Jonathan P. Baird

Back in April, I wrote an article about Attorney Steven Donziger’s fight with the oil giant, Chevron. The story is a model for how a powerful corporation can corrupt our legal process and try and buy results. As Donziger has said, “I’m like a corporate political prisoner”.

In 2011, Donziger, a human rights attorney, had won an epic two-decades long lawsuit against Chevron. Back between 1964-1992, Chevron, previously Texaco, had dumped 16 billion gallons of benzene-laden oil waste into the forest, rivers and streams of Ecuador. On behalf of 30,000 indigenous people of Ecuador, Donziger and a team of attorneys won an unprecedented $9.5 billion judgment against Chevron. The judgment has been upheld by both the Supreme Court of Ecuador and Canada.

Since April there have been some significant developments in the Donziger-Chevron saga. In July, the federal court in New York found Donziger guilty of six charges of criminal contempt. Donziger has already served more than 700 days of home confinement with an ankle bracelet and he is looking at an additional six month jail term with sentencing on October 1.

Donziger is the only lawyer in U.S. history to be deprived of his liberty pre-trial on a misdemeanor charge. He is also the only person ever charged in the U.S. with criminal contempt for appealing a court order related to discovery in a civil case.

Chevron has pursued a scorched earth strategy against Donziger. To divert attention from their environmental crimes, they have demonized and attempted to destroy him. That may sound like hyperbole but it is not.

Chevron hired private investigators to track Donziger. They created a publication to smear his reputation. With their virtually unlimited resources they put together a legal team of hundreds of lawyers from 60 law firms to try and ruin Donziger and they have done real damage.

Donziger cannot work, travel, earn money or leave his home. He has been disbarred, had his passport seized, and his bank accounts have been frozen. He now has a lien on his apartment where he lives in New York. Donziger owes enormous court fines and costs and he remains under house arrest.

Chevron had filed a Racketeer-Influenced and Corrupt Organizations or RICO lawsuit against Donziger. The case is before Federal Judge Lewis A. Kaplan, a former tobacco company lawyer. Kaplan once described Chevron as:

“..a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which everyone of us depends every single day.”

Chevron had originally sought $60 billion in damages against Donziger. Two weeks before trial Chevron dropped the monetary claim entirely to deny Donziger a jury trial. They wanted the case before Kaplan. With the money claim gone, Kaplan had the option to deny Donziger’s request for a jury trial and he did that.

The Court charged Donziger with contempt for refusing to hand over his computer, cellphone and other electronic devices. Donziger did not comply, citing client confidentiality, as identification of his clients could place them in great danger. When Judge Kaplan asked the U.S. Attorney to prosecute the contempt, the U.S. Attorney refused the prosecution.

While corporate power had already turned the tables on Donziger, here is the point where things went sideways. Instead of random assignment of judges as required by local court rules, Judge Kaplan handpicked another judge, Loretta Preska, to preside over the contempt case. Under an unusual procedure, Kaplan also appointed a private law firm, Seward and Kissel, as prosecutors since the U.S. Attorney had declined to prosecute the alleged contempt.

The appointed private law firm, Seward and Kissel, had and has a disqualifying conflict of interest as they had a direct tie to Chevron. Chevron had been their client as recently as 2018 but that was not disclosed until months into trial. Still, Seward and Kissel remain as prosecutors.

As for the judge handpicked by Kaplan, Loretta Preska, she is a member of the Federalist Society, a conservative legal organization that has received funding from Chevron. As Kaplan had done, Preska also denied Donziger’s request for a jury trial. At the trial she denied virtually all the objections of Donziger’s defense team while sustaining all prosecution objections. Martin Garbus, one of Donziger’s lawyers, said this about Kaplan picking Preska:

“He knows in choosing her, he is choosing the one judge in the Southern District, perhaps, who is going to go after Steven in the worst possible way. And Kaplan was exactly right”.

Prosecution witnesses in Donziger’s contempt trial included attorneys from Gibson Dunn, a law firm which had represented Chevron in litigation against Donziger.

What we have is the hijacking of a legal proceeding by a hugely powerful corporation that uses its massive resources to crush an environmental activist lawyer. Changing the subject away from its environmental crimes has been an effective strategy. The company will do anything to avoid paying the $9.5 billion court judgment.

The punishment Donziger is suffering is crazily out of whack to any standard of fairness. It is off the charts and it is Chevron sending a message to all its adversaries, current and potential: cross us and you will pay. Lengthy home arrest and jail time for a lawyer under these circumstances is beyond unusual.

Donziger’s lawyer, Martin Garbus, is famous for his trial skills, for being a civil libertarian and for having vast experience as an international lawyer. He said:

“I have seen many, many oppressive judges, and I have seen many, many rigged court systems. The way this is rigged is peculiar and amazing in New York. Nothing like this has ever happened before in the American legal system.”

Donziger is, of course, appealing the contempt charges and he remains hopeful about his chances on appeal. He is also fighting his disbarment. Many have raised public questions about these proceedings including Sen. Ed Markey, Sen. Sheldon Whitehouse, former Federal Judge Nancy Gertner and former Federal Judge Mark Bennett.

The Donziger prosecution reflects a deep tension and a corrosive passivity within our legal system. The other side of the coin from the legal system’s failure to enforce judgments against a climate-ruining corporation is the hyper-persecution of activist lawyers like Donziger.

Edward Abbey once said, “There is no force more potent in the modern world than stupidity fueled by greed”. With its role in climate destruction, that speaks directly to Chevron. As a society, we are failing to respond to the real dangers.