Venezuelan former leader Nicolás Maduro appeared in a New York City court on Thursday, seeking to have a drug charge thrown out over a dispute about paying his legal fees. The hearing laid bare a complex intersection of constitutional law, international sanctions, and geopolitical calculation.
The defence and prosecution argued over whether Maduro can use Venezuelan government funds for his defense fees. His attorney, Barry Pollack, argued that the U.S. is violating Maduro's constitutional rights by blocking Venezuela's government from paying for his legal battle. Pollack argued that if Maduro gets public defenders for the upcoming trial, it would use up resources that are intended to go to individuals who can't afford their own attorneys.
The case hinges on whether sanctions imposed against Maduro by the Treasury Department's Office of Foreign Assets Control extend to blocking Venezuelan state funds earmarked for his defence. In a court filing, Pollack said the U.S. Treasury Department's Office of Foreign Assets Control, which administers sanctions, flip-flopped on a decision to let Venezuela pay for his legal fees. The office approved the arrangement Jan. 9, Pollack said, but then rescinded it without explanation less than three hours later.
Prosecutors took the opposite position. Prosecutor Kyle Wirshba argued that Maduro using Venezuelan money for his defense undermines the U.S. sanctions on the country, which were placed on the country because of Maduro and his wife. OFAC has denied the defendants' request for an additional exception: to allow them to pay their legal fees from a slush fund controlled by a sanctioned government. That is because OFAC regulations expressly prohibit using a sanctioned entity's funds to pay a separate sanctioned person's attorneys' fees.
The legal landscape is steep for Maduro's defence team. Duncan Levin, a former prosecutor who specialises in sanctions law, said that because he is not recognised as the leader of Venezuela and the whole sanctions regime is meant to cut him off, it is unlikely that the court is going to feel that he is entitled to any of the money to help fund his criminal defence.
Yet the judge's signals were mixed. Judge Alvin Hellerstein seemed sceptical of their arguments. Hellerstein seemed sceptical of the prosecution's argument. He noted that for Maduro and his wife, it is "paramount" that they have the right to be able to defend themselves, and that does not impact national security. When prosecutors argued that Maduro should fund his own defence given improving US-Venezuelan relations under interim president Delcy Rodriguez, Judge Alvin Hellerstein pressed him on why that argument holds now that U.S. and Venezuelan relations have warmed somewhat. 'We are doing business with Venezuela,' he noted. Wirshba said that relations with another government don't have anything to do with maintaining sanctions.
Hellerstein did not side with Maduro's attorney in throwing out the case altogether. The judge concluded the session and said he would rule at a later date about the matter of Maduro's funding. "I'm not going to dismiss the case," Hellerstein said.
Maduro was captured in an overnight U.S. military operation in January. If convicted, they face life in prison. The case exposes a genuine tension between fiscal discipline through sanctions enforcement and individual liberty in the form of legal representation. Reasonable people can disagree on where that balance should sit. What is clear is that a court rather than executive decree will decide the matter.