A Legal System Bent: Power, Chevron, and the Donziger Story

A Modern Fable About Law and Power

The Story of Steven Donziger

The Fable's Lesson

There is no reason a priori for disrespecting the speakers of a language because one doesn'r approve of what is said in it, or even of what they specifically say. Would I have higher regard for English if it were only spoken by rebels and never by rulers? Did these sentences not seem illogical to you when you reread them? Or are you judging your own writing by the same standard, and considering it better to the extent that it is politically to your taste?

Refusal of a pardon is not approval of a prosecution.

I don't think you intend the draft to be taken seriously as a defense of Donziger. That would require an actual interaction with the evidence, which is the one element missing. There is of course no logical inconsistency in believing that he fought a long and complex campaign in the course of which he committed serious offenses (presumably from generally good motives) for which he was relentlessly pursued and against which he defended himself with characteristic doggedness and self-destructive competence. I have plenty of views about Lew Kaplan, as pretty much any lawyer who has practiced in his court does. His view of "conflict of interest" isn't mine, as I know from matters having nothing whatever to do with Donziger or Chevron, and having once upon a time encouraged a client of mine to pay a great deal of money to one of New York City's most prominent lawyers for the purpose of goading him, I have also a pretty good idea how risky annoying him can be. I have many friends and colleagues among Donziger's crowd of supporters, and I sympathize with their wishes. But attempting to caricature Judge Kaplan as either corrupt or legally slipshod is preposterous. Donziger built a coffin for himself and Kaplan most definitely and superlatively nailed him into it.

So what we have here is a fable, a story about how because the law is imperfect and its custodians are corruptible, the bad guys win in the end. There is purpose, not to mention some important truth, in fables. History is something else, but it needn't be your genre.

Corporate Power, Legal Manipulation, and the Donziger Case

-- By MasonCantrell - 21 Feb 2025

Informing One's Theory of Social Action

To craft a theory of social action and successfully act upon that theory, it is necessary to understand the frailty and limitations of the legal system, as well as the sociopolitical forces that envelop and drive that system. Noam Chomsky, in Profit Over People, wrote: “...within the ‘nation’ there are sharply conflicting interests, and to understand [law] and its effects we must ask where power lies and how it is exercised...”

Law is a language. Those with power either know how to speak the language fluently, or, more commonly, have enough wealth to access those who do. While language functions as a tool for communication, law functions in a similar way, but with a significant difference. Coupled with a coercive monopoly on violence, law becomes more than a mere means of expression; it is a tool that shapes societal norms, consolidates control, and often enforces the will of the few at the expense of the many.

When considering the law and its speakers, individuals often assign an unwarranted reverence and distinction. The respect for lawyers and judges, while rooted in tradition, can obscure the reality that the law is frequently used to perpetuate inequalities, rather than serving as an instrument for fairness or an expression of enlightened values. Such high regard for the law and the legal profession overlooks its role in reinforcing systems of social control and economic disparity, rather than challenging them.

Steve Donziger Versus a Legal System Bent to Corporate Will

The case of Steve Donziger exemplifies these dynamics, highlighting how the legal system can be manipulated to protect powerful interests rather than pursue justice. Donziger, an environmental lawyer who played a key role in the effort to hold Chevron (then Texaco, pre-merge) accountable for one of the world’s worst environmental disasters, has become a symbol of the power imbalance inherent in the legal system. From 1964 to 1992, Texaco’s operations in the Ecuadorian Amazon resulted in the contamination of vast swaths of land, causing severe health problems for indigenous communities. After years of litigation, an Ecuadorian court ruled against Chevron in 2011, demanding nearly $10 billion in damages. Despite this ruling, Chevron refused to comply, moving its assets out of Ecuador to avoid paying. To this day, Chevron has not paid any damages or carried out a meaningful clean-up effort.

Although Chevron has faced no significant consequences, it presumably realized just how damaging a precedent the case set. Shortly after the ruling, Chevron corralled its trusty attorneys at Gibson, Dunn & Crutcher to bring a retaliatory RICO suit against Donziger, who played a lead role in representing the indigenous communities. The charge included allegations that Donziger ghostwrote court rulings and bribed judges. Chevron’s efforts paid off when, in 2014, Federal District Court Judge Lewis Kaplan ruled against Donziger.

A contempt case was also brought against Donziger because he refused to comply with a court order requiring him to turn over his electronic devices. There were significant conflicts of interest in the case. For one, Judge Kaplan had substantial investments in Chevron at the time of the trial. Even more striking, after the Department of Justice refused to prosecute Donziger in the contempt case, the judge, in an unusual move, appointed a private attorney to prosecute Donziger. The special prosecutor had deep professional and personal ties to both Gibson Dunn and Chevron. Additionally, rather than using the standard random assignment process to select a judge to preside over Donziger’s contempt trial, the judge hand-picked a senior judge who served on the advisory board of the Federalist Society and had ties to Chevron.

Unsurprisingly, the court ruled against Donziger in his contempt trial. As a result of Chevron’s legal assault, Donziger served 45 days in jail, nearly 1,000 days of house arrest (four times longer than the maximum allowed for criminal contempt), spent time in a halfway house, and was disbarred from practicing law in New York and Washington, D.C. On appeal, the Second Circuit denied his case, and the Supreme Court denied certiorari, with Justices Gorsuch and Kavanaugh dissenting, citing due process concerns and the unusual prosecutorial role of the private attorney. Notably, The Nation released a 2022 report revealing that Chevron, Gibson Dunn, and the special prosecutor collaborated in conducting the criminal contempt case, with at least 32 documented meetings and numerous phone calls held between the parties.

Donziger recently ran an unsuccessful campaign to be pardoned by President Biden. His supporters included 34 members of Congress, 68 Nobel Prize Laureates, and various organizations, including Amnesty International, the United Nations Human Rights Council, and the Center for Constitutional Rights. Although Biden’s son received a golden ticket, President Biden refused to pardon Donziger, giving a tacit seal of approval to Chevron’s unprecedented tirade of retaliation.

Takeaways

Despite the unfortunate nature of his story, Donziger’s case is instructive. It reveals how the legal system, rather than serving as a check on corporate power, often acts as a mechanism for its perpetuation. In Donziger’s case, Chevron leveraged its wealth and influence to turn the legal system into a tool for revenge, sidelining justice and undermining the rule of law. This highlights a broader pattern in which powerful interests use the legal system not to uphold rights or fairness, but to protect and entrench their own positions.

Donziger’s experience reveals the dangers of an over-reverence for legal institutions and the practitioners who uphold them, as well as the insidious role that power and wealth play in shaping legal outcomes. In reflecting on Donziger's fight, we must ask ourselves whether it possible to reconcile our legal system’s potential to serve justice with its frequent role in perpetuating systemic inequality. A true theory of social action requires not just understanding the law, but also critically examining the forces that shape it, and seeking ways to ensure that it is used as a tool for equity, not oppression.

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