hairsplitting,” said Clark Neily, a senior vice president for criminal justice at the Cato Institute in Washington.
US sanctions are a hurdle for Maduro's defence
Another challenge that Maduro faces is hiring a lawyer. He and his wife, Cilia Flores, who also was captured, have been under US sanctions for years, making it illegal for any American to take money from them without first securing a licence from the Treasury Department.
The government in Caracas now led by Maduro’s vice president, Delcy Rodríguez, may want to foot the bill, but it is similarly restricted from doing business in the United States.
The US has indicted other foreign leaders on corruption and drug trafficking charges while in office. Among the most noteworthy is Juan Orlando Hernández, former president of Honduras, who was convicted in 2024 for drug trafficking and weapons charges and sentenced to 45 years in prison.
Trump pardoned Hernández in November, a move that drew criticism from even some Republicans who viewed it as undercutting the White House's aggressive counternarcotics strategy centred against Maduro.
The US had requested Hernández's extradition from Honduras a few weeks after he left office. After the arrest of Noriega, who had been a CIA asset before becoming a drug-running dictator, the Justice Department implemented a new policy requiring the attorney general to personally sign off on charging of any sitting foreign president, due to its implications for US foreign policy.
Maduro may have a slightly stronger argument that he is entitled to a more limited form of immunity for official acts as at least a de facto leader, because such authority would not turn on whether he is a recognised head of state by the US.
But even that defence faces significant challenges, said Curtis Bradley, a University of Chicago Law School professor who previously served as a counsellor of international law at the State Department.
The indictment unsealed Saturday (local time) accuses Maduro and five other co-defendants, including Flores and his lawmaker son, of facilitating the shipment of thousands of tons of cocaine into the US by providing law enforcement cover, logistical support and partnering with “some of the most violent and prolific drug traffickers and narco-terrorists in the world.”
“The government will argue that running a big narco-trafficking operation ... should not count as an official act,” Bradley said.
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