Last week Judge Preska denied Steven Donziger’s motion for a new trial. This was not a surprise, particularly given that the trial was a bench trial. The basic grounds for the motion related to the constitutionality of the appointment of a private lawyer to prosecute the criminal contempt charges. As I have written before, this is a real and weighty issue, particularly in light of the Supreme Court’s recent Appointments Clause jurisprudence, but there are also procedural and evidentiary hurdles that might prevent a ruling on the merits on appeal (did Donziger waive the issue by failing to raise it until the eve of trial? did he present admissible evidence that could prove that the private prosecutor was unsupervised by the Attorney General?) I have to say I am fascinated by the idea that Donziger might ultimately prevail despite the judge’s factual findings of guilt on these grounds, given that the new focus on the Appointments Clause is by and large a right-wing, Federalist Society type of issue aimed at weakening the modern administrative state. What would Susan Sarandon have to say about that?
There’s one other Donziger-related development to report. The government has filed its sentencing memorandum. Interestingly, the government did not recommend a particular punishment, and in particular, it didn’t recommend any time in custody. I am just guessing, but I think it is quite unlikely Judge Preska will sentence Mr. Donziger to prison, since the real point of all this is to deter others from similar contempts of court, and I think the court has made the point. It was interesting to read Pretrial Services’ account of Donziger’s daily activities, which is somewhat at odds with the “Free Donziger!” vibe on Twitter:
Mr. Donziger’s Pretrial Services Officer recently informed us that he has been “outside daily” for various activities, including “walking his son to school and basketball practice each day, regularly going to the park with his son, attending sporting events such as professional baseball games with his son, going to the grocery store, and attending legal meetings several times a week, ”and she also “approved Donziger attending the ballet with his son, but Donziger ultimately decided not to attend.
Still, there’s no question that the conditions of Donziger’s pretrial release have been an onerous restraint on his personal liberty, and I will repeat what I’ve said before: I think he’s been punished enough.