Citing Donziger Case, Dems Raise Alarm About Use of Private Prosecutors in Federal Court

The case of an American human rights attorney who won a multibillion-dollar judgment against one of the world's largest oil companies and has spent the past two years on house arrest led a pair of Democratic U.S. senators on Thursday to raise questions and concerns about the use of private prosecutors in the federal court system.

"The case of environmental lawyer Steven Donziger has garnered significant attention and shined a spotlight on private prosecutions of criminal contempt charges."
--Sens. Ed Markey and Sheldon Whitehouse

Sens. Ed Markey (D-Mass.) and Sheldon Whitehouse (D-R.I.) revealed Friday that they sent a letter (pdf) to Judge Roslynn R. Mauskopf, director of the Administrative Office of the U.S. Courts, with inquiries about the practice and federal rules of criminal procedure.

"Recently, the case of environmental lawyer Steven Donziger has garnered significant attention and shined a spotlight on private prosecutions of criminal contempt charges," the pair wrote. "These prosecutions are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system."

Specifically, Markey and Whitehouse want to know how often federal judges have charged individuals with criminal contempt under Rule 42 and how frequently the government declined to prosecute, resulting in the appointment of a private prosecutor, over the past five years.

They also inquire about outcomes, asking: "Are there disparities in dismissals, convictions, plea bargains, or sentences in public-prosecutor contempt cases versus private-prosecutor contempt cases?"

Markey and Whitehouse further request information about the selection of private prosecutors.

They asked about potential tests that judges must apply in determining whether a private prosecutor is "disinterested," citing the U.S. Supreme Court's 1987 decision in Young v. United States ex rel. Vuitton et Fils, as well as whether private prosecutors appointed under the rule must disclose conflicts of interest, and how the court avoids such conflicts.

The senators inquired about ethics rules governing private prosecutors--including whether they differ from policies for public prosecutors--and those for judges appointing private prosecutors. They wondered: "Should there be a pool of private prosecutors from which random selection is made?"

Rule 42 states in part, "If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents." Noting that, they asked:

Must a judge recuse him- or herself under this provision before a judge transfers a criminal contempt case to another judge? Is a judge permitted to hand-select another judge to preside over the prosecution of a criminal contempt case rather than follow standard random assignment processes?

Markey and Whitehouse's final question for Mauskopf was: "What additional procedural safeguards are necessary to ensure fair prosecutions for criminal contempt under Rule 42?"

Their letter includes key details about the experience of Donziger, who has been under house arrest for over 700 days. His case has provoked international outrage and demands for investigations.

On Monday, U.S. District Judge Loretta Preska found Donziger guilty on six counts of criminal contempt of court. According toGizmodo, "No sentencing date has yet been set, but he could be forced to serve six months or pay a fine of up to $5,000."

Donziger joined lawyers and scientists investigating health and environmental impacts of oil industry activity in the Ecuadorian Amazon in the early 1990s. Nearly two decades later, in 2011, he won billions of dollars in damages for thousands of people affected by Chevron's pollution of the region, a decision upheld by Ecuador's Supreme Court. Rather than paying up, Chevron has alleged fraud and fought back.

Following the initial ruling in 2011, Chevron filed a Racketeer Influenced and Corrupt Organization (RICO) lawsuit against Donziger in New York City. U.S. District Judge Lewis A. Kaplan of the Southern District of New York, a former corporate lawyer with ties to Chevron, ruled in 2014 that the Ecuadorian judgment was the result of fraud and thus invalid.

During the appeals process, Kaplan ordered Donziger to turn over his electronic devices to Chevron--which the attorney refused, pointing out that doing so would violate attorney-client privilege. Kaplan responded by charging him with six counts of criminal contempt of court.

The U.S. Attorney's Office for the Southern District of New York declined to prosecute Donziger. However, in 2019, Kaplan appointed the private law firm Seward & Kissel--which, it was later revealed, had represented Chevron as recently as the previous year--to pursue the prosecution.

Kaplan also selected Preska, who is affiliated with the Chevron-funded Federalist Society, to preside over the case. She is the judge who found Donziger guilty on Monday. In a 245-page ruling (pdf), Preska wrote that Donziger "repeatedly and willfully" defied Kaplan's orders and "it's time to pay the piper."

After the decision, Donziger said that "we have a strong appeal and I look forward to the opportunity to brief the appellate court on this obvious travesty of justice," adding: "I also repeat my call for Judge Preska to release me immediately so I can return to my human rights work and help those in Ecuador who are suffering and dying because of Chevron's dumping of billions of gallons of cancer-causing toxic waste into the Amazon."

Rep. Jim McGovern (D-Mass.), in a pair of tweets, reiterated his demand that U.S. Attorney General Merrick Garland review "the deeply concerning process by which this case played out."

In April, ahead of Donziger's repeatedly delayed criminal contempt trial, McGovern joined five other House progressives in sending a letter with that demand directly to Garland, noting "the equally troubling signal it sends to frontline communities in urgent need of legal support."

"The fight against corporate power and greed is one of the key environmental and economic justice challenges facing our planet," Rep. Rashida Tlaib (D-Mich.) said at the time. "Indigenous Amazon communities won one of the most important class action lawsuits ever, holding Chevron accountable for environmental devastation with nearly $10 billion in damages, and ever since Chevron has sought to use its money and power to illegitimately nullify this result."

"I am proud to stand with my congressional colleagues in calling for Attorney General Garland to investigate the unprecedented and unjust legal assault on their attorney Steven Donziger," she added, "and to fight back against unchecked corporate power rigging our justice system."