After spending more than 700 days under house arrest, a human rights and environmental lawyer was found guilty last month of criminal contempt in a legal saga that has demonstrated the deep-rooted conflicts of interest layered throughout the judicial system when it comes to climate justice. In Steven Donziger’s conviction, the initial judge who referred him to trial, the second judge who was asked to lead the trial, and the private prosecutors who tried him all had deep ties to Chevron, the company Donziger had won a landmark multibillion-dollar ruling against.
The story began in 2011 when Donziger brought litigation against Texaco (now Chevron) in Ecuador for the harm it caused the Indigenous people in the Ecuadorian Amazon, where the fossil fuel company decided to deliberately discharge 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. A refusal from Chevron to adhere to environmental regulations—which earned the company an extra $5 billion over 20 years—led to more than 30,000 Ecuadorians being directly harmed by the oil giant’s actions, the judges in that case found. The case Donziger led made it all the way to the Ecuador Supreme Court, and successfully secured $9.5 billion in environmental damages for the Amazonian communities in a historic climate justice decision.ADVERTISEMENT
In a letter sent to the Administrative Office of the U.S. Courts at the end of last month, Sens. Ed Markey and Sheldon Whitehouse brought into question specifically the use of private prosecutors in the contempt case against Donziger. The three prosecutors that Kaplan appointed, Brian Maloney, Sareen Armani, and Rita Glavin (who is also Andrew Cuomo’s personal lawyer), were all at the time with the law firm Seward & Kissel. That firm had represented Chevron as recently as 2018. “These prosecutions,” the senators wrote, “are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system.”
Indeed, the apparent conflict of interest the private prosecution had is directly at odds with Supreme Court precedent. In the 1987 decision of Young v. United States ex rel. Vuitton et Fils, the Supreme Court ruled that, when it comes to private prosecutors pursuing criminal contempt cases, they “certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”ADVERTISEMENT
“Public confidence in the disinterested conduct” of the private prosecutor, the court warned, is essential to maintaining the integrity of the judicial system. That means that even the appearance of interest on the part of the private prosecutor can be considered a violation of Vuitton.
“Appearances are really functionally important for the rule of law, and for our judiciary,” said Guha Krishnamurthi, an associate professor of law at the University of Oklahoma. Krishnamurthi argues that one of the “biggest protections” of the criminal justice system is a disinterested prosecutor who can determine whether or not pursuing a case is to the benefit of the criminal justice system. The fact that a public prosecutor is accountable to the government and to the public, he says, reinforces this protection in a way that private prosecutors do not.
“I think it’s such a clear abuse that it violates the defendant’s constitutional right to due process. You can’t have someone who’s got a conflict of interest, who has personal reasons for wanting to see a person they’re prosecuting convicted,” said Louis Raveson, a professor of law at Rutgers Law School and the founder of the university’s Environmental Law Clinic. “That’s not an appropriate procedure, and, in my view, it’s not a constitutional procedure.”
“This is a perversion of justice, the whole idea that you can have a lawyer who previously worked for Chevron then prosecuting Donziger in the criminal case,” said Martin Garbus, Donziger’s attorney and a prominent veteran of human rights litigation. “It’s clear that it violates the law. … If you look at the body of law that deals with disinterest, people are disqualified for something far, far less than the involvement here.”
Raveson acknowledged that in certain instances, like police brutality cases or other times when the government is being asked to prosecute itself, private prosecutors can be truly beneficial. A private prosecutor there would likely be necessary in order to ensure disinterest and justice, as the public prosecutor works for the government. Often, though, they’re used in cases like Donziger’s, after a disinterested public prosecutor declines to pursue the charge and the judge decides to move forward anyway. “That’s all the more reason that judges need to err on the side of no possibility of a conflict,” Raveson said. Speaking of the Donziger case, he added, “It appears that a conflict is almost inevitable … and clearly that’s not by accident.”ADVERTISEMENT
When it comes to the decisions that could prevent one of the largest climate justice judgments of the past decade from taking effect, such appearances of conflict of interest are incredibly significant—and could be detrimental to future climate justice litigation.
“It’s scary going after a large corporation [and] it’s scary going after governments because they have so much power and so much influence that they can do a lot of damage to someone’s life,” Raveson said. “If the lawyers who bring [environmental justice cases like Donziger’s] are subject to biased determinations as to whether or not they should be punished … it’s going to have a deterrent effect on lawyers to bring these kinds of cases.”
Such a deterrence could have massive consequences for the climate, especially at a time when, as this week’s new report from the Intergovernmental Panel on Climate Change showed, the world is barreling further toward climate catastrophe, a crisis that is driven in no small part by fossil fuel companies like Chevron. “It’s up to the judiciary to really ensure that that kind of chilling and deterrence … doesn’t happen,” Krishnamurthi added. “And the way you do that is by having more than just the formality of the rules, [but] having a true fidelity to conflicts of interest and disqualifying where necessary.”
four warning signs to determine if a political leader is a dangerous authoritarian:
- The leader shows only a weak commitment to democratic rules.
- He or she denies the legitimacy of opponents.
- He or she tolerates violence.
- He or she shows some willingness to curb civil liberties or the media.
.. “With the exception of Richard Nixon, no major-party presidential candidate met even one of these four criteria over the last century,” they say, which sounds reassuring. Unfortunately, they have one update: “Donald Trump met them all.”
.. democracies are more likely to wither at the hands of insiders who gain power initially through elections. That’s what happened, to one degree or another, in
- Russia, the
- Sri Lanka,
- Poland and
.. Venezuela was a relatively prosperous democracy, for example, when the populist demagogue Hugo Chávez tapped the frustrations of ordinary citizens to be elected president in 1998.
.. the Venezuelan public overwhelmingly believed that “democracy is always the best form of government,” with only one-quarter saying that authoritarianism is sometimes preferable. Yet against their will, Venezuelans slid into autocracy.
“This is how democracies now die,” Levitsky and Ziblatt write. “Democratic backsliding today begins at the ballot box.”.. he has tried to undermine institutions and referees of our political system: judges, the Justice Department, law enforcement agencies like the F.B.I., the intelligence community, the news media, the opposition party and Congress. But to his great frustration, American institutions have mostly passed the stress test with flying colors... Levitsky and Ziblatt warn of the unraveling of democratic norms — norms such as treating the other side as rivals rather than as enemies, condemning violence and bigotry, and so on. This unraveling was underway long before Trump (Newt Gingrich nudged it along in the 1990s), but Trump accelerated it... It matters when Trump
- denounces the “deep state Justice Department,”
- calls Hillary Clinton a “criminal” and
- urges “jail” for Huma Abedin,
- denounces journalists as the “enemy of the American people” and
- promises to pay the legal fees of supporters who “beat the crap” out of protesters... The answer, they said, is not for Trump opponents to demonize the other side or to adopt scorched-earth tactics, for this can result in “a death spiral in which rule-breaking becomes pandemic.” It’s also not terribly effective, as we’ve seen in Venezuela... they suggested protesting vigorously — but above all, in defense of rights and institutions, not just against the ruler... build coalitions, even if that means making painful compromises, so that protests are very broadly based.