On Wednesday October 27, former federal Attorney General, Christian Porter, Liberal National MP Andrew Laming, and Political Editor for The Australian, Peter van Onselen sent 3 defamation threat letters to Gemma Carey, an author and adult survivor of child sexual abuse.
The three defamation concerns notices were sent from the same law firm, at the same time, in the same email. They list several demands including covering the men’s legal costs in creating the concerns notices.
Gemma was left feeling intimidated, anxious and overwhelmed by this law firm’s strategic strike, involving three of Australia’s most powerful men.
Gemma is an expectant mother currently preparing for the arrival of her first baby. She is also a disabled woman and academic whose research focuses on the National Disability Insurance Scheme. Gemma is best known for her brave memoir, No Matter Our Wreckage, which details her experience of being groomed and sexually abused as a child, before successfully taking her offender to court at the age of 17 .
The #LetHerSpeak campaign lawyers – Marque Lawyers – are currently providing legal assistance to Gemma.
This GoFundMe is to raise money to provide ongoing legal support to Gemma Carey, and any other individuals who have been impacted by defamation threats sent from the individuals listed above.
(*This GoFundMe has been created on behalf of Gemma Carey with her full consent. If any funds are not used, they will be donated to the #LetHerSpeak movement and held in trust to be used towards other legal work required by sexual assault survivors and their advocates. )
WASHINGTON – The Texas anti-abortion law, which was allowed to go into effect last week despite being in clear conflict with decades-old precedents set by the United States Supreme Court in the landmark Roe v. Wade decision, is a complex piece of legal engineering.
It was intentionally built to avoid initial judicial review and structured to compel people to comply with it, even if they believe it violates their constitutional rights, through fear of being bombarded with excessive legal fees that could bankrupt them.
Attorney General Merrick Garland this week ordered the Justice Department to explore “all options” to challenge Texas’s highly restrictive abortion law and to protect abortion clinics that are under attack. Many Democrats and abortion rights proponents caution, however, that while they believe the law is unconstitutional, it was crafted in a way that makes legal challenges difficult.
FILE – U.S. Attorney General Merrick Garland attends a news conference at the Department of Justice in Washington, June 25, 2021.
Senate Bill 8, as the legislation is called, makes it illegal in Texas for a doctor to perform an abortion after the sixth week of pregnancy — before most women are even aware that they are pregnant. Crucially, however, the law explicitly bans state officials from acting to enforce the law, delegating that responsibility instead to private citizens, who are eligible to recover a $10,000 judgment, plus attorney’s fees, from anyone who they can prove aided or abetted a woman seeking an abortion.
The law casts a broad net, meaning that not only doctors, but clinicians and clinic workers, and even relatives who help pay for an abortion are liable. However, the plain language of the law states that only people who “knowingly” assist someone seeking an abortion are liable, meaning that the commonly cited example of an Uber driver being exposed to a lawsuit under the bill is incorrect, experts say.
The Supreme Court last week, in a 5-4 decision, declined to block the law from coming into effect on procedural grounds, arguing that because there is no specific individual charged with enforcing the law, there is nobody who can be sued over it, and therefore, nobody the court can enjoin from enforcing it.
President Joe Biden sharply criticized the Supreme Court ruling and instructed Garland to explore ways to challenge the Texas law.
Thus far, abortion clinics in Texas have been careful to observe the new law — which makes no exceptions for rape or incest — and avoid drawing fire from self-appointed citizens or groups claiming violations of the new abortion restrictions. However, it is likely that eventually someone will defy the six-week limit on pregnancies before a procedure, leading to a constitutional test case.
Opponents furious
FILE – Texas Governor Greg Abbott speaks in Lubbock, Texas, March 2, 2021.
Opponents of the legislation have been scathing in their criticism of the Texas legislature and Republican Gov. Greg Abbott who signed the legislation.
“Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state — if they have the means — to get constitutionally protected health care,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This should send chills down the spine of everyone in this country who cares about the Constitution. We will keep fighting this ban until abortion access is restored in Texas.”
Others aimed their anger at the Supreme Court for choosing not to block enforcement of the statute.
“The Supreme Court has ignored 50 years of precedent and set back the hands of time, essentially allowing Texas to be a pre-Roe [v. Wade] state,” Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America, said in a statement. “This is a travesty for the nearly seven million women of reproductive age, and everyone who supports access to safe, legal abortion.”
FILE – Texas state Rep. Donna Howard, D-Austin, center, speaks against a bill that would ban abortions as early as six weeks and allow private citizens to enforce it through civil lawsuits, in the House Chamber in Austin, Texas, May 5, 2021.
Supporters claim victory
Supporters of the law, however, see it as a victory over a court system that they believe is rigged against them.
The anti-abortion movement had two main goals in advancing the legislation, said John Seago, legislative director for Texas Right to Life, a group closely involved in drafting the legislation.
“The first one was, how do we have a pro-life policy actually be enforced, when we have lawless district attorneys who are not enforcing pro-life laws,” Seago said. “The second one is these activist federal judges — how do you get around them? [They are] looking for excuses to hold up laws, even though we can win ultimately.”
Genesis of the law
The roots of S.B. 8 can be traced back to an article by a former solicitor general of the state of Texas, Jonathan F. Mitchell, which was published in the Virginia Law Review in 2018. Called The Writ-of-Erasure Fallacy, the article argued that when federal courts block enforcement of state laws, those laws are not, as popularly believed, “struck down.” Rather, they remain on the books and are simply not enforced.
That leaves room for future, and even retroactive, enforcement, if a later Supreme Court overrules a previous opinion enjoining enforcement. And, critically for this case, Mitchell theorized that a bill that provided a private cause of action in state court could continue to be enforced by private citizens, even if a federal court has enjoined state officials from enforcing it. That would remain the case unless a person sued under the law pursued an appeal all the way to the Supreme Court, and won.
“Unless and until the Supreme Court of the United States declares a statute unconstitutional, the States remain free to authorize and entertain private enforcement actions in their own courts — even after a federal district or circuit court has disapproved the statute and enjoined the State’s executive from enforcing it,” Mitchell wrote.
Mitchell was closely involved in the drafting of S.B. 8.
Private cause of action
It may not be clear to a layperson how a private individual with no connection to a person who gets an abortion — and no way to show that they have suffered personal harm because of it — can have the standing to sue in the first place.
If this were a federal law, that objection would have force. But under state law in Texas, the legislature is allowed to specifically confer standing on private individuals in certain kinds of cases if it chooses to do so. In S.B. 8, that is precisely what state legislators did.
Most states have similar rules allowing the legislature to confer standing on private citizens, which is one reason why governors and legislators in at least seven states across the country have said that they are preparing legislation similar to S.B. 8 in their states.
FILE – A security guard opens the door to the Whole Women’s Health Clinic in Fort Worth, Texas, Sept. 1, 2021.
Fear of legal fees
The law is structured to compel compliance — even if a defendant in a potential case believes that their rights are being violated and that they would be vindicated in court — through fear of legal bills.
The law itself does not allow someone sued under it to recover legal fees from their accuser, even if they are able to demonstrate their innocence. However, it does allow the accuser to recover legal fees from the defendant in the case of a guilty verdict.
But the burden of legal fees is potentially even heavier than it seems. If Mitchell’s theory is correct, and enforcement of the law could only ever be truly blocked by a Supreme Court ruling that it is unconstitutional, that means someone who wants to challenge it is going to face years of lawsuits involving huge legal fees.
But in the United States, a defendant in a federal lawsuit who is asserting his or her constitutional rights are being violated is generally not eligible to recover legal fees.
In the law review article, Mitchell lays out the implications plainly.
“Of course, the defendants in these private enforcement actions can reassert the constitutional objections to the statute — and perhaps they will persuade the court to follow the reasoning of the courts that have disapproved the statute,” he wrote. “But a defendant has no entitlement to attorneys’ fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections.”
Boomerang effect
There has been much speculation that the unique legal structure of the Texas law might just as easily be applied to other areas in which lawmakers want to curtail specific rights that have been guaranteed by court rulings.
For example, some have suggested that states where a majority of residents disagree with the Supreme Court’s rulings on handgun bans might create a private right of action against gun dealers who sell them. The point would not be to win an argument over the constitutionality of the statute, but to compel compliance with it anyway.
Seago, of Texas Right to Life, said that the “narrow focus” of his organization is such that the broader implications of the use of this novel legal structure are not a great concern, but that the group welcomes the opportunity to resolve any issues in court.
“The question kind of assumes you are headed towards a collision in our federalist principles. But that’s an important legal question that should be answered, not avoided just because it’s a new question,” he said.
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.
Rafael Correa, then president of Ecuador, showed off his oil-covered hand in 2013 near a well operated by Texaco between 1962 and 1990.
RODRIGO BUENDIAGETTY IMAGES
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.
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At 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.
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Did 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?
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That 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.
EDITED: In the video, I mistakenly say that election day is “November 4, 2020.” It is “November 3, 2020.” My apologies for the error.
Trump and his nefarious associates believe they have perfected exploiting the delay in the court system to run out the clock and never be held to account. The fix is not as difficult as you might think.
There’s an abundance of specialized courts created to deal with specific types of cases. For example, there are drug courts, mental health courts, juvenile courts and domestic violence courts. In federal district court in Washington, DC, for example, there is reentry court.
Creating these courts do not require an act of Congress. It simply takes the judicial branch–a co-equal branch of the government–to recognize a particularized need in the criminal justice system and instituting common-sense rule changes to address the need.
If there was ever a need to address a deficiency, it is in the way nefarious actors exploit the delay inherent in the system. DC federal district court can easily remedy this weakness by creating an Inter-Branch Dispute Court (IBDC). When legal disputes erupt between the executive and legislative branches, like the need to enforce the House of Representatives’ subpoena for Don McGahn’s testimony in the impeachment inquiry, the IBDC can give the parties 72 hours to file their briefs, another 72 hours to present their oral arguments and the court decision would be entered within 72 hours of the conclusion of those arguments. The appeals court can follow the same 72/72/72 time table. Justice can be done in a matter of weeks, as opposed to the Trumps and McGahns of the world delay justice for months or years.
This common sense approach to fixing a proceduraly broken judiciary is a must for the health of our democracy.
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