The Gavel: Maduro’s immunity defense in question

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, January 7 By Zach Schonfeld and Ella Lee Wednesday, January 7 © Photo Credit Maduro's immunity defense in question Nicolás Maduro says he's still Venezuela's president. The United States says otherwise. The disagreement could become central to Maduro's drug trafficking case, as the toppled leader seeks to persuade a U.S. judge that he's immune from criminal prosecution as a sovereign head of state.  At Maduro's first court appearance this week in federal court in New York, he sought from the start to stop the Justice Department's prosecution in its tracks.   "I am a decent man — the president of my country," he told a federal judge Monday while pleading not guilty to four charges.   Maduro's case is within the Southern District of New York, which houses one of the most powerful prosecuting offices in the U.S. with experience trying cases involving foreign affairs. Longstanding norms of international law prohibit a country from criminally prosecuting foreign sitting heads of state.   But whether Maduro is covered by those standards could make or break his case, in which he is accused of conspiring with his wife, Venezuelan officials and drug traffickers to import tons of cocaine into the U.S. while promoting other illegal activity to enrich and empower himself and his allies.   Before we go further, catch up on the latest on Maduro's prosecution:  His charges: Maduro faces four charges — narco-terrorism conspiracy, cocaine importation conspiracy, possession of machine guns and destructive devices and conspiracy to possess the weapons.  His new neighbors: Maduro is being detained at the Metropolitan Detention Center Brooklyn, where federal defendants in New York City are typically brought. Luigi Mangione and Mexican Sinaloa cartel co-founder El Mayo are both there.   His lawyer: Maduro has brought on attorney Barry Pollack to represent him. Pollack negotiated Julian Assange's plea deal and previously represented one of the only Enron executives to be acquitted at trial following the company's unraveling.  His next court appearance: March 17.  At Maduro's initial appearance, Pollack previewed the immunity fight to come.   He told the judge that Maduro is "head of a sovereign state" and "entitled to the privileges and immunities" that come with that. The lawyer foreshadowed substantial pretrial filings that would address the legality of Maduro's "military abduction," after U.S. forces captured him early Saturday in a large-scale operation so he could face trial on American soil.  It's not the first time the courts will address the immunity issue.  After U.S. forces invaded Panama in 1989 and deposed military dictator Manuel Noriega, he was prosecuted on drug smuggling and other charges.   Noriega tried to raise an immunity argument, but the courts rejected it. Judges ruled that the U.S. government had never recognized Noriega as Panama's legitimate ruler.   "The Executive Branch has not merely refrained from taking a position on this matter;  to the contrary, by pursuing Noriega's capture and this prosecution, the Executive Branch has manifested its clear sentiment that Noriega should be denied head-of-state immunity," the late U.S. Circuit Judge Phyllis Kravitch wrote in a 1997 decision.  It's easy to swap Noreiga's name for Maduro's in that quote.  But Kravitch's nearly three-decade-old opinion raises another point: How much weight should the sitting presidential administration's view get? At least one lower court suggested in the 1970s that the president's opinion is determinative.  We haven't heard from the Trump administration on this yet. But over the past year, it has repeatedly argued in courts in other contexts that executive determinations on certain foreign policy issues are conclusive and judges can't second guess Trump.  That includes Trump's declaration that the gang Tren de Aragua is perpetrating an invasion or predatory incursion, which enables Trump to invoke the rarely used Alien Enemies Act to swiftly deport alleged Venezuelan gang members.  But the 1989 Panamanian invasion isn't completely synonymous to Maduro's case, meaning he may have a stronger defense.  Noreiga was Panama's de facto ruler but never formally served as the country's president. Although the U.S. doesn't recognize him, Maduro at least purports to be Venezuela's president.  A key development to watch is whether Venezuela, under the new leadership of Maduro's Vice President Delcy Rodríguez, seeks immunity for Maduro.   Following the extraordinary weekend operation, Rodríguez called for Maduro's "immediate release" and described him as "the only president of Venezuela." Rodríguez struck a more conciliatory tone on Sunday.  Back in 1989, Panama never requested immunity for Noriega, but the judges noted at the time it may have been a factor had they done so.  And even if Maduro is rejected by the courts as Venezuela's legitimate leader, his indictment notably alleges conduct stretching back more than 25 years.  That includes accusations he sold Venezuelan diplomatic passports to drug traffickers to provide them cover while serving as the country's foreign minister in the 2000s. The United States recognized Venezuela's government at the time.  Maduro wasn't head of state then, but foreign ministers enjoy some legal protections in the United States.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS National Guard fight; Immigration enforcement; Pipe bomber's messy case National Guard fight calms – for now The legal fight over Trump's push for military troops in U.S. cities is cooling off for now after he ordered the National Guard to pull back from three major Democratic-led cities.  But the president's change of heart in Los Angeles, Chicago and Portland appears to be a fickle thing.   Since ending the deployments last week, Trump has repeatedly said that federal forces would return to the cities if crime spikes again, and on Sunday, he suggested their return could come in harsher form.   "We'll go back in when the crime starts," Trump told reporters Sunday aboard Air Force One. "Look, the crime will soon start because they now know that we're out. And at the appropriate time, we'll go back in.  "The most powerful thing we have, we haven't used: The Insurrection Act," he continued.   The Insurrection Act refers to a mix of statutes passed from 1792 to 1871 authorizing the president to call up an armed militia or federal troops to quell a domestic rebellion or insurrection.  It's the primary exception to the Posse Comitatus Act, another centuries-old law, which generally bars federal troops from participating in civilian law enforcement.  It's a power that has sparingly been used by presidents throughout U.S. history, from President Abraham Lincoln's start of the Civil War to President Lyndon B. Johnson's protection of civil rights activists on their protest march from Selma to Montgomery, Ala., following the violence of Bloody Sunday in 1965.   Trump has long flirted with the Insurrection Act, suggesting during 2020 protests over the killing of George Floyd in Minneapolis, Minn. and during his reelection campaign in the event of protests against his victory.   However, he opted to invoke different authorities to send National Guard members to the cities this year, calling up the troops under a provision of Title 10 that allows the president to deploy them to fend off an invasion, suppress a rebellion or pave the way for the president to execute the law.   The Trump administration argued that it was necessary to send in the Guard members to protect federal officials and property tied to the president's immigration priorities, amid protests over his crackdown and mass-deportation policies.   Top officials described persistent violence against federal officers attempting to enforce immigration law, but local leaders rejected their accounts of the protests.   Still, the National Guard members were bound by the Posse Comitatus Act. The Supreme Court ruled in an apparent 6-3 decision last month that, because of that law, calling up the troops as Trump had would require an inability to execute the law without the regular forces of the U.S. military — a circumstance the court said would be "exceptional."  Trump's order calling back the National Guard came a week later.   Though Trump has not invoked the Insurrection Act yet, local officials have raised concerns that he's laying the groundwork to do so in the future.   Illinois Gov. J.B. Pritzker (D) said in October that there's "not an insurrection going on in Chicago."   "I am concerned that he will just ignore the law and try to enact the Insurrection Act and use his people, who seem to be sycophants to the end, to defend him as he's carrying out unlawful acts," Pritzker said.   The Insurrection Act was previously a mobilizing force for some of the president's most extreme supporters, including Oath Keepers founder Stewart Rhodes, who invoked it as a defense during his seditious conspiracy trial.   Rhodes's attorneys argued that if Trump had invoked the Insurrection Act in the wake of his 2020 election loss — which, he did not — all the actions taken by the Oath Keepers to plan for Jan. 6 would have been legally justified, and because Rhodes believed Trump intended to do so, his conduct was not unlawful.   A federal jury ultimately convicted Rhodes of seditious conspiracy, and he was sentenced to 18 years in prison. He was let out last year after Trump commuted his sentence to time served, the same day he pardoned nearly all other Jan. 6 Capitol rioters.   But Rhodes has seemingly not yet given up on the Insurrection Act.   After conservative activist Charlie Kirk was shot and killed in September, Rhodes urged Trump to "do what's right, what's necessary" and "invoke the Insurrection Act."  "You should declare the left in this country is in obvious open rebellion against the law of the United States," he said on InfoWars, according to WIRED. "They're committing insurrection, they're aiding and abetting an invasion, and they're blocking the execution of federal law."  Immigration enforcement fuels jump in criminal cases Trump's aggressive immigration agenda since returning to the White House helped fuel a rise in criminal cases last year, newly released data shows.  Federal criminal defendant filings jumped 13 percent to 79,029, the largest number since before the pandemic.  It was driven by a significant increase — 27 percent — in defendants accused of immigration offenses.  That includes allegations of unlawful entry, misused visas or smuggling.  The Justice Department brings the bulk of criminal immigration prosecutions in districts along the southern border.   Those districts saw a rise last fiscal year, too. Cases in other states meanwhile more than doubled.  Here's the full breakdown of the federal courts' criminal docket by offense category:  Total: 79,029 (+13%)  Immigration: 32,393 (+27%)  Drugs: 15,651 (-6%)  Firearms: 9,714 (+2%)  Property: 6,957 (+3%)  Regulatory: 3,893 (+224%)  Sex: 3,513 (+9%)  Violent: 2,612 (+1%)  Traffic: 2,011 (+6%)  General: 1,668 (+2%)  Justice System: 617 (-9%)  The data comes from Chief Justice John Roberts' year-end message, which he publishes every New Year's Eve. You can read our coverage of it here, but we're focused now on the appendix, which is filled with data on the federal judiciary's workload.  The new figures cover fiscal year 2025, which ended Sept. 30.  On the civil side of the docket, cases increased by a more modest 4 percent.  But that topline number doesn't tell the full story.  For several years, the federal courts' civil caseload had been dominated by the largest-ever multidistrict litigation in U.S. history.  Users of 3M earplugs sued the company over claims its product was defective and caused hearing loss. The company settled with nearly 260,000 plaintiffs for $6 billion.  Activity is now subsiding. Tens of thousands of new cases were being brought annually, but the new report indicates it dramatically fell to just 15 last fiscal year.  Putting aside the earplugs cases and looking at everything else, federal civil cases jumped 14 percent. Among other categories, the data showed an increase in civil rights lawsuits.  Moving to bankruptcy, the federal courts saw an 11 percent annual increase in bankruptcy filings.  Individuals, not businesses, file the vast majority. Individual petitions went up by 11 percent while business petitions only went up by 6 percent.   But that figure includes all businesses, from C-Corps to LLCs. Looking at only large corporations, it's a more dramatic story.  According to data from S&P Global Market Intelligence, bankruptcies for large U.S. corporations reached a 15-year high in 2025.  The list includes companies like First Brands, Claire's, Rite Aid, Del Monte, JOANN, Forever 21 and Spirit Airlines.  DC pipe bomb suspect's case gets messy The man accused planting pipe bombs outside the Democratic and Republican National Committee offices five years ago was on Tuesday indicted for the second time in less than a week.  The odd turn of events in the high-profile case may mark the end of a wonky legal fight that could only unfold in the nation's capital.   Brian Cole Jr.'s first indictment on federal charges was approved last week by a federal magistrate judge, but the typically rubber-stamp decision came after some debate.   That initial indictment was returned by a local grand jury, not a federal one as is typical in cases where federal charges are brought. Tuesday's indictment was returned by a federal grand jury.  In Washington, D.C., where the U.S. attorney's office serves as both a local and federal prosecuting office, it's a question of ongoing debate in its courts as to whether both types of grand juries hold the power to indict on such charges.  The district's federal appeals court is weighing whether a provision of the D.C. Code gives grand juries in both U.S. District Court and D.C. Superior Court that power.   The question emerged last year in the case against Kevontae Stewart, charged with unlawful firearm possession in an indictment returned by a local grand jury after a federal grand jury declined to indict.   A magistrate judge last year refused to accept the local one, calling it "more than likely…unlawful." Chief U.S. District Judge James Boasberg reversed the lower judge, ruling prosecutors have two forums from which to choose when charging major crimes in the nation's capital.   However, Boasberg paused his order as the issue is appealed, writing "the public interest lies in letting the Court of Appeals decide this issue before the Government moves forward both on this case and in similar fashion on other cases."  The appeals court has yet to rule.  That left Judge Matthew Sharbaugh, the magistrate judge overseeing Cole's case, with a predicament when a local grand jury was used for a federal case once again. He initially refused the indictment and asked for additional briefing.   Prosecutors said that the local indictment was secured out of "necessity."  After Cole's arrest and detention hearing, his attorneys agreed to exclude time under the Speedy Trial Act to allow for more time to review discovery, pushing back a detention hearing set for mid-December.   The parties discussed setting a preliminary hearing for early January, where prosecutors would be forced to put on a mini trial to show sufficient evidence exists to keep the case on track if they had not obtained an indictment.   Assistant U.S. Attorney Charles Jones said in court filings that the discussions led prosecutors not to seek an immediate indictment. However, Cole's attorneys denied agreeing to push back the statutorily time-sensitive hearing any further than the detention hearing or to waiving it altogether.   The tricky part: No federal grand jury would sit between Dec. 19 and Jan. 5, the time frame within which prosecutors said they initially planned to schedule the hearing but now would have to indict or lay out their case.  Cole's lawyers argued in court filings that the government was "unwilling or unable to establish probable cause" for the charges against Cole, meaning the indictment returned by the local grand jury should not be accepted. The government disagreed.   "The circumstances presented here are easily distinguished from those presented in Stewart, and thus, the Court may properly receive the defendant's indictment," wrote Jones, who vowed to promptly pursue a new federal indictment when the grand jury panels return.  Sharbaugh ultimately agreed to greenlight the indictment after the government's representations, saying the key question is whether the government proceeded "in similar fashion" as in Stewart's case.   "Put another way, the Court finds significant the government's confirmation that it does not intend to use the Superior Court grand jury as an ultimate end-run around a federal grand jury empaneled by this Court," Sharbaugh wrote.  The judge set a hearing for Friday to check on the government's progress and granted prosecutors' request to detain Cole pending trial, refusing to grant him the preliminary hearing for now.   Cole's attorneys appealed the rulings to U.S. District Judge Amir Ali, an appointee of former President Biden who drew the case.   Tuesday's indictment was returned by a federal grand jury, as promised. It's not clear how the new charging papers will affect the case, but it might leave Cole out of the tug-of-war of power between D.C.'s grand juries.   SIDEBAR 5 top docket updates Chief justice's check-in: Roberts steered clear of current affairs in his 2025 Year End Report on the Judiciary, making no mention of tensions that have grown in the judiciary over Supreme Court emergency decisions implicating Trump's second-term agenda and, instead, opining on the Declaration of Independence.  CFPB funding fight: A federal judge ruled that the Trump administration must secure funding for the U.S. Consumer Financial Protection Bureau (CFPB) or risk violating an existing court order barring its shuttering, rejecting a novel legal argument from the government.  CA open carry struck down: A federal appeals court ruled that California's open carry ban in most parts of the state infringes on the constitutional right to keep and bear arms.   Vance home incident: A 26-year-old Kentucky man was detained by Cincinnati, Ohio police and charged after allegedly breaking a window on Vice President Vance's home there and attempting to enter it, in addition to vandalizing a Secret Service vehicle.   McIver charge remains: A federal judge denied Rep. LaMonica McIver's (D-N.J.) bid to dismiss a federal assault charge based on legislative immunity, rejecting for the third time the House member's arguments that her alleged conduct was protected.    In other news Push to expand pardon power: Tina Peters, the former Colorado elections clerk convicted of state crimes for planning a data breach driven by false claims of 2020 election fraud, has asked the state's mid-level appeals court to validate Trump's pardon of her state convictions and release her from prison.   Courthouse drama: 'Dances with Wolves' actor Nathan Chasing Horse was temporarily thrown out of court after disrupting proceedings by claiming his lawyer should be fired just a week before the actor's sex abuse trial because the lawyer does not come to visit him or file in a timely fashion, CBS News reported.   PETITION PILE Petitions to take up cases that the justices are keeping a close eye on. Texas vlogger arrest: Priscilla Villarreal, a Texas-based Facebook news vlogger, is urging the Supreme Court to review her criminal conviction on an abuse of office charge, which criminalizes soliciting nonpublic information from a state official to obtain a benefit. Villarreal says she was arrested for merely asking a police officer questions about a border agent who committed suicide and a fatal traffic accident, and it violates her First Amendment rights. The case is Villarreal v. Alaniz.  Moot abortion fight: This case stems from the Biden administration stripping millions in funding to Tennessee for refusing to refer for abortions illegal under state law. Tennessee challenged the funding decision but lost in lower courts. With Trump back in office, the funding has been restored. Both Tennessee and the Justice Department agree the case is moot and want the justices to throw out the lower decision, so it doesn't hold the weight of precedent in the future. The case is Tennessee v. Kennedy.  Climate: In a case with massive implications for the energy industry, Suncor and Exxon Mobil want the Supreme Court to end a lawsuit brought by Boulder, Colo. Boulder's suit seeks damages from the industry for its alleged impacts on climate change. One of several suits like it, Boulder is attempting to sue the industry in state court. The companies contend those claims can't proceed because they are precluded by federal law.  The case is Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County.  Sixth Amendment: The Sixth Amendment guarantees criminal defendants the right "to have compulsory process for obtaining witnesses in his favor." Lower courts have divided on whether that requires compelled witnesses to actually take the stand or if they can merely receive the subpoena and decline to testify. The case is Tuopeh v. South Dakota.  Trump pardon: Former Cincinnati City Council Member P.G. Sittenfeld (D) was convicted on bribery and attempted extortion charges. Trump later pardoned him. Sittenfeld continues to argue prosecutors didn't prove an explicit quid pro quo, so he wants the Supreme Court to review the conviction. Sittenfeld is not in jail, but the pardon didn't return the $40,000 fine he paid, so he says it's still a live dispute. The case is Sittenfeld v. United States.  ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:   Today Nick Reiner, son of slain Hollywood director Rob Reiner and Michele Reiner, is set to be arraigned on murder charges in Los Angeles.   The Senate Judiciary Committee's panel on Federal Courts, Oversight, Agency Action, and Federal Rights is set to hold a hearing titled "Impeachment: Holding Rogue Judges Accountable." Thursday A federal judge in Chicago will hold a hearing to weigh plaintiffs' bid to drop their lawsuit that sparked an expansive order restricting immigration agents' use of force in the region. The Trump administration has called it "procedural gamesmanship." Friday A federal judge in New York is set to hold a hearing in Luigi Mangione's criminal case that will include arguments over his motion to the dismiss murder and firearms charges he faces.  A federal magistrate judge in Washington, D.C., is set to hold a hearing in D.C. pipe bomb suspect Brian Cole Jr.'s case on the status of the government's efforts to secure a superseding indictment from a federal grand jury, after Cole was hit with federal charges by a local grand jury.   Monday The Supreme Court will announce orders.   The justices will also hear oral arguments over whether Chevron can move a lawsuit brought by Louisiana parishes to federal court. The case is Chevron USA Inc. v. Palquemines Parish.   Tuesday The Supreme Court will hear oral arguments in two cases regarding whether states' school transgender athlete bans violate the 14th Amendment or Title IX. The first case, Little v. Hecox, challenges Idaho's ban, while the second, West Virginia v. B. P. J., challenges West Virginia's.   A federal judge in Washington, D.C., is set to hold a status conference in Trump's Jan. 6 civil case that may shed additional light on the records withheld from the challengers on the basis of his invocation of executive privilege.   A Washington state federal judge is set to hold a summary judgment hearing in a challenge to the Trump administration's freezing of electric vehicle infrastructure funds brought by 16 states and D.C.  WHAT WE'RE READING The Washington Post's Ellie Silverman: He was attacked on Jan. 6. Can he make sense of it for the kids he teaches?  The Wall Street Journal's Cameron McWhirter and Scott Calvert: Mississippi Welfare-Fraud Trial Spotlights National Oversight Failures  NPR's Bronson Arcuri, Tom Dreisbach and Barrie Hardymon: 2 police officers relive Jan. 6 through their own bodycam footage  LK Law Firm's Lena Kempe in Bloomberg Law: Trump's Order Can't Stop Courts from Shaping AI Accountability  Reuters's David Thomas: Attorney conduct cases coming to a head in 2026  We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2026 Nexstar Media Inc.   |   All Rights Reserved.

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