Donziger Files Response to 'DOJ's Disastrous Decision to Side With Chevron'

The legal team of human rights attorney Steven Donziger is challenging what he describes as the U.S. Department of Justice's "disastrous decision to side with Chevron and back private corporate prosecutions."

At issue is the DOJ's recently submitted brief in opposition to Donziger's pending appeal of his widely criticized contempt of court conviction. Donziger's reply to the Justice Department's December 16 brief was filed Tuesday at the U.S. Supreme Court.

In 2011, a Donziger-led legal team representing more than 30,000 farmworkers and Indigenous people harmed by over three decades of oil drilling in Ecuador won an $18 billion judgment against Chevron for deliberately dumping more than 16 billion gallons of toxic wastewater and other hazardous pollutants in the delicate Amazonian ecosystem—an act that caused a " rainforest Chernobyl." Punitive damages were later reduced to $9.5 billion.

Although the historic ruling against Chevron was upheld by the Ecuadorian Supreme Court, the oil giant moved its operations out of the country to avoid paying for cleanup, alleged that the $9.5 billion settlement had been fraudulently obtained, and launched what six House Democrats described last year as an "unjust legal assault" on Donziger.

In July 2019, U.S. District Judge Lewis A. Kaplan of the Southern District of New York, a former corporate lawyer with investments in Chevron, held Donziger in contempt of court for refusing to turn over his computer and cellphone, a move that would have disclosed privileged client information.

Soon after, Donziger began his "completely unjust" 993-day detention on a misdemeanor charge that carries a maximum sentence of six months.

Donziger has received support from United Nations human rights experts and nearly 70 Nobel Prize Laureates, including 1997 peace prize recipient Jody Williams, who argued in May 2021 that Donziger's house arrest and the criminal contempt case against him was a "gross miscarriage of justice" meant to dissuade others from challenging corporations' human rights violations and ecological crimes.

"If he's a principled lawyer taking on a powerful corporation and the justice system punishes him, that has a profound chilling effect."

Along with dozens of other Nobel prize winners, Williams asked U.S. Attorney General Merrick Garland to investigate Donziger's predicament, writing that "a high-level review will reveal that the case clearly is a violation of Mr. Donziger's rights and the rights of the affected communities in Ecuador."

Garland's DOJ, however, refused to reassert main jurisdiction over the case. Although the U.S. Attorney's Office for the Southern District of New York chose not to prosecute Donziger's misdemeanor contempt of court charge, Kaplan hand-picked a right-wing colleague, Judge Loretta Preska, to hear the case.

Kaplan and Preska, previously a leader in the Chevron-funded Federalist Society, then selected Rita Glavin, an attorney at Seward & Kissel LLP, to act as a special prosecutor even though her law partner was a former member of Chevron's board of directors and Chevron had been one of the firm's clients as recently as 2018.

Despite the fact that he had already been confined to his home for 24 months, including more than 20 months pretrial, Donziger was convicted by Preska in July 2021 and later sentenced to six months in federal prison, a term that he finished on house arrest.

Following Donziger's conviction, Democratic Sens. Ed Markey (Mass.) and Sheldon Whitehouse (R.I.) sounded the alarm about the use of private prosecutors in the federal court system.

When Donziger was behind bars late last year, nine House Democrats implored Garland to "take immediate action" to secure his release.

"Donziger sits in a crowded federal prison because a Chevron attorney made it so, without executive branch supervision or ever seeing a jury of his peers," the lawmakers wrote. "As the United States is a party to the district court case against Mr. Donziger, we request that you act immediately to reclaim control of this case, dismiss the charges, and free Mr. Donziger from his imprisonment."

The DOJ declined to intervene on Donziger's behalf. So too did U.S. President Joe Biden, who was asked by more than 100 human rights groups to pardon Donziger.

An appeals court upheld Donziger's conviction in a split decision this June, two months after he was released. In September, Donziger appealed his conviction to the Supreme Court, arguing that the DOJ's lack of supervision during his prosecution violated the U.S. Constitution's separation of powers.

Less than two weeks ago, the Justice Department filed a brief in opposition to Donziger's pending Supreme Court appeal, prompting the environmental lawyer's Tuesday response.

"Progressive movements rightly saw [Donziger's case] as an attempt to criminalize corporate accountability, and that hit a nerve," Rep. Jamaal Bowman (D-N.Y.), who was among the progressives pushing for Donziger's release, toldThe Hill on Tuesday. "If he's a principled lawyer taking on a powerful corporation and the justice system punishes him, that has a profound chilling effect."

"We can't become afraid of fighting for what's right," Bowman continued. "Donziger's work was important. I'm thankful he's free now, but he shouldn't have had to fight for that freedom."

According to The Hill, in interviews, "Donziger expressed concern that he was a test case for what he called the corporate capture of American civil institutions by energy giants like Chevron, with a goal of silencing opposition."

"The industry's figured out that if they can control the courts, or at least, influence them to a great degree, they can prevent themselves from being held accountable and obtain effective impunity for their misdeeds, for their wrongdoing, for their pollution, [and] for the harm they cause," Donziger told the outlet.

"That doesn't mean that we shouldn't use our courts," he added. "We must—there are ways to use them effectively in climate justice—but make no mistake about it, the U.S. federal courts right now are very hostile to climate cases" due to a decadeslong Republican campaign to create a judiciary friendly to Big Oil.