Chevron and U.S. District Judge Lewis Kaplan are teaming up to silence human rights lawyer Steven Donziger and those fighting for a cleanup of the oil giant’s environmental contamination in Ecuador.
On September 17th, I testified on behalf of Donziger at a formal bar licensing hearing in New York, where for the first time witnesses were able to address the facts of Chevron’s fraud in bringing its retaliatory civil RICO (“racketeering”) case designed to try to undermine the legitimate $9.5 billion judgment won by Ecuadorian communities in 2011.
[If you’re not familiar with Chevron’s crimes in Ecuador, you can find out more on the ChevronToxico website.]Donziger was a driving force behind that judgment, and Chevron has targeted him with likely the most well-financed corporate retaliation SLAPP (Strategic Lawsuit Against Public Participation) campaign in history. Several witnesses at the hearing explained how Chevron and its lawyers at the infamous Gibson, Dunn & Crutcher firm – led by Randy Mastro, former deputy mayor to Rudy Guiliani – engaged in unethical and illegal acts to target Donziger based largely on the testimony of a corrupt witness who was paid at least $2 million by the company and who later admitted to lying under oath. Many respected lawyers, authors, and activists also testified on Donziger’s behalf. Without exception, all described Donziger as a man dedicated to justice in Ecuador on behalf of Chevron’s victims, who was framed by Chevron and its corrupt witness Alberto Guerra, who claimed without any corroborating evidence that Donziger had approved a bribe to a judge.
Despite this, all of us who testified before a referee appointed by the Appellate Division–First Department of the Supreme Court of New York were left to wonder if any justice would be served, given the massive pressure Chevron is applying across a judicial system thoroughly weaponized to inflict as much harm as possible on Donziger.
Consider this recap:
- In 2011, Chevron was found liable in Ecuador for the deliberate dumping of billions of gallons of toxic oil waste into the Amazon between 1964 and 1992, decimating indigenous groups and provoking an outbreak of cancer that has killed hundreds if not thousands of people.
- Four levels of courts in Ecuador – including its supreme and constitutional courts – imposed damages on Chevron of at least $9.5 billion; most of the pollution, including an estimated 1,000 unlined toxic waste pits, continue to poison soils, rivers, and groundwater.
- Having definitively lost the case in Ecuador, Chevron abruptly removed all of its assets from the country and never paid a dime to the affected communities.
- In the RICO case, Chevron bribed its star witness Alberto Guerra and used false evidence to try to criminalize human rights lawyer Steven Donziger and the Ecuadorian communities fighting for cleanup.
- Donziger’s law license was suspended in New York based on the allegation that he was “an immediate threat to the public interest” due to his litigation against Chevron.
- With U.S. District Judge Lewis Kaplan as an ally, Chevron has demanded Donziger surrender his computer and cell phone for inspection by the company so that it can sue or target anybody Donziger has been in touch with, or anyone supporting the campaign for justice in Ecuador.
- Judge Kaplan has held Donziger in civil contempt, seized his passport, and fined him an exorbitant $200,000 per day for refusing to turn over his computer and phone while an appeal is pending.
- Judge Kaplan himself then filed criminal contempt charges against Donziger and asked the federal prosecutor in New York to prosecute him; the prosecutor refused.
- Judge Kaplan then appointed private lawyers from a corporate law firm and deputized them to act as “government prosecutors” to target Donziger. Pending trial, Donziger has been confined to home detention and required to wear an electronic monitoring device for the last two months.
- Chevron has tried to undermine the very idea of corporate accountability with its unprecedented, unethical, and illegal attacks against Steven Donziger and those who stand up for a proper environmental cleanup in Ecuador.
The tactics Chevron deploys to suppress free speech are particularly vile.
First is its blatant attempt to end the legal career of the lawyer who beat them in court. Today, Steven Donziger is fighting to restore his right to practice law after his license was suspended last year without a hearing, based entirely on the retaliatory RICO suit and testimony by a bribed witness. Judge Kaplan’s findings are thoroughly discredited and have been rejected by 17 appellate judges in Ecuador. To strip Donziger of his law license, the Appellate Division determined he was an “immediate threat” to the public order – a scary, Orwellian designation if there ever was one.
Second, Donziger has been under house arrest since early August because of his refusal to capitulate to Kaplan’s apparently unconstitutional order allowing Chevron access to Donziger’s computer, his phone, and all case-related materials. Not only can he no longer practice law, but now his ability to build any kind of support and his ability to work on the case for justice in Ecuador outside of the U.S. have been severely curtailed.
After months of pressure, Donziger and his lawyers – along with support from Amazon Watch and others – forced the Appellate Division to grant him a public hearing before a “referee” appointed to act as a judge. The challenge at the hearing was bizarre: the committee lawyers invoked a doctrine called “collateral estoppel” which essentially barred Donziger from challenging Judge Kaplan’s erroneous findings.
Of course, Chevron’s RICO verdict claiming that Donziger committed fraud, bribed a judge in Ecuador and ghost-wrote the Ecuadorian verdict is not only completely false, but has been since disproved by testimony and forensic evidence. However, because no U.S. court would consider that evidence, Judge Kaplan’s RICO verdict still stands.
So, the Attorney Grievance Committee’s attorneys instructed the appointed “referee” that the very reasons that Donziger’s law license has been suspended – the lies and fraud perpetrated by Chevron – could not be challenged. Fortunately, we challenged them anyway. Witness after witness testified about the sham of a trial by Judge Kaplan in support of Chevron. This did not go over well with the Grievance Committee’s attorneys:
“He is denying what was found against him. He is not entitled to do that! He will go to his grave denying it, but it cannot be taken into account in this proceeding!” – George Davidson, attorney for the Attorney Grievance Committee
“You’d like his grave to be here!” – John Horan, referee
Anyone not on Chevron’s payroll and not named “Lewis Kaplan” can see that the RICO decision against Donziger was a joke. Respected San Francisco trial lawyer John Keker, whose firm was initially hired to defend Donziger, put it this way:
“The handwriting was on the wall at the beginning that this case would be ‘Sherman’s March through Georgia.’ Kaplan wanted to see Donziger convicted, and Chevron waged a scorched earth attack, spending huge amounts. We couldn’t keep up. So we asked to withdraw.”
Respected attorney Deepak Gupta, described as “one of the emerging giants of the appellate and the Supreme Court bar,” as well as a “principled” and “incredibly talented lawyer,” who led the RICO appeal and who has argued before the Supreme Court many times, shared his shocking account:
“I have never seen a judge whose disdain for one side of the case was as palpable on the bench in ways that I think may not have always come through in the paper record. But it was fairly obvious that Judge Kaplan had great personal animosity for Steven Donziger. And I was very concerned that it wouldn’t be a fair proceeding… And actually that just made me more inclined to take on the appeal because I felt like a great injustice was being done.
The Chevron’s case… rested on the paid testimony of a witness who was paid over $1 million. He admitted to sweetening his – to changing his story multiple times, to sweetening his deal with Chevron. That was the star witness for Chevron in this case.I can’t think of any other case that I have worked on that I think is as great a travesty of justice to a particular individual, and the way that the court system treats individuals’ rights.”
One of the most perverted twists to this case is that Chevron has asserted that Donziger – rather than the deliberate polluter – is a “threat to the public interest” and as such his law license should be revoked. Each witness was asked about this by Donziger’s defense lawyers. Legendary artist and activist Roger Waters summed it up perfectly in his response:
“He’s a huge help to the public interest, in my view. He presents something of a threat to corporate America, which is why he’s being demonized and vilified, which is why his license is being suspended.”
Those who testified repeatedly expressed support for Donziger and denied the outrageous claims against him:
“In my work I’ve met a lot of people in pursuit of accountability, and Donziger is right up at the top of those. He has done an unbelievable job.” – Simon Taylor, founder of Global Witness
“All evidence to the contrary that Steven is a threat to the public.” – Public interest attorney Zoe Littlepage, named one of America’s “Premiere Lawyers” by American Lawyer magazine
[Watch an excellent breakdown of Littlepage’s explanation of Guerra’s ever changing stories here, as she was not allowed to present it during the hearing.]
“He’s a completely honorable man representing people grievously harmed. What he and his family have gone through is unbelievable. He’s been attacked and demonized to distract the American courts and world public from the fact that Chevron committed a crime and owes the people of Ecuador for a cleanup.” – Rex Weyler, co-founder of Greenpeace
Judge Kaplan’s unnecessary and unethical actions to favor Chevron illuminate the essence of this situation: Donziger is a human rights advocate whom Chevron is trying to criminalize in order to evade its legal obligations to the people it harmed in Ecuador. It is particularly disturbing to see this in the United States, which is home to many of the world’s largest and most powerful corporations. The message to the world from Chevron and the New York judiciary is crystal clear: we will protect our own corporations when they commit human rights abuses against vulnerable people in other countries, even if it means targeting and potentially imprisoning a lawyer or advocate in the process.
The NGO community has denounced this as an attack on Donziger’s freedom and rights. Amazon Watch, Global Witness, Rainforest Action Network, Pachamama Alliance, and Re:Common are among the first of what is expected to be many more organizations calling for an end to these rights violations. If we do not stand up in opposition to the demonization and persecution of Donziger, what message will that send to human rights defenders around the world working to hold corporations to account?
