Caracas Chronicles

Well, wouldn’t you want to know… We’d like to know for sure. As usual with Venezuelan constitutional matters, there’s no easy answer to this. We have to look at what is, what should be, what shouldn’t be but probably will be, and speculate what it would be like in the Upside Down.

During yesterday’s presser on Operation Absolute Resolve, Donald Trump very casually said that they (the US) were going to run the country. Not very clear yet what this means, but at some point he also said that they were talking to Maduro’s VP, Delcy Rodríguez (without naming her), and that she was willing to collaborate in making Venezuela great again. There was no mention of democracy during the press conference. If we want to be really optimistic on what they have in store for Venezuela in their plans, it’s likely that somewhere down the line they are looking at some sort of presidential election. This leaves a bunch of questions in the air, but the biggest one in all caps and neon lights: What about Maria Corina Machado and Edmundo González Urrutia, who just won a presidential election by almost 70%?

There should be no doubt that according to Venezuelan law, González Urrutia is the president elect of Venezuela and he should be sworn in. Chavismo decided to derail us from the constitutional path once again when Maduro stole the 2024 presidential elections. Machado and her team have been trying to get the country back to that path, but they don’t only have to deal with Maduro, but also with the one calling the shots in the strategy to depose him: Trump. A harsh reality is that, from the T2 standpoint, a transition with the participation of chavismo is cleaner and cheaper than trying to enforce what the Venezuelan Constitution establishes.

Chavismo may be trying to apply chavista rules to a Trumpist game.

We spoke to the Caracas Chronicles Legal Eagles and asked them what the Venezuelan Constitution said and how it can be interpreted by the different interested parties. And in lawyerly fashion they said: it depends. Depends on what standpoint you’re using to look at it, obviously. Chavismo will look at it assuming that Maduro is legitimate and, of course, the rest of the country looks at it with Edmundo González Urrutia as the depository of the people mandate. The US has its own, independent, POV.

One important caveat: while chavismo steals elections and violates human rights, they do have a very strange legalist fetish, and at moments when one would think that they’ve thrown the book out the window, they come back saying that procedures have to be followed. This doesn’t mean that they follow their laws to the letter, but that they usually leave everything in writing even if they need to come up with far fetched, absurd legal interpretations.

Chavista Law

So, from the chavista standpoint, the capture of Nicolás Maduro by United States special forces should constitute an absolute absence of the President of the Republic. Although Article 233 of the 1999 Constitution establishes the circumstances that qualify as absolute absence—and detention by foreign forces is not expressly listed—it is evident that the current situation constitutes a case of absolute absence.

Because the absolute absence would have occurred within the first four years of the presidential term, a new election must be held within the following thirty consecutive days. In the interim, the office of president would be assumed provisionally by the executive vice president. Easy-peasy, right? Well, not exactly. More on this later.

Venezuelan Constitution

If the will of the Venezuelan people were to be upheld, the legitimate president, González Urrutia, should be sworn in. Therefore, the currently chavista-controlled elections authority, CNE, would be required to formally proclaim him to then proceed with the swearing-in before the chavista-controlled legislature, AN. Let’s be real, for this to take place, a larger amount of lead than what we saw on Saturday would be required.

If it were not possible for the president to be sworn in before either of those two instances, the swearing-in could take place exceptionally before the chavista Supreme Court. Not gonna happen.

Comment from one of the Legal Eagles: “If that were also not possible, the 1999 Constitution provides no explicit solution to the constitutional crisis. Under that scenario, one option would be to consider a swearing-in before the Delegated Committee of the National Assembly elected in 2015. Some constitutional law scholars have suggested that the swearing-in could instead take place before the Supreme Court in exile.” And then we would have another useless president in exile.

Reality (bites)

Yesterday, Delcy Rodríguez held her media event in a sort of veiled response to Trump’s. With the presence of the chavista top brass, Rodríguez said that, even when Maduro was under US custody, he was still the president of the country. Clearly, Maduro will not return and it’s an absolute absence that would require elections 30 days after the Delcy Rodríguez takeover. The Maduro Supreme Court (or perhaps now we should say the Delcy Supreme Court), prompted by her request to approve an internal commotion decree, said that they would not decide immediately over the absence of Maduro and instead granted her the powers of the presidency as if it was a temporary absence (according to article 234, temporary absences of the President are covered by the VP for up to 90 days, which may be extended by 90 more). Again, clearly Maduro isn’t coming back, but this allows chavismo to control the moment when elections should be called, if such elections are called at all. In the past they’ve used similar techniques to win time (for instance, there’s no certainty over the moment of death of Chávez, but elections were held within the timeline from the moment it was announced).

Is this a challenge to what the Trump administration is putting on the table? It’s not clear yet. Secretary of State Marco Rubio, in short, told The New York Times that the chavista leadership was to be judged by their actions and not by their words. Another important point is that they didn’t talk about elections or a timeline for them. Rubio, today, was clear in saying that they had to deal with chavismo, that they had to focus on what will happen in the next three weeks or three months, and that they were hoping that they would receive better cooperation than what they were receiving with Maduro. He implied that the opposition couldn’t offer this. Probably a nail on the coffin to the idea of having González Urrutia as president of Venezuela. Although the future looks bleak, Machado may have an opportunity to jump back in the game (but this is for another post).

The regime is likely looking at this as part of their regular game during negotiations and try to keep on dragging time to stay in power. But the truth is that they are negotiating with a gun against their heads. Chavismo may be trying to apply chavista rules to a Trumpist game. And that’s dangerous. Because, whether you like it or not, the game changed on Saturday. For everybody.