The Court of Public Opinion: Defending Maduro

Devastating 48 hours for the integrity of the FIFA Peace Prize, but at least FIFA has their legendary anti-bribery track record to fall back on.

Trump v Maduro kicked off this weekend in spectacular fashion, and it’s going to be a big deal for international relations, geopolitics, and law. Others have already opined on their assessments of the overall legality or illegality of Trump’s attack, nearly all of which is entirely moot because there is no objective tribunal to hear the case. There is no international law or court that is going to be recognized by the USA; instead, the USA will rule on the USA’s actions, and Spoiler Alert: the USA is going to win.

Although some have already correctly pointed out that there is no square precedent for Trump’s actions, the essential one is obviously Bush v Noriega. In plain terms, the current Republican administration’s least extreme argument is “Bush did it, so Trump can too.” Their most extreme argument is the “Unitary Executive Theory” https://www.youtube.com/watch?v=Ebdz4DIdiPM, which is just a fancy way of saying “Trump can do literally anything he wants.” https://www.c-span.org/clip/white-house-event/user-clip-no-limit-on-trumps-authority/5169866 Again, if you have any hope that anyone, anywhere can possibly convince Trump that he is wrong or does not have such power, I forgive you, because you are obviously not sane.

So some lucky public defender will be getting into work tomorrow morning in lower Manhattan, thinking about his or her court calendar, carrying the coffee and briefcase of daily routine, and is going to get an all-time summoning to the boss’ office to be told that destiny has come calling. (Okay probably not a public defender, but it’s difficult to imagine that the Department of Justice hasn’t also frozen or seized Maduro’s/Venezuela’s assets, or that they will not be filing a motion that the defendant has to prove that any money used for bail or attorney’s fees is not the proceeds of the crimes charged, which is approximately 100% routine in “drug cases.” In other words – and now I’m being serious – they will probably argue that Maduro cannot legitimately afford a private attorney, and they will challenge the legitimacy of whomever files an appearance on his behalf).

What will Maduro’s defense be? (Other than pointing to the global chorus of authorities and experts decrying Trump’s acts as blatantly illegal for a wide variety of reasons, of course).

Ideally, as a defense lawyer, we want to try any and all possible defenses. Even arguments that have failed in similar cases in the past will be tried again, on the basis that the facts of the new case are different enough from the old ones to cause a different outcome under the same laws. Once the representation issue is settled, Maduro’s lawyers will argue that the USA has no jurisdiction to arrest the democratically elected leader of a sovereign state, and the Department of Justice (DOJ) will argue that the USA has given itself exactly that power, and the DOJ will win. Even if Maduro pulls off a miracle and somehow does win that argument in the trial court, there will be what’s called an “interlocutory appeal” (meaning one that happens before a case is finished in the trial court, as opposed to standard appeals that can only be filed after trial proceedings have concluded). That will go up to the Second Circuit, and then to the Supreme Court, where, guess what, Trump will win.

However, even when we know as defense lawyers that we are likely going to lose an argument, we make it anyway, to preserve the record for appeal, or even for posterity. Maybe neither we nor our client will be alive to see it, but the hope is that we are guiding future jurisprudence away from injustice and tyranny. But obviously, the defense attorney fantasy scenario is to have that once in a lifetime case where a unique set of facts invokes a truly rare but sacrosanct legal principle. And Maduro’s is exactly that case.

Judicial estoppel is of course complicated, but it should win this case. Hear me out: Judicial estoppel is a legal principle to protect judicial integrity and serve the core constitutional value of “fundamental fairness” that is inherently and inextricably a requirement of due process. Basically, the rule is that a party cannot contradict themselves by making an argument in the case at issue that is the exact opposite of an argument they made in a prior case. I won’t bog you down with the punctilious details, but it’s not supposed to be complicated. You cannot argue on Monday that the sun rises in the East, and then argue on Tuesday that it rises in the West, because that would be making a mockery of the courts.

Trump has spent approximately a zillion hours arguing that he cannot be criminally prosecuted while he is president, because the DOJ is not allowed to criminally prosecute any sitting president, because that amounts to interference with democracy. And as we all know, Trump won that argument (in front of judges he appointed, but still, he won). So for Trump to say “that rule against prosecuting sitting presidents saves me, but does not apply to Maduro” is blatant hypocrisy, and makes a mockery of American jurisprudence. We can save for another day the discussion about whether or not anything else Trump has ever said or done makes a mockery of America or its law or politics, but this example is as direct and square as they come.

Will judicial estoppel win? No, of course not. Don’t be silly. But it should.

Anyway, the really serious consequence of Trump v Maduro is going to be the fact that now, under the “Donroe Doctrine” (I wish I was making that up, but I’m not https://www.youtube.com/watch?v=fyTj2jFdUMI) no politician is safe anywhere in the world. If America can arrest foreign politicians in their own countries, surely other countries can do it too. What’s stopping China or Russia or Turkey from swooping in and taking anyone they want from Taiwan, or from Ukraine, or from Israel? Not the law, that’s for sure. It’s a “might makes right” world, and we all better buckle up.