Head-of-State Immunity in U.S. Courts: When Law Trumps Facts
In March 2020, then-Attorney General William Barr announced criminal charges against Nicolás Maduro and fourteen alleged co-conspirators for narco-terrorism, corruption, and drug trafficking. Maduro was elected President of Venezuela in 2013 and subsequently claimed victory in disputed elections in 2018 and 2024. The Acting Administrator, Uttam Dhillon, of the Drug Enforcement Administration (“DEA”) characterized the indictments as a warning: “Today’s actions send a clear message to corrupt officials everywhere that no one is above the law or beyond the reach of US law enforcement.” On January 3, 2026, the US military carried out an operation to seize Maduro and bring him and his wife to the United States for trial. As of this writing, Maduro and his wife Cilia Flores are facing trial in New York.
The superseding indictment refers to Maduro as the “de facto but illegitimate ruler” of Venezuela. That is because sitting foreign heads of state cannot be sued or prosecuted in US courts. Under both international law and US law, this status-based immunity attaches to the office, not the individual. Consequently, if the individual is not a sitting head of state, then status-based immunity does not apply. Moreover, under US law, the President’s decision about who to recognize as a foreign head of state binds courts, even though it might not correspond to existing facts.
Part II of this Essay reviews the international law governing head-of-state immunity. Part III turns to US practice regarding head-of-state immunity from civil and criminal proceedings in US courts. Part IV considers some implications of the current US approach. While the United States has not yet initiated or endorsed legal proceedings against a foreign head of state without denying that individual’s claim to head-of-state status, the Executive Branch’s approach in the Maduro case stretches the bounds of judicial deference to Executive Branch determinations and opens the door for other countries to question US Presidents’ status based immunity.
Recommended Citation: Chimène I. Keitner, Head-of-State Immunity in U.S. Courts: When Law Trumps Facts, 49 Fordham Int'l L.J. 1133 (2026).