‘Every Turn in This Case Has Been Another Brick Wall, and Behind It Is Chevron’

Janine Jackson interviewed Amazon Watch’s Paul Paz y Miño about Chevron vs. Steven Donziger for the October 22, 2021, episode of CounterSpin. This is a lightly edited transcript.

CounterSpin211022PazyMino.mp3

CounterSpin (5/5/17)

Janine Jackson: I will introduce our guest essentially the same way I did in May 2017: When we talk about environmental justice, the emphasis is usually on the first word. That might be what comes to mind when you think about Chevron, formerly Texaco, dumping some 16 billion gallons of toxic oil waste into the land and water of Indigenous and farmer communities in Ecuador.

But when, having poisoned those communities, Chevron refuses to clean it up, and instead embarks on a decades-long effort to intimidate and silence anyone who tries to call attention to the disaster they created and profited from—well, then, it’s clear that it’s a story about justice, as well as years of cross-national organizing and solidarity.

That was the upshot then, and it still is today. But the story, emblematic as it was to start, has taken meaningfully wild turns, revealing new lengths and depths that corporate polluters—and can we just call them nature- and humanity-destroyers at this point?—will go to to silence and neutralize opposition.

There are a handful of companies responsible for the majority of damage being done. What happens to anyone who comes up against them has impact well beyond the individual case.

So if you don’t know the name Steven Donziger, you should. Because it could be your name tomorrow, should you choose to seriously confront climate- and community-harming corporations, and have the audacity to actually win. Chevron and their enablers’ actions against Donziger indicate they will stop at nothing to make clear that anyone who thinks of challenging them will face all the wrath their lawyers can cook up, and their bottomless pockets can bankroll.

That ought to interest a press corps based on free speech. So the crickets you hear are cause for another kind of questioning.

Here with the latest on Steven Donziger and Chevron in Ecuador is Paul Paz y Miño. He’s associate director at Amazon Watch, and he joins us now by phone. Welcome back to CounterSpin, Paul Paz y Miño.

Paul Paz y Miño: Thank you. And by the way, that was a really great introduction. I think you hit so many things perfectly in that. So thank you for that.

Intercept (1/29/20)

JJ: There’s so much to this story. And that’s why I want to first refer folks to Amazon Watch, to FAIR.org, and to the Intercept‘s Sharon Lerner and Andrew Fishman’s reporting on this, to fill in details that we might not get to address here. It’s a story with a number of interesting and important problems.

But I don’t want people to think it’s a complex, purely legal dispute. The meaning here is the bigger picture, isn’t it, about how super-powerful corporations like Chevron will use every tool at hand to come at people who successfully challenge them in defense of the human beings and the environment that they—not to put too fine a point on it—are in the business of harming.

PPM: Yeah, absolutely. The actual underlying legal issues, the reason that Chevron is in this position, are pretty cut and dried. They actually don’t dispute them. Chevron, as you mentioned, deliberately dumped billions of gallons of toxic waste over the course of decades into the Ecuadorian Amazon, and they fully admit that they did that. They even admit that they did it as a cost-saving measure. What they deny is that they should be the ones to pay to clean it up.

And, as you also pointed out, what happens when someone takes them to court on it and wins is they don’t respect the law. They don’t acknowledge defeat. They don’t accept responsibility. They turn their sights on the individuals, and they try to silence them. If they can’t silence them, they sue them and they, at this point, literally criminalize them.

What’s shocking about this is not that an oil company like Chevron would do this, right? Because any company that would deliberately poison the drinking water of 30,000 people, and destroy the lives of Indigenous communities, of course they would stoop to these types of lengths.

What’s shocking is they’re aided and abetted by the US legal system, that their lawyers have successfully suppressed the story from being told in places like the New York Times and on CNN, and that they’ve thumbed their nose at the entire international community, and are literally days away from throwing this lawyer in jail, because he was the one who beat them in court.

And what does that say for the climate justice movement, and the ability for a civil society to challenge the actions of the fossil fuel industry, if when someone wins, they’re going to be attacked, they’re going to be destroyed?

You can protest. You can even get arrested. You can have a petition, etc. But when you actually hold their feet to the fire and make something happen, they pull everything they can out of the closet to silence and suppress you. And every turn in this case has been another brick wall, and behind it is Chevron or their lawyers.

JJ: Let’s start in the present. What is Steven Donziger—he’s been in near-unprecedented pretrial house arrest since August of 2019, with an ankle monitor. What is he now going to jail for? Maybe we can start there.

PPM: The context of this is that Chevron issued a SLAPP suit—a Strategic Lawsuit Against Public Participation, for those who don’t know. They issued a SLAPP suit, a RICO suit, which is a law created to go after the mob, alleging that Donziger and others were part of a conspiracy. By the way, Amazon Watch is one of the non-party co-conspirators.

JJ: Right.

PPM: They won that. They won that based on a bribed witness who later recanted his testimony. But none of that was considered by the appeals court. So as far as the US judicial system goes, Donziger lost a civil case for fraud.

Then he continued to seek enforcement of the Ecuadorian judgment outside the United States, and Chevron didn’t want that. So their lawyers, Gibson, Dunn & Crutcher, went back to the same judge, the one who had allowed those outrageously unfair proceedings and denied a jury, and said they wanted contempt of court charges to be brought up against Donziger, to force him to turn over his privileged information to them, so they could see who he was working with to continue to seek enforcement of the Ecuadorian judgment.

Judge Lewis Kaplan

Donziger refused to do that. He told the judge that he was going into what he called voluntary contempt to seek a review by a higher court. Then this Judge Kaplan—I can say from personal experience, this is a very personal vendetta that Kaplan has against Donziger—he did not like that. So he decided he wanted to file criminal contempt of court charges in a civil case to go after Donziger, because he wanted to punish him for not doing what he told him to do, even though he was appealing it.

He went to the Southern District of New York, he went to the federal prosecutors’ office, he asked them to file charges. They declined. Twice. They told him it was because they didn’t have sufficient resources, even though this is probably the most well-funded federal prosecutors’ office in the entire United States. So obviously that was just an excuse.

Then he employed this absurd rule that allows a federal judge to appoint a private prosecutor to act on behalf of the state to bring criminal contempt of court charges. And he found a Chevron firm, Seward & Kissel, that had had Chevron as a client as recently as 2018. So there’s a clear conflict of interest there. He shouldn’t have appointed him in the first place, and he shouldn’t have been able to, because of this conflict of interest.

But when you also pick the judge who oversees the contempt of court charge, which Kaplan did—his friend Loretta Preska—then you can get away with appointing a prosecutor who has a conflict of interest.

This Judge Preska is the one who said Donziger needed to be on house arrest, saying that he was a flight risk, despite the fact that he’s been fighting Chevron his entire professional career, lives in New York in an apartment with his wife and teenage son, and came back to the United States in order to fight this from Canada. So it’s absurd on its face to say that he was a flight risk. But, again, just like appointing a prosecutor with a conflict, the house arrest was about punishing.

So he’s now served two years, I believe two years and going on three months. No other lawyer has ever been held on contempt of court charges. He was held most of it pretrial.

Judge Loretta Preska

And then he was convicted. He was convicted and sentenced to the maximum six months. On October 1, Judge Preska said she thought that in order for him to respect the law, that he needed to be “hit between the eyes with the proverbial two-by-four,” and sentenced him to six months in jail, despite the fact that he’d already served for over two years on house arrest, saying that his house arrest didn’t count towards his time served.

And this came the same week that the UN Working Group on Arbitrary Detention issued a decision saying that his detention was a human rights violation, he needed to be released immediately and compensated, and then these judges who were flagrantly biased should be investigated. And Preska’s response was, “I take that for what it’s worth.” And then she completely dismissed it, and ignored it as if it didn’t exist.

Not only did she sentence him to six months, she denied him bail while he appeals the conviction for six months. So Donziger on October 1 was given one week to file an expedited appeal of the denial of bail, which he has done. And then the prosecutor, again, private law firm Seward & Kissel, they responded a week later. And anytime after next Tuesday, the Second Circuit Court of Appeals can decide whether or not to grant his appeal that he should be given bail while he appeals the conviction for criminal contempt of court.

But Preska, to add another insult to injury, issued an order before this, saying Donziger has 24 hours to report to prison once that decision comes down from the Second Circuit. And the only place that he can go immediately would be a detention center in Brooklyn, which is for people who have been convicted of serious crimes and violent crimes. This is a Class B misdemeanor.

JJ: Right.

PPM: She wants to throw him into the darkest, deepest hole that she can find for someone who’s sentenced to a six-month sentence. It looks like that’s what may actually happen, which is shocking. It’s never happened before. Not even close to anything like this has ever happened before in the US judicial system.

JJ: As Sharon Lerner at the Intercept reported, a Chevron PR consultant declared in 2000 that the strategy is to “demonize” Donziger.

PPM: Yes.

JJ: In other words, it’s a daylight robbery: They telegraphed what they were trying to do, and they’re doing it. As you say, the enablers of the judicial system just throw up all kinds of other questions that we ought to be asking.

PPM: Yes. And some of the people asking those questions are actually in the government. So six members of Congress wrote to the attorney general just after he was appointed, Merrick Garland, and asked for some answers and an investigation, to simply have the Justice Department investigate the circumstances that would allow, essentially, a corporate prosecution. A corporation, a private law firm appointed by a judge, a judge who brings the charges, picks the judge, oversees the process—

JJ: Which is already weird.

PPM: Exactly. I mean, try explaining that to a civics class in high school anywhere in the US. Here’s how our judicial system works: If you piss off a judge, he can bring charges, hire the prosecutor, pick the judge who’s going to prosecute you, and lock you up while you wait to be tried, and deny you a jury at every stage. It flies in the face of the entire idea of our judicial system.

So these members of Congress asked that question. What’s happening here? Give us a response. Nothing. They got nothing from Garland.

Less than a week after this CounterSpin interview aired, the New York Times (10/27/21) broke its multi-year silence and ran a piece on Donziger’s imprisonment.

And then two senators on the Judiciary Committee, [Rhode Island’s Sheldon] Whitehouse and [Massachusetts’ Edward] Markey, wrote to the Administrative Office of US Courts, asking similar questions about the process allowing Judge Kaplan to do this, and why the judge was able to violate the rules of the Southern District of New York. Because it’s convenient to bring them up when they hurt Donziger, but when they work in their favor, they’re happy to break the rules by picking judges. They’re supposed to be assigned randomly.

Again, they’ve gotten no response. So what emboldens these institutions to ignore—or what is scaring them?

Now one thing that you alluded to about the coverage of it is another question that, I think, tells a lot about what the situation is here. The New York Times is mere blocks away from Donziger’s apartment. It has written not a word about this in over two years. They will not cover this story. And when a reporter researched and spent months working on a story about this for the New York Times Magazine, took it to the Times, they rejected the story, told him to stop working on it.

Turns out that the First Amendment lawyer who works for the New York Times is Ted Boutrous of Gibson, Dunn & Crutcher, the same law firm that has waged this legal attack against Donziger.

And it’s the same thing with CNN. He also works with CNN. They have not talked about the story. It’s only because of places like the Intercept, The Nation, Democracy Now!, of course now here at FAIR media watch, that people are getting to learn about this, and it’s breaking through.

So next Wednesday, we’re having a press conference at the Capitol. Congressman Chuy Garcia from Chicago, Congressman [Jim] McGovern, who went to Ecuador and saw the damage firsthand years ago with Donziger, will be there with Amnesty International, Amazon Watch and others to demand that Biden respond to the United Nations and Garland and release Donziger, which they have the legal authority to do at any point.

Bloomberg (10/1/21)

JJ: Let’s talk about media. It took the top of my head off when I read this Bloomberg story that was headlined, “TikTok Hero and Chevron Foe Donziger Gets Six Months in Jail.”

PPM: Yeah.

JJ: This is a Bloomberg story that then said “he won an environmental award against Chevron, but the award was scrapped.”

PPM: Right.

JJ: But Donziger still has “loyal supporters,” and they say that “the award was scrapped and Donziger was ruled to have won it through fraud and bribery. But he has remained a hero to many environmental activists.” So to the extent that people are hearing about it, they’re hearing, like, “Donziger’s a freak—”

PPM: Mmhm.

JJ: “—and he did this thing, but it was weird and he won it unfairly. And yet, folks like Roger Waters are still backing him.” The way media are setting it up is important.

PPM: Yeah, absolutely. Actually, I wrote a blog about this, specifically with those kinds of things in mind, for Amazon Watch, because again and again, I was looking at the reporting of this story. When a reporter says that it was determined to be fraud, that reporter is listening to one former tobacco industry lawyer turned judge, Lewis Kaplan, and ignoring 18 appellate judges in Ecuador and Canada, who all determined that the judgment was valid, and enforcement could be sought. And they actually looked at the facts. So if you want to tick off the list of racism in the telling of this story, it sits right in front of you there.

JJ: Right.

PPM: Why do the judges who actually looked at Chevron’s allegations and dismissed them as fraudulent, and upheld the Ecuadorian judgment, get not a line? But it’s now fraud, because this one judge who, by the way, accepted testimony from a bribed witness, who admitted that he lied, but he is held up as the final word about the Ecuadorian judgment.

Of course, all it really means is that the judgment is not enforceable in the United States. It doesn’t mean anything outside of that. And it’s true that, as of now, it can’t be enforced in the US. But that doesn’t mean Australia, Canada, pick your country where Chevron operates, all of those places, this is a valid judgment, and the Ecuadorians can seek enforcement, which is what Chevron wants Donziger to stop trying to do.

Because they won their RICO case. They won the case here, which you would have thought, all right, it’s over, right? They got what they wanted. They wanted a US judge to say that they didn’t have to pay. He said that.

Even though the judge, by the way, also said that his RICO decision makes no determination about whether or not Chevron did anything in the Ecuadorian Amazon, or is liable for it. It simply said, in his view, that the judgment was procured by fraud. But anywhere else in the world, it said, you are free to seek enforcement.

But when Donziger kept doing that, that scared Chevron. Because as soon as someone independent looks at the details of this case, they see that it is an open-and-shut case, and Chevron is liable and should pay to clean up.

And so that’s why there’s been so much pressure to vilify Donziger, to make the story that any reporter covers, well, this guy’s a fraud. Maybe what happened in Ecuador was bad, but this guy was a fraud.

False. That’s the smear campaign that allows Chevron to get away. And that’s why it’s taken so long to get members of Congress, Amnesty, the UN, etc., to look at this case and get back involved.

And that’s where it’s backfired on Chevron, because [Rep.] Rashida Tlaib in April said, and this is really important, in the press release for their letter, she said, “Indigenous Amazon communities [have] won one of the most important class action lawsuits ever.” And ever since, Chevron has sought to use its money and power to illegitimately nullify this result. So here’s a member of Congress that is completely dismissing and seeing Chevron’s retaliatory RICO suit for what it is, an illegitimate effort to nullify the result. Not actually holding up justice and the rule of law in the United States, but averting it.

FAIR.org (7/2/21)

JJ: As James Baratta reported for FAIR.org, the Times, as you mentioned, which did cover Chevron in Ecuador years ago—

PPM: Mmhm.

JJ: Now they’ve dropped it like a hot rock, and their last piece described Donziger as a “rogue lawyer willing to do anything to win,” which, paging Dr. Freud about Chevron. But when folks pointed out that billionaire Robert Denham is on the board of Chevron and at the Times, a Times representative said it’s “absurd” to suggest that outside legal counsel would have any influence on what editors decide to cover.

PPM: Uh-huh.

JJ: OK, but you know what? This is a freaking meaningful case, and you’re the paper of record, and you’re silent on it. Also, let me add, folks listening who don’t know a lot might be thinking, well, he must’ve done something wrong. Where there’s smoke, there’s fire, you know?

PPM: Right, right.

JJ: But Chevron is also going after, and you alluded to this, non-party co-conspirators as well.

PPM: Mmhm.

JJ: So folks need to care about this. Even if they don’t care about Steven Donziger, they need to care about this.

Paul Paz y Miño: “It’s the playbook for these corporations to fight back against activists, journalists, lawyers, human rights organizations.”

PPM: Yeah, absolutely. It’s the playbook for these corporations to fight back against activists, journalists, lawyers, human rights organizations. And Chevron, and Gibson Dunn specifically, are paving the way and very proud of it; they’re making a fortune. Gibson Dunn has built its entire reputation on helping corporations avoid foreign judgments, and turning back and targeting the people who are working to look for justice in that case. And that’s actually why Law Students for Climate Accountability started a #DoneWithDunn, #BoycottGibsonDunn campaign—

JJ: Right.

PPM: —telling law students across the country, don’t work there. This is what they’re about. We all know they’re on the wrong side of history.

First of all, we need to end the fossil fuel age. In fact, it is ending. But they’re not going down without a fight. They’re going to try to take as many of us with them as we can. But these lawyers who are helping to do that, in the face of so much support….

I’ve got to tell you, you go to the shareholder meeting, which I go to every year at Chevron, and you talk to them about what’s really happened. And you say, look, we all know you did this. You know you did this. You have plenty of money, billions of dollars in profit. You can spare what’s needed to help the people that were poisoned, and clean this up.

And their response to everyone who says anything about this is, what a shame that these greedy New York lawyers have duped you into believing the myth that we should be the ones to pay to clean up. The only point that they can come back with is, this is all Donziger’s fault. He is the evil genius who has been able to organize the whole world, the human rights community, Nobel Peace Prize winners, members of Congress, senators—

JJ: The UN.

PPM: The UN. They’re all supposedly duped by this one nefarious lawyer, who managed to pull the wool over their eyes? Versus the oil company that admitted to creating the worst oil-related disaster in the history of the world, for a profit. And they’ve managed to get it to the point, like you’re saying, where people are like, well, he must have done something wrong.

And, like I said, it’s backfiring on them, because there’s never been more support for Donziger and for the Ecuadorians than there is today, because of what they’ve done to him.

JJ: Let me just ask you, finally, in a positive, forward-looking way, folks are going to hear this. They’re going to be outraged. What do they do?

PPM: OK. There’s a bunch of things. First, if they own Chevron stock, which I hope they don’t, but if they do, they should vote for the resolutions that are going to come up during the next shareholder meeting. Because there are some about Donziger and the Ecuadorians that are put forth every year, and they get billions in dollars of assets under management to vote for them, but we need more.

They should write to their member of Congress, and demand that the US government acknowledge the United Nations decision that Donziger should be released. They should ask them to respond to why Chevron is given leeway to control the courts. And who is going to investigate them? We need hearings. We need hearings from the Judiciary Committee on the House and the Senate side.

And ironically, we found that—well, I guess not ironically—Jerry Nadler, Donziger’s representative in Congress, who is the chair of the Judiciary Committee, has refused to even pick up the phone for over two years. And then we found out his son is a partner at Gibson, Dunn & Crutcher. So once again, there’s that brick wall that I talked about. We need that to be exposed. In fact, the Intercept, one of the articles that you mentioned, writes about that. [Sen. Kirsten] Gillibrand, same thing, takes a lot of money from the same law firm. So these things need to be exposed. People need to take action, and say they’re not going to accept that anymore.

And, right now, we’re asking people to call Merrick Garland. So if you go to FreeDonziger.com, the phone number is there. There’s a script, too, but basically we want the Justice Department to step in and tell the federal prosecutor to drop the charges before Donziger is sent to prison.

JJ: We’ve been speaking with Paul Paz y Miño, associate director of Amazon Watch. They’re online at AmazonWatch.org. I hope you look up all the websites and opportunities to act that we’ve discussed during this show. Thank you so much, Paul Paz y Miño.

PPM: Thank you.

The post ‘Every Turn in This Case Has Been Another Brick Wall, and Behind It Is Chevron’ appeared first on FAIR.

This content originally appeared on FAIR and was authored by Janine Jackson.

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