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.