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The Narcoterrorism Case Against Maduro · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 2: As federal prosecutors are pushing forward with a broad drug
0:13
Speaker 2: trafficking and narco terrorism conspiracy case against ousted Venezuelan leader
0:19
Speaker 2: Nicolas Maduro. President Trump discussed the case during a cabinet
0:24
Speaker 2: meeting on Thursday.
0:26
Speaker 3: Was a major purveyor of drugs coming into our country.
0:30
Speaker 3: And he's now been captured, and you know, I guess
0:35
Speaker 3: be given a fair trial, but I would imagine there
0:39
Speaker 3: are other trials coming because they have just they've really
0:43
Speaker 3: suit him, just an affraction of the kind of things
0:45
Speaker 3: that he's done. Other cases are going to be brought.
0:48
Speaker 2: As you probably know, Maduro is already facing stiff prison
0:53
Speaker 2: time if convicted. The narco terrorism carries a twenty year
0:57
Speaker 2: mandatory minimum sentence. My guest is a Lumdar Hamdani, a
1:02
Speaker 2: partner at Bracewell and the former US Attorney for the
1:05
Speaker 2: Southern District of Texas. The narco terrorism statute is rarely used.
1:11
Speaker 2: Tell us about it.
1:12
Speaker 1: The narco terrorism Statute requires the government to prove that
1:16
Speaker 1: the defendants conspired to engage in conduct, first of all,
1:21
Speaker 1: punishable under normal narco statute. It's called section eight forty
1:26
Speaker 1: one A, and that is the distribution of, for example,
1:29
Speaker 1: over five kilograms of a certain substance like cocaine, and
1:33
Speaker 1: knowing and intending to provide directly and indirectly. And this
1:37
Speaker 1: is what makes Naco terrorism different. Something of pecuniary value
1:41
Speaker 1: to a group that's engaged in terrorist activity. So you know,
1:46
Speaker 1: normally it's been used, for example, to go after groups that,
1:51
Speaker 1: for example, have supported the FARC, which is a Colombian
1:55
Speaker 1: designated terrorist organization. And you know, it's it's really used.
2:00
Speaker 1: Is the statute that's not used that much. When I
2:03
Speaker 1: was the US Attorney for the Southern District of Texas,
2:06
Speaker 1: we had four hundred miles of border with Mexico. I
2:08
Speaker 1: had probably the largest team of cartel prosecutors, and that
2:12
Speaker 1: statute is rarely used, probably because of a couple of reasons.
2:16
Speaker 1: You've got two additional layers of complexity that deal with
2:21
Speaker 1: the Knocko terrorism statute. First of all, you've got to prove,
2:24
Speaker 1: of course, as a drug conspiracy, and the larger the organization,
2:29
Speaker 1: the higher up the organization, proving that becomes incredibly complex.
2:33
Speaker 1: And add to that the additional complexity of charging somebody
2:39
Speaker 1: with providing some sort of pecuniary interest to a terrorist
2:43
Speaker 1: group or group engaged in terrorist activity. And I spent
2:46
Speaker 1: most of my career in national security chasing terrorists, and
2:50
Speaker 1: I can tell you just the run of the mill
2:53
Speaker 1: material support to terrorism statutes themselves are complicated. So it
2:57
Speaker 1: is a statue that is complex, has a lot of
3:02
Speaker 1: complexities in being able to prove, but is also incredibly powerful.
3:07
Speaker 2: Is there a reason why you think the administration chows
3:10
Speaker 2: narco terrorism charges here?
3:13
Speaker 1: You know, I think it is, and I think it's
3:14
Speaker 1: just to make sure that they have several different options
3:18
Speaker 1: as it relates to somebody's high profile of course, as
3:23
Speaker 1: Maduro and his wife and his son, right, and several
3:26
Speaker 1: higher people within the government, you know, as a prosecutor,
3:30
Speaker 1: one of the things we're going to do is try
3:32
Speaker 1: to bring, of course charges that follow the facts and
3:36
Speaker 1: the law, but I'm going to give myself many options
3:38
Speaker 1: when charging, especially somebody's high profile. Is this So what
3:41
Speaker 1: you've got is you've got the traditional drug conspiracy statutes,
3:45
Speaker 1: which on its face should be you know, relatively simple
3:49
Speaker 1: to prove, although like I said, complex to hire you
3:51
Speaker 1: go up a chain. You've also got a couple of
3:55
Speaker 1: weapons statutes. One of them is pretty powerful. It's one
3:58
Speaker 1: that is a thirty year minimum one that relates to
4:00
Speaker 1: machine guns. And the reason I believe they added on,
4:03
Speaker 1: of course, the narco terrorism statute was for two reasons.
4:06
Speaker 1: First of all, give themselves a second option when dealing
4:09
Speaker 1: with somebody like a Maduro. But also it's part of
4:13
Speaker 1: the narrative. It's part of the narrative of the indictment. Now,
4:16
Speaker 1: this indictment is what you call a speaking indictment, So
4:19
Speaker 1: it's one where the prosecutors have said, let me tell
4:21
Speaker 1: you a story. And the reason they do that is,
4:24
Speaker 1: of course, first of all, to tell the public what's
4:28
Speaker 1: going on. Secondly, to deter others from doing what happened here,
4:32
Speaker 1: but most importantly, to let Maduro and his co defendants
4:36
Speaker 1: know this is what we have, right and this is
4:38
Speaker 1: what you're facing.
4:39
Speaker 2: So what do they have? What do you know that
4:41
Speaker 2: they have from the indictment.
4:43
Speaker 1: So from the indictment, there's many different things that you
4:46
Speaker 1: see here. First of all, you see a decades long
4:49
Speaker 1: conspiracy as it relates, let's say, first of all, to drugs.
4:54
Speaker 1: You've seen tons of drugs being exported out of Venezuela
5:00
Speaker 1: through Colombia to other parts of the world, including the
5:03
Speaker 1: United States. You've got people high within the Venezuelan government
5:08
Speaker 1: involved in this, including and this is important in prior
5:12
Speaker 1: in Diamonds. They had two other defendants that were charged
5:15
Speaker 1: and they pled guilty, one in June of twenty twenty
5:18
Speaker 1: five and one in two and twenty three. And so
5:21
Speaker 1: what that tells you is the government itself has a
5:25
Speaker 1: case built upon not only, of course documentary evidence, but
5:28
Speaker 1: also some very high level cooperatives. And then what makes
5:32
Speaker 1: this endement very interesting is how they lay out the
5:36
Speaker 1: rise of Maduro over those decades and how he used
5:41
Speaker 1: his power his office to not only of course enrich himself,
5:46
Speaker 1: enrich his family, but also enrich several cartels that have
5:51
Speaker 1: not been designated as foreign terrorist organizations. One of them,
5:54
Speaker 1: of course we talked about earlier, was the FARC. The
5:56
Speaker 1: other one you've got trend de Agua, which is of
5:59
Speaker 1: course based in Venezuela. You've also got the Zettas out
6:03
Speaker 1: of Mexico, which it also names. And so you know,
6:06
Speaker 1: what you have with this indictment is a story about
6:11
Speaker 1: a man who rose up over the decades, used his
6:15
Speaker 1: growing power and influence to enrich himself, who cared not
6:20
Speaker 1: about the drugs that were leaving his country and in
6:23
Speaker 1: fact invited that to also enrich himself. You saw a family,
6:27
Speaker 1: at least according to the indictment, that was equally as corrupt.
6:31
Speaker 1: And then finally, what I found interesting in this indictment
6:35
Speaker 1: is beyond all the other things I've just talked about, right,
6:38
Speaker 1: is that the government questions the legitimacy of Maduro as
6:43
Speaker 1: a leader. And they talk about the twenty twenty four election,
6:48
Speaker 1: which he lost, but he claims he won and he
6:51
Speaker 1: Hence what they do is say because he's an illegitimate leader.
6:55
Speaker 1: I think the implication is later on, if his defense says, well,
6:59
Speaker 1: we have immunity, we have diplomatic community because he is
7:03
Speaker 1: the leader of a state, the government's response is going
7:06
Speaker 1: to be, no, he isn't. He is the illegitimate leader.
7:09
Speaker 1: He calls himself one, but he is not one.
7:12
Speaker 2: There was an executive order that declared drug cartels as
7:16
Speaker 2: foreign terrorist organizations? Does that cut with two wide a swap?
7:22
Speaker 1: On February twentieth, Secretary of State then declared not all cartels,
7:26
Speaker 1: but eight cortels in Mexico as foreign terrorist organizations, including
7:32
Speaker 1: for example, Cartel del Noroeste, the Sinaloa Cartel, the Hellisco
7:36
Speaker 1: New Generation Cantel also known as CJNG, and the Gulf Cartel.
7:42
Speaker 1: Those are the four big cartels in Mexico, and if
7:44
Speaker 1: you were to Mexico, they run swaps of Mexico. In
7:47
Speaker 1: addition to that, the Secretary of State also designated Frenda
7:51
Speaker 1: Agua out of Venezuela as one of the cortels as
7:54
Speaker 1: foreign terrorist organizations. And I'll tell you this the one
7:58
Speaker 1: thing about cartels that I learned, especially as the US Attorney.
8:01
Speaker 1: I remember I used to get up in front of
8:03
Speaker 1: cameras when I was announcing charges against cartel members. I mean,
8:06
Speaker 1: it was a very important thing to do, and I
8:08
Speaker 1: would say, I would say, my goal is to disrupt
8:12
Speaker 1: and dismantle the cartels. But I also understood that once
8:17
Speaker 1: we cut off the head of a cartel, another one
8:20
Speaker 1: would grow. Whatever you think about this administration, it's designation
8:26
Speaker 1: of cartels, which I would argue or organizations only held
8:30
Speaker 1: built on one thing, and that is to get as
8:32
Speaker 1: much money as they can at the expense of anything,
8:35
Speaker 1: at the expense of lives of public officials, of police
8:39
Speaker 1: of innocent people. They will do it just to get
8:42
Speaker 1: an extra dollar.
8:43
Speaker 4: You know.
8:44
Speaker 1: And so I would argue that designating as foreign terist
8:48
Speaker 1: organizations may may help up the one source of lifelines
8:54
Speaker 1: that they have, the blood that runs through their veins,
8:56
Speaker 1: and that is money. And so if organizations, if companies,
9:00
Speaker 1: for example, say I cannot hire this company in Mexico
9:04
Speaker 1: because this company I'm hiring is related to the cartels,
9:08
Speaker 1: and I could be charged. My organizations could be charged
9:12
Speaker 1: for providing material support to terrorism. And you know, I'll
9:15
Speaker 1: give you a great example. In twenty twenty one, a
9:20
Speaker 1: company called LeFarge out of France was the very first
9:25
Speaker 1: and the only company so far that has pled guilty
9:28
Speaker 1: to providing material support to terrorism. What it did is
9:31
Speaker 1: it went to Syria a decade earlier and tried to
9:35
Speaker 1: work with Syria, and within there they had this hire
9:37
Speaker 1: isis as their security. Anyway, in the one year they
9:41
Speaker 1: worked in Syria, they made seventy million dollars in revenue.
9:45
Speaker 1: When they pled guilty, they paid a seven hundred and
9:48
Speaker 1: seventy eight million dollar fine. It was a company defining charge.
9:53
Speaker 1: And so a long way to say this, companies that
9:56
Speaker 1: provide assistance to cartels. Unnotice that they could be facing
10:03
Speaker 1: the charges of providing material support to terrorism. So the
10:07
Speaker 1: argument I think is this is another incredibly powerful way
10:12
Speaker 1: to maybe finally disrupt and dismantled cortels.
10:15
Speaker 2: In the initial twenty twenty indictment of Maduro, there was
10:20
Speaker 2: a claim that he was the leader of the Cartel
10:22
Speaker 2: de la Solos, but that allegation is missing from the
10:26
Speaker 2: current indictment.
10:29
Speaker 1: So in the current indictment they talk about the Cartel
10:32
Speaker 1: de la Solos the Cartels of the Sun, which is
10:35
Speaker 1: an organization in Venezuela that really involved the higher military
10:40
Speaker 1: part of Venezuela. But you're right when it comes to
10:43
Speaker 1: the drug trafficking activity and tying it to a terrorist
10:49
Speaker 1: group or terrorist activity, they really focus on trender Agua,
10:54
Speaker 1: the FARC, which is that Columbian terrorist organization, and a
10:57
Speaker 1: couple of Mexican cartels. They mentioned the Cartel de la Solos,
11:02
Speaker 1: but they don't mention it in that Vein Interestingly, though,
11:06
Speaker 1: June in November of last year, which I found to
11:09
Speaker 1: be interesting, the Secretary of State declared the Cartel del
11:12
Speaker 1: Solos a foreign terrist organization, And so you know, I
11:16
Speaker 1: don't know if that was done in anticipation of this
11:19
Speaker 1: indictment coming down in January, but that is an interesting
11:22
Speaker 1: thing that the Secretary of State has done. I think
11:25
Speaker 1: it's another indication for companies and for those doing business
11:29
Speaker 1: in Venezuela stay away, of course from the Mexican cartels
11:32
Speaker 1: and trend Agua, but also stay away from Cartel de
11:35
Speaker 1: la Solos.
11:36
Speaker 2: Stay with me coming up next, Why the judge refused
11:39
Speaker 2: to dismiss the case against Maduro. I'm June Grosso and
11:43
Speaker 2: this is Bloomberg. Ousted Venezuela and leader Nicolas Maduro and
11:49
Speaker 2: his wife appeared in a Manhattan federal court Thursday, as
11:53
Speaker 2: the US is pushing forward with a broad drug trafficking
11:57
Speaker 2: and narco terrorism conspiracy case against him. Prosecutors claimed that Maduro,
12:03
Speaker 2: who was seized by the US military on January third,
12:07
Speaker 2: played a key role in a conspiracy to traffic cocaine
12:11
Speaker 2: in the US. They also allege that he and others
12:14
Speaker 2: partnered with groups designated by the US as foreign terrorist organizations,
12:20
Speaker 2: and that he sought to enrich himself while serving in
12:23
Speaker 2: government more than a quarter of a century. An early
12:26
Speaker 2: flashpoint in the case is that Maduro claims the US
12:30
Speaker 2: is preventing him from receiving money from the government in
12:33
Speaker 2: Caracas to pay his legal defense. I've been talking to
12:37
Speaker 2: a former US attorney, Alumdar Hamdani, tell us what the
12:42
Speaker 2: prosecution would have to prove to get a jury to
12:45
Speaker 2: return a conviction on the narco terrorism charge.
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Speaker 1: You know, if I'm preparing my case against Maduro in
12:55
Speaker 1: this endement, I'm gonna be looking at a couple of things.
12:56
Speaker 1: First of all, like I said, I've got to prove
12:59
Speaker 1: that only does Maduro and the other five co defendants
13:03
Speaker 1: part of a large drug conspiracy, but I've also got
13:07
Speaker 1: to prove that that drug conspiracy financially benefited terrorists and
13:13
Speaker 1: terrorist activity. And so as a prosecutor, I am looking
13:17
Speaker 1: at several things. First of all, I'm going to be
13:19
Speaker 1: looking at witnesses. Those are going to be the biggest
13:22
Speaker 1: part of my case, because how do I get into
13:24
Speaker 1: the head of a Maduro. How do I get into
13:27
Speaker 1: the head of Maduro's wife and his son and others
13:30
Speaker 1: high up in the government. The best way I can
13:33
Speaker 1: do that is through the testimony of cooperators. That, of course,
13:38
Speaker 1: also brings itself a whole host of risks. And in
13:41
Speaker 1: this case, I talked about two former co defendants pleading guilty,
13:45
Speaker 1: which is good for the government but also adds a
13:49
Speaker 1: layer of risk for the government. If I'm the defense,
13:51
Speaker 1: what I'm going to be doing is really concentrating on
13:54
Speaker 1: those two former co defendants and the deals they got,
13:57
Speaker 1: and then really harping on the fact that you know,
14:00
Speaker 1: they were also part of the drug activity, and so
14:02
Speaker 1: why should we believe them in what they're saying. They're
14:04
Speaker 1: just trying to save themselves. In addition to that, because
14:08
Speaker 1: this is, you know, a foreign jurisdiction, my guess is,
14:12
Speaker 1: and I do not know this, but my guess is,
14:13
Speaker 1: there are, of course foreign wire taps. They're going to
14:17
Speaker 1: have to be that only looked at, but also protected
14:20
Speaker 1: if need be. My guess is the Central Intelligence Agency
14:23
Speaker 1: is probably very active and has been active in that area.
14:26
Speaker 1: So there's going to be sources that I may use
14:29
Speaker 1: if the CIO will let me, and if not, I
14:32
Speaker 1: have to figure out how to protect. And those are
14:34
Speaker 1: the added complexities of dealing with especially national security issues.
14:39
Speaker 1: You know, if I'm a prosecutor, what I'm looking at
14:41
Speaker 1: is two things. First of all, how do I make
14:43
Speaker 1: my drug case I got that. Secondly, how do I
14:47
Speaker 1: tie him to terrorist activity? Okay, I got that, And
14:50
Speaker 1: there's another account that talks about machine guns. I think
14:53
Speaker 1: I'm pretty good by proving that he had machine guns.
14:56
Speaker 1: But the other part that gives me heartburn when I
14:58
Speaker 1: stay up at night is what else is all out there?
15:02
Speaker 1: For example, you know, is there information in the CIA's
15:05
Speaker 1: files that I've not seen? Is there information in the
15:08
Speaker 1: NSA's files I've not seen? Is there information that a
15:11
Speaker 1: foreign government provided to us that I've not seen as
15:14
Speaker 1: a prosecutor, And how is that going to affect my case?
15:17
Speaker 1: And if it, for example, helps the defense, that I
15:20
Speaker 1: have a constitucial obligation to provide that to the defense,
15:24
Speaker 1: And how do I provide that and still protect sources
15:27
Speaker 1: and methods And those are all the different things I'm
15:29
Speaker 1: thinking of as a prosecutor as I walking through this case.
15:32
Speaker 2: There have been very few convictions in the twenty year
15:35
Speaker 2: history of the Narco Terrorism Statute. So do you think
15:40
Speaker 2: this is an uphill battle for prosecutors.
15:43
Speaker 4: Yeah?
15:43
Speaker 1: I think generally in a case like this, it is
15:47
Speaker 1: always going to be a sophisticated, complex case, which makes
15:52
Speaker 1: it difficult. Right if I'm a prosecutor, but you know,
15:55
Speaker 1: on all the terrorism cases I prosecuted, I can tell
15:59
Speaker 1: you going I knew they were difficult, even though the
16:02
Speaker 1: facts may be simple, because I'm dealing with issues, you know,
16:06
Speaker 1: like terrorists, I'm dealing with classified issues. There's complexities that
16:10
Speaker 1: are already built in. So that's the kind of case
16:12
Speaker 1: the prosecutors will have now in their endeement, they were
16:15
Speaker 1: careful to name several different terrorist groups, foreign terrorist organizations
16:20
Speaker 1: in fact. And one thing that's I think company if
16:23
Speaker 1: I'm a prosecutor in this statute is I do not
16:26
Speaker 1: have to prove that Maduro financially benefited or financially helped
16:31
Speaker 1: a foreign terrorist organization like the ones we talked about earlier,
16:35
Speaker 1: but just that his dealings in cocaine, for example, financially
16:40
Speaker 1: benefited terrorist activity. Now, the reason I mentioned foreign terrorist
16:44
Speaker 1: organizations because to a jury, that's a simple leap to make.
16:47
Speaker 1: If I'm talking about trend de Aguar and it is
16:50
Speaker 1: already designated as a foreign terrorist organization, then it's a
16:53
Speaker 1: small leap to make for me to say and because
16:57
Speaker 1: that cocaine activity benefited that organization than it benefited terrorist activity,
17:02
Speaker 1: and the easiest one, of course, is the Fark because
17:05
Speaker 1: of its proximity to Venezuela, the next door neighbor in Colombia.
17:09
Speaker 1: So as a prosecutor, this is going to be a
17:12
Speaker 1: long trial. It's going to be one where the defense
17:15
Speaker 1: is really going to attack the credibility of the witnesses
17:17
Speaker 1: I've put up to corroborate the evidence I have. But
17:21
Speaker 1: it's one that I'm going to be ready for. And
17:23
Speaker 1: in this case, unlike many districts, the Southern dishrit of
17:26
Speaker 1: New York has an embarrassment of riches and really good prosecutors.
17:31
Speaker 1: But also because unlike the Southern District of Texas, where
17:35
Speaker 1: that district had more indictments than any other district in
17:39
Speaker 1: the country. And why is that Because there's so many
17:41
Speaker 1: immigration crimes and low level drug crimes that come across
17:44
Speaker 1: that border. So because of that, the prosecutors I had
17:47
Speaker 1: were usually either one or two on a case. It's
17:50
Speaker 1: tough to put more than two people in a case,
17:52
Speaker 1: even a complex case. In the Southern District of New York.
17:55
Speaker 1: There are four assistant US attorneys on this case. That
17:58
Speaker 1: tells you something, that tells you that this office has
18:01
Speaker 1: dedicated four of its best prosecutors onto this case, and
18:05
Speaker 1: so you know, again it's one that's not insturmentable. It's
18:08
Speaker 1: one that's going to be always tough, and it's one
18:10
Speaker 1: to if I'm the defense counsel, that I'm always going
18:13
Speaker 1: to be worried about.
18:14
Speaker 2: Maduro was expected to mount several defenses before trial, one
18:18
Speaker 2: being that he's immune as a head of state, another
18:22
Speaker 2: that he was kidnapped and taken into custody illegally in
18:27
Speaker 2: violation of international law. Do you think any of those
18:31
Speaker 2: will be successful? I don't think they've fared well in
18:34
Speaker 2: other cases.
18:36
Speaker 1: I don't think legally. I don't think the judge is
18:38
Speaker 1: going to dismiss the case because of the head of
18:41
Speaker 1: state immuney issue for the reasons I stated, for example,
18:43
Speaker 1: because of how they've drafted as indeminded and how they've
18:46
Speaker 1: characterized Maduro, and on the issue you know, of how
18:51
Speaker 1: he was captured. It's always been a longstanding principle that
18:54
Speaker 1: how somebody gets to the courtroom is ruly of no
18:57
Speaker 1: consequence when it comes to the ability of the charges,
19:01
Speaker 1: and that's going to be the case here, I believe
19:03
Speaker 1: as well. Now prosecutors aren't immune from something called jury nullification.
19:09
Speaker 1: I mean that is the idea that you know, no
19:10
Speaker 1: matter what the evidence is put on at trial, because
19:14
Speaker 1: of a reason such as there's an overriding sympathy or
19:18
Speaker 1: an overriding you know, maybe an injustice that the jury feels,
19:22
Speaker 1: they will still rule against the United States. And so
19:25
Speaker 1: jury nullification is always a concern for prosecuted and so
19:29
Speaker 1: the defense will probably bring up and try to bring
19:31
Speaker 1: up I mean, the prosecutes will try to stop to
19:33
Speaker 1: some happening, but they will bring up, Hey, my guy
19:35
Speaker 1: was taken out of Venezuela, kidnapped by you know, by
19:40
Speaker 1: the military, and taken to a court in Manhattan. He
19:43
Speaker 1: was the leader of his nation and thrown into a
19:46
Speaker 1: prison in Manhattan, and they will try to use that
19:50
Speaker 1: to of course make a jury nullification argument. But I
19:53
Speaker 1: think legally the case will survive those two issues.
19:57
Speaker 2: Wayne Maduro and his wife appeared in court on Thursday.
20:01
Speaker 2: There was an argument about why the US government was
20:05
Speaker 2: preventing him from getting money from the Venezuelan government to
20:11
Speaker 2: pay for his legal defense, and the judge said he
20:13
Speaker 2: wasn't going to dismiss the case, but he questioned why
20:17
Speaker 2: federal prosecutors weren't allowing the Venezuelan government to give him
20:22
Speaker 2: money for the legal fees.
20:24
Speaker 1: So, you know, let's go back and fundamentally look at
20:27
Speaker 1: who Maduro is and his wife. Who they are. They
20:30
Speaker 1: are criminal defendants in a US court of law, brought
20:35
Speaker 1: in under a US indictment. So they have, like everybody,
20:38
Speaker 1: six amn rights, and that six Amendment right. The most
20:41
Speaker 1: basic one of those basic rights is you have the
20:43
Speaker 1: right to your choice of counsel. So the argument being
20:47
Speaker 1: made by the defense in this particular case is, hey, look,
20:50
Speaker 1: Maduro and his wife want to hire us as their council.
20:54
Speaker 1: They have chosen us to be their counsel. The problem
20:57
Speaker 1: is the funds that it would take to pay you know,
21:01
Speaker 1: would be paid for by Venezuela and Venezuela. I'm assuming
21:04
Speaker 1: the government of Venezuela is willing to fund the defense
21:08
Speaker 1: of Maduro and his wife, despite how they're maybe being
21:12
Speaker 1: friendly to the United States right now. That said, the
21:14
Speaker 1: government of Venezuela is willing to pay those defense costs
21:18
Speaker 1: the government of the United States. That the prosecutor has
21:20
Speaker 1: come back and said, wait a second, Wait a second,
21:23
Speaker 1: Venezuela is a sanctioned country and you need an OPAC
21:28
Speaker 1: license an officer Foreign Asset Control license issued by the
21:32
Speaker 1: Department of Treasury to do anything to get anything paid
21:35
Speaker 1: for by Venezuela to deal with Venezuela. What was interesting
21:39
Speaker 1: in this case, a few days after he was arrested,
21:41
Speaker 1: O Fact actually granted a license for the defense to
21:45
Speaker 1: go ahead and use funds from Venezuela for Venezuela to
21:49
Speaker 1: pay for his defense. Then a few days later, Oh
21:52
Speaker 1: Fact reverse course, and the government's now arguing, oh, that
21:55
Speaker 1: was an era that wasn't supposed to happen, and so
21:58
Speaker 1: that the basic argument by the defense is because we
22:01
Speaker 1: can't have access to those funds we as lawyers, and
22:04
Speaker 1: because Madua can't have access to those funds, Madua can't
22:07
Speaker 1: use and can't choose the council of his choice. The
22:10
Speaker 1: government's response is, these are sanctioned funds. This is a
22:13
Speaker 1: slush fund created by you. Madua. You don't get access
22:16
Speaker 1: to your own slush fund. And secondly, Maduro, you have
22:20
Speaker 1: access to the Federal Defender's office if you want, you
22:24
Speaker 1: get access to free counsel. And then the argument by
22:27
Speaker 1: the defense is you're going to overwhelm that Federal Defender's
22:30
Speaker 1: office with this one case, and you know, they should
22:33
Speaker 1: have the counsel of their choice. So it's a very
22:35
Speaker 1: interesting argument. They've asked actually the court to dismiss the
22:38
Speaker 1: case because of that. The Court's not willing to dismiss
22:41
Speaker 1: the case, I don't think because of that, but they've
22:45
Speaker 1: got to find some sort of solution. Like you said,
22:47
Speaker 1: they expressed a concern about, you know, if Maduro's out already,
22:53
Speaker 1: what's the national security concern for the o fact license?
22:57
Speaker 1: And if Venezuela is cooperating with the United States, you know,
23:00
Speaker 1: with from all extraction, you know, having his vice president
23:04
Speaker 1: take over, then you know, what is the national security
23:07
Speaker 1: concern in general? So those are the arguments that are
23:09
Speaker 1: coming out. Interesting, fascinating case. You know, as I thought
23:13
Speaker 1: through this case, and one of the things as I
23:15
Speaker 1: think through the future is you know, how will not
23:18
Speaker 1: only this administration of course, use the Naucuo Terrorism Statute,
23:22
Speaker 1: but how would other administrations use the Naco Terrorism Statute
23:26
Speaker 1: to dislodge dictators, to dislodge what they consider to be
23:30
Speaker 1: a legitimate leader. So one of the things about this
23:33
Speaker 1: case that's interesting is I think dictators and despots of
23:37
Speaker 1: the future be unnotice that the United States may come
23:41
Speaker 1: after you, not with a war, but maybe with an indictment,
23:46
Speaker 1: you know, brought out by the Southern dishitt of New York.
23:48
Speaker 2: Thanks so much for joining me on the show. That's
23:51
Speaker 2: former US attorney Alum dar haam Dani, a partner at Bracewell,
23:55
Speaker 2: coming up next on the Bloomberg Law Show. The courts
23:58
Speaker 2: are asking for more money for security measures to defend
24:04
Speaker 2: federal judges from increasing threats. I'm June Grosso and you're
24:08
Speaker 2: listening to Bloomberg. Court officials are asking Congress for more
24:13
Speaker 2: money next year for security measures as the federal judiciary
24:18
Speaker 2: combats heightened threats to judges. Officials say these security efforts
24:23
Speaker 2: are quote more urgent than ever before because security incidents
24:29
Speaker 2: of significant concern for judges increased by fifty seven percent
24:34
Speaker 2: last year and are on pace to rise again. Joining
24:38
Speaker 2: me is Bloomberg Law reporter Suzanne Monnac. Susanne tell us
24:42
Speaker 2: what the court officials are asking for and why.
24:46
Speaker 5: Every year around this time of year, we will see,
24:49
Speaker 5: you know, federal agencies and in this case, we're seeing
24:51
Speaker 5: the federal judiciary put in their request for what would
24:53
Speaker 5: be like there for post wish list of funding that
24:55
Speaker 5: they'd like to receive for next fiscal year, which starts
24:58
Speaker 5: October first. It feels a a little crazy given that
25:00
Speaker 5: we haven't even fully funded the government for this fiscal year.
25:03
Speaker 5: Of course, we are still in a partial shutdown, but
25:05
Speaker 5: we are already looking ahead, and for the judiciary, court
25:08
Speaker 5: security is one of its top priorities, because, of course
25:11
Speaker 5: you mentioned we're seeing sort of a rising and heightened
25:13
Speaker 5: threat environment for judges. It's something we're really hearing sitting
25:16
Speaker 5: judges talk more and more about. And judges don't speak
25:19
Speaker 5: publicly that often, but the judiciary has said that, you know,
25:22
Speaker 5: threats to the court and judicial independence are on the
25:24
Speaker 5: list of things that they can speak publicly about, and
25:27
Speaker 5: we are starting to see judges kind of increasingly avail
25:29
Speaker 5: themselves at that and talk about threats that they're receiving
25:32
Speaker 5: unsolicited pizza deliveries to their door as a signal that
25:35
Speaker 5: the sender knows where the judge lives, to their personal residents.
25:38
Speaker 5: Sometimes those pizzas have been in the name of Daniel Anderol,
25:40
Speaker 5: who is the son of a New Jersey federal judge
25:42
Speaker 5: who was killed almost six years ago by a disferential
25:45
Speaker 5: attorney posing as a delivery man, and so you know,
25:48
Speaker 5: we were seeing this increase in threats to judges. A
25:50
Speaker 5: lot of it's driven by social media, and so the
25:52
Speaker 5: Judiciary accordingly has requested a small increase about three percent
25:56
Speaker 5: over current levels, almost a billion dollars nine hundred and
25:59
Speaker 5: twenty million for courthouse security measures next fiscal year. That's
26:02
Speaker 5: going to go towards things like the court security officers
26:05
Speaker 5: that you see when you enter a courthouse, by the
26:07
Speaker 5: metal detectors or who monitor the courtrooms, and as well
26:10
Speaker 5: as fixing broken equipment or outdated equipment in courthouses themselves,
26:14
Speaker 5: like Badgin are security cameras, those types of equipment.
26:18
Speaker 2: Interesting, there's a pilot program to actually have the Marshal
26:23
Speaker 2: Service protect federal courthouse grounds instead of the Department of
26:28
Speaker 2: Homeland Security, and it's the Marshal Service that provides security
26:33
Speaker 2: for judges, so it makes.
26:34
Speaker 4: Sense, that's right.
26:36
Speaker 5: It's somewhat of a consolidation in these different security measures
26:40
Speaker 5: for judges, which is weirdly in a way, maybe somewhat
26:43
Speaker 5: oddly for those who haven't followed this issue, split across
26:45
Speaker 5: multiple departments. So we're seeing the judiciary obviously handle some
26:49
Speaker 5: court security issues when it comes to replacing infrastructure in courthouses.
26:53
Speaker 5: They have Court security officers, but they sort of share
26:55
Speaker 5: a funding with the US Martial Service, which is part
26:57
Speaker 5: of the Justice Department, that really takes a lead. Their
27:00
Speaker 5: primary mission is the protection of the federal judiciary. But
27:03
Speaker 5: then we have this third body involved, which is the
27:05
Speaker 5: Department of Homeland Security's Federal Protective Service, and they handle
27:08
Speaker 5: like the perimeter around the courthouse. And I you know,
27:11
Speaker 5: from speaking with former marshals and people who have used
27:15
Speaker 5: to be involved in court security, you know there's always
27:18
Speaker 5: going to be communication breakdowns, are issues when you have
27:20
Speaker 5: that many.
27:21
Speaker 4: Cooks in the kitchen.
27:22
Speaker 5: And so I think the Judiciary is considering this idea,
27:24
Speaker 5: and they've this pilot program is you know, predates this
27:27
Speaker 5: budget request. They're saying that they would like to continue
27:29
Speaker 5: it where the marshals will be taking over for FPS
27:33
Speaker 5: in that specific area, just to kind of create more
27:35
Speaker 5: and more continuity.
27:36
Speaker 2: There were multiple cyber attacks explain what they're trying to
27:41
Speaker 2: do there.
27:42
Speaker 5: Absolutely, the Judiciary faced a cyber attack last year that
27:47
Speaker 5: had involved the case management system and you know, it
27:52
Speaker 5: potentially sealed records that shouldn't have been accessed and Obviously,
27:56
Speaker 5: cyber has been a priority for you know, across the
27:59
Speaker 5: federal government and shoring up cybersystems, and so that's an
28:02
Speaker 5: area where we see the Judiciary trying to boost their
28:05
Speaker 5: resources toward as well. They're asking for money for a
28:08
Speaker 5: new case management system ten million dollars. The Judiciary's current
28:12
Speaker 5: case management system, if you've ever seen it online, is
28:14
Speaker 5: not particularly modern. They're also looking for more money nearly
28:18
Speaker 5: fifty million dollars for an ongoing cybersecurity and IT modernization
28:22
Speaker 5: plan to just kind of continue.
28:24
Speaker 4: That work to combat cyber attacks.
28:25
Speaker 5: So we are seeing the judiciary make that a security
28:28
Speaker 5: priority as well.
28:29
Speaker 2: This may seem odd to people, but it's the judiciary
28:33
Speaker 2: that funds the Federal Public Defender's Office, so they want
28:38
Speaker 2: more money there too as well.
28:40
Speaker 4: That's right.
28:40
Speaker 5: The federal defenders have really been cast strapped lately. And yes,
28:43
Speaker 5: as you mentioned, it's one of those situations where the
28:45
Speaker 5: judiciary funds the public defenders, but of course the prosecutors
28:48
Speaker 5: on the other side of the courtroom are funded by
28:50
Speaker 5: the Justice Department and are typically better funded than the
28:53
Speaker 5: federal defenders. The federal defenders really faced a crunch last
28:56
Speaker 5: year after the judiciary ran out of money for what's
28:59
Speaker 5: done is the Criminal Justice Act Panel, and those are
29:01
Speaker 5: private attorneys who agreed to take on certain cases that
29:04
Speaker 5: the public defenders might be doing where the defenders cannot.
29:07
Speaker 4: So that might be, for example, a case.
29:09
Speaker 5: With multiple defendants, so the public defenders can take one
29:12
Speaker 5: of them, but they'd have a conflict of interest in
29:13
Speaker 5: representing the rest of the group. So that would be
29:15
Speaker 5: a good example where we'd see the CGA panel come in.
29:18
Speaker 5: Those attorneys are often small firms, even solo practitioners, and
29:21
Speaker 5: they were left for months pronting their own expenses for witnesses, transcripts, everything,
29:26
Speaker 5: not to mention their own hourly fees. So we saw
29:29
Speaker 5: them in quite a bad situation financially last year. That
29:32
Speaker 5: raised a lot of alarm within the judiciary. Thankfully, they
29:35
Speaker 5: were repaid back in the fall, but there is concern
29:38
Speaker 5: that this could happen again if they run out of
29:40
Speaker 5: funds again and Congress isn't able to give them new
29:43
Speaker 5: ones in time, and so they proposed a small eptic
29:45
Speaker 5: and funding in an effort to address that.
29:48
Speaker 2: I mean, on the whole, does Congress usually give the
29:50
Speaker 2: judiciary what it asked for in these budget requests.
29:54
Speaker 4: We've been seeing that. Recently.
29:55
Speaker 5: We saw Congress, for example, match the judiciary's court security
29:58
Speaker 5: request past year. I think the challenge for the Judiciary
30:02
Speaker 5: and really for all of the government is that Congress
30:04
Speaker 5: has a hard time passing funding bills on time, and
30:06
Speaker 5: so there have been situations where the government say shuts
30:09
Speaker 5: down for several months. That's already happened multiple times, and
30:12
Speaker 5: that really aggravated the situation for the CGA Panel lawyers.
30:15
Speaker 5: They ran out of money in the summer, thinking they
30:17
Speaker 5: only had to make it to the end of the
30:18
Speaker 5: fiscal year, ended up getting pushed into November.
30:21
Speaker 4: So that's been one challenge.
30:22
Speaker 5: And of course we're also seeing these continuing resolutions where
30:25
Speaker 5: say inflation increases, the judiciary needs an increase at the
30:29
Speaker 5: end of every year, saying, as you may get a
30:30
Speaker 5: cola bump on your salary, and instead we have a
30:33
Speaker 5: continuing resolution or just a stopgap measure that extends current funds.
30:37
Speaker 4: The judiciary or anyone would say.
30:39
Speaker 5: That that's an effective budget cut given inflation to have
30:41
Speaker 5: funding the same. So some of it has just been
30:43
Speaker 5: the challenge of Congress getting bills passed in a time.
30:46
Speaker 2: Of manner Suzam. Before I let you go, I want
30:48
Speaker 2: you to tell us about this interesting court struggle where
30:52
Speaker 2: the Justice Department told a federal appeals court that a
30:56
Speaker 2: government lawyer shouldn't have been penalized for ice violating court
31:02
Speaker 2: orders because he doesn't control the agency.
31:06
Speaker 5: The issues stemmed from what you may remember, Operation Metro Surge,
31:10
Speaker 5: where we saw this heightened immigration enforcement presence across the country,
31:13
Speaker 5: but really in particular, we saw it kind of reached
31:16
Speaker 5: new heights in Minnesota, where, of course we saw the
31:18
Speaker 5: killing of two American citizens by federal immigration agents, a
31:22
Speaker 5: lot of protests, just a lot of chaos around the
31:24
Speaker 5: immigration presence there. Related to that immigration enforcement action, naturally,
31:29
Speaker 5: we saw a number of people being detained in Minnesota,
31:32
Speaker 5: immigrants being held in immigration attention, and as a result,
31:35
Speaker 5: we saw sort of a surge in filings known as habeas,
31:38
Speaker 5: petitions for them to be released from detention. That's both
31:41
Speaker 5: because of the enforcement actions and because of an interpretation
31:44
Speaker 5: the federal government the Trump administration has been using regarding
31:48
Speaker 5: the detention statutes, so justified detaining more people as opposed
31:52
Speaker 5: to allowing some people to be released pending proceedings. So
31:55
Speaker 5: we sort of had that combination where we had this
31:58
Speaker 5: surge of case filings and that has overwhelmed the US
32:01
Speaker 5: Attorney's Office, the federal prosecutors in Minnesota, and it kind
32:04
Speaker 5: of created a bit of this perfect storm for the
32:07
Speaker 5: office where we saw a Minnesota federal judge held a
32:10
Speaker 5: special Assistant US Attorney in a civil contempt at court
32:14
Speaker 5: because an order wasn't followed, and a detained immigrant who
32:16
Speaker 5: was supposed to be released in Minnesota with his driver's
32:20
Speaker 5: license identification documents was released in Texas with none of
32:23
Speaker 5: those documents, obviously leaving him in a very difficult position
32:26
Speaker 5: to be released in a state where you don't know
32:28
Speaker 5: anybody potentially and don't even have your driver's license.
32:32
Speaker 2: And this occurrence wasn't a one off. The judge gave
32:36
Speaker 2: an order about where the immigrant had to be released
32:39
Speaker 2: and the papers he had to be released with, because
32:43
Speaker 2: it's happened so many times that ICE releases an immigrant
32:47
Speaker 2: from the facility they're being held in and that could
32:50
Speaker 2: be across the country from where they live or where
32:53
Speaker 2: they were arrested, and without their personal belongings or papers.
32:58
Speaker 2: So this isn't an isolation needed incident.
33:01
Speaker 4: Yeah, far from it.
33:02
Speaker 5: We've seen federal judges express a lot of frustration at
33:05
Speaker 5: ice for their lack of compliance. You could argue with
33:09
Speaker 5: some of these orders, we're seeing government attorneys saying, we're overwhelmed,
33:13
Speaker 5: We're doing our best, and so that's been a dynamic
33:16
Speaker 5: that we're seeing in federal courts across the country. And
33:18
Speaker 5: in Minnesota, which as I mentioned, really saw this increase
33:20
Speaker 5: in enforcement and arrests and attentions, we saw the chief
33:23
Speaker 5: judge of that court specifically call out the government for
33:26
Speaker 5: having violated It was something like over one hundred court orders.
33:30
Speaker 4: In these immigration habeas cases.
33:31
Speaker 5: So well, what did make this unique was that had
33:34
Speaker 5: risen to the level of the judge actually holding an
33:36
Speaker 5: individual lawyer in civil contempt a court we'd seen judges
33:40
Speaker 5: threatened to do so and say, if you don't follow
33:42
Speaker 5: this order, rectify the situation by the state. You know,
33:45
Speaker 5: I'm going to have content proceedings. But in that case
33:47
Speaker 5: the agency has usually you know, gone and fixed the issue.
33:50
Speaker 5: But in this case of what made it somewhat unique
33:52
Speaker 5: was that the lawyer was held in civil contempt. Of course,
33:55
Speaker 5: the issue was rectified pretty quickly and he never actually
33:57
Speaker 5: ended up needing to pay any fines unless there was
34:00
Speaker 5: still a contempt order, and that's what's now currently on appeal.
34:04
Speaker 2: What's unusual to me is the government in its response
34:08
Speaker 2: brief saying that, you know, the attorney doesn't control the
34:13
Speaker 2: ICE agency, which is true, but the attorney has a
34:17
Speaker 2: responsibility to the court that it's representing its client and
34:22
Speaker 2: that it is conveying to its client orders.
34:26
Speaker 4: Absolutely.
34:26
Speaker 5: I think it's an interesting argument, and I think it's
34:29
Speaker 5: a unique circumstance. You know, to have to have it
34:31
Speaker 5: go as far as the judge holding a government lawyer
34:33
Speaker 5: in civil contempt, to have the you know, contempt order purged,
34:37
Speaker 5: as they say, when the ideas were returned to the
34:39
Speaker 5: detained I regranting question, but to have the Justice Department
34:42
Speaker 5: still go ahead and appeal it to the Federal appeals Court.
34:45
Speaker 5: Just it's an interesting posture just as it stands, and
34:48
Speaker 5: it is an interesting argument that essentially, as you recap
34:51
Speaker 5: that the Justice Department is making the claim that you know,
34:54
Speaker 5: this lawyer who's actually a military lawyer has been detailed
34:57
Speaker 5: to the Minnesota US Attorney's office to handle these cases,
35:00
Speaker 5: cannot guarantee agency compliance and shouldn't be essentially expected.
35:05
Speaker 2: To since the contempt order has been purged. What are
35:09
Speaker 2: they appealing?
35:10
Speaker 5: That's what is one of the threshold issues here in
35:12
Speaker 5: this brief. Essentially they appealed, the other side moved to
35:15
Speaker 5: dismiss and now the Justice Department it sort of previewed
35:18
Speaker 5: its merits argument for us in this latest brief. But
35:20
Speaker 5: it's also essentially dealing with a threshold problem, which is
35:23
Speaker 5: that the other side is saying that they shouldn't even
35:25
Speaker 5: have authority to appeal since the order has been purged.
35:29
Speaker 5: They're making the argument that it was essentially not this
35:31
Speaker 5: individual lawyer. His name is Matthew is Ahara. It was
35:34
Speaker 5: essentially not his decision to decide to resolve the contempt
35:39
Speaker 5: order in that way. Generally speaking, if you disagree with
35:42
Speaker 5: the contempt order, you could appeal it or you could
35:44
Speaker 5: abide by it. And I think the other side had
35:47
Speaker 5: made the argument that there is no contempt order now
35:49
Speaker 5: to appeal it was purged. They're making the claim that
35:52
Speaker 5: Ice was the one who remedied this. This lawyer Iahara
35:56
Speaker 5: is not the one who made that decision, so he
35:58
Speaker 5: should still have the right to appeal it for him self.
36:00
Speaker 5: Warning about potential professional consequences that they're saying could follow
36:04
Speaker 5: him in his career, given that he had this order
36:07
Speaker 5: once ordered against him, particularly related to security clearance as
36:10
Speaker 5: he's a military lawyer as well as too just you know,
36:13
Speaker 5: should he want to be applying for a bars or
36:15
Speaker 5: something like that.
36:16
Speaker 2: I'm so interested to hear what the Eighth Circuit decides
36:20
Speaker 2: in this case. Thanks so much for joining me, Suzanne.
36:24
Speaker 2: That's Bloomberg Law reporter Suzanne Monyac, and that's it for
36:27
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
36:30
Speaker 2: always get the latest legal news on our Bloomberg Law podcast.
36:34
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36:37
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36:42
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36:45
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
36:49
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