‘I’ve Been Targeted With Probably the Most Vicious Corporate Counterattack in American History’

Steven Donziger has been under house arrest for over 580 days, awaiting trial on a misdemeanor charge. It’s all, he says, because he beat a multinational energy corporation in court.

This Attorney Took On Chevron. Then Chevron-Linked Judges and Private Prosecutors Had Him Locked Up.

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.

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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.”

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“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.”

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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.”

Kevin McCarthy’s threatens phone companies against cooperating with subpeanas

House Minority Leader Kevin McCarthy issued a threat to phone and social media companies that cooperate with the House select committee investigating the Capitol riot.

Five Justices Did This Because They Could

Emergency appeals have become the tool of choice for the conservative movement.

The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.

Instead, in the middle of the night, five of the high court’s conservatives issued a brief, unsigned order allowing a Texas law that bans abortion at six weeks. The law also gives private citizens the authority to sue anyone who “knowingly … aids or abets” an abortion and rewards them with $10,000 if successful, essentially placing a bounty on anyone wishing to end a pregnancy, and anyone who might help them. Texas is now rewarding residents who snitch to the state on the most intimate details of other people’s lives.

“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor wrote in her dissent. “​​The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Also remarkable was that the Supreme Court acted through its “shadow docket,” the decisions the justices make regarding emergency appeals such as death-penalty cases. Under normal procedure, cases take time to work their way through the lower courts, and are received at the Supreme Court with extensive records, briefs, and oral arguments. Ideally, this allows the justices to ensure that their hugely consequential decisions are properly informed and made as carefully as possible, weighing all the relevant legal and constitutional issues. But there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that. The shadow docket, though, now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.

Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.

“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”

The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docketcounts at least 41 requests foremergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.

“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”

Under Trump, the justices allowed policies such as the administration’s travel ban targeted at mostly Muslim nations, its prohibition against trans people serving in the military, and its restrictions on asylum to go into effect. Under Biden, they have barred the administration’s attempt to prevent evictions because of the coronavirus pandemic and accepted a lower-court ruling demanding that the White House reimpose the controversial Trump-era “Remain in Mexico” policy, which forced migrants into “precarious conditions in dangerous Mexican border cities where thousands became victims of kidnappings, rapes and extortion,” according to The Washington Post. The decision compels the Biden administration to renegotiate an agreement with a foreign country reached during a prior administration; deference to the president’s constitutional authority to set foreign policy, which the justices had memorably cited in Trump-era cases, was suddenly absent.

“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.

The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.

Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.

This ruling is less a description of a complex legal challenge than a road mapAs Mary Ziegler writes, the Texas law was strategically designed to evade legal restrictions, and the majority read the script that was handed to it. Republican-run legislatures now know that they can pass such laws and the Supreme Court will pretend to be unable to block them.

Among the Republican appointees, only Chief Justice John Roberts had enough respect for the right’s purported doctrines of judicial minimalism to vote to wait for the case to reach the high court through normal procedural channels. Ironically, though, the unsigned majority decision reflects a careful study of Roberts’s years of successfully managing the Court’s reputation. The decision does not say “Roe is hereby overruled,” but it tells states exactly how they can effectively ban abortion if they want to. In that, it echoes Roberts’s own tendency to hide his preferred outcomes behind legal technicalities, the better to mime fidelity to constitutional principle.

“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” Roberts wrote in his dissent. But because five justices allowed the law to go into effect—and by implication, laws in any other state that wishes to emulate Texas—Roe has been neutralized. The only question is whether that decision is temporary, and whether the Court will eventually enact any restraints on the particular legal scheme Texas has pioneered.

“I don’t think those in the reproductive-rights community who are sounding the alarm that [the Court] really effectively overruled Roe in Texas are being hyperbolic,” Murray told me yesterday, prior to the Court’s written opinion. “The fact that the Supreme Court of the United States allows a law that patently contradicts its own statements about the right to an abortion to go into effect is essentially the Court signaling that it does not care about this right and it does not think this right should exist.”

Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.

Adam Serwer is a staff writer at The Atlantic, where he covers politics.

NEW Police Tactic To Stop Being Filmed

Police are now playing copyrighted music like Taylor Swift to trigger DMCA takedowns of protester videos. Cenk Uygur and Brett Erlich discuss on The Young Turks.

 

Read more HERE:  https://www.vice.com/en/article/bvxa7… “Turns out that Beverly Hills PD isn’t just into Sublime—they also like the Beatles. In a new video that LA area activist Sennett Devermont says was taken on January 16th, we can see Devermont trying to ask Sergeant Billy Fair—now best known for blasting Sublime at BHPD HQ—a question. But suddenly, he is interrupted by the mournful voice of Paul McCartney:…”

 

  • The police officer had that song prepared, if there’s no consequence for this, it’s a dangerous precedent
  • Do the police have permission to play copyrighted music when they know they are being filmed? Seems to me they are the ones who are in violation of the law and not the people recording them.
  • No listening to music during operations on duty. It distracts the citizens attention and the officers attention. Cut the music and get down to serious business.
  • honestly, this is brilliant! you have the right to record the police – they are not taking that right away from you – you could still use that footage in a court of law. You do not have the right to post whatever you want online – that’s a privilege that can be revoked for any reason, including copyright  (???)
  • Pathetic
  • You can take the music out easily – you just need Audacity, reverse the music being recorded, add it back in, and WOILA! The music is canceled! This leaves whatever is being said STILL being said and would come in clearly. By the way Audacity is TOTALLY FREE!!!!!!
  • I think Taylor Swift has grounds for a lawsuit that her music was used to cover up a potential violation of civil rights/criminal activity by police officers. Therefore smearing her reputation.
  • I would yelling and pretending I can’t hear through the music. Then file a compliant that a cop is playing music while conducting police work against policy
  • People like Taylor Swift should Allowed the music to be played in these cases, to show how the police are trying to deceive rather than protect
  • The labels do what the artist tell them because they want to keep a good relationship with the artist. No label is going to pursue legal action against someone without consent from the artist in question That’s why Metallica and all those asshats can eat my bag of s*** f**** posers
  • If ur not doing any wrong why do u need the music?????
  • Until police start holding their own accountable for their actions, they need to be filmed.
  • Not amusing in the least. This an injustice and unprofessional.
  • This is not a problem. All the good cops will be disgusted by this and force the bad cops to stop. Oh wait, i’m being told there are no good cops. That there are literally zero total good cops.
  • Karens will be doing it next.
  • I’ve also seen in a couple videos where the cop shines light in camera phone.
  • It’s just evil anymore! A man becomes cop to have power over others…I have no wish for this power myself….anyone who wants power should not ever have it.
  • Lol they’re so desperate to get away with breaking the law that they’ll do whatever they can to avoid being recorded. They’re such garbage
  • The obvious next move here, is to tell the Cops that you cannot understand what they are saying, because they need to turn “their” music down. WHEN this one GOES TO COURT, the Judge will have some questions for them, about WHY they are playing tunes on the job, WHILE supposedly “communicating” with members of the public…
  • If they are not doing anything wrong why do they object to being recorded? Doing this should be considered an admission of GUILT.
  • This has happened before and the courts have been really pissed about it
  • The Alameda county sheriff’s webpage has a complaint page, but not a comment page. And they post all sorts of threatening notices about filing complaints. “Go ahead and complain about us, but you might go to jail if you do.”
  • As far as I’m concerned, when a cop pulls this stunt he/she is planning to commit a crime.
  • This is frustrating, not because of what the cops are doing, but because of people’s misunderstanding of copyright rules on youtube and other platforms. There’s no such thing as an automated copyright strike. If you were going to get an automatic copyright strike, youtube would just stop you from posting the video. To get a copyright strike, somebody has to manually make a copyright claim on one of your videos, asking youtube to take the video down.
  • Any cop caught doing this should be fired on the spot
  • I’m no lawyer, but this seems like tampering with evidence, or obstruction of justice, or maybe an infraction of civil rights. Someone contact @LegalEagle and ask him about this.
  • If they were not planning on committing illegal acts they would not be planning on preventing it from being recorded. This is prima facie evidence of pre-meditation to commit the crime.
  • Easy fix, tell the cops you can’t hear a single word he’s saying until he turns the music off
  • Hmmm.. evidence tampering if a criminal act happened
    Overruled. Youtube is not a court.
  • Just send it directly to the news channels, then.
  • Please explain how playing music while someone is recording video is going to prevent that video being used as evidence? Are you saying that if the cop who killed George Floyd had played music while cameras were recording the lethal actions of Officer Chauvin, those recordings wouldn’t or couldn’t be used at his trial. Listen, there is no intent to use the music of Taylor Swift in violation of copyright by the person recording. It is not going to pass the Constitutional Test. The Supreme Court has already ruled that citizens have the right to record video of the police as long as they don’t interfere. One more thing, appreciate the dramatics but you didn’t have to mute Taylor Swift in the video you played.

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    You’re right…they probably didn’t have to mute it because the video would have just been demonitized in all likelihood. There is a less likely chance it would have been removed completely.
    It’s not about using it as evidence. It’s about preventing the clip from going viral. We’re saying if the clip of George Floyd had had blank space by Taylor Swift playing and had to be muted the world wouldn’t have heard people pleading for the cop remove his knee, or for Floyd pleading for his mother. Has nothing to do with court and everything to do with it even getting to court as these viral videos of abuse of power are what is holding police accountable.
  • Wow, I thought police were for the people! ? Gee, I guess 1st amendment rights are only for Trumper Thumpers ! Stuff like that should at least cost that cop a hefty fine at very least!
  • Sick and tired of entitled police officers who think they have a right to behave any way they please with no accountability. “Law and order” my a$$. They’re like bullies on the playground except with guns. A fast food worker making less than $10/hour is expected to have better customer service skills.
  • So it seems the officers cannot give clear and precise instructions while playing music. That is why most officers ask to turn automobile or music off… So would the person be liable for anything?
  • Sneaky per USUAL
  • Easy fix… keep repeating, I can’t hear you, can you turn the music off… until they do and keep recording and repeating on camera…
  • If you have seen a few videos of all the dimwitted frauditors, or “auditors” as they like to call themselves while running around filming and harassing any public official they can find, who follow cops, even when cops are investigating a crime scene, it is actually quite understandable that the police use this trick. I agree that they should be held accountable, but I get the feeling you overestimate the seriousness of all the various people, morons or not, who film their every step, usually only to get some clips for a YouTube channel.

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  •  @John Doe  So citizens have a right to record because its legal right? Whats the law against playing music from your phone? If you don’t like music being played, walk away. Your right to record should not infringe my right to play music? (I ain’t even a damn cop)
  •  @John Doe  “it’s in a form to be readily distributed” That sounds like a you problem, if I was a cop I’d ask for a press card? Freedom of press? You mean any wally with a camera?

The tactics police are using to prevent bystander video

Marianne Williamson: DOJ CAUGHT Trying To COVER UP War Crime With Charges Against Julian Assange

Activist and former Democratic presidential candidate, Marianne Williamson, discusses the latest updates in the Julian Assange case.