The US Supreme Court Just Legalized Private Corporate Prosecutions. Activists Beware.

In rejecting my appeal of Chevron's private prosecution, the Justices have taken the law to a frightening place. Climate activists will be targeted.

In a major blow to the rule of law, the US Supreme Court this week let stand Chevron's private prosecution and 993-day detention of me after I helped Amazon communities in Ecuador win the historic $9.5 billion pollution case against Chevron. There was a great dissent by Justices Gorsuch and Kavanaugh who declared: “Our Constitution does not tolerate what happened here.” While I am dealing with a major disappointment on a personal level, I want people to know that the underlying environmental case against Chevron is still alive after being affirmed unanimously by Ecuador’s highest court and Canada’s Supreme Court for enforcement purposes.

Simply put, we are determined to continue the fight and see the case through.

My view is the decision against me is an attack on free speech and the very concept of corporate accountability and activism. It sanctions a new corporate playbook where private lawyers can use the mantle of government to threaten imprisonment for human rights lawyers, accountability campaigners, climate activists, and indeed anyone who might be a little too effective in making establishment opinion uncomfortable. That said, what happened to me is so offensive to the rule of law that several prominent conservative lawyers represented me before the Supreme Court. I actually had hope the largely conservative justices would join with their three liberal colleagues and deal with the enormously important issues raised.

The justices debated for weeks whether to take my appeal. We were listed and then re-listed four times for conference (where the nine justices meet without anyone else present to decide what cases to accept) which is virtually unprecedented. Only one out of every 100 or so appeals is accepted.

Our appeal hinged on a narrow and critical technical issue: whether under the constitution judges have the power to prosecute crime instead of just judging cases brought by regular federal prosecutors. Under our system of separation of powers, only the executive branch prosecutes crime. In my case, the executive branch (the Manhattan federal prosecutor appointed by the President) refused to prosecute me when presented with contempt charges filed by a pro-Chevron judge. So the judge (Lewis A. Kaplan) prosecuted me himself in what can only be described as a major judicial power grab that in our view clearly violates the separation of powers doctrine. Kaplan essentially became the prosecutor, judge, jury, and executioner in the same case. And he did it by appointing a private lawyer from a Chevron law firm to be the in-court prosecutor.

This simply cannot happen in a rule of law country.

You might remember that Kaplan charged me with criminal contempt in 2019 after I appealed his unprecedented order that I turn over my electronic devices to Chevron’s legal team. I believed he was trying to compel me to violate my ethical duties to my clients in the Amazon by forcing me to disclose privileged information about their legal strategy and personal lives to the very polluter that was destroying their cultures and way of life. Doing so would have put their lives in danger. But to be clear, I was not disobeying the court; I was appealing a court order to a higher court.

Kaplan’s case should have ended when the federal prosecutor rejected his unfounded charges. Instead, Kaplan appointed Rita Glavin of the Chevron law firm Seward & Kissel to be the “prosecutor” who purported to take on the mantle of the US government. Event though Glavin was a private lawyer in a firm with Chevron and many other oil majors as clients, she would sign her legal briefs “on behalf of the United States” as if she was representing the very Department of Justice that had rejected the charges.

Behind the scenes, lawyers at Chevron law firm Gibson Dunn — the firm that had targeted me for years using a variety of unethical litigation practices including paying an Ecuadorian witness $2 million for his testimony — was assisting Glavin with her legal filings while billing Chevron. Glavin’s exorbitant fees, which totaled more than $1 million for a misdemeanor, were paid by taxpayers from a mysterious court fund in the judicial branch.

Judge Kaplan also violated local court rules by appointing another friend, Judge Loretta Preska, to preside over my contempt trial when criminal cases are supposed to be assigned by random lot. It was no coincidence that Preska is a major leader of the pro-corporate Federalist Society leader which is funded in part by Chevron and Chevron’s law firm firm Gibson Dunn. Preska promptly denied me a jury and locked me up at home with an electronic bracelet on my body 24/7 — an ordeal that was to last more than two years before I could even get a trial. I remain the only lawyer in US history locked up pre-trial on the misdemeanor charge of contempt.

Two Supreme Court justices — Neil Gorsuch and Brett Kavanaugh — were not impressed with Kaplan’s maneuverings. They signed a powerful dissent to the decision to let the private prosecution stand. Written by Gorsuch, it declared the prosecution of me by the Chevron lawyer patently illegal. "Our Constitution does not tolerate what happened here," wrote Justice Gorsuch. The Chevron prosecution "broke a basic constitutional principle essential to our liberty." Not a single one of the three liberal justices (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) joined their conservative colleagues. Had they done so, my case would have been accepted and ultimately my contempt conviction would have been thrown out.

The Supreme Court decision is of course a disappointment for me and my family. That said, we are stronger than ever and ready for the next phase of the battle which includes international enforcement of the environmental judgment by a legal team representing the Amazon communities. It also includes my own campaign to use international human rights bodies to hold the US government accountable for the deprivation of my liberty and other corporate harassment to which we have been subjected for years — including my right to travel and practice law. Already, five respected international jurists from a key UN human rights body ruled my detention was arbitrary and violated multiple provisions of international law. We will be pursuing implementation of this decision.

Thanks again for the support. It continues to lift us through.