Supreme Court orders the DOJ to explain why it let Chevron prosecute me

Even a conservative court seems offended by the nation's first corporate prosecution

The US Supreme Court – whose conservative justices I've criticized as of late – has ordered President Biden's Department of Justice to explain why it allowed an oil company (Chevron) to prosecute and detain me in the first and only private prosecution in US history. This is a good news for our campaign to hold Chevron accountable for its mass industrial poisoning of Ecuador’s Amazon and for the legal effort to enforce the $9.5 billion pollution judgement against the company won by Indigenous peoples whom I helped represent.

Biden and Attorney General Merrick Garland for almost two years have ignored repeated requests from my lawyers to take back my private prosecution from Chevron and uphold the decision by the federal prosecutor in Manhattan not to pursue Judge Kaplan's unfounded contempt charges against me. The inaction of Garland and Biden in my view led to a farcical trial in May of 2021 where Judge Loretta Preska (a leader of the Chevron-funded Federalist Society) denied me a jury, read the newspaper during witness testimony, let a Chevron lawyer prosecute me, allowed Chevron lawyers to testify against me, refused to allow me to mount a defense, and ultimately “convicted” me and sentenced me to the maximum term of 6 months in prison on top of the 26 months she already had detained me at home as a supposed risk of flight. Understand that I served 993 days detained in total for an offense where the longest previous sentence ever imposed was 90 days of home confinement (and that lawyer was actually guilty).

My unprecedented corporate prosecution undermines the rule of law, Free Speech, and the climate movement. It also has caused great pain and suffering to the affected Amazon communities in Ecuador who had their lands poisoned by Chevron — not to mention the enormous pain it has caused and continues to cause to me and my family here in New York. I am a human rights lawyer who just spent almost three years in detention in a case that appears under the US Constitution to be totally illegal. (Already five jurists from the United Nations ruled that my pre-trial detention violated multiple provisions of international law while a separate group of prominent trial observers from the US and Canada found that my trial presided over by Preska fell below minimal standards of due process).

For weeks, President Biden's DOJ tried to ignore my recent petition to the Supreme Court to nullify my non-jury contempt conviction. The DOJ clearly hoped the Court would ignore it as well and not take the case up for review. So the order that the DOJ submit a brief is a good sign that the Court is taking the issue seriously. After the DOJ submits a legal brief on November 16, the justices will meet in conference to decide whether they will take my case up on appeal. Given that the Court only takes about one out of every 100 cases submitted, this is hardly a slam dunk. But it is possible they will take this case given the unusual nature of the issue and how offensive it is to the rule of law, regardless of where one might fall on the political spectrum.

The issue of a private corporate prosecution orchestrated by a judge without any involvement by the executive branch (which prosecutes all crime under our Constitutional system of government) is so much bigger than just me. As my lawyers wrote, Judges Kaplan and Preska engaged in a “judicial seizure of power” at the expense of the executive branch, thus violating the Separation of Powers doctrine. That’s the technical argument. The practical reality is that anyone who watched the trial saw that it was morally, ethically, and legally bankrupt from beginning to end and an exercise in corporate retaliation with the complicity of two federal judges. It was depressing to watch even though ultimately we used it as a tool of empowerment.

I want to thank Professor Stephen Vladeck of the University of Texas School of Law for leading the great team of attorneys from the Zuckerman Spaeder and Schaerr Jaffe firms who have rallied to my side and have placed this critical issue squarely on the Court's docket. I also want to point out that the two Chevron law firms that orchestrated the private prosecution — Seward & Kissel and Gibson Dunn & Crutcher — have been facing nationwide boycotts from the group Law Students for Climate Accountability for their ignoble roles in depriving me of my liberty.

As an aside, there is a chance the DOJ will respond to the Court’s order by submitting a brief agreeing with our position which almost never happens. I would argue this is that rare case where it should. You can read my cert petition here.

The DOJ, President Biden, and Attorney General Garland now have some serious explaining to do. They are under order from the highest court in the country to deal with this critical issue. I look forward to seeing whether they try to justify what is clearly an outrageous corporate and judicial attack on our democracy. 👀