This report was written by Walker Bragman.
Over the phone, Steven Donziger is in good spirits until the conversation turns to how he’s holding up.
“It’s increasingly challenging being on home detention for almost two years without trial on a misdemeanor, just to come to the realization that the system is functioning on behalf of Chevron and not on behalf of justice,” he says somberly.
The human rights attorney who once scored a multi-billion-dollar judgment against Chevron in Ecuador is now in his 20th month of house arrest — and this week, high-profile Members of Congress began demanding a review of his unprecedented detention. Unable to even walk into the hallway of his two-bedroom Manhattan apartment, he awaits the start of his May 10 trial for a misdemeanor contempt of court charge related to his fight against the oil giant.
To Donziger, who will appear on The Daily Poster’s subscriber live chat Wednesday night at 7 pm ET, the court hearing is the latest battle in a war for environmental justice — one he does not expect to win.
“Chevron Is Prosecuting Me Via Its Own Law Firm”
Donziger was a human rights attorney representing indigenous peoples in Ecuador who brought a lawsuit against Texaco for rainforest pollution in the region. In 2011, Donziger and his clients won a $18 billion judgement against the fuel giant, which had since been bought out by Chevron, one of the largest judgments ever handed down against an oil company, even when that amount was later reduced to $9.5 billion.
While the ruling was subsequently upheld by three Ecuadorian courts, Chevron moved its operation out of the country to avoid paying the damages and countersued Donziger in the United States under the Racketeer Influenced and Corrupt Organizations Act (RICO).
Lewis A. Kaplan of the U.S. District Court for the Southern District of New York (SDNY), a former corporate lawyer, was assigned to the case and granted Chevron a temporary restraining order against the Ecuador judgment in an effort to block enforcement of it anywhere in the world.
During the non-jury trial, former Ecuadorian judge Alberto Guerra, who presided over the case when it was first filed, testified that Donziger and his team had bribed him to ghostwrite the multi-billion dollar judgment against Chevron for presiding judge Nicolas Zambrano. Guerra claimed Zambrano had also been bribed and had offered him a percentage of his take.
Guerra would later admit during an international arbitration that he had accepted hundreds of thousands of dollars from Chevron and recant some details of his testimony. Despite Guerra’s admission, the tribunal ultimately sided with Chevron, finding that the multi-billion-dollar judgment had still been tainted by fraud and that the claims against the oil giant had been settled and released by the Ecuadorian government years earlier.
Kaplan, the U.S. judge, also had ties to the oil company. The Clinton appointee had investments in funds with Chevron holdings, and had previously suggested in deposition hearings from a separate but related case that Chevron could have grounds to file a racketeering suit against Donziger. During the racketeering proceedings, Kaplan described the oil giant 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 every one of us depends every single day.”
Relying largely on Guerra’s testimony, Kaplan ruled against Donziger in March 2014, alleging a vast conspiracy and finding that the attorney had acquired the Ecuador judgment through “corrupt means.” A federal appeals court would later uphold Kaplan’s ruling. Donziger was later disbarred from practicing law in New York.
After its legal victory, Chevron sought to recoup more than $800,000 in court costs from Donziger. The company’s lawyers demanded possession of the attorney’s personal computer and cell phone, which it claimed were necessary to enforce its monetary judgment against him. Donziger appealed and refused to turn over his electronics, arguing he would be handing over privileged materials.
Kaplan responded by holding Donziger in civil and then criminal contempt of court and slapping him with the largest state sanction in the history of New York courts. The SDNY U.S. Attorney’s office declined to prosecute the case, citing a lack of resources, so in July 2019, Kaplan took the unusual step of turning the contempt case over to attorneys from the major corporate law firm Seward & Kissel LLP to act as special prosecutors. He also selected a colleague, Judge Loretta Preska, to hear the criminal case. As part of the proceedings, Preska sentenced Donziger to his ongoing home confinement in August 2019.
But the new firm had ties to Chevron. Seward & Kissel had represented Chevron as recently as 2018 — a fact that the prosecution did not disclose for seven months after being selected. And Preska was a member of the conservative Federalist Society, which listed Chevron as a “gold circle” supporting firm in a pamphlet for its 2017 annual lawyers convention. Chevron separately donated at least $50,000 to the Federalist Society in 2015.
To Donziger and his allies, those connections are central to his current narrative. Two of the three attorneys for the prosecution recently left Seward & Kissel.
“Chevron is prosecuting me via its own law firm,” Donziger tells The Daily Poster. “I don’t think that’s ever happened before in our country’s history and it should be terrifying to anybody who believes in the rule of law or does human rights or environmental justice work.” The prosecuting attorneys with Glavin PLLC and Seward & Kissel did not respond to requests for comment.
Last summer, the International Association of Democratic Lawyers and the National Lawyers Guild filed a motion calling for a dismissal of the charges against Donziger on the grounds that moving forward could set a precedent “for judges to be able to engage in judicial harassment and misconduct and appoint private prosecutors that are shielded from revealing a conflict of interest.”
Meanwhile, Chevron has been successfully blocking enforcement of the Ecuador judgment around the globe. Courts in Brazil, Argentina, and Canada have ruled against enforcement on jurisdictional grounds, with each holding that their country’s Chevron subsidiary was a distinct and separate legal entity from the Chevron Corporation.
Donziger sees his ongoing prosecution as part of America’s descent into what he calls “corporatocracy.” He does not expect to win his upcoming trial, which could see him sentenced to prison for up to six months.
“It’s pretty clear I’m going to be convicted, no matter what the evidence,” he tells The Daily Poster.
Still, he has no intention of accepting the verdict. If and when he loses, Donziger plans to appeal the ruling, saying Preska will not have the final word.
On Tuesday, six progressive House lawmakers — Reps. Alexandria Ocasio-Cortez, Cori Bush, Jamaal Bowman, Jim McGovern, Jamie Raskin, and Rashida Tlaib — sent a letter to Attorney General Merrick Garland requesting he review Donziger’s case.
The letter is the latest in a series of pleas to the Department of Justice. Earlier this month, Donziger’s legal team sent another letter to Garland requesting his office remove the case from the private prosecutors and drop the charges. And in February, 13 international human rights and environmental organizations, including Amnesty International and Amazon Watch, sent a letter to Garland demanding he review the case and decrying “a state of affairs widely viewed by the international human rights and environmental community as one of the most serious ongoing human rights abuses for which the United States has yet to answer.”
That same month, hundreds of law students from 52 schools across the country announced a recruiting boycott of Seward & Kissel over its prosecution of Donziger despite “conflicts of interest.”
Attacked by Chevron-Funded National Review
As Donziger’s trial date has approached, Chevron’s allies have gone on the offensive. Earlier this month, Jack Fowler, vice president of the conservative magazine National Review, penned an attack against Donziger, calling him a “schemer extraordinaire” and accusing him of using “courts in Ecuador to shake down Chevron for $18 billion.”
The article was the latest in a series of National Review articles slamming Donziger stretching back to 2009, including one piece that accused him of running a scam “on behalf of Ecuadorian jungle-dwellers” and another that praised Chevron for being a company that would not “genuflect and pay tribute to multicultural demagogues and hucksters.”
Some, but not all, of the early National Review stories included a disclosure that “Chevron advertises in National Review and has donated to the National Review Institute,” the company’s nonprofit think tank.
None of the articles about Donziger included any disclosure about the outlet’s Chevron ties since 2017, even though Chevron was a “gold sponsor” of the National Review Institute’s William F. Buckley Prize Dinner in 2017 and 2019. A gold-level sponsorship cost $25,000 in 2019, according to the event agenda.
Fowler did not respond to a request for comment.
Donziger says Fowler and his National Review colleagues are some of the only journalists willing to “touch [Chevron’s] crap” because they are “essentially paid by them.” To hear Donziger tell it, he is the first victim of a “new corporate playbook designed to silence those of us who take on the fossil fuel industry.”
Donziger laments his predicament, noting that he has to sleep, bathe, and eat while wearing an ankle bracelet that tracks his location. But he knows that eventually, his struggles will come to an end — unlike many of his Ecuadorian clients.
“People are dying of cancer, living exposed to toxic waste all the time,” he says.
Steven Donziger, along with climate journalist Kate Aronoff, will talk to Daily Poster subscribers tonight, 4/28, at 7 pm ET (4pm PT) about defeating the fossil fuel industry and saving the planet's ecosystem (details here). Live chat events are for Daily Poster supporting subscribers, who get to interact with guests in real time. If you would like to participate, please click here to become a supporting subscriber.
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