WASHINGTON — Venezuelan strongman Nicolas Maduro is expected to pull a last-ditch legal stunt — claiming head-of-state immunity to dodge prosecution — even as Washington argues he was never the country’s legitimate leader, a Justice Department source told The Post.
Maduro announced that he was “still president” of Venezuela in his initial court appearance Monday, a move legal scholars say was likely more about establishing fact for a future defense rather than an arbitrary toot of his horn.
“It is likely Maduro would argue he is entitled to head-of-state immunity, either by claiming continued legitimacy or by asserting that recognition of his vice president preserves his immunity,” the source said.
International law holds that sitting heads of state cannot be prosecuted by a foreign government’s courts.
The deposed dictator faces charges of with conspiracy to commit narcoterrorism and import cocaine, as well as possession of machine guns and destructive devices.
Should Maduro try to claim head-of-state immunity, US officials would argue that Maduro can’t claim immunity because the United States has never recognized him as Venezuela’s rightful president, according to a Justice Department source.
Panama’s Manuel Noriega, another Latin American dictator taken out by American forces, attempted the same defense after he was captured in 1989. Federal prosecutor Richard Gregorie successfully argued against the assertion, and the Panamanian military leader spent the rest of his life in prison.
The retired prosecutor on Wednesday told The Post he didn’t believe Maduro would be successful with a similar argument.
“Who we recognize as the head of state is an executive decision, therefore who we recognize as head of state is who the law says is head of state,” he said. “The US has never recognized Maduro as head of state [since 2019,] he has always been a target of investigation … so I don’t see that that argument is going to succeed.”
Jason Marczak, vice president and senior director of the Atlantic Council’s Adrienne Arsht Latin America Center, said the indictment appeared to have been written in a way to nullify any argument for head-of-state immunity.
“The indictment against Maduro was very careful in noting that he is the now ‘de facto leader of Venezuela’ — that was very clear not to reference his current position as president,” he told The Post. “And you know, this is not just the US, and this is also countries around the world that stopped recognizing Maduro as president after he stole all that stole the 2019 election.”
But Maduro’s team could counter that Washington can’t have it both ways — insisting that by engaging with Rodriguez, his vice president and current de facto Venezuelan leader, the US has effectively acknowledged his government, US officials fear.
The looming courtroom clash could turn on a high-stakes technicality: whether the US has tacitly recognized Maduro’s regime by dealing with his powerful deputy, Delcy Rodriguez.
Some legal experts warn that immunity claims often hinge less on moral clarity than on technical recognition, and any ambiguity could give Maduro the opening he needs to delay or derail proceedings, which will already take an extraordinary amount of time due to the volumes of classified evidence.
The argument has set off alarms inside Justice Department circles, where there’s growing concern that Maduro could make a surprisingly compelling case unless the US clearly and publicly disavows Rodriguez, the DOJ source said.
“DOJ could counter that the US has not recognized Maduro since 2019 and that no alternative authority can waive or confer immunity on him, making it wise to clearly recognize a legitimate opposition figure to foreclose any immunity argument based on ambiguity,” the person said.
Rodriguez has long served as the regime’s international face, handling diplomacy and negotiations even as Maduro himself was shunned. That gray zone — refusing to recognize Maduro while still interacting with his top lieutenant — could threaten the case.
Still, Gregorie said he did not believe Rodriguez’s compliance with Washington would lend credence to a Maduro head-of-state defense.
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“If somebody decided to charge Donald Trump, would that necessarily implicate the vice president? “I don’t see how, unless he was doing something in conjuction with the president,” he said. “It just doesn’t work that way.”
Marczak also doubted that the US working with Rodriguez would be enough to influence a court’s opinion regarding Maduro’s legal presidential status.
“Delcy Rodriguez was never on the ballot with Maduro, she was just put in there as his vice president, so the ballot was a ballot for Nicolas Maduro,” he explained. “The US has been pretty careful and referring to her as the new leader or the new ruler, without using the word ‘acting president’ — that’s the title that the [Caracas] gave her.”
The Justice Department and Maduro’s attorney did not immediately respond to requests for comment.
