Incarceration Nation


The Case of Steven Donziger

Supreme Court liberals help turn judges into prosecutors

By Eve Ottenberg

So, the truth is out: the three so-called liberals on the Supreme Court are phonies. More precisely, they, like most of their conservative brethren, are corporate hacks. We learned this a couple of weeks ago, when the high court ruled against Steven Donziger, a climate-activist attorney, long persecuted and then literally prosecuted by Chevron. In a pro-corporate decision about as subtle as a heart attack, seven of the nine justices declined to hear Donziger’s appeal of a criminal contempt decision involving his representation of Indigenous Ecuadorians against Chevron. Two far-right justices dissented.

In the weeks since this ruling, when the highly questionable gifts of, among other things, a luxury $500,000 vacation to their GOP colleague, justice Clarence Thomas, burst into public view, the supreme court’s Donziger fiasco shifted onto the back burner. There has been no comment, no explanation, no hint that the three supposedly liberal justices believed anything was amiss. No indication that the three Dem appointees recognized that their ruling favoring partisan judges and corporate power is, in a different way, as damaging to Americans as Thomas’s rather more gaudy escapades with the very wealthy Nazi-memorabilia collector and real estate mogul, Harlan Crow.

The two dissenters in Donziger’s case were the notable reactionaries, Neil Gorsuch and Brett Kavanaugh, meaning the three supposed liberals wimped out of something that was, really, a pretty clear litmus test for judicial abuse of power and also for individual versus corporate rights: The U.S. justice department had declined to prosecute Donziger, so the judge in his case, Lewis Kaplan, appointed Chevron’s attorneys to prosecute him—how’s that for judicial bias? By the way, Chevron’s gripe against Donziger? He won a $9.5 billion judgement in 2011 against the company for oil pollution in Lago Agrio, Ecuador decades earlier.

This was no minor pollution infraction, incidentally. Texaco, later bought by Chevron, devastated this 1500-square miles of Ecuadorian forest in what came to be known as “the Amazon Chernobyl,” from the 1960s to the 1990s. This environmental catastrophe included 16 billion gallons of toxic wastewater dumped into pristine rivers and roughly 1000 carcinogenic waste pits. Indigenous people who drank, bathed, and fished in this water suffered massive outbreaks of cancer, including exotically rare ones, and they still do. They also endure multitudes of miscarriages. Donziger sued Chevron on their behalf and committed the supposedly unpardonable sin of winning.

The history continues its sorry course: Once Chevron started to lose the case in Ecuador, a venue it had chosen in the mistaken belief that local courts would be friendlier than those in the U.S., “they came back to the United States where I live in New York and began to sue me in a civil legal case…for $60 billion,” Donziger, who is not rich, told me in an interview some months back. Chevron pursued him relentlessly, alleging fraud and bribery on Donziger’s part. Donziger was also disbarred. Along the way, Chevron bankrupted Donziger. Later, after an unprecedented order to Donziger which the attorney refused in order to protect his clients, Kaplan charged him with contempt. The message to any environmentally active lawyer was clear: if you think you’ve won against a giant oil company, think again, because we will destroy you.

The appeal

Donziger appealed his criminal contempt conviction from Kaplan to the high court, arguing “that his prosecution violated his rights under the U.S. constitution because private lawyers appointed by a federal judge handled the case against him,” Reuters reported March 27, the day the Supreme Court declined to consider Kaplan’s ruling. “Two members of the Supreme Court’s six-to-three conservative majority, Justices Neil Gorsuch and Brett Kavanaugh dissented…” against the court’s refusal to consider Donziger’s case. And when you have to turn to very far-right justices to uphold the constitution as a shield against judicial abuse of individual rights, you’re in pretty sad shape. But that’s where we are in the U.S., and those three “liberal” judges are to blame. They could have swung the vote the other way, had they so chosen.

According to Donziger, the oil company’s “preposterous legal attacks” against him were facilitated by Kaplan, whom he describes as an activist, a “U.S. federal judge who has investments in Chevron and is a pro-corporate ideologue.” This judge charged Donziger with “criminal contempt of court for appealing an unprecedented order that I turn over my confidential communications [email accounts and electronic devices] to my adversary. While this order was on appeal, Kaplan had me locked up in my home with an ankle bracelet. His contempt charges were rejected by the regular federal prosecutor. Kaplan then appointed a private Chevron law firm to prosecute me.” In 2021, Donziger was sentenced to six months in jail for contempt. That was the conviction he appealed to the supreme court. But again, thanks to our so-called liberal justices, corporations can now prosecute Americans for misdemeanor contempt—if the regular government prosecutor declines the case. To a layperson, this looks like a gross betrayal of the constitution and of every citizen’s basic rights. Of the high court’s refusal to hear his case, Donziger says it is “a huge blow to the rule of law.”

More specifically, declining to hear this case impacts power relations between the executive branch and the judiciary. “Convicting someone of a federal crime generally requires two branches of government—prosecutors representing the executive branch and judges representing the judiciary—to agree on the accused person’s guilt,” Common Dreams reported March 28. “In Donziger’s case, the judiciary branch acted on its own to prosecute the lawyer.”

Power vested in unelected
partisan judges

The possibilities for abuse are legion. “Especially in an era where litigants with an axe to grind can choose which judge will hear their case,” wrote Ian Millhiser for Vox on March 28, “permitting the judiciary to decide who to prosecute—and then to hear the very same cases brought by its own court-appointed prosecutors—vests far too much power in unelected judges. If courts have this authority, it is likely to be abused by some of the most partisan judges in the country.”

Or, as Gorsuch dissented: “The prosecution in this case broke a basic constitutional promise essential to our liberty.” Gorsuch, according to Vox, “makes a strong case in his Donziger dissent that Congress has not passed any law permitting court-appointed prosecutors to bring criminal contempt proceedings.” Gorsuch also wrote: “The Constitution gives courts the power to ‘serve as a neutral adjudicator in a criminal case’ not ‘the power to prosecute crimes.’ Our constitution does not tolerate what happened here.” No, it does not. But the three liberal justices sure do. Just remember that the next time some ordinary citizen considers seeking redress from the high court for judicial abuse. He or she won’t get it. The so-called justices of the Supreme Court, including those who supposedly lean left, simply hear and see no evil when it comes to powerful corporations or biased judges.

Eve Ottenberg is a novelist and journalist. Her latest book is Hope Deferred.

CounterPunch, April 14, 2023