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The Supreme Court is deciding whether to intervene in the private prosecution that sent embattled environmental lawyer and human rights activist Steven Donziger to federal prison and nearly 1,000 days under house arrest. The court’s decision whether to take up his case, which could come as soon as this week, could rewrite the separation of powers between the three branches of the federal government.
The case stems from a decades-long legal battle between Donziger and Chevron. In the 1990s, Donziger began representing farmers and Indigenous tribes living near the Amazon River in a class-action lawsuit alleging oil giant Texaco contaminated the rainforest with its drilling operations in Ecuador. Chevron took on the lawsuit after it acquired Texaco in 1999.
In 2009, Ecuadorean courts awarded Donziger’s clients $9.5 billion in damages. Chevron withdrew its assets from Ecuador, refused to pay the settlement, and launched a targeted legal attack against Donziger through the law firm Gibson, Dunn & Crutcher. The company sued Donziger in 2011 under federal Racketeer Influenced and Corrupt Organizations (RICO) laws for allegedly obtaining the ruling in Ecuador through corrupt means.
In 2014, after hearing testimony from a witness who later admitted to lying, Judge Louis Kaplan sided with Chevron and made the judgment in Ecuador unenforceable in U.S. courts. The ruling was devastating for Donziger, leading to his disbarment in New York and the District of Columbia.
When federal prosecutors in the Southern District of New York declined to prosecute Donziger for the alleged offenses, Judge Kaplan appointed a Chevron-connected private law firm to prosecute Donziger on six counts of criminal contempt of court for allegedly defying his orders. Kaplan chose a former member of the Chevron-funded Federalist Society to preside over the case. Private Seward & Kissel lawyers appeared in court on behalf of the U.S., a privilege usually reserved for the Justice Department.
Donziger was sentenced in October 2021 to six months in federal prison, where he remained until that December, when he was transferred back to house arrest under a COVID-related early release program. His sentence has been deemed the longest “ever recorded for a misdemeanor charge,” since he spent more than two years in detention before even receiving a trial.
Kaplan justified the private prosecution by pointing to the court’s inherent authority as well as Rule 42 in the Federal Rules of Criminal Procedure, which states that if the federal government “declines the request” to prosecute criminal contempt, “the court must appoint another attorney to prosecute the contempt.” Donziger asked the appellate courts to intervene by arguing that Kaplan’s decision violated the Constitution’s Appointments Clause, which typically requires federal civil servants be appointed by the president if they wield executive branch power.
A three-judge panel in the Second Circuit Court of Appeals upheld Kaplan’s orders over Donziger’s objection, with Judge Steven Menashi dissenting. In his petition for review, Donziger asked the Supreme Court to resolve whether his prosecutors were judicial or executive officers. A ruling in Donziger’s favor would draw sharper lines between the three branches and influence future lawsuits that challenge the structure of federal power. If the court agrees to hear the case, oral arguments would likely take place this fall, with a decision by July 2024.
Truthout Senior Editor/Staff Reporter Candice Bernd sat down with Donziger in Austin following a talk he gave at the University of Texas School of Law. In addition to providing updates about his own case, in this exclusive interview, Donziger discusses the need for an oil and gas windfall tax; his push to make ecocide an international human rights violation; and his work to raise up other cases of criminalization of environmental activism, including activists’ struggle against “Cop City” in Atlanta.
The following transcript has been lightly edited for length and clarity.
Candice Bernd: Your petition for review of your private contempt prosecution is being considered before the Supreme Court. My understanding of the case is that you are arguing that Judge Kaplan’s justification of your private prosecution violated the Constitution’s separation of powers, specifically the Appointments Clause. President Joe Biden’s Department of Justice (DOJ) has urged the court not to take the case. Can you speak about the significance of the case?
Steven Donziger: This is an extraordinarily important and interesting appeal. I’m basically asking this conservative Supreme Court to back me and declare my private corporate prosecution illegal and unconstitutional. To remind people, I was prosecuted privately by Chevron for a criminal contempt charge filed by a judge who had initially presented the charges to the U.S. attorney in Manhattan. The U.S. attorney refused to prosecute me. This is unprecedented in our nation’s history, and I think it’s a very frightening development that illustrates the degree of corporate capture of our prosecutorial machinery that we’ve never seen. So it’s really important that the court deal with this issue so it doesn’t happen again.
Interestingly, I’ve gotten a lot of support from really an all-star team of lawyers that spans the political spectrum. I have several Federalist Society lawyers from [the Scalia Separation of Powers Clinic], several of them clerked for the conservative justices on the Supreme Court who are representing me, along with Professor Stephen Vladeck of the University of Texas School of Law, as well as the Zuckerman Spaeder firm. These lawyers have rallied behind me because what happened to me is so offensive to the rule of law. The right, the left and the center are united that corporate prosecution should never happen in the United States of America. I’m hoping the court will take the case and reverse the conviction. It’s the last hope I have in the U.S. judicial system to nullify my misdemeanor contempt conviction, which I believe is illegal.
Are you hopeful with the balance of the court as it is now?
I actually think this particular court’s ultra-conservative bent is helpful to me on this narrow issue. I don’t think it’s helpful to the climate movement or to environmental justice generally but on the separation of power issues where judges abuse their power, they’re very open to these arguments because under our system of checks and balances and separation of powers, judges are not supposed to be prosecuting crime; the executive branch prosecutes crime. On top of that, there was a massive conflict of interest because the judge who prosecuted me appointed as prosecutor a Chevron lawyer from the Chevron law firm Seward & Kissel. So you have a constitutional violation to begin with, aggravated by him appointing a lawyer directly from the company against whom I won a large civil judgment. It’s just completely inappropriate and unethical in my opinion, so I hope the court takes the case.
I mean, look, they take very few cases. If they reject the case, it doesn’t mean they agree with what happened. But this is the case to deal with this issue. There’s no more perfect vehicle.
At least 10 members of Congress and more than 100 civil society groups have all called on Biden to pardon you. Obviously, he failed to intervene in your case and his DOJ seems to be siding against you. Could you discuss your prospects for a pardon at this point and where that campaign is at?
All the DOJ did is they opposed my petition for appeal before the Supreme Court. I had wanted them to agree with me, which would have been extraordinary but almost never happens. So that wasn’t a total surprise. However, I do think it reflects a lack of sensitivity by the attorney general to rule-of-law issues. You see this in a lot of cases now happening in the United States where lawyers and climate advocates are being attacked with unduly harsh prosecutions or penalties for challenging the industry that’s destroying the planet. Attorney General [Merrick] Garland, I believe, could be doing a lot more. He’s timid, in many respects, at a time when history calls for boldness. So that was disappointing, but ultimately, we just have to keep fighting and pressuring the attorney general.
As for the pardon, President Biden needs to pardon me now. Usually in a pardon situation, the person has been convicted of a crime or is guilty, and a lot of times when people seek pardons, it’s almost like they’re conceding their guilt that they should be pardoned anyway because of mitigating factors. I don’t believe I’m guilty. I don’t believe I committed a crime, and according to various international legal bodies, like the United Nations, I didn’t commit a crime. No one’s ever been charged with a crime for appealing a civil discovery order. That was essentially my crime. That’s what lawyers do. So given that the U.S. judicial system seems to not want to make space for the rule of law to apply to my work on the Ecuador case, a pardon in this case is completely appropriate even though I believe I’m innocent because there’s nowhere else to turn except to the executive branch.
I’ll add on top of that, the United Nations’ decision by the Working Group on Arbitrary Detention called on the U.S. government to release me, to pay compensation and to align itself with its legal obligations under international law as it regards my case. That’s President Biden’s responsibility. He’s the head of government. It’s not Judge Kaplan’s responsibility, and it’s not the judicial branch’s responsibility — although they should, in my opinion, comply with that decision. Ultimately, President Biden’s role as a leader of the government is to comply with international law, and we have a judicial decision from the United Nations in my case that the U.S. government is not in compliance with the law. So, by pardoning me, as well as taking some other measures, President Biden can realign the United States in my case with its international legal obligations. For that reason and many others, including the need to respect climate advocates like myself, I think it’s important that he takes these steps.
Chevron’s law firm, Gibson Dunn, was recently ordered to pay nearly $1 million over litigation abuse in a recent data privacy case involving Meta. Can you talk about the firm’s history of recent ethical breaches?
Gibson Dunn is an example of a big corporate law firm that is playing a leading role in destroying the planet and creating all sorts of social ills in our country, including undermining tribal sovereignty. I’ve been tracking this law firm for many years because Chevron has literally paid them hundreds of millions of dollars in fees to try to destroy my life. And I’m realizing that there are multiple cases out of that law firm where they abused the law or committed what I believe are unethical acts in service of their scandal-ridden corporate clients, including against me in the Chevron case.
They seem to be able to do this largely with impunity. Even when you call them out, the judges don’t seem to want to stop them. I believe it’s a law firm that has, as an element of its fundamental business model (at least in the litigation department), the abuse of the rule of law on behalf of their clients. Ultimately, it’s designed to intimidate adversaries into submission as opposed to winning claims on the merits. They do it using all sorts of dirty tricks that I believe are either corrupt or borderline corrupt. Ultimately, I think the firm is vulnerable. I think it faces potential civil or criminal exposure for some of the things that it did against me, including paying off a judge from Ecuador to come up and lie about me being involved in a supposed fraud that never occurred.
The larger problem is, there’s a lot of law firms similar to Gibson Dunn. They all make huge sums of money representing the fossil fuel industry to beat back efforts through the law to hold these companies accountable for the negative impacts of climate change. Gibson Dunn represents Chevron in all the lawsuits brought by states and municipalities to collect damages for the weather impacts of climate change. They enrich themselves at the expense of the planet and at the expense of our freedom when they attack activists who try to hold these actors who are destroying the planet accountable. I just think that’s a fundamentally nasty business model for a law firm. I recognize that everyone has a right to a defense, but the way they go about it is abusive, often unethical and sometimes even illegal, in my opinion.
Can you speak about your efforts to make ecocide recognized as a new international crime against humanity and your work in the rights of nature?
One thing I’ve tried to do is transition to a broader approach to creating environmental and social justice as an advocate. I am focusing not only on continuing to try to get justice for the Indigenous peoples of Ecuador’s Amazon, as I have for many years, but also in trying to think of modalities to really use the law to advance the cause of climate justice. At the top of the list is to make ecocide an international atrocity crime. What that would do is hold decision-makers in these fossil fuel companies like Chevron personally liable in a criminal context for the dumping that is destroying the planet, and in Ecuador, killing people with cancers and other related diseases.
Up to this point, when you want to get accountability, you sue the company. To be able to also pull in the individuals responsible would be a major step forward and change the decision-making calculus of the companies to such a degree that I think a lot of these pollution problems that we’ve seen up to this point would not happen going forward. Not to mention it’s just inherently just to hold people accountable for hurting the environment or killing people.
Ecocide should be made a law on the same order as genocide and crimes against humanity, and there’s a proposal to do that. Countries are starting to get behind it. I think that it’s a critical step to use the law to help save the planet. There are other things that need to be done too, like the Fossil Fuel Non-Proliferation Treaty and anti-SLAPP suits to protect activists and lawyers like myself. Things like the Amazon Sacred Headwaters Initiative, climate reparations, they all kind of come in a package of things that are sitting right now in front of all of us and can be easily implemented now. These are not theoretical things to happen down the road. They can happen now.
Chevron and Exxon combined raked in more than $90 billion in profits in 2022. Chevron in particular announced a $75 billion stock buyback. On top of that, BP, Shell and Exxon recently announced that they’re rolling back their climate commitments, including their funding for green energy projects. Can you talk about the need for windfall tax and buyback tax?
Your question raises a number of issues that together reflect the fact that our government seems utterly incapable of standing up to industry that is destroying the planet. I mean, there are so many simple steps that even the Democratic Party can take right now that are not happening. A windfall profits tax is a perfect example. There’s such a tax in the United Kingdom and France. The oil companies, because of the war in Ukraine and other reasons, are making more money than they ever have before while people’s cost of living and energy costs are skyrocketing. It’s just shocking to me, that we cannot impose even a basic windfall profits tax to help defray some of the added expense of high energy costs. It’s fundamentally unfair that all companies are making so much money at a time so many people are suffering.
The stock buybacks illustrate another important point about another issue that has taken root in an in the U.S. economy. Chevron had a $75 billion stock buyback just weeks ago while the people of Ecuador are still waiting for the company to pay them their $9.5 billion pollution judgment to clean up what we call the “Chernobyl of the Amazon” that is literally killing people. It’s a vivid example of how U.S. shareholders enrich themselves at the expense of the world’s vulnerable populations.
So these stock buybacks are illustrative of an out-of-control corporate culture and a complete lack of oversight by government to regulate companies that abuse the public without any consequence.
One of the things that brought me a lot of joy when you were first released was seeing your friendship with Christian Smalls, who led the Staten Island JFK8 Amazon warehouse union struggle, and I was hoping you could talk about that friendship you’ve developed with Smalls and the work you’re doing to bridge the labor and climate movements.
On a personal level, I first met Chris when a mutual friend brought him to visit me when I was on house arrest, and we spent several hours together talking. I realized we had a lot in common. We come from different backgrounds, but our life struggles on the professional side have been very similar. I have tremendous respect for Chris. I think he’s brilliant. I think he’s strong. He’s a man of great character. I think he’s going to be a leader in our country for a long time and do a lot of good for a lot of people. He came to the rally the day I was freed from my house arrest and spoke. We just had an event last week in Los Angeles together talking about our respective, albeit connected, issues.
The more time I spend with him, the more realize how connected the climate movement and the labor movement need to be. So I think the kind of work Chris and I might be able to do together going forward can do a lot of good to create a more powerful force in our society for justice than either of those two movements might do without being connected. There’s historically a lot of labor organizing efforts, depending on the industry, that aren’t necessarily going to jump into the climate issue typically, like in the oil industry. So working through those issues in a way that the working class can benefit across industries, and the planet can be saved, is a real challenge. I think that our relationship and our communication offer a path to maybe try to grapple with and resolve some of these issues.
You’ve been using your newfound freedom to connect your case to other efforts to criminalize environmental activists in the U.S. and abroad. Most recently, you’ve been really vocal about the struggle against Cop City and Atlanta and the 19 environmental activists who’ve been slapped with domestic terrorism charges, as well as the police-perpetrated murder of Forest Defender Manuel Esteban Paez Terán, whose chosen name was Tortuguita. Can you talk about what’s happening in Atlanta and draw parallels you see with your own experience of criminalization?
The state police reaction to the protests at Cop City are part of a very disturbing and growing trend in the United States. The police, the judiciary and other officials are targeting the climate movement to weaken it. I think there’s a direct throughline between my private corporate prosecution by Chevron in New York and these completely overhyped charges of domestic terrorism against peaceful protesters in Atlanta, and also punishments against people like Jessica Reznicek in Iowa who was a courageous climate warrior who engaged in an act of civil disobedience that harmed nobody. She’s serving a draconian eight-year sentence because some judge concluded that she was a terrorist.
Not only does overusing the word “terrorism” to describe people who engage in peaceful nonviolent civil disobedience undermine the word in a way that probably dilutes our understanding of what a real terrorist is, but it’s clearly part of a concerted targeting that I think has been prompted largely by the fossil fuel industry. The idea that people who engage in peaceful civil disobedience like those against Cop City should be charged with domestic terrorism comes out of laws that have to passed in recent years after lobbying by [the American Legislative Exchange Council] and the industry to create these tools to intimidate activists. They’ve been able to get mostly Republican-dominated state legislatures to enact laws that give special draconian punishments to opponents of the fossil fuel industry. A protest at an oil installation or a pipeline, or even an office building where an oil company has its headquarters, can be subject to severe sentences beyond the normal sentence one might get for trespass.
What’s happening in Atlanta is taking this to a whole new level. I think it’s all part of the same trend. It’s not directly related to fossil fuel industry in the sense that it’s really a reaction by the police to the fact these people are trying to block the construction of this extravagant new toy they want to build that is totally unnecessary. But it’s part of the same thing, because if they can use Atlanta as a lab experiment to get convictions that potentially could lead to 35-year sentences for people camping in a forest, they’re going to try to use that to intimidate every young person in this country from engaging as climate activists. I don’t think it’s going to work. Already, most of these [activists in Atlanta] are out on very low bails. Clearly, whatever judge is hearing this case down in the Atlanta area is not fine with what [police are] trying to sell. But the point ultimately is not how the case turns out. The point is, they get the charge out into the community and into the media, and it exists, and people are then criminalized no matter how the case turns out.
Ultimately, it’s sort of what happened to me. I got criminalized for years, and I never had a jury largely because of propaganda put out by an oil company about me based on false evidence that was backed by a judge. Now I’m good, and I don’t think very many people still believe the propaganda they were putting out. But it had an effect for three or four years, where there were many people in the climate movement who didn’t pick up my phone calls. I know what that chilling effect does to people. I felt very isolated. It was designed to make me feel isolated and to destabilize me psychologically. Even if what they’re doing is so outrageous and stands little chance to pull through and prevail in court, they try to kill off people through the process of charging terrorism and making the charges be open and last for as long as possible, even if ultimately, they’re rejected.
That’s what we’re seeing right now in Atlanta. It’s a pure intimidation campaign that has no basis in the law. People who camp in a forest cannot be terrorists by any stretch of the imagination. The problem is they hype it up. The law enforcement agents that are told to invade the forest to clear people who are essentially trespassing on private land are going in thinking they’re going to find people from al-Qaeda. That’s how emotional they get. Because irresponsible political leaders, including all elected leaders in Georgia, by the way — not just the right-wing Republican governor, Brian Kemp, or the right-wing attorney general, but the elected civil rights leaders of Atlanta, including Mayor Andre Dickens — are saying the same thing. And they basically laid the groundwork for this climate activist to be killed, and I am highly suspicious of the police narrative, and I think more and more we’re finding out very disturbing facts. It looks like [Tortuguita was] executed.
The United States has crossed the Rubicon. We never had a police killing of a climate activist in this country in our modern history until a few weeks ago. By the way, a lot of people didn’t even understand that that’s what this was. People thought, ‘Oh, the police said [Tortuguita] shot the police. They shot him back and killed him.’ No, the police completely provoked the incident by going into the forest that morning. You can tell they were bloodthirsty by looking at the pictures. They’ve been hyped up on these fake terrorism charges, and they were they were looking for someone to get the scalpel, in my opinion. This could have been totally avoided. The police never should have been there.
So we need to call this out and make sure it never happens again. But the first thing is figuring out what it is. This isn’t a shootout between an activist and police. This is a police killing of a climate activist for the first time United States history, when hundreds of such activists have been murdered in the last 10 years around the world. The fact that it’s now happened in the United States is a really bad sign. We all need to recognize that the killing of Manuel Terán is a very important killing. I think, ultimately, it’s going to go down in history as one of the pivotal events in the modern climate movement. It’s not unlike what happened to Fred Hampton with the Black Panthers to me.
I’m going do my best to be sure that this person’s memory is protected from police propaganda. It’s taken a lot of years for Fred Hampton story to really get into the popular culture. Too many people reflexively believe the police, although I think fewer and fewer now. Still, we need to protect Manuel’s story, the integrity of the story. Everyone in the movement needs to do that. [Tortuguita] just seemed like an incredibly lovely person and obviously an avowed pacifist. The notion that [Tortuguita] would shoot at a police officer when there’s 100 officers surrounding [them] is not consistent with the evidence or character, so I’m highly suspicious.
There’s a connection there also to East Palestine, Ohio, because Norfolk Southern has donated $100,000 to Cop City. Can you talk about that link?
[Norfolk Southern] donated four times the amount of money it initially offered to the whole town of East Palestine to Cop City. Think about that. The company initially offered $25,000 to a town of 5,000 people. So this is all connected. We have to be smart about how we analyze what’s happening in this country. We need a framework to understand that the common thread in all this is that corporations are trying to basically run our society. I’ve been watching this for 40 years. What’s really new in recent years is the effectiveness with which they’re controlling public institutions that are supposed to protect all of the people. For example, my private prosecution. Those who make prosecutorial decisions in our country are public officials, they’re not corporations. So, for the first time, we now have a corporation deciding to prosecute and detain a climate activist.
The Norfolk Southern rail company in East Palestine made decisions that had a massive impact on the public in [the company’s] own private interest, without government involvement. The perfect example is the decision to detonate the railcars and create a mushroom cloud of poison that has been floating over eastern Ohio, Western Pennsylvania, now for several days, affecting probably hundreds of thousands of people, and there’s no comprehensive testing. I’m proposing that Biden appoint an independent task force to do the cleanup. Polluters can’t clean up their own pollution. The company is treating what is essentially a public health catastrophe as a public relations problem to manage.
The fact that that company would give money to Cop City is an example of how the nexus between corporate abuse and the police state is tightening in our country. Because the more the chemical industry and the fossil fuel industry make these super profits, the more they are operating on the edge of massive industrial accidents. They’re going to need the police more and more to beat the shit out of protesters. So you’re seeing this all over the place. We have many consumer brands that aren’t really known for being be terribly repressive that are giving massive amounts of money to the police. It’s like the corporate classes are all in it together.
I’m not surprised this railroad gave money to the Atlanta Police Foundation, which by the way, should be abolished. I don’t think a police budget should ever be supplemented by private donations; it is a way to completely undermine public control of law enforcement. But another example of the same thing is how [Canadian oil and gas company] Enbridge gave more than $8 million in Minnesota to control public police who were beating the hell out of Indigenous Line 3 pipeline protesters. Since when do corporations get to fund police to carry out repression against people protesting the corporation?
So these are all very disturbing trends that are totally connected, and the common thread is increasing corporate control over the public functions in our society, which is very dangerous. Frankly, I’d never saw this to such a degree in the early part of my career. There was always corporate influence lobbying, campaign donations, but I’ve never seen direct access, financing and control by corporations of public police and judicial functions like we’re seeing today in the United States. People need to see it, to do something about it. You can’t just see police arresting Line 3 protesters and not know that they’re getting paid by Enbridge. That’s wrong. It’s a violation of due process. And then they charge the protesters with felonies who face years in prison based on reports written by police paid by the corporation being protested. That’s not different at all from what Chevron did to me and my prosecution.
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