Spheres of Influence - Donziger vs. Chevron: How A Human Rights Lawyer Was Wrongfully Imprisoned
From my article for Spheres of Influence
With the 2021 U.N. Climate Change Conference (COP26) in Glasgow, Scotland having recently come to an end, there has been little news coverage of the persecution of Steven Donziger. Donziger, an American environmental and human rights lawyer, was sentenced to six months in jail on October 1st, 2021, following a decades-long legal battle with the oil company Chevron.
Since 2019, Donziger has spent 813 days under house arrest, deemed illegal by the U.N., as he awaits trial for criminal contempt of court. Since winning a landmark case against Chevron in 2011, which held the company accountable for $9.5 billion of damages done in the Ecuadorian Amazon, Donziger’s professional and personal life has been under attack by the multinational oil company. He has been disbarred, has had his bank account frozen, and is currently serving 6 months of jail time after surrendering himself to authorities on October 27th. “The last thing any of them wants is for a group of ordinary citizens to see what has happened to Steven Donziger,” said Rick Friedman, one of Donziger’s attorneys.
The Texaco/Chevron Lawsuit
Donziger’s case began in 1993 when he joined the Amazon Defense Coalition’s (FDA) legal battle against American oil company Texaco. Representing 30,000 Ecuadorian farmers and Indigenous people, Donziger and the FDA filed a class-action lawsuit in New York against Texaco. They sought to hold the oil company accountable for 16 billion gallons of toxic waste dumped into the Lago Agrio region of the Amazon rainforest between 1972 and 1992, which polluted the local Indigenous population’s farmlands and water supply. According to Amazon Watch, Texaco gained $5 billion in revenue by disposing of the waste haphazardly.
Texaco attempted to dismiss the charges levied against it by reaching an agreement with the Ecuadorian government in 1995 over its role in the pollution of Lago Agrio, hiring engineering firm Woodward Clyde to carry out a $50 million cleanup operation of the region. The Ecuadorian government released a statement in 1998 claiming that Texaco had met its obligations. However, the cleanup operation was incomplete and only carried out short-term fixes to give the appearance of a solution. The New York litigation continued against Texaco.
Chevron acquired Texaco in 2000, inheriting the lawsuit and immediately claiming that Ecuador’s state oil company, Petroecuador, was primarily responsible for the damage. Unfortunately, Texaco was eventually released from liability after its $50 million cleanup per the 1998 statement by the Ecuadorian government. In hopes to have more legal footing, Chevron then requested that legal proceedings move from the U.S. to Ecuador, where courts were to be “impartial and fair” as described by the corporation’s attorneys. Chevron succeeded in its request: American courts dismissed the case in 2001 for “improper venue,” taking Donziger and the FDA’s battle to Ecuadorian courts.
The Countersuit against Donziger
Despite Chevron’s attempts to shift the tides to its favor by continuing legal proceedings under what it perceived as a more corporate-friendly Ecuadorian court system, which does not involve juries, the FDA and Donziger won the decades-long lawsuit against the oil company. The landmark ruling saw Chevron pay a $9.5 billion settlement for the pollution carried out three decades prior – a breakthrough case incorporating environmental accountability hailed by numerous ecological and Indigenous activists worldwide.
Chevron anticipated its 2011 defeat, moving its assets out of Ecuador in 2009 and launching a 2010 countersuit in a New York federal court accusing Donziger of bribery and fraud. Despite first insisting on moving legal proceedings to the country for “impartiality,” Chevron claimed that Donziger embellished the extent of the pollution and Texaco’s accountability. Chevron claimed corrupt Ecuadorian officials bribed Donziger to win the case to scapegoat the oil company for Petroecuador’s role in failing to mitigate the pollution in Lago Agrio.
Since the countersuit, Donziger has become the target of Chevron’s legal representatives, while the Indigenous groups he represented in Ecuador have not received any of the agreed settlement. In revealed Chevron documents from 2009, company officials made it an explicit long-term strategy to “demonize” Donziger to turn the tide of the legal battle against him. In 2011, Chevron filed a Racketeer Influenced and Corrupt Organizations (RICO) suit, usually levied against organized crime rings, against Donziger. The oil corporation stated it wanted to obtain “injunctive relief against the furtherance of Donziger’s extortionate scheme against the company,” essentially accusing Donziger of extortion. The federal court judge who presided over Donziger’s case was Lewis A. Kaplan, a former corporate lawyer for the tobacco industry who held investments in Chevron.
Donziger and his contemporaries in law attacked Kaplan’s handling of the court case. “He knows the tobacco industry playbook that they used for years and years and continue to use” lamented Donziger. “[And] he worked with the Chevron lawyers at Gibson, Dunn & Crutcher to implement them against me without a jury. And there was nothing I could do about it.” Martin Garbus, a world-renowned lawyer representing Donziger, described Kaplan’s treatment of Donziger as excessively harsh. “In the courtroom, Kaplan displayed a rage, a fury that he channeled against Steve,” Garbus said. “He tried to humiliate him… I’ve never seen a guy eviscerated the way Kaplan tried to eviscerate Steve.” John Keker, another lawyer representing Donziger, described going up against Chevron’s team of 160 lawyers as a “show trial.” Meanwhile, Harvard Law professor Charles Nesson called the bribery accusations against Donziger “a manufactured lie that not even Kaplan stands behind.”
Despite the protests against his handling of the case, Kaplan found Donziger guilty in 2014 for racketeering and subsequently dismissed the Ecuadorian charges against Chevron as “egregious fraud,” legally freeing them from the Ecuadorian court’s ruling for compensation to the Indigenous peoples impacted by Texaco’s pollution.
Kaplan’s charge rested on the key testimony of controversial former Ecuadorian judge, Alberto Guerra, who claimed Donziger bribed him during the trial in Ecuador. After the prosecution, Guerra was revealed to be given over $300,000 in financial benefits, including the facilitation of his family’s move to the United States and a monthly stipend of $48,000. Guerra was also allegedly prepared by Chevron officials more than 50 times before giving his testimony. In the subsequent year, Guerra admitted to an international tribunal that he had lied about and changed his story multiple times throughout the trial. Despite these revelations, Judge Kaplan proceeded with the charges, stating “[the court] would have reached precisely the same result in this case even without the testimony of Alberto Guerra.”
As part of the racketeering charges, Kaplan ordered that Donziger turn in his electronic devices and passport to further investigate the legality of his communications with his clients. Donziger refused and appealed the order on constitutional grounds, pointing to the impact that it would have on his ability to carry out his work and preserve the attorney-client privilege on which the American legal system rests upon. Donziger was disbarred from practicing law in 2018 due to racketeering charges.
The Criminal Contempt Charges
Despite Kaplan’s ruling against Donziger, prosecutors from the Southern District of New York declined to take up the case, seeing the dismissal of the $9.5 billion charges levied against Chevron as a conclusion to the two-decades-long legal battle. With Kaplan’s charges effectively losing the backing of the district attorney’s office and with Donziger’s appeal against the court’s order pending, Kaplan took the unusual, rare action for a federal court judge. He invoked Rule 42, which allows a federal judge to appoint a private law firm to prosecute on behalf of the courts in the event that federal prosecutors refuse to. Kaplan appointed law firm Seward & Kissel, of which Chevron are regular clients, to represent the U.S. government and ensure that the criminal charges would be brought against Donziger.
“Now, it is legal for a judge to appoint a private lawyer to prosecute in those circumstances, but it is not proper to appoint a law firm that has financial ties to Chevron and has an attorney-client relationship with Chevron. I mean, I am essentially being prosecuted by Chevron,” said Donziger.
In 2019, Seward & Kissel subsequently charged Donziger with six counts of criminal contempt of court, one of which was for his refusal to turn in his electronic devices and passport despite his pending appeal. In the leadup to the trial against Donziger by Seward & Kissel, in another unusual move, Kaplan skipped the standard random assignment process for choosing a judge and directly appointed senior District Judge Loretta Preska to preside over the case. Preska has served on the advisory board of the Federalist Society, of which Chevron is a significant financial contributor.
In August 2019, Preska confiscated Donziger’s passport and sentenced him to home arrest while awaiting his trial, where he was to wear an ankle monitor for 24 hours a day. Preska also refused Donziger’s request that a jury hear the criminal case. Twenty-nine Nobel laureates signed a letter in 2020 condemning Donziger’s house arrest, calling it “judicial harassment” by Chevron. In September 2021, a week before Donziger’s sentence, the human rights body of the United Nations requested that Donziger be released immediately and paid compensation for his “deprivation of liberty.”
On October 1st, 2021, after two years of house arrest, Preska found Donziger guilty of all charges and sentenced him to six months in jail, the maximum sentence. She commented, “it seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.” Donziger rebuked Preska, maintaining his innocence. “I’ve been fighting through the law to help the people of Ecuador for almost 30 years,” he said. “For that reason, I cannot today express remorse for actions that I maintain are ethical and legal.” On October 27th, Donziger surrendered himself to authorities to begin his jail sentence.
A Case of Corporate Legal Maneuvering
While restrictions on freedom remain a recurring theme in contemporary American domestic news, from anxieties surrounding schools incorporating “critical race theory” to issues of social media censorship and vaccine mandates, the case of Steven Donziger, a substantial attack on the freedom of an American citizen persecuted for practicing his profession, goes unreported. The attack on Donziger’s professional and personal life reflects corporate donors and lobbyists’ ever-growing influence over American institutions, the same institutions intended to uphold the values of democracy and freedom that the media inflames.
“Corporate influence over our federal judiciary has increased dramatically in recent years,” said Donziger after the trial, “This firm [Chevron] has captured an element of power from the government and deployed it against a human rights activist.”
Donziger’s trial not only involves issues of corporate influence within the US but globally. It reflects the transnational power held by multinational corporations such as Chevron in today’s globalized economy. “The most important feature of this case,” added Donziger, “is the people of Ecuador… What Chevron has tried to do is make this about me, and not about the environmental crimes it has committed in the [Ecuadorian] rainforest.” Indeed, the United States ultimately determined the legal outcome concerning damages done in the Ecuadorian Amazon despite the Ecuadorian court’s ruling. This debacle shows the exploitative loophole-ridden web the globalized economy finds itself in. Corporate actors take any available advantage to maximize profits and minimize their accountability – whether transnationally maneuvering around paying taxes or going through legal circuses to prevent environmental accountability.