On Contact: Corporate tyranny & Steven Donziger

CH: The persecution of the Attorney Steven Donziger is a grim illustration of what happens when we confront the real centers of power, masked and unacknowledged by the divisive cat of the right wing or the sentimental drivel about diversity propagated by the Democratic Party.  Those like Donziger who name and fight the corporate control of our society on behalf of the vulnerable, see the judiciary, often the press, and the institutions of government unite to crucify them.  Donziger, who has been fighting polluting American oil companies for nearly three decades on behalf of indigenous communities and peasant farmers in Ecuador, has been under house arrest in Manhattan for nearly two years.  He went on trial in federal court in New York about two weeks ago on contempt of court charges, which could see him jailed for six months for appealing the demand to hand over his computer, cell phone, and other electronic devices to the court.  A clear violation, he argues, of attorney-client privilege.  No attorney without a criminal record in the federal court system has ever before been detained pre-trial for a misdemeanor offense.  Donziger did not testify in his own defense, the guilty verdict in what can only be described as a judicial farce was, as he and his lawyers said, pre-ordained.  His case is one of the most egregious examples of the corporate seizure of the US judiciary.  Everything about the case is an anomaly.  He has been denied a jury, he has been disbarred and precluded from making a living, he is being prosecuted by a private law firm tied to Chevron appointed to prosecute him in the name of the government.  The judge, a member of the right-wing, federalist society turned the courtroom proceedings into what can only be characterized as a tawdry show trial.  Joining me to discuss the implications of his case is the Attorney Steven Donziger.  So Steve, I'm going to ask you just to briefly outline what happened and why Chevron went after you.  For people who want, you know, more detail about what Chevron did in Ecuador in your fight against them, they can read my August 25th, 2020 piece on Scheerpost, How Corporate Tyranny Works, or they can go on YouTube and look at the interview I did with you about eight months ago called Chevron Versus Donziger.  But just so people who don't know, give us the brief version of what happened in Ecuador and where--what brought us to this moment.

SD: Well, thank you, Chris, for having me.  In a nutshell, I'm a lawyer, I live in New York.  In the early 1990s, I went to Ecuador and--with a group of other lawyers and saw this massive pollution caused by Texaco, now Chevron, in the Amazon Rainforest.  People were suffering, dying.  There were lakes of oil on the ground.  There were pipes that have been put into these waste pits to run the oil into rivers and streams that people were drinking out of.  There was really--it was very obvious it was a mass industrial poisoning and it had been done deliberately, it was not an accidental spill.  At that point, we decided to file suit on behalf of the affected indigenous peoples against Texaco, later Chevron.  The case went on for several years.  We ended up winning the case in 2011 down in Ecuador's courts where it was Chevron that insisted the trial be held and where Chevron had accepted jurisdiction.  Once Chevron realized it would lose, it tried to turn the tables on me, sued me in the United States without a jury on this racketeering statute claiming the whole case was a sham.  I will say the judgment against Chevron has been affirmed by six different appellate courts including the Supreme Courts of Ecuador and Canada, it's not a sham and they know that.  But they found a US trial judge, former tobacco industry lawyer named Lou Kaplan to target me.  And ever since then, they've tried to make my life a living hell for 10 years and it's culminated in my current situation where I've been under house arrest, as you point out in the intro, for almost two years because I'm fighting to protect my clients' rights and not turn over their confidential information about their case and about the various enforcement actions that are either taking place or might take place around the world to force Chevron to comply with the law.  So, you know, the big picture is, this goes way beyond me.  Chevron is trying to destroy not only me but the concept of me that is others who do this type of human rights and environmental justice work on the front lines.  They are--you know, they've been able to pretty much take control of a pocket of the US Federal Judiciary here in New York where I've been denied the most basic rights and they're trying to railroad me into prison without a jury even though I'm charged with criminal contempt of court.  I mean, the crazy thing about this among others is the charges were rejected by the United States Attorney's Office.  They've refused actually three times to prosecute this case and other cases Chevron has brought them.  So, Chevron is just doing it itself.  It got the Judge, Kaplan, who's been after me to appoint a private law firm.  They never disclosed that the law firm, the name of which is Seward & Kissel, had Chevron as a client.  So, this is the first corporate prosecution in American history.  You know, they were rejected by the US Attorney, the charges are baseless.  So now, they are prosecuting me directly and depriving me of my liberty.  This is scary.  Trust me, this is a new corporate playbook that they hope to--if they can get away with it with me, they hope to impose on other--others like me who do this work at a successful level that really threatens their interest.  So, there's a lot of mistake and I need people to pay attention and also try to rally support.

CH: So, let's talk about the pre-history of this.  There's been a kind of corporate seizure of the court system, the Supreme Court now rules in favor of corporations and 70% of the cases that are brought before it, even though Obama would appoint women and people of color to the court, most of them came out of corporate law.  This was also true for Trump although they were largely White men, they came out of the country's biggest corporate law firms, or they were prosecutors, about 50% of Obama's picks were prosecutors.  And these former prosecutors, and corporate lawyers, and we're talking about often partners and huge corporate law firms, now make up seven in ten judges on the federal district courts.  And the consequences of that, and I want to run through it, are that they are able to use these corporate-friendly judges to just eviscerate the rule of law.  You mentioned Rita Glavin, who works for this Chevron-tied law firm that is now litigating you, this is a clear conflict of interest, of course.  Let's talk about the judge, Preska, who was appointed, she comes out of the Federalist Society which receives funds from Chevron, she was appointed by the charging judge without going through the random case assignment process.  And I want you to talk about what that courtroom scene is like because she has just consistently denied due process.  I mean, the behavior--and I sat through--she was the judge that found Jeremy Hammond guilty so I sat through a Preska trial.  She was rude, she was caustic, dismissive, and now, that's the experience you had.

SD: Yeah.  I mean, I don't think Judge Preska should be on the bench frankly after watching what she did in my trial.  I think she abused her power.  You know, yes, the attitude is caustic, but that's really not what--not the real issue.  I mean, the real issue is the whole thing was structured in a way to guarantee a conviction.  I mean, there was a time during the trial she was reading a newspaper on the bench while witnesses were testifying.  Everything was so casual and the reason is she had already made up her mind.  And remember, this is the judge who locked me up now for almost two years on the theory that the evidence against me is very strong.  And then, she denies me a jury and suddenly becomes my fact-finder.  You know, so the whole thing was set up to find me guilty, I will be found guilty.  I never had a fair trial.  I did not have an unbiased judge.  And it was a Chevron show.  Let me explain what I mean by that specifically.  The prosecutor came from a Chevron law firm, private prosecutor, subject to no supervision by the Department of Justice.  The judge, Preska, leader of the Chevron-funded federalist society, and Judge Kaplan who charged me never recused himself, he has investments in Chevron.  I was completely surrounded by Chevron in this trial.  On top of that, their two main witnesses were Chevron lawyers from a second Chevron law firm, the Gibson, Dunn & Crutcher who have worked and enriched themselves for 10 years going after me on the civil side.  They were the witnesses against me and they were hiding behind their privileges with Chevron to not give us their bills.  They obviously had a financial incentive to go after me.  We never even knew how much Chevron had paid them, how much time they had spent assisting this private Chevron prosecutor preparing her legal filings.  And--but it was very clear that Chevron had spent--invested millions of dollars in my criminal prosecution while professing to the public they had nothing to do with the case.  I mean, they just lied about it openly.  And Judge Preska let it all happen.  And, you know, every time my lawyers like the legendary Marty Garbus, the great civil rights lawyer, I'm so appreciative, by the way, for my legal team, Marty, Ron Kuby, and Rhiya Trivedi and others.  But every time Marty tried to talk, she tried to shut him down.  You know, I wanted to make a statement as to why I wasn't testifying.  And by the way, the reason was she wouldn't let me testify, she basically had already ruled as an evidentiary matter that my defense was irrelevant, my defense being I'm protecting my attorney-client privilege, protecting my clients rights, my ethical duties.  I was appealing Judge Kaplan's order when he charged you with criminal contempt.  I'm the first person--lawyer in US history to be charged with criminal contempt for appealing a discovery order, okay.  I wanted to explain I was not committing a crime.  I was litigating like a normal lawyer.  She wouldn't let me--she thought it was irrelevant.  So, when I wanted to explain why I didn't--wouldn't--wasn't going to testify, she wouldn't even let me read a statement in court.  So, it was a very oppressive environment and, you know, luckily, I'm getting a fair amount of public support, 68 Nobel laureates and well-known people, you know, Michael Tiger, the great lawyer, Jimmy Miller, Professor Charles Nesson of Harvard Law School in addition to Marty Garbus, and literally hundreds of lawyers have rallied to my defense around the world, not so many in New York.  And, you know, Susan Sarandon came and Marianne Williamson and Roger Waters, and Sting, and others, you know, high profile artists.  This is scary.  I mean, what's happening here is terrifying for the United States of America and for any country that professes to believe in the rule of law.  I mean, obviously, it's a problem for me and my family.  I have a wife and a 14-year-old son.  But this goes so far beyond me, Chris.  And, you know, again, our latest ask is for the Department of Justice, the Joe Biden Department of Justice to intervene and stop this preceding cold and take back the prosecution from the Chevron law firm which makes it illegal and unconstitutional.  And it's so bizarre, isn't it?  I'm probably the only lawyer in the United States begging the Department of Justice to prosecute me.  I need a professional--a professional disinterested prosecutor, not someone with ties to Chevron.  You know, it's very salient the fact that the DOJ refused to prosecute me.  And then, they took advantage of that to--the case should've dropped right there, obviously.  They took advantage of that decision to let Chevron prosecute me, take the case back Merrick Garland needs to stand up tall here.  And by the way, it's a litmus test for Biden too.  You know, if he really professes to do--want to deal with climate change and he professes support for the Green New Deal, how do you let a frontline lawyer be locked up for two years on a misdemeanor for being successful at his job that is holding one of the world's major polluters accountable in a case that's been affirmed by six appellate courts including two supreme courts?  How do you let that happen in the United States?  Man, they need to do something and I mean, do it now.  I've got to get off from home detention, I've got to get back to my job, my clients have been deprived of their lawyer, many are suffering and dying because of the pollution.  We need to get on with it and we need to stop this ridiculous corporate control of a prosecution corporate deprivation of someone's liberty, it's illegal, it needs to stop.

CH: Great.  When we come back, we'll continue our conversation about the vicious corporate seizure of much of the US Judiciary and its consequences with the Attorney Steven Donziger.  Welcome back to On Contact.  We continue our conversation about the corporate seizure of much of the US judiciary and its consequences with the Attorney, Steven Donziger.  So I just want to know, when you were talking about the internal dynamics of the courtroom that Judge Preska has ruled, as you write, in favor of the corporate prosecutor 99% of the time on objections.  She issued an evidentiary ruling that essentially prohibited your--as you mentioned, your ability to even carry out a defense which is why you and your lawyers decided not to testify in your own defense to essentially declare the trial what it is, which is a staged, you know, judicial, political show.  I do want to read just briefly, if it's all right, the statement from your lawyer, Marty Garbus, and anyone who knows the legal profession knows that Marty Garbus is one of the titans of the legal industry.  The Guardian newspaper calls him one of the world's finest trial lawyers.  He has represented numerous high-profile, Lenny Bruce, Nelson Mandela, Andrei Sakharov, Samuel Beckett, Daniel Ellsberg, Robert Maplethorpe, Salman Rushdie, and now, you.  So here's one of the great trial lawyers in the--you know, totally acknowledged one of the great trial lawyers in the United States, and he writes, "I have been in courts as an observer or litigator in the Soviet Union, Chile and China.  This case feels like a trial in a country that has no justice.  The judge was obviously under the control of another party, Chevron, which for 10 years has been desperate to try to get a conviction of the human rights lawyer who held it accountable in a court of law.  Judge Preska came in with a script to help Chevron and she followed it.  She ripped away any semblance of an independent judiciary, justice, and constitutional rights in the United States through her mistreatment of Mr. Donziger.  This case must be rescued by the Department of Justice to help save the rule of law in the Southern District of New York.  I have worked much of my life trying to stop overseas what is now happening in my own country from the onset, The US Attorney's Office, the publicly accountable prosecutorial office declined to prosecute when requested by Judge Kaplan.  They did so because there's no case here.  That office has 262 lawyers and an enormous budget.  They can take on anything but instead chose to say, 'No.'  Kaplan's appointment of a private law firm with significant ties to the oil and gas industry is a disturbing development for American jurisprudence and further illustrates the deep flaws in the proceeding overseen by Judge Preska."  As a lawyer, I want you to back off and you alluded to it, but let's say they're successful which we all hope they're not, what is--what does this mean?  This does set a kind of legal precedent within a judiciary that is increasingly under corporate domination.

SD: Well--okay.  Big picture, go back to Ronald Reagan's election, you know, we're sort of seeing an uninterrupted consolidation of corporate influence in American society, accelerated greatly by the Koch brothers funding network, which has as one of its explicit objectives to control the federal judiciary so it's more pro-corporate, more anti-regulatory.  We saw a major acceleration of this process under the Trump administration where there was with--everyone knows how Mitch McConnell and, you know, facilitated, accelerated appointments of very unqualified right-wing young judges to the federal bench.  I can tell you, as a human rights lawyer, you almost cannot get it--go into a federal court today, certainly not a federal appellate court, where you have a three-judge panel and get a fair hearing.  I mean, it's crazy.  All the judges, as you pointed out, are either coming out of the corporate law world or the national security kind of world as government prosecutors.  There's virtually no human rights lawyers on the bench or even criminal defense lawyers.  So, you know, when you advocate for people like I do, like the indigenous peoples of Ecuador who are trying to hold an American company accountable, you are swimming way upstream.  There's just an innate hostility toward the very--I--you know, your case but also the very idea of what you're doing.  And the system is no longer even close to fair and, you know--you know, not only that, it's been weaponized against me in particular in this case to try to shutdown human rights lawyer and criminalize the idea of this work.  I mean, this is human rights work, right?  I mean, I went to law school believing in the rule of law, believing that, you know, it was a good thing to represent people who didn't have money, who are getting hurt and harmed, you know?  They treat me like I'm some sort of criminal for taking on a case that is far more important, honestly, than any environmental case in the world right now.  I mean, if we can't hold Chevron accountable for dumping literally billions of gallons of cancer-causing waste on purpose in the Amazon rainforest, such that people are dying, indigenous groups are decimated, okay?  If we can't do a case like that, there's very little hope for the planet.  And I'll say this just as a sort of closing thought on this point, people who care about environmental justice need to pay more attention to our courts.  You know, it is very difficult to create the kind of change we need without judges in our court system doing their jobs in a way where they really rule neutrally and treat facts in a fair manner, which is not obviously happening in most of these environmental cases and certainly not my case.

CH: I want to talk about the way the Democratic Party, I think, is complicit in this and, you know, people talk about Sotomayor, she came out of a corporate law firm, the old Thurgood Marshall or even Ruth Bader Ginsburg who did the kind of law you do are an anomaly and there is kind of this now criteria which is bipartisan, you go to an elite law school, you went to Harvard Law School so you at least you qualified there. You clerk for a well-known federal judge, and then you go into a corporate law firm and you build those kinds of connections that get you on the bench.  The Democratic Party Obama's appointments, although they were more diverse, have been as corporate friendly as Trump's.

SD: Yeah.  I mean, well, what it really is, is, you know, Trump was appointing far right-wing judges, and Obama was appointing centrist judges.  So, you know, the--we're trying to--I mean, you know, the split on the court is not between right and left, it's between sort of far right and moderate right, in my view.  And, you know, while there's differences of opinion, that can be quite acute on some social issues like, say, abortion, on economic issues, you know, on corporate issues, there's a lot more consensus between what I would call the far-right judges and the moderate or center-right judges.  There's a--you know, people don't understand, I mean, most of these decisions are like 9-0 decisions on these issues, even though the ones that are reported the most are split decisions.  So, you know, I think as a general matter, the, you know, the corporate power in our society has created a judiciary from starting with the supreme court and going down to our federal trial courts that is very palatable to its general needs.  I mean, the conflicts you see in courts now are over kind of inter elite battles over intellectual property and various issues of arbitration and that kind of stuff.  You rarely see a case where the battle is about issues of fundamental justice concerning poor people, indigenous peoples, people who are really hurting because of corporate pollution or because of climate change and this is that case, but, you know, there's been two attempts to get my case, not meaning the Steven Donziger case but the larger Ecuador case up to the Supreme Court, the Supreme Court wasn't interested.

CH: What does this mean, Steve, about our democracy itself?  Once you essentially ossify a judiciary and shut out the powerless or those who are not all powerful, what are the consequences for the society at large?

SD: Well, they're not good.  I mean, basically when you can't get fundamental justice in a country, when courthouses shut their doors to the poor in terms of seeking fundamental redress for harms caused them, you know, you basically have a one-sided society where all sorts of ills flow out of that including increasing inequality, increasing poverty, and a lack of faith in their basic institutions, you know, which by the way, allowed someone like Trump to exploit and bamboozle people with this fraudulent campaign to gain power, you know.  That's how fascist rise to power, authoritarians or autocrats off of this kind of frustration people feel over a lack of access to justice in our institutions which I think is palpable now in the United States of America.  You know, my clients in Ecuador believed in our institutions.  I mean, understand that Texaco, an American company caused them tremendous harm and destroyed their cultures and lives and ecosystem.  They wanted the case in US courts.  US courts shut their doors to the Ecuadorians, forcing the case down to Ecuador which is a court system they did not trust, the court system that allowed Chevron to run roughshod over them for so many years.  And then once they were able finally to--with the help of a lot of people, you know, community leaders and lawyers like myself, win the case, Chevron then came back to the US courts to attack them and attack their lawyer, the very courts that were never good enough for Chevron at the beginning of the case, you know, forum shopping, manipulation of the system.  It's par for the course for the big fossil fuel companies whose business model, by the way, is predicated on polluting, on destroying our planet.  I mean, the more I sort of watch what Chevron does and see--that it's not only Ecuador but so many countries around the world have actually studied this, are going to produce a report about it soon, but there's dozens of countries around the world where Chevron has done the same thing but less fanfare where there's lawsuits pending against the company for environmental damage.  You know, they privatize profits and they socialize costs under the most vulnerable communities on the planet, and when they get caught doing it, as we have caught them, various courts of law, they refuse to pay, they threaten the people who brought the case, and they go after the lawyers.  So, you know, this is a serious example of a defect, in my view, in our society that really, again, people need to pay attention to.  I mean, look, we get that corporations have essentially bought off a good part of the US Congress.  We get the corporations use lobbyists to control executive branch agencies or at least influence them to a great degree and the average citizen has virtually no influence, okay?  But didn't everyone sort of think, well, the courts are there blast bulwark to protect people?  Well, even that is changing now because when a human rights lawyer gets prosecuted in a US Federal Court by a Chevron lawyer as opposed to the US government, we're even losing that institution.  So, again, this is I think a perilous moment for our country.  I mean, it's very hard for the United States, no matter what you think of the real purpose of US Foreign Policy, the professed purpose is to uphold human rights, and the rule of law, and democracy around the world.  It is very difficult to do that effectively no matter how you define what that might be when you're locking up your own lawyers in your own country who have been successful at holding the big polluters accountable.

CH: Great.  Thank you.  That was the Attorney, Steven Donziger, who sued the oil giant Chevron over toxic waste dumping in the Amazon winning a $9.5 billion settlement for the people of Ecuador.