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.”
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.