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.
It’s a beautiful day in New York, but Steven Donziger cannot leave his house. There’s an electronic bracelet around his ankle, and he is only permitted to leave for medical appointments, meetings with lawyers, and school events for his 14-year-old son. He needs permission from a pretrial-services officer each time—those are the terms of his house arrest. So on a 68-degree Thursday in March, he is getting fresh air by sitting in front of an open window in his apartment on 104th street in Manhattan while we talk on the phone. He has not been convicted of a crime. He’s only been accused of a misdemeanor, and he’s still awaiting trial. But, as of March 17, 2021, he has been locked up in his apartment for 589 days because, he says, he took on a massive multinational oil firm and won.
Donziger is a human rights lawyer who, for more than 27 years, has represented the Indigenous peoples and rural farmers of Ecuador against Texaco—since acquired by Chevron—which was accused of dumping at least 16 billion gallons of toxic waste into the area of the Amazon rainforest in which they live. Cancer is now highly prevalent in the local population. Some have called it the “Amazon Chernobyl.” They first filed suit in New York in 1993, but Texaco lobbied, successfully, to move the proceedings to Ecuador. In 2011, the team of Ecuadorian lawyers Donziger worked with won the case, and Chevron was ultimately ordered to pay $9.8 billion.
But for Donziger, that was nowhere near the end. Chevron, a $260 billion company, went to a New York federal court to sue him under a lesser-known civil—non-criminal—provision of the Racketeering Influenced and Corrupt Organizations (RICO) Act. They later dropped their demands for financial damages because it would have necessitated a jury trial. That is something Donziger has been unable to get. Instead, Judge Lewis A. Kaplan, a former corporate lawyer whose clients included tobacco companies, became Donziger’s judge-and-jury in the RICO case. He heard from 31 witnesses, but based his ruling in significant part on the testimony of Albert Guerra, a former Ecuadorian judge whom Chevron relocated to the U.S. at an overall cost of $2 million. Guerra alleged there was a bribe involved in the Ecuadorian court’s judgement against Chevron. He has since retracted some of his testimony, admitting it was false.
But Kaplan, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud. And he didn’t stop there. He ordered Donziger to pay millions in attorneys fees to Chevron and eventually ordered him to turn over decades of client communications, even going after his phone and computer. Donziger considered this a threat to attorney-client privilege and appealed the ruling, but while that appeal was pending, Kaplan slapped him with a contempt of court charge for refusing to give up the devices. When the U.S. Attorney for the Southern District of New York declined to prosecute the case, Kaplan took the extraordinary step of appointing a private law firm to prosecute Donziger in the name of the U.S. government. The firm, Seward & Kissel, has had a number of oil-and-gas clients, including, in 2018… Chevron. Kaplan bypassed the usual random case-assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case: Loretta Preska, a member of the Federalist Society, among whose major donors is… Chevron. Preska has, like Kaplan, rejected Donziger’s requests to have his trial heard by a jury of his peers. Both judges declined Esquire’s request for comment on Donziger’s cases, citing court policy.
ADVERTISEMENT – CONTINUE READING BELOWAt this point, the details of Chevron’s conduct in the Amazon are very far in the rearview. So are the allegations against Donziger with respect to his conduct in the initial case, though he has been disbarred based on Kaplan’s ruling. (A “special referee” appointed by the Supreme Court of New York, John Horan, found his law license should be reinstated, although the Appellate Division rejected those findings and that matter is still on appeal.) The question at hand is whether he should have an ankle bracelet on. On March 10, 2021, he went before a three-judge panel to argue for his release from pre-trial detention before the same appellate court that has largely rejected his prior appeals in the case. Their ruling on the pending appeal could come down any day now. In the meantime, in a conversation below edited for length and clarity, this is Donziger’s side of the story.
In a lengthy statement emailed to Esquire, a Chevron spokesman said the company is not involved in the pending criminal case against Donziger and disputed his narrative about the case in Ecuador as well as the legal proceedings that have followed. Chevron noted that Judge Kaplan’s finding that the judgment against it in Ecuador was obtained by fraud was affirmed by the federal court of appeals and that the Supreme Court also declined to overturn the finding. “As he has for decades, Donziger is trying to shift attention away from the facts,” the spokesman said.
Walk me through what’s happened since you won the case in Ecuador.
Basically, since we won the case in Ecuador, I’ve been targeted with probably the most vicious corporate counterattack in American history involving dozens of law firms, 2,000 lawyers, probably a billion-plus dollars in professional fees. All with the express purpose by Chevron to demonize me, rather than pay the Ecuador judgment that the company owes to the Indigenous peoples of the Amazon.
So first of all, they refused to pay the judgement, right?
As the case was coming to an end in Ecuador, Chevron’s lawyers and executives made it clear they would never pay the judgment. They sold their assets in Ecuador, so the Ecuadorians would have nothing to collect. They threatened the Indigenous peoples with “a lifetime of litigation” if they didn’t drop their case. They also started to attack Ecuador’s judicial system.
And they got a witness up to New York, who accused you of fraudulent behavior in relation to the case?
Chevron knew that the evidence against them was overwhelming, and they were going to lose the Ecuador case. So they tried to come up with a strategy to block enforcement of the Ecuador judgment against their assets in other countries. To do that, they needed to somehow allege that the judgment in Ecuador was the product of fraud. The way they did that is they paid a former Ecuadoran judge, moved his family to the United States, paid his income taxes. Their lawyers coached him for 53 days. And ultimately he came into federal court and testified I approved the bribe of a trial judge in Ecuador.
And he’s since recanted this?
He has recanted most of his testimony. He’s admitted that he has repeatedly lied in U.S. federal court. He admitted under oath. He’s thoroughly discredited. However, the U.S. judge who Chevron took the case to, without a jury, has credited his testimony. But no other court has. The overwhelming majority of courts around the world that have heard the case have validated the Ecuador judgment. That includes Ecuador’s supreme court, Ecuador’s Constitutional Court. They have all validated the judgment, either on the merits or for enforcement purposes. The only public judge in the world who has ruled the case was a fraud was a U.S. trial judge named Lou Kaplan.
“I’ve been targeted with probably the most vicious corporate counterattack in American history.”
However, in his case there was no jury, and he clearly was biased against me and the Ecuadorians. He also refused to consider any of the environmental evidence that the Ecuadorian court relied on to find Chevron liable. So he was purporting from his Manhattan trial court to overrule Ecuador’s supreme court, without even looking at the evidence that Ecuador’s supreme court relied on to uphold the judgment.
He issued a judgment against me and my clients claiming that the judgment in Ecuador was obtained by fraud. He then barred us from trying to enforce that judgment against Chevron in the United States. But I mean, Chevron operates in a hundred countries, so that doesn’t solve Chevron’s problem. The judgment is being enforced in other countries outside the United States. Not by me, but by other lawyers.
Once he ruled you behaved improperly in the initial case, is that when he moved to demand your computer and phone?
Kaplan ruled in 2014 that the judgment was obtained by fraud. In the meantime, six other appellate courts in other countries like Ecuador and Canada ruled that it was valid. That then became a battle between Kaplan’s judicial authority and the judicial authority of Ecuador and Canada. When the Canadian Supreme Court ruled in our favor in 2015, Chevron, I think, felt real financial risk in Canada, where the company has billions of dollars of assets. So they came back to Kaplan, and he imposed millions of dollars of cost orders on me without a jury. Basically forcing me to pay Chevron’s court costs for this unjust prosecution. And when I couldn’t come up with the money, they then got him to order me to turn over my computer and cell phone to Chevron on the theory that they were going to look through my devices to see if I was hiding any money, which they knew was preposterous.
That implicated my ethical responsibilities to my clients to preserve privilege issues, so I appealed that order. Judge Kaplan, after I appealed it, charged me with criminal contempt for not complying with the order. This is very significant. There’s never been, as far as my team can tell, a single lawyer in U.S. history who’s ever been charged with criminal contempt for doing what I did, which is basically disputing a discovery order. Never happened before.
Now, once he charged me, he was obligated by law to take the charges to the U.S. Attorney’s Office for the Southern District of New York. They declined to prosecute me, which I think is very notable and telling.
ADVERTISEMENT – CONTINUE READING BELOWDid they have a public statement on the reason they declined?
Yeah. They said it was a resource issue. Which, I mean, in an office with a $200 million-plus budget, I mean… draw your own conclusions. So Kaplan, rather than let it sit, then appointed a private law firm to prosecute me in the name of the public. The law firm had a client relationship with Chevron, as well as extensive financial ties to the oil and gas industry. I learned this seven months later. In the meantime, on the first day of the case, when I came in to appear without a lawyer, they put me on an ankle bracelet.
It’s a misdemeanor charge. I’m the only person in the entire country held on a misdemeanor pre-trial. Misdemeanors with no record never get prison time in America. Especially now, during COVID.
So it’s really an extraordinary situation that’s unprecedented. One day turned into two turned into 100. I’m now, [on March 11, 2021] at 583 days, in a case where a maximum sentence is 180 days if I were to be convicted, and I have not had a trial yet.
Not only would it be unusual for you to get a bracelet and a sentence if you were convicted, you haven’t actually been convicted. You haven’t had a trial.
That’s exactly right. Judge Kaplan also bypassed local rules requiring random assignment of cases, and he appointed the judge. The judge is a woman named Loretta Preska, who’s a proud and prominent member of the Federalist Society, to which Chevron is a major donor. She’s denied me a jury trial. She has signaled that she thinks I’m guilty, even though we haven’t had a trial yet, which is why she’s locking me up. I simply cannot get a fair trial. I’m facing prison, and I cannot get a jury of my peers.
So it’s at the judge’s discretion whether you are assigned a random judge or he just handpicks somebody?
It’s a crazy thing about the federal judiciary in New York. Judges generally have a lot of power to do what they want, but there’s a rule requiring random assignment of cases. But apparently it’s not obligatory. So he assigned his own judge. I’ve protested that, but I’ve been unable to get anyone to do anything about it.
Are you allowed to leave your house at all? What are the terms of your sentence?
I’m allowed to leave only for specific reasons, like legal meetings, medical appointments, or school events with my son. I have a 14-year-old son, and then I have to get 48 hours advanced permission from a pretrial services officer. I have to go to a specific address and be back by a specific time.
How much of the delay in your trial is due to COVID? If not for the pandemic, would you have had a proper trial by now? [Donziger’s legal team has at points asked the court for delays in the trial proceedings.]
Well, first of all, a proper hearing means a fair trial. It might’ve happened, but it would not have been a fair trial if I did not have a jury. But there probably would have been a trial by now had COVID not existed. However, COVID has nothing to do with my detention. I’m not detained because of COVID. I never should have been detained, period. And the fact that COVID has delayed my trial is all the more reason I should not be detained.
You had a hearing on March 10 down at the federal courthouse Wednesday. What happened there?
ADVERTISEMENT – CONTINUE READING BELOWThat was to determine whether I can be released. It was a three-judge panel, and they asked both sides questions. They’ve reserved decision, meaning they’ll make a decision any day now. One of the judges seemed to be uncomfortable with the fact that I’ve been detained almost two years on a petty charge with a maximum sentence of six months.
From the beginning, this seems like a parable about the power of multinational corporations.
I think that’s exactly right. I mean, this is the first time in history that big oil has convinced the government to give it the power to prosecute its main critic. Or any critic. This is a corporate political prosecution, and I consider myself a corporate political prisoner.
If the normal prosecutor at the SDNY had taken the case, I would not be detained. No way. There’s not a single misdemeanor [defendant] detained in America by a regular, professional prosecutor. The other bizarre feature is, the law firm—Seward & Kessel—are being paid hourly, $300 an hour, out of a court fund. They have already billed, according to their own admission, $464,000—billed to taxpayers for my misdemeanor prosecution.
It’s almost like you’re buried under these layers of procedural complaints that they’ve made. Obviously, at the root of it, it’s that Chevron is angry about the initial judgment. But now it’s not even just the case about whether you supposedly behaved improperly in the initial case. Now it’s about whether you fought the subsequent case in a way that they deem improper.
Yeah, that is accurate. I mean, they are trying to claim everything I do is somehow improper or part of a larger criminal scheme. When in reality, what I do is represent clients who have been the victims of a mass industrial poisoning by Chevron and who were successful in winning a court judgment. So Chevron has paid massive sums of money as part of a demonization campaign targeting me. All of these things they’re doing to me are part of that campaign. What they try to do is use the law and weaponize it to criminalize activism, and I’m Exhibit A.
“This is a corporate political prosecution, and I consider myself a corporate political prisoner.”
Now, I will say this. I don’t think they’ve been really that successful. If you look at me online and see my following, there’s a lot of people who believe me and know what is really going on here. They keep trying, but I’m also not sitting back. I’m putting what I believe is my truthful narrative out there every which way I can. And that’s important. Right now, now there’s two narratives. There’s the Chevron/Kaplan narrative. And then there’s the Ecuador court/Donziger narrative, and they’re competing. I happen to believe ours is truthful, and theirs is part of what I call Chevron’s Big Lie.
This goes way beyond me. It goes to really what kind of society we want in America. How does one man get so targeted by an oil company such that he’s being prosecuted by one of their law firms? What does that mean for other advocates? What does that mean for environmental justice advocates and corporate accountability advocates and lawyers? What does that mean for our planet? Because if you can’t do this kind of legal work to hold these polluters accountable, the destruction of the earth will happen at a faster pace. I think there’s a broader issue here beyond just the spectacular nature of this particular attack on an individual.
Do you think that their primary objective is to discourage other people from doing what you did in the initial case?
Yeah. I think they don’t want people doing these cases. Or if they do them, they don’t want them to be as successful, and they don’t want them to be as effective. I mean, one way we were effective is, I was working with others to come up with an economic model to sustain the case against Chevron’s enormous expenditures. We raised a lot of money. Not a lot, but it’s enough money to sort of create a level playing field. That’s another reason why I think they want to destroy this case. They want to destroy the very idea that Indigenous peoples in the Amazon can connect with people with means in New York and London and Toronto and other cities to hold an oil company accountable. They’re not used to that. So one of the things they’re trying to do is destroy the economic model behind the case.
Editor’s Note: This story was updated to include a response from Chevron.
‘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.
