Steve Donziger has dedicated the latter part of his life to fighting oil companies’ greedy destruction of indigenous lands and peoples in the Amazon. After a decades-long legal battle against Chevron, which Chris Hedges details in a recent column for Scheerpost, Donziger was charged with misdemeanor civil contempt for refusing New York Judge Lewis A. Kaplan’s orders to turn over to Chevron his client communications—which would force him to violate attorney-client privilege— his personal electronics, his passport and to cease trying to collect the $9.5 billion from Chevron for his Indigenous clients. As a result, he has had his law license revoked and has been confined under house arrest in New York since August, 2019, wearing an ankle tracking bracelet. He is buoyed by the support of 29 Nobel laureates and 475 lawyers and legal organizations that issued statements of support, along with countless other supporters.
The Harvard-educated attorney’s fight against the oil giant began in 1993 when he joined other lawyers on a case in which five Amazonian tribes in Ecuador sued Texaco–which was later purchased by Chevron–for what Donziger calls “mass industrial poisoning.” On this week’s installment of Scheer Intelligence, the attorney speaks from his Manhattan apartment with host Robert Scheer and goes into detail about a harrowing story that ultimately reveals how much power multinational corporations wield in the U.S. and abroad, as well as just how broken the American judicial system is.
“Chevron went into Ecuador in the Amazon in 1964 and signed a contract with the then-military government of Ecuador to drill in an enormous, 1500-square-mile area of delicate rainforest, where five indigenous groups were living,” explains Donziger. “And they proceeded to drill roughly 400 wells, and they used substandard practices; they dumped literally, systematically and deliberately, billions of gallons of toxic waste into rivers and streams [that] the indigenous people relied on for their drinking water. They basically deliberately poisoned an entire swath of rainforest, knowing it would cause cancers and other diseases and end up killing a lot of people.” (See VICE video.)
After Donziger’s clients were awarded $9.5 billion from a Ecuadorian court, Chevron has fought payment and has since mired Donziger in a legal quagmire that has spanned multiple trials in Ecuador, Canada, and the U.S., and it now appears that the oil company will stop at nothing to keep from paying the judgment. You can read more in The American Prospect piece titled, “The Government Gave Big Oil the Power to Prosecute Its Biggest Critic,” which also provides details about the questionable actions of Judge Kaplan, who was recently condemned by 200 lawyers.
U.S. Judge Kaplan let Chevron pay a key witness, fabricate evidence, and manipulate the law to “demonize” me after I helped Indigenous peoples win historic Ecuador pollution judgment. Dozens of legal groups now seeking official ethics investigation.https://t.co/nhCJ5MMyM9— Steven Donziger (@SDonziger) September 2, 2020
Listen to the full conversation between Donziger and Scheer as they discuss the court maneuverings that have kept the American citizen under house arrest for over a year without a trial and the conspicuous lack of media interest in his remarkable story.
Natasha Hakimi Zapata and Narda Zacchino
RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence. In this case, the intelligence will come from Steven Donziger, an attorney. By way of introduction, [I’ll] just read you the headline on the American Prospect’s story about your case. You’re now under house arrest, Steven Donziger is, in his own home in New York.
But I want to read the headline in the American Prospect, because I think it summarizes your whole situation. Quote: “The Government Gave Big Oil the Power to Prosecute Its Biggest Critic.” OK? And what they’re talking about is a case that Steven Donziger, fresh out of Harvard Law School, and some years working as a public defender and working also on Iraq War crime cases, took on a case in the Amazon of people who ever since back in the early sixties had been polluted and had their environment destroyed, and death visited upon them, and illness, by the old Texaco company, which came to be acquired by Chevron.
And Steven Donziger took up a case defending the rights of these–not all indigenous, about 20% indigenous, and the rest people living in Ecuador, in this area. And won the biggest lawsuit against an oil company, maybe against any company on environmental. It ended up being over $9 billion. So now, as a reward, no good deed goes unpunished–this incredibly good deed, and certainly in the eyes of anybody who cares about the environment and the people who live in it, was rewarded with a punitive judicial practice. And I’m going to let you introduce federal judge[s] Lewis Kaplan and Loretta Preska, and really tell us what you’re up against now.
SD: Well, thank you, Bob. I really appreciate the opportunity to share my story. I’ve been wearing an ankle bracelet, as an attorney, on a 24/7 basis since August 6 of last year. Not this year, but last year. It’s been over 13 months I’ve been in my apartment without trial.
The basic story is, I helped my clients in Ecuador, me and several other lawyers, we won a big pollution judgment against Chevron in 2011. It’s been affirmed by multiple appellate courts in Ecuador, including the Supreme Court of Ecuador. It’s been affirmed for enforcement purposes by several appellate courts in Canada, including the Supreme Court of Canada. The reason we had to go to Canada is because Chevron has pulled out all the stops: never to pay the judgment; they threatened the indigenous peoples with a lifetime of litigation if they persist in pursuing their claims. And this ultimately is probably the most well-financed, extensive, corporate retaliation and intimidation campaign ever directed against communities and their lawyers in a litigation context.
The reason I’m in detention is because as we began to succeed in Canada to enforce the judgment against Chevron’s assets in that country, they went to a U.S. judge here in New York, Lewis A. Kaplan. Kaplan is a former tobacco industry defense lawyer known widely for his very harsh tactics targeting lawyers and parties he doesn’t like here in New York. And they asked him to go after me, and he let Chevron put in evidence from a witness paid $2 million by the company, prepared–or coached, I should say–[for] 53 days by Chevron lawyers at the Gibson Dunn law firm to claim I bribed a judge in Ecuador, when there was no evidence that happened, other than this man’s testimony. This man’s name is Alberto Guerra. The paid Chevron witness later admitted lying in court. And there’s no evidence to suggest that what he said was true; there’s, again, no corroborating evidence.
But based on that, and even though his findings have been rejected by 29 different appellate judges in Ecuador and Canada, Judge Kaplan ordered me to turn over my computer and cell phone to Chevron’s attorneys in the middle of the litigation. I consider this to be an illegal order. No one’s ever heard of a lawyer being told to turn over his case file to opposing counsel in the middle of a litigation. I appealed it, and while it was on appeal, he charged me with criminal contempt of court by not turning over these materials, which would have violated my own rights and put the lives of my clients in danger, and put the lives of other lawyers in danger with whom I was working in various jurisdictions around the world. My appeal of that order is still pending. But in the meantime, Judge Kaplan–because he likes to play hardball, and I think he abuses his power–had me detained prior to trial on this, you know, criminal contempt charge that he came up with, that was really in my view intended to block my appeal and block the broader advocacy effort to hold Chevron accountable.
I’ll note that never in the history of the United States, as far as our research shows, has any lawyer who’s been charged with criminal contempt by a judge ever been held pretrial even one day, in jail or at home. And I’ve been now held 13 months, again, without trial. They are treating the case as a misdemeanor, meaning my maximum sentence I could get if convicted is six months in prison. I’ve already been 13 months at home. Because of COVID, it’s very unclear when the trial can happen. There has not been even a single criminal trial in New York since prior to the emergence of COVID, the pandemic, last March. And the fact that Judge Kaplan and the judge he appointed to oversee the trial, Loretta Preska, won’t let me out, again, is in my view an abuse of power. And we’re fighting it the best we can.
But I’ll also mention that there’s a very unusual feature to this case, which is Judge Kaplan was required by law to take his criminal charges against me to the U.S. Attorney to see if they would prosecute me. That is, the SDNY, Southern District of New York. And that office refused to take the case. And when they refused to take the case, Judge Kaplan appointed a private law firm by the name of Seward & Kissel to prosecute me. But Seward & Kissel has extensive ties to the oil and gas industry. It has several clients that do business with Chevron, or are in some way related to Chevron. And the person he appointed, a lawyer named Rita Glavin
, who used to be a federal prosecutor but she’s now a private practice partner in this law firm while she prosecutes and detains me pending this trial, this misdemeanor trial.
So it’s all not right. It’s, in my view, very unethical. The prosecutor has an egregious conflict of interest, and as the American Prospect pointed out, this really is probably the first time in U.S. history that the government has turned over to an oil company the power to prosecute its critic. And as a result, I’m the first lawyer ever held in detention for this kind of charge.
RS: The mass media has not really dealt–I mean, when I got involved with reading this, because I publish Chris Hedges on Scheerpost, and he did a very good job. The Intercept had some very good reporting. Am I missing some others? There are some–Greenpeace had a good account. But generally, I didn’t find much in the mainstream media. Can you point us to any others that listeners might go to, to get a fuller account?
SD: Yeah, thank you, Bob. It’s interesting you bring that up. I mean, in recent years, it’s mostly been, you know, the more independent media that’s covered this case. You know, Scheerpost, The Nation, The Intercept have written some good articles; American Prospect and others. The legal press is covering it a little bit, New York Law Journal. But I don’t know. I don’t understand why the New York Times, for example, has not published a story about this. And you know, there’s different theories about it. I will say that Chevron runs a very aggressive intimidation campaign, not just against lawyers and advocates like me and others who work on the case, and they throw their advertising muscle around as well.
And I know for a fact that in the New York Times, they actually did assign a story a few months ago, a detailed feature story where the reporter started to work on it. And ultimately it got killed after about two weeks because of what I believe was pressure from Chevron, which is a major New York Times advertiser. And, you know, there’s a lot of forces in New York and the Chevron law firm that also have influence there. So you know, I don’t know if it’s going to get covered. It should get covered. I mean, 60 Minutes did a segment on this way back in 2009. Chevron put them under enormous pressure, threatened to pull their advertising from CBS at the time. They did end up running the story; it won an Emmy, and then it got taken down from their website a little bit later. So, it’s very hard, I think, for some of these mainstream media outlets that depend on corporate advertising to run this story, for that reason.
RS: I already feel intimidated, because I read some of these memos, where Chevron in their memos talks about subjecting people to a lifetime of litigation. I did at Scheerpost check with the New York Times, Chris Hedges did, and got a response that advertising did not play in their decision, and the editor that was responsible said, you know, the story just was one of a number of stories they were considering. So let me just put that out there. But I do want to get to this–let’s really set this case, because it’s not just about you turning over your files. It’s basically about a major environmental disaster. And the case started–take us to the beginning. You were a young graduate from Harvard Law School–and I didn’t give you a proper introduction. So you started out working as a public defender, I believe, in Washington, and then you did some other work around the Iraq War. And then you somehow got involved with this case. So why don’t you take us from the beginning, and your first encounters with Judge Lewis Kaplan.
SD: Well, thank you, yeah. I got involved way back in 1993, which is if you can believe it the year this case was filed. It was originally filed in New York. At the time I was a young lawyer working with several other lawyers; Cristobal Bonifaz was the man who started the case, Joe Kohn. And I was a very peripheral player. And for the first 10 years we sued Texaco, because they were the company that did this. Chevron then bought Texaco in 2001 and assumed the liability.
RS: By the way, tell people what the “this” is that Texaco did.
SD: The “this” is [when Texaco] went into Ecuador in the Amazon in 1964 and signed a contract with the then-military government of Ecuador to drill in an enormous, 1,500-square-mile area of delicate rainforest, where five indigenous groups were living. And they proceeded to drill roughly 400 wells, and they used substandard practices; they dumped literally, systematically and deliberately, billions of gallons of toxic waste into rivers and streams. You know, when you drill for oil it comes up, there’s the marketable crude and then there’s what’s called water of formation, which is not marketable, and it has benzene and other cancer-causing toxins in it. And it has to be separated from the marketable crude, and the separation process creates all sorts of waste, and you’re supposed to reinject it back into the ground, thousands of feet under, so it doesn’t harm anybody. And they would just run it through pipes into rivers and streams that the indigenous people relied on for their drinking water. They basically deliberately poisoned an entire swath of rainforest, knowing it would cause cancers and other diseases and end up killing a lot of people. You know, we call it a mass industrial poisoning. I mean, to Texaco engineers it was like, hey, there’s hardly anyone living out here. Let’s just, it’s cheaper to just dump the stuff into the forest, into the rivers and streams.
I mean, at the time, some of the indigenous groups like the Sequoia and the Cofan peoples would tell stories about how they would confront the Texaco engineers about the pollution. They’d see, like, black oil in their streams and rivers. And the Texaco engineers would say, oh, there’s nothing wrong with that; it’s like milk, it has vitamins. It’s healthy for you, you can put it on your head, it’s medicinal. A lot of the indigenous groups never even had a word in their native languages for cancer. I mean, there was no such thing as cancer in the rainforest until the oil companies showed up.
So the tragedy, really the environmental tragedy, led to a humanitarian catastrophe which continues to this day, has likely killed thousands of people. There’s independent third-party studies that show extraordinarily high rates of cancer in this region. There’s virtually no medical care. And Texaco and then Chevron basically cut and run. I mean, they produced all this pollution, took out billions and billions of dollars of profits. They never did an environmental study, they never paid out a single dollar in damages the entire time they operated there. They did this with impunity. They thought they could get away with it, and due to the work of me and other lawyers, we organized these communities who obviously desperately needed some sort of remedy, into a lawsuit, and we began litigating. And you know, we ended up winning a case in Chevron’s choice of forum in Ecuador, where they insisted the trial be held, where Chevron accepted jurisdiction…
RS: OK, slow, please, slow down, because I have spent a lot of time trying to follow the details. So let’s–first the case, Chevron insisted on taking the case to New York, right? And this is where Judge Kaplan gets involved?
SD: So what happened is Chevron–no, we filed it in New York. Because the Ecuadorians wanted it there originally, because they didn’t trust their own country’s court system, given that there had never been a single dollar in fines or judgments paid out over the many years that Texaco was dumping the toxic waste. So once we got to New York it was Texaco, then Chevron, that insisted it go back down to Ecuador, because they thought they could control the court system. So the U.S. courts ruled after 10 years it should go back to Ecuador, but only on the condition they accept jurisdiction, which they did. we then show up in Ecuador, and we work with Ecuadorian lawyers to start up the case in Ecuador–
RS: What year is that?
SD: That was in 2001 when it got sent to Ecuador, and we started–
RS: Let me just say, please treat this as a primer. You know, because most people listening to this, the devil is in the details here. And I’d like to get the details out, as much time as it takes, OK?
RS: So give us the whole chronology.
SD: OK. So in 2003 it went to Ecuador. You know, where Chevron accepted jurisdiction, where Chevron insisted the trial be held, and we started to litigate. And the trial took eight years.
RS: One other detail, though. You said when the court in the United States allowed it to be transferred to Ecuador, they said the condition was that the ruling be accepted?
SD: Yes–so, that Chevron accept jurisdiction.
RS: Ecuador’s jurisdiction.
SD: Ecuador’s jurisdiction.
RS: Yeah, because that becomes the big sticking point. Now they describe Ecuador as some kind of hopelessly biased environment.
SD: Exactly. That’s a very important question you’re asking. Because in the 1990s, when we were trying to get into the courthouse door in the U.S.–I mean, the Ecuadorians wanted their case heard in the U.S. on the theory that the decision to pollute in Ecuador was made in New York in Texaco’s headquarters, and therefore New York had jurisdiction. Texaco and then Chevron’s main argument was no, no, no, Ecuador is a better country for the case, and they submitted 14 sworn affidavits from experts–from their own lawyers and others–attesting to the fairness and the transparency of Ecuador’s court system. So when they argue now that the result, when they lost the case, somehow means that that court system doesn’t work properly, or is not fair, [it] completely contradicts what they were saying in the 1990s when they were trying to move the case to Ecuador, where they thought they could get it dismissed.
And they were so craven about it, Bob, that like on the first day of the trial, in October of 2003–I remember this happening. You know, there were probably a thousand indigenous people in the street outside the courthouse in this small town called Lago Agrio. You know, many of them had traveled from the rainforest, deep in the jungle; they had come by canoe and foot, any way they could get there. This was the moment, historically, where they could finally confront this company that had decimated their cultures. And on the first day of the trial, after Chevron had accepted jurisdiction in the United States, one of the first things their lawyer did was to say they were challenging jurisdiction in Ecuador. And it really began a whole series of what I would consider to be extremely bad-faith moves by Chevron to sabotage the trial–
RS: Chevron–you should explain, Chevron had bought Texaco, what, the year before?
SD: In 2001 they bought Texaco for $31 billion. Never accounted for the liability in Ecuador in that purchase. So you know, over time, our legal team and the Ecuadorians persisted and ended up winning the case in 2011. And as I mentioned, it was affirmed on appeal in Ecuador by the highest court, and in Canada for enforcement purposes. And then Chevron went to Judge Kaplan basically to try to get a bailout in the same U.S. court that had rejected our desire to have the original trial. You know, the Southern District of New York, the federal court in New York.
So, you know, Chevron has had multiple bites at the apple. They first wanted it in Ecuador when we wanted it in New York. When it got to Ecuador they started to lose, and the evidence started to mount against them; they suddenly claimed that Ecuador’s judicial system wasn’t fair, even though they had previously said it was fair. And then as we started to enforce in Canada, they went to Judge Kaplan, paid a witness–and this was, you know, this started around 2013, 2014–to attack me and try to demonize me and discredit my reputation for having done the case. And that led to a whole series of events where Judge Kaplan took over that phase of the litigation in the United States. Because I lived in New York, I was subject to his jurisdiction. And since then, I’ve been subject to really withering attacks by Judge Kaplan that I think are entirely inappropriate, and that I continue to challenge.
RS: OK, so let’s get the timeline straight. When was the–the ruling was handed down in Ecuador for first some twice as much, and then it was cut back in Ecuador to what, $9.1 billion–
SD: $9.5 billion. So, the first ruling was 2011, February 14, and that was for approximately $18 and a half billion. Two years later it was cut in half because a punitive damages component was eliminated by the Supreme Court.
RS: Of Ecuador.
SD: Of Ecuador.
RS: Yeah. So now it’s gone through the whole Ecuador system at that point. And that money was primarily supposed to reimburse the people living in the Amazon, right?
RS: By environmentalists, most of them, considered a great–in fact the biggest victory. First of all, there’s two issues connected with it. Texaco, turned Chevron now, accused you of raising money for the defense in a way that they have likened to racketeering, and that gets to the case that’s brought before Judge Kaplan in New York. And the question is, what happens–what was this money all about, and what was it going to do? This money that’s still not been paid.
SD: Well, the purpose of the money is to compensate the people and communities harmed from the pollution. It’s a simple tort case, civil tort case, you know, similar to many others. Similar to the one against DuPont that people might have seen recently in the movie Dark Waters with Mark Ruffalo. It’s a pollution case. So the purpose of the money is to fix the problem and allow people to live in an environment free from contamination, where they can lead healthy lives and drink clean water, and have their health issues addressed by medical care.
So that’s the purpose of the money, but of course Chevron won’t pay the money, and they’ve threatened the communities with a lifetime of litigation if they persist. So, the battle really is over the collection of money that the Ecuadorians already have won in a case that’s been affirmed by the highest court in Ecuador, where Chevron agreed to have the trial.
RS: OK, so that’s the $9. billion. But then your critics at Chevron, and those who agree with them or are allied with them, claim that you improperly raised the money for the defense. And they have actually, you end up being confronted with a racketeering charge, right, under the RICO status? So why don’t you get that bait-and-switch that happened here?
SD: Yeah, so the RICO law can be–well, the RICO law is a very powerful law that a private corporation can use to target activists. And it’s happening a lot more in the United States, and I’m an example of that. Chevron basically came up with the theory that the entire case and everyone working on it was part of a racketeering conspiracy designed to extort money from them. That is, they never really did this pollution; they never were responsible for it; and they got Judge Kaplan to buy into this theory based largely on this witness, Alberto Guerra.
RS: And he’s a former judge in Ecuador, right?
SD: That’s exactly right. We deposed him, you know, we found out that they had prepped him 53 days before he testified in court. He later testified, in a separate proceeding under oath, that he had lied before Judge Kaplan on multiple occasions. Judge Kaplan never changed his findings against me, even though he admitted he had lied, this Chevron witness. So it became a real mess, where Chevron and Judge Kaplan have tried to use Judge Kaplan’s authority as a federal judge to discredit the Ecuador judgment and attack me personally for the work I’ve done to bring justice to the affected communities in Ecuador.
RS: And their claim is that you raised money for the defense in, what, an inappropriate way, or?
SD: So, basically their claim is that Judge Kaplan’s RICO judgment in 2014 barred me from helping my clients raise money to finance the litigation legal costs to enforce the judgment in other jurisdictions outside the United States. This is a major dispute that is now before the Second Circuit Court of Appeals. I’ll just note that Judge Kaplan expressly authorized me to help my clients raise money. He said things like “you can raise money, you can get paid out of the money you raise to support your legal fee.” And he said that I could work on the case as I always had worked on the case for years and years. So you know, when that work started to be successful, and we made progress in Canada, won a major, major significant decision in our favor from Canada’s Supreme Court in 2015, only then did Chevron go back to Judge Kaplan, and they started to work together to try to undermine my ability to continue to raise money to finance the enforcement of the Ecuador judgment in other countries that called into question Judge Kaplan’s findings against me in the racketeering case. And Chevron didn’t want that to happen, because it created enormous financial risk for the company. Judge Kaplan didn’t want his own opinion being challenged by judges in Canada or any other country. They both knew I was vital to this advocacy effort, and they came up with this plan to disable my advocacy by charging me with criminal contempt of court on the issue of my computer and cell phone and turning it over to Chevron, which sort of loops us back around to why I’m in home detention without trial for the last 13 months.
RS: So, let me understand, because I can see why a lot of journalists get waved off this story. Because you know, I looked over a lot of the material, in fact the documents that you were able to obtain, or somebody was able to obtain from Chevron about their strategy. And they have a very large number of lawyers that have worked on this, I don’t know if we can use the word obfuscation. But I was really impressed with their ability, and you know, Gibson Dunn I believe was the law firm that represented the L.A. Times –I may be wrong, but when I was working there, so they were a big law firm as I recall. And I saw somewhere that there’s like hundreds of lawyers. This has been going on for decades. By the way, is there a movie being made about this? This is definitely a movie.
SD: [Laughs] Yeah, I mean I don’t know, I don’t know of any movie being made. But Chevron has used at least 60 law firms and 2,000 lawyers on this case. And Gibson Dunn, the law firm Gibson Dunn is their main defense counsel. And you know, journalists like yourself, Bob, might know Gibson Dunn as a–they have a First Amendment defense practice. I mean, they represented– they represent a lot of journalists who get attacked.
RS: Right, I believe–this is full disclosure, but I think they may have at least advised me when I–I worked at the Los Angeles Times for, you know, 29 years or something. And for about 15, 16 years I was a national reporter. I do remember having–I may be wrong, but I think I had meetings with Gibson Dunn lawyers on the First Amendment, to protect me as a journalist. So I was really surprised to see them show up as this sort of monster law firm in your case.
SD: Well, I think it’s important to point out that Gibson Dunn, Ted Boutrous in particular is their main First Amendment lawyer–and he does good work protecting the First Amendment for journalists. But he is making massive sums of money attacking my First Amendment rights and the rights of my clients and others who are supporting the Ecuadorians and seeking justice from Chevron. I mean, you know, my theory is part of what those lawyers do is they kind of launder their reputations through their work on, you know, protecting the First Amendment with their right hand while in their left hand they’re making massive money from corporations like Chevron and other fossil-fuel companies to try to suppress efforts to hold these companies accountable for pollution, global warming, and the like. So you know, one thing to do maybe is to look at the role of the legal profession–I mean, they’re not the only law firm that does this–to understand how when you have basically technicians who are fundamentally, you know, out to make money, their business model is to make as much money from as many sources as they can and diversify their law practices. And you end up in a situation where they’re protecting the First Amendment, freedom of speech on the one hand while making millions of dollars suppressing it with the other. And it’s problematic.
RS: Well, let me just say here, I know Ted Boutrous, and I only up to this moment have had nothing but a favorable impression of him, because he’s been very active in supporting the International Women’s Media Foundation, and you know, journalists around the world. When you say he’s benefiting from this case, you mean as a partner in the firm, or–?
SD: Both as a partner in the firm–I mean, this is by far the biggest fee, probably, certainly that Gibson Dunn has ever had. They’ve literally had hundreds of lawyers working on this, and have probably billed Chevron more than a billion dollars over the years, literally. Boutrous himself has been a key lawyer working to represent Chevron against the Ecuadorians and me. I mean, he’s been quoted, he’s worked on this. There are others like Randy Mastro, who used to be deputy mayor to Rudy Giuliani here in New York. And they’re enriching themselves at the expense of justice, at the expense of the health of indigenous people in Ecuador, and at the expense of the First Amendment. While they, you know, while they meet with journalists at the L.A. Times and other publications and try to help them protect their rights against attacks from the Trump administration and that kind of thing. So, you know, look, I think it’s hypocritical.
RS: But I think the larger point here is that Chevron has decided to make a legal example of you and has marshaled enormous forces. So why don’t we go into what it’s like to be on the receiving end of a large corporation that doesn’t like the message that you are communicating?
SD: Well, look. It’s not fun, and it’s a real stressful experience for me and my family. I have a wife and a 14-year-old son. I have an ankle bracelet on. I can’t leave my apartment without permission from a court officer. I can’t even go get the newspaper from downstairs. I live in a doorman apartment building in New York; I can’t go to the roof where we have a roof garden. Every day is just, it’s really limited, you know.
But while my physical world has shrunk dramatically, the amount of support I’m getting around the world has increased dramatically, more dramatically, I would say. You know, 29 Nobel laureates issued a statement on my behalf; 475 lawyers, legal organizations issued a statement. You know, there’s been just thousands of people who have signed on to our website, MakeChevronCleanUp.com–it’s all one word–to take action. I have a defense fund, I’ve gotten a significant amount of support from around the world, many people I don’t even know. I mean, the case has really galvanized people to realize that what’s happening to me is part of a really dangerous trend of corporations getting more and more power in our society. You know, in my particular situation, Chevron has been able to get the government to give it literally the power to prosecute. The Seward & Kissel law firm, the private law firm that Judge Kaplan appointed to prosecute me, you know, after seven months of detaining me admitted that Chevron had been a client in the year 2018. I mean, that’s an egregious conflict of interest. How does that happen? ,
And these lawsuits using the racketeering law to target activists is not limited to this case. I mean, there’s been copycat cases. Greenpeace has been targeted, other environmental activists have been targeted. And these are what’s called SLAPP lawsuits, meaning–it stands for Strategic Lawsuit Against Public Participation–they’re basically lawsuits brought by corporations, or sometimes government, to silence accountability, to silence their critics. You know, not because they have meritorious arguments, but because they are really trying to shut down the exercise of the First Amendment in our society.
So, I think that this could be considered canary in the coal mine, so to speak, and I think if this isn’t stopped and this isn’t blocked, you’re going to see more and more of these types of cases. And I think the political ambience in the United States, the atmosphere created by the Trump administration, is really emboldening those forces that want to continue to attack activists, you know, by manipulating the RICO statute and other laws to intimidate them, force them to spend massive sums on their defense, and get them to be quiet. And I think that’s the goal of Judge Kaplan and Chevron with me. I refuse to succumb to that, and I continue to speak out. And you know, they will not let up. And ultimately, we’ll see where it goes. I mean, this battle continues, and I think ultimately we won the case in Ecuador in their choice of forum, and ultimately I believe the Ecuadorians will be able to enforce their judgment and get the collection they deserve to help restore their environment and save thousands of lives that are now under threat.
RS: You know, for the uninitiated, of which I am one, I had no idea that you could appoint a private law firm to be the prosecutor in a case. The intricacies of this, I would like to unwind somehow.
SD: Absolutely. So look, in a normal criminal prosecution, you get indicted by grand jury. You know, it comes out of a normal government prosecutorial office. This is different, because Judge Kaplan himself, as a judge, charged me with defying his order.
RS: He’s a federal, he’s a senior, what, federal court judge in New York.
SD: Federal judge, federal district court judge, trial court judge. You know, there’s a few hundred federal trial judges around the country. They get lifetime appointments. And in this case he took it upon himself to charge me; the charges were rejected by the SDNY, the regular federal prosecutor. So, he then, he’s allowed under this very obscure rule to appoint his own prosecutor, which he did. But you know, of the thousand or so neutral prosecutors who used to be prosecutors, who work in New York, he appoints the one that has Chevron as a client. And I don’t consider that to be an accident.
RS: That’s this Loretta Preska?
SD: I’m sorry, this is Rita Glavin. She’s the prosecutor. Preska, Loretta Preska, is the judge, longtime colleague of his; she’s a member of the Federalist Society, which by the way, Chevron’s a major donor to the Federalist Society. Rather than randomly assign the case, which is what’s supposed to happen, he assigned it personally to Judge Preska, who has in my opinion a conflict of interest. It should have been assigned randomly. And then Judge Kaplan didn’t recuse himself when he was working with Judge Preska–and I believe he’s talking to the prosecutor–to coordinate this whole thing so the normal separation of powers isn’t in existence. In other words, the grand jury is supposed to be separate from the judge, who’s supposed to be separate from the prosecutor; but in my case, they’re all working together, or appear to be working together. And that just is not how it’s supposed to work. And like the fact that he has appointed a law firm that has deep, extensive financial ties to the oil and gas industry–to prosecute me, who won the big judgment against Chevron? That’s not what you see in a normal, rule-of-law country.
RS: OK. But I just want to get the players straight. Normally the prosecutor would be what, the attorney general, or–?
SD: The prosecutor would be an assistant U.S. attorney from one of the federal prosecutorial offices. The one in Manhattan is called the Southern District of New York, the SDNY. So normally the prosecutor would come from the government, be a government employee–
RS: And this is in your contempt case.
SD: –yeah, in this case it’s from a private law firm who was billing the taxpayers by the hour. As a matter of fact, as of about three months ago they had already billed taxpayers over $250,000 for their work to prosecute me.
RS: And what law firm is that?
SD: Seward & Kissel.
RS: And what do they do, or what kind of–
SD: They have a practice, they have a maritime practice and an oil and gas industry practice. They have major oil and gas clients and companies that do transportation and shipping for the oil and gas industry.
RS: So this is what the American Prospect meant in its headline, “The Government Gave Big Oil the Power to Prosecute Its Biggest Critic.” “Its biggest critic” is you, and so the power to prosecute–what they meant by “gave big oil,” they meant this law firm that you just mentioned, right?
SD: Yes, it’s a law firm that services the oil industry for the most part, among other clients.
RS: OK, but what happened to that case, the original racketeering case?
SD: Judge Kaplan found, based on this witness paid $2 million by Chevron who’d been coached for 53 days, that I had been involved in the bribe of an Ecuador trial judge. It’s not true; it’s been rejected, again, by multiple courts in Ecuador, and there’s no corroborating evidence. But that’s what he found, and that’s the case, that’s the decision that exists now in the United States, even though it contradicts, you know, decisions by multiple courts in other countries that have looked at the evidence. So that’s what he found, and then out of that he ordered me to turn my computer and cell phone over to Chevron, which then resulted in this dispute over whether that’s legal or not. His order, I believe, is unconstitutional. And then that resulted in charging in criminal.
RS: OK. And again, I’m not a lawyer, so help me here. On that original RICO statute, he ruled–he made a ruling against you, right? And what is the consequence of that?
SD: Well, it’s–you know, since he wouldn’t allow me a jury, they couldn’t sue me for money. And that’s another important point: I never got a jury of my peers.
RS: This is because Chevron didn’t claim damages or something?
SD: They originally claimed $60 billion of damages; I was sued for the most money of anyone in U.S. history for an individual. But on the eve of trial they dropped every penny of that, because they wanted to avoid a jury. And that speaks volumes to really illustrate their lack of confidence in their own evidence. I think I would have won a jury trial. But then they put it all in the hands of Judge Kaplan, who had already signaled that he was completely favorable to their position. And he predictably ruled in their favor, but they couldn’t get any money damages against me. So they got the judgment, and then subsequent to the judgment they asked Judge Kaplan to order me to pay them $32 million in legal fees, even though–$32 million, by the way, is probably no more than 5% of what they actually paid in legal fees for the case. But they wanted to bankrupt me, and hobble me for the rest of my life. And Judge Kaplan ended up imposing, even though I never got a jury, millions of dollars of legal fees and other court costs on me. You know, I’m a human rights lawyer living in a small apartment in Manhattan with very modest resources. Chevron, obviously, is one of the larger companies in the world. They make, I don’t know, anywhere between two hundred, $250 billion of revenue every year, depending on where the price of oil is. And Kaplan is trying to basically bankrupt me and order me to pay, you know, what amounts to a pittance in terms of Chevron’s overall picture, but it’s devastating to me and my family. And we’re appealing all of that, and again, it really is, we think, just completely inappropriate, and again, part of this SLAPP attack designed to destroy my ability to advocate by taking away my money.
RS: Well, so let’s take–this is really the devil in the detail. Because basically we’re talking about punishing. Punishing a lawyer who took on this kind of case. Is this what Gibson Dunn, this is what they pursued?
SD: Yes. Gibson Dunn was paid by Chevron to really demonize and try to destroy me. And one of the things they did–
RS: Well, they wouldn’t say that. They would say they were paid by Chevron to advance their case, right? OK, I just want to get that. And what they did is they represented Chevron in this case before Judge Kaplan, right?
SD: That’s exactly right. But you know, they would come on and say all sorts of stuff that I would–I would probably dispute. But the reality is, Chevron has an internal email that I have that says “our long-term strategy is to demonize Donziger.” They never wanted to defend this case on the merits. And the attacks on me before Judge Kaplan–which are not based on evidence, they’re based on false testimony, largely, from a paid Chevron witness–were orchestrated by the lawyers at Gibson Dunn. You know, they did wrong, in my view.
So no, this wasn’t just a matter of a law firm doing its job, OK? Yes, everybody has the right to counsel, in every case. I get that. I believe they crossed the ethical line in what they have done with me, and what they have done to orchestrate this case based on false testimony, and ultimately my detention. So yes, I accuse them of crossing the ethical line. They accused me of being a criminal. I accuse them of being criminals in the way they’ve handled this case.
RS: Your own attorney made some strong statements about what this–I don’t have it in front of me. But your attorney called it a kangaroo court, or something of that sort.
SD: John Keker called it “a Dickensian farce.” John Keker is one of the leading trial lawyers in the country, Purple Heart recipient, former Supreme Court clerk who represented me for a while before Judge Kaplan, and he said he’d never seen anything like it in his entire career. You know, so it’s hard as a lawyer to be in a court where you really feel like the judge is like a lawyer for the other side, and is not really doing his job properly. And that’s the experience I subjectively felt when I was in Judge Kaplan’s courtroom.
RS: OK. So now this case that Gibson Dunn, they represented Chevron, and Judge Kaplan ruled in their favor, right? Which had the objective result of denying the $9-plus billion that was supposed to go to the people in the Amazon from getting it. Does that money now–
SD: Not exactly. He ruled that they couldn’t collect it in the United States, because you know, a U.S. judge does not have jurisdiction outside the United States. So you know, Judge Kaplan ruled, and the appellate court explicitly affirmed, that the Ecuadorians have a right to enforce their judgment anywhere in the world other than the United States, which is why I continued to work on the case, and we made progress in Canada, where the Supreme Court ruled in our favor in 2015. So it was an obstacle to collection in the United States. It did not definitively dispose of the case by any means, because I mean first of all, the case, Judge Kaplan’s decision had so many flaws, and it was contradicted by multiple appellate courts in Ecuador and Canada. So the case is still very much alive. Even though I’m personally in a very complicated situation being in detention, there’s other lawyers working on this case, and ultimately the Ecuadorians are hopeful that they’ll be able to collect on their judgment in other countries, and I obviously support them in that effort.
RS: And the Ecuadorians, just to remind people–because the government there changes, and it’s had different manifestations. We’re basically talking about very vulnerable people, right? And let’s return to that for just one minute, or a few minutes. This is money that is supposed to help people that are suffering terribly from the dumping of this oil, right?
SD: That’s exactly right. And you know, we’ve got to kind of always keep our focus on that. I mean, this is about people who are hurting; it is not about Steven Donziger. You know, in an odd way, this entire interview–although I think it’s a good interview, and I’m glad we’re doing this interview–but it plays into Chevron’s hands in that the focus is on me, and it’s not on what they did. And you know, when they wrote that email in 2009 and said “our long-term strategy is to demonize Donziger,” the purpose was–at that time they were losing the case, and they wanted to create a foil or just some sort of mass distraction so people wouldn’t focus on what they did.
But what they did is horrendous. It’s an industrial crime, and it’s killed a lot of people, will probably kill thousands more if a cleanup is not done. And you know, I’ve been to Ecuador 250 times in this area. I have a lot of clients there, and people that I’ve worked with for many years. And many have passed because of cancers and other oil-related diseases, and it’s a horrendous situation. I would describe it as a humanitarian catastrophe, one of the little-known ones around the world because it’s taken place incrementally, little by little over time, as opposed to a spectacular event like the Chernobyl accident or the BP spill in the Gulf of Mexico. When things happen slowly, in isolated geographic areas to communities that do not have a lot of money or power, people tend not to pay attention. And that’s unfortunately what’s happening here, even though it is probably one of the world’s worst humanitarian crises. It’s called “the Amazon Chernobyl” by experts and by local community leaders. And it’s something that the world really needs to pay attention to, much more than they need to pay attention to the plight of Steven Donziger, as much as I care about that.
RS: Well, but Steven Donziger is under house arrest and can’t even go to the roof of his house. And that–but let me just–
SD: I’ll tell you, Bob, sorry to interrupt, but I mean, why are they really doing this? I mean, I am a lifeline of sorts to the communities. I’ve worked with them for over 25 years. We have great trust, and I’ve been able to organize a lot of lawyers to help them and raise the money to help them. And you know, this is being used as a way to attack the Ecuadorians. I mean, if you can silence and disable the advocacy of the main advocate that has had success in helping them and win a judgment, the chances of collecting on that judgment go down considerably. And that is the Chevron strategy, and that is why they are working with Judge Kaplan to keep me detained.
RS: And that is, of course, an important message that has a chilling effect on other attorneys. Coming out of Harvard Law School, you could have gone to Wall Street, you could have done a lot of things with your degree and your talents, your smarts. Or you could have gone to work for Gibson Dunn, and maybe done some good things on the side, but in the main work for Chevron, would be one kind of model. But instead–and I am stunned by this idea that you went 250 times to the Amazon to experience this, and that you worked on it for 25 years. And I get back to the “no good deed goes unpunished” idea. And I’m just getting at the consequence of this victory that Gibson Dunn won on behalf of Chevron with Judge Kaplan. It, first of all, hit you with this enormous, what, [$32 million] obligation. They also, Judge Kaplan tried to, or did he succeed in removing your law license so you can’t take this case? First of all, you can’t travel to take this case to other courts. But you’re also, at least temporarily, denied your law license, right?
SD: That’s correct. And I’ll add without a hearing, based entirely on, you know, his findings, which were based on this testimony by this paid witness. They never let me challenge it. You know, I went into the bar hearing and they applied what’s called collateral estoppel, which is a doctrine that means, oh, the issue’s already been decided, you know, by Judge Kaplan in 2013. It was this very bizarre–I’m appealing this issue as well. It really, frankly, is threatening due process for all lawyers in New York and everywhere. I think it’s just a terrible process. But of course if you look at the history of bar licensing in the United States, you know there’s a whole history of using the bar licensing process to try to exclude people who challenge entrenched interests, or the prevailing establishment, which obviously I’ve done my whole career. So whether it’s lawyers who represented people in the Red Scare era, activists then, a lot of those lawyers were driven out of the profession, and this is well within that tradition.
You know, so I’m challenging it, and hopefully I’ll be able to get my law license back. But it can’t stop my advocacy generally, even if I can’t practice law, which I will continue to the extent I’m able. But yes, the attacks on me have been multifaceted. They’re really designed to bankrupt me, prevent me from working, and ultimately if I don’t stop my advocacy, lock me up–and I think, you know, much worse. So people, I would really ask people, if they care about this, to pay attention, to please visit our website at MakeChevronCleanUp.com. I have another site for my defense fund called DonzigerDefense.com. If you can help out, it would be really appreciated, because the expense to deal with this is enormous. And of course my Twitter feed, where you can follow the case; I post stuff most every day, it’s @sdonziger. But yeah, people do need to pay attention. The stakes are very, very high. They affect not just me, but corporate accountability and environmental justice advocates everywhere. They affect thousands and thousands of people in the Amazon, whether their communities can survive, as they have been able to do historically, or not. And this is really, really important. It’s important that Americans stand up and not let Chevron and its law firms get away with what I believe are completely unfair attacks on legitimate corporate accountability advocacy.
RS: OK. But I do want to amplify this issue. I am first of all annoyed with myself, that until I read Chris Hedges’ article about this, I really didn’t follow this case. So that’s on me. I consider myself an involved journalist, concerned about issues, environmental issues certainly, and what happens to people in the Amazon. And yet–and I see this not only as a failure of my own, but a failure of the media to properly cover this issue. And now, before I published Chris Hedges’ article I read a lot about it. And it seems to me the silence about your treatment, in particular, but the issue itself, is appalling. Even if upon analysis it turns out one comes to different conclusions, the ability of one judge to have this much power to make these kind of decisions really goes against what we are raised to believe the judicial system, and separation of powers, and democratic society is all about. The idea that you could appoint a private law firm to be the prosecutor, that a person who goes up against hundreds of lawyers is basically subject to the kind of treatment that you’ve been subject to. These all raise very fundamental questions about the functioning of our society. So, you know, in closing this, let me just say I’m all for ventilating this issue. So that’s it for this issue of Scheer Intelligence. Christopher Ho at KCRW FM, the public radio station in Santa Monica, posts it, and we really rely on him. Natasha Hakimi Zapata writes the introduction. Lucy Berbeo does the transcription. Joshua Scheer is the producer of Scheer Intelligence. And we want to thank the JWK Foundation for giving support to this podcast. See you next week with another edition of Scheer Intelligence.