[Pnews] The Case of Steven Donziger: Supreme Court Liberals Help Turn Judges into Prosecutors

[Prisoner News]

counterpunch.org
<https://www.counterpunch.org/2023/04/14/the-case-of-steven-donziger-supreme-court-liberals-help-turn-judges-into-prosecutors/>
The Case of Steven Donziger: Supreme Court Liberals Help Turn Judges into
Prosecutors
Eve Ottenberg - April 14, 2023
------------------------------

Drawing by Nathaniel St. Clair

So the truth is out: the three so-called liberals on the supreme court are
phonies. More precisely, they, like most of their conservative brethren,
are corporate hacks. We learned this a couple of weeks ago, when the high
court ruled against Steven Donziger, a climate-activist attorney, long
persecuted and then literally prosecuted by Chevron. In a pro-corporate
decision about as subtle as a heart attack, seven of the nine justices
declined to hear Donziger’s appeal of a criminal contempt decision
involving his representation of Indigenous Ecuadorians against Chevron. Two
far-right justices dissented.

In the weeks since this ruling, when the highly questionable gifts of,
among other things, a luxury $500,000 vacation to their GOP colleague,
justice Clarence Thomas, burst into public view, the supreme court’s
*Donziger* fiasco shifted onto the back burner. There has been no comment,
no explanation, no hint that the three supposedly liberal justices believed
anything was amiss. No indication that the three Dem appointees recognized
that their ruling favoring partisan judges and corporate power is, in a
different way, as damaging to Americans as Thomas’s rather more gaudy
escapades with the very wealthy Nazi-memorabilia collector and real estate
mogul, Harlan Crow.

The two dissenters in Donziger’s case were the notable reactionaries, Neil
Gorsuch and Brett Kavanaugh, meaning the three supposed liberals wimped out
of something that was, really, a pretty clear litmus test for judicial
abuse of power and also for individual versus corporate rights: The U.S.
justice department had declined to prosecute Donziger, so the judge in his
case, Lewis Kaplan, appointed Chevron’s attorneys to prosecute him – how’s
that for judicial bias? By the way, Chevron’s gripe against Donziger? He
won a $9.5 billion judgement in 2011 against the company for oil pollution
in Lago Agrio, Ecuador decades earlier.

This was no minor pollution infraction, incidentally. Texaco, later bought
by Chevron, devastated this 1500-square miles of Ecuadorian forest in what
came to be known as “the Amazon Chernobyl,” from the 1960s to the 1990s.
This environmental catastrophe included 16 billion gallons of toxic
wastewater dumped into pristine rivers and roughly 1000 carcinogenic waste
pits. Indigenous people who drank, bathed and fished in this water suffered
massive outbreaks of cancer, including exotically rare ones, and they still
do. They also endure multitudes of miscarriages. Donziger sued Chevron on
their behalf and committed the supposedly unpardonable sin of winning.

The history continues its sorry course: Once Chevron started to lose the
case in Ecuador, a venue it had chosen in the mistaken belief that local
courts would be friendlier than those in the U.S., “they came back to the
United States where I live in New York and began to sue me in a civil legal
case…for $60 billion,” Donziger, who is not rich, told me in an interview
some months back. Chevron pursued him relentlessly, alleging fraud and
bribery on Donziger’s part. Donziger was also disbarred. Along the way,
Chevron bankrupted Donziger. Later, after an unprecedented order to
Donziger which the attorney refused in order to protect his clients, Kaplan
charged him with contempt. The message to any environmentally active lawyer
was clear: if you think you’ve won against a giant oil company, think
again, because we will destroy you.

 Donziger appealed his criminal contempt conviction from Kaplan to the high
court, arguing “that his prosecution violated his rights under the U.S.
constitution because private lawyers appointed by a federal judge handled
the case against him,” Reuters reported March 27, the day the supreme court
declined to consider Kaplan’s ruling. “Two members of the Supreme Court’s
6-3 conservative majority, Justices Neil Gorsuch and Brett Kavanaugh
dissented…” against the court’s refusal to consider Donziger’s case. And
when you have to turn to very far-right justices to uphold the constitution
as a shield against judicial abuse of individual rights, you’re in pretty
sad shape. But that’s where we are in the U.S., and those three “liberal”
judges are to blame. They could have swung the vote the other way, had they
so chosen.

According to Donziger, the oil company’s “preposterous legal attacks”
against him were facilitated by Kaplan, whom he describes as an activist, a
“U.S. federal judge who has investments in Chevron and is a pro-corporate
ideologue.” This judge charged Donziger with “criminal contempt of court
for appealing an unprecedented order that I turn over my confidential
communications [email accounts and electronic devices] to my adversary.
While this order was on appeal, Kaplan had me locked up in my home with an
ankle bracelet. His contempt charges were rejected by the regular federal
prosecutor. Kaplan then appointed a private Chevron law firm to prosecute
me.” In 2021, Donziger was sentenced to six months in jail for contempt.
That was the conviction he appealed to the supreme court. But again, thanks
to our so-called liberal justices, corporations can now prosecute Americans
for misdemeanor contempt – if the regular government prosecutor declines
the case. To a layperson, this looks like a gross betrayal of the
constitution and of every citizen’s basic rights. Of the high court’s
refusal to hear his case, Donziger says it is “a huge blow to the rule of
law.”

More specifically, declining to hear this case impacts power relations
between the executive branch and the judiciary. “Convicting someone of a
federal crime generally requires two branches of government – prosecutors
representing the executive branch and judges representing the judiciary –
to agree on the accused person’s guilt,” Common Dreams reported March 28.
“In Donziger’s case, the judiciary branch acted on its own to prosecute the
lawyer.”

The possibilities for abuse are legion. “Especially in an era where
litigants with an axe to grind can choose which judge will hear their
case,” wrote Ian Millhiser for Vox on March 28, “permitting the judiciary
to decide who to prosecute – and then to hear the very same cases brought
by its own court-appointed prosecutors – vests far too much power in
unelected judges. If courts have this authority, it is likely to be abused
by some of the most partisan judges in the country.”

Or, as Gorsuch dissented: “The prosecution in this case broke a basic
constitutional promise essential to our liberty.” Gorsuch, according to
Vox, “makes a strong case in his *Donziger* dissent that Congress has not
passed any law permitting court-appointed prosecutors to bring criminal
contempt proceedings.” Gorsuch also wrote: “The Constitution gives courts
the power to ‘serve as a neutral adjudicator in a criminal case’ not ‘the
power to prosecute crimes.’ Our constitution does not tolerate what
happened here.” No, it does not. But the three liberal justices sure do.
Just remember that the next time some ordinary citizen considers seeking
redress from the high court for judicial abuse. He or she won’t get it. The
so-called justices of the supreme court, including those who supposedly
lean left, simply hear and see no evil when it comes to powerful
corporations or biased judges.

Eve Ottenberg is a novelist and journalist. Her latest book is *Hope
Deferred**.* She can be reached at her website
<http://www.eveottenberg.com/>.
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