Michael Barbaro: So, it is a frigid Sunday afternoon and I am standing in front of the Metropolitan Detention Center in Sunset Park, Brooklyn, which improbably is where Venezuelan President Nicholas Maduro and his wife woke up this morning after their stunning capture by American troops in Caracas over the weekend. And it's this truly surreal scene because after 12 years as the all powerful dictator of a major Latin American country, a country with something like 30 million citizens, Maduro has ended up in this jail next to the highway a few minutes from my apartment and a couple blocks from the nearest Costco. It's just such a juxtaposition from what he was just a few days ago to what he is now. And as best we can tell, Maduro is going to remain in this detention center at least until he is arraigned. We think as early as Monday morning in Manhattan. And it's at that point that the US government is going to present its charges against him. And Maduro's future will suddenly be in the hands of an American judge and an American jury. From the New York Times, I'm Michael Barbaro. This is The Daily. Today, the legal case against Nicholas Maduro and whether the lawfulness of the extraordinary operation to capture him could undermine that case. I spoke with my colleague Charlie Savage who writes about national security and legal policy for the Times. It's Monday, January 5th.

Michael Barbaro: Charlie, thank you for making time for us on a Sunday. Appreciate it.

Charlie Savage: My pleasure. Just to orient folks, we made a special Sunday episode of The Daily that detailed the entire military operation that resulted in Nicholas Maduro's capture and his current detainment in Brooklyn, not that far from here. What we want to talk with you about, Charlie, are all the legal questions that this entire extraordinary situation has raised and will probably keep raising as this case moves through the court system into presumably a trial of Maduro. But I want to start with the military operation itself and the legal rationale that was used to justify carrying it out. What kind of legal precedent exists or doesn't for undertaking it. The argument that the Trump administration has put forward, and we briefly touched on this in our Sunday episode, is that this was a military operation in support of an arrest of somebody charged with breaking US law. Does that make it lawful?

Charlie Savage: So, I'm sorry to say that there is not a simple answer to this. And the reason is there's two different kinds of law. There's domestic law. There's international law. Something that could be lawful on one level and illegal on the other level.

Michael Barbaro: They operate independently of each other. And then even worse than that, sometimes they bleed into each other.

Charlie Savage: So here, just to provide an overview, this was probably illegal as a matter of international law.

Michael Barbaro: Why?

Charlie Savage: The United Nations Charter makes it illegal for a country to use force in another country's sovereign territory without its consent, a self-defense rationale, or the permission of the UN Security Council.

Michael Barbaro: None of which were present.

Charlie Savage: None of these are present here. This was an arrest operation. So probably illegal as a matter of international law, as a matter of pure domestic law, probably legal. The FBI, the DEA has the ability to go arrest people who are facing charges. It has affirmative authority from Congress to do that. Statutes don't say that that authority stops at the edge of the United States. Military can provide support to law enforcement and carrying out its authority to arrest people. So maybe that's okay on an a domestic law level. But just to add the final twist, there's the question of well, what about the fact that the UN Charter that makes it illegal as an international law matter is a ratified treaty in the United States and the Constitution says ratified treaties are the supreme law of the land.

Michael Barbaro: Right? as a matter of domestic constitutional law. Was this unlawful because Trump had a constitutional duty to obey the UN Charter?

Charlie Savage: And so this is the mess you have to sort through to make sense of this extraordinary operation.

Michael Barbaro: And here a precedent in American law and geopolitical history is important as a guidepost to sorting through what just happened this weekend. Good evening. Thousands of American troops are tonight holding key positions in Panama after launching an attack early this morning to oust the dictator General Noriega. And that precedent is the 1989 invasion of Panama by the George H.W. Bush administration for the purpose of arresting Manuel Noriega who like Maduro was a leader of that country facing drug trafficking charges back in the United States. General Noriega is under indictment for drug related charges and the president has made every effort peacefully to resolve the situation through negotiations under the opaces. General Noriega is no longer in power. He no longer commands the instruments of government or the forces of repression uh that he's used for so long to brutalize the Panamanian people. Well, just explain how the US president at the time justified entering a foreign country, Panama, to arrest Noriega, based on that thicket of complex legal questions surrounding domestic and international law.

Charlie Savage: Well, I don't think very many people think that the 1989 invasion of Panama was legal as a matter of international law. In the last half hour, the United Nations General Assembly has adopted a resolution deploring the United States intervention in Panama.

Michael Barbaro: It was declared unlawful overwhelmingly by the United Nations General Assembly,

Charlie Savage: a majority of the UN Security Council voted to condemn it, but the United States of course vetoed that resolution. So to the extent that the Panama invasion fairly clearly violated international law, President George H.W. Bush got away with it. There was no one to say you can't do this in any effective way. So the trickier question for Bush back in the day was what about domestic law? And what happened back in 1989 was that the Justice Department's Office of Legal Counsel took a look at this issue and it was then run by a young lawyer named Bill Barr who would someday become attorney general for Bush and then reprised that role as attorney general for Trump.

Michael Barbaro: Young Bill Barr had a very expansive view of executive power. and he wrote a memo that said that the president had inherent power under the Constitution to dispatch the FBI in that case abroad to carry out its mission of arresting people who were fugitives from charges. And the Constitution empowered the president essentially to override international law, that it was okay to violate international law,

Charlie Savage: at least as a matter of domestic constitutional law. And that memo by Barr was very controversial when it came out. It's been criticized by many legal scholars who think Barr was wrong about his approach to analyzing whether or not a ratified treaty is the kind of law that the president has a duty to see is faithfully executed. But that was the reasoning in 1989. And I think it's safe to assume that's probably what the reasoning was for this weekend as well.

Michael Barbaro: Okay, so that's how we should think about the legality of the operation, which seems illegal under international law and is the subject of legally contested debate under domestic law. I want to turn to what happened during the operation. We know that at least 40 Venezuelans, some number of them civilians, were killed during Maduro's capture and extraction. And that's just a preliminary count likely to go up perhaps by a lot. Is killing foreign citizens and soldiers in pursuit of an arrest like the one we just witnessed, is that legal? What are the calculations around using lethal force in a situation like this?

Charlie Savage: Well, again, as a matter of international law, the incursion by American forces was illegal to begin with, almost certainly.

Michael Barbaro: Mhm.

Charlie Savage: From a matter of domestic law, what's the authority to blow things up in Venezuela? Well, this is already an arrest operation. And from some comments that Rubio evidently made to Senator Mike Lee, Mike Lee overnight when this was happening was saying, "How could this possibly be legal? I I await the theory of how the military can go in without a authorization from Congress." Then Rubio calls him and Lee reports what Rubio said. And Lee is basically satisfied. And what it sounds like is they were blowing up air defenses to protect the corridor where the helicopters with the extraction team were going to pass through. And then also later on, General Dan Kaine, the chairman of the Joint Chiefs, said some people shot at the helicopters and they returned fire.

Michael Barbaro: Right?

Charlie Savage: So these are forms of self-defense and protection. There's a long-standing line of cases or claims going back to the late 19th century surrounding the idea that the president has inherent power under the Constitution, no need for a statute from Congress to protect federal agents, federal institutions carrying out federal functions. We actually saw this invocation of the inherent protective power, as it's called, recently in court filings around the dispute about Trump sending troops into Los Angeles. because they were being sent in in the name of protecting ICE agents from protesters. Also, when you deploy military units, everyone basically agrees they if someone shoots at them, they can shoot back to defend themselves. That's called unit self-defense. And so that would be both unit self-defense and a protective power would be the argument for why blowing things up and killing people as part of this operation was lawful as a matter of US domestic law. So no matter the legality of the initial action under international law, once the troops are in jeopardy, there is a domestic legal rationale for fighting back using self-defense, even if that means killing people.

Michael Barbaro: Exactly.

Michael Barbaro: Okay. So then there is the question of what authority the Trump administration has to control Venezuela now that Nicholas Maduro has been arrested. Trump during his news conference after Maduro's arrest quite explicitly said that the US will seek to run Venezuela. He didn't say exactly how that would work, but he said that the US would seek to do this. Does the US have legal grounds for in any way trying to run Venezuela, right? So, if this is just Trump telling the vice president of Venezuela what to do and he's successful in coercing her to comply, law doesn't really have anything to do with it at that point, right?

Charlie Savage: He's just bullying her and it's working. So the real question is if she bs and you know resists complying to the point that the Trump White House wants to intervene more directly and actually take the reigns can it and it's very hard to see how that would be lawful. Just to go back to Noriega and to Panama, did this question come up back then? Did the US seek to control Panama after arresting Noriega?

Michael Barbaro: So what happened in Panama is there had been an election earlier in 1989 between a candidate that was backed by Noriega and a opposition candidate. And the opposition candidate, his name was Garmmo Indara, probably won. But then Noriega just nullified the results and had some thugs go beat him up.

Michael Barbaro: Good evening. Violence in Panama today as pro- Noriega forces attacked opposition leaders and their followers.

Charlie Savage: So when the US came in and grabbed Noriega, they immediately like that same night swore in Indara as the actual president of Panama.

Michael Barbaro: He was sworn in on a US military base.

Michael Barbaro: Wow.

Charlie Savage: So that shows you that the US military had a strong hand in what was happening, but he was the one making the decisions. George Bush was not purporting to just run Panama.

Michael Barbaro: So that potentially could be a model for Trump here.

Charlie Savage: It could be a model, but you, you know, this is where you get into the practical issues that make Venezuela different than Panama that act as sort of an overlay to these legal issues we're discussing. You know, Panama is a small country and the US had a major base there. It was not as daunting a task as thinking about running Venezuela, vastly more populous, vastly more geographically sprawling country where the US has no military presence to begin with. Venezuelan military is still there. The government is still there. They would have to go in with major ground forces that would presumably need to fight people before they'd be in a position to provide support to a newly sworn in alternative president of Venezuela. This is not nearly as simple a situation as Panama was in 1989.

Michael Barbaro: Okay, I think that brings us to the legal case against Maduro himself. And I guess the question is does the manner of his arrest and the legality of it, especially what is now being described as the violation of international law in particular? Does that have any bearing on whether a US judge will let the charges against him stand? Could that end up getting Maduro off the hook before there's any kind of a trial?

Charlie Savage: Probably not. I'm sure that his lawyers will raise this issue because they'll raise every issue. But even if it were the case that Maduro and his defense team could make out a strong case that his arrest was unlawful as a matter of international law, probably courts in the US would say that is irrelevant and that they still have jurisdiction to proceed with trying him on this indictment.

Michael Barbaro: the idea is what matters is the defendant's presence before the court and not how he got there. Which is why we should take a really close look at the case against Maduro cuz it sounds from what you're saying like it's very much going to stand and we're going to do that right after the break.

Michael Barbaro: So Charlie, now that we know that the charges against Maduro are quite likely to not be tossed out by a judge based on the manner in which he was arrested. Let's talk about the legal case that the US is making against him. that was the rationale for arresting him and for detaining him in the US and that's now going to be the basis for prosecuting him. What do we know?

Charlie Savage: Well, Maduro was originally indicted in early 2020 during the first Trump administration in New York on a complicated longunning allegation of a cocaine trafficking conspiracy. The idea was that he and others who were named in that indictment had for years worked with the FARC, the Marxist rebel group in neighboring Colombia to funnel cocaine towards the United States and elsewhere. And he was intimately involved in this.

Michael Barbaro: Right. The claim being not that he simply let this happen, but that he was himself deeply deeply involved in it.

Charlie Savage: Yes. was an active participant conspiring with the FARC to flood the United States with cocaine as a weapon essentially and a variety of charges were attached to those allegations. And after the seizure of him early Saturday, the Justice Department unveiled a superseding indictment. So that replaces that earlier one, changed around some of the defendants, added some stories, but keeps Maduro at the heart of what it still alleges is a yearslong cocaine trafficking conspiracy.

Michael Barbaro: And talk about the evidence that this superseding indictment lays out to support this claim that Maduro is an active participant in this international drug trafficking conspiracy.

Charlie Savage: So, this is a very long indictment, 30 pages. This is not a bare bones, here's some charges, see you in court. It's what is sometimes called a speaking indictment where the prosecutors are using this filing to tell a story. And it talks about specific acts that have happened. The seizure of a cocaine shipment in Mexico, seizure of one in Paris, specific conversations Maduro and others had. It talks about specific bribes that were handed over, including to his wife, which was something that was added for the second one.

Michael Barbaro: Mhm. So, we don't know specifically where all these examples of a conspiracy are coming from, but there's a lot of concrete tangible episodes here. This is not vague, abstract charges. And so what that tells you is that they have built over the years a body of evidence that must include cooperating witnesses

Charlie Savage: who will presumably if there is a trial come on for the prosecution and say I saw Maduro say this and I saw was there in the room when he did that.

Michael Barbaro: In fact two of the original people who were in the 2020 indictment were later captured and reached plea deals. one in 2023 and one last year.

Charlie Savage: So, I think that it's safe to say that they as part of the plea deal would have to cooperate. But the point is that there's a lot of material here and there's a story that's unfolding here that if the prosecutors have the goods to back it would be what the trial would look like. Well, given that, how should we think about what Maduro's defense may be here? And I want to stipulate. I understand how early we are in the process. Maduro just got brought to the United States. He may not have a lawyer or just met with his lawyer, but what might we expect, especially given the Noriega precedent, that the leader of a foreign country might argue on his own behalf against what's in this indictment?

Charlie Savage: Well, the most important thing that we saw in the Noriega case that seems extremely likely to recur here is the question of immunity. Hm. Leaders of countries have something called foreign head of state immunity. And this is an ancient part of international law that this the sovereign of an one country can't be dragged into court, detained, prosecuted in another country. And Noriega said, "Hey, I was the head of state in Panama." And eventually a district court judge rejected that claim and an appeals court upheld that ruling. And so Noriega lost on it. I'm sure

Michael Barbaro: Why?

Charlie Savage: Well, for one thing, Noriega wasn't really in any politically legitimate way the head of state in Panama. He was a military officer who had just taken over in essentially a coup and was running things behind the scenes. But Panama had a constitution that said it was supposed to have a president who was elected. And so Bush said, "I don't recognize this guy as the legitimate leader of Panama." And the Panamanian Constitution didn't have anything to say about why he could possibly be the head of state. It

Michael Barbaro: it strikes me that the Trump administration is making a similar argument, which is that in the case of Maduro, he is not in their telling the legitimate leader of Venezuela. He was brought to power in a fraudulent election, they claim, and therefore shouldn't be the president.

Charlie Savage: Correct. There was a lot of fraud in the 2018 election in Venezuela and the 2024 election in Venezuela. In both cases, Maduro's the declared winner and outside observers are like, "That was not a clean election." Mhm.

Michael Barbaro: The Trump administration in 2019 withdrew official recognition of Maduro as the legitimate president of Venezuela. Joe Biden in 2024 or early 2025 does the same. He said, "I'm not recognizing you as the winner of this election. You are not the legitimate winner." The opposition candidate actually won this. Right.

Charlie Savage: Nevertheless, the governing structures in Venezuela do recognize him as such. He does purport to be the president. He did win an election in 2013 and the United States did recognize him as the president at the time. And so that just puts him in a much stronger position to make head of state immunity claims than Noriega ever was. So I'm sure that this is something that will be litigated heavily before Maduro's case can ever go to trial. H I wonder if some of the things that President Trump has said and done before and around the arrest of Maduro are going to at all complicate the US case against him. And let me give you two examples. The first is that the president has very publicly emphasized that Maduro's arrest is going to be opening Venezuela up to American business. In fact, you could argue that he's put more emphasis on the economic opportunities in a Maduro free Venezuela than he has put on drug trafficking charges in his public speeches. Does that matter at all? Does that undermine the president's case? And for that matter, does the fact that President Trump pardoned the former president of Honduras, who was convicted in the US of major drug trafficking charges, influence this case at all? Because it suggests that when it comes to Trump, he's very selective in enforcing America's drug policies.

Charlie Savage: So, I think it it both matters a lot and it matters not at all. It matters a lot for us watching what's happening, trying to understand what's really going on in a real politic account of recent events and how history will think about the decision to send forces into Venezuela to grab Maduro. Clearly, Venezuelan oil was something Trump was thinking about and talking openly about, right? In a country that didn't have those kinds of natural resources, didn't have this kind of history, would the same situation have played out? How do you make sense of Trump in December pardoning the former president of Honduras convicted of a drug trafficking conspiracy here in the United States, exactly the same charges against Maduro now, and yet saying it's really important we got to go after Maduro. It makes no sense unless there's ulterior motives and geopolitical interests that are bigger than was this particular guy involved in a drug trafficking conspiracy.

Michael Barbaro: Right. Can any of this become part of Maduro's defense is basically what I'm curious about.

Charlie Savage: I'm sure that if Maduro's defense team does what and you would expect any competent defense team to do, they will throw everything they can against the wall and some kind of vindictive selective prosecution challenge to the indictment is sitting right there for the reasons we've just discussed.

Michael Barbaro: Mhm.

Charlie Savage: I'm very doubtful that will work. What is said around a case by a president, especially when there's geopolitical implications, things that go way beyond law enforcement, is, I'm think, likely to be found by the court to be just irrelevant to whether or not this indictment of him is based on evidence that he'd committed these acts.

Michael Barbaro: But that doesn't mean that it won't be something that a defense raises and that will consume a lot of time and create legal briefs and some headlines along the way. Understood. Charlie, just remind us what ultimately ends up happening with Noriega and the charges against him after he was captured and arrested in Panama.

Charlie Savage: So, he brought all these sorts of challenges, some of which we've touched on here, but ultimately he was convicted on by a jury in Miami of eight of the 10 counts against him, and he spent the rest of his life in prison.

Michael Barbaro: So, should we think about Noriega's conviction as validating Bill Barr's legal argument that what really matters is not international law? And if Maduro is found guilty, should we come to the same conclusion that the courts are validating this kind of military operation perhaps twice?

Charlie Savage: I I just don't think that's the right way to think about it, Michael. The courts are not addressing the alleged violation of international law that the United States committed by going into another country's sovereign territory. The courts are only looking at the criminal case and allegations against this particular defendant. But also, I would say it's pretty early to say, well, this is going to play out like it did in 1989.

Michael Barbaro: Mhm. And what's going to happen now in Venezuela is yet to be seen.

Michael Barbaro: Well, to the point about us not knowing what's going to happen here, what if Maduro is found not guilty? Does the US just return him to Venezuela?

Charlie Savage: So, in a situation which he doesn't strike some kind of plea deal, goes to trial, and a jury acquits him, there's no authority to keep holding him.

Michael Barbaro: so they would have to let him go

Charlie Savage: right and if that happens presumably some meaningful amount of time will have passed during which Maduro is not the leader of Venezuela anymore. Perhaps the country moves on, its politics move on from Maduro, in which case Trump administration might not prevail in court, but they could still very much accomplish the overriding goal of replacing Maduro as the country's leader and changing Venezuela's entire relationship to the US and to American business.

Michael Barbaro: Well, I I do think that that's likely. I mean, the history has happened now. Maduro is physically removed from Venezuela, even in a scenario in which he is acquitted. That's a long time from now. This is not going to be something that happens next week or even next year. We've talked about all kinds of stuff that's going to have to be litigated before there can be a trial, immunity claims, and so forth. That's going to have to go up to the Supreme Court. And I don't think Trump will even still be president when whatever happens in this case is over. And so in the meantime, it's hard to see a scenario in which Maduro, even if acquitted, goes back to Venezuela and is still president. This seems irreversible. Well, Charlie, thank you very much. We appreciate it.

Charlie Savage: Thank you.

Michael Barbaro: On Sunday, the United States and Venezuela continued to publicly wrangle over the role of the United States in Venezuela's future. In Miami, Secretary of State Marco Rubio outlined a plan to coersse Venezuela's leaders rather than govern the country. a plan President Trump reinforced with what appeared to be a threat against Venezuela's interim president Deli Rodriguez. In an interview with The Atlantic magazine, Trump said, quote, "If she doesn't do what's right, she's going to pay a very big price, probably bigger than Maduro." Meanwhile, in Caracas, Rodriguez struck a consiliatory tone, saying in a statement that she sought cooperation and coexistence with the United States. "Our people and our region," she wrote, deserve peace and dialogue, not war. We'll be right back. Here's what else you need to know today. Over the weekend, congressional Democrats complained that they were still being kept in the dark about the military operation in Venezuela despite their demands for classified briefings about the mission. White House officials claimed that because the operation was in support of an arrest and not an invasion of Venezuela, they were not obligated to consult with Congress either beforehand or afterhand. But that claim drew protest from lawmakers like Representative Jim Hines of Connecticut, the ranking member of the House Intelligence Committee.

Jim Hines: It's been more than 24 hours. Have you been briefed by anybody in the administration?

Michael Barbaro: Still haven't got a phone call. Look, this is a long pattern and a particularly egregious example of a pattern of this administration not giving a hoot about the United States Congress, which by the way, today's episode was produced by Ricky Netski and Nina Feldman. It was edited by Michael Benois and Patricia Willins. Contains music by Marian Lozano, Alicia Baube, Dan Powell, and Rowan Yisto. and was engineered by Chris Wood. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.