Lago Agrio: Donziger finishes serving his sentence

Steven Donziger
Credit: @sdonziger

Steven Donziger finished serving his sentence yesterday following his conviction of criminal contempt of court. Although it will come too late to affect his sentence, his appeal challenging the constitutionality of the proceedings, in which the government was represented by a private prosecutor as provided in Fed. R. Crim. P. 42 who, Donziger says, was not subject to the requisite supervision by the Attorney General, is still pending. I am not sure, but I think that the appeal is not moot just because the sentence has run, and as I’ve written before, the issue he raises on appeal might well be a good one. This must be a happy day for Donziger and his family, and those of us who have followed all the twists and turns in the saga should wish him well—I certainly do.

Something is wrong on the Internet.

At the same time, and especially in light of the unbelievably awesome PR campaign Donziger has been running on social media, I think it is really important to continue to insist on understanding exactly what Donziger did to lead to his conviction. I know, it’s hopeless to get worked up because “something is wrong on the Internet.” But while Donziger set out to do something good for the world, and while Judge Kaplan may have gotten his findings of fact wrong concerning the ghostwriting of the Ecuadoran judgment, Donziger lost his way after losing the case. I’ve said it before and I’ll say it again. Knowing how to lose a case is a super-important lawyer skill that Donziger never mastered.

Kenny Rodgers, the Gambler
You got to know when to hold ’em, know when to fold ’em.

Losing the RICO case must have been hard, personally and professionally. And the consequences of the loss were serious: the court’s judgment that Donziger had participated in a scheme to obtain the Ecuadoran judgment by fraud led directly to his disbarment, and he owes Chevron more money than he probably can ever pay. But no one prosecuted Donziger for the fraud in Ecuador, and no one goes to prison for owing a lot of money on a civil judgment. What did Donziger get in trouble for? Was his conviction a miscarriage of justice that justifies the Twitter hagiography?

No, Donziger’s conviction was not a miscarriage of justice. He was convicted of several violations of a court order. The law here is not complicated. If you are the subject of a court order, even if you think it is wrong, even if you have appealed it or plan to appeal it, you have to obey it unless you obtain a stay. That’s the law for me, for you, for Steven Donziger, and for scofflaws like Donald Trump, who was just held in contempt by a judge in New York for failure to comply with a discovery order—the same kind of violation that formed part of the basis of the charges against Donziger. There’s no question that Judge Kaplan, the judge who laid the contempt charges against Donziger, and Judge Preska, the judge who heard the case, came down very hard on Donziger. Maybe the case was as unprecedented as Donziger says. But as far as I know the kind of brazen, open contempt of a court’s orders by a practicing lawyer with elite credentials might also be unprecedented. Donziger cried out for punishment, in order to vindicate the rule of law.

When Donziger talks or writes about the case, he focuses on his failure to turn over his electronic devices. He doesn’t have a lot to say about his attempt to monetize his interest in the Lago Agrio plaintiffs’ judgment against Ecuador for his own personal benefit, or about his failure to surrender his passports when ordered, or his failure to comply with the court’s order regarding assignment of his interests in the Ecuadoran judgment to Chevron. None of the facts about those contempts of court were really in dispute. And let’s accept for a moment Donziger’s exclusive focus on the charge relating to his electronic devices. He says that they contained attorney-client privileged material and that legal ethics demanded he withhold them. But legal ethics demand competence, and a competent lawyer knows that failing to provide a privilege log, which is what Donziger did in this case, can waive the attorney-client privilege. And legal ethics demand compliance with lawful court orders, not continued groundless refusals to follow the law when the court makes a decision you don’t like.

I wish Donziger a long and happy life doing something other than practicing law. But I am worried by the praise heaped on him by the uninformed. In a sense, Donziger is a Trumpian figure for the left, someone who obviously broke the law but whose supporters don’t seem to understand the facts, or if they do understand the facts, who don’t seem to care. This is maybe a little unfair to Donziger insofar as he, unlike Trump, has been held to account for his conduct; but it’s only a little unfair, because, like Trump, Donziger has shown no awareness that he did anything wrong.

I encourage everyone who is thinking about paying $6 a month to subscribe to “Donziger on Justice,” everyone who wants to retweet Amnesty’s report asserting that Donziger as subject to arbitrary detention, and in general, everyone interested in what really happened to read the judgment in the case, and to read Donziger’s appellate brief so that you can can see what he argued the judge got wrong and, perhaps more importantly, what he did not argue the judge got wrong. I’ve noted it before, but it bears repeating: Donziger does not argue on appeal that the judge got any of the facts wrong. If you want to be an advocate, be an informed advocate! If you want to disagree with Judge Preska, by all means do, but at least confront the facts that she found and that law that she explained.

This Post Has 6 Comments

  1. Ray Zuppa

    Everything goes back to the Corrupt RICO. It was Judge Kaplan who suggested the RICO. When a federal Judge suggests something he is telling you that he will give you what he is suggesting. (Anyone who has ever litigated a case knows that) That is so improper.

    Then Donziger was stripped of a jury because Chevron dropped their demand for monetary damages. Meanwhile, as you said, Donziger owes Chevron millions — to me that is being denied a Constitutional Right to a jury.

    In any event no matter how much Judge Kaplan tries to disguise the fact, the RICO verdict was solely predicated upon the testimony of a disgraced former Judge — Guerra, who was not the Judge that was allegedly bribed. Guerra — and this came out during the trial — was paid much money by Chevron for his testimony — in the millions. He had previously acted as a bag man for Chevron in Ecuador where he repeatedly tried to corrupt the process so that Chevron — like Putin — could claim it was corrupted. Finally Guerra — while under oath in front of an international tribunal — admitted that he lied during the RICO proceedings when he testified that Donziger bribed the Ecuadorian Judge, etc. So there you go. On top of that Donziger could not even introduce evidence of the pollution.

    DO NOT WAX PHILOSOPHICAL ABOUT KNOWING HOW TO LOSE A CASE. That is such nonsense.

    This is about the biggest and best court house money can buy. Chevron money. And it is happening in the Ninth Circuit as we speak with the Saudi heir case worth some 18 billion dollars. https://www.law360.com/articles/1469809/saudi-heirs-atty-fights-9th-circ-efforts-to-sanction-him

    As to the criminal proceedings how does a Judge act as complainant and Judge at the same time. How does he appoint a special prosecutor that represents Chevron. And instead of putting the case into random assignment as called for by the rules how does he give it to another Judge who is an advisor to the federalist society — which organization is heavily funded by Chevron. How did Judge Kaplan remain on the case. How is it that Judge Kaplan had financial holdings in Chevron. How does it get so corrupt. Well ask the Second Circuit and read their decision in In re Drexel Burnham Lambert Inc. 861 F.2d 1307 (2d Cir. 1988) — that’s the case that stands for the proposition that Judges in the Southern District can get away with anything. In this case they got away with aiding and abetting the slow motion genocide of the indigenous peoples of the Ecuadorian rain forest. Meanwhile we must question whether or not Courts should even be obeyed. Donziger is such a travesty of justice. But unfortunately it is part and parcel of the many travesties of justice that occur in our corporate run courts. Only lawyers who represent the average citizen in federal court know this to be true and were not surprised at any of the above.

  2. Raymond Zuppa

    1. You are wrong. And once again you claim my statement is a “Donziger talking point.” Please I do not characterize your points as “a Chevron Genocide taking point.” (Funny how Chevron is one of the few companies still doing business with Putin) I have read the decision that you speak of. The Kaplan decision was before the Court. The Court did not recognize it. The Court expressly recognized the Ecuadorian Judgment but stated that Chevron Canada was independent of Chevron for purposes of liability. Canada recognizes the corporate veil more rigorously than any jurisdiction that I have seen. Probably because so many subsidiaries of US Corporations do business there and they want to be business friendly to them.

    What measure of desperation are you feeling when you differentiate between “Arbitrary Detention” and “Illegal Detention.” Logic dictates that an “arbitrary detention” is a an “illegal detention.” What’s more the UN demanded Donziger’s immediate release. (If you try a case against me pray that it’s in front of Judge Kaplan and not a jury)

    2) The gravamen of the RICO was that Donziger bribed the Judge and ghost wrote his decision. (Mostly we are dealing with the RICO predicate of bribery but Chevron threw in the Kitchen sink) That was solely based upon Guerra”s testimony which he recanted under oath. He admitted he lied. Now your fall back position is the purported ghost writing of an independent expert’s report which you call “fraud.” That demonstrates a facile and obtuse understanding of the concept of “fraud” on your part. Especially RICO fraud. As I stated it is routine in New York State Courts for a party to write a decision and order of a Judge who then signs off on it. That did not happen with Donziger. According to you he wrote a report for an Independent Expert. The point is that if the contents of the report are true. And if the contents of the report is known by the expert. The expert can legally sign off on it. It does not matter who wrote it.

    Who do you practice law with and more importantly who do you practice law against.

    3. The United States is a member of the New York Convention on arbitration and generally follows the strictures of the prime conventions. There are grotesque examples where that does not happen — Donziger — but that is the usual way of doing business. What world do you operate in. We live in a Global Economy. If foreign judgments were not recognized that global economy would break down as no one would do business with each other.

    Again you lump me in with “Donziger Supporters” and claim that I do not argue the facts with regard to Judge Preska’s decision. I was there at the sentencing wherein Judge Preska claimed that Donziger had to be hit in the head with a two by four. How many times must I slam you in the head with a two by four. I have argued nothing but the facts. The RICO that gave rise to the orders that Donziger violated were the product of immense fraud and corruption. (You punted on that) Therefore Donziger could not have violated any orders because they were illegal. Judge Preska’s proceedings were illegal. Here let me make it simple for you since you are simple. You cannot be guilty of resisting arrest if the arrest was not premised upon probable cause.

    Look I am tired and disillusioned by Donziger. I am disillusioned with lawyers like you who curry favor with Courts and Corporations and who have betrayed the very ethos that should have led you to law — as opposed to just money. I am even disillusioned by Donziger’s people. I volunteered my services to RICO the RICO — Chevron and their hack lawyers are a RICO Enterprise. The SOL has flown on most but not all of that. But you could still bring an action for fraud on the court which has no SOL. I made the proposal. I want no money unless I win. There were no takers.

    I am done with this. I am done debating losers on all sides.

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