Maduro kidnapping - Day 2

Nicolás Maduro and his wife, Cilia Adela Flores de Maduro—both [...] are apparently now under indictment, together with four co-defendants, on a series of federal criminal charges in the U.S. federal district court in Manhattan.

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Although different administration officials (and supporters) have said different things publicly and on social media throughout the day on Saturday, the basic legal argument appears to be that the military operation was in support of the extraterritorial criminal arrests of the Maduros.

The basis for that argument is the merger of two strands of legal arguments that have long been made by the Department of Justice—but never blessed by the Supreme Court.

  Steve Vladeck

Just wait a bit.

The first strand traces to a deeply controversial 1989 DOJ Office of Legal Counsel memorandum by then-Assistant Attorney General Bill Barr (yes, the same one), which concluded that the President has inherent constitutional authority to use the FBI for extraterritorial arrests, even in circumstances in which the arrests violate international law (e.g., by infringing upon a foreign nation’s sovereignty). The memo also concluded, quite … usefully, that such arrests don’t violate the Fourth Amendment. The second strand is DOJ’s longstanding view that the President has inherent constitutional authority to use military force to protect federal institutions and officers in the exercise of their federal duties. Thus, in a textbook example of the tail wagging the dog, the military force was merely the means by which President Trump “protected” the handful of FBI personnel who apparently were involved in the actual arrests.

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There’s no attempt to even try to argue that this operation was consistent with international law—for the obvious reason that … it isn’t. [...] Friday night’s operation involves a textbook violation of foreign sovereignty for which the Trump administration’s principal response appears to be “whatever.”

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If Article II authorizes the use of military force whenever a foreign national living outside the United States has been indicted in a U.S. court, that could become a pretext for the United States to use military force almost anywhere.

Exactlly. Trump assumes that authority. He's already talking about Mexico and Iran.

Maduro will likely raise a series of significant objections to the prosecution—including that the arrest itself was unlawful; that he is entitled to head-of-state immunity; that his conduct is insulated from prosecution under foreign oficial immunity and/or the act of state doctrine; and an array of other reasons why he shouldn’t be subject to civilian criminal prosecution in a U.S. court.

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Taking the arrest first, there is a surprisingly rich body of case law about the circumstances in which individuals can be prosecuted in U.S. courts even if they were brought into the United States unlawfully—known as the “Ker-Frisbie doctrine.” The Ker-Frisbie line of cases stand for the relatively straightforward (if rather alarming) principle that unlawful abductions of criminal suspects from foreign soil, even by the U.S. government, does not preclude their criminal prosecution in U.S. courts.

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The tougher nuts for prosecutors to crack will be Maduro’s arguments that he’s entitled to some kind of immunity—whether because he was Venezuela’s “head of state” or because, even if he wasn’t, his alleged crimes all arise from official acts conducted with governmental authority.

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Since 2019, after serious concerns arose regarding the integrity of the 2018 Venezuelan elections, that the United States has refused to recognize Maduro as the lawful head of state.

Yes, America gets to decide who is the lawful head of state of every country on the globe. Not the people of those countries.

[E]ven if courts ultimately reject head-of-state immunity, they may still conclude that Maduro is insulated from liability for “official acts,” especially in light of the Supreme Court’s embrace of a version of constitutional “official act” immunity for President Trump in Trump v. United States.

No. That's only for Trump.

All of this is to say that the prosecution will be no slam dunk, especially with regard to the charges against Maduro himself. That may not matter in the grander scheme of things, but it’s yet another way in which Friday’s operation raises more questions than it answers.

If it looks like he might be acquitted, there's always an unfortunate incident in his prison cell.

[A]s Charlie Savage noted in the New York Times, “Shortly after declaring that United States would ‘run the country’ at a news conference, Mr. Trump seemed to suggest that his plan was to pressure Mr. Maduro’s vice president, Delcy Rodriguez, to simply obey him.” As Trump put it in an interview with the New York Post, “if Maduro’s vice president—if the vice president does what we want, we won’t have to do that.”

It should go without saying that the United States has precisely zero legal authority, under domestic or international law, to pressure or otherwise cajole a foreign sovereign into doing “what we want” or risk invasion.

Legal authority is not a concern for the Trump administration.