Live federal court coverage of the prosecution of Nicolás Maduro begins on Monday.
When Nicolás Maduro faces arraignment in a New York federal court on Monday afternoon, his plea will initiate a process that will shine a spotlight on the secrets of two governments.
During a half-hour conversation recorded on Saturday, former federal prosecutor Mitchell Epner and I discussed some of our immediate thoughts following the military raid leading to the arrest and rendition of Maduro.
Here are some of the topics we discussed:
The raid and the law
Under the U.S. constitutional order, Congress has the power to declare war, and most legal experts agree that the raid violated the U.N. charter’s prohibitions against the use of force against “the territorial integrity or political independence of any state.”
The strongest defense of its legality, by conservative attorney Jack Goldsmith, bemoaned the fact that the intent of the Constitution’s Framers had been dulled and diluted over the years to allow it.
“This is not the system the Framers had in mind, and it is a dangerous system for all the reasons the Framers worried about,” wrote Goldsmith, who served as an attorney for the Justice Department’s Office of Legal Counsel under George W. Bush. “But that is where we are—and indeed, it is where we have been for a while.”
Defenders are quick to point out that Panamanian strongman Manuel Noriega was brought to the United States to face similar charges under George H.W. Bush, but the Noriega-controlled National Assembly had declared war on the United States at the time.
Noriega’s convictions for drug trafficking, racketeering and money laundering were upheld largely because, like Maduro, he wasn’t recognized as the country’s legitimate leader.
“I’m virtually certain that this question will be litigated — of whether or not the capture of Maduro is legal,” Epner said.
After elections in 2018 and 2024 widely regarded as shams, Maduro held onto power, and more than 50 countries to refuse to recognize him, the indictment notes.
The judge
The judge presiding over the prosecution of Maduro, his wife Cilia Flores, and others in the sprawling indictment is U.S. District Judge Alvin Hellerstein, who has treated Donald Trump’s claims about Venezuela skeptically as recently as last May.
Trump justified his invocation of the wartime statute, the Alien Enemies Act, on the allegation that the gang Tren de Aragua was engaged in an invasion of the United States as a de facto arm of the Venezuelan state.
Hellerstein rejected that claim in a ruling denouncing Trump’s government for sending more than 200 people to El Salvador’s Terrorism Confinement Center (CECOT), a “notoriously evil prison.”
“Judge Hellerstein is a fiercely independent individual,” Epner said. “He is supremely confident. He is very, very smart, and he, I am quite confident, feels no compunction about contradicting Donald Trump.”
Prosecutors charged the leader of Tren de Aragua in the indictment, testing the premise behind Trump’s immigration policy.
The indictment
The latest superseding indictment against Maduro accuses him of spearheading a narco-terrorism conspiracy transporting “thousands of tons of cocaine to the United States.”
Prosecutors say that Maduro used that money to fund guerrilla groups and gangs designated by the United States as terrorist organizations.
After Maduro’s first indictment in 2020, prosecutors added his wife as a co-defendant and secured guilty pleas from two co-conspirators.
“As a federal practitioner, former federal prosecutor, somebody who’s been a criminal defense attorney for decades now, one of the first questions I have is whether those individuals will seek to reduce their sentences by cooperating against Maduro,” Epner said.
Other pressing questions
By press time, Maduro’s attorney of record wasn’t listed on the public docket.
It remains to be seen whether a major law firm will risk Trump’s ire by defending the principle that the most despised defendant deserves zealous representation.
“This is going to be an interesting test of the system to see whether or not Donald Trump has effectively bullied people from the biggest and most prominent law firms in America out of the criminal defense business if Donald Trump really cares about a case,” Epner noted.
There’s also the question of what competent evidence the United States has amassed to convict Maduro of the crimes charged.
Whatever the politics surrounding the case, that’s an issue of great interest to the people of Venezuela, the United States, and the international community.
Proceedings are expected to begin before Judge Hellerstein at noon Eastern Time.
Editor’s note: My regular column “Rising This Week” will be postponed this week as the new year begins. Look out for my live coverage of the prosecution of Maduro in Manhattan Federal Court on Monday.
