Nicolas Maduro heads back to court arguing that the US is trying to hamstring his defense

By Kara Scannell, CNN

(CNN) — Nicolas Maduro, the former president of Venezuela, will to try to convince a federal judge on Thursday that the US government is interfering with his ability to defend against narco-terrorism related charges and the case should be dismissed.

Judge Alvin Hellerstein initially set the hearing to give lawyers for Maduro and his wife Cilia Flores de Maduro time to review evidence and sketch out a schedule for legal motions and potentially set a trial date.

In a twist in the already unusual case, Maduro’s attorney, Barry Pollack, said last month he will need to withdraw, if the US doesn’t allow the government of Venezuela to pay his legal fees.

Maduro and his wife were captured from their presidential compound in Caracas in early January in a stunning overnight US military and law enforcement operation and brought to New York to face charges.

Pollack said the Treasury Department’s Office of Foreign Assets Control granted and then revoked a license permitting the Venezuelan government to pay his legal fees. The Maduros and Venezuelan government are both sanctioned by the US so anybody seeking payment needs to obtain a license to avoid violating US sanctions laws.

The reversal, he said, violates Maduro’s constitutional right to defend against the charges. Flores de Maduro’s lawyer joined the motion. If the judge doesn’t dismiss the case, they are asking for a hearing to explore the government’s decisionmaking.

Prosecutors said the initial license from OFAC was an “administrative error” and they are still permitting the Maduros to access their personal funds in Venezuela to cover their legal expenses.

“OFAC, however, 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,” prosecutors wrote in a court filing opposing the indictment’s dismissal.

Lawyers say Maduro has an uphill battle.

“Because he is not recognized as the leader of Venezuela and the whole sanctions regime is meant to cut him off, it’s unlikely that the court is going to feel that he’s entitled to any of the money to help fund his criminal defense,” said Duncan Levin, a former prosecutor who specializes in sanctions law.

Maduro would not be left without any representation. Under US law, he is entitled to a court-appointed attorney.

The Maduros have pleaded not guilty to gun and cocaine importation conspiracy charges that prosecutors allege span more than 25 years, and are being held in federal custody at the Metropolitan Detention Center in Brooklyn.

Pollack has already signaled that he will challenge the legality of Maduro’s arrest and argue he is immune from prosecution because the alleged illegal conduct occurred while he was president.

Maduro was first elected president of Venezuela in 2013. But the US government, along with dozens of other countries, has not recognized Maduro as the legitimate leader of Venezuela since the 2018 presidential election. This year, following Maduro’s ouster, the US State Department recognized Delcy Rodríguez as Venezuela’s head of state.

In early January, US forces descended on the presidential compound, engaged in an intense firefight with Venezuelan air defenses, and captured Maduro and his wife from their heavily fortified home.

Lawyers say while the capture and arrest of Maduro was extraordinary, US law is well established.

“Under the US Constitution, it’s the president who gets to determine who to recognize as head of state and I am 100% certain a US court is not going to second guess a US determination that Maduro is no longer head of state,” said William Dodge, an international law professor at George Washington University’s law school.

“Snatching him was illegal under international law,” he said, but added “it’s quite well established in the US the illegality of bringing someone into court doesn’t affect the jurisdiction of the court.”

Dodge is also skeptical of Maduro’s claims of immunity for his conduct while he was leading the country.

“Drug trafficking isn’t an official act,” he said.

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