200. Five Questions About the Maduro Arrest Operation

Friday night's U.S. military operation in Venezuela was a textbook violation of international law. It's also entirely unauthorized by U.S. law, which ought to (but probably won't) matter.

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There’s still a lot we don’t know about Friday night’s U.S. military operation in Venezuela, which appeared designed to secure the arrest of Nicolás Maduro and his wife, Cilia Adela Flores de Maduro—both of whom 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. But given how big a deal this story is, and given how much uncertainty there seems to be about what the possible legal authorities for this episode could be, I thought it might be useful to put together a brief post outlining five sets of questions about the operation—and some tentative answers.

I’ll tackle those questions below the fold. But the scene that has kept replaying in my head as I’ve been following the news today is a fictional one—a conversation between White House Chief of Staff Leo McGarry and President Jed Bartlet toward the end of the last episode of the third season of The West Wing, titled “Posse Comitatus.” The basic gist is that McGarry is trying to persuade a reluctant Barlet to green-light an (arguably unlawful) special forces operation to kill the Defense Minister of the Sultanate of Qumar in the face of significant evidence that the minister was actively involved in plotting acts of terrorism on U.S. soil. Toward the end of the exchange, McGarry asks Bartlet what his true objection is, and Bartlet responds “Doesn't this mean we join the league of ordinary nations?”

Whatever else might be said about the law and politics of last night’s events, that’s the point from which I can’t escape—that there’s something deeply thuggish about this entire affair, and fundamentally contrary to what I’d always understood the United States’ position in the world to be. It’s not the first time, and I fear it won’t be the last. But just like the fictional operation in The West Wing, it’s hard to see how these events will make any of us safer in either the short or long term—even if they were lawful, which … alas.

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Question #1: What Arguments are the Trump Administration Even Making?

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. 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.

Question #2: Okay, So Why Are Those Arguments Unpersuasive?

Without attempting to be exhaustive, it seems to me that there are at least three things to say about these arguments:

First, note how any reliance upon the Barr Memo is giving up the ghost on the (obvious) violations of Venezuela’s sovereignty—and, thus, the U.N. Charter (to say nothing of myriad other international agreements and precepts of customary international law). 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. (There had been some suggestion earlier in the day that the Trump administration might try to identify Venezuelan officials who had “invited” the United States to breach Venezuela’s sovereignty, but that … hasn’t gone anywhere.) Thus, unlike the boat strikes, which have all occurred in the legally grayer area of international waters, Friday night’s operation involves a textbook violation of foreign sovereignty for which the Trump administration’s principal response appears to be “whatever.”

Second, it is the epitome of bootstrapping to use the idea of “unit self-defense” as the basis for sending troops into a foreign country so that a handful of civilian law enforcement officers can exercise authority they wouldn’t be able to exercise but for the military support. My friend and former State Department lawyer (and Cardozo law professor) Bec Ingber has written in detail about why the “unit self-defense” argument is effectively a slippery slope toward all-out war, and she’s right. It seems just as important to point out that the U.S. constitutional law argument seems just as limitless. 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—in circumstances that could easily (and quickly) escalate to full-fledged hostilities. Something tells me the Founders, who were deeply wary of military power, would not exactly see this as consistent with what they wrote—at least until and unless Congress had done something to authorize, or even acquiesce in, these kinds of distinctly offensive military operations.

Third, and perhaps most importantly, the closest relevant historical precedent for this episode—the U.S. invasion of Panama in December 1989 (Operation “Just Cause”), which resulted in the deposing and arrest of Manuel Noriega—is distinguishable in one critical respect: In the Panama example, the Panamaian general assembly had formally declared a state of war against the United States, and a U.S. Marine had been shot and killed, before President George H.W. Bush authorized the underlying operation. And even then, there’s still nothing approaching consensus that Operation Just Cause was actually consistent with U.S. law; Congress passed no statute authorizing hostilities, and it was hard to see how the situation in Panama posed any kind of imminent threat to U.S. territory sufficient to trigger the President’s Article II powers—just like the Trump administration’s narco-trafficking claims seem difficult to reconcile with where fentanyl actually comes from (Mexico) or the Trump administration’s own behavior (like pardoning former Honduran president-turned-cocaine-trafficker Juan Orlando Hernández). In other words, the only real precedent for what happened Friday night doesn’t provide any legal support for the United States’ actions.

Question #3: What Happens Next With Maduro?

Maduro, his wife, and their four co-defendants now presumably face the specter of a criminal prosecution in the federal district court in Manhattan. To be sure, 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.

It’s a bit early to handicap how all of these arguments are likely to play out. But let me make two preliminary observations, one of which is undoubtedly bad for Maduro and one of which may be … better.

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. Perhaps the most extreme (and relevant) example is the Supreme Court’s 1992 ruling in United States v. Alvarez-Machain, in which a 6-3 majority allowed the criminal prosecution of a Mexican national to go forward even though the defendant had been forcibly abducted by U.S. personnel from his home in Mexico and brought to the United States. So it’s hard to see how Maduro or his co-defendants could object to the New York proceedings based upon what transpired Friday night.

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.

Question #4: What Happens Next With Venezuela?

I’m afraid that perhaps the most important question is the one that I’m least qualified (and least well-situated) to answer. During his Saturday press conference, President Trump suggested that the United States was going to “run the country,” which would be not just a terrible idea, but an unlawful occupation under international law. But as 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. One might also think that a Congress that cared at all about preserving any institutional prerogative would see a pretty big difference between a one-off military operation and this kind of long-term entanglement in a foreign nation’s internal affairs. But I digress.

Question #5: What Happens to the Alien Enemies Act Litigation?

Finally, it seems worth flagging the possibility that the Trump administration will attempt to use Friday’s episode as a retroactive basis for its attempt to invoke the Alien Enemies Act of 1798 as a basis for the mass, summary removal from the United States of individuals the government identifies as members of Tren de Aragua. After all, to a far greater extent than was true in March 2025 (which is to say, more than zero), there’s now at least a patina of substance to the argument that the United States is engaged in military operations against Venezuela. (The en banc Fifth Circuit is set to hear argument in the leading challenge to the President’s proclamation on January 22.)

Here, I don’t think there’s much of a there there. First, whatever else may be said about the U.S. operations in Venezuela, the Alien Enemies Act itself requires either a declared war, an invasion, or a predatory incursion—all things that presumably have to be happening here. If anything, removing Maduro from power ought to weaken the argument that the United States faces a continung threat of predatory incursion from TdA. Otherwise, what was the point?

Second, and in any event, when the Supreme Court effectively put the kibosh on the attempt to use the AEA for mass, summary removals last April, it did so without passing on the lawfulness of the President’s proclamation at all. Instead, the unanimous Court in the J.G.G. case held that the Due Process Clause of the Fifth Amendment requires individualized notice and an opportunity to challenge a designation as being subject to the AEA before anyone could be removed under the act. Even if the underlying proclamation is ultimately upheld, it’s that procedural requirement that has thwarted (and will thwart) the Trump administration’s efforts to use the AEA—not the substantive question of whether the AEA was validly invokved in the first place.

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The AEA point may seem like a strange place to end, but it reinforces a broader observation about this whole affair: Beyond the Maduro criminal case itself, we’re unlikely to see any direct effects of Friday night’s operations when it comes to anything happening within the territorial United States. And so, as has been true in so many other contexts in recent years, a blatantly unlawful use of military force overseas will go un-remedied—because there’s no viable legal pathway to challenge it; and because the one branch of government historically in a position to hold the executive accountable in these cases (you might remember it—Congress) has become completely feckless not just in general, but in pushing back against unlawful unilateral uses of military force, specifically.

That reality will certainly lead at least some of you, and perhaps many of you, to throw up your hands and say “here we go again.” And, in a way, that’s a fair reaction. But my own view is that the United States crossed a very dangerous line last night—not just legally, but morally. To go back to the West Wing exchange with which I started this post, if we hadn’t already, we’ve unquestionably joined the league of ordinary nations—a league in which we’re acting as little more than a bully, and in circumstances in which no obvious principle of self-defense, human rights, or even humantarianism writ large justifies our bellicosity. One can only wonder the price we’ll pay in the long term for stooping to that level.

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