Advisory Opinions – "Prosecuting Foreign Leaders"

Podcast: Advisory Opinions (The Dispatch)
Hosts: David French & Sarah Isgur
Date: January 8, 2026

Episode Overview

This episode dives into the legal questions surrounding the U.S. prosecution of foreign leaders, specifically in the context of the recent Venezuela operation and the indictment of President Nicolás Maduro. David French and Sarah Isgur break down whether such prosecutions are legal and their implications for international and domestic law. They also tackle listener questions, debate the advice and ethics of prosecuting heads of state, and finish with an analysis of recent circuit court opinions on diversity training, church autonomy, and qualified immunity.

Key Discussion Points & Insights

1. Can the U.S. Prosecute a Foreign Head of State in Federal Court?

• Legal Precedent: Yes, U.S. law allows prosecution of foreign heads of state for crimes with a connection to U.S. jurisdiction. The Noriega case and a recent prosecution of a former Honduran president are cited.
  • David: “Pretty clearly under American law and precedent, yes, you can…You’ve prosecuted prior heads of state.” ([04:31])
  • Sarah: “I totally agree with you that the precedent. Certainly we can.” ([05:17])
• Specific Charges Against Maduro: Drug trafficking (clearly prosecutable); gun possession/conspiracy is more problematic since Maduro didn't possess the firearms in the U.S.
  • Sarah: “I’m sure lots of people in different countries own guns that would violate US law… but they’re not in the US… what, we can just go grab people and say you are subject to US law?” ([06:37])

2. Extraterritorial Application & Potential Limits

• Gun Charges: Both hosts question the wisdom and morality of prosecuting someone for gun crimes committed entirely outside the U.S., even when paired with other “anchor” crimes like drug trafficking.
  • Sarah: “That does not help me sleep well at night... people committing crimes wholly in their own country, but that violate U.S. law as long as they violated some other U.S. law and owned a machine gun.” ([07:45])
• David: “The statute itself is not bound by geography… But I do wonder if you begin to get into some fundamental due process issues in this kind of circumstance.” ([08:16])

3. Is the Prosecutorial Method Sound or Just? (The “Should” Question)

• Moral Reservations: Sarah distinguishes between the legal right to prosecute and whether it’s right to try a sitting head of state for official acts.
  • Sarah: "If you are the head of a foreign country and do something antagonistic to American interests for your as an official act for your country... court system is not made for that. ...it corrupts our court system to try to deal with that in our court system.” ([17:34])
  • David: Points out that this wouldn’t occur in Europe, Asia, or most places, and the U.S. willingness to use its courts in Latin America is “the legacy of the Monroe Doctrine.” ([20:51])

4. International Law & "Fruit of the Poisonous Tree"

• Seizure Legality: Alvarez-Machain case allows prosecution even if the target was “kidnapped” in violation of international law.
  • David: “The Supreme Court said, we can keep him and prosecute him. …Violation of its treaty obligation does not result in a requirement to release the defendant.” ([11:38])
  • Sarah: “It’s sort of the reverse of, you know, Fourth Amendment remedy…We just decided not to have a prophylactic for it.” ([12:07])

5. Official Acts vs. Personal Acts

• Distinguishing Acts: Sarah firmly separates official acts (which she believes should prompt state-to-state action, not criminal prosecution) from personal crimes like murder or side-business drug trafficking, even by presidents.
  • “Now if you are some random senator who again like flies to Virginia and murders someone, that's not an official act… If you're the president of a country and you as a side hustle, start doing drug trafficking… then same, that's the same as the murder, right? …But if you are the head of a foreign country and do something antagonistic to American interests for your as an official act for your country... I don't think it makes sense to take a head of a foreign country and bring him to the United States to stand trial for an official act from that country.” ([17:34] - [19:47])

6. Vindictive/Selective Prosecution Claims?

• No Legitimate Defense: Both dismiss the idea that Maduro could claim selective prosecution.
  • Sarah: “Does Maduro have some vindictive prosecution, selective prosecution, Vindictive prosecution claim? Absolutely not. That motion will lose, lose, lose.” ([23:10])
  • David: “If you file a vindictive prosecution motion, you’re going to lose, lose, lose.” ([23:36])

7. Handling Bad Leaders: Domestic or International Justice?

• David’s Preference: Let new, legitimate governments prosecute ex-leaders – “the Iraq model, not the Venezuela model.”
  • David: “A new government, a legitimate government, should have first crack at justice against an illegitimate ruler.” ([26:18])
• Sarah notes: U.S. can easily manipulate recognition of leadership to justify action, adding complexity to the system ([24:19]).

8. Listener Questions & Trump v. United States

• Trump v. United States does NOT & cannot shield foreign leaders in U.S. Courts.
• On implications for presidential criminal exposure:
  • David: "I do not think [Trump v. United States] is as broad as the popular reading suggests.” ([31:35])

Bonus: Circuit Court Rulings Round-up

A. Mandatory Diversity Training & Compelled Speech (8th Circuit)

• Case: Public school employees challenged required “equity” training as compelled speech.
• Split: 8th Circuit allowed the case (injury in fact from being forced to “assent” rather than just learn material); dissent argued no real First Amendment injury.
  • David: “I can be asked if I understand the material. I cannot be asked to assent to the material. So that’s my line.” ([40:00])
  • Sarah: “This was a very close case for an 8th Circuit en banc, and you had judges of every stripe... At some point we have to draw a line so that we're not just litigating every damn thing after another and they weren't punished.” ([36:54], [38:36])
• Memorable moment:
  • Sarah: “I really, really hate compelled speech. So I was, I'm pretty torn on that one.” ([42:02])

B. Qualified Immunity Wild Card (5th Circuit)

• Facts: Police officer shot a fleeing suspect who had a gun. District court said the officer’s use of force was reasonable and clearly within qualified immunity. 5th Circuit panel reversed — unusually.
  • David: “But in my world where there is no qualified immunity, the police just win this case.” ([49:32])
  • Sarah: “This is why qualified immunity exists…It is dark. A guy gets out holding a gun and starts to run….I’m with the district court that the shooting itself was not a constitutional violation, let alone a clearly established constitutional violation.” ([47:44], [49:06])
• Forecast: Expect quick reversal by 5th Circuit en banc; both hosts agree panel’s ruling is out of step.

Notable Quotes & Memorable Moments

• On extradition vs. kidnapping:
  • Sarah: “The word ‘kidnapped’ is carrying a lot of water there.” ([13:08])
• On the Venezuela tragedy:
  • Sarah: “Venezuela could be Costa Rica but with a ton of oil and gold... tragedy doesn't begin to describe what has occurred for the people of Venezuela.” ([16:13])
• On Noriega precedent:
  • David: “There were legal justifications under international law for armed conflict with Panama that are not present here.” ([25:22])
• On the scope of Trump v. United States:
  • David: “It does not grant the president immunity for all acts in office. It grants immunity for core executive functions.” ([31:35])
• On modern SCOTUS procedural dynamics:
  • Sarah: “Every week that goes by is good news for Donald Trump on the tariff case because if they're going to rule against Donald Trump, they're going to do it as quickly as possible.” ([53:06])

Timestamps for Key Segments

• [03:19] Main topic intro: "Can you prosecute a foreign head of state?"
• [04:31–07:13] Precedent and statute breakdown; drug vs. gun charges
• [10:17–12:45] Legality of seizure and prosecution (Alvarez-Machain)
• [13:08–17:13] Official act vs. unofficial act distinction; Venezuela's tragedy
• [19:47–22:08] Hypotheticals on head of state and official acts
• [23:10–24:19] Vindictive prosecution claims
• [25:22–27:35] Model for international justice
• [32:14–36:54] 8th Circuit diversity training/compelled speech case
• [43:18–50:58] 5th Circuit qualified immunity case recap and reaction
• [53:06–54:21] Supreme Court opinion watch; procedural chess

Conclusion

The episode provides an authoritative, nuanced, and at times passionate examination of the U.S. legal system’s approach to prosecuting foreign leaders, weighing the “can” and “should” separately. David and Sarah rigorously disentangle legal precedent from prudential and political concerns, openly challenging each other and the audience to separate what is possible from what is wise or just. Listeners are also treated to analysis of evolving First Amendment and qualified immunity doctrine in the lower federal courts, reaffirming Advisory Opinions’ reputation for energetic, thoughtful legal debate.