While affirming that the right to present a defense is “paramount,” the judge in New York refused to dismiss the case against the president and first lady of Venezuela — for now, writes Marjorie Cohn.
Captured Venezuelan leader Nicolás Maduro on Jan. 3, after his arrival in New York under U.S. custody. (Drug Enforcement Administration /Wikimedia Commons/Public Domain)
U.S. District Judge Alvin Hellerstein refused to dismiss drug trafficking charges against Venezuelan President Nicolás Maduro and First Lady Cilia Flores on March 26, even though the Treasury Department’s Office of Foreign Assets Control (OFAC) is blocking funds for their legal defense, in violation of the Sixth Amendment and the Due Process Clause of the U.S. Constitution.
But Hellerstein reserved the right to revisit the issue in the future if he determines that OFAC is arbitrarily obstructing the money for Maduro’s counsel of choice.
Venezuelan law provides for the payment of legal fees for the president and first lady. But OFAC issued — then three hours later retracted — a license to Venezuela that would allow the country to circumvent U.S. sanctions and pay for their defense.
“As a result [of the sanctions], counsel cannot provide a legal defense to Mr. Maduro or receive funds from the government of Venezuela to do so without first obtaining a specific license from OFAC,” Barry Pollack, Maduro’s defense attorney, wrote in the motion to dismiss the indictment.
Maduro and Flores have been in custody in the Metropolitan Detention Center in Brooklyn since Jan. 3, when U.S. forces illegally kidnapped them from Venezuela and transported them to New York, while killing approximately 100 people. The indictment charges that Maduro, Flores and other members of the Maduro government committed narco-terrorism and conspiracy to import cocaine into the U.S.
“After invading another country and forcibly bringing its sovereign head of state to the United States, the government of the United States is now actively preventing him from retaining counsel of his choice and receiving a fair defense in this Court, in violation of his Sixth Amendment and Due Process rights,” Pollack wrote.
“The U.S. government has unlawfully interfered with President Maduro’s Sixth Amendment right to legal counsel by revoking the OFAC license that allowed for payment of legal services,” National Lawyers Guild President Suzanne Adely told Truthout. “This is an outrageous and direct interference in his legal defense and should be grounds to end this sham prosecution immediately and free Maduro and his wife Cilia.”
When Hellerstein asked U.S. prosecutor Kyle Wirshba at the hearing on the motion to dismiss, “What is the interest of the government now in blocking those funds?” Wirshba replied: “National security and foreign policy.”
Hellerstein said: “I see no abiding interest in national security in the right to defend yourself. The right to defend is paramount.”
The judge added, “We are doing business with Venezuela … Things have changed in Venezuela … We do business with Venezuela; the oil is important because of the Strait of Hormuz.”
OFAC, the Office of Foreign Assets Control, is headquartered in the Freedman’s Bank Building across the street from the Treasury Building in Washington, D.C. (APK /Wikimedia Commons/ CC BY-SA 3.0)
Hellerstein noted that the executive order establishing the sanctions was signed by President Barack Obama. “The interests are no longer implicated,” the judge told Wirshba.
“Maduro and Flores are here. We have changed the situation in Venezuela. I don’t concede that what’s in the executive order is implicated anymore.”
“There is the Constitutional right to choose counsel,” Hellerstein declared. Regarding payment of the legal defense, he added, “Isn’t that a matter for Venezuela?”
Hellerstein asked Wirshba whether the judge could order OFAC to issue a specific license, and he replied, “I do not believe you have the authority as part of this case.”
Maduro does not personally have the funds to pay his lawyer Pollack, who asked the judge to dismiss the prosecution because OFAC is blocking the defense funds.
Pollack has said that if he cannot be paid, he would like to withdraw from the case so the court can appoint other counsel to defend Maduro. Although Hellerstein acknowledged the Sixth Amendment right of defendants to counsel of their own choosing, he refused to dismiss the case at this stage.
The judge told Pollack he could withdraw from Maduro’s defense because “Defense by CJA [Criminal Justice Act Panel] or Federal Defender is adequate.”
But the Supreme Court has interpreted the Sixth Amendment right to counsel as the right to effective — not simply adequate — representation.
Moreover, appointing a public defender to represent them would drain legal resources intended for those who can’t afford attorneys, Pollack said, and that is not sensible in “a case where you have someone other than the U.S. taxpayer standing ready, willing and able to fund that defense.”
Hellerstein agreed that defending Maduro would entail “great expense” and exhaust the resources of most public defenders.
“Not only would the Court need to appoint counsel and foist the cost of Mr. Maduro’s defense on the United States taxpayers, despite the willingness and obligation of the government of Venezuela to pay Mr. Maduros [sic] defense costs, but also any verdict against Mr. Maduro would be constitutionally suspect,” Pollack wrote in the motion to dismiss.
The judge reserved his final ruling, stating, “If I find that in this case a specific license was arbitrarily withheld and the government does not comply, you could raise dismissal. For now, it’s too serious.”
“Despite the presence of pro-Trump protesters calling for Maduro’s prosecution, civil society organizations are rallying, in New York and elsewhere, calling for Maduro and Cilia’s freedom and for justice and accountability for the criminal and violent kidnapping of a sovereign leader and imperialist aggression,” Adely, the president of the National Lawyers Guild, told Truthout.
The first Trump regime severed relations with Venezuela in 2019, and the Biden administration continued that policy. Since the U.S. aggression against Venezuela and kidnapping of Maduro and Flores on Jan. 3, the Trump administration is in the process of re-establishing formal diplomatic ties with Venezuela. Vice President Delcy Rodríguez, interim president of Venezuela, is a member of Maduro’s Bolivarian government.
OFAC has issued a license for Venezuelan diplomats to travel to the United States this week. That puts a lie to the U.S. prosecutor’s claim that national security prevents the incarcerated Maduro from receiving Venezuelan funds for his legal defense.
The defense motion to dismiss the indictment did not address Maduro’s immunity defenses, which will be raised in future proceedings. Meanwhile, we await Judge Hellerstein’s ruling.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
This article first appeared on Truthout.
Views expressed in this article and may or may not reflect those of Consortium News.
Thank You Marjorie
Welcome to the kangaroo courts of the United States. People of color in this country know exactly how it works. After all, the way the US has treated them is the same as how it has treated the entire global south. The white government expects all people of color to serve its greedy interests above all else. When they refuse, they are punished. It’s been going on for centuries. The only thing that changes are the pretexts.
Since when has kid knapping stopped being a crime?
A president who didn’t use his office to enrich himself? Can’t have that.
In America, all judges are political. It is a very strange system. To become a judge, or in this case a Federal judge, one has to be politically connected. IIRC, judges are first recommended by a Senator from the same gang as the President, then the President makes the nomination, and then the Senate approves the nomination. A lawyer who stays away from politics never gets even a thought towards a seat on the bench. That goes to the politically connected lawyers who helped the Senator or the President on their last campaign.
All judges are political. Therefore, all rulings are political. In America, the far-right “Centrists” like Joe Biden have long wanted to attack and crush the “Pink Tide” south of the border. Thus, there is and long has been a bi-partisan policy against the people south of the border. When the policy is bi-partisan hate towards people who do not want to be dominated by America, then of course a political judge rules with the bi-partisan political hate.
It is elementary. This is American Justice. The judges are always political.
Drug dealing?
Aren’t the CIA the world champions at that?
We let a fellow out jail .
400 tons and whatta you get .
Sent him right back to home .
Another day older and deeper in debt .
hxxps://www.youtube.com/watch?v=02a0PnKFQj8
This case is against all legal norms and ethics considering domestic and interpersonal laws.
Lawyers whether with funds or not ought to defend Maduro.
Thanks for the update! I’ve been worried about President Maduro and he’s been out of the news because of all the chaos in the Middle East.
If I were in New York, I would protest against this prosecution. The USA could use a President as good as Maduro. Instead we get one lousy one after another, an endless string of lousy Presidents. Venezuela had two stellar Presidents in a row with Chavez and Maduro.
It’s a Catch 22 moment. Joseph Heller would recognize it instantly. It’s also a Franz Kafka moment that could have come from his novel “The Trial.”