In April, I wrote that Nicolás Maduro was likely to argue that he is immune from prosecution for cocaine importation, weapons possession, and narco-terrorism in U.S. court as Venezuela’s current or former head of state and that such arguments were likely to fail. As expected, Maduro filed a motion to dismiss on immunity grounds in September, as did his wife Cilia Flores.
On October 2, the U.S. government filed its opposition to these motions. The opposition is noteworthy for several reasons. First, the executive branch argues that Maduro’s immunity is governed not just by common law but by “federal common law.” Second, the executive makes a more modest (and plausible) claim for deference with respect to conduct-based immunity than I expected—not “absolute deference” but rather “near-conclusive deference.” Third, the executive articulates factors for determining when the acts of a foreign official are “official acts” entitled to conduct-based immunity, notably whether such acts are illegal under the foreign state’s law.
Maduro’s Motion to Dismiss
The Supreme Court has held that, in U.S. courts, common law governs immunity from criminal prosecution as well as the immunity of foreign officials more generally. There are two kinds of immunity that Maduro might claim. First, foreign heads of state, heads of government, and ministers of foreign affairs are entitled to absolute immunity while in office, even with respect to non-official acts. Second, former holders of those offices, as well as lower-level officials, are entitled to immunity with respect to acts taken in their official capacities, an immunity often called conduct-based immunity. (For much more detail, see my article with Chimène Keitner here.)
Head-of-State Immunity
The U.S. executive branch has not recognized Maduro as Venezuela’s president since 2019. But, in his motion to dismiss, Maduro argues that this is “irrelevant” because under common law and customary international law, “the sovereign status of states and their officials was determined independently by the judiciary based on de facto realities rather than de jure recognition by the forum’s Executive Branch.” He relies heavily on the New York Court of Appeals’ decision in Wulfsohn v. Russian Socialist Federated Soviet Republic (1923), which held that the Soviet Republic was entitled to sovereign immunity because it was the “de facto government of Russia,” despite not having been recognized by the United States.
As evidence of customary international law, Maduro relies on a 2025 decision of the French Cour de Cassation granting head-of-state immunity to Syrian President Bashar al-Assad, despite his derecognition by France. “If personal immunity were to be made conditional on recognition,” the French court reasoned, “the result would be to confer on each State, whether democratic or not, the discretionary power to authorise criminal proceedings in its courts against a foreign Head of State. This would undermine the very substance of personal immunity.” Maduro’s motion echoes this argument. “If the fact that the Executive Branch did not recognize the person as de jure head of state were dispositive,” he says, “sovereign immunity would be nothing more than prosecutorial discretion.”
Conduct-Based Immunity
Turning to conduct-based immunity, Maduro argues that the acts for which he was indicted, “such as issuing diplomatic passports, deploying the military, and announcing Venezuelan foreign policy,” are “official acts he took on behalf of the Government of Venezuela.” The indictment’s allegations that his conduct was unlawful does not defeat immunity. “Any civil or criminal action against a foreign official necessarily challenges the lawfulness of that official’s acts,” the motion notes. “To find that an allegation of unlawfulness renders the official’s conduct inherently private and unofficial would thus eviscerate the immunity.” Whether an act qualifies for conduct-based immunity turns instead, Maduro argues, on whether it is attributable to a foreign state, and he cites the International Law Commission’s 2001 Draft Articles on State Responsibility for the proposition that whether the foreign official may be abusing public power is irrelevant. “These alleged acts,” the motion states, “whether right or wrong, are attributable to the state, such that immunity attaches.”
Deference to the Executive
Finally, Maduro argues that no deference is due executive branch immunity determinations that contravene the common law. Here, he relies on the Second Circuit’s 2024 decision in the Halkbank case, which found it unnecessary to decide whether “deference extends to the Executive Branch’s determination to deny immunity if that determination is in derogation of the common law.” Citing scholarship by Ingrid Brunk, Maduro notes a long line of cases, starting with The Schooner Exchange v. McFaddon (1812), in which U.S. courts have made independent determinations of sovereign immunity. “Sovereign immunity is part of the customary international law that courts have traditionally interpreted and applied,” he notes. “It is the job of Congress, not the Executive Branch, to decide if, and when, to diverge from the law of nations.”
Flores’s Motion to Dismiss
Maduro’s wife, Cilia Flores, retained separate counsel and filed her own motion to dismiss. Flores argues that absolute head-of-state immunity extends to a head of state’s spouse, citing cases such as Kline v. Kaneko (N.Y. Sup. Ct. 1988) and Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah (S.D.N.Y. 2001), in which U.S. courts have held spouses to be immune from suit at the suggestion of the executive branch.
U.S. Opposition
In its opposition, the United States answers Flores’s argument in a one-sentence footnote: “Because Maduro Moros lacks head-of-state immunity, Flores de Maduro has no claim to derivative head of state immunity.”
The U.S. opposition responds to Maduro’s arguments at greater length. It begins by characterizing the applicable law as “federal common law” and arguing that “deference to the Executive Branch was a central feature of that common law.” “[T]he Executive Branch’s determinations are entitled to absolute deference on claims of head-of-state immunity because that immunity is intertwined with the Executive Branch’s exclusive constitutional authority in the recognition of foreign sovereigns,” the government argues, “and near-conclusive deference on claims of conduct-based immunity.”
Head-of-State Immunity
Citing Zivotofsky v. Kerry (2015), the government argues that “[t]he Executive Branch has sole authority to determine who is a foreign head of state” and that immunities from suit flow as an “incident of recognition.” In not a single case has a U.S. court granted immunity to an unrecognized, but de facto, head of state. The government notes that in Kadic v. Karadzic (1995), for example, the Second Circuit held that the de facto president of the Bosnian-Serb republic lacked head-of-state immunity because the executive branch had not recognized him.
The government’s characterization of the governing law as federal common law helps it distinguish Wulfsohn, which is a pre-Erie decision by a state court. Subsequent federal decisions established the President’s authority over recognition even with respect to the Soviet Union, the government notes, pointing to United States v. Belmont (1937) and United States v. Pink (1942).
The 2025 French decision on which Maduro relies is not sufficient to establish the general and consistent practice of states required for a rule of customary international law, the government says. And, in any event, this is not a case in which just one state refuses to recognize a foreign official as head of state—in fact, more than 50 states refused to recognize Maduro as Venezuela’s president following the 2019 election. Not even Venezuela recognizes Maduro as its current head of state, the government’s opposition suggests. In response to a civil suit brought against Maduro and his successor Delcy Rodriguez, Venezuela recently requested head-of-state immunity for Rodriguez, not Maduro, and the State Department filed a suggestion of immunity on her behalf.
Conduct-Based Immunity
With respect to conduct-based immunity, the government articulates three factors for the court to consider: (1) the views of the executive branch; (2) the views of the foreign government, and (3) whether the foreign official’s acts violated the domestic laws of the foreign state.
In contrast to the “absolute deference” that the government claims for executive branch determinations of head-of-state immunity, its opposition asserts that the government’s views on conduct-based immunity are entitled to “near-conclusive deference.” This is a change from prior filings, which have argued that executive determinations are binding for both types of immunity. Why the change? The opposition notes that the Second Circuit’s Halkbank decision referred to the government’s views as a “significant factor” and cited with approval the Fourth Circuit’s decision in Yousuf v. Samantar (2012) giving the government views “substantial weight.” Perhaps the government felt that such deference is sufficient and that insisting upon absolute deference would be pressing its luck.
The government also argues that Venezuela’s failure to assert conduct-based immunity on Maduro’s behalf weighs against such immunity. A speech by Venezuela’s ambassador to the United Nations insisting on immunity, it says, is not the same as a formal request by Venezuela’s government. And “there is no doubt that the current Venezuelan government knows how to request immunity,” the government notes, having requested head-of-state immunity for Rodriguez just a few months ago.
The government’s third argument is perhaps the most interesting: that Maduro is not entitled to conduct-based immunity because the acts charged in the indictment violated Venezuela’s domestic law. As the government’s opposition acknowledges, there is Second Circuit precedent holding that a foreign official’s acts may be entitled to conduct-based immunity even if they violate foreign law. On the other hand, in applying the act of state doctrine, the Second Circuit has said that “acts that flagrantly violate a foreign state’s own laws cannot, at the same time, constitute official acts entitled to deference.”
Assessment
I find much to like in the U.S. government’s filing. First, although the Supreme Court has consistently said that immunity in criminal cases and the immunity of foreign officials more generally are governed by “the common law,” it is hard to see how this common law could be anything other than federal common law. As I have noted before, the need to avoid U.S. violations of customary international law on immunity is the kind of “uniquely federal interest” that the Supreme Court has found sufficient to create federal common law. And only federal common law binds state courts to follow the same rules as federal courts. It is good to see the U.S. government openly acknowledging that “federal common law” must govern these questions.
Second, I am glad to see the executive branch back off its prior claim that courts are bound to follow its determinations of conduct-based immunity. Whereas the president’s Article II power to “receive Ambassadors and other public Ministers” gives him the authority to recognize foreign heads of state (and thus to determine who gets head-of-state immunity), “there is no equivalent constitutional basis suggesting that the views of the Executive Branch control questions of [conduct-based] immunity,” as the Fourth Circuit observed in Yousuf. Yes, the State Department has expertise in the customary international law of foreign official immunity, and for that reason, its views about the scope of conduct-based immunity are entitled to significant weight. But the fact remains that federal common law is judge-made law, and the executive branch cannot dictate either its content or its application.
Third, it is helpful that the executive branch has articulated factors for determining when acts should be considered official acts for purposes of conduct-based immunity. Courts in the United States have considered foreign government statements that their officials were acting in an official capacity. Venezuela’s failure to assert such immunity for Maduro is certainly significant. Whether an official’s acts violated the foreign state’s law is also relevant. “Where the officer’s powers are limited by statute,” the Ninth Circuit has noted, “his actions beyond those limitations are considered individual and not sovereign actions.” Venezuela’s criminal law limits the authority even of its president.
However, there is one thing the U.S. government did not say in its opposition that I wish it had. I wish the government had countered Maduro’s argument that, under international law, conduct-based immunity depends on whether the conduct is attributable to the foreign state. That is wrong. To be clear, the ILC’s Draft Articles on State Responsibility do say that a foreign official’s conduct may be attributable to the state even if the official exceeds his authority. But Article 58 of the Draft Articles expressly states that “[t]hese articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” In other words, attributability does not imply immunity.
Conclusion
Maduro faces an uphill battle on immunity. Judge Alvin Hellerstein previously rejected similar arguments for conduct-based immunity by another defendant in the same case. And it seems highly unlikely that the court will second-guess the executive branch on who is Venezuela’s head of state.
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