Merrick Garland Seems Perfectly Content Letting Corporations Prosecute Climate Activists

By taking the side of Chevron in its prosecution of a human rights lawyer (me), the US Attorney General is weakening the rule of law and turning a blind eye to injustice

Merrick Garland is acting like a timid man not built for a historical time when the rule of law is under serious and even ferocious attack in our country. The unprecedented private prosecution of me by a Chevron lawyer — and Garland’s continued failure to stop it — is a case in point that illustrates a much broader and disturbing pattern of inaction by the Department of Justice when it comes to protecting the rule of law.

Exhibit A of this pattern is the obvious one. Donald Trump has yet to be indicted when his crimes — both small and large — are obvious and well-documented. The DOJ took a back seat while a Congressional committee did a stunningly comprehensive investigation of some of Trump’s crimes related to the January 6 insurrection. Prosecutors in other countries usually do not sit back so passively when a major political or even minor political figure tries to orchestrate a coup. Germany just arrested dozens of people who were plotting a right-wing takeover of the government. Peru recently locked up a President when he tried to dissolve the Congress and rule by decree.

Yet in the United States — which fashions itself as the leading rule of law country in the world — a former President who brazenly tried to steal an election, overturn our government, commit massive tax fraud, and steal top-secret classified documents —is allowed to roam free and continue wreaking havoc on the very fabric of our Constitutional system of government. Contrast Trump with a lawyer getting locked up because of DOJ inaction (more below) for almost three years in retaliation for helping Amazon Indigenous peoples win a historic pollution judgement against Chevron.

We need a little more even-handedness is the application of the law.

I believe the private prosecution of me by Chevron is part of this broader and disturbing pattern. Garland committed two errors in this regard: first, he totally ignored entreaties from my legal team that he stop my private prosecution and take over the case directly. Second, he recently took the side of Chevron before the Supreme Court in trying to claim that the resulting corporate prosecution of a human rights lawyer by a private prosecutor with ties to the very corporation (Chevron) against whom the human rights lawyer won a landmark $9.5 billion pollution judgement, is somehow consistent with the rule of law.

I seriously beg to differ.

I recognize that in the global context of our troubled world, my prosecution might not grab the attention of the larger public in the same way Trump’s coup-plotting does. But trust me when I say this: Chevron’s prosecution of me in the name of the US government is sinister in the extreme and completely corrosive of the rule of law. Garland enabled it through his inaction and not he is enabling it further with his action.

The other day Garland filed a brief before the Supreme Court opposing our petition asking the justices to reverse my misdemeanor contempt conviction — a conviction the likes of which has never before been seen in our country. I was charged by a judge when I appealed an illegal order to turn over confidential information to Chevron’s lawyers. This information would have put the lives of my Indigenous clients in Ecuador’s Amazon in danger. The information clearly was protected by attorney-client privilege. And while I appealed this rogue order, the judge had me locked up on a misdemeanor contempt charge claiming I was disobeying an order I was appealing. That was after the US Attorney in New York refused to prosecute me on the judge’s charges, prompting the judge to appoint “special prosecutor” Rita Glavin, a lawyer with the Chevron firm Seward & Kissel, to prosecute me directly.

At the time of the appointment, the Judge (Lewis A. Kaplan) did not disclose that Glavin worked for a Chevron law firm. He hid what was a flagrant conflict of interest. And I would argue he appointed her because of her ties to Chevron, as no normal professional prosecutor would have taken the case.

So began a Kafkaesque journey for me and my family. This journey led to 993 days of detention on a misdemeanor with a maximum sentence of 180 days. That included 26 months locked up in my Manhattan apartment pre-trial with an GPS monitor shackled to my ankle. You can read details about this ordeal in my interview with Esquire here

By siding with Chevron before the Supreme Court, Garland is essentially stating that a corporation can act directly as a government prosecutor. The Department of Justice even put Chevron lawyer and private prosecutor Glavin on the its brief as an "author" as if she was a government official. I believe that allowing an oil company (or any private company) to act in the shoes of the government is indefensible. It clearly is a violation of the Constitution and international law. That’s not just my opinion. Several prominent scholars who represent me, including Professor Stephen Vladeck of the University of Texas, agree. So do lawyers at the conservative law firm Schaerr Jaffe and the liberal firm Zuckerman Spaeder, both of whom agreed to represent in my appeal pro bono.

Clear violations of the rule of law by our courts don’t mean as much as they used to in the US. I just finished reading “The Scheme” by Senator Sheldon Whitehouse, a U.S. Senator and the former Attorney General of Rhode Island. Whitehouse outlines in stunning detail how corporate oligarchs in the US — financed with billions of dollars provided by a small number of families and foundations with deep ties to the fossil fuel industry, such as the Koch brothers — have “captured” the Supreme Court to serve their private interests.

I am realistic about the limitations of our current Supreme Court. But what happened to me is so offensive to the rule of law that many prominent lawyers associated with the pro-corporate, anti-regulatory Federalist Society have rallied to my side. So I believe I have a reasonably good chance.

The position of Garland’s DOJ in favor of private prosecutions almost completely conflates corporate interests with the “public good”. The DOJ should be a check on corporate power, not an instrument of it. This is particularly egregious given that Glavin made me the only lawyer in US history ever detained pre-trial on a contempt charge and that I stayed detained (including 45 days in prison) as she acted as a "government" prosecutor. She was paid by the Seward & Kissel firm, which was paid (on other cases) by Chevron. And she had the temerity to bill taxpayers at least $1 million to prosecute me on a misdemeanor that would have taken a regular prosecutor all of a few days of work had the case not been rejected.

Due to Chevron's capture of the prosecutorial apparatus in my case, and Garland’s refusal to step in and stop the private prosecution, I lost my liberty for more than ten times longer than the longest previous sentence ever given a lawyer for my supposed crime (90 days of house arrest). By the way, no lawyer in US history prior to me was ever prosecuted for my conduct, much less jailed over it. (Technically, that conduct was appealing a discovery order in a civil case — something that thousands of lawyers have done in our history without anyone of them ever being charged with a crime.)

My long detention severely impacted me and my family, not to mention the many thousands of people in the Amazon who depended on me to help fight for a clean-up of their ancestral lands. It was a brutal assault on my rights but it served Chevron's interests perfectly.

Our intensifying battle to nullify my Chevron-orchestrated misdemeanor contempt conviction "won" by Glavin in a non-jury trial overseen by the Chevron-linked Judge Preska is far from over. We will file a response to Garland’s position. We will continue to urge him to join us in fighting for justice. Ultimately, the Supreme Court will make its own decision. If that doesn't work, we will head to international courts to seek relief.

Please count on us. We will stay the course and challenge each instance of judicial hypocrisy from Chevron, the DOJ, and Attorney General Garland when and where we find it. 👊🔥👍