Trump Ordered It…But Was Maduro’s Arrest Legal?

Did Trump just rewrite the rules of international law by capturing Nicolás Maduro? 

Gavin Tighe and Stephen Thiele unpack the shocking U.S. operation that saw the arrest of Venezuela’s controversial leader…without war, without permission, and without apology. 

Was it a bold act of justice or a dangerous display of unchecked power?  

Gavin and Stephen break down the legal, political, and historical implications of this high-stakes move, comparing it to past extractions like Noriega and Eichmann, while exploring the murky space between law and enforcement. 

This conversation challenges everything you thought you knew about sovereign immunity, presidential power, and what it really means to be “above the law.”
 
Listen For

:12 Can a superpower legally seize a foreign head of state?
 2:54 Does international law mean anything without enforcement?
 6:13 Has the US done this before and does precedent justify it?
 9:14 Can a president claim sovereign immunity after indictment?
 26:34 Is American military power a dangerous precedent for the world?

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Stephen Thiele (00:00):

He is so powerful in terms of being the president of the United States. The United States is so powerful that they can do whatever they want.

Gavin Tighe (00:10):

They are the law.

Stephen Thiele (00:11):

Yeah, they are the law

Gavin Tighe (00:13):

Hello and welcome to the next episode of Beneath the Law. Gavin Tighe here with my good buddy partner, Stephen Thiele. Stephen, how are you on this very frigid January here in Toronto, Canada?

Stephen Thiele (00:29):

Well, happy New Year to you, Gavin. My hands are better than yours, I guess. Well, one of them. Yeah, don't call me the claw. The claw. I don't know if you ever know you're Maxwell smart. However, your teeth are better than mine. I closed the year on a bad note in a root canal procedure at the end of the year, so that wasn't necessarily fun.

Gavin Tighe (00:55):

Oh, nothing like a good old December root canal. You got to get it in there before your dental benefits expire. Yeah, exactly.You're going to get your root canal, get it done before December 31st, or else you got to have to go a whole new year of lots of fun and fillings, as they say.

Stephen Thiele (01:13):

Well, I'm glad we have a good policy.

Gavin Tighe (01:16):

Having a good policy is very good. We're going to talk today, I guess, about having a good policy. The news cycle in the new year has been completely consumed with the rather astounding developments in Venezuela. And depending on which side of the defense you would be, if some people would say abduction, some people would say apprehension of the ... Well, some people would say the-

Stephen Thiele (01:52):

It was a drug enforcement operation.

Gavin Tighe (01:53):

The opposer, Nicholas Maduro, or some people would say the president, Nicholas Maduro. And really the division and delineation of political stripes has never been starker. And I've seen on this. I mean, I've been flipping back and forth between CNN and Fox News as I want to do because I enjoy so much getting the heads and the tails of the same coin on every story. And just the spin that is placed on the same facts is astounding. So one of the things that's obviously been bandied about is, well, wait a minute here, can they do that? I mean, can they just fly into some country and grab the guy and take off? And he's purportedly the head of state. And can they do that? Is that legal? And I guess the question is, is it?

Stephen Thiele (02:54):

Well, and as you say, it depends what spin you want to put on it or what law you want to rely on. It's not any different than lawyers arguing a case. I'm going to rely on this precedent, the other side's going to rely on a different precedent, and we both believe we're right until a judge makes a decision.

Gavin Tighe (03:17):

Yeah. One of my favorite lines of all time is, I remember, I'd love to take credit for it, but it was an old senior lawyer at the time. I think it was a Yogi Barrow line at the time. He goes to the judge and he says, "You know, Your Honor, it's like what the Yogi Barra says to the umpire in baseball. There's balls and there's strikes, but they're all pitches until you call them." Which is exactly the truth.

Stephen Thiele (03:42):

100%.

Gavin Tighe (03:42):

So I think in this particular instance though, I don't know that there's much of a ... I don't know how much grayer there is in terms of whether this is lawful or unlawful. In the area of international law, it always strikes me, international law always seems so erudite and important. But at the end of the day, law is about power and law and lawsuits and any law, criminal law, civil law is all about the ability to enforce. And enforcement ultimately drives the law. And that's where law gets its power. I mean, where judges have power, frankly, because their rulings are enforced. If judges' rulings weren't enforced because there was nobody to enforce them, if there was no sheriff to enforce judgment, if there was no police officers, if there were no prisons or prison guards, really judges, who cares what they have to say. I mean, ultimately it gets the teeth of any law is its ability to enforce.

(04:52):

And here in international law, I mean, what's anybody going to do about it?

Stephen Thiele (04:56):

Well, and I think that's the important point. So a lot of this, in my view, Gavin, is political noise. The Democrats are arguing with their supporters that President Trump breached international law. He breached the charter of the UN, did not get congressional approval to apprehend President Maduro and his act was illegal. If you're on the Republican side, you're pointing to, "Well, the US Constitution gives President Trump an inherent constitutional power. He's the commander-in-chief of the United States of America. He's obligated to protect the United States of America and Maduro was indicted in 2020. He's a wanted criminal of the United States of America and President Trump decided to use the military to support drug enforcement officers with respect to apprehending someone who is seen as being a criminal to the United States of America.

Gavin Tighe (06:13):

And I mean, we've seen that over and over again in many instances. I mean, there are many political instances of this. Let me put it in a different context completely. I just can't ... So I was things thinking about is when the Israeli forces arrested Eichman, I mean, that was a clandestine snatch and grab in South America, and they brought him to Israel to face trial. It was certainly, there was no authority given to them by, I believe it was in Argentina, but if I remember correctly, by that Argentinian government to allow him to be extradited, it was none of those processes. They went in and they got him and they put him on a plane and they took him back to Israel. That's not all that different than this situation. And that was because he was a wanted criminal who had committed horrific war crimes.

(07:12):

I mean, I don't know if you can compare the two, but I mean, certainly the precedent for a foreign state going into a foreign country to capture a criminal to be brought back to that country for domestic justice is not unheard of.

Stephen Thiele (07:33):

No, and that's a really good precedent arising out of the events that took place after World War II. And my parents, I can tell you, Gavin, I mean, this will be part of the discussion, I guess, in terms of what happened with Venezuela, but my parents were from Germany and it was an occupation. It was an occupation of British Russian and the United States of America running Germany until Germany was determined to be fit to run itself once again. So I'm not sure what we're going to see in Venezuela, but-

Gavin Tighe (08:16):

I think it rolls into your point though. I mean, I think one of the points and the distinction that you hear the Chuck Schumer's of the world screaming and yelling to Congress, Congress. Well, they also never declared war on Venezuela. Venezuela was not an enemy state. They just said that this guy who claims to be the president, whoever we don't recognize as the president, we say he's illegitimate as president. We're not declaring war on the country. We're just declaring that he's a criminal and we're in to grab him and take him and bring him to justice. And interestingly, I will say, and I just picked this up from the media this morning, I think his first appearance was this morning in a New York courthouse. And his legal team, first of all, A, he has a legal team, which is, I think, one of the defining features that you actually do have some due process and rule of law in the United States.

(09:14):

He's entitled to a defense. He has a defense. He has lawyers that are appointed. I think he's got lots of money to pay

Stephen Thiele (09:23):

Them.That's not remarkable in terms

Gavin Tighe (09:26):

Of him having legal cases. But the key defense was, no, you can't touch him because he has sovereign immunity. He's the head of a foreign state, which is a very fundamental aspect of most legal processes that you cannot sue or indict or charge criminally the head of a foreign saint. It's why diplomats oftentimes enjoy immunity in Canada. You'll often see red license plates here in Ontario, for example. Those are generally diplomatic plates. They don't get tickets.

Stephen Thiele (10:02):

Yeah, that you buy for 25 or $30,000, right?

Gavin Tighe (10:06):

Yeah. So I mean, I think that is their first line of defense is to say, "Whoa, whoa, whoa, wait a minute. You have no jurisdiction of him. He's the head of a foreign government. He has sovereign immunity."

Stephen Thiele (10:21):

Yeah, except on the other side, you're going to have the arguments that he's illegitimately the president of Venezuela having taken power and usurped authority under false pretenses. The Manuel Noriega case stands, I think, as a very strong precedent for the United States. And the likelihood, in my view, of that defense being shot down is probably very high, just as the other defenses that are raised for Mr. Murduru are going to be shot down.

Gavin Tighe (10:59):

Yes. I think the Nuyega case from Panama ... I mean, it's interesting that the technology's improved immensely. They had to actually invade Panama to get Noriega. This one, they just did a surgical in and out in the middle of the night.

Stephen Thiele (11:13):

Well, a very surgical with 150 war planes, and I don't even know how many Marines were on the ground, but you're absolutely correct to say that it was surgical. They got in, they did their job. There was no loss of American life whatsoever in terms of the CIA or the FBI or drug enforcement officers or the military. They went in, removed him and his wife. And I'm not sure if the Sun also was taken to the United States.

Gavin Tighe (11:46):

I hadn't heard that, but maybe it's a family affair.

Stephen Thiele (11:51):

Well, apparently it was. But in any event, it wasn't a wartime invasion as we've seen in the past.

Gavin Tighe (12:03):

And that's exactly what the response of the Trump administration has been, was that it was not an act of war, therefore did not require Congress because it was not war on a country. It was the apprehension of a indicted fugitive, and that's precisely the spin that is being placed on it. So really, again, and I do think that there is a bit of whatever we think of Trump. I mean, everything that he does is always cast. That's why I'm laughing about the ... If you watch Fox, it's the most wonderful thing ever. If you watch CNN, it's the worst thing ever. Everything is the first lines of a Dickens novel in American politics these days.

Stephen Thiele (12:52):

Well, but it's the two sides of the coin in any argument.

Gavin Tighe (12:56):

Absolutely. But the reality of it is it's not unprecedented in the slightest. I mean, we were talking about this in a number of ways. Saddam Hussein was another example. Now, they did invade the country and they did declare war on Iraq, and it was a joint task force of all led, but primarily Americans, but there was theoretically an international effort in that regard. Kadafi was another one that I think that comes to mind. I mean-

Stephen Thiele (13:28):

Well, and

Gavin Tighe (13:29):

They killed him. They did kill him. That's

Stephen Thiele (13:31):

Right. And Hussein ended up dead too.

Gavin Tighe (13:33):

Osama bin Laden is another one that was- Bin Laden is. That was certainly crowed about as a great achievement that they killed Bin Laden.

Stephen Thiele (13:47):

They made a movie about that.

Gavin Tighe (13:48):

Yeah. I mean, the history of the United States disposing of leaders who oppose it is long and storied.

Stephen Thiele (14:00):

Well, I think it's more than just opposing the United States of America. I mean, in many of those examples, we're talking about leaders, elected leaders or dictators who are running their countries who have actually used their nations to commit crimes on US soil. And in this regard, that's exactly what Maduro is accused of, that he was running cocaine, using his position in government, training militia to basically use Venezuela as a criminal country and supporting crime.

Gavin Tighe (14:49):

Well, wasn't he a cartel leader before he was the president?

Stephen Thiele (14:52):

I thought he was a bus driver, but I don't

Gavin Tighe (14:55):

Know. Well, I thought he was in a cartel or a cartel leader or-

Stephen Thiele (14:59):

No, no. He supposed to be a cartel of the suns or something. Cartel of the sons.

Gavin Tighe (15:04):

Okay, whatever. Yeah. I mean, look, spinning it back to the technical issue, I suppose that the act of the United States technically was a breach of the UN charter and that it was not in any way refraining from threat or use of force against the territorially integrity of a politically independent state. They certainly did that. But then again, the UN again is again, a bit of a toothless tiger, particularly ... Sorry to bring up the dental analogies. I know you're-

Stephen Thiele (15:41):

Thanks, Gavin. Yeah. Well, I think I've got my last pill of amoxicillin there.

Gavin Tighe (15:48):

You think some Ativan there or something. But the reality of it is, in terms of the UN, the US has a veto anyways.

Stephen Thiele (15:58):

Exactly.

Gavin Tighe (15:59):

So if they could pass all the resolutions or try to pass all the resolutions that they want and be like, "Veto, that'd be the end of that. " I mean, the United States can't be sanctioned by the United Nations. It is the United Nations.

Stephen Thiele (16:13):

And the last time I looked, the United Nation doesn't have an army to enforce anything.

Gavin Tighe (16:19):

We come back again. The tiger is only the tiger if it has the teeth. So the law needs enforcement. The law is the organ of the state, and it's the power of the state that gives the law its meaning. And unless and until there is enforceability of any kind of a sanction, to be blunt, other than what I will call the usual suspects, I don't think there's been huge outcry of international condemnation.

Stephen Thiele (16:51):

Well, are you talking about the usual suspects who go in and invade other countries?

Gavin Tighe (16:57):

Well, yeah, the usual and their friends. I mean, I think you've got several of the potential targets of the next extraction efforts are bewailing and bemoaning the fact that the US has done this. But really, I come back to, what are you going to do about it? What is anyone going to do about

Stephen Thiele (17:22):

It? No, but look, in reality, and Canada's one of the countries, we did not recognize Maduro as the legitimate leader of Venezuela. And for all we want to say from an international law perspective, nobody's saying that Putin is not the legitimate leader of Russia. Well, some people are.

Gavin Tighe (17:48):

Didn't get like 99% of the vote and anyone who ran against him just happened to fall out of a plane.

Stephen Thiele (17:56):

Yeah, but look, I don't see Russia as being a threat from a criminal perspective to the United States of America. Russia has its goals and its regime and its political leanings just as China does. But they're not necessarily ... Russia anyway is certainly not running drugs or cocaine into the United States of America as far as I'm aware. And certainly Putin has not been indicted in the United States of America.

Gavin Tighe (18:31):

No, no. No, he has not. And I mean, look, there's no doubt that Maduro is a kind of a rogue leader who was of questionable or certainly dubious legitimacy. And as you've mentioned, he was not recognized as the legitimate leader by any number of states, including Canada, and I think most of the G7. But when it happened, I have to say I was shocked, but then not really. I mean, it was okay. It ramped up pretty fast. I think that the larger issue is sort of now what? Now what? Now what? The United ... I mean, Trump is saying the US is going to run Venezuela. Really? Well, yeah, but what does that mean? Well, they don't have an occupying army in there. And my understanding is they don't intend to have one.

Stephen Thiele (19:28):

Well, it would take, from what I saw, it would take 200,000 to 250,000 troops to run Venezuela. That would be absurd.

Gavin Tighe (19:38):

Yeah. Disastrous. Although it's certainly been done in other smaller venues, Panama, Grenada. I mean, the United States has been- Yeah, but Grenada's

Stephen Thiele (19:50):

An island.

Gavin Tighe (19:53):

Not a very big one. Nice weather there too though. I mean, who knows? I mean, and then there's also, if you listen to Trump's speech, this was almost a reclamation effort on his ... What he was saying was, we're going to get back all of the oil assets that were stolen from us. They're ours. We built them. We are going to repo them. I mean, is this the world's largest repo job ever in terms of repossessing assets, physical industrial assets that the United States or American corporations claim to be their property?

Stephen Thiele (20:39):

Well- And

Gavin Tighe (20:39):

Where does that stop?

Stephen Thiele (20:41):

Well, that's certainly quite the self-help remedy.

Gavin Tighe (20:45):

Well, it's a repo job, that's for sure. But it's an interesting situation. Here we have him. He's indicted on strange indictment, but cocaine, conspiracy to traffic and cocaine, and then possession of machine guns. Okay, well, wouldn't that be every country in the world would theoretically be possession of machine guns? I suppose the army would have one,

Stephen Thiele (21:15):

But- Well, I think the narco terrorism is probably the most significant of all those charges. I'm not sure in terms of, I guess the machine guns come into play in terms of threatening the sovereignty of the United States of America. I'm not sure how that quite plays out, but that's one of the charges against Maduro. That was part of the indictment in 2020.

Gavin Tighe (21:39):

Right. But it'd be curiously, for let's say a state that nationalized assets, we've certainly seen that before in many, many other states, that would be theoretically theft, wouldn't it? And could you be indicted for that? And then could you be captured and brought to trial in the United States if you nationalized American assets?

Stephen Thiele (22:07):

I don't know. We certainly haven't seen that yet. So I suppose theoretically that's possible.

Gavin Tighe (22:13):

Well, read between the lines of what Trump had to say in his speech announcement, it seemed to me that he was basically saying, "Yeah, they stole our stuff and we're coming, we got in it

Stephen Thiele (22:23):

Back." Again, to me, that's a lot of potentially political noise, but look, I think certainly companies have had an interest in Venezuela for a long time. They lost their interest. I guess President Trump, they found favor in President Trump to protect that interest. But President Trump has been taking a very, very hard stance, as we know, with respect to drugs coming into the United States of America, and that's been part of his issue even with respect to Canada in terms of fentanyl. So Maduro is a charge with narco terrorism and was a criminal of the United States of America and the United States of America decided to capture him, arrest him, and bring him to justice in the United States. And overall, in my view, Gavin, I don't see anything wrong with that.

Gavin Tighe (23:32):

Look, I don't disagree in this instance. I have to admit that I'm kind of on the fence on all of it because

Stephen Thiele (23:41):

We- The use of force may have been a little bit extreme or unreasonable, I suppose, in terms of the view could be that one might have is that it was too much force that was used, but at the end of the day, maybe the use of force was legitimate or that was the force that was required in order to extract him from Venezuela.

Gavin Tighe (24:08):

Yeah, no, I expect that it was. I mean, I guess the larger question that I have that I struggle with, I'm not necessarily adverse to the suggestion of this particular individual given in these particular circumstances.What I am more troubled about is this notion that American military might can be used in any way they choose to basically take out or anyone that they don't like, I mean, for whatever reason. I mean, I think they had legitimate grounds with respect to Majora. Maybe we'll find out if there's going to be a trial, presumably it'll be a very open trial and evidence and et cetera. We'll see if there's grounds or not. I mean, a charge is a charge. There's an old saying, you can indict a ham sandwich. I mean, getting an indictment is like, who cares? Anybody can get an indictment. You put a grand jury in there, they hear one side of the story.

(25:09):

Yeah, Richard an indictment. Big deal. Yeah.

Stephen Thiele (25:11):

Well, I mean- My understanding from the evidence is you've got 200 to 250 metric tons of cocaine are being produced out of Venezuela annually and being shipped around the world.

Gavin Tighe (25:26):

And that's the allegation. And if it's proven in court, you'll get convicted. So I mean, but I'm saying an indictment is not proof of anything. And certainly in terms of Maduro, I suppose he's just like any other accused, he's entitled to a presumption of innocence until he's proving guilty at a trial. But I wonder where does this go with the United States? I mean, that's certainly ... The guy who I thought was the most chilling from where I sat was Hegseth who got up there and said, "There's a new sheriff in town and you better watch out and we can come and get anyone we want anytime we want. " He literally said that. And it was like, wow. So anyone who kind of opposes US action, any leader at any time, they could do whatever they ... I mean, it is troubling to a large extent that the basic message is we've got more guns, a more powerful military, we could do whatever the hell we want, and what are you going to do about it?

(26:34):

And the truth of the matter is nothing. Nobody can do anything.

Stephen Thiele (26:37):

You're right. Look, and Gavin, I got to tell you, I mean, I look at it from the perspective of the United States has always been looked upon, or certainly after World War II as the protector of the world

Gavin Tighe (26:54):

With

Stephen Thiele (26:54):

Respect to- And I think they

Gavin Tighe (26:56):

Have been. Of course they have. Look, they're a very benevolent Goliath. As far as Goliaths go, they're pretty good. In the history of the world, there has never been a more benevolent superpower than the United States.

Stephen Thiele (27:11):

And I think we won't disagree that President Trump has a tough on crime approach as part of his beliefs and his values and the values of the Republican Party and the values of conservatives in general are tough on crime. And if we look at what's going on around the world, about a month ago, we had ISIS Sells attacking US troops in the Mid-East again. So President Trump is saying, "Look, you want to pick on the United States and carry out criminal activities, we're not going to take it and we're going to fight back and here we are fighting

Gavin Tighe (27:59):

Back." Yeah. Well, I think the message is received loud and clear. And I also think it's very interesting that I haven't seen a very aggressive or loud or response from China who was theoretically the great ally of Venezuela and the great ally of Maduro and was the, as I recall, the consumer of the majority of its oil experts. So that's curious in the geopolitical world we live in right now. I wonder what that ... I have some inkling that the attack on Maduro was not unrelated to the recent sort of escalation of aggression in respect of Taiwan with China. I think there was a message to be sent to China too, that we're not messing around.

Stephen Thiele (29:01):

Well, perhaps. I mean, my understanding is Venezuela has a lot of oil reserves, but really doesn't produce a lot of the world's oil. It's like a very minute percentage.

Gavin Tighe (29:14):

No, no, no, but China was their biggest customer.

Stephen Thiele (29:16):

I see. Okay. And I think

Gavin Tighe (29:17):

It did buy a fair chunk of Venezuela's oil.

Stephen Thiele (29:22):

What is curious for me, and I don't know if you recall this, but will this act of the United States embolden people like bounty hunters? And do you remember the bounty hunters who kidnapped Sid Jaffe in Toronto? Like this is going back 35 or 40 years ago from the streets of Toronto and tried to bring them to the United States of America. Will that embolden ... I don't think, what is it? Dog the bounty hunter. Dog the bounty hunter. That's

Gavin Tighe (29:55):

Just looking up.

Stephen Thiele (29:56):

I'm getting my mullet cut next week.

Gavin Tighe (30:00):

There's good money in

Stephen Thiele (30:01):

That. But will that embolden people to come into other countries and try and take out people who are wanted, trying to escape US justice and just snatch them from the streets instead of going through the extradition processes? We want a dead or live.

Gavin Tighe (30:19):

Here we come. We're back to the old post office days. Anyways, never a dull moment in this day and age as the news cycle escalates. I suspect, and I suspect that this will not be the last apprehension by the United States of leaders who they are of the view are adverse to their interests and/or deleterious to the Unitited States in any way. And I think if I were, I don't know, the leader of Cuba, I might be sleeping a little less easy than I was last week.

Stephen Thiele (31:02):

Yeah, so I agree with you and we'll see what happens. I think the media is really happy because everybody's tuning in. And we're happy too here. Well, that's right.

Gavin Tighe (31:19):

This always reminds me of our catchphrase, which is if no one is above the law, then everyone is beneath it. Except if you have a SWAT team, MI5, aircraft carriers, jet planes, Navy SEALs, then you can do whatever the heck you want. Thanks for listening. Great conversation as always. And Stephen, hope to see you again next time.