The Illegality of the Maduro Seizure Under Domestic and International Law

Summary

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Talking Feds: The Illegality of the Maduro Seizure Under Domestic and International Law

Host: Harry Litman
Guest: Steve Vladek (Agnes Williams Sesquicentennial Professor of Federal Courts, Georgetown University Law Center)
Date: January 6, 2026

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Episode Overview

This urgent, post-seizure episode dives deep into the legal, moral, and geopolitical ramifications of the U.S. operation that forcibly captured Venezuelan President Nicolás Maduro. With Steve Vladek’s incisive legal perspective, the show probes the uncharted and controversial ground this action threads under both international and U.S. law. The discussion weighs the justifications presented, picks apart comparisons to past U.S. interventions, and explores the far-reaching consequences for U.S. credibility and the international order.

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Key Topics & Insights

The Precedent and Moral Atmosphere (02:15–05:47)

• West Wing "League of Ordinary Nations" Analogy:
  • Vladek opens with a reference to The West Wing, expressing that the U.S. action reeks of "thuggishness" and makes America appear as a "big country doing to a little country something that it can only do because it's a big country."

    • “It just, you know, I was reminded of that scene…Bartlett is worried...not only do we become part of the League of Ordinary Nations, but also…what kind of precedent does this set? What kind of retribution are we inviting?” (Vladek, 02:42)

• Moral and Policy Backdrop:
  • Litman frames it starkly: “An ordinary here then means not burdened by things like broader moral interests, our role in the world, et cetera, even. Even by the law.” (03:58)

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International Law—A Clear Violation? (05:47–09:10)

• UN Charter as Binding U.S. Law:
  • The UN Charter, as a ratified treaty, is part of U.S. "supreme law" under Article 6 (Supremacy Clause).

    • “The international law we’re talking about here is the UN Charter…It is a treaty…the supreme law of the United States.” (Vladek, 05:47)

• Article 2(4):
  • Prohibits use of force against territorial integrity or political independence of any state, with only a narrow exception for self-defense (Article 51).
  • Vladek notes: "there’s no self defense here…Self defense has never been part of it at all." (06:25)
• Barr Memo and its Flaws:
  • The operation’s legal justification traces to a 1989 Bill Barr OLC memo, which claims the President can ignore the Charter.

    • “The Barr memo...doesn’t even try to argue that these kinds of extraterritorial arrests are consistent with the UN Charter. It says the President has the authority to ignore the Charter…” (Vladek, 07:22)

• Critique:
  • Vladek stresses this offers no real legal cover and is a “whitewash” of law.

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The "Bootstrapped on Stilts" Theory and Its Danger (09:10–10:43)

• Pretextual Use of Law Enforcement:
  • The operation’s rationale: FBI agents enter Venezuela to arrest Maduro; massive military force is to protect them. Vladek skewers this logic:

    • “…by that logic the U.S.…can invade any country at any time so long as there's at least one person in that country against whom there is a pending indictment...” (Vladek, 09:43)

• Retroactive Rationalization:
  • The rationale appears chosen after the fact, to justify a policy decision rather than an act of law.

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Exploring International Law Defenses and Consent (11:53–14:06)

• Venezuelan Consent Argument:
  • Could Venezuela’s “legitimate” government consent? Vladek says no—no evidence of any government actor giving prior consent.

    • “No one who is claiming any authority in the Venezuelan government has said anything about consenting to this operation.” (13:01)

• Practical Obstacles:
  • Even if U.S. recognizes someone else as Venezuela’s leader, Venezuela is an operational state with a UN representative; so consent is not plausible.

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Domestic Law, Precedent, and Political Fallout (15:50–18:55)

• Boat Strikes v. Seizure:
  • Boat strikes previously discussed infringed less, as they were not direct violations of territorial sovereignty. This represents major “escalation.”

    • “…there's this creeping escalation of how much power the Trump administration is claiming under the auspieces of Article 2…” (Vladek, 16:14)

• Congressional Inaction and Expansion of Executive Power:
  • Vladek laments the lack of Congressional pushback:

    • “At some point, you know, there has to…I mean, I think we're long past what the founders would have ever thought Article 2 allows the President to do.” (Vladek, 16:41)

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The Manuel Noriega Comparison (17:06–20:52)

• Operation Just Cause (Panama 1989):
  • Noted as the closest parallel but with key differences:
    • Panama declared war vs. U.S., and U.S. forces were attacked.
    • Even then, the operation’s legality was hotly contested.

    • “The best example they've got is an example where… the country had declared war against us and… it had already killed US service members before we invaded. That is not this case.” (Vladek, 20:04)

• Extradition as a Real Legal Process:
  • The U.S. often uses legal extradition collaborations, as with Honduras’ ex-president (who was, ironically, later pardoned by Trump for a similar offense).

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Head of State Immunity and Complications for Prosecution (21:00–24:48)

• Head of State Immunity:
  • Traditionally (though not codified in U.S. law), recognized heads of state are immune from prosecution for official acts.
  • Maduro’s unique situation:
    • Recognized by the U.S. government 2013–2019.
    • Elected under Venezuelan law, if not universally acknowledged as legitimate.

    • “One, that we did recognize him for six years and at least some of the charges are related to stuff he did during the period where we recognized him as the head of state. And two… he was still serving, consistent with the Venezuelan constitution, as the head of state…” (Vladek, 24:30)

  • Noriega, by contrast, was never recognized as the head of state post-coup.

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Will There Be Legal or Political Consequences? (26:50–28:31)

• Legal Remedies Likely Unavailable:
  • U.S. courts rarely review how defendants are “brought” to the U.S. (Kerr-Frisbie doctrine).
  • International courts (e.g. ICJ) will be slow, and lack enforcement power.

  • “I’m not optimistic that the law is going to provide any kind of remedy here…” (Vladek, 27:15)

• Political Fallout More Likely:
  • Potential for Congressional hearings or electoral backlash, especially if Congress changes hands and if this is not an isolated event.

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The Larger Consequences for the U.S. and World Order (28:31–31:42)

• Soft Power and Credibility Damaged:
  • The action undermines the U.S. claim to a rules-based order—weakening the ability to criticize other violations (e.g. Russia/Ukraine):

    • “…when you lose that moral high ground, it’s more than just…a debating flaw…You are losing the ability to build consensus with our partners when rogue actors, when other countries do the exact same thing we’re doing and say, to quote, you did it too.” (Vladek, 30:46)

• Minimal Tangible Benefit, High Cost:
  • Vladek calls the operation “petty compared to the costs”—with only weak gains for real U.S. interests.

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Notable Quotes & Memorable Moments

• "Thuggish...big country doing to a little country something that it can only do because it's a big country." (Steve Vladek, 02:42)
• "The international law we're talking about here is the UN Charter...a treaty...part of the supreme law of the United States." (Steve Vladek, 05:47)
• "This whole thing just smacks of...trying to retroactively provide a rationalization for something the administration just decided it wanted to do." (Steve Vladek, 10:00)
• "You can invade any country at any time so long as there's at least one person in that country against whom there is a pending indictment…That's just insane." (Steve Vladek, 09:43)
• “There's this creeping escalation of how much power the Trump administration is claiming...I don't know what the legal limiting principle is anymore.” (Steve Vladek, 16:14)
• "You are losing the ability to build consensus with our partners when rogue actors, when other countries do the exact same thing we are doing and say...you did it too." (Steve Vladek, 30:46)

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Timestamps for Key Segments

• Intro & Episode Context: 00:36–02:13
• Setting Moral/Policy Backdrop (West Wing reference): 02:13–03:58
• UN Charter & Binding Law: 05:47–06:25
• Article 2(4) and Self Defense: 06:25–07:22
• Barr Memo Flaws: 07:22–09:10
• Pretext of Law Enforcement as Military Justification: 09:10–10:43
• International Law & Venezuelan Consent: 11:53–14:06
• Escalation Compared to Boat Strikes: 15:50–16:14
• Noriega Precedent Analysis: 17:06–20:52
• Head of State Immunity: 21:00–24:48
• Practical Consequences for Law & Politics: 26:50–28:31
• Broader U.S. Soft Power Issues: 28:31–31:42

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Closing Thought

In one of the episode’s most resonant lines, Steve Vladek critiques the Maduro operation as a stark betrayal of not just legal but also strategic and moral U.S. interests:

"It is basically trading away what is left of our credibility and our moral authority on the world stage for what really doesn't strike me as a huge short term or long term payout. And that's what I don't get about this whole operation. It seems petty compared to the costs..." (Vladek, 31:20)

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This episode offers a bracing, clear-eyed breakdown of the legal and global stakes for U.S. actions—and a caution about the cost of abandoning longstanding rules.

Transcript

[Steve Vladek]

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[Harry Littman]

Welcome to Talking Feds. One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman. It's less than 36 hours after the seizure of Venezuelan President Nicolas Maduro, and we are wrestling heavily with the legal justifications and the practical implications in such legal quandaries. In particular, we turn whenever possible for clear sighted analysis, if not bottom line answers, which may be elusive. Here to Steve Vladek, the Agnes Williams Sesquicentennial professor of Federal Courts at Georgetown University Law Center, a regular contributor to the Contrarian, the Supreme Court analyst for cnn, and his book the Shadow Docket, how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic was a New York Times bestseller and still very much of contemporary relevance. Steve was out of the box with an exceptionally trenchant analysis of the seizure many hours before Maduro even arrived in the United States. It's called five Questions about the Maduro Arrest Operation. It's at his substack one first, which is always week in, week out, Monday in, Monday out, and now more than that, really, really worthwhile, and you should check it out. Steve, as always, thank you for being here.

[Steve Vladek]

Thanks, Harry. Happy New Year.

[Harry Littman]

Happy New Year to you and yours. All right. You anchor your analysis in a fictional scene from the West Wing that maybe some of our listeners know about, where a character says, within the White House, doesn't this mean we join the League of Ordinary Nations? Why did that line come to you so strongly as you contemplated the snatching of Maduro?

[Steve Vladek]

Yeah, I mean, you know, Harry, we spend so much time debating the finer legal points of all of this, and I know that we will get into some of those briefly and momentarily. But it seems like there's just something really thuggish about what we did Friday night in Venezuela, basically a big country doing to a little country, something that it can only do because it's a big country and thuggish in a way that, you know, doesn't even seem to have an obvious human Rights or humanitarian justification that maybe might be easier to swallow even if the legal analysis were still problematic. And so it just, you know, I was reminded of that scene. It's at the end of the season finale of the third season of the West Wing, and it's actually somewhat analogous. I mean, the fictional president is being pushed to order a special Forces operation to basically take out the defense minister of this fictional country on the ground that, you know, they pose a threat to the United States. And Bartlett is worried about, like, you know, not only do we become part of the League of Ordinary nations, but also, Harry, what kind of precedent does this set? What kind of retribution are we inviting? And I think those are some of the questions that I'm not really confident folks inside the government thought all the way through here.

[Harry Littman]

Yeah. To say the least. An ordinary here then means not burdened by things like broader moral interests, our role in the world, et cetera, even. Even Bey the law. I had in mind the. The scene at the beginning of Mad Max where the, you know, gang has oil and you have the very menacing. They're saying, give us the oil, give us the oil, and then maybe we'll let you alone. Okay, So I know. I think that look sets the general moral, practical, foreign policy theme or atmosphere of it. So let's try to dive in at least somewhat. It gets pretty complicated pretty fast. But what this really seems to me all the more in the wake of Friday is a pretty elaborate game of Whack a mole that has proceeded from several different potential, but not very valid on individual grounds, theories of international law. And then finally, it seems to me. But I want to ask you about it a. Forget it. We're okay under domestic law, so let's try to focus on international law. So, you know, again, staying at the broad West Wing, Mad Max level seems like about as fundamental as you get. One sovereign nation invades another, kills 40 people, seizes the president, takes them back, back to their nation. What is the most obvious international law doctrine that applies here?

[Steve Vladek]

I mean, just to be clear, you know, I know we. We have a tendency to wave our hands at international law. The international law we're talking about here is the UN Charter, which is not just some, you know, pie in the sky document. It is a treaty to which the United States is a party, and it is therefore part of the supreme law of the United States. So we say international law, Harry.

[Harry Littman]

But yeah, can I just put a finer point that? Article 6, the Supremacy Clause specifically includes treaties. These are the highest law. Right. So, yeah, it's really true. Many people think of it as vaporous, not really binding, but this is as binding as it gets.

[Steve Vladek]

Yeah, I mean, there are. I mean, there are some treaties that, like, we have not ratified. And so there it's this sort of messier argument, but this is not one of them. And what Article 2, paragraph 4 of the UN Charter says is, it protects the sovereignty of member nations, of which Venezuela clearly is one, from incursion or invasion. With maybe, Harry, this small caveat in Article 51 of the Charter for self defense. But there's no self defense here. One of the things that's really striking about the mishmash of explanations we've heard from the executive branch over the weekend is self defense has never been part of it at all. The best that we've heard, which really did not come from President Trump in his press conference, did not come from any formal statement from the Secretary of Defense, was probably what Marco Rubio said to Mike Lee. And by the way, if that's where we're going to figure out what the government's legal rationale is, things have broken down in a pretty big way. I sure do miss a Pentagon press corps. But the Rubio version of this, which I think is the most coherent, not necessarily justified, but coherent description, is that the military force here was actually the tail and that the dog was FBI agents going into Venezuela to arrest Maduro and his wife, relying upon this incredibly controversial 1989 Justice Department memorandum by Bill Barr back when he was the head of the Office of Legal Counsel. And Harry, what's striking about the Barr memo, which is just not a persuasive document at all, is it doesn't even try to argue that these kinds of extraterritorial arrests are consistent with the UN Charter. It says the President has the authority to ignore the Charter, which again, is just wholly. How do I say, just whitewash him. Right. The extent to which the charter is US Law and is not just some, you know, aspirational treaty.

[Harry Littman]

Yeah, okay. And you've, you've referred to two things, and they do seem to have knitted them together. So the bar memo basically says you've got a bad criminal somewhere who's really offended US Criminal law interests. It could be a drug kingpin or it could be anyone. But then the kill. Then, in addition, there's a separate potential justification for when you are protect. You've got to rush in to protect U.S. forces. You've called that combination bootstrapped on stilts. Can you, can you explain?

[Steve Vladek]

Yeah. So, you know we usually. Harry, think of when the US uses or exercises military force overseas that that is the primary objective. Right. When we conduct a drone strike under the auspices of the Authorization for Use of military force after 9, 11, or when we bombed Germany during World War II, that the military force is the centerpiece here. What the government is trying to do is use the specter of this arrest of Maduro as basically the pretext for all of this military force, where the military force, as you say, killing at least 40 Venezuelans, you know, bombing lots of installations in Caracas and elsewhere really was just in defense. I put in spare quotes, right. Of the however many FBI agents who we sent in to Venezuela to arrest Maduro and his wife. Harry, if you play that out right, if we take that to it to its logical extent, then by that logic the US and specifically the President without Congress can invade any country at any time so long as there's at least one person in that country against whom there is a pending indictment somewhere in a US Federal criminal court. That's just insane. And it's part of why the bar memo has always been perceived as wildly controversial, but also just part of why this whole thing just smacks of, you know, trying to retroactively provide a rationalization for something the administration just decided it wanted to do. Yeah.

[Harry Littman]

And the memo, by the way, the DoJ has never asserted in court that it applies. And yes, from the inception. Okay, well, let's be. I want to go back to the Barr memo, but I want to plumb the depths a little bit more of international law. So we seem to have this clear principle of a treaty which is the same law that, you know, is at least of condign importance as anything Congress has passed that says you can't just, you know, logically enough test someone's sovereignty and just snatch a leader like this. What Assuming that that's true, and it is an interesting point of the Barr memo that it basically seems to acknowledge the force of international law, even though I know at the time a lot of that seemed kind of airy fairy to the, the conservative crowd. But what else is there? So let's say it's true. What are the arguments if we were in some kind of international court that we would say notwithstanding that provision, we still have, this is still a lawful exercise.

[Steve Vladek]

So the best that I think is out there is, you know, something that we've seen from a couple of academics, but not from the government itself, which is something that I think is Harry Potter true in theory, but not in this case. And so the argument is that Venezuela can consent to the violation of its sovereignty. That there are lots of contexts, lots of examples historically, in which the United States has gone into foreign countries with their consent, whether as an arrest operation, whether as a military operation, what have you. And that at least maybe the properly elected government of Venezuela, the legitimate government of Venezuela, Right. Consented in this case to the violation of Venezuela sovereignty. Or maybe there is no properly elected government and therefore there was no one who could consent. Therefore there was no breach. So I don't really find either of those arguments especially persuasive, partly because, one, no one who is claiming any authority in the Venezuelan government has said anything about consenting to this operation. And it would be a little bit too little.

[Harry Littman]

To the contrary, right?

[Steve Vladek]

To the contrary, right. And indeed, even if they were to say it now, the question is not whether two weeks later they say, oh, yeah, the question is whether they consented in advance. There's no evidence of that. And there is. I mean, whatever folks think of Maduro and whether he's the legitimate leader of Venezuela, Venezuela is still a country with a government. It is a country that has an accredited representative at the United Nations. It's been the same guy since 2017, a time when the United States actually did recognize Maduro as the legitimate ruler of Venezuela. And so, Harry, there are messy hypotheticals that can arise in circumstances in which a country is either unwilling or unable to control its own territory, and in circumstances in which there's no government to consent. That's not this case. And so I think, principally the arguments that we're going to hear from the Trump administration, if we ever get far enough, where they're making substantive, nuanced arguments, is that this was a case in which the breach of the Charter was justified.

[Harry Littman]

Yeah. Now, and to be clear, none of this requires any position. You can take any position you want as to Whether, as of 2018, the previously legitimate Maduro government became illegitimate because of the fact that theft of an election. You can also take any position you like as to whether they were. And he was in fact flooding the shores of the United States with cocaine, some of which wound up killing some American citizens. All.

[Steve Vladek]

Even though, even though most of the, Even though most of the narco trafficking rhetoric from the Trump administration is about fentanyl. Right. Which comes for. Primarily from Mexico, not Venezuela first.

[Harry Littman]

I mean, it's, you know, really the whack a mole announce comes back again and again. And really, this does cast a shadow. I don't know what becomes, as a practical matter of the illegality, especially the double tap strike of our previous sorties against the boats, but presumably the whole body of international law that we were trying to invoke then got no stronger here when we switched directions. And I guess at most though there's, you can't imagine civil suits too easily against the government officials, but possibly political consequences and potential for hearings and hegseth and the like. But that's that it seems to me as a practical matter that's been, excuse the expression, blown out of the water as of. As of now. Yeah, yeah.

[Steve Vladek]

Although, I mean, Harry, I think you're point about contrasting this with the boat strikes is really important because the boat strikes are enormously flawed on their own. And we've talked about this before, but at least the boat strikes were not a violation of a foreign nation's territorial sovereignty and integrity. The boat strikes are probably.

[Harry Littman]

They were in international waters until that one bombing. Yeah, that's right.

[Steve Vladek]

And so it just seems to me that there's this creeping escalation of how much power the Trump administration is claiming under the auspices of Article 2 to breach the UN Charter, to use kinetic force on foreign soil, to, you know, kidnap foreign presidents. And I just, you know, whatever folks think of the policy wisdom of this entire enterprise, and I don't even know that I feel that strongly about it, other than that I think it's not well thought out. Right. I don't know what the legal limiting principle is anymore. I mean. Right. This is sort of Article 2 lets us do what we want, when we want almost to the extreme. And at some point, you know, there has to. I mean, I think we're long past what the founders would have ever thought Article 2 allows the President to do. But certainly if there was a Congress that cared at all about its institutional prerogative, you know, this would be another red line that we've crossed.

[Harry Littman]

Okay, so let's go to the name that Merkle appeared to many people, including me, when we first got the news here, Manuel Noriega. We thought of him as kind of the head of Panama. Right. And we went and just grabbed him on this theory. I think it may even have been. It was about contemporaneous with. I don't know if it was considered justified by the, the bar memo, but he turned out to be a common criminal and a big drug dealer and we grabbed him. Yeah. One more step back as a little asterisk. How do you do this? If this were really true? You have an extradition tree. This is what happened to the ex president of Honduras. Ironic is, I guess, not really the word here. Hypocritical would be that you put, you got an, you use the law, extradited him, put him on trial here, got a 45 year sentence that was immediately wiped out with the pardon.

[Steve Vladek]

But that for cocaine trafficking, right? For the very right. He was pardoned by President Trump for the very activity that is the putative justification for Friday's military operation. I mean, that's what matters.

[Harry Littman]

It's not simply the what's illegal, it's the theory of the whole case, which is just a poor theory with international law precedent. You're, you're helping sell cocaine. Some of that cocaine hurts people. But you know, it's, it seems like classic law enforcement, if not commerce. Okay, but Manuel Noriega, didn't that sort of happen? We kind of went and snatched him and put him on trial. You actually, in your analysis, it cuts the other direction. But people I think would really like to understand that with precision. Can you sketch it out?

[Steve Vladek]

Yeah. So the nori of the precedent's important in two respects. It's important from the sort of initial facial validity question. And it's also important for what's gonna come up in the Maduro prosecution, which is the question of head of state immunity. But taking the first question first. So the operation Just cause, the US invasion of Panama in late 1989, early 1990, is without question the closest precedent we have for this. But Harry, there were a couple of critical differences between what happened there, what's happening here, there. Before President George H.W. bush sent any troops into Panama, two things had happened. The first was that the Panamanian General assembly had declared war against the United States has said we are in a state of war. I know details. But second, and you know, more, more than just a piece of paper, there had been attacks on US service members in Panama, including the fatal shooting of a U.S. marine. And so, you know, I think at least there President Bush had a little bit more of a self defense justification under Article 51 of the UN Charter for sending troops. And even then, Harry, I mean, I think the book is still largely out about whether as a matter of both international and US law, Operation Just Cause was legal. The UN General assembly condemned it. Right. No court ever specifically weighed in on its validity, but Congress certainly hadn't approved it. And so the best example they've got is an example where one, the country had declared war against us and two, it had already killed US service members before we invaded. That is not this case. This is just, we're going to arrest one other.

[Harry Littman]

It's a little wrinkle, but it matters for what we're, for what we're gonna. Which is technically Noriega's not the head of state. So this is in a way that Maduro was right, this is what's gonna.

[Steve Vladek]

So I think that's less important, Harry, on the front end validity question, but it's really important to the immunity question because.

[Harry Littman]

Okay, so let's talk about that because that, so in the law, man. And I really wanna get to some of the implications just for our place in the world. But yes. So we're. Now we have staked our claim to how we're playing this. We're playing this as a law enforcement matter. And what's, why doesn't this authorize us to just go and you know, Guzman, any, any kind of thug just go invade a country, shoot a few people and, and grab someone? That comes to mind. But here there's something even more challenging which is the possibility that as head of state, Maduro would have valid defenses recognized under domestic law. Yeah. So that could get us tangled up if I guess It's Judge Hellerstein. 92 year old judge Hellerstein, tough guy, but whatever. If he, whoever has the case in the Southern district of New York, and I'd just say one more thing about it, which is this case I think proceeds to a conviction, acquittal or hung jury in like two, three years. I mean this is a complicated welder of issues, right?

[Steve Vladek]

At least.

[Harry Littman]

Yeah, yeah. But so anyway, let's talk about this possible couple arguments about immunity and how it complicates our efforts.

[Steve Vladek]

So head of state immunity is not something that is codified in positive US Law. It's not part of the Foreign Sovereign Immunities Act. It's not anywhere in the Constitution. It's a common law doctrine that the United States has long recognized. And basically what it says is that someone who is recognized by the United States as the head of a foreign nation is categorically immune from any process, Harry. From civil suit or criminal prosecution for acts undertaken while they are head of state. The wrinkle here, which was the wrinkle in the Noriega case, is that as of today, and certainly for at least the last six and a half years, the United States has not recognized Maduro as the legitimate head of state of Venezuela. But there are two respects in which Maduro still has a pretty strong argument for head of state immunity. First, he was recognized by the Obama administration and by the Trump administration as the lawful successor to Hugo Chavez in 2013. The election in 2013 in which he won the presidency in his own right was widely viewed by the United States as a legitimate one. And so there was, Harry, at least the six year period where the US Viewed Maduro as legitimate. That's not true of Noriega. Norega was never viewed as the legitimate leader of Panama after the coup. But second, as a matter of Venezuelan law, right, Maduro is the head of state. He was elected whether the election was legitimate or not in a manner that was consistent with the Venezuelan constitution. Noriega wasn't. Noriega was never the elected head of Panama. He was the de facto military leader on the far side of a military coup. And so this is why the 11th Circuit in Noriega's case said whatever the U.S. position on recognition is, right, that Noriega was never the head of state in the first place. So Maduro has two arguments, both of which, Harry, I think are not remotely frivolous. One, that we did recognize him for six years and at least some of the charges are related to stuff he did during the period where we recognized him as the head of state. And two, that even at the end of that right, he was still serving, consistent with the Venezuelan constitution, as the head of state as a matter of Venezuelan law. So I don't think these are open and shut, Harry, but I think that that's a problem for prosecutors as much as it is sort of a wrinkle in how this case goes forward.

[Harry Littman]

Well, and another problem for the administration, at least as of now, we'll see how this develops on the ground. But the people down in Venezuela who putatively would displace him while we run the country, say he is the president. I mean, which strikes me as a quite an, you know, an international blemish for us. But let's think about it this way. So we just said, you know what? However, if we are successful in putting this on a domestic criminal law footing, it's going to play out years from now. There's already a way, I remember this with Noriega, where, you know, we purposely show the perp walk of Maduro and there's a way in which he's now like a diminished prisoner, which is just what Trump, you know, wanted him to be. Let's, let's say that everything you say, as always, is 100% right. And it's the, it's the proper legal analysis. We know nothing's going to really hit the road on the criminal side. What, if anything, can happen does happen for the assertion of law. We know a linchpin of the bar memo was that supposedly because of the absence of justiciability, the absence of ordinary people to just go in and sue in the courts. That was Barr's argument for making the international. The treaty provision somehow second rung or not really applicable. Everything you say is right. Let's assume, is there any way in which any of it gets purchase, genuine purchase, domestically and internationally, where we know often it just, even though law is there, it seems like a debating society that never actually eventuates to anything concrete.

[Steve Vladek]

So the purchase question, I think depends on whether you mean legally or politically. So, you know, legally, Harry, for all the reasons you suggest, it's an uphill battle. It is very hard to litigate these kinds of military operations in US Courts, even here, even where you actually have an individual like Maduro. There's this body of law that I know you're familiar with from your time as a prosecutor called the Kerr Frisbee doctrine, which basically says in a criminal prosecution, US Courts don't second guess the means by which someone was brought to the United States. So that's not really on the table either. So I'm not optimistic that the law is going to provide any kind of remedy here. Even if, you know, you saw action at say, the International Court of Justice in the Hag, that seems like it's at best going to be slow and not especially coercive. The politics, I think, are trickier, not because I have any faith in congressional Republicans, but because congressional Republicans may not be in charge a year from now. And there's no requirement that Congress can only conduct oversight of things that happen during the current Congress. And so I think the question is what happens next and how does that affect the domestic political reality of whether this is popular, of whether it's seen as the bullying sort of cynical thing that it certainly appears to you and me to be. And are there going to be any electoral consequences? Especially Harry, if this is not a one off, especially if we see, as Secretary Rubio appeared to threaten on the Sunday shows.

[Harry Littman]

Right, right.

[Steve Vladek]

That Cuba.

[Harry Littman]

Right, yeah, exactly. We're the new, you know, the new bully in the entire hemisphere. Okay, so I mean, to summarize, I think your ending, which is not rosy because it's not a rosy episode, the real damage may be sort of cumulative and moral, a slow shift, I think, as you put it, toward treating coercive forces just another policy tool. So, you know, I think we're back to. And you end back to where you Started with the notion of does the United States, you know, has it thrown the rule book that out the out the window and become the part of the ordinary League of Nations? And let's just, you know, we're outside both of our bally wicks now, but we, I think we each have a sense and have thought and read about what that means for the world or even more directly for the U.S. the U.S. s interests. We certainly took hits in erosion and credibility post Noriega. Why, if this were complete wild west anarchy, would you have advised, as I think you would have the president not to undertake this mission?

[Steve Vladek]

I mean, I think there are a couple different reasons. The first is the blowback that you potentially invite when it comes to maybe not Venezuela, Harry, but other countries that do have the resources to use force against us. What kind of precedent are you setting for this kind of operation to be perceived as legitimate in the international sphere? The second piece of it is sort of the, the actual harms way into which we are sending our service members and whether that's going to proliferate. You know, it doesn't sound like any service members were killed in Friday night's operation, even though somewhere north of 40 Venezuelans apparently were. But that's not a given. You know, that's a big problem. But I think, Harry, the third piece is, you know, the United States power when it comes to diplomacy is mostly soft power, right? It's the power to persuade, is the power to cajole. It's the power to be able to say, you know, what Putin's doing in Ukraine is wrong because violations of territorial sovereignty are illegal. And when you lose that moral high ground, it's more than just, Harry, a debating flaw, right? It is. You are losing the ability to build consensus with our partners when rogue actors, when other countries do the exact same thing we're doing and say, to quote, you did it too. And you also. And that's the thing that I really find most vexing about all of this, which is it is basically trading away what is left of our credibility and our moral authority on the world stage for what really doesn't strike me as a huge short term or long term payout. And that's what I don't get about this whole operation. It seems petty compared to the costs that I think we're gonna sustain both in the medium and long term.

[Harry Littman]

I think it says it beautifully. Petty, thuggish, and really about domination or possibly oil more than any absolutely essential US interest. But Mike McFaul in his blog had a really strong proclamation like your he was the ambassador in Russia and he was the one who would make these arguments and now they will be scoffed at. And, you know, it's part of a broader argument about the US's, about soft power in the US s place in the world and why that's salutary. But certainly if you look ahead at the kind of chessboard that we now face in the international arena, we can't just hope, as we possibly could have 40 years ago, to, you know, go ahead based on power alone. That's not how it works with China, Russia, et cetera, and all the countries whose good faith in the United States, you know, means so much for our national interest, world interests. Steve Ladic is always really edifying conversation. I think this is one that's going to develop. It'll be interesting to see whether this sort of peters out politically, as you say, you rightly, in your analysis, you know, point to Congress as again, its fecklessness, potent, having the potential for just having the air all leak out of the tires, or there could be a steady drum beat at least for several weeks, even if it's a practical and moral one rather than a legal one. We will see and hope, as always, as things develop, to have the privilege of talking with you. Thanks as always, and until next time. Talk to you later.

[Steve Vladek]

Thanks, Eric.

[Harry Littman]

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