Is Chevron’s Vendetta Against Steven Donziger Finally Backfiring?

Steven Donziger, the human rights lawyer who spent nearly three decades fighting Chevron on behalf of 30,000 people in the Ecuadorian rainforest, has been sentenced to six months in federal prison for “criminal contempt.” On October 1, in a lower Manhattan federal courtroom, Judge Loretta Preska justified imposing the maximum penalty by asserting that Donziger, now 60, had not shown contrition. She said, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”

In May, Preska had found Donziger guilty after a trial without a jury. And now Donziger, along with his family and scores of supporters, had to listen to the federal judge compare him to a mule who needed to be beaten with a piece of wood before complying.

Prior to sentencing, Donziger reminded the court in a polite and at times emotional statement that he had already spent 787 days under house arrest in his New York City apartment, a confinement that had put great pressure on his wife and teenage son. He explained that the court-imposed restrictions meant that his son had a father who was “unable to travel, leave his home except under narrow exceptions with court permission 48 hours in advance, unable to even go out for dinner, unable to have a father capable of doing all the things a father can do and should do with a child, including act with spontaneity.”

But even though Donziger was facing prison, he told the court he would not back down: “I have been attacked and demonized for years by Chevron in retaliation for helping Indigenous peoples in Ecuador try to do something to save their cultures, their lives, and our planet in the face of massive oil pollution. That’s the context for why we are here today.”

In response, Preska read out a prepared 50-minute statement for her harsh sentence. “Mr. Donziger spent the last seven plus years thumbing his nose at the US judicial system,” she said. “It’s now time to pay the piper.”

Donziger will not go to prison immediately. His attorneys will challenge the criminal contempt conviction, and they will also ask a higher court to put off his prison sentence pending that appeal. But Preska will keep him under house arrest, once again calling him a “flight risk.” In the past, she has warned that he “has ties to Ecuador,” insinuating that he would abandon his family and his New York City apartment to go live in the rain forest.

You can’t understand this latest injustice without looking back at Chevron’s long campaign against Donziger, who won a landmark pollution case against the oil giant in Ecuadorian courts in 2013. Chevron was ordered to spend $9.5 billion to clean up a contaminated area the size of Rhode Island, and to pay for the health care of the 30,000 plaintiffs whose communities have seen a rising number of cancer cases. Instead of following the legal order, Chevron launched a case in New York, and in 2014, a federal judge, Lewis Kaplan, found Donziger and some of his Ecuadorian allies civilly liable for racketeering, bribery, and fraud. Then, Kaplan asked the federal prosecutor for the Southern District of New York to put Donziger on trial for “criminal contempt” connected to the original conviction. The federal prosecutor refused, so Kaplan handpicked an attorney from a private firm, Rita Glavin, to prosecute—a nearly unprecedented legal maneuver.

As Chevron’s vendetta continued, international outrage grew. Just before sentencing, the United Nations High Commissioner for Human Rights issued an opinion in Donziger’s favor, ruling that his two years of house arrest was illegal under international law and that he had been denied the right to a fair trial. A panel of five prominent jurists called that confinement “arbitrary” and said that both judges, Kaplan and Preska, had shown “a staggering lack of objectivity and impartiality.” In court, Preska briefly acknowledged the UN findings only to dismiss them.

Once again, the mainstream media is largely ignoring Chevron’s campaign of retaliation against Donziger. The New York Times, Donziger’s hometown newspaper, reported nothing in the two days after the verdict, and has barely mentioned the case for the past seven years.

Back in 1993, Donziger, fresh out of Harvard Law School, joined an ongoing fight for environmental justice. The struggle against Texaco, which was taken over by Chevron in 2001, began in the late 1980s in eastern Ecuador, where the oil company drilled and operated wells from 1972 to 1992. Texaco had disposed of its drilling wastes by methods that in some cases would have been illegal in the United States. (More details are here.) Local people began organizing against the pollution in their rivers and streams and in oil-soaked stretches of their land. The case started in the New York federal courts, but then a judge ordered it sent back to Ecuador—a move that Chevron’s lawyers welcomed at the time. So, in 2003, the legal battle re opened in the eastern oil frontier town of Lago Agrio.

The case wound its way up through three levels of the Ecuadorian courts, and in the end, after Chevron exhausted all appeals, its guilt was confirmed. Meanwhile, though, its counterattack back in New York was underway. Chevron charged that Donziger and his allies had committed bribery and fraud in Ecuador to win their case, and it used the Racketeer Influenced and Corrupt Organizations Act (RICO), which had been designed to prosecute the Mafia. Donziger and the codefendants expected they would face a jury, but at the last minute, Chevron dropped its demand for financial damages. Under RICO law, this meant the defendants lost their right to a jury, and Kaplan alone would decide the case.

Donziger’s supporters objected to Kaplan’s pro-corporate statements and hostility toward the human rights lawyer during the RICO trial. Kaplan is a career corporate lawyer turned judge, with no experience in Ecuador or anywhere else in the Global South. Yet he decided which witnesses to believe and which to disregard—and in 2014 he found Donziger and the others guilty.

Only a corporation like Chevron worth billions could have financed such a prosecution. The oil giant paid for a disgraced former judge named Alberto Guerra and his family to move to the United States. Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times before he went on the witness stand, where Guerra claimed that Donziger and an Ecuadorian lawyer had offered him a $500,000 bribe and that the pair had ghostwritten the final judgment against Chevron. Donziger and his defense team estimate that Chevron has spent $2 billion on legal fees and other costs. (Chevron’s designated spokesman, James Craig, declined to give the corporation’s own figure for how much it has spent on the case. Craig also declined to say if Chevron is still paying Guerra or if he is still living in the United States.)

Chevron’s attacks against Donziger did not stop after it won the racketeering verdict. The current contempt case began when the oil corporation petitioned Kaplan for access to Donziger’s personal computer and cell phone. Donziger declined, arguing that his electronic communications would give Chevron’s lawyers “backdoor access to everything we are planning, thinking, and doing.” He said he would wait until the US Court of Appeals heard his argument, and if it required him to, then he would hand over his electronics. Preska dismissed his defense and convicted him in May—again, without a jury.

It’s vital to recognize Chevron’s role in this legal persecution. Its attorneys show up at every Donziger legal case—even the ones that don’t directly involve the company. At the same time as Donziger was defending himself against the criminal contempt charge, he was also fighting the effort to take away his license to practice law in New York. The state bar association appointed a special officer named John Horan to preside over open hearings, and he found in Donziger’s favor. Horan, a former prosecutor, had harsh words for Chevron: “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.”

Months later, a higher New York state court tossed out Horan’s finding and disbarred Donziger.

Putting Donziger in a federal prison for six months is more than vindictiveness. The $9.5 billion judgment against Chevron in Ecuador still stands, but the oil giant unloaded its assets there. That means the plaintiffs must collect in other countries where the corporation has holdings. Kaplan’s racketeering verdict specifically prohibited the Ecuadorians from forcing Chevron to pay the judgment in the United States. But there are promising possibilities in Canada and elsewhere. Donziger is forced to put those fights on hold while he tries to stay out of prison.

But there are signs that Chevron has gone too far, and that relentlessly pursuing a human rights lawyer is damaging its international reputation. The United Nations High Commissioner for Human Rights is only the latest sign of concern and anger. Sixty-eight Nobel Laureates have shown their solidarity; another 475 lawyers and human rights defenders have signed a letter that calls his prosecution “one of the most important corporate accountability and human rights cases of our time.” Representative Jim McGovern, a Democrat from Massachusetts, said after the prison sentence that “it’s the executives at Chevron,” not Donziger, “who should be behind bars.”

What’s more, a movement to boycott Chevron is in the early stages. Big Oil is under scrutiny because of its role in the climate crisis, and divestment campaigns on college campuses and elsewhere are starting to have an impact. Large institutional investors may also start to pay attention. CalPERS, the giant retirement investment fund for California government employees, is headquartered in Chevron’s home state, and the teachers and municipal employees who contribute to it may ask why it holds $456 million of the oil giant’s stock.

Former Nixon counsel John Dean to be witness opposed to Kavanaugh nomination to Supreme Court

In a telephone interview, Dean said he would focus on Kavanaugh’s views on executive power and his statements about the case, U.S. v. Nixon, in which the Supreme Court ruled that Nixon had to turn over secretly recorded White House tapes.

Kavanaugh’s view on the case is murky. He said in a 1999 panel discussion that “maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch . . . that was a huge step with implications to this day that most people do no fully appreciate.”

.. Dean also said he would focus on Kavanaugh’s 2009 Minnesota Law Review article, in which the federal appeals court judge wrote that a president is too busy to be distracted by civil suits and criminal investigation while in office. Kavanaugh’s view has come under scrutiny because he played the lead role in laying out the grounds for impeaching President Bill Clinton when he helped write a report to Congress for independent counsel Kenneth Starr.

.. Democrats are expected to question Kavanaugh about whether he believes that President Trump should be subject to investigation by special counsel Robert S. Mueller III.

.. Democrats have expressed concern that Kavanaugh could be asked to rule on whether Mueller can subpoena Trump and force him to testimony.

Dean, who has said Trump is “more dangerous” than Nixon

.. Republicans announced Thursday that Kavanaugh will be introduced at the hearings by former secretary of state Condoleezza Rice, among others, and a number of his former law clerks and others will testify in his favor. Former solicitor general Theodore Olson is also slated to testify for Republicans.

God’s Plan for Mike Pence

Will the vice president—and the religious right—be rewarded for their embrace of Donald Trump?

Casting himself as the heir to the popular outgoing governor, Mitch Daniels, he avoided social issues and ran on a pragmatic, business-friendly platform. He used Ronald Reagan as a political style guru and told his ad makers that he wanted his campaign commercials to have “that ‘Morning in America’ feel.” He meticulously fine-tuned early cuts of the ads, asking his consultants to edit this or reframe that or zoom in here instead of there.

.. set about cutting taxes and taking on local unions—burnishing a résumé that would impress Republican donors and Iowa caucus-goers. The governor’s stock began to rise in Washington

..  In recent years, the religious right had been abruptly forced to pivot from offense to defense in the culture wars—abandoning the “family values” crusades and talk of “remoralizing America,” and focusing its energies on self-preservation.

..“Many evangelicals were experiencing the sense of an almost existential threat,” Russell Moore, a leader of the Southern Baptist Convention, told me.

It was only a matter of time, he said, before cultural elites’ scornful attitudes would help drive Christians into the arms of a strongman like Trump. “I think there needs to be a deep reflection on the left about how they helped make this happen.”

.. Coming into the game, Trump had formed an opinion of the Indiana governor as prudish, stiff, and embarrassingly poor, according to one longtime associate.

.. Pence asked what his job description would be if they wound up in the White House together. Trump gave him the same answer he’d been dangling in front of other prospective running mates for weeks: He wanted “the most consequential vice president ever.” Pence was sold.

.. “I knew they would enjoy each other’s company,” Conway told me, adding, “Mike Pence is someone whose faith allows him to subvert his ego to the greater good.”

.. Pence spent much of their time on the course kissing Trump’s ring. You’re going to be the next president of the United States, he said. It would be the honor of a lifetime to serve you.

Afterward, he made a point of gushing to the press about Trump’s golf game. “He beat me like a drum,” Pence confessed, to Trump’s delight.

.. Trump released a list of potential Supreme Court nominees with unimpeachably pro-life records and assembled an evangelical advisory board composed of high-profile faith leaders.

.. One of the men asked to join the board was Richard Land, of the Southern Evangelical Seminary. When the campaign approached him with the offer, Land says, he was perplexed. “You do know that Trump was my last choice, right?” he said. But he ultimately accepted, and when a campaign aide asked what his first piece of advice was, he didn’t hesitate: “Pick Mike Pence.”

.. Then, on July 12, a miracle: During a short campaign swing through Indiana, Trump got word that his plane had broken down on the runway, and that he would need to spend the night in Indianapolis. With nowhere else to go, Trump accepted an invitation to dine with the Pences.

.. In fact, according to two former Trump aides, there was no problem with the plane. Paul Manafort, who was then serving as the campaign’s chairman, had made up the story to keep the candidate in town an extra day and allow him to be wooed by Pence.

.. Pence spoke of Trump in a tone that bordered on worshipful. One of his rhetorical tics was to praise the breadth of his running mate’s shoulders. Trump was, Pence proclaimed, a “broad-shouldered leader,” in possession of “broad shoulders and a big heart,” who had “the kind of broad shoulders” that enabled him to endure criticism while he worked to return “broad-shouldered American strength to the world stage.”

.. Campaign operatives discovered that anytime Trump did something outrageous or embarrassing, they could count on Pence to clean it up. “He was our top surrogate by far,”

.. “He was this mild-mannered, uber-Christian guy with a Midwestern accent telling voters, ‘Trump is a good man; I know what’s in his heart.’ It was very convincing—you wanted to trust him.

.. Even some of Trump’s most devoted loyalists marveled at what Pence was willing to say. There was no talking point too preposterous, no fixed reality too plain to deny

.. When, during the vice-presidential debate, in early October, he was confronted with a barrage of damning quotes and questionable positions held by his running mate, Pence responded with unnerving message discipline, dismissing documented facts as “nonsense” and smears.

.. It was the kind of performance—a blur of half-truths and “whatabout”s and lies—that could make a good Christian queasy.

.. Marc Short, a longtime adviser to Pence and a fellow Christian, told me that the vice president believes strongly in a scriptural concept evangelicals call “servant leadership.” The idea is rooted in the Gospels, where Jesus models humility by washing his disciples’ feet and teaches, “Whoever wants to become great among you must be your servant, and whoever wants to be first must be your slave.”

..  when he accepted the vice-presidential nomination, he believed he was committing to humbly submit to the will of Donald Trump. “Servant leadership is biblical,” Short told me. “That’s at the heart of it for Mike, and it comes across in his relationship with the president.”

.. “His faith teaches that you’re under authority at all times.

  • Christ is under God’s authority,
  • man is under Christ’s authority,
  • children are under the parents’ authority,
  • employees are under the employer’s authority.”

.. “Mike,” he added, “always knows who’s in charge.”

.. On friday, october 7, 2016, The Washington Post published the Access Hollywood tape

.. Most alarming to the aides and operatives inside Trump Tower, Mike Pence suddenly seemed at risk of going rogue.

.. Republican donors and party leaders began buzzing about making Pence the nominee and drafting Condoleezza Rice as his running mate.

.. The furtive plotting, several sources told me, was not just an act of political opportunism for Pence. He was genuinely shocked by the Access Hollywood tape. In the short time they’d known each other, Trump had made an effort to convince Pence that—beneath all the made-for-TV bluster and bravado—he was a good-hearted man with faith in God. On the night of the vice-presidential debate, for example, Trump had left a voicemail letting Pence know that he’d just said a prayer for him. The couple was appalled by the video, however. Karen in particular was “disgusted,” says a former campaign aide. “She finds him reprehensible—just totally vile.

.. Pence turns to a favorite passage in Jeremiah: “For I know the plans I have for you, declares the Lord, plans to prosper you and not to harm you, plans to give you hope and a future.”

.. “They thought they were going to be able to get him to drop out before the second debate,” said a former campaign aide. “Little did they know, he has no shame.”

.. Trump showed up in St. Louis for the debate with a group of Bill Clinton accusers in tow, ranting about how Hillary’s husband had done things to women that were far worse than his own “locker-room talk.”

.. In political circles, there had been a widespread, bipartisan recognition that Pence was a decent man with a genuine devotion to his faith. But after watching him in 2016, many told me, they believed Pence had sold out.

.. watching Pence vouch for Trump made him sad. “Ah, Mike,” he sighed. “Ambition got the best of him.” It’s an impression that even some of Pence’s oldest friends and allies privately share.

.. “The number of compromises he made to get this job, when you think about it, is pretty staggering.”

.. Pastor Ralph Drollinger, for example, caught Trump’s attention in December 2015, when he said in a radio interview, “America’s in such desperate straits—especially economically—that if we don’t have almost a benevolent dictator to turn things around, I just don’t think it’s gonna happen through our governance system.” Now Drollinger runs a weekly Bible study in the West Wing.

.. On one side, there are those who argue that good Christians are obligated to support any leader, no matter how personally wicked he may be, who stands up for religious freedom and fights sinful practices such as abortion. Richard Land told me that those who withhold their support from Trump because they’re uncomfortable with his moral failings will “become morally accountable for letting the greater evil prevail.”

.. On the other side of the debate is a smaller group that believes the Christians allying themselves with Trump are putting the entire evangelical movement at risk. Russell Moore, of the Southern Baptist Convention, has made this case forcefully.

.. only 30 percent of white evangelicals believed “an elected official who commits an immoral act in their personal life can still behave ethically and fulfill their duties in their public and professional life.”

.. One pastor compared Pence to Mordechai, who ascended to the right hand of a Persian king known for throwing lavish parties and discarding his wife after she refused to appear naked in front of his friends.

.. Pastor Mark Burns—a South Carolina televangelist who was among the first to sign on as a faith adviser to Trump—told me Pence’s role in the administration is like that of Jesus, who once miraculously calmed a storm that was threatening to sink the boat

.. Of the 15 Cabinet secretaries Trump picked at the start of his presidency, eight were evangelicals. It was, gushed Ted Cruz, “the most conservative Cabinet in decades.”

.. Pence understood the price of his influence. To keep Trump’s ear required frequent public performances of loyalty and submission—and Pence made certain his inner circle knew that enduring such indignities was part of the job.

.. “Look, I’m in a difficult position here,” Pence said, according to someone familiar with the meeting. “I’m going to have to 100 percent defend everything the president says. Is that something you’re going to be able to do if you’re on my staff?”

.. Trump does not always reciprocate this respect. Around the White House, he has been known to make fun of Pence for his religiosity.

.. During a conversation with a legal scholar about gay rights, Trump gestured toward his vice president and joked, “Don’t ask that guy—he wants to hang them all!”

..  “They have moved to an ends-justifies-the means style of politics that would have been unimaginable before this last campaign.”

.. he thought it was so low class,” says the adviser. “He thinks the Pences are yokels.”

.. Social conservatives had been lobbying the president to issue a sweeping executive order aimed at carving out protections for religious organizations and individuals opposed to same-sex marriage, premarital sex, abortion, and transgender rights. The proposed order was fairly radical, but proponents argued that it would strike a crucial blow against the militant secularists trying to drive the faithful out of the public square.

.. “Bannon wanted to fight for it,” says the Trump associate, “and he was really unimpressed that Pence wouldn’t do anything.”

.. But perhaps Pence was playing the long game—weighing the risks of taking on Trump’s kids, and deciding to stand down in the interest of preserving his relationship with the president.

.. What would a Pence presidency look like? To a conservative evangelical, it could mean a glorious return to the Christian values upon which America was founded. To a secular liberal, it might look more like a descent into the dystopia of The Handmaid’s Tale.

.. What critics should worry about is not that Pence believes in God, but that he seems so certain God believes in him. What happens when manifest destiny replaces humility, and the line between faith and hubris blurs? What unseemly compromises get made? What means become tolerable in pursuit of an end?

.. Trump’s order merely made it easier for pastors to voice political opinions from the pulpit—a conspicuously self-serving take on religious freedom.

.. The faith leaders pulled out their smartphones and snapped selfies, intoxicated by the VIP treatment. “Mr. President,” Robert Jeffress, the pastor of the First Baptist Church in Dallas, said at one point, “we’re going to be your most loyal friends. We’re going to be your enthusiastic supporters. And we thank God every day that you’re the president of the United States.”

.. “I’ve been with [Trump] alone in the room when the decisions are made. He and I have prayed together,” Pence said. “This is somebody who shares our views, shares our values, shares our beliefs.” Pence didn’t waste time touting his own credentials. With this crowd, he didn’t need to. Instead, as always, he lavished praise on the president.

Tillerson Should Go

If Secretary of State Rex Tillerson resigned, how would anyone know? He has become the nation’s least influential top diplomat in recent memory. His relationship with the president of the United States is strained at best, he has no philosophy or signature initiative, he has barely staffed his own department, and he’s alienated the foreign service. The former CEO of ExxonMobil has taken one of the power positions in the U.S. government and made it an afterthought.

.. Usually establishmentarians have the advantage, if nothing else, of a great store of government experience. Brent Scowcroft devoted most of his adult life to public service; Tillerson devoted most of his adult life to ExxonMobil.

.. Unlike, say, James Mattis advising Trump on defense matters, this is not a professional guiding an amateur; it’s another amateur trying to school an amateur. Is it any wonder that it hasn’t gone well?

..   Recent Republican secretaries of state provide two models.

  1. There’s the Colin Powell approach of attending to the needs of “the building,” i.e., the civil service, and neglecting your relationship with the president.
  2. Then there’s the Condi Rice approach of tending to your relationship with the president and ignoring the building. Tillerson has done neither.

.. Neither of the opposing dispensations in American foreign policy should feel vested in Tillerson. If you’re a liberal internationalist who wants Trump checked, you’d prefer someone better suited to the task. If you’re a Trumpist who wants Trump empowered to transform American foreign policy, you want someone who is in sympathy with that goal.

.. he probably fails a threshold test: Can he reliably be thought to speak for the United States government?