Steven Donziger now in federal prison for his work against Chevron
October 30, 2021 2:00 PM Subscribe
After already serving 2 years house-arrest for a misdemeanor contempt of court charge, Donziger will now serve 6 months in prison. The charge stems from his refusal to hand over his cell phone and computer when Chevron demanded access to all of his confidential client communications. Donziger refused while appealing the request, and was charged with contempt of court. His term is by far the harshest sentence ever served by someone facing the same charge. Donziger explains his decisions and the events that occurred in his prior interview with Democracy Now from April 2021.
From his interview yesterday:
"You know, it’s not every day that Amnesty International issues an urgent action for an American citizen. It’s probably the second time in 20 years that this has happened" ... "I mean, the Biden administration is essentially letting a climate change lawyer, me, an environmental justice lawyer, an Indigenous rights lawyer, an Earth defender, a water protector, be locked up on American soil"(Donziger)
Amnesty International's letter to Atty. General Garland
Previously (Feb. 2020): Ecuador-vs-Chevron
From his interview yesterday:
"You know, it’s not every day that Amnesty International issues an urgent action for an American citizen. It’s probably the second time in 20 years that this has happened" ... "I mean, the Biden administration is essentially letting a climate change lawyer, me, an environmental justice lawyer, an Indigenous rights lawyer, an Earth defender, a water protector, be locked up on American soil"(Donziger)
Amnesty International's letter to Atty. General Garland
Previously (Feb. 2020): Ecuador-vs-Chevron
Donziger isn't a choir boy, but this is outrageous.
posted by snuffleupagus at 3:58 PM on October 30, 2021 [2 favorites]
posted by snuffleupagus at 3:58 PM on October 30, 2021 [2 favorites]
Donziger isn't a choir boy, but this is outrageous.
Sorry, what?
posted by grobstein at 4:03 PM on October 30, 2021 [12 favorites]
Sorry, what?
posted by grobstein at 4:03 PM on October 30, 2021 [12 favorites]
I've been following the Donziger case for a while, ever since I heard about it years ago (I think in Wired, back when I had a paper subscription, maybe).
Chevron are acting like a bunch of cartoon villains, and more people should know about their conduct and apparent vendetta against him.
But... I am sort of surprised that an (apparently talented) lawyer like Donziger didn't see this coming? Like, how did he think this was going to pan out?
The legal system in the US is fundamentally process-oriented. It's not outcome-oriented or results-driven. It must follow the process, because following the process is the only claim it has to the legitimacy of its own decisions and outcomes. If the process isn't followed, then the outcome is—pretty much definitionally—illegitimate. This is why US courts have, historically and pretty regularly, let "obviously" guilty people walk due to procedural issues: the process is sacrosanct, and if you don't follow the process, then the correctness of the outcome is... indeterminate, at best. Because the courts have no way of judging the "correct" outcome except via the process.
I mean, there's no exception clause to criminal contempt for "because the other party are real shitheels". And given that the contempt power is the teeth of the judicial branch—its only real weapon with which to force compliance by individuals and other branches of government—they have both good and obviously self-interested reasons in preserving that power.
Which is just a roundabout way of saying, I guess: what do you expect is going to happen when you withhold evidence to a Federal court? Of course you end up in jail. If you didn't, then the court wouldn't be worth petitioning in the first place, because it wouldn't have the power to do anything.
And in this case, the remedy being sought was a fairly big ask: enforcing a $9.5 billion judgment from a foreign court against a huge US company. There wasn't any way the court could not sanction Donziger and still have the ability to enforce that judgment if they'd found for his side.
I don't know. I appreciate what the guy is trying to do, and I wish him well, but this feels like an own goal.
posted by Kadin2048 at 4:13 PM on October 30, 2021 [36 favorites]
Chevron are acting like a bunch of cartoon villains, and more people should know about their conduct and apparent vendetta against him.
But... I am sort of surprised that an (apparently talented) lawyer like Donziger didn't see this coming? Like, how did he think this was going to pan out?
The legal system in the US is fundamentally process-oriented. It's not outcome-oriented or results-driven. It must follow the process, because following the process is the only claim it has to the legitimacy of its own decisions and outcomes. If the process isn't followed, then the outcome is—pretty much definitionally—illegitimate. This is why US courts have, historically and pretty regularly, let "obviously" guilty people walk due to procedural issues: the process is sacrosanct, and if you don't follow the process, then the correctness of the outcome is... indeterminate, at best. Because the courts have no way of judging the "correct" outcome except via the process.
I mean, there's no exception clause to criminal contempt for "because the other party are real shitheels". And given that the contempt power is the teeth of the judicial branch—its only real weapon with which to force compliance by individuals and other branches of government—they have both good and obviously self-interested reasons in preserving that power.
Which is just a roundabout way of saying, I guess: what do you expect is going to happen when you withhold evidence to a Federal court? Of course you end up in jail. If you didn't, then the court wouldn't be worth petitioning in the first place, because it wouldn't have the power to do anything.
And in this case, the remedy being sought was a fairly big ask: enforcing a $9.5 billion judgment from a foreign court against a huge US company. There wasn't any way the court could not sanction Donziger and still have the ability to enforce that judgment if they'd found for his side.
I don't know. I appreciate what the guy is trying to do, and I wish him well, but this feels like an own goal.
posted by Kadin2048 at 4:13 PM on October 30, 2021 [36 favorites]
what do you expect is going to happen when you withhold evidence to a Federal court? Of course you end up in jail.
Man o man, I wish this was actually reliably the case.
posted by praemunire at 4:37 PM on October 30, 2021 [73 favorites]
Man o man, I wish this was actually reliably the case.
posted by praemunire at 4:37 PM on October 30, 2021 [73 favorites]
I've been following this case for years. For me (and I am not alone here), this is a federal case run amok, unmoored from the usual protections that having a magistrate oversee your case is supposed to provide. Chevron drowned Donziger in paper. They demanded access to records and communications that most judges wouldn't ever consider. And the district judge in this case basically announced from the get-go that Chevron would enjoy every advantage and that Donziger would get no leeway. None.
What Chevron did is outrageous. It was CHEVRON that demanded this case be heard in Ecuador. And having lost in the venue of its choosing, and lost again on appeal, twice, Chevron following up with an arbitration in The Hague that barred enforcement of the judgment basically anywhere that the PCA's rulings are respected. Not content to make the judgment itself worthless, Chevron then went on to personally persecute Donziger, to squash him like an insect as a warning to anyone who would dare to take Chevron on and then pretend that anyone but Chevron was allowed to win.
And the most prestigious bench in the trial court system didn't just let it happen. It actively helped Chevron destroy a man whose primary crime is beating Chevron at its own game.
posted by 1adam12 at 4:53 PM on October 30, 2021 [92 favorites]
What Chevron did is outrageous. It was CHEVRON that demanded this case be heard in Ecuador. And having lost in the venue of its choosing, and lost again on appeal, twice, Chevron following up with an arbitration in The Hague that barred enforcement of the judgment basically anywhere that the PCA's rulings are respected. Not content to make the judgment itself worthless, Chevron then went on to personally persecute Donziger, to squash him like an insect as a warning to anyone who would dare to take Chevron on and then pretend that anyone but Chevron was allowed to win.
And the most prestigious bench in the trial court system didn't just let it happen. It actively helped Chevron destroy a man whose primary crime is beating Chevron at its own game.
posted by 1adam12 at 4:53 PM on October 30, 2021 [92 favorites]
What.
Process?
You mean the process the judge totally shat on?
The prosecutor decided that pressing Chevron's absurd claim was a bad idea so they didn't.
Now process says that was the end of it.
But the crooked, nakedly corrupt, judge appointed a lawyer who had spent years working for Chevron as a pseudo-prosecutor because the judge had a hard on for throwing Donziger in the slam.
So don't talk about process being sacrosanct. The judge is using their position to advance Chevron's interests.
Oh. And the phone and computer had stuff that a) was under attorney/client privilege and Cheveron wanted all of it, and b) had info that would allow Chevron's 's assassins to find and kill people in Ecuador. Which isn't some dark future fantasy, it has been happening. People, most indigenous, who press environmental justice cases just happen to die at an alarming rate. Often of gunshots.
So... yeah.
Process is nonexistent here. And none of the agencies that could stop this rogue judge have done jack shit. They're just letting this Chevron invested and blatantly biased judge ruin a man because he had the gall to win a case against a megacorp and then demanded the judgment be enforced rather than the usual game where the megacorp negotiates, delays, sues, and eventually winds up paying a cent or two on the dollar.
Process has been totally abandoned by the authorities.
posted by sotonohito at 4:59 PM on October 30, 2021 [103 favorites]
Process?
You mean the process the judge totally shat on?
The prosecutor decided that pressing Chevron's absurd claim was a bad idea so they didn't.
Now process says that was the end of it.
But the crooked, nakedly corrupt, judge appointed a lawyer who had spent years working for Chevron as a pseudo-prosecutor because the judge had a hard on for throwing Donziger in the slam.
So don't talk about process being sacrosanct. The judge is using their position to advance Chevron's interests.
Oh. And the phone and computer had stuff that a) was under attorney/client privilege and Cheveron wanted all of it, and b) had info that would allow Chevron's 's assassins to find and kill people in Ecuador. Which isn't some dark future fantasy, it has been happening. People, most indigenous, who press environmental justice cases just happen to die at an alarming rate. Often of gunshots.
So... yeah.
Process is nonexistent here. And none of the agencies that could stop this rogue judge have done jack shit. They're just letting this Chevron invested and blatantly biased judge ruin a man because he had the gall to win a case against a megacorp and then demanded the judgment be enforced rather than the usual game where the megacorp negotiates, delays, sues, and eventually winds up paying a cent or two on the dollar.
Process has been totally abandoned by the authorities.
posted by sotonohito at 4:59 PM on October 30, 2021 [103 favorites]
If you want a picture of the future, imagine an oil refinery stamping on a human face—forever...
posted by y2karl at 6:02 PM on October 30, 2021 [7 favorites]
posted by y2karl at 6:02 PM on October 30, 2021 [7 favorites]
Well, maybe not forever. They'll kill our entire species in the name of oil.
posted by deadaluspark at 6:19 PM on October 30, 2021 [9 favorites]
posted by deadaluspark at 6:19 PM on October 30, 2021 [9 favorites]
Where are the Mothra twins when you need them?
posted by y2karl at 6:23 PM on October 30, 2021 [6 favorites]
posted by y2karl at 6:23 PM on October 30, 2021 [6 favorites]
Complete travesty. Outsourcing the prosecution.
One judge in the first case did not disclose he held investments in Chevron and was openly hostile to the plaintiffs. He appointed the second judge, who not only hired a law firm that works with Big Oil to prosecute Donziger, but hid the trial from the public
posted by adamvasco at 6:45 PM on October 30, 2021 [38 favorites]
One judge in the first case did not disclose he held investments in Chevron and was openly hostile to the plaintiffs. He appointed the second judge, who not only hired a law firm that works with Big Oil to prosecute Donziger, but hid the trial from the public
posted by adamvasco at 6:45 PM on October 30, 2021 [38 favorites]
the phone and computer had stuff that a) was under attorney/client privilege and Cheveron wanted all of it, and b) had info that would allow Chevron's 's assassins to find and kill people in Ecuador
Which is why the rules of procedure allow for the appointment of a neutral third party to review the contents and disclose only the unprotected and responsive materials to the opposing party. If Donziger made such a petition and it was arbitrarily denied, I can support his choice. If not, well, what the hell did he expect to happen?
posted by wierdo at 8:20 PM on October 30, 2021 [1 favorite]
Which is why the rules of procedure allow for the appointment of a neutral third party to review the contents and disclose only the unprotected and responsive materials to the opposing party. If Donziger made such a petition and it was arbitrarily denied, I can support his choice. If not, well, what the hell did he expect to happen?
posted by wierdo at 8:20 PM on October 30, 2021 [1 favorite]
Last I checked the judge is supposed to be a neutral third party, but this is a pretty egregious exception to the rule.
posted by ocschwar at 9:58 PM on October 30, 2021 [10 favorites]
posted by ocschwar at 9:58 PM on October 30, 2021 [10 favorites]
We may need a new Constitution that outlaws capital in government. No campaign donations, no pay for play, no secret payoffs that quietly take care debts for the likes of Kavanaugh and Kennedy.
posted by They sucked his brains out! at 10:01 PM on October 30, 2021 [25 favorites]
posted by They sucked his brains out! at 10:01 PM on October 30, 2021 [25 favorites]
Process?Consider that you might not be as far apart from the person you’re attacking as it might seem: it’s possible to both dislike the way Chevron is using the system and recognize that not following the process gives them a very easy way to punish Donziger without engaging with any of the more substantial challenges. I’m sure he knew that was a possibility, and I hope that this is successfully challenged, but there’s no way he didn’t know this was a likely possibility.
You mean the process the judge totally shat on?
The prosecutor decided that pressing Chevron's absurd claim was a bad idea so they didn't.
Now process says that was the end of it.
But the crooked, nakedly corrupt, judge appointed a lawyer who had spent years working for Chevron as a pseudo-prosecutor because the judge had a hard on for throwing Donziger in the slam.
posted by adamsc at 7:10 AM on October 31, 2021 [2 favorites]
I'm sure Donziger knew it was a possibility. And I'm sure that this is a choice that he made to save the lives of the people he worked with in Ecuador, rather than one he's doing out of stubbornness or naïvety.
posted by ambrosen at 7:28 AM on October 31, 2021 [18 favorites]
posted by ambrosen at 7:28 AM on October 31, 2021 [18 favorites]
This might well be a total personal liberty self-own for Donziger, but it's probably also a mildly expensive Streisand-effect PR inconvenience for Chevron.
I can think of no good reason to make it less inconvenient with well-actually concern trolling.
posted by flabdablet at 7:46 AM on October 31, 2021 [3 favorites]
I can think of no good reason to make it less inconvenient with well-actually concern trolling.
posted by flabdablet at 7:46 AM on October 31, 2021 [3 favorites]
Donziger has conducted himself questionably in certain aspects of this very, very long story but this latest chapter is so beyond the pale that I'm reluctant to even get into all that.
I suppose that it's worth pointing out that accusing Judge Rakoff of being just as corrupt and biased as an almost routine exercise in theatrics back in the early days of the forum non conveniens motion ultimately backfired with Kaplan's assignment.
posted by snuffleupagus at 7:51 AM on October 31, 2021 [2 favorites]
I suppose that it's worth pointing out that accusing Judge Rakoff of being just as corrupt and biased as an almost routine exercise in theatrics back in the early days of the forum non conveniens motion ultimately backfired with Kaplan's assignment.
posted by snuffleupagus at 7:51 AM on October 31, 2021 [2 favorites]
snuffleupagus casts Burst Of Legalese! Roll for saving throw.
posted by viborg at 7:59 AM on October 31, 2021 [19 favorites]
posted by viborg at 7:59 AM on October 31, 2021 [19 favorites]
The Lago Agrio Plaintiffs originally sued in the US and then-Defendant Texaco (later merged into Chevron) argued that the case should be heard in Ecuador instead, under the international law flavor of the forum non conveniens doctrine. While that was being litigated, Ecuador's government chimed in, asserting that it didn't want its sovereign rights (i.e. regarding damage to its environment) to be litigated in a U.S. court. At the time, the Ecuadorian government (and its state oil company) were still on good terms with Texaco -- so this was seen as a way to kill the case. Rakoff was the judge presiding over that matter at the trial level. Donziger accused him of bias and corruption as well.
Ultimately the FNC motion was granted and upheld on review. Then Correa came to power in Ecuador and the ground shifted underneath everyone's feet, resulting in the events chronicled in Crude, and the resulting huge judgment.
Kaplan got involed at the stage Chevron was fighting enforcement of the judgment in The Hague and in the US Federal Courts. Chevron's lawyers inquired into how the judgment was obtained in Ecuador, including by conducting discovery into outtakes from Crude.
From there you can pretty much read Kaplan's decision denying the motion to disqualify him, and the Second Circuit decision granting Chevron relief from enforcement, and come to your own conclusion about what's motivating Donziger to refuse to turn over evidence being sought under the crime-fraud exception to privilege, and whether that's really in the best interest of the Lago Agrio plaintiffs if they ever want to enforce their judgment.
I think the treatment Donziger is receiving goes too far, as does tolerating even the appearance of such a close relationship between corporate counsel and a presiding Federal judge appointed for life, and all of that chills me as a lawyer. But I feel the worst for the actual people Ecuador who are living with the damage and still going uncompensated, and the findings in the RICO case -- as reviewed on appeal -- do raise doubts as to how well Donziger's conduct of the litigation and his positioning and politicizing of himself as its figurehead ultimately served his clients.
posted by snuffleupagus at 8:35 AM on October 31, 2021 [15 favorites]
Ultimately the FNC motion was granted and upheld on review. Then Correa came to power in Ecuador and the ground shifted underneath everyone's feet, resulting in the events chronicled in Crude, and the resulting huge judgment.
Kaplan got involed at the stage Chevron was fighting enforcement of the judgment in The Hague and in the US Federal Courts. Chevron's lawyers inquired into how the judgment was obtained in Ecuador, including by conducting discovery into outtakes from Crude.
From there you can pretty much read Kaplan's decision denying the motion to disqualify him, and the Second Circuit decision granting Chevron relief from enforcement, and come to your own conclusion about what's motivating Donziger to refuse to turn over evidence being sought under the crime-fraud exception to privilege, and whether that's really in the best interest of the Lago Agrio plaintiffs if they ever want to enforce their judgment.
I think the treatment Donziger is receiving goes too far, as does tolerating even the appearance of such a close relationship between corporate counsel and a presiding Federal judge appointed for life, and all of that chills me as a lawyer. But I feel the worst for the actual people Ecuador who are living with the damage and still going uncompensated, and the findings in the RICO case -- as reviewed on appeal -- do raise doubts as to how well Donziger's conduct of the litigation and his positioning and politicizing of himself as its figurehead ultimately served his clients.
posted by snuffleupagus at 8:35 AM on October 31, 2021 [15 favorites]
I just ran some back of the envelope numbers on 1700 square miles, the area that Chevron is responsible for devastating with oil contamination in the Amazon. But even leaving aside the literally incalculable ecological value of the actual lands contaminated, just how much is 1700 square miles of anything? How can I get an intuitive sense of how big that actually is?
1700 square miles is 4400 square kilometres.
4400 square kilometres is 4400 * 1000 * 1000 = 4.4*109 square metres.
Solar irradiance at the Earth's surface delivers about 1kW per square metre. So total irradiance over 4400 square kilometres of land would be 4.4*109m2 * 103W/m2 = 4.4*1012 watts.
If that area were covered in solar PV panels converting that irradiance to electricity at 20% efficiency for an average of four hours per day, then over a year it could supply 4.4*1012W * 20% * 4h/day * 365 day/year = 1.3*1015Wh of electrical energy.
Total US electrical energy consumption in 2020 was 3.8*1015Wh.
So Chevron has, by cutting corners to maximize its profits, rendered useless an amount of land which, if covered with solar PV panels, would supply enough electricity to cover one third of the USA's entire electricity consumption.
Keep that in mind, next time you hear some fossil fuel industry shill pipe up about how solar PV is not practical because it takes up too much land.
posted by flabdablet at 8:42 AM on October 31, 2021 [27 favorites]
1700 square miles is 4400 square kilometres.
4400 square kilometres is 4400 * 1000 * 1000 = 4.4*109 square metres.
Solar irradiance at the Earth's surface delivers about 1kW per square metre. So total irradiance over 4400 square kilometres of land would be 4.4*109m2 * 103W/m2 = 4.4*1012 watts.
If that area were covered in solar PV panels converting that irradiance to electricity at 20% efficiency for an average of four hours per day, then over a year it could supply 4.4*1012W * 20% * 4h/day * 365 day/year = 1.3*1015Wh of electrical energy.
Total US electrical energy consumption in 2020 was 3.8*1015Wh.
So Chevron has, by cutting corners to maximize its profits, rendered useless an amount of land which, if covered with solar PV panels, would supply enough electricity to cover one third of the USA's entire electricity consumption.
Keep that in mind, next time you hear some fossil fuel industry shill pipe up about how solar PV is not practical because it takes up too much land.
posted by flabdablet at 8:42 AM on October 31, 2021 [27 favorites]
what do you expect is going to happen when you withhold evidence to a Federal court? Of course you end up in jail.
wait, what? are you talking about a court in the United States? it's ok if you are republican, or Chevron, but not if you are just a lawyer who wants to protect client privilege
the US justice system is designed to serve the people who can afford the biggest law firms, and that is the oil companies.
At this point in US capitalism, there are a significant amount of oil companies solely made up of lawyers who sue oil workers
At the very least, Judge Vitter recused herself from the Taylor case, because she served Taylor in her previous occupation.
But what if she hadn't? What if she had found in favor of her former employer, and jailed Couvillion for trespassing? Then there's no recourse for oil workers who want to fix Taylor's oil wells leaking oil into the ocean, or methane into our atmosphere. there's no system of accountability for corrupt judges in the USA, it's all just based on Hope.
posted by eustatic at 9:09 AM on October 31, 2021 [11 favorites]
wait, what? are you talking about a court in the United States? it's ok if you are republican, or Chevron, but not if you are just a lawyer who wants to protect client privilege
the US justice system is designed to serve the people who can afford the biggest law firms, and that is the oil companies.
At this point in US capitalism, there are a significant amount of oil companies solely made up of lawyers who sue oil workers
At the very least, Judge Vitter recused herself from the Taylor case, because she served Taylor in her previous occupation.
But what if she hadn't? What if she had found in favor of her former employer, and jailed Couvillion for trespassing? Then there's no recourse for oil workers who want to fix Taylor's oil wells leaking oil into the ocean, or methane into our atmosphere. there's no system of accountability for corrupt judges in the USA, it's all just based on Hope.
posted by eustatic at 9:09 AM on October 31, 2021 [11 favorites]
I just ran some back of the envelope numbers on 1700 square miles, the area that Chevron is responsible for devastating with oil contamination in the Amazon.
Amazon nothing, what about the hundreds of square miles of the United States Chevron(Texaco) has destroyed!
posted by eustatic at 9:23 AM on October 31, 2021 [3 favorites]
Amazon nothing, what about the hundreds of square miles of the United States Chevron(Texaco) has destroyed!
posted by eustatic at 9:23 AM on October 31, 2021 [3 favorites]
IIRC:
Donzinger isn’t being attacked by Chevron aligned judges for the outtakes in Crude but rather because an Ecuadorian judge who Chevron got a green card for, was paid $12,000 a month by Chevron to be present in the US for this “trial”, and very conveniently then was the only party present for the crime Donzinger committed: ghost writing the Ecuadorian verdict and bribing said judge.
This judge then cops to having lied about the whole thing (BECAUSE TWELVE THOUSAND FUCKING DOLLARS A MONTH)
And very conveniently, this new information cannot be used to overturn the previous verdict.
So yes, this whole process is a sham. The process is not sacrosanct and it never has been because this process is run by humans with no meaningful fucking oversight. No rules for self correction internal to the system when the perpetrators reach a certain level of power and very seldom does an outside power reach in to correct the system from afar (like the DoJ investigating the Cash 4 Kids judge).
It is a system run by fallible humans and we hold it up as gold despite the shit pouring down society from every level of said system.
posted by Slackermagee at 9:28 AM on October 31, 2021 [24 favorites]
Donzinger isn’t being attacked by Chevron aligned judges for the outtakes in Crude but rather because an Ecuadorian judge who Chevron got a green card for, was paid $12,000 a month by Chevron to be present in the US for this “trial”, and very conveniently then was the only party present for the crime Donzinger committed: ghost writing the Ecuadorian verdict and bribing said judge.
This judge then cops to having lied about the whole thing (BECAUSE TWELVE THOUSAND FUCKING DOLLARS A MONTH)
And very conveniently, this new information cannot be used to overturn the previous verdict.
So yes, this whole process is a sham. The process is not sacrosanct and it never has been because this process is run by humans with no meaningful fucking oversight. No rules for self correction internal to the system when the perpetrators reach a certain level of power and very seldom does an outside power reach in to correct the system from afar (like the DoJ investigating the Cash 4 Kids judge).
It is a system run by fallible humans and we hold it up as gold despite the shit pouring down society from every level of said system.
posted by Slackermagee at 9:28 AM on October 31, 2021 [24 favorites]
I definitely don't mean to suggest that the process is sacrosanct or even fair, in this case or generally. Basically just that I wish it were less about Donziger, and he played a part in it working out this way.
I have friends whose work is other big international oil litigations or other large-scale class actions with environmental or other social implications, and they don't have the same kind of main character syndrome.
Still, the judgment should have been enforced, on its merits and from any sane "process" perspective (balancing everything and in light of the whole history of the case); and the individual persecution of Donziger happening now is its own nightmare.
posted by snuffleupagus at 9:51 AM on October 31, 2021 [4 favorites]
I have friends whose work is other big international oil litigations or other large-scale class actions with environmental or other social implications, and they don't have the same kind of main character syndrome.
Still, the judgment should have been enforced, on its merits and from any sane "process" perspective (balancing everything and in light of the whole history of the case); and the individual persecution of Donziger happening now is its own nightmare.
posted by snuffleupagus at 9:51 AM on October 31, 2021 [4 favorites]
More on the Taylor case vs Couvillion Group.
The oil spill was allowed to go on for 12 years without any clean up, in part because everyone knew whoever took the clean up contract from the Coast Guard would incur half a million dollars or so in legal fees.
I am genuinely curious, if Judge Vitter, wife of the former Senator now oil lobbyist, had not recused herself from this case, and then had ruled in favor of her former employer, and allowed Taylor to demand Couvillion's mobile phones, what legal recourse is there for the judge's actions?
posted by eustatic at 9:56 AM on October 31, 2021 [1 favorite]
The oil spill was allowed to go on for 12 years without any clean up, in part because everyone knew whoever took the clean up contract from the Coast Guard would incur half a million dollars or so in legal fees.
I am genuinely curious, if Judge Vitter, wife of the former Senator now oil lobbyist, had not recused herself from this case, and then had ruled in favor of her former employer, and allowed Taylor to demand Couvillion's mobile phones, what legal recourse is there for the judge's actions?
posted by eustatic at 9:56 AM on October 31, 2021 [1 favorite]
The district courts are the trial courts in the Federal system. You appeal to the applicable Circuit for review and from there potentially the Supreme Court. (Sometimes there's more than one step at the circuit level.) What kinds of decisions are reviewable when gets into the nuts and bolts of civil procedure and rules of court.
posted by snuffleupagus at 10:00 AM on October 31, 2021
posted by snuffleupagus at 10:00 AM on October 31, 2021
I wish it were less about Donziger
I just watched Donziger say as much, several times, to Democracy Now. He makes the point that it's Chevron who is making it all about him, going after him in an attempt to divert attention away from what they fucking did and their refusal to take responsibility for that.
The "process" argument stops working for me at the point where the presiding judge did an end run around the Government prosecutor's refusal to go after Donziger by appointing a pack of Chevron's lawyers to do it instead. Fuck that noise.
posted by flabdablet at 10:00 AM on October 31, 2021 [28 favorites]
I just watched Donziger say as much, several times, to Democracy Now. He makes the point that it's Chevron who is making it all about him, going after him in an attempt to divert attention away from what they fucking did and their refusal to take responsibility for that.
The "process" argument stops working for me at the point where the presiding judge did an end run around the Government prosecutor's refusal to go after Donziger by appointing a pack of Chevron's lawyers to do it instead. Fuck that noise.
posted by flabdablet at 10:00 AM on October 31, 2021 [28 favorites]
Chevron didn't participate in making Crude. The outtakes may not be the legal basis on which enforcement was denied, but if they didn't exist things might have ended there. Or at least might not have wound up here. It's also worth actually reading the communications quoted in the Second Circuit decision. They don't reflect well, and they aren't disputed.
Here's what the reviewing attorney assigned by the NY bar had to say about Donziger's conduct (which Chevron felt was too lenient), in the end recommending that his license be restored.
In that proceeding Donziger's own attorney "admitted his conduct was not always exemplary" -- including with regard to comingling the trust funds contributed to the litigation with his personal finances (not at issue in enforcing the judgment, but a pretty big deal in attorney ethics, and especially in a case like this with all kinds of contributions coming in and being spent) but argued his conduct in the Ecuador litigation fell short of outright judicial bribery.
The reviewing attorney concluded that Donziger's conduct (as found by Kaplan) "inexorably leads to a severe sanction" but agreed that it arose in an "unusually lengthy and difficult environmental pollution case conducted in Ecuador against the most vigorous and oppressive defense money can buy" and recommended that in its "entire context" Kaplan's decision was entitled to "considerable" but not "decisive" weight.
posted by snuffleupagus at 10:32 AM on October 31, 2021 [2 favorites]
Here's what the reviewing attorney assigned by the NY bar had to say about Donziger's conduct (which Chevron felt was too lenient), in the end recommending that his license be restored.
In that proceeding Donziger's own attorney "admitted his conduct was not always exemplary" -- including with regard to comingling the trust funds contributed to the litigation with his personal finances (not at issue in enforcing the judgment, but a pretty big deal in attorney ethics, and especially in a case like this with all kinds of contributions coming in and being spent) but argued his conduct in the Ecuador litigation fell short of outright judicial bribery.
The reviewing attorney concluded that Donziger's conduct (as found by Kaplan) "inexorably leads to a severe sanction" but agreed that it arose in an "unusually lengthy and difficult environmental pollution case conducted in Ecuador against the most vigorous and oppressive defense money can buy" and recommended that in its "entire context" Kaplan's decision was entitled to "considerable" but not "decisive" weight.
posted by snuffleupagus at 10:32 AM on October 31, 2021 [2 favorites]
The legal system in the US is fundamentally process-oriented. It's not outcome-oriented or results-driven.
This is true, except when it isn't.
If you have privilege and support the hierarchy that maintains privilege, then you can get away with all but the most egregious violations. Or, at least, your punishment is reduced to essentially nothing. US authorities, both government and private, use process as an excuse to say "sorry, our hands are tied" but the last five years have shown that we can come up whatever legal fig leaf is needed at the time.
And it isn't just America. And it isn't just the last five years. John Yoo could have written a legal memo justifying the torture of Salem witches just as easily as he wrote it for "terrorist" detainees.
From the novel Catch 22:
'But why wouldn't they?' inquired Major Danby, blinking with astonishment.
'Because I've really got them over a barrel now. There's an official report that says
I was stabbed by a Nazi assassin trying to kill them. They'd certainly look silly trying
to court-martial me after that.'
'But, Yossarian!' Major Danby exclaimed. 'There's another official report that says
you were stabbed by an innocent girl in the course of extensive black-market
operations involving acts of sabotage and the sale of military secrets to the enemy.'
Yossarian was taken back severely with surprise and disappointment.
'Another official report?'
'Yossarian, they can prepare as many official reports as they want and choose
whichever ones they need on any given occasion. Didn't you know that?'
'Oh, dear,' Yossarian murmured in heavy dejection, the blood draining from his face. 'Oh, dear.'
posted by AlSweigart at 11:35 AM on October 31, 2021 [11 favorites]
This is true, except when it isn't.
If you have privilege and support the hierarchy that maintains privilege, then you can get away with all but the most egregious violations. Or, at least, your punishment is reduced to essentially nothing. US authorities, both government and private, use process as an excuse to say "sorry, our hands are tied" but the last five years have shown that we can come up whatever legal fig leaf is needed at the time.
And it isn't just America. And it isn't just the last five years. John Yoo could have written a legal memo justifying the torture of Salem witches just as easily as he wrote it for "terrorist" detainees.
From the novel Catch 22:
'But why wouldn't they?' inquired Major Danby, blinking with astonishment.
'Because I've really got them over a barrel now. There's an official report that says
I was stabbed by a Nazi assassin trying to kill them. They'd certainly look silly trying
to court-martial me after that.'
'But, Yossarian!' Major Danby exclaimed. 'There's another official report that says
you were stabbed by an innocent girl in the course of extensive black-market
operations involving acts of sabotage and the sale of military secrets to the enemy.'
Yossarian was taken back severely with surprise and disappointment.
'Another official report?'
'Yossarian, they can prepare as many official reports as they want and choose
whichever ones they need on any given occasion. Didn't you know that?'
'Oh, dear,' Yossarian murmured in heavy dejection, the blood draining from his face. 'Oh, dear.'
posted by AlSweigart at 11:35 AM on October 31, 2021 [11 favorites]
It has been very frustrating to watch this as a non-lawyer. It is such an obviously outrageous, corrupt and unjust outcome.
posted by interogative mood at 3:02 PM on October 31, 2021 [3 favorites]
posted by interogative mood at 3:02 PM on October 31, 2021 [3 favorites]
The comments from folks saying process is the thing or this dude made it about himself are telling themselves a story. The story is that this is explicable.
This, and a lot of how our courts work, is not just. It’s also not explicable. Things are out of control. Fuck prosecutors, judges, cops, and prisons.
posted by creiszhanson at 8:18 PM on October 31, 2021 [11 favorites]
This, and a lot of how our courts work, is not just. It’s also not explicable. Things are out of control. Fuck prosecutors, judges, cops, and prisons.
posted by creiszhanson at 8:18 PM on October 31, 2021 [11 favorites]
Chevron didn't participate in making Crude
Oh, so that all-hat-no-cattle prick who turns up at the observation site and puts the claim to the presiding judge that the plaintiffs don't actually want Chevron to clean up its mess, what they really want is two fat cheques, isn't one of Chevron's guys?
posted by flabdablet at 9:51 PM on October 31, 2021
Oh, so that all-hat-no-cattle prick who turns up at the observation site and puts the claim to the presiding judge that the plaintiffs don't actually want Chevron to clean up its mess, what they really want is two fat cheques, isn't one of Chevron's guys?
posted by flabdablet at 9:51 PM on October 31, 2021
It's lawyers trying to delude themselves with the just world fallacy.
A bad outcome can't happen because the system is bad, then things world be unjust. So the victims of this corrupt judge must deserve it somehow. They were to uppity, or like the spotlight too much, or didn't follow procedure properly, or were just sort of vaguely "no angel".
That's preferable to admitting that the entire system has completely failed here. Not just the single corrupt judge but everyone else, everyone above him who won't stop it, everyone below him who is just following orders.
The entire system is broken at all levels.
Black people could have told them that a long time ago, but it takes a white man suffering injustice to really trigger the just world excuses in most white people.
It's telling that of the people on this thread the lawyers are most sanguine and the most eager to paint the victim as deserving his abuse.
posted by sotonohito at 9:38 AM on November 1, 2021 [11 favorites]
A bad outcome can't happen because the system is bad, then things world be unjust. So the victims of this corrupt judge must deserve it somehow. They were to uppity, or like the spotlight too much, or didn't follow procedure properly, or were just sort of vaguely "no angel".
That's preferable to admitting that the entire system has completely failed here. Not just the single corrupt judge but everyone else, everyone above him who won't stop it, everyone below him who is just following orders.
The entire system is broken at all levels.
Black people could have told them that a long time ago, but it takes a white man suffering injustice to really trigger the just world excuses in most white people.
It's telling that of the people on this thread the lawyers are most sanguine and the most eager to paint the victim as deserving his abuse.
posted by sotonohito at 9:38 AM on November 1, 2021 [11 favorites]
I don’t have a cite beyond the basic Wikipedia article, but it sounds like Chevron also played a shell game with its global assets. They asked for the case to be tried in Ecuador, and they also moved (would love corroboration) assets out of Ecuador so they could claim that they didn’t have assets subject to the judgment. Any corporate law experts here? I think most laypeople would assume that if you want the advantages of being a global megacorp, it’s absurd to suggest that your assets in country A are off-limits for a judgment in country B. How does that work?
posted by freecellwizard at 3:40 PM on November 1, 2021 [1 favorite]
posted by freecellwizard at 3:40 PM on November 1, 2021 [1 favorite]
It's a bit of a can of worms. I wouldn't want a court in China to be able to subpoena, for example, personnel records from the US branch of a corporation directly. A US court should be involved in that somehow.
Though if it happened to be, specifically, the US court mentioned in this article, that wouldn't really help.
posted by Happy Monkey at 9:44 AM on November 2, 2021
Though if it happened to be, specifically, the US court mentioned in this article, that wouldn't really help.
posted by Happy Monkey at 9:44 AM on November 2, 2021
I think most laypeople would assume that if you want the advantages of being a global megacorp, it’s absurd to suggest that your assets in country A are off-limits for a judgment in country B. How does that work?
The law still bottoms out in the brute power of territorial political entities. If you want to get assets controlled by someone else that are inside the territory of Country X, you're almost certainly going to have to appeal to the government of Country X, hopefully through some reasonably predictable process involving a judge.
This doesn't necessarily mean that you can't use a judgment from Country Y to seize assets from someone in Country X -- hopefully you can. But you're going to have to convince the government of Country X to honor the Country Y judgment.
This system is not completely insane, as Happy Monkey says, and I think most of the time it probably works ok. But you might run into trouble if you were trying to enforce a $10 billion dollar Ecuador judgment against a company's US assets, because they are going to bend every lever of legal process until it breaks to stop you from doing that.
So this is really fucked up, and I feel like my legal system makes me complicit in the devastation of the Ecuadorean Amazon and the denial of its victims their legally due recompense. But it is a little tricky to imagine an overall legal regime that would handle this particular issue better -- or at least one that could exist without also completely remaking the world order.
posted by grobstein at 10:03 PM on November 2, 2021
The law still bottoms out in the brute power of territorial political entities. If you want to get assets controlled by someone else that are inside the territory of Country X, you're almost certainly going to have to appeal to the government of Country X, hopefully through some reasonably predictable process involving a judge.
This doesn't necessarily mean that you can't use a judgment from Country Y to seize assets from someone in Country X -- hopefully you can. But you're going to have to convince the government of Country X to honor the Country Y judgment.
This system is not completely insane, as Happy Monkey says, and I think most of the time it probably works ok. But you might run into trouble if you were trying to enforce a $10 billion dollar Ecuador judgment against a company's US assets, because they are going to bend every lever of legal process until it breaks to stop you from doing that.
So this is really fucked up, and I feel like my legal system makes me complicit in the devastation of the Ecuadorean Amazon and the denial of its victims their legally due recompense. But it is a little tricky to imagine an overall legal regime that would handle this particular issue better -- or at least one that could exist without also completely remaking the world order.
posted by grobstein at 10:03 PM on November 2, 2021
So this is really fucked up, and I feel like my legal system makes me complicit in the devastation of the Ecuadorean Amazon and the denial of its victims their legally due recompense. But it is a little tricky to imagine an overall legal regime that would handle this particular issue better -- or at least one that could exist without also completely remaking the world order.
FWIW, this is also how my friends who are involved (on the plaintiff side) in other aspects of Amazonian and African environmental/oil cases feel.
posted by snuffleupagus at 9:47 AM on November 10, 2021 [1 favorite]
FWIW, this is also how my friends who are involved (on the plaintiff side) in other aspects of Amazonian and African environmental/oil cases feel.
posted by snuffleupagus at 9:47 AM on November 10, 2021 [1 favorite]
Illustrative examples of other cases and the penalties involved.
1) Riley Williams stormed the US capitol, stole Nancy Pelosi's laptop, and attempted to sell it to the Russian FSB. She was held in prison for less than 9 hours and will be sentenced to a few months if found guilty.
2) Kalief Browder was accused of stealing a backpack, he never faced trial but spent three years in the brutal Riker's Island prison, two in solitary confinement, and committed suicide.
3) Jacob Chansley, the Qanon Shamen, is facing a possible 4 year sentence for conspiracy to murder Congress.
4) Of the terrorists who occupied the Malheur National Wildlife Refuge, the longest prison term handed out was 34 months.
There's a pretty obvious pattern here of right wing criminals being given extremely lenient sentences for serious crimes and people the right wing hates being held in prison for long periods without even being found guilty of anything.
For you lawyerly types who wonder why everyone seems so inexplicably hostile towards the entire criminal justice system and laughs dismissively when you talk about the importance of process? Yeah, this is why.
It's obvious to every non-lawyer in the USA that our "criminal justice system" is a far right wing organization issuing the harshest possible penalties for the enemies of the right while shielding the right from any and all possible penalties.
posted by sotonohito at 1:20 PM on November 10, 2021 [7 favorites]
1) Riley Williams stormed the US capitol, stole Nancy Pelosi's laptop, and attempted to sell it to the Russian FSB. She was held in prison for less than 9 hours and will be sentenced to a few months if found guilty.
2) Kalief Browder was accused of stealing a backpack, he never faced trial but spent three years in the brutal Riker's Island prison, two in solitary confinement, and committed suicide.
3) Jacob Chansley, the Qanon Shamen, is facing a possible 4 year sentence for conspiracy to murder Congress.
4) Of the terrorists who occupied the Malheur National Wildlife Refuge, the longest prison term handed out was 34 months.
There's a pretty obvious pattern here of right wing criminals being given extremely lenient sentences for serious crimes and people the right wing hates being held in prison for long periods without even being found guilty of anything.
For you lawyerly types who wonder why everyone seems so inexplicably hostile towards the entire criminal justice system and laughs dismissively when you talk about the importance of process? Yeah, this is why.
It's obvious to every non-lawyer in the USA that our "criminal justice system" is a far right wing organization issuing the harshest possible penalties for the enemies of the right while shielding the right from any and all possible penalties.
posted by sotonohito at 1:20 PM on November 10, 2021 [7 favorites]
None of that has anything to do with this case, legally speaking.
That appraisal of the system is pretty rough on those of us who are embedded in it but are not fascist lackies; but that said this is the internet and I support your right to post your vitriol. Vitriol that I find pretty relatable, despite whatever else takes up space in my head.
For what it's worth.*
*I hope people understand I am not defending the present state of affairs. Because, hoo boy, naw.
posted by snuffleupagus at 7:47 PM on November 10, 2021
That appraisal of the system is pretty rough on those of us who are embedded in it but are not fascist lackies; but that said this is the internet and I support your right to post your vitriol. Vitriol that I find pretty relatable, despite whatever else takes up space in my head.
For what it's worth.*
*I hope people understand I am not defending the present state of affairs. Because, hoo boy, naw.
posted by snuffleupagus at 7:47 PM on November 10, 2021
« Older "She settles on a diner in a small human town" | "In such vast ocean of matter and tumult strange" Newer »
This thread has been archived and is closed to new comments
posted by rodlymight at 3:40 PM on October 30, 2021 [28 favorites]