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.
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.
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.
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