NOT SHINY, NOT NORMAL: Chevron Allowed To Literally Prosecute Lawyer For Winning Judgment Against It
Yesterday, the final day of his criminal trial, was Steven Donziger's 650th day under house arrest.
Donziger's crime? Pissing off Big Oil.
For decades, the oil giant had destroyed the local ecosystem, dumping billions of gallons of toxic waste, leaving pits of oily waste water the size of football fields.
In 2011, an Ecuadorian court awarded Donziger's clients $19.5 billion in damages.
Rather than finally pay for some of the damage it had done, Chevron — which has some $260 billion in assets — quickly sold all of its holdings in Ecuador and got to work doing everything it could to get out of paying the people it harmed.
And, in addition to fighting the judgment, Chevron had a new goal: Ruin Steven Donziger's life.
Let's start at the beginning
As you can probably already tell, this is a long and complicated story. So let's start at the beginning.
From 1964 to 1992, Texaco dumped some 19 billion gallons of toxic waste into the area around the Lago Agrio oil field. The pollution and contamination have caused all of the problems you would expect. High cancer rates. Birth defects. Miscarriages. Unsafe drinking and bathing water. Lots of death. In 2000, Chevron bought Texaco, assuming its liabilities.
The case that would eventually be won in Ecuador was originally filed in the United States. It was Chevron that argued the case should be tried in Ecuador. Once the case got to Ecuador, Chevron tried to argue the case shouldn't be brought there, either. Because they would really just prefer it if no courts had jurisdiction over them.
The trial court in Ecuador ruled in favor of Donziger's clients and awarded them $19 billion. The judgment was upheld by Ecuadorian courts, though the country's highest court cut the damages down to $9.5 billion.
To this day, Chevron has not paid a dime for the damage it inflicted on the people of Ecuador. Instead, it quickly sold off its Ecuadorian assets, making it impossible for the plaintiffs to collect on their judgment.
Chevron v. Donziger
Soon after the verdict in Ecuador, Chevron and Donziger were back in court in the US — this time with Chevron accusing Donziger of committing a RICO fraud and bribery.
Chevron v. Donziger, filed in the Southern District of New York, drew Judge Lewis Kaplan to oversee the case. Judge Kaplan, a Clinton appointee, was a career corporate defense attorney before taking the bench. While in private practice, he represented Brown & Williamson Tobacco Corp. and was part of "the inner sanctum of top tobacco lawyers that mapped the companies' joint legal and political strategies."
Originally, Chevron had sued Donziger for some $60 billion in damages. On the eve of trial, Chevron dropped its damages claims, leaving Judge Kaplan to deny Donziger a jury of his peers.
After a bench trial, Judge Kaplan ruled in favor of Chevron, finding in a 500-page opinion that Donziger had fraudulently procured the Ecuadorian verdict. Judge Kaplan's decision was based in large part on the testimony of Chevron's star witness, former Ecuadorian judge Alberto Guerra, whom the judge deemed to be credible.
Chevron paid more than $2 million to move Guerra to the US, pay for his immigration attorneys, and pay him a monthly salary.
Guerra has since admitted that he lied under oath at the 2013 trial. During proceedings in front of the International Arbitration Tribunal, Guerra also described how Chevron employees paid him huge amounts of money, saying things like "Money talks, gold screams."
"One of [Chevron's employees] took me by the arm and said, 'Look, look, look what's down there. We have $20,000 there,'" Guerra explained in his testimony before the tribunal. "Specifically, one of them was the one that led me to take a look at it. It was inside a safe."
In testimony before the tribunal, Guerra admitted that at this point he tried to get more money from Chevron. "At some point, I said, well, why don't you add some zeroes to that amount, and then later on I said, 'I think it could be 50,000.'"
In the order, Judge Kaplan went out of his way to say that Donziger was guilty of criminal activity, despite the fact that Donziger had never been charged with, tried for, or found guilty of any crimes. This order would also be the basis for Donziger's disbarment.
Despite the fact that Chevron dropped its monetary damages claim against Donziger to avoid a jury trial, Judge Kaplan ordered Donziger to pay Chevron $800,000 for doing the RICO.
And by now, Judge Kaplan has ordered Donziger to pay around $10 million in fines, fees, costs, and attorneys fees to Chevron and its lawyers at Gibson Dunn.
US v. Donziger
Because Donziger has only been charged with misdemeanor contempt, he can't be sentenced to more than six months in jail. Meanwhile, he has spent nearly two years under house arrest.
This criminal case is an offshoot of Chevron's civil suit. Because Donziger — who lives in a two-bedroom apartment in New York with his wife and kid and is not, in fact, a billionaire like Chevron — now owes Chevron and its lawyers a lot of money that he doesn't have.
As part of its attempt to collect, Chevron requested access to all of Donziger's electronics — and Judge Kaplan obliged. Donziger, who was worried about his legal and ethical obligations to his clients, objected and appealed the order. While the order was still on appeal, Judge Kaplan ordered Donziger to show cause why he shouldn't be held in criminal contempt.
And just wait, it still gets worse!
Kaplan referred his criminal contempt charge against Donziger to the US Attorney's office. The US Attorney for the Southern District of New York declined to prosecute the case. AND JUDGE KAPLAN JUST CHARGED DONZIGER ANYWAY!
The judge also hand-picked Seward & Kissel, a corporate defense law firm that represented Chevron as recently as 2018, to go after Donziger on behalf of the United States. (Seward & Kissel didn't disclose its attorney-client relationship with Chevron until it had already been prosecuting Donziger for seven months.) Do judges often farm out prosecutions to private counsel? NO! NONE OF THIS IS NORMAL.
Ignoring the standard procedures for case reassignment, Judge Kaplan also chose to assign the case to George H.W. Bush appointee Judge Loretta Preska. Another career corporate defense attorney, Judge Preska took senior status in 2017 so that Donald Trump could appoint another judge to the Southern District of New York. She also tried to kill the CFPB but was overturned by the Second Circuit. Judge Preska is also still active with the Federalist Society, which, as we all know, only likes people who are corporations. Unsurprisingly, the Federalist Society also gets a whole bunch of money from — you guessed it! — Chevron.
Judge Preska denied Donziger's attempts to disqualify both herself and Seward & Kissel from his case.
Seward & Kissel has been paid more than half a million dollars to prosecute Donziger — more than 150 times what a court-appointed criminal defense attorney is allowed to bill for defending indigent clients against a misdemeanor.
Even Donziger's criminal case wasn't heard by a jury. The Supreme Court has decided that criminal defendants with contempt charges are only entitled to a jury trial if the potential sentence is longer than six months, so Judge Loretta Preska was like, "I got this one."
The trial ended on Monday, with Donziger declining to call any witnesses in his defense. Donziger and his lawyers made it clear they did not believe they were getting a fair trial and were preparing to appeal the inevitable guilty verdict.
Martin Garbus, a well-known criminal defense and civil rights lawyer who was name-dropped in The Big Lebowski, told Judge Preska, "No justice will be done here. We know you won't return a verdict of not guilty."
"We spent a lot time preparing for Steven to testify at trial," Kuby said. "But we've also been paying attention to what the court has deemed to be relevant, and nothing that Steven would have to say would be deemed relevant by this court.
"His good-faith efforts to comply with the orders: irrelevant! The Second Circuit's ruling that his belief was completely reasonable: irrelevant," Kuby said. "His attempt to act as a lawyer fighting a case from his kitchen table when he had no legal representation and was facing lawyers who were billing over $3 million: irrelevant.
"So given the fact that the judge has so cabined the case to what the judge believes to be the only issues, he simply has nothing to say in that courtroom, and it's unfortunate but that courtroom is not the last word."
Judge Preska asked the parties to submit briefs in two weeks with their proposed findings of fact and findings of law. She did not give any indication of how quickly she intended to rule. Garbus said he expects Judge Preska to find Donziger guilty in about 30 days.
So that's fucked up
If, at this point, you're wondering whether any of this is normal, the answer is no. It's entirely unprecedented.
Six prominent members of Congress — Jamie Raskin, Cori Bush, Rashida Tlaib, Jamaal Bowman, AOC, and Jim McGovern — have asked Attorney General Merrick Garland to review the case, which is still technically being pursued on behalf of the United States government. Retired federal judges, 68 Nobel laureates, 475 lawyers and legal organizations, 200 law students from 55 law schools, and human rights organizations like Amnesty International have all spoken up in Donziger's defense.
After the trial, Donziger said it was clear he "was never able to get a fair trial before Judge Preska."
He's almost certainly right.
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