NOT SHINY, NOT NORMAL: Chevron Allowed To Literally Prosecute Lawyer For Winning Judgment Against It
US vs. Donzinger? THIS WHOLE CASE IS OUT OF ORDER.
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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Save the cheerleader, save the First Amendment.
"fuck school fuck softball fuck cheer fuck everything."
Those words, posted by a frustrated cheerleader to social media, are now in front of the Supreme Court.
This week, the Court heard arguments in Mahanoy Area School District v. B.L., a case that could shape students' rights for a generation.
Here's what happened
In 2017, Brandi Levy was a sophomore at Mahanoy Area HIgh School in Pennsylvania. She tried out for the varsity cheerleading squad, didn't make the cut, and was assigned to the junior varsity team instead. Frustrated, she posted a picture of herself and a friend flipping off the camera to Snapchat, with the caption "fuck school fuck softball fuck cheer fuck everything."
Someone sent another cheerleader a screenshot of the post and she narced to her mom, who was one of the cheerleading coaches. While one would hope that grown-ass adults would be above wading into teenage cheerleading drama, they instead were the ones who esalated things.
This is normal teenager stuff that happens literally every day. But the adults found themselves incapable of being the grown-ups in the room. In the end, Levy (now attending Bloomsburg University of Pennsylvania ) got kicked off of the cheerleading squad for a year as punishment for ... using a swear on the internet.
Okay, now we can continue.
Schools and speech
Levy was off-campus — and it was the weekend — when she posted her snap, so the issue here is what authority the school has to punish her. And this is, believe it or not, the first Supreme Court case to really get into students' free speech rights on social media.
As social media became ubiquitous for young people, public schools and courts alike have struggled with what to do about it. Issues about speech outside of school run the gamut in terms of seriousness. One the one side, you have things like a cheerleader using a swear word on the internet outside of school, which should — fairly obviously, IMO — be outside the reach of school discipline. But, on the other end of the spectrum, you have bullying so pervasive it drives children to suicide.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
Since Tinker, courts have looked at whether speech happened on-campus or off-campus as an important component of when schools can punish student speech. Under the traditional case law, schools can't punish off-campus speech unless it's at a school-related event. This was the justification the Court used in 2007 to uphold the "BONG HiTS 4 JESUS" kid's suspension in Morse v. Frederick — he held up said banner at a school-sponsored event.
This case is about more than an outsized punishment for something a public school has no business intervening in. If the school district has its way, schools will be able to punish students for all kinds of speech, no matter where or when or how it happens, if it "disrupts" the school environment.
How this one ends up is anyboody's guess — especially because this is exactly the type of case that can result in strange bedfellows. The traditional liberal and conservative labels don't always hold when it comes to issues of free speech. The ACLU's national legal director, David Cole, who argued the case on behalf of Brandi Levy, told the Washington Post that, "You won't find another case in the past decade with such a diverse range of groups on the same side. We have support from the right to the left, from students to administrators, from civil rights groups, religious liberty organizations and red states." The Biden administration, on the other hand, sided with the school.
Right now, the only justice whose vote seems clear is Clarence Thomas, who wrote a concurrence in Morse to say that he thinks students have no free speech rights whatsoever and Tinker was wrongly decided. Because of course he did.
At the argument, most of the judges seemed to struggle weighing the facts of this case against any broader rules the Court could set. The justices acknowledged this, with Justice Breyer saying, "As far as I can see, I can't write a treatise on the First Amendment in this case." Justice Kegstand agreed, saying he "strongly share[d] Justice Breyer's instincts [...] that we probably can't write a treatise here and shouldn't write a treatise here and can't foresee all the things that could arise in a lot of the hypotheticals that have been raised."
Based on how oral arguments went, the best outcome would probably be SCOTUS punting the issue of punishing off-campus speech and just saying Levy's speech was protected. This is a complicated issue and a confused Supreme Court issuing a ruling when it doesn't fully grasp the nuances of free speech in the age of the internet can't be a good thing for anyone.
Fuck this school, fuck this case, fuck everything
This case is a school overstepping its bounds and punishing a teenager for normal teenage behavior that happened outside of school. The Court doesn't need to write a treatise on First Amendment law to see that the outcome here was wrong.
Brandi Levy vented about something frustrating on social media. She didn't even name, let alone bully, any other students. She did a normal thing that other normal teens do every damn day.
If anyone's behavior should be scrutinized here, it isn't the 14-year-old girl.
This isn't a case about cheerleading. It isn't even really a case about Brandi Levy.
It's a case about adults who should know better.
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New York State Rifle & Pistol Association Inc. v Corlett looks like it will be a bloodbath.
At the very least, this case is almost certainly going to make it easier for people to carry guns with them in public. And at the worst, it could be used to gut any number of gun control laws across the country.
Concealed carry for everyone!
New York and seven other states make people show "good cause" to get a concealed carry permit. More than one-quarter of the US population lives in those states.
Concealed carry laws were some of the first firearms restrictions in the country and the New York law at issue in this case has been on the books since 1913. If you want to carry a gun in public for something like going to a shooting range, you can get a limited license to carry it specifically for that purpose. But to get an unrestricted concealed carry license, you have to "show a special need for self-protection distinguishable from that of the general community."
Now, the New York State Rifle & Pistol Association and two men who were denied concealed carry permits are arguing that "law-abiding citizens" have a god-given Second Amendment right to take their guns wherever they please — and the Supreme Court appears poised to agree with them. The crazies are represented by former George W. Bush solicitor general and go-to Republican lawyer Paul Clement.
The fact that the Court took the case at all indicates which way it's going to rule. The Second Circuit upheld the lower court's dismissal of Corlett and courts that get to pick and choose which cases to hear don't tend to agree to hear something just to say, "Great job! Well done!"
There's also the little matter of our current Court ...
Laws, judges, and guns
The text of the Second Amendment reads in full, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
A lot of people don't realize this, but the first Supreme Court case to recognize an individual right to bear arms wasn't decided until 2008. And, spoiler alert, it wasn't good.
Until recently, the controlling Supreme Court case was US v Miller, which held that the Second Amendment was a collective right, not an individual right, and looked at whether the law in question had "some reasonable relationship to the preservation or efficiency of a well regulated militia."
In DC v. Heller, the Supreme Court ruled for the first time that the Second Amendment protects the individual right to own guns. The Scalia-drafted opinion, while touting itself as "textualist," almost entirely ignored the part about the "well regulated militia." Striking down DC's handgun ban, the Court ruled that the Second Amendment gives individuals the right to own and use guns.
Justice John Paul Stevens, who served on the Court for 35 years, called Heller "the Supreme Court's worst decision of [his] tenure." And, in a memoir written after his retirement, Justice Stevens said that Anthony Kennedy, then the Court's swing vote, was able to get "some important changes" made to Scalia's original draft of the Heller opinion.
Justice Kennedy's hedging is what likely resulted in the passages in Heller that offered moderation, like the part about how "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms[,]" and other "presumptively lawful regulatory measures[.]"
Our new Court is unlikely to have any such qualms about obliterating our nation's gun control laws. At least two of Trump's three Supreme Court appointees have already written about how much they love guns. In 2011, on the DC Circuit, Justice Kegstand dissented in another case styled Heller v. DC, arguing that DC's gun registration requirement and ban on semi-automatic assault rifles were unconstitutional. And on the Seventh Circuit in 2019, Amy Bony Carrot declared in her Kanter v. Barr dissent that it was unconstitutional to prevent felons from owning guns — at least without "proving the felon is violent." These dissents put them to the right of even Scalia's opinion in Heller.
Yup, it's all bad.
I'm sorry. I have no glimmer of hope to offer with this one. Unless Democrats magically grow spines and do a little court-packing, there is no way to save us from the horrors this Supreme Court is going to make a reality.
The Heller and McDonald opinions, while terrible, at least included some caveats. With no voice of moderation left on the right side of the SCOTUS bench, there may be no end to what formerly "presumptively lawful" gun control laws this Court obliterates.
But hey, maybe it will be fun to see an associate justice of the Supreme Court stand behind the bench while shouting the words "I LIKE GUNS, OKAY?!"
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It's nice to have a Department of Justice that gives even the smallest of shits about police officers murdering Black people.
Derek Chauvin has been convicted of murdering George Floyd, but our work on police reform is still just beginning.
Luckily, we no longer have a DOJ run by a fascist or a man who even Republicans considered too racist to be a federal judge. Following Chauvin's guilty verdict, Attorney General Merrick Garland reminded us that this week's "verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis[,]" and announced an investigation into the Minneapolis Police Department, "to determine whether the Minneapolis Police Department engages in a pattern or practice of unconstitutional or unlawful policing."
And that's not all. The DOJ is also considering bringing federal charges against Chauvin — both for murdering Floyd and for beating and choking a 14-year-old Black child in 2017.
The DOJ's civil investigation
will include a comprehensive review of the Minneapolis Police Department's policies, training, supervision, and use of force investigations. It will assess the effectiveness of the MPD's current systems of accountability, and whether other mechanisms are needed to ensure constitutional and lawful policing.
Investigators will speak to members of the community and cops, review all the evidence, and come to an informed conclusion. The DOJ will "assess whether the Minneapolis Police Department engages in a pattern-or-practice of using excessive force, including during protests" and "whether the MPD engages in discriminatory conduct and whether its treatment of those with behavioral health disabilities is unlawful."
If the DOJ decides there's "reasonable cause unconstitutional or unlawful policing," it will issue a public report, like the absolutely devastating report the DOJ released about policing in Ferguson, Missouri following Michael Brown's murder.
The Justice Department could also file a civil lawsuit seeking changes to the department's policies and procedures. At the press conference, Garland noted that, "Usually when the Justice Department finds unlawful practices or patterns of practices, the local police department enters into a settlement agreement or a consent decree to ensure that prompt and effective action is taken to align policing practices with the law."
The investigation will be handled the Justice Department's Civil Rights Division. Biden's nominees for the top posts in the division, civil rights attorneys Kristen Clarke and Vanita Gupta, are being considered by the Senate now. Republicans are being predictably terrible in their opposition to two WOC civil rights lawyers. Despite their Republicans' racist nonsense, Gupta's nomination advanced 51-49 this week, with Lisa Murkowski joining Dems in the vote.
Kneeling on the necks of Black people while they beg for air is apparently nothing new for convicted murderer Derek Chauvin. ABC News reports that, while prosecutors in Minnesota were getting ready for Chauvin's murder trial, "they received a series of videos depicting Chauvin's handling of another case three years earlier that by their own description shocked them."
These videos, from 2017, show Chauvin attacking a 14-year-old child, "striking [the] Black teenager in the head so hard that the boy needed stitches, then allegedly holding the boy down with his knee for nearly 17 minutes, and allegedly ignoring complaints from the boy that he couldn't breathe."
State prosecutors in Minnesota received the videos last year, while they were preparing for Chauvin's murder trials. One of those prosecutors, Matthew Frank, wrote in a court filing that, "Those videos show a far more violent and forceful treatment of this child than Chauvin describes in his report [of the incident]."
Judge Cahill barred prosecutors from bringing up the 2017 brutality during Chauvin's murder trial. But now, the feds are looking at bringing federal charges for both the 2017 attack and Floyd's murder.
Investigate Them All
As we all should know by now, both police brutality, in general, and violence against Black people, in particular, are nationwide epidemics, not confined to the streets of Minneapolis and Brooklyn Center.
Hopefully, the investigations into MPD and Chauvin are precursors to more investigations to come. We cannot allow police to continue to murder and brutalize people of color with no consequences.
It's a good sign that Merrick Garland is already focusing on these issues, less than two months into his term as AG. Like he said after the Chauvin verdict,
The challenges we face are deeply woven into our history, they did not arise today or last year. Building trust between community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.
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