Lago Agrio: Supreme Court Denies Donziger’s Petition For Review of His Contempt Conviction.

Steven Donziger speaking to reporters
Steven Donziger. Credit: Zennie Abraham (CC-BY-ND)

The Supreme Court has denied Steven Donziger’s petition for a writ of certiorari to review his conviction for contempt of court. At least two justices, Justices Gorsuch and Kavanaugh, would have granted the petition, and Justice Gorsuch (joined by Justice Kavanaugh) published a dissent.

The criminal charges against Donziger, and his conviction after trial, stemmed from his refusal to obey the orders the district court made following its judgment in the RICO case that enjoined Donziger and others from seeking to enforce the Lago Agrio judgment in the United States. There was no real dispute about his factual guilt. Donziger had two challenges on appeal: first, he said that the district court abused its discretion by proceeding to charge him criminally when lesser means of obtaining his compliance with the injunction might have worked and where the purpose of the contempt was to obtain appellate review of the court’s orders. Second, and more importantly, he challenged the constitutionality of Rule 42 of the Federal Rules of Criminal Procedure, under which the district court had appointed a special prosecutor when the US Attorney declined to prosecute.

Although Donziger lost his appeal to the Second Circuit, the constitutional issue he raised was a serious one, as reflected in the Second Circuit dissent and in Justice Gorsuch’s dissent from the denial of cert. The politics here are really interesting. Donziger’s view on this is really a right-wing view, tied up in some ways with the kind highly formal mode of thinking about the Constitution that leads to rejection of typically left-wing efforts to delegate lawmaking authority to administrative agencies that are in the executive branch but not entirely beholden to the whims of the president. We don’t know what the justices who voted against cert. were thinking, but they might well have been thinking that this is a highly unusual case, that courts need to have a means not fully subject to the executive to vindicate their own interests in obtaining obedience to their orders, and that the current solution, embodied in an older Supreme Court decision, Young v. United States ex rel. Vuitton et Fils, that Justice Gorsuch seems to want to overrule, may be right in practice even though challenging to justify doctrinally. I wonder how many of Donziger’s opponents understand that it was the “left” view of separation of powers that prevailed today, or how many of Donziger’s supporters understand that it was the “right” view that lost out. I’m not going to reprint a bunch of tweets here, but judging from Twitter, the answer is: almost none of the people who care about the case of the indigenous Ecuadorans against Chevron for harm caused by pollution understand what was at issue on the appeal or its relationship to broader separation of powers disputes, nor do they seem to understand what the criminal contempt case was about in the first place.

Where does this leave Donziger? His direct appeals from his criminal conviction are now over. Should we stay tuned for a petition for a writ of error coram nobis? Time will tell. More likely, maybe, Donziger will turn his efforts to seeking a pardon from the President.

4 responses to “Lago Agrio: Supreme Court Denies Donziger’s Petition For Review of His Contempt Conviction.”

  1. Albéniz Couret Fuentes

    Hi Ted,

    Thanks for always keeping us up to date with your informative posts.

    I’ll just say that I’m skeptical about whether that sort of “left-right” categorization remains useful. Obviously, I can’t speak for Donzinger’s supporters (or his detractors), but I think that most people genuinely form their views on specific issues unconcerned about how these would be categorized based on what seems to me an outdated paradigm.


    1. Thanks for the comment! I think that views on the nondelegation doctrine and separation of powers really are left/right disagreements today, but I take your point.

  2. Mark Kantor

    Mr. Folkman,

    Pure speculation on my part, but I incline towards the idea that the great majority of Justices thought the Donziger prosecution was a one-off, therefore not justifying certiorari. Of course, the stern opinion by Justices Gorsuch/Kavanaugh might deter another judge from copying Judge Kaplan and the Second Circuit majority in the future if another situation of obstructive party conduct provoked that other judge to consider appointing a special prosecutor again.


    1. Thank you for the comment! I think that the unique nature of the case probably cut against a grant. But I also think the implications of the case for separation of powers doctrine generally made a grant a really hard sell for the liberal justices.

Leave a Reply

Your email address will not be published. Required fields are marked *

Thank you for commenting! By submitting a comment, you agree that we can retain your name, your email address, your IP address, and the text of your comment, in order to publish your name and comment on Letters Blogatory, to allow our antispam software to operate, and to ensure compliance with our rules against impersonating other commenters.