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. Both of these doctrines are common-law doctrines that federal courts apply with at least some reference to executive branch practice.

On head-of-state immunity, there’s no doubt that, as one district court put it in 1994, “A head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in United States courts unless that immunity has been waived by statute or by the foreign government recognized by the United States.” The issue here is recognition. Unlike Noriega in Panama (who was at most the de facto head of state), Maduro lawfully served as interim president after Hugo Chávez’s 2013 death; and he was formally recognized as the Venezuelan head of state for years—by both the Obama and Trump administrations—after his 2013 election. It’s only 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—in a context in which, unlike what was true for Noriega, Maduro would have at least some claim that he was lawfully serving in that position under Venezuelan law. In other words, Maduro was, for quite some time, recognized as Venezuela’s head of state. And even during the period in which he wasn’t, he has at least a plausible claim that he was nevertheless entitled to immunity. Either way, that question seems much closer here than in the Noriega case (or others).

And even 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. In its 2012 ruling in Yousuf v. Samantar, the Fourth Circuit carefully analyzed both of these immunity doctrines before holding that they did not apply to a high-ranking official in Somalia during the military regime of General Mohamed Barre. But there are lots of grounds on which Maduro’s arguments could well be stronger—including his higher status; the extent to which the acts he’s charged with are not as obviously violations of jus cogens norms of international law; and so on.

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.

President Donald Trump's private comments to MS NOW's Joe Scarborough could blow up the prosecution of Venezuela's former president Nicolás Maduro.

The "Morning Joe" host revealed Tuesday morning that he'd spoken to the president the previous day, and he told viewers that Trump boasted that the U.S. was going to take over the South American nation's oil production.

"'Joe, the difference between Iraq and this is that [George W.] Bush didn't keep the oil – we're going to keep the oil,'" Scarborough said Trump told him, "and to underline his point, Trump said his comments were no longer on background and said, 'In 2016, I said we should have kept the oil, it caused a lot of controversy. Well, we should have kept the oil.'".....

Those comments, along with similar statements Trump has publicly made, could strengthen Maduro's defense as he fights prosecution in New York on drug and weapons charges, according to MS NOW's legal analyst Lisa Rubin.

"Barry Pollack, who had represented Julian Assange and now represents Maduro, previewed that he is going to make motions to dismiss on the basis of not only head of state immunity, but about the legality of the abduction in the first place," Rubin said.

"And I think that Mr. Pollack would have been very interested in the conversation you had with the president yesterday. Had that conversation taken place before the court appearance, I expect that comments like that would have been addressed, and he would have told the judge this was pretextual."

"This was a military operation all along," Rubin said, anticipating Maduro's defense. "It was always about the oil that the president intends to keep, and not about an indictment or a superseding indictment of Nicolás Maduro, who has been under indictment in the United States already for five-plus years."

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.