The Second Circuit yesterday denies Steven Donziger’s motion for bail pending his appeal from his conviction on charges of criminal contempt of court, and as a result, today Donziger must report to the marshal’s office to begin serving his six-month sentence. The Second Circuit did order an extraordinarily speedy schedule for the appeal, so it is possible Donziger may get a decision before he finishes serving the sentence. I spent some time seeing what Twitter had to say about the case, and as you might guess, the great majority of people commenting about the case seem deeply uninformed. I thought I would make a short list of questions and answers to try to help people understand what’s happening.
- Did Donziger win a big case against Chevron in Ecuador? Yes, Donziger was the US lawyer for Ecuadoran plaintiffs who prevailed in a lawsuit in the Ecuadoran courts that resulted in a multi-billion dollar judgment. However, a US court found that he obtained the judgment by fraud and enjoined him and his clients from seeking to enforce it in the United States. (The US case about whether the Ecuadoran judgment was obtained by fraud is called the “RICO case”). Efforts to enforce the judgment in Argentina, Brazil, and Canada have also been unsuccessful. An international arbitral tribunal, established under a treaty between the United States and Ecuador, has also ruled that Ecuador has an obligation under international law to suspend the effectiveness of the Ecuadoran judgment. The Lago Agrio plaintiffs have received nothing, and to the best of my knowledge, there are no proceedings underway anywhere in the world to enforce the judgment.
- Have non-US judges held that the Ecuadoran judgment is enforceable? Yes, judges in Ecuador have held that the judgment is enforceable. Donziger claims, incorrectly, that judges in Canada have also held the judgment is enforceable. In fact, the Canadian courts held that the Canadian courts had jurisdiction to hear the Ecuadorians’ claims that the judgment should be enforced in Canada, but they never held that the judgment was entitled to enforcement, and in the end, the case did not go forward because the Canadian courts decided that the Ecuadorians would not be able to look to the assets of Chevron’s subsidiary in Canada to satisfy the judgment, even if they won the case.
- Is Donziger being punished because he won a big case against Chevron in Ecuador? No, Donziger is being punished for willful disobedience of US court orders issued after he lost the RICO case, for example, an order forbidding him from monetizing his own financial interest in the Ecuadoran case, an order requiring him to assign interests in that judgment to Chevron, and an order requiring him to turn over documents to Chevron after unsuccessfully arguing that he should not be required to turn them over. There is really no question that he violated the court’s orders. The court tried to get him to comply using civil sanctions, but Donziger still has not complied with some of the court’s orders. Under the “collateral bar rule,” you have to obey a court order, even if it later turns out to be erroneous or invalid, unless you obtain a stay of the order while you appeal it, and Donziger did not obtain a stay. The collateral bar rule was the same rule that led to Martin Luther King’s imprisonment after he disobeyed a court order forbidding a demonstration, even though the order was unconstitutional under the First Amendment.
- Was the US court’s finding of fraud based on the testimony of an admitted liar? Yes, in part. One of the court’s findings was that the Ecuadoran judgment was ghostwritten and that Donziger and his clients had bribed the judge. That finding was based in large part on the testimony of Judge Guerra, an Ecuadoran judge. In later proceedings, Judge Guerra admitted that he had lied to Chevron about the amount of the bribe he had been offered. An international arbitral tribunal, which was aware of the lie, nevertheless credited the main parts of Guerra’s testimony. And Donziger never appealed from the US judge’s findings of fact. Nor did he ever seek to reopen the judgment after Guerra admitted he had lied to Chevron. In any case, the US judgment was not based only on Judge Guerra’s claims of bribery and corruption, but also, for example, on the undisputed fact that Donziger’s team ghostwrote the report of a supposedly independent expert, Richard Cabrera, on which the Ecuadoran court’s findings about the pollution were based. Donziger claimed, unsuccessfully, that Ecuadoran law allowed for the ghostwriting.
- Did Chevron prosecute Donziger? No. Judge Kaplan, the judge who began the criminal contempt proceeding, asked the US attorney to prosecute the case, but the US attorney declined. In these circumstances, the Federal Rules of Criminal Procedure required the judge to appoint a private prosecutor. In light of recent Supreme Court decisions, there is a real question about whether the rule requiring the use of private prosecutors is constitutional; conservative legal scholars have been arguing that it is unconstitutional for any official to exercise executive power unless he or she is subject to oversight within the executive branch, and Donziger has argued that the private prosecutor in his case was not subject to the oversight of the Justice Department. I predict that if his appeal is successful, this will be the winning argument.
- Did the United Nations rule that Donziger had to be immediately released? No. The Working Group on Arbitrary Detention, which was established by the Human Rights Commission, is an advisory group made up of scholars. Based on a written submission by Amnesty International, which was, in my opinion, a pretty misleading statement of the case, and without any presentation of the other side of the story, the Working Group opined that Donziger’s home confinement was contrary to the Universal Declaration of Human Rights and the ICCPR. Its opinion has no legal force.
- Is a six-month prison sentence harsh? I think so. If I had been the judge, I would have taken into account the length of the pretrial release on conditions and also the fact of Donziger’s disbarment. On the other hand, Donziger’s disobedience to the court’s orders was flagrant and lasted for years, and so the judge may have felt the need for a harsh sentence to vindicate the importance of the rule of law.