Jonathan P. Baird

“Steven Donziger Walks Free After 993 Days of ‘Completely Unjust’ Detention “He should have never been detained for even one day,” said an Amnesty International official, “as it has been clear the whole process against him has been in retaliation for his human rights work that exposed corporate wrongdoings.”

JAKE JOHNSON
April 25, 2022

Human rights lawyer Steven Donziger walked free Monday after 993 days of detention stemming from his decades-long legal fight with Chevron, which deployed its vast resources in a campaign to destroy Donziger after he won a $9.5 billion settlement against the fossil fuel giant over its pollution of the Amazon rainforest.

“Corporations must not be allowed to continue abusing the U.S. justice system to silence and intimidate human rights defenders.”

“It’s over. Just left with release papers in hand,” Donziger wrote on Twitter. “Completely unjust that I spent even one day in this Kafkaesque situation. Not looking back. Onward.”

Donziger’s case has attracted global attention and outrage, with the United Nations high commissioner on human rights calling his prolonged detention a violation of international law. Lawmakers in the United States have also decried Donziger’s prosecution as an “unprecedented and unjust legal assault.”

“We are relieved that Steven Donziger will finally recover his freedom after almost 1,000 days of arbitrary detention, which included 45 days in prison and over 900 days under house arrest,” Daniel Joloy, senior policy advisor at Amnesty International, said in a statement Monday. “He should have never been detained for even one day, as it has been clear the whole process against him has been in retaliation for his human rights work that exposed corporate wrongdoings.”

“Corporations must not be allowed to continue abusing the U.S. justice system to silence and intimidate human rights defenders or anyone else exposing their wrongdoing,” Joloy added.

The legal battle began in 1993 when Donziger and other attorneys—on behalf of tens of thousands of farmers and Indigenous people who lived near the Ecuadorian Amazon—filed a class-action lawsuit against Texaco alleging that the company contaminated the rainforest with its oil drilling operations.

Chevron, which purchased Texaco in 2001, denied the allegations, but an Ecuadorian court in 2011 ordered the U.S. based oil and gas corporation to pay a $9.5 billion settlement—a ruling that Ecuador’s Supreme Court later upheld.

Claiming the settlement was fraudulently obtained, Chevron withdrew its assets from Ecuador, refused to pay the settlement, and launched a massive legal attack on Donziger, suing him in New York City.

“My prosecutor has financial links to Chevron, my judge has financial links to Chevron, the charging judge… has investments in Chevron.”

In 2014, a federal judge with ties to Chevron ruled that Donziger was guilty of a “pattern of racketeering activity,” a charge he has denied. U.S. District Judge Lewis Kaplan’s decision was based on testimony from a witness who later admitted to lying.

When Donziger refused to comply with Kaplan’s order to hand his cell phone and computer over to Chevron, arguing that the devices contained sensitive client information, Kaplan charged Donziger in 2019 with six counts of criminal contempt and the attorney was placed under house arrest while awaiting trial.

After the Southern District of New York declined to take up the case against Donziger, Kaplan appointed a Chevron-connectedprivate law firm to pursue the prosecution. Kaplan then chose U.S. District Judge Loretta Preska—previously a member of the Chevron-funded Federalist Society—to preside over the case.

“So my prosecutor has financial links to Chevron, my judge has financial links to Chevron, the charging judge, Judge Kaplan, has investments in Chevron, and they’re denying me jury,” Donziger said in an interview last year.

Last July, Preska found Donziger guilty on all six counts of criminal contempt of court, a decision he slammed as an “obvious travesty of justice.” Donziger was sentenced in October to six months in federal prison, where he remained until December, when he was transferred back to house arrest under a coronavirus-related early release program.

Given that Donziger spent more than two years in detention before even receiving a trial, his sentence has been deemed the longest “ever recorded for a misdemeanor charge.”

Human rights and environmental organizations have urged U.S. President Joe Biden to pardon Donziger, slamming his prosecution as “retaliation for his work in defense of the rights of Indigenous peoples in Ecuador who were victims of Chevron Corporation’s oil dumping.”

Donziger emphasized in a video posted to Twitter Sunday that Chevron is still pursuing a civil case against him:

Joloy of Amnesty International said Monday that while Donziger is finally free from detention, “the end of this sentence does not mean the end of the injustices Steven has faced.”

“The U.S. government,” said Joloy, “must fully implement the decision of the U.N. Working Group on Arbitrary Detention, including launching an impartial and independent investigation into the circumstances that led to Steven’s arbitrary detention, to prevent something like this from happening again.”

The French writer, Honore de Balzac, once wrote, “Behind every great fortune, there is a crime”. Today’s crop of billionaires are determined to prove Balzac right. Tax cheating is a billionaire specialty in the crime world.

A new ProPublica investigation looked at the tax records of the top .001% wealthiest Americans. All earn more than $110 million a year. ProPublica found that between 2014-2018, the 25 wealthiest Americans paid a tax rate of about 3.4%. In 2018, Elon Musk, former New York City mayor Michael Bloomberg, and Amazon founder, Jeff Bezos, paid zero income taxes.

In contrast, the average single worker earning $45,000 paid an average tax rate of 21% while a married couple with one child who earned $200,000 paid a rate of 26%.

ProPublica found two big reasons for why the super-rich are taxed at lower rates. First, much of their wealth is accumulated through investments, like stocks. Second, they use charitable donations to get huge deductions. A goal of their financial shenanigans is to escape wealth from being classified as “income”, subject to taxation.

Theoretically, our tax system was designed to tax the rich at higher rates than everyone else but it hasn’t worked out that way. The super-rich run a variety of scams. They hide billions outside the U.S. in tax havens like the Cayman Islands or Switzerland. They have legions of lobbyists to avoid taxes while writing tax policies in their favor. They have long argued, like for 40 years, that tax rates on the wealthiest would promote growth and trickle down but the trickle-down never happens.

It helps the billionaires that the Internal Revenue Service has been de-fanged. Between the years 2010-2017, Congress reduced the IRS budget with the number of IRS tax auditors cut by one-third. The primary beneficiaries were corporations and the super-wealthy.

Audits of households making more than $1 million a year have fallen by nearly three-fourths in recent years. Almost inexplicably, the IRS has focused more on poor taxpayers. Overall, the IRS conducted 675,000 fewer audits in 2017 than it did in 2010. The result is many billions in lost revenue every year with the super-rich getting away with murder.

Since the pandemic, the nation’s 735 billionaires have seen their collective wealth skyrocket by 62% while worker earnings have inched forward by just 10%.

Considering the enormous gains made by billionaires , it is remarkable how little commentary has focused on them. The super-rich are masters of evasion. They have transcended accountability but there are some things that deserve to be said.

Compared to robber barons of old, they have junked any notion of noblesse oblige. The concept of noblesse oblige goes back to the late nineteenth century. The idea was that there is an unwritten obligation for people of great wealth to act honorably and generously to others. Whatever their checkered history, earlier robber barons like Andrew Carnegie or John D. Rockefeller are examples.

What is different about our current crop of billionaires is their absolutely voracious, unfettered hyper-greed. While you can find examples of billionaire philanthropy (for example, Bill Gates), billionaires now are generally conscience-free predators who seize every opportunity to expand their wealth.

How many billions is too much? I am afraid they have set no limit. They are fundamentally about amassing unprecedented fortunes for themselves. Does the DSM have a diagnosis for such unrestrained behavior, such bottomless greed?

Just to cite a recent example, why is Jeff Bezos fighting so hard to deny workers a union that could provide better wages and working conditions? In 2021 Amazon reported record profits of more than $35 billion. Surely the company can easily afford a union. The other side of the coin of the extreme wealth of billionaires is crushing workers. Many Americans appear to be unaware of that dark side relationship.

In his book, Davos Man, Peter S. Goodman provides a good description of the billionaires:

“Those reared in the most exclusive communities, educated at the fanciest schools, and intertwined in the most elite social networks have leveraged their privileges to secure unfathomable wealth, shuttling in their private jets between their beachfront villas and their mountain redoubts, buying their children passage to Ivy League universities, while stashing their holdings on Caribbean islands and other territories beyond reach of a tax collector.”

Goodman argues that the super-rich are expert at finding ways to evade taxation focused on income. Through the use of accountants, lawyers and lobbyists they move money around like a giant game. They buy politicians from both parties to do their bidding. Their public relation shills try to make it seem like the status quo is inevitable. They fail to speak out when authoritarian demagogues blame immigrants and threaten democracy as their big concern remains protecting their ungodly amount of money.

Contrary to the protestations of the billionaire class, a wealth tax is eminently doable. Our tax code is archaic and needs to be reformed so that hidden wealth can be reached. During the 2020 Democratic primaries, both Sen. Bernie Sanders and Sen. Elizabeth Warren advocated such a tax.

Sen. Sanders proposed a a 1% annual tax on fortunes greater than $32 million with increases reaching to 8% for those whose wealth exceeded $10 million. Sen. Warren favored a 2% annual tax on fortunes greater than $50 million and 3% above $1 billion. If enacted, it was estimated both proposals could raise over two trillion dollars over the ten year period from 2020-2029.

That kind of revenue could guarantee universal health care and child care, could greatly expand affordable housing, could assist the cancellation of much student loan debt and could help address our looming climate catastrophe.

More recently, President Biden, as part of his proposed budget for fiscal year 2023, has also proposed a wealth tax on billionaires.

It is entirely predictable that the billionaires will howl to the heavens about any tax. They always will say it is unworkable but such a tax would be highly popular. It would require more bodies at the IRS and more expertise with complex tax issues but the rewards would be great.

A long time ago Supreme Court Justice Louis Brandeis wrote:

“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few but we can’t have both.”

Those words still ring true.

One of the most despicable aspects of the Trump presidency was the hate that administration directed against immigrants. Children in cages and family separation come immediately to mind. Immigrants seeking asylum or refuge in the U.S. were demonized and were seen as part of a supposedly uncontrolled invasion.

In the fifteen months since Trump’s presidency ended, the immigration crisis has continued to receive much coverage by the media with Republicans claiming President Biden is responsible for a massive surge in illegal immigration.

Conservatives also became comfortable arguing the Great Replacement theory saying that Biden and Democrats were opening borders to nonwhite immigrants who would steal the jobs of white Americans. FOX personality Tucker Carlson repeatedly has made this argument as has Congressman Matt Gaetz.

The Great Replacement theory, another conspiracy theory, has white supremacist and neo-nazi roots. The theory has different iterations but the gist is that liberal elites are trying to change the population demographics in the U.S. to favor people from the Third World over white Americans. Jews are often seen as manipulating in the background.

When the Anti-Defamation League criticized Carlson and said the Great Replacement theory was dangerous, racist and xenophobic, Carlson responded “Well (expletive) them”. He said the Anti-Defamation League was “racist”.

I would suggest that Tucker Carlson is trying to normalize white supremacy and create a narrative that is contrary to the facts. The Great Replacement theory has about as much truth as QAnon. Carlson is playing a dangerous game, feeding the public disinformation.

Since 2021, immigration into the United States has plunged. This was a result of restrictive American immigration policies and a decline in international travel because of COVID-19. Although it got little publicity, a new report from the Census Bureau found that net international migration into the U.S. increased by about 247,000 people in 2021. This was the lowest annual level since 2010, hardly an invasion.

The number of immigrants who came into the country in 2021 is half the number of people who came into the country between 2019-2020. It is way below numbers from 2015-2016 when 1,049,000 came into the U.S.

Media coverage of immigration has fed on misleading data and images. James Risen, a reporter for the Intercept, has shown that conservatives focused on the number of apprehensions along the southwestern border in 2021 rather than the number of people who migrated to the U.S. and were allowed to stay. The focus on apprehensions did not consider how many times the same person made repeated efforts to cross the border. That significantly inflated the numbers.

Many of the people who repeatedly tried to cross the border were victimized by Title 42, a public health statute the government has used to carry out expulsions from the U.S.. Under Title 42, people seeking asylum got no chance to make their asylum case. They are summarily expelled with public health used as an excuse to shut down legal migration.

Trump and now Biden are making it impossible for those with legitimate claims for asylum to have due process. They are forced to remain in Mexico under often dangerous conditions. Under Biden, the non-profit Human Rights First has documented nearly 10,000 cases in which people blocked from seeking asylum by Title 42 in the U.S. have been kidnapped, tortured, raped and violently attacked in Mexico.

It is embarrassing and shameful to see any Democrats supporting Title 42 expulsions. Such expulsions are scientifically baseless and the policy is known to be a “Stephen Miller special”. Title 42 does not prevent the spread of COVID-19. Going along with this Stephen Miller-Trump creation is pandering to white supremacy.

At the same time immigration to the U.S. has reduced, we are having a major labor shortage in America. According to the U.S. Bureau of Labor Statistics as of the end of February 2022, there were 11.3 million open jobs. There are two million fewer working-age immigrants living in the U.S. than there would have been if pre-2020 immigration trends had continued. One million are college-educated. We need workers to fill these positions and it hurts the economy that they are not here.

Low immigration has worsened the labor shortage. Even the U.S. Chamber of Commerce, not exactly a left-wing outfit, has called for a doubling of legal immigration. Instead of spurning immigrants, many more should be welcomed.

The idea that nonwhite immigrant workers are taking jobs from white Americans is not supported by the facts. Many immigrants have worked in dead-end low-paying manual-intensive jobs like fruit-picking and work in the meat and poultry industries. Some are in the service sector, working in fast food joints. These are jobs many white workers typically shun. Immigrants are not replacing white workers, more often than not white workers do not want these jobs because of dangerous conditions or low pay.

The conservative narrative about immigrants is a thread deeply embedded in American history. Earlier waves of immigrants to the U.S. have faced wariness and xenophobia. The Chinese Exclusion Act of 1882, the Johnson-Reed Immigration Act of 1924 and now Trump’s nativism are consistent in their animus toward immigrants. The historian Erika Lee writes:

“Americans have labeled immigrants threatening because they were poor, practiced a different faith, were nonwhite. They have argued that immigrants were too numerous, were not assimilating, were taking jobs away from deserving Americans, were bringing crime and disease into the country, held dangerous political ideals, were un-American or even hated America.”

There is a body of experience showing where white supremacy and xenophobia end. After getting dehumanized, immigrants get killed. The conservative narrative about immigrants is another Big Lie. It is racist scapegoating. Xenophobia, not immigration is the real danger to America.

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Over the last 40 years, the American labor movement has been stomped. The percentage of American workers in unions has drastically declined, down to 10.3%, which is the lowest rate in decades. The decline is no accident and it is not primarily from self-inflicted wounds. Employers have turned union-busting into an art.

At the same time unions were being crushed, neither political party did anything to help. The Republicans are owned by the 1% bosses and their record is consistently anti-labor. Trump pretends to be a populist but he has always been anti-union. Unfortunately, the Democrats also have failed to respond. Defending labor has been a low priority for Democrats.

This background makes the organizing victory of the Amazon workers in New York all the more stunning. In a vote of 2654-2131, the Amazon Labor Union, the ALU, shocked the world and scored a victory that could inspire all underdogs.

For those unfamiliar with the labor movement or union organizing, I would offer that the deck has been stacked against labor for a very long time and organizing success has been like snow in April. It happens but you won’t see it too often. To be successful now is very hard.

I can speak from some personal experience. Earlier in my life, I spent nine years trying to organize unorganized workers. For seven years, I worked at Mass General Hospital in Boston trying to organize the service workers. Management deployed strategies very similar to those used against the Amazon workers. It is a well-trod path.

First, management hires a union-busting law firm. They figure a plan for creating fear and intimidation. Typically this involves firing union activists. They play on existing divisions to try and divide and conquer. They use captive audience meetings to badmouth the union. Whether or not unfair labor practices are alleged by union activists, no outside entity effectively interferes with the anti-union practices. Workers learn they have little protection.

The Amazon workers in New York relied on a highly creative, personalized strategy. The organizers were workers in the company. They did not rely on any organized union. They created an independent union, getting initial funding from a GoFundMe. Derrick Palmer, the Vice-President of organizing for the ALU, described how they succeeded:

“At the end of the day, having workers organize workers, I feel like that was really the game-changer because I don’t think Amazon ever expected that to happen.”

Amazon had argued that the union was a third party from outside. Considering that the organizers worked in the shop, that approach backfired. Through publicly available information, the ALU showed that Amazon was paying each anti-union consultant $3200 per day to turn workers against the union. Amazon spent $4.3 million on the union-busting firm not even counting the legal work.

It was actually the many union busters who were walking around the warehouse talking to workers who were the outsiders.

The ALU camped out near the warehouse to meet with workers and answer questions. They used social media videos, organized in break rooms off work time, held regular barbecues near the warehouse and held phone banks. When management held captive audience meetings, the pro-union workers interrupted and talked back, showing no fear.

As the election drew near, the ALU passed out union shirts and workers started wearing them in the warehouse. The ALU also passed out lanyards. These acts showed workers the strength of union support all over the warehouse and helped to break down fear.

Meanwhile, Amazon insulted the union organizers calling them “thugs” and they called Christian Smalls, co-founder of the ALU “not smart or articulate”. Smalls was a former supervisor at Amazon. Amazon fired him in Spring 2020 when he led a walkout over inadequate COVID-19 safety measures by the company.

Many of the classic reasons workers form unions were at play with Amazon. There is a lack of job security. The turnover rate is very high and workers are terminated for many reasons. The pace of work is brutal and Amazon relentlessly clocks expectations. The investigative journalist Will Evans has found that “the company’s obsession with speed has turned its warehouses into injury mills”.

Supposedly “essential workers” are not well-compensated even though in 2021 Amazon reported record profits of more than $35 billion. Since the pandemic Amazon’s profits have absolutely skyrocketed but there is no willingness to share the wealth. There is an unsurpassed level of greed here. Remember: in 2018 it was Bernie Sanders who shamed Amazon into paying a $15 an hour minimum wage. Shamelessness defines Amazon.

The Amazon workers must now get management to the bargaining table to negotiate a contract. This may be very difficult because it is a safe bet Amazon bosses would hate such a precedent.

The positive examples of the Amazon workers as well as the recent victories at multiple Starbucks locations show the effectiveness of the worker-to-worker organizing strategy. To reverse labor’s decline, the union movement must pour resources into organizing the unorganized. Walmart, Target, McDonald’s, Burger King, Uber, Lyft, Kroger and many others are all fair game.

While President Biden has laudably voiced support for the Amazon workers, there is a problem with the Democratic Party’s follow through. If workers are not getting the PRO Act aimed to help organizing or the labor provisions of Build Back Better, it is fair to ask: what are the Democrats delivering? It appears to be mostly talk.

To kickstart a renewed labor movement, more pro-worker legislation is needed to give union organizing a chance. The long-time employer game plan of intimidation, firing and unfair labor practices needs to be stopped.

On Twitter, I saw that Congresswoman Alexandria Ocasio-Cortez said that Justice Clarence Thomas should resign from the Supreme Court. I must say – I agree.

People often say that there are no ethical rules binding on Supreme Court justices. That is not entirely true. While there is no specific judicial code of conduct for the High Court, justices are bound by a federal law that bars them from hearing cases if their spouses have “an interest that could be substantially affected by the outcome of the proceeding”.

That statute, 28 U.S.C. 455, also stipulates that they recuse themselves in cases where their impartiality might reasonably be questioned. There is the matter of the appearance of impropriety. Conflicts of interest matter and it is fundamental ethics that a judge recuse if there is a bad look.

We now know that Justice Thomas’s wife, Ginni Thomas, was integrally involved in the pro-Trump Stop the Steal movement. She made repeated efforts to pressure White House Chief of Staff Mark Meadows to pursue various avenues to overturn the 2020 presidential election. In more than two dozen bizarre text messages between the election and January 6, 2021, Ginni Thomas begged Meadows to do everything in his power to reverse the election.

Ginni Thomas told Meadows to “release the Kraken and save us from the left taking America down”. She texted that members of “the Biden crime family” would eventually be living on barges off GITMO to face military tribunals for sedition. She described the election as “a heist” and “an obvious fraud”.

Ms. Thomas attended the January 6 rally held near the White House. She also signed an open letter criticizing the congressional investigation of January 6. She is not a party in a January 6 case but she is very much on one side.

In spite of his wife’s partisan role, Justice Thomas has not recused himself from any January 6-related case. There have already been a number of cases. He was the sole dissenter in the recent case in which Trump attempted to stop the House January 6 Committee from obtaining White House records held by the National Archives. He offered no reasoning.

Charles Geyh, a legal ethics professor at Indiana University, responded:

“There’s a difference between having a spouse who has an active interest in seeing the law changed and someone who is actually part of the story of the case. I don’t know how someone could be impartial when their spouse is part of the record that may be before the judge.”

This is not an ethical close call. No way should Justice Thomas be sitting on any January 6-related case, now or in the future. His association is too close and his ruling would have the appearance of impropriety. It is highly possible, even likely, that disclosures could reveal more about his wife’s involvement in Trump’s coup attempt. She has been called to testify before the January 6 committee.

Unfortunately, where Justice Thomas is concerned, the January 6 cases are just the tip of an ethical iceberg. Ginni Thomas’s lobbying for a wide range of far right causes has repeatedly enmeshed her political activities with cases where Justice Thomas rules.

Justice Thomas is aware of the need to recuse in some situations because he has done it 54 times since 1993. Many of his recusals were due to possible conflicts because of his son’s business and choice of college. He has, however, never recused from any case because of his wife’s lobbying.

The situation is unusual. As Gabe Roth, the Executive Director of the organization Fix the Court, has said:

“No spouse, to my knowledge, has ever actively lobbied other branches of government in the public sphere on issues before the justices like Ginni Thomas has.”

I would expect that the supporters of Justice Thomas would say the left is trying to take him down but his ethical wounds are entirely self-inflicted. There are quite a few examples and I will cite a few:

• During the years 2003-2007, Ginni Thomas worked for the Heritage Foundation, a conservative think tank and public policy promoter. The job was lucrative and she earned $686,589 working for Heritage in this period. Justice Thomas repeatedly failed to report his wife’s income on financial disclosure forms as required by federal law.
• In January 2008, Justices Thomas and Scalia attended a private political retreat organized by the billionaire Koch brothers, opponents of campaign finance reform. All expenses were paid by the Federalist Society. Later, Thomas would rule with the majority on Citizens United. He has been the lone justice to argue that laws requiring public disclosure of large political contributions are unconstitutional.
• In 2009, Ginni Thomas set up her lobbying firm, Liberty Central, dedicated to fighting the “tyranny” of Obama and Obamacare. The organization was funded by two large anonymous contributions. Ms. Thomas paid herself an annual salary of $120,000. Again, Justice Thomas failed to disclose her income on financial disclosure forms. Thomas always ruled against Obamacare.
• In 2017-18, Ms. Thomas received $200,000 from Frank Gaffney’s organization, the Center for Security Policy. Gaffney is a well-known Islamophobe and anti-Muslim conspiracy theorist who advocated for Trump’s Muslim ban. His group submitted an amicus brief to the Supreme Court when the Court considered the issue. Thomas upheld the Muslim ban.

Where things get sketchy is the overlap between Ginni Thomas’s lobbying and Clarence Thomas’s judging. There is a failure of accountability and a wild level of corruption. Spouses often share income. Ginni Thomas profits and gets dark money from a wide range of powerful conservative interest groups that have cases that come before the Court. Are we supposed to pretend the obvious impropriety does not exist, that they don’t share income, or discuss everything?

Ethical self-policing by the justices hasn’t worked. Sadly, Chief Justice John Roberts has turned a blind eye. In suggesting Justice Thomas resign, I hold no hope that would actually happen. But, it should. Justice Thomas hasn’t simply embarrassed the Court – he has tarnished its integrity.

The Trump era has led to such a moral debasement and cynicism that circumstances which obviously require investigation get brushed over and blown off. Thomas should not be getting a pass.