Lago Agrio: Payments to Guerra and Fajardo
Posted on November 10, 2017
Readers, for those of you who don’t follow the Lago Agrio case, I hope you’ll bear with me. I know I’ve had a lot of Chevron/Ecuador coverage the past week or two, but some new developments caught my eye, and I think they’re worthy of a post.
First is a letter from Steven Donziger, the US lawyer who represented the Lago Agrio plaintiffs, to the Department of Justice inviting the DOJ to investigate (and, presumably, prosecute) Chevron and its lawyers for “conspiracy … to engage in witness bribery, perjury and obstruction of justice.” The letter focuses on the testimony of Judge Guerra, and Chevron’s payments to Guerra. I’ve previously covered the Guerra issue (see this post on Guerra’s testimony in the Chevron/Ecuador treaty arbitration, this post on the quality of the evidence supposedly corroborating Guerra’s explosive testimony, and this post on the substance of Guerra’s testimony in the RICO trial; there are other posts you can find by searching for “Guerra”). I’ve also previously opined that the Guerra payments seem ethically problematic.
I think the letter is mostly a public relations exercise—Donziger released it publicly, along with a press release, after all. And the letter is similar to another letter to the DOJ dated June 19. But it does have one very interesting bit: Donziger writes that Chevron had taken the position that the Department of Justice had “pre-cleared” the payments to Guerra. He cites one of the ethics opinions Chevron offered to justify the payments, which says:
Chevron and its counsel have … disclosed the proposed arrangement to the United States Department of Justice, which responded to Chevron’s counsel that it is taking no position one way or the other on this proposed arrangement.
I don’t know that this counts as “pre-clearance,” assuming the ethics professor’s account accurately reflects what really happened. But if it is accurate, I think it does reflect the seriousness of the concerns Chevron had about the payments it planned to make. And rightly so. The payments, on their face, far exceeded what would ordinarily be considered the expenses connected with the testimony. But as I’ve also argued, I don’t really see what this gets the LAPs, as the payments were disclosed at the time of the RICO trial, as the judge made findings of fact about Guerra’s testimony, and as the Cabrera fraud was independent of Guerra. In other words, even if you discounted Guerra’s testimony, I don’t see that the outcome of the case changes.
The second odd development: it’s been reported that in 2013, Pablo Fajardo, the LAPs’ lead Ecuadoran lawyer, received payment from the Ecuadoran security service. What could this possibly mean? I have no idea. Perhaps it fits in with what I reported in August 2016 about Fajardo’s betrayal of Donziger to serve the purposes of the Ecuadoran state.