Today Letters Blogatory welcomes back Doug Cassel, Professor of Law at Notre Dame and an advocate for Chevron here on Letters Blogatory and elsewhere, including at the Inter-American Commission on Human Rights. Doug gives us his view and, I presume, Chevron’s view) of the evidence that corroborates the Guerra Declaration.
I offered an equal guest-posting opportunity to the advocates for the Lago Agrio plaintiffs, but they didn’t take me up on it. So I thought that as a counterpoint to Doug’s post, I would raise some questions about the Guerra Declaration and its effect that I imagine the Lago Agrio plaintiffs might raise. I hope Doug will address them (as I hope the Lago Agrio plaintiffs’ representatives will address Doug’s remarks in the comments to his post).
First, why are we only hearing about Judge Guerra’s allegations of corruption now? According to the declaration, when Judge Zambrano got involved in the case, Judge Guerra, acting on both judges’ behalf, approached Chevron to negotiate a bribe, but Chevron rebuffed the offer. Yet as far as I know Chevron did not raise the problem in Ecuador, or anywhere else, until last week. Why the delay?
I put the question to Kent Robertson, Chevron’s PR representative, who said: “there were no authorities in Ecuador to report this to. As US courts have found, the authorities in Ecuador are in league with plaintiffs’ lawyers. Recall that at this point in time, the government was persecuting two Chevron attorneys already. And Zambrano has an extensive history of misconduct that had gone unprosecuted.”
I think Chevron’s position on this is problematic. Chevron participated in the Ecuadoran litigation right up to the end, and in fact I believe it still has an appeal pending before Ecuador’s highest court (though as we know, by failing to give an appeal bond, Chevron did not take the steps necessary to suspend the operation of the judgment pending the outcome of its appeal). So surely Chevron could have raised the attempted bribe as an issue, even if, as it seems to be claiming, its attempt would have been doomed to fail. Instead, it held the issue in its pocket pending the outcome of the case. I don’t mean to downplay the strategic reasons why Chevron didn’t raise the issue. In the United States, a party that thinks a judge should be recused has to weigh the value of preserving the argument for appeal against the chance that the motion will fail and merely antagonize the judge. Nevertheless, you can’t identify the issue, make a strategic decision not to raise it before the judgment, and then raise it after the judgment when it suits you. I’m returning one of my main themes and suggesting that Chevron may be estopped to raise this issue now.
Second, how did Chevron get the Guerra story? Did Chevron’s investigation lead it to Judge Guerra, or did Judge Guerra approach Chevron? According to Robertson, it was Guerra who took the initiative. Why? “The truth of the plaintiffs’ lawyers’ fraud is obvious. Perhaps he wants to be on the right side of history.” Perhaps. I can speculate, too. I speculate that Guerra was looking for money, and judging from his own declaration and Roger Parloff’s reporting, he found money—Chevron says it provided benefits to him and his family worth hundreds of thousands of dollars. This raises obvious questions about Judge Guerra’s credibility and makes the strength or weakness of the corroborating evidence Doug discusses even more important.