One thing I have learned in many years of writing about law cases that are politically or morally important to people is that there really is no market on social media for writing about them as law cases. The Chevron/Ecuador/Donziger case is a great example of this. Years ago, when I was arguing that the law should be that if you get a case dismissed in a US court on forum non conveniens grounds in favor of litigation in another country, you shouldn’t be heard later to complain that that country’s courts are corrupt as a reason for a US court not to recognize the judgment, and that evidence of corruption in the Lago Agrio court of first instance should not be enough to lead a US court to reject the judgment as long as there was no showing that the Ecuadoran appellate courts were corrupt, Chevron’s partisans were, I think, not too happy with me. More recently, my view that Donziger was pretty obviously guilty of contempt of court, and that Judge Preska was right not to allow him to put on evidence at his trial showing that Judge Kaplan had been biased and had gotten his findings of fact all wrong about what had happened in Ecuador, has not endeared me to Donziger and his partisans. No one seems that interested in treating the law case as a law case. Everyone wants to see it as just part of a war between good and evil, where what matters is how closely the result lines up with the good.
But I like to think that you, Letters Blogatory readers, or most of you anyway, are interested in reading about law cases as law cases. Anyone who is interested in the areas of procedural law I write about here, such as jurisdiction, service of process, etc., is almost necessarily interested in understanding the law as an autonomous discipline, and almost necessarily okay with the thought that the most sympathetic plaintiff in the world can sometimes lose his case because of a defect in service, for example, because we recognize that procedural law also serves important values and has its own internal logic, and because we understand that law is not the same as morals or even the same as “justice” in the colloquial sense. I gave a defense of a similar idea in a 2018 post I particularly like called “Facts are Created.” I suppose I could sum up like this:
With that said, I don’t mind having a discussion here about the larger issues raised by the Chevron/Ecuador case, and I hope you, readers, will feel free to criticize my views in the comments if you are so moved. You are unlikely to be harsher than Irish journalist Ed Moloney was when he criticized my coverage of the Belfast Project case, a politically charged case in Boston several years ago, in which Moloney was personally involved, involving a subpoena of an oral history archive at Boston College the UK authorities believed contained confessions to IRA crimes during the Troubles in Ireland. The courts, correctly in my view, held that there was no privilege that shielded BC or the researchers, including Moloney, from producing the evidence, even though they had promised confidentiality to the participants. Here is what Moloney had to say:
You have been a dickhead from the start of this affair, and that has not changed. You write from a deep, fundamental and irrevocable ignorance of Irish politics, the Troubles in Northern Ireland and the politics of the past, i.e. who gets to tell the truth about what happened, who did what to whom and who broke which laws during the Troubles—particularly whether British forces were every bit as murderous, criminal and immoral as the IRA. You look at this case as if it was on the same plane as a burglary in suburban Boston as opposed to what it was and is, a deeply political and ancient struggle between a former imperial power and the remnants of its first colony. As we say in Belfast, ‘Wise up!’Ed Moloney
My response to him is the same in spirit as my response to the Donziger partisans I’ve been hearing from on Twitter:
I write about the law of international judicial assistance, not about Irish history or politics, not about colonialism, not about how to tell history. Perhaps in your eyes that is foolish, perhaps understanding the law abstracted from the politics and morals of a particular case—which is what I expressly say in the post I am trying to do—is absurd. But let me point out that if years ago you had better understood the things I have been writing about this case, none of the fiasco that followed might have happened, because you might not have made promises the law would not allow you to keep. So there is value in knowing what the law is.Me
With that apologia out of the way: you probably have read by now that Steven Donziger, the former lawyer for the Lago Agrio plaintiffs, was sentenced to six months in jail on Friday for contempt of court. He received the maximum sentence the law allowed. Donziger remains free on the same pretrial conditions he’s been subjected to for two years for a week, and I expect him to seek a stay of execution of his sentence from the Second Circuit.
What should we think about the sentence? First, I will say that I understand the motivation of the sentence. Donziger, a lawyer, has, despite his protestations, been thumbing his nose at the court’s authority for years, and clothing himself in righteousness as he did it. So when Judge Preska said, at the hearing, that only a good whack between the eyes with a two-by-four would teach Donziger respect for the law, she had a point.
Still, I think that given the length of the pretrial home confinement, the petty nature of the charge, and the collateral consequences of his misconduct to Donziger, namely his disbarment, I think, as I have said before, that he has been punished enough, and I had hoped and thought the the judge would not sentence him to imprisonment. I thought that if the judge was thinking about the political implications of her decision and its effect on the public, there was another reason not to sentence Donziger so harshly. As his lawyer, Ron Kuby, put it at the sentencing hearing, why make Donziger more of a martyr than he already is? Both the judge and the government’s lawyer, Rita Glavin, said, during the hearing, that they encouraged members of the public, particularly Donziger’s supporters, to read the record of the case to really understand what has happened, to which I say, “Hear, hear!” But there is almost no chance that most people will do that, and frankly, I wonder whether the court papers, with their discussions of the collateral bar rule, the Appointments Clause, and other arcana, is really accessible to the general public anyway. All that most Donziger partisans will “know” is that a hero of the environmental justice movement, who was prosecuted by Chevron before a judge beholden to Chevron, was sent to prison in retaliation for his successful lawsuit that resulted in a major victory in Ecuador for indigenous people. Who can argue with that?
What are Donziger’s prospects on appeal? He has some interesting and potentially meritorious arguments to make. First, as I’ve noted before, although the use of a private prosecutor in his case was not just permitted but required under the Federal Rules of Criminal Procedure, there is a real question about the Rule’s constitutionality in light of recent developments in the law under the Constitution’s Appointments Clause. Ironically, it is groups like the Federalist Society, the same group that Donziger blasts Judge Preska for being associated with, that are pushing the law in this area.
The Second Circuit may also be sympathetic to the notion that Donziger has been punished enough, given the length of his pretrial home confinement. I don’t know enough about the law in this area to give a view, though Judge Preska expressed the view at the sentencing hearing that it is improper to consider pretrial home confinement as confinement such purposes.
I think there is little or no chance the Second Circuit would take issue with the finding of guilt in the case, since Donziger’s guilt, frankly, was obvious. He trumpeted it.