In a non-precedential decision, the Second Circuit has affirmed the district court’s order denying Steven Donziger’s motion for relief from the conditions of his pretrial release, which has amounted to home confinement (with exceptions) while he awaits trial in May on the charges of criminal contempt. If you want to read bombastic takes on the decision, you can check out Twitter, where Donziger’s lawyer is quoted as calling the case “a major stain on the U.S. federal judiciary,” and Donziger itself accuses Judge Preska of being “a leader of the Chevron-funded Federalist Society.” My non-bombastic (I hope!) take is that Donziger had a good point in arguing that since the government has decided to seek only six months imprisonment or less if Donziger is convicted, and since the contempt, if proved, is, therefore, a petty offense that will be tried to the court, it seems wrong to conclude that Donziger’s history of violating court orders and his close ties with Ecuador means he is a real flight risk: who would “risk it all” over a petty offense? The subtext is that the government should not be able to have its cake and eat it too by charging Donziger in a way that avoids a trial by jury while still emphasizing the seriousness of the crime and the penalty when seeking to maintain Donziger’s conditions of release. The judges thought this point weighed in Donziger’s favor, too, but ultimately the case came down to the standard of review. Judge Preska weighed the considerations, perhaps differently than the Second Circuit would have, but her conclusion was not clearly erroneous.
The trial is scheduled to begin in May, and while I won’t be covering it “gavel to gavel,” I will of course bring you the highlights and the result!