I helped Indigenous peoples beat Chevron in court and they put me on house arrest. It didn't work.
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Calling all Iconoclasts, Earth Defenders, and Water Protectors
Many of you know me as the US lawyer who has spent much of the last 28 years fighting Chevron and the fossil industry on behalf of Indigenous peoples over the destruction of the Amazon and our larger planet. In 2011, our team of Indigenous leaders and lawyers won an epic $9.5 billion environmental legal case against Chevron in Ecuador. It has been affirmed for enforcement purposes by multiple appellate courts, including the Supreme Courts of Ecuador and Canada. Never before have Indigenous peoples vanquished a major oil company to this degree. It should be this way: evidence proved Chevron deliberately dumped 16 billion gallons of cancer-causing oil waste into the rainforest, causing a massive health crisis, escalating rates of childhood leukemia, and thousands of deaths.
But then things got really bizarre. Chevron simply could not take the truth.
Chevron had accepted jurisdiction in Ecuador and insisted the trial be held in the country where it dumped toxic waste for decades with legal impunity. The company had filed 14 sworn affidavits in U.S. federal court (where our case was originally filed) attesting to the fairness of Ecuador’s courts in an effort to move the matter to a jurisdiction where it thought it could engineer a politically-motivated dismissal. Things quickly changed when the trial began in 2003 and we started to submit thousands of soil and water samples from company drilling sites that showed elevated and even life-threatening levels of toxins. Chevron’s lawyers then shifted gears and began to attack the very courts they had once praised. The company was found guilty based on 220,000 pages of record evidence and 64,000 chemical sampling results that proved extensive soil and water contamination at hundreds of well sites. Scientific consultant Douglas Beltman, who worked for the Indigenous communities as an expert, told 60 Minutes: “Chevron used Ecuador’s rainforest as a trash heap.”
The Kill Step
To retaliate for its stunning loss at trial in the venue of its choosing, Chevron began to target the lawyers in what its law firm Gibson Dunn & Crutcher called the “kill step”. An email in 2009 from a company official put it clearly: “our L-T strategy is to demonize Donziger.” The “kill step” is a mechanism used by a law firm on behalf of a scandal-ridden corporation to accuse its adversary lawyers of “fraud” with the goal of driving them off the case, leaving their clients defenseless. It’s the way a corporation abuses the legal process to win by might what it cannot win on merit. Chevron steered the case to a federal judge in Manhattan, Lewis Kaplan. Kaplan is a former tobacco industry lawyer who maintained hidden investments in Chevron via various mutual funds which we discovered by digging into his financial disclosure forms. He still refused to recuse himself.
In my view, Chevron and Judge Kaplan coordinated to charge with me criminal contempt of court and lock me up for almost three years at home and in prison after an unprecedented criminal prosecution by a private Chevron law firm. Chevron and Kaplan claimed I committed a “crime” by appealing a civil discovery order that I turn over my computer and cell phone to Chevron; these devices contained reams of confidential attorney-client protected communication that I was ethically obligated to protect. Such an order violating the attorney-client privilege in a civil discovery context was unprecedented; lawyers in rule-of-law countries do not share their confidential case files with opposing counsel. It was a subterfuge designed by Chevron and Kaplan to force me to choose between complying with my ethical duties to my clients or complying with a court order under threat of contempt. I am the first lawyer in US history ever charged with a crime for appealing a civil discovery order. The case seemed orchestrated to retaliate against me for helping win the pollution judgement against Chevron in Ecuador; the federal prosecutor in New York refused to accept Kaplan’s charges.
It then got really dark. Rather than accept the federal prosecutor’s decision, Kaplan appointed a private law firm to prosecute me in the name of the government. Kaplan did not disclose that the law firm (Seward & Kissel) had represented Chevron and had close ties with the oil and gas industry, a flagrant conflict of interest. The private Chevron prosecutor from the Seward firm, Rita Glavin, immediately had me locked up pre-trial on a petty misdemeanor as a supposed “risk of flight” even though no lawyer in US history ever had spent even one day behind bars for my supposed crime or one day detained pre-trial. In fact, the longest sentence ever meted out to a lawyer convicted of my offense was 90 days of home confinement. (I have now “served” over ten times that amount.)
It was clear Glavin and her colleagues at the Seward firm, including Brian Maloney and Sareen Armani, were working for Chevron even though they filed their legal briefs claiming they were working for the same government that had rejected the charges. They clearly were not disinterested prosecutors as required by law. This trio also billed taxpayers more than $1 million to prosecute me privately while simultaneously Chevron’s “kill step” law firm Gibson Dunn funneled millions of dollars into the case by meeting with Glavin and her team on numerous occasions to help them prepare my supposed “prosecution” in a non-jury trial presided over by second judge appointed by Kaplan who also had ties to Chevron. All the main witnesses against me in that non-jury contempt trial were Chevron lawyers from the Gibson Dunn firm called to the stand by Chevron lawyer Glavin from the Seward firm.
This was a corporate prosecution designed by Chevron from start to finish — a frightening and unprecedented development that is antithetical to our democracy. Chevron actually deprived its main adversary and critic of his liberty without due process of law and without any prosecutorial check by the Department of Justice on its power. I believe this is part of a new playbook by the fossil fuel industry to use private prosecutions to target lawyers and activists who successfully challenge the industry’s largest polluters.
What happened to me was a show trial that even Stalin could not have choreographed better. Chevron’s and Kaplan’s problem was that it was too obvious.
Undermining our democracy
Kaplan had appointed a close colleague to preside over the contempt case but he refused to recuse himself; he clearly was operating from behind the scenes to help the front judge with her opinions and strategies. He effectively was the prosecutor, judge, and jury in the same case. He then had me “convicted” without a jury after the presiding judge ruled I could not present my core defense. That was after she had forced me to spend 813 days locked up at home with an ankle bracelet awaiting trial for a “crime” where the maximum possible sentence was 180 days in prison. After my “conviction” I was still sentenced to the maximum term of 6 months in prison even though I had served over four times that amount already at home; the judge ruled my “time served” at home could not count toward my sentence, itself a violation of international law according to five jurists from the United Nations who ruled the US government should release me and pay me compensation.
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The targeting of me is at core about Chevron’s efforts to to silence my advocacy and use me as a weapon to try to intimidate other lawyers who might challenge the company. Chevron lawyers manipulated the legal system to detain me for almost three years as a form of retaliation in a case the United Nations ruled was the product of a “staggering” and “appalling” level of judicial bias. The company also orchestrated the removal of my law license without a hearing, effectively depriving me of my ability to earn a living at my profession; it used a secret court order to take money out of my bank accounts to reimburse it for “court costs” used to persecute me before Judge Kaplan; and, it sent harassing subpoenas to my family members and subjected my wife to multiple depositions where the Gibson Dunn lawyers tried to treat her as a criminal. Chevron also paid Kroll, a corporate investigations firm, to spy on the comings and goings of me, members of my family, and work colleagues both in Manhattan and in Ecuador. Through it all, I never stopped speaking the truth to Chevron’s power.
While Chevron tried to silence me, I was able to build tremendous support from around the world. There is little doubt Chevron has failed and I have emerged from the experience even stronger. Now it is time for all of us to come together to build our movement for environmental justice to the highest possible level so we can force Chevron to pay the money it owes to the people of Ecuador — and so we can take on broader issues of human rights violations and environmental crimes that will put us in a much stronger position to save the planet. Chevron is just one obstacle to justice. The fossil fuel industry as a whole is a huge obstacle if we want our species and precious ecosystem to survive.
The power of community to fight back
What Chevron did to the people of Ecuador might be the worst act of environmental criminality in world history. The company admitted to the dumping of 16 billion gallons of cancer-causing water of production into streams and rivers used for drinking water, bathing, and fishing. But something remarkable has happened during its attempt to silence me: the world responded with great conviction to protect and amplify the voices of the affected communities and the well-being of me and my family. More than 60 Nobel laureates have demanded Chevron stop harassing me. Eleven Congresspersons have demanded Attorney General Garland take back the private prosecution from Chevron and release me. More than 100 prominent NGOs led by Amnesty International and Amazon Watch have demanded President Biden pardon me.
Thousands of lawyers around the world also have rallied to the cause, including 200 who signed a letter demanding Judge Kaplan be investigated for misconduct. Hundreds of supporters have turned into thousands and thousands into millions of people reading my updates on social media and demanding justice for the Indigenous people Chevron poisoned in the Amazon. Chevron’s strategy to demonize our team did not work; Gibson Dunn’s “kill step” ended up strengthening me and the communities while forever tarnishing the reputation of Chevron. The campaign to silence me brought in legions of people who otherwise would never have heard of the case. Our team is now louder and more effective than I ever could have been alone. I learned the value of community free from the shackles of corporate control.
I want to create that community here on Substack not only to speak about the Ecuador case and the corporate-created atrocity that it represents but also to more broadly address human rights and climate issues around the world.
Your subscription will support my writing, journalism, commentary and advocacy as a human rights lawyer and Earth Defender whose mission is to help Indigenous peoples in the Amazon and to hold the fossil fuel industry accountable for its planet-eating practices. My goal is to use this space to build possibilities for everyone — lawyers, activists, and concerned citizens — to learn and act to help save our world from crisis.
This endeavor also will allow me to return to my roots as a journalist – a profession I practiced full-time prior to becoming a lawyer. For years I covered wars in Central America, including in Nicaragua, El Salvador, and Guatemala. I first served as the UPI correspondent in Nicaragua and then began a free-lance career where I wrote for several North American papers, including the Toronto Star, Philadelphia Inquirer, and Christian Science Monitor. I have witnessed the aftermath of atrocious human rights crimes committed by US-funded forces in Nicaragua and El Salvador. I have been caught in crossfire and attacked by US weapons on more than one occasion. I love journalism and I can’t wait to begin writing in this space on regular basis. This is my first post in creating content, commentary, and news that is free from corporate censorship and the narrowing of discourse in the major media in the US. I am so honored to have you by my side as we embark on this exciting journey.
Part of what drives me is a desire to create space for perspectives that are largely ignored by large media companies with their myriad conflicts of interest. For example, the New York Times frequently covers stories about the governmental persecution of human rights lawyers in other countries (Turkey, Saudi Arabia, Russia, China) but has ignored the persecution of a lawyer in Manhattan just a few blocks from company headquarters. It turns out that the main law firm for the New York Times on media issues is Gibson Dunn & Crutcher – the same “kill step” law firm used by Chevron to target me with retaliation after defeating the company in court over the Ecuador pollution. In fact, Attorney Ted Boutrous of Gibson Dunn both represents the New York Times on media issues while trying to destroy my life on behalf of Chevron, work for which he bills $1,200 per hour. In February 2020, the paper assigned a major story on me to a well-known writer for the magazine. This reporter began his research and spent hours interviewing me. Two weeks later, he called to say the story had been killed. We have seen this time and time again over the years from major media companies. More of Chevron’s bullying and silencing.
No matter what Chevron and the U.S. judiciary throw at me, I will not turn my back on my clients in Ecuador nor on the larger battle for human rights and judicial accountability around the world. My background in law, human rights, journalism, climate, and frontline litigation provides a broad perspective that will inform my point of view. My role is to provide information and perspective connected to empowerment and action for all people. I am convinced our side has the power to prevail: you can make a difference. Please subscribe and support my work.
What you will get
Free subscribers will get access to a weekly newsletter or post and periodic podcasts where I will talk to leading climate thinkers and Frontline Earth Defenders. For $6 a month and $60, those who become paying subscribers will get access to premium content and occasional Zoom calls with me where you will be able to ask questions and engage personally.
We all need community now more than ever. I would be so grateful if you could join me in creating this space.