Donziger's Attorney Charges Two U.S. Federal Judges with Judicial Misconduct and Abuse of Power as He Urges Dismissal of Contempt Case
Human Rights Lawyer Now in Tenth Month of Detention with No Trial or Conviction After Winning $9.5b Pollution Judgment Against Chevron
New York, NY – Two prominent U.S. federal judges today were accused of engaging in a pervasive and long-running abuse of power for participating in a cover-up to hide a bizarre arrangement where a private law firm working for Chevron was appointed to prosecute and detain human rights lawyer Steven Donziger after he helped win a $9.5 billion pollution judgment against Chevron. The new legal filing is here.
Donziger, who recently received the support of 29 Nobel laureates and thousands of lawyers around the world, helped his indigenous clients in Ecuador’s Amazon win the historic judgment in 2011. Since then, Chevron has joined forced with U.S. judge Lewis A. Kaplan to abusively target Donziger in New York in a series of unprecedented legal actions that have wiped out his assets and virtually bankrupted his family.
Chevron has used 60 law firms and 2,000 lawyers to attack Donziger in Kaplan’s court in what is considered to be the world’s most well-financed corporate retaliation ever against an environmental activist. The attack is considered part of a new corporate playbook designed to harass and try to criminalize activists and has since been copied in SLAPP harassment lawsuits targeting Greenpeace and other protestors, prompting several civil society groups to combat the abuse. (See here.)
After six appellate courts in Ecuador and Canada validated all or parts of the environmental judgment won by Donziger in Ecuador, Kaplan charged Donziger with criminal contempt for refusing an extraordinary order that he turn over his computer and cell phone to Chevron in the middle of the litigation. The order came as Donziger was working with a team of international lawyers to enforce the Ecuador judgment in Canada and other jurisdictions.
Donziger has now been detained in his Manhattan apartment three times longer than the harshest sentence ever imposed on a lawyer in New York for contempt and he has yet even to have a trial. Kaplan also ordered Donziger’s passport confiscated so he cannot travel to meet his clients or help enforce the judgment, both a key part of his job. He is thought to be the only person in the U.S. with no criminal record detained pre-trial on a misdemeanor charge, considered a petty offense.
In a legal filing today, Donziger’s attorney Andrew Frisch described multiple “abuses of power and discretion” by Kaplan, a former tobacco industry lawyer known for his pro-business bent and bullying style (see here), and Judge Loretta Preska, a member of the Trump-affiliated Federalist Society. Kaplan and Preska have worked together on the federal trial court in New York for over 25 years.
Frisch’s main points are as follows:
Kaplan filed criminal contempt charges against Donziger last July and quietly named Preska to preside while he ran the case from the background, creating what Frisch called a “two-headed” judge designed by Kaplan to hide his true role and to immunize himself from a recusal motion given his long history of bias against Donziger. In handpicking Preska, Kaplan also bypassed local rules requiring random assignment of cases.
To ensure he could control the contempt charges against Donziger from behind the scenes, Kaplan also appointed a private law firm with extensive ties to the oil industry to prosecute in the name of the U.S. government after the U.S. Attorney (the regular prosecutor) rejected the charges. Kaplan never disclosed that the firm, Seward & Kissel, has Chevron on its private client roster or that it worked for several companies that do business with Chevron, as outlined in an affidavit from ethics expert Ellen Yaroshfsky.
Kaplan, Preska, and the Seward law firm appeared to collude to actively cover-up the Seward conflict for months despite continued pressure from Donziger to disclose any relationship with the company. In a court hearing before Preska on January 6, Seward partner Rita Glavin (appointed by Kaplan to prosecute) denied any conflict of interest as she was refusing to disclose that Chevron was a client.
In February before the Federal appellate court, Glavin again refused to consent to Donziger’s release while continuing to deceive the court by covering up her firm’s conflict. Normally, such deceit is grounds for bar discipline. Under pressure from Frisch and the Yaroshefsky opinion, Glavin and her partner Mark Hyland grudgingly disclosed the conflict in late March months after Donziger had been put in detention.
When Donziger’s counsel later insisted that Seward describe the nature of its representation of Chevron, the firm refused to provide any further information citing its duties of loyalty to Chevron as a private client. Seward is putting its loyalties to Chevron ahead of its ethical duties to turn over exculpatory information to a defendant it is trying imprison in apparent service of Chevron’s goal of blocking the lawyer from enforcing the Ecuador judgement, said Frisch.
Preska issued an order last week that “reveals abuses of power and discretion surpassed only by gross indifference to prosecutorial misconduct and the appearance of judicial bias,” according to the filing. In an apparent effort to protect Kaplan and the Seward firm, Preska ruled that the conflict of interest was not severe enough to warrant disqualification. She also denied Donziger an evidentiary hearing.
Chevron’s main law firm used to attack Donziger for the last decade, Gibson Dunn & Crutcher, also had an obligation to disclose Seward’s conflict once the criminal contempt case began but failed to do so. Lawyers at Gibson Dunn for months had been urging Kaplan to jail Donziger. Since then, a team of Gibson Dunn lawyers began coordinating with the Seward firm and even appeared to be drafting some of the firm’s submissions urging Donziger’s continued detention.
“Simply stated, Judges Kaplan and Preska have ratified deceit by the lawyers appointed by Judge Kaplan to prosecute the criminal case about their firm’s attorney-client relationship with the Chevron Corporation, for whose benefit Judge Kaplan issued the orders which Mr. Donziger is alleged to have willfully violated,” Frisch wrote in the brief. He added that any normal court would “have blown a judicial gasket” upon finding that a law firm covered up a conflict for months.
Rather than act to uphold the rule of law, Preska “neither rebuked nor mildly criticized Seward,” wrote Frisch, a former federal prosecutor. “More, Seward … had effectively lied about the Seward-Chevron relationship and had done so in open court at a conference. Yet [Preska] did not even raise a judicial eyebrow and ignored what should have been seen as a shocking breach of professional ethics and proper protocol.”
“This is a clear example of what political scientists call judicial capture,” said Martin Garbus, a civil rights lawyer who successfully represented Donziger in a recent bar hearing and who has been a member of the New York bar for six decades. “Chevron and its law firms have taken control of the awesome power of the government to prosecute an environmental activist and deprive him of his liberty. They have done so with the active complicity of two federal judges. It’s something I’ve never seen in my career. It’s absolutely jaw-dropping to see it play out.”
Frisch also pointed out that Seward lawyer Glavin has a history of engaging in prosecutorial misconduct, having been a supervisor in the failed prosecution of former Alaska Senator Ted Stevens in 2008 that was dismissed after she and her team withheld critical evidence. Legendary defense lawyer Brendon Sullivan, who represented the Alaska Senator, called the actions of Glavin and her colleagues at the Department of Justice “corrupt” and worthy of sanctions. (See here.)
Donziger said he was “extremely disturbed” by a “hornet’s nest of apparent professional misconduct” by the Seward firm acting in the name of the U.S. government. He joined with Frisch in calling for the contempt case to be dismissed and for Kaplan to be removed from presiding over any aspect of the Ecuador litigation ever again. “Judge Kaplan has been hunting and hounding me and my family for ten years,” he said.
“The big picture is that this problem stems from an almost obsessive desire by Judge Kaplan to rescue Chevron from a legitimate foreign pollution judgment validated by multiple courts,“ he said. “Judge Kaplan’s attacks have caused pervasive ethics problems in the federal judiciary itself. The federal appeals court hopefully will act to protect my rights and those of my clients who continue to suffer because of Chevron’s pollution. I can say respectfully that I think the appeals court should think about how it might more effectively police its own courthouse to prevent this type of behavior in the future.”
The Ecuador judgment, affirmed by the highest court of the country, found Chevron deliberately abandoned 1,000 waste pits and dumped billions of gallons of toxic oil waste into the waterways of the rainforest when it operated in Ecuador under the Texac brand from 1964 to 1992. The pollution has decimated indigenous groups and caused an epidemic of cancer that has killed thousands of people, according to academic studies and local health workers. (See here for a summary of the evidence against Chevron.)