On Contact: Chevron vs. Donziger

CH: Steve Donziger has battled the corporate giant Chevron on behalf of indigenous communities whose land has been polluted by toxic oil waste in the Amazon basin since 1993.  The oil company has dumped some 16 billion gallons of poisonous waste water that included elevated levels of copper, mercury, lead, and other carcinogens into rivers, streams, and impoundment ponds.  The average Chevron waste pit in Ecuador contains 200 times the contamination allowed by world standards.  Indigenous communities and poor farmers in the region have seen their immune and reproductive systems gravely damaged.  Cancer is an epidemic along with birth defects.  The flouting of environmental regulations saves Chevron $3 on every barrel of oil produced, earning the oil giant an extra $5,000,000,000 over 20 years.  Donziger in 2013 helped lead the legal effort that won the largest court judgment in history for human rights and environmental violations, a $9.5 billion dollar verdict against Chevron.  Chevron, following the verdict, sold their assets in Ecuador and left the country.  The corporation threatened the plaintiffs with, "A lifetime of litigation" if they attempted to collect, and according to internal Chevron memos, launched a highly funded and sustained retaliatory campaign to demonize and destroy Donziger's career.  Chevron, which has a market capitalization of $228,000,000,000, amassed hundreds of lawyers from 60 law firms to turn Donziger into a pariah.  They got him disbarred.  They froze his bank accounts.  He has had to take out a lien on his apartment and has been slapped with exorbitant fines.  He is prohibited from earning a living.  In August, the court seized his passport and put him under house arrest, forcing him to wear an ankle monitor.  Joining me from New York to discuss the campaign against him and what this means for all of us who seek to challenge corporate power is Steve Donziger.  So Steve, let's just lay out for people who aren't aware what--it was originally Chevron, Texaco Chevron, did in Ecuador and then the response that you carried out as an attorney for those people who are affected.

SD: Thank you, Chris, for having me and thank you for that introduction.  It's chilling even just to hear it summarized like that.  But, you know, in a nutshell, this has been a long battle.  Twenty-seven years I've been involved.  It started when Texaco went into Ecuador and the Amazon in the 1960's, cut a sweetheart deal with the military government then ruling Ecuador.  Over the next 25 years, Texaco was the exclusive operator of a very large area of the Amazon that had several oil fields within this area, 1,500 square miles.  And they drilled hundreds of well site, created, you know, a thousand or so of these open air, unmined toxic waste where they would dump all of their drilling muds and that is the heavy metals and toxins that would come up from the ground when they would drill and they'd put them in these pits and they created a system where they ran pipes from the pits into rivers and streams that local people relied on for their drinking water and their fishing and their sustenance.  And over time, they poisoned this entire area of pristine ecosystem in which lived five indigenous peoples, as well as a lot of other non-indigenous rural communities.  The upshot is, over time, there was basically a mass industrial poisoning.  By the time I went down there in the early 1990s, many people had died.  Cancer rates were skyrocketing according to several independent health evaluations and there was all this anecdotal evidence from people that people were just really hurting.  And there was just zero regard for the lives of the local people by Texaco.  As a result, I, and some other lawyers from the United States, I was a very young lawyer back in 1993 when I first went to Ecuador, but just witnessing it, it was like looking at an apocalyptic scene.  There were oil on the roads.  People were living in abject poverty.  They would--they had no shoes.  They'd get oil on their feet when they walk along the roads and the oil pollution had really permeated pretty much every aspect of daily life.  You know, it was in the food supply, it was in the water supply, it was in the air.  And over time, you--the average person down there would get exposed multiple times a day to very harmful cancer-causing toxins with foreseeable results.  I, with other lawyers, filed a lawsuit in New York against Texaco.  The reason we filed in New York was because Texaco's headquarters were in New York at that time in 1993.  The decisions to pollute in Ecuador that is to play God to the people of Ecuador which is what Texaco essentially did, were made in New York.  And we sued in New York.  And then Texaco began a campaign of resistance, tried to get the case back to Ecuador where they had never been held accountable, where they knew the indigenous peoples really had no money or resources to find lawyers or get into court.  They thought it would just go away.  And over a 10-year period, we battled to try to get a jury trial in the United States and ultimately they won that part of the battle.  It went down to Ecuador.  We work--started working with Ecuadorian lawyers in the early 2000s, went forward with the lawsuit, produced voluminous scientific and testimonial evidence showing they caused probably the world's worst oil-related pollution.  It's--it's was called the Amazon Chernobyl by locals and by experts.  They dumped 16 billion gallons of toxic waste.  They did it deliberately to save money.  This wasn't like the BP spill in the Gulf of Mexico which was a terrible accident even though it was, you know, a horrendous negligence in the part of BP.  This was done deliberately by design to pollute knowing that people would die and knowing that this, you know, indigenous groups would be decimated and that this beautiful part of the Amazon would be destroyed essentially.  So, you know, over time, they tried to grind us down using classic corporate defense tactics, you know, filing thousands of motions and really trying to wear us down.  We stood strong.  We had a great legal team of Ecuadorian lawyers and over time, we ended up winning the case in 2011.  A verdict came down in the amount of about $18,000,000,000 in favor of the affected communities which is what it would take at a minimum to clean up the actual damage and compensate the people for some of their injuries.  So that eventually got reduced to an appeal in Ecuador to 9.5 billion, but it was affirmed by the three appellate courts including the highest court of Ecuador.  It was a affirmed by the Canadian Supreme Court where the Ecuadorians went to enforce their judgment in a unanimous opinion in 2015.  In the meantime, Chevron went back to the United States in New York where I live.  That is the court where we originally filed the lawsuit and they didn't want a trial to be held and they sued me as a civil racketeer under a civil RICO statute for $60,000,000,000.  And that was the largest amount of money that an American individual ever had been sued for.  And it began a--what's really been a 10-year campaign to demonize me by Chevron and by its judicial allies.  There's a couple of judges here in New York who cannot stand human rights lawyers.  And I've had to endure for 10 years now the most intense attacks and judicial harassment and corporate harassment from Chevron.  It's to the point where they have really orchestrated my prosecution and what I believe is a completely questionable, if not outright bogus contempt charge for which I've been detained pretrial.  To give you a sense of the scale of what's happening to me, in the entire history of New York, you know, contempt is when you defy a court order.  Well, I was ordered by this Judge Lewis A. Kaplan, who's, you know, has investments in Chevron and he's biased in favor of Chevron based on his comments from the bench, I was ordered to turn over my computer and cell phone to Chevron for review in the middle of a--of a case.  And like I'm like I'm appealing that.  Like that violates attorney-client privilege.  It would put my client's lives in danger.  It was designed to put me in a really--position where I compromise my own ethics as an attorney.  And I appealed it and while it was pending appeal, and it's still pending appeal, he charged me criminally with contempt for not turning over my computer and cell phone to Chevron.  That's just the essence of the charges.  And it's bogus.

CH: I just want to interject, Steve, here.  I want to talk about Judge Kaplan.  He was a former attorney for the tobacco industry and he's carried out a series of very questionable legal decisions to go after you, which have been widely criticized within the legal community.  Just talk a little bit about how I think it's clear that he has perverted, twisted the law in service to Chevron.

SD: That's certainly my view.  I think Judge Kaplan honestly, after experiencing this for 10 years, and I'm a rule of law guy, I've been practicing law for 28 years without a single client complaint, I respect judges, I respect courts, but I don't think Judge Kaplan is fit to be a judge.  I think he has reverse-engineered everything.  He's tried to really harm me at every turn.  He's made, you know, dozens of very intellectually dishonest decisions and I think he's very threatened by me because I called him out.  You know, I filed a complaint with the Department of Justice against Chevron lawyers.  He accepted false evidence from a Chevron witness named Alberto Guerra who was paid $2,000,000 by Chevron.  Yeah.

CH: Yeah, speak about that because--right, so this guy was essentially brought to the United States by Chevron, paid $2,000,000--I mean explain that.  And then I also want you to talk about how Judge Kaplan assigned the lawsuit to himself, which is in violation of local rules requiring random assignment of cases, that there--that there was no hearing, that he issued this global anti-suit injunction.  I mean, these are just very frightening legal decisions that I think show the perversion of the legal system by corporate power.

SD: I think that's true, Chris.  And, you know, to give you a couple of examples, you know, first of all, he denied me a jury.  I mean, you don't try a guy on racketeering charges and deny him a jury.  He ruled alone.  He wouldn't let me bring in any environmental evidence that the Ecuadorian courts had used to find Chevron liable.  He wouldn't let me testify on my own behalf on direct.  He allowed Chevron to use secret witnesses whose identities he wouldn't reveal to me.  He tried to treat it as like a national security kind of case as a way to demonize me because Chevron's whole strategy is to demonize Donziger as a way to distract attention from its environmental crimes in Ecuador.  And Judge Kaplan, who knows all the tricks in the book as he used to work for Brown & Williamson when he was at Paul Weiss, he knows all the tobacco industry playbook that they used for years and years and continue to use.  And he had worked with the Chevron lawyers at the Gibson Dunn law firm to implement them against me without a jury and I just--it was nothing I could do about it.  It was a farcical trial.  It was called a Dickensian farce by John Keker, one of the nation's leading trial lawyers.  It was--it was just permeated with his implacable hostility toward me the whole way through.  And, you know, the result was entirely predictable.  He ruled against me but his ruling is contradicted by 29 appellate judges in Ecuador and Canada.  I mean, he's--he really went rogue but he has so much power because, you know, judges--federal judge in the United States have lifetime appointments and there's virtually no accountability.  And he's calculated.  He can just keep doing this to me and try to get away with it and I think his goal was to, you know, is--there's multiple goals.  We want us to help protect an American company from liability that Ecuadorian courts have imposed on it.  You know, two, is to send a message of intimidation to human rights lawyers generally.  This is an attack on human rights and on human rights lawyering.  You know, and, three, is to utterly disable my ability to advocate for my clients in a way that might hurt his reputation because he knows he allowed false evidence, he knows he's committed very questionable acts as a judge, there's judicial complaints against him, and his own career frankly is under scrutiny.  And he thinks by getting rid of me…

CH: Okay.  When we--when we come--when we come back, we'll continue, Steve, when we come back, we'll continue our conversation with Atty. Steve Donziger.  Welcome back to On Contact.  We continue our conversation with Atty. Steve Donziger about the campaign against him by Chevron.  I want to ask, you're--you graduated from Harvard Law School, is that correct?  And…

SD: Yes.

CH: …there are an estimated 200 lawyers, I think they said 60 law firms or something that Chevron has employed to go in…

SD: Two thousand lawyers.

CH: Two thousand lawyers.  I have to ask you, the--this is a perversion of the law and I think what we fail to understand is that those who stand up for the rule of law, such as yourself, are becoming a very beleaguered minority within the legal system, as corporations, and that's how you get tax boycotts in essence by companies like Amazon or Citibank through these legal kind of--what does it say about the law itself?  What does it say about the state of our judiciary?

SD: Well, I think the degree of corporate influence over our federal judiciary has increased dramatically in recent years.  I think my case is a perfect example of that.  You know, when Judge Kaplan tried to charge me with criminal contempt, his charges were considered by the US Attorney's Office and rejected.  That is the public prosecutors who look at evidence objectively, said this case is not worth trying.  It's obvious why.  He went ahead anyway and he appointed a private lawyer from a private law firm that has Chevron as a private client as my prosecutor in the name of the government.  This is the first time that anyone can remember or--that the government has basically turned over the power to prosecute to an oil company to go after its main critic, which is what Chevron is doing.  I'm being prosecuted criminally, not by the US government but by a private Chevron law firm that has pretty much, you know, captured an element of power from the government, and deployed it against a human rights activist.  That's never happened before.  So, to answer your question, Chris, you know, I hope I never see it again, but, you know, it's very obvious that our judiciary is suffering from, I think, systemic bias in favor of money, wealth, and power.  And the attacks on me, I think, are an illustration of that, of what's happened to our judiciary.  By the way it doesn't mean the whole judiciary is a problem.  I mean there are elements of really good judges in the United States.  I mean, there's so many good judges.  But more and more the right-wing has seen our federal judiciary as an object to take control of as opposed to a system that's supposed to fairly adjudicate disputes.  And, again, my prosecution by Judge Kaplan and by this law firm the, the name is Seward & Kissel, prosecutor name Rita Glavin, is an example of that.  I mean think about it, my prosecutor is partners with people in her firm who have Chevron and other oil and gas companies as clients.  She's making money from Chevron while she's prosecuting me as a Chevron law firm and depriving me of my liberty.  And again I think that's a real frightening thing for our country, and I think people need to pay serious attention to this.

CH: Let's talk about the press.  And you reminded me, I didn't remember, that we were both in Nicaragua together.  You had--before you went to law school or working as a freelance journalist.  I know The New York Times investigated your case, but never ran the story.  And coming out of that profession, I'm acutely aware of the power of advertisers to censor within The New York Times and other publications where I worked for 15 years.  And that allows them to shape the narrative and shut down your voice.  Can you talk about that?

SD: Well, I've experienced this multiple times with big media over the last 10, 15 years.  I mean basically, you know, an entity will start writing a story, spend a lot of time on it.  Then the, you know, the reporter just disappears, the story doesn't run.  And, you know, we sort of know what happened and we laugh about it.  I mean, it's, you know, more recently The New York Times assigned a story to a major writer, and he was working on it for a while until he wasn't working on it anymore and he told me that it got killed.  And he didn't understand why no one ever told him.  And I later found out The Times, New York Times, had started its own ad agency and Chevron's a major client.  I mean who knows what exactly happened, but, you know, I've seen this enough to know for example, back, you know, I don't know, seven or eight years ago, a local Fox station in Miami wanted to do a story on the case.  They sent a reporter down to Ecuador.  Chevron got so nervous, and I know this because I have their internal email about it.  They wanted to put Roger Ailes on the phone with the producer of a local Fox station in Miami to try to kill the story, none other than Roger Ailes.  You know, this happened with GQ Magazine.  There was a reporter named Sean Flynn who worked on a story for, I don't know, at least a year.  We worked with him very closely.  He went to Ecuador.  He supposedly wrote it, the story never ran, and he stopped returning our phone calls.  You know, 60 Minutes did a fairly good segment on this in May of 2009.  And it won an Emmy and then never ran in the summer reruns and then disappeared from their website, you know?  So, 60 Minutes was put through hell to get the story on the air.  I worked with them very closely.  I knew what they were dealing with, and all of Chevron's tactics to try to kill stories that they think are not going to be favorable to them.  So, I've seen this time and time again.  It's very, very difficult to get the full story of Chevron's malfeasance in Ecuador and sort of how it's co-opted parts of our federal judiciary into the mainstream media.  Very difficult.

CH: This is an example of what the political philosopher--I don't know if you're familiar with his work, Sheldon Wolin, probably our greatest living political philosopher, taught at Berkeley and Princeton, calls inverted totalitarianism.  It's a classic example where the facade of the democracy, the facade of a free press, the facade of a judiciary remains, but internally it is impossible to challenge corporate power where real power lies, as Occupy Wall Street understands.  And Joe Biden isn't going to confront Chevron any more than Donald Trump is going to confront Chevron.  And anyone who attempts to confront Chevron or any other powerful global corporate entity is going to experience your fate or worse because in the developing world, they don't bother with legal niceties.

SD: Well, you know, Global Witness, a great London-based NGO just came out with a report that around a hundred ninety environmental defenders were murdered around the world, murdered last year.  You know, I mean, you know, I think what's shocking to a lot of people is that this is now happening in the United States.  I don't mean murder, but the sort of the death by a thousand cuts equivalent, right?  And, you know, Chevron is trying to cancel me out of the legal culture.  And they don't want me to be a lawyer anymore at a minimum.  And, you know, they don't want me advocating even as a non-lawyer.  I mean I am--I'm active on Twitter by the way, if people want to follow the case, I'm @SDonziger.  But, you know, they want to silence me.  It's embarrassing what they've done to them.  They'd rather people not know about it.  They want to kill every story they can.  You know, they'd rather have no story about this case than even a positive story to their side.  They just don't want people to know about it.  They want to erase it from people's thought process.  So, yeah, I mean it's very bizarre.  By the way, you know, the mainstream of the bar in New York and nationally is really getting involved in my case in a way that's extremely helpful.  There was just a monitoring committee formed yesterday by some very prominent lawyers including Michael Tigar from Duke, Nadine Strossen from the ACLU, Ambassador Stephen Rapp who used to be President Obama's war crimes Ambassador.  You know, Simon Taylor of Global Witness.  And they're going to monitor my trial to be sure that my rights are respected and if they're not they're going to start calling it out.  And it's really critical that this kind of thing happen in these types of cases.  I mean, trial monitoring has a whole history in our world from Nuremberg to the Reichstag Fire Trial in Germany in 1933.  The trials all over the world, I mean, you rarely see these committees in the United States of America because people just assume that we're a rule of law country.  But the fact that you're getting, you know, some very prominent people involved in what's a misdemeanor case, which is my case, you know, thirteen months in home detention when the maximum sentence upon conviction is six months in prison, it's obviously something really irregular is happening here.  So, I'm getting a lot of support which I need and I really appreciate.

CH: Where are we now in terms of your legal situation?

SD: So, I have a trial, a criminal contempt trial scheduled for September 9th.  It's, you know, the judge and the prosecutor who are all, you know, the--I should say, the Chevron private prosecutor are trying to force me into trial.  They want to silence me and my opinion put me in prison.  What's bizarre about this, Chris, is since the pandemic hit in March, there hasn't been a single criminal trial in Federal Court in New York.  They're trying to rush me to be the first while there's literally hundreds of defendants incarcerated with serious felony charges waiting for trial, waiting indefinitely, I might add, because there's no real trial scheduled in Federal Court.  I don't think there's been a single federal criminal trial in the entire country since March.  And they're trying to rush me through for a September 9th trial.  It puts--it's going to put the lives of my lawyers at risk, my--I have pro bono lawyers, one lives in Seattle, one in Oregon, one in Houston, one in Massachusetts.  And for them to get on planes and fly here is going to put their lives at risk.  But, you know, the Judge, Loretta Preska, Judge Kaplan who are orchestrating this, they don't really care about human life.  They care about the power game of really attacking a human rights lawyer and sending a message to the human rights community in general that they should stand down, holding these corporate polluters accountable at least at this scale.  So, you know, if I have a trial on September 9th, I believe it will be an unfair trial.  I cannot get a fair trial with a judge appointed by Judge Kaplan rather than through the random assignment process.  I cannot get a fair trial with a prosecutor who works for Chevron.  These are egregious conflicts of interest.  It's misconduct on a grand scale.  I have a emergency motion pending before the New York Appellate Court to dismiss the entire case because of these conflicts of interest.  And they're trying to rush me into a trial and engineer a conviction without a jury before the appellate court can hear and rule on these critically important issues related to fairness.  So, I am being--you know, it's just a quadruple whammy.  I mean, I've been locked up now four times as long as the longest sentence ever imposed on a lawyer for criminal contempt in New York.  And they still want to rush me into a trial and try to beat the clock before the second circuit Court of Appeals can rule on these critical issues, and then, you know, probably try to put me in jail as soon as they can.  The maximum sentence they can give me is six months.  But, you know, I don't--you know, they will put me in a prison.  All the prisons are infected with significant COVID cases five times greater than the number of COVID on the outside.  And I don't think they care whether I live or die frankly.  So, there's a lot at stake and we are seeking a stay to block the trial from happening until the court, the appellate court can rule on these critical issues as to whether this judge and this prosecutor can stay on the case because of their egregious conflicts of interest.  I'm basically being prosecuted by Chevron in the name of the US government.  That can't be allowed to happen.  You know, even in a society where the judiciary is tilted more and more toward the Republican side and toward the Federalist society, I have gotten so much support even from Conservatives who cannot believe this kind of thing is happening.  It's offensive.

CH: We're going to--we're going to have--I'm going to have--we're going to have to stop there, Steve.  Judge Preska, I sat through her trial of Jeremy Hammond, she's cut from the same cloth as Judge Kaplan which is, of course, why they're working together.  That was Atty. Steve Donziger about his battle with Chevron.

SD: Thank you, Chris.  Appreciate the time.

CH: Thanks.