MARY LOUISE KELLY, HOST:
The prosecution of former Venezuelan president Nicolás Maduro could take years because it raises so many complex legal questions. One of them is whether government leaders deserve immunity. NPR justice correspondent Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: At his first court appearance in New York this week, Nicolás Maduro told the judge he's still the president of Venezuela, even though he was seized and sent to the U.S. to face narcoterrorism and cocaine trafficking charges. Maduro says he's innocent, and his lawyer signaled he'll argue Maduro should be shielded from prosecution because of his leadership role overseas. Ingrid Brunk is an international law professor at Vanderbilt University.
INGRID BRUNK: In domestic U.S. practice, there is a doctrine called head of state immunity, and head of states are entitled to immunity from suit of almost all kinds.
JOHNSON: Brunk studies immunity around the world, and she says there are some good policy reasons for it.
BRUNK: And this kind of immunity plays this really important function of facilitating diplomatic interaction. It allows foreign leaders to travel to the United States. It allows our leaders to travel abroad without the fear of arrest or prosecution or even civil lawsuits.
JOHNSON: In Maduro's case, U.S. officials say he does not deserve a golden shield. They call him a fugitive from justice, who was not elected freely or fairly. Here's President Trump at a news conference after the arrest.
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PRESIDENT DONALD TRUMP: The illegitimate dictator Maduro was the kingpin of a vast criminal network responsible for trafficking colossal amounts of deadly and illicit drugs into the United States.
JOHNSON: But in a social media post, Trump also called Maduro the president of Venezuela. Erwin Chemerinsky's dean at the UC Berkeley School of Law.
ERWIN CHEMERINSKY: The court is going to have to decide whether or not Maduro was the head of state. And part of the evidence that Maduro will point to is Donald Trump referring to him as the president of Venezuela. And there's no doubt that he exercised all of the powers and all of the trappings of the office.
JOHNSON: Chemerinsky says the Maduro case is unusual. Strongman Manuel Noriega of Panama never officially served as that country's president, so when he was arrested by the U.S. and transported here for trial in 1990, his arguments were weaker than the ones Maduro will make.
CHEMERINSKY: There's not a case in the past with facts like these. It's really going to be a question of first impression.
JOHNSON: U.S. Supreme Court precedent gives the American president a lot of leeway over foreign policy, including which governments to recognize. And that could be a big hurdle for Maduro's bid for immunity in an American courtroom. Again, Ingrid Brunk.
BRUNK: The problem is, for him, that the president has the power to decide who actually is a head of state and who is not.
JOHNSON: But Brunk says Maduro may have a stronger argument when it comes to another kind of immunity - the kind that covers official acts. Parts of the Maduro indictment allege he ordered violence against people who owed him drug money - a red line with no connection to his government role. Other parts of the court papers are not so clear, she says.
BRUNK: Some of the things in the indictment, like using the military to facilitate flights - that's the kind of conduct for which we would typically say someone would receive official immunity.
JOHNSON: If that concept - official acts - sounds familiar, there's a good reason why. Two years ago, the U.S. Supreme Court gave President Trump and future presidents near-absolute immunity from prosecution for official actions they take as part of their jobs. The High Court was interpreting the Constitution and the president's Article 2 power to declare Trump immune from many criminal charges. Maduro's bid for immunity relies on a different legal doctrine, one that could be trumped by the executive power the president has asserted and the Supreme Court has blessed.
Carrie Johnson, NPR News, Washington.
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