Hey, drilled listeners. I'm here with an update on the story we told in our last narrative season, La Lucha Lahungla, about the decades long fight between Chevron and various groups in the Ecuadorian amazon As. You know if you listened to that season. Chevron has recently been going after one
of the lawyers in that case, Stephen Donziger. He has been on house arrest now for more than six hundred days for a criminal contempt charge stemming from a civil contempt charge that Chevron encouraged a judge in New York
to impose on him. That all started a few years after Donziger lost a rico case brought against him by Chevron, claiming that he and the other attorneys in Ecuador had engaged in misconduct in order to win their case in Ecuador, and that therefore the judgment should be considered null and void in the US. The Ecuadorian plaintiffs have continued to try to collect on that judgment elsewhere in the world, and it's possible that those efforts triggered Chevron's interests in
Donziger again. At any rate, they asked Judge Caplan, who was the judge in the Rico case to subpoena certain files and information from Donziger because they believed that he was violating the agreement in that case, which is that he would no longer be able to profit in any way from the Ecuadorian judgment. Donziger refused to hand over his files, saying that it would violate attorney client privilege, and that's when Caplan slapped him with a criminal content charge.
Caplan took that charge to the US Attorney's office. The US attorney said, Nah, we don't want to prosecute this, not really a case, and instead of letting it go at that point, Kaplan hired a private law firm to prosecute Donziger. Now, this is a very unusual move. According to Donziger's current attorneys, it's the first time that a private prosecutor has been used in a case like this. We haven't been able to find any other examples of this being done, so it could very well be the
first time. It's certainly unusual, especially with sort of a low level offense like a contempt charge. And then about a year into court proceedings around this charge, Donziger and his team discovered that the private prosecutor that judge Kaplan had appointed a firm called Seward, and Kissel had worked for Chevron as recently as a year before they were hired to prosecute Donziger. That all seems a little shady. Now here we are six h days in. Donziger still
hasn't had a trial. He's been denied a jury trial. There is a court date set for May tenth. The judge has declined requests for audio or video streaming of that trial. In this episode, I am joined once again by my co reporter on that series, Karen Savage, to bring you some updates on what's happening in that case and what Donziger is facing when he finally heads to trial in May. That conversation coming up right after this quick break, Karen, welcome back.
Thank you, Amy.
I have missed reporting with you.
I think this crazy long story that's going to come out in a few days, and I didn't have anyone to bounce things off of.
Oh it was harder.
It was so much harder.
I know, right, It's nice to partner with with another reporter on stuff. Yeah, yeah, okay, so I know I feel like, I mean, you and I have been texting each other you know, as different briefs and things come out. But but what have you been kind of seeing in the last couple months on the Donziger case.
So there's been you know, there was the back and forth about the lawyers and who could get their win, and then eventually everything was postponed until May tenth, and I've really seen the most interesting things I've seen. Well, first we'll talk about the motion to dismiss I guess based on vindictive Yeah, this.
Is so interesting. So this is all happening because, like the this is part of the criminal contempt trial that is still ongoing. There is a hearing scheduled for May tenth, and in the meantime there have been lots of different sort of motions filed and the most recent, right is this one one of Donziger's.
Lawyers, Martin Garbage, and.
It is really kind of asking for more discovery and alleging that this is a vindictive prosecution, right.
Yeah, And I think that's what's so interesting to me is that you know, he's asking for the trying to find the thing and get in front of me, but he's asking.
For the for discovery, which I honestly seems fairly he should be able to access the evidence necessary to defend himself. Is kind of like the argument that this brief is making, right.
Right, Yeah, that's that's what I'm thinking. It looks like to me that you know, first of all, he's saying this is vindictive prosecution, this is against the way we do things here in the United States, which may or may not be true, but that's apparently that that's the
whole premise of the law at least. And so you know, the whole idea that that Donziger is being executed basically because he went up against a large corporation a one, and you know that there's been the whole thing that we've we've covered, you know, how the narrative has shifted from the people on the ground who are still suffering from this toxic pollution, and so the narrative has shifted away from the folks in Ecuador to focus on Steven Donziger and what he what Chevron claims he did wrong
and all of these things. And you know, there's a whole reco trial and the conviction. But you know, I think that the message in this, in this motion to dismiss, which is very consistent with what's been what's been said all along by Steven Donziger and his supporters is that, you know, this is really malicious. You know, Judge Kaplan has sided many many times with Chevron, and they even in the motion pull out from some transcripts some of the things that he has said in the past. And
you know, it's really if you look at it. I know, our jobs as reporters are to kind of look at both sides, but when you just look at it on its face, it does look kind of pretty malicious. You know. It's just this continuing pursuit of this guy.
Well, and also I think it's important for people to understand that, like what's happening to him now has nothing to do with what Chevron accused him of doing in Ecuador. You know, at this point ten years ago, you know, it is this kind of renewed attack on Donziger that started, you know a few years after Chevron's Rico case was settled. I mean, they won the Rico case, they you know, kind of succeeded there and then for whatever reason, felt
the need to continue going after Donziger. I mean, I think because the Ecuadorians were continuing to try to collect this judgment somewhere in the world, and Chevron wants to put us off to that. And also, honestly, it does seem like they want to make an example out of him and scare off other attorneys from from taking on cases against oil companies and against big companies in general.
Right, And I think what you spoke to a few minutes ago about, you know, the private prosecutor is really horrifying. You know, if you follow that, you know right now it's Steven Donziger who is being prosecuted by a private prosecutor, but it could be anybody if this is if this becomes a normal thing, and I know they're they're saying it's this is the only time it's happened in ever, And I honestly have looked and haven't found that it's
happened at other times. I'm not saying it's not out there and I haven't missed it, but you know, I haven't found any evidence that it's happened before. I haven't found a specific case. But if this does happen and goes through and becomes the norm, the ramifications of that are really horrified because that means that corporations can hire someone to prosecute.
Who are right, Well, that's right, Well, oil companies already hire the police exactly right.
They already to pay the police hundreds of thousands of dollars to work side jobs, or or they pay their department directly, or they you know, in promotion and all kinds of other you know, donations or whatever. So they already have bought the police, and now they're trying to buy the justice, you know, the court system, which is horrifying.
It's important for people to understand that Gibson Dunn created the sort of novel strategy of using RICO to go after plaintiffs attorneys, right like they did it with Dole, and then they really sort of perfected it with this Chevron case. And now that kind of thinking has made its way into some of these anti protest bills that
are happening. Just last week or maybe two weeks ago, I think it was Kansas Past one of the many anti protest laws that are criminalizing protests around critical infrastructure, which basically means pipelines and fossil fuel infrastructure, and they actually included RICO charges as part of that. So this is like, you know, all right, well we've already seen this happen where you know, a legal strategy that was used in this case fairly novelly five six years ago
is now being replicated in various other instances. In fact, Gibson Done was brought on to help prosecute the protesters at Standing Rock for Energy Transfer Partners.
Yeah, and they're following right in that playbook, you know, the way there were the subpoenas in the Chevron, Ecuador case against the you know, journalists against the Crewe documentary, and now you know, Energy Transfer has is seeking information and has issued a subpoena to unic and Riot, which covered the protests of Standing Rock. So there are all
of these similarities. And I think what the corporations are kind of hoping is that you know, maybe you and me are sitting here saying, well, you know what, we're not attorneys, we're not plaintiffs attorneys, so that's happening to the plaintiff's attorneys. And we're not protesters, so that's happening to the protesters. And you know, we are media, so
we notice that this is happening to media. But people who aren't media are like, well, that's not us, that's media, and no one kind of thinks of the collectively of like these are a broad scale scaling back of our first sleety rights. Yeah.
I was just talking to someone, you know, the other day about the fact that media liability insurance has become much more expensive and hard to get. Like I have a fairly large policy because of the kind of you know, the sorts of stories that we do, and.
Sounds like a really good I'm not a business person, but Amy that sounds like really good.
Yeah. But the insurance company that I use, when I went to sort of like the annual renewal of the policy thing for a minute, was like, Oh, we're not sure about this because we're not really giving policies to
investigative journalists anymore because it's seen as too risky. And I was like, wow, that is quite troubling, because yeah, right, it's like especially so I just feel like you've seen this thing happen in over the last ten fifteen years where corporations have increased their First Amendment rights and at the same time have really worked strategically to whittle away the First Amendment rights of everybody else. And it's very, very troubling. And I see this case as like a
real as a part of that. You know, it's like make plaintiffs attorneys scared to file suits against them, make protesters. And now you know that the one of the novel things in these anti protest laws is that they include the ability to go after organizations for organizing protests. So now you have all of these nonprofits who have helped to like organize the Line three protests or organize the Standing Rock protest or whatever, like, they're being dragged into
court now too. And then you know, uh, media is having less and less protection because you know, everyone from insurers to too, like publishers are worried about, you know, the cost and the risk associated with investigating these guys. It's it's very troubling for sure.
And the other thing they do is they they shift your the narrative of who you are as a reporter, right, yes, you know, I covered the buy you Bridge stuff and I cannot tell how many times I was called an activist. Now, I was there, I was embedded, I was clearly reporting on it. But what they do is they shift the way that we are described so that it diminishes or changes our actual role and in people's minds, then there
becomes no distinction. Yes, so that's just another thing that that you know, and I've seen them do it, like Unicorn Riot, I've seen them do it to them and they're you know, there's many many people that have reported you know, look at at all kinds of folks democracy now, Amy Goodman. You know, they'll do these subtle you know, maybe just a word or two in there, or some of my mass'll subtle, but it slipped the image of something as a reporter into some murky unknown place.
Absolutely absolutely that they've I mean, that has happened to me. And it's why I'm such a like giant bitch about it when I see people as saying it, because it's like, no, you don't understand. It's not that like I have so sort of idea about activists, you know, that I'm like above activists, or that they're you know, less than or
anything like that. It's that this is a very specific strategy that's used to not only undermine the reporting that some people are doing, but also to erode our First Amendment protections.
I have had some of the most heated battles with other journalists, I gotta tell you, so I hope out there listening, please pay attention to where these boundaries are constantly shifting and what even a little shift can do. Because I don't like arguing with fellow journalists, but if they're gonna misidentify me, I have to argue with you.
Yeah, exactly exactly. I know. I had a whole back and forth with the guy at Axios because he referred to me as an advocacy journalist and I was like, uh, nope.
I was referred to it was either activist journalists or journalist activists. It was like hyphenate, which is another weird variation that somebody created. And I had to like go toe to toe and I was and I was in a special place at that moment, so I kind of let loose on that poor person. I think they probably hung up like wow, she's really really you know, a grand bitch.
But I had to do it, you know, like sorry, yeah, yeah, yeah. And again, it's like it's important for a variety of reasons. It's not just like, oh, I don't really care about, you know, what title people give me or you know, and I don't have any sort of like ego tied up in like I'm a journalist or whatever. It's it's actually it's about like legal protection and also like kind of who controls the narrative and how things gets spun.
So yeah, anyway, okay, So Garbus has filed this motion asking for discovery, which is a legal term that means basically, you know, being able to request documents and evidence from the other side and to be able to dig in to people's files and things like that, and has also called this a vindictive prosecution and asked for it to be moved out of this judge's court, which I'm sure
this judge will take great offense to. But you know, the accusation is that Judge Kaplan, who is very cozy with Chevron, you know, hand selected this judge and that there is just a huge conflict of interest here in that she can't really be unbiased in this prosecution.
Right right, Yeah, And they pointed out, I think that she's a member of a federal Society, and Chevron has donated many times, yes to the to the Federalist Society, so you know, they're just a whole bunch of conflicts there.
Yeah. Yeah, when was that motion filed.
It was filed I think last Thursday, and they're in the process now of looking you know, setting the schedule on how they're going to deal with that motion.
Okay, and whether and like whether it's going to impact the hearing date in general.
Right, which is another interesting part of this story, because they the judge came out early, I think it was two weeks ago and said, you know, because covid is is at a better point where it was before, it's going to be an in person trial. And of course we already know it's going to be a bench trial, even though don Zegger and his attorneys wanted a jury trial. But he also requested that there be audio, video, video, you know, access for public right, and she denied that.
I know, I thought that was really suspicious too. I was just like why, I mean, it's like, you're already under scrutiny here. I would think that you would want to be transparent at least in that way.
But yeah, so I was just curious. So I looked up, you know, and they have a whole calendar of civil and criminal proceedings in that court. So I went there, and so the things that are happening this week, the week of what is it, April twelve, there are only two trials going on that I could find but both of them allow folks to call in and listen. It's not like a zoom type thing, but you can call
in and listen over the phone. So it's bizarre to me that those two trials the same court, same you know, a little bit different charges, and those do have a jury trial, so I think that's a little different there, but basically same courthouse, same well it's a different building, but it's under the umbrella of the same court, and they are allowing folks to call in and listen, and Donziger's trial will not be you know, folks won't have that ability.
So wild honestly, Like, I've been following a bunch of other cases not related to this at all, and they're all allowing like phone in access.
Well, you can still go to the courthouse, and they have agreed to have overflow rooms. I think Judge Presco moved it to a bigger courtroom and had the overflow rooms. But part of the thing is that there are really pretty strict rules about how you can enter, particularly if
you have traveled from another country. Right, you know, you have to have this documentation that you are not that you are negative COVID negative, and that's I would imagine if I was traveling from another country, I would not
necessarily want to be here ten days in advance. So it all just kind of complicates, complicates the issue, and it also like leaves all of these folks who are you know, it's kind of emblematic, right of the whole recent proceedings that leave the folks who are the initial victims of this toxic pollution completely out of the picture. So they're in Ecuador and they have no way to access these proceedings if they want to.
And I think that.
That in a normal time would be kind of unfortunately just the way it goes. But with COVID, you know, there was the whole thing for a while where they were pushing, pushing, pushing to have a zoom trial. And now not only are we not having a zoom trial and we're having the trial in person, but now the folks in Ecuador have zero ability to follow alone. So I think that, you know, those kinds of things just
look funny. So I don't know, you know, like I said, these other two trials managed to have ways that folks can call in on a teleconference line. I tried just to make sure you can actually get through and everything was working, and I got into one and you know, some kind of like sec fraud or something that I wasn't particularly interested in its time, but you can do it. So it's really beyond explanation why in Donziger's trial this isn't allowed.
Yeah, yeah, it is very It's it's unusual. It's it's an unusual thing to deny that request. So yeah, just another of the many ways that this is unusual. And he is now, I mean, he's he's coming up on almost two years in August, right, it'll be two years that he's been on house arrest.
Yeah. He did a Twitter live thing last night. I think he said it was six they six o four Maybe I'm not sure I got that number right, But by the time this is out, it'll be more than that anyway.
Yeah, so more than six hundred days. The the sort of like the penalty if he's if like someone is convicted of criminal contempt is six months. So I just I don't understand.
For sure, you know. I And this is kind of so typical of oil companies, right, like they want to pumo any opposition to their exist and to the ground. I mean, but at right now, Donziger. He's got I think fifty five noble lawyers laureates are supporting him. He's got folks from all over the world. You know, different personalities have come out and supported him. And you know, every time they push back against him, what I think
they don't realize is that they're growing his support. So it's yeah, it's beyond me why they just keep pushing this. This is crazy. There's even like a trial monitoring committee set up, which is something that doesn't normally happen in the United States. You know, folks think of that in countries that just don't have well established justice systems or fair justice systems, I guess I should say, and here it is they want to do that in the United States.
So I think it speaks volumes just those types of things, you know. And like I said, as a journalist, my job is to go in and kind of look at both sides and see what happened and kind of figure out where the truth lies, which is often sometimes in between all the sides. But in this case, there's so much just what appears to be unnecessary push against Donziger, and that the vindictive prosecution becomes very believable.
At the point where the US attorney is like, nah, we don't want we declined to prosecute, like this is a nothing burger case. And then the judge goes out and hires a private corporate law firm that just so
happened to worked for Chevron recently. I mean, that's just honestly, I feel like, at a minimum, you would think that the judge would want to be careful about giving the impression that he is biased or has a grudge against you know, and it's like it's like wow, Like it's like no effort was made to even really conceal it here, so I don't It's like, well, what other It's very hard to come to any other conclusion because the facts are so gregious.
Yeah. One thing Garbage points out is that, you know, when the prosecute, the prosecuting attorney initially said that they didn't have the resources to prosecute. But here we are, and we haven't even reached trial or appeal or sentencing or any of those things that are still coming. They've already paid Sword and Kissel over five hundred thousand dollars. Wow. So you know, as he points out in his brief, it could well be over a million dollars of taxpayer money is paid for this prosecution.
Yeah, which also I think it's important to point out started initially way back with Chevron asking the judge to look into, you know, what Donziger was up too.
Lately, Chevron's narrative is like, well, we didn't we didn't ask for criminal contempt charges. Well, but you did ask for civil contempt charges.
Right exactly, and that is what led to the criminal contempt charges. So like, you did kick this entire thing off. And I honestly I just I look at this and I'm like, this is like it's it's laughable. Because the for years it was like, you know, we want to move the trial to Ecuador, and then as soon as they got to Ecuador and Ecuador's political situation changed, it was, oh, the courts in Ecuador are corrupt and there's no way
we can get a fair trial. And it's like you look at this and you're like, this is the type of corruption that you know, Americans criticize other countries for having in their judicial system, and like it's right here in New York, right right, yeah. Yeah, So anyway, well we'll be continuing to watch what happens.
But I think they're saying that the trial will last maybe give or take ten days or so.
Wow. I know there have been actually too, some some politicians who are starting to kind of tune into this too. So I think it's Rep. McGovern in Massachusetts, right, and Corey Bush also are who you know. This is an interesting thing too, because Corey Bush comes out of the Black Lives Matter movement. This whole like RICO criminalizing protest thing has been like there has been some talk of
using that against Black Lives Matter protests too. So even outside of the pipeline protest, these laws and this, these precedents that really the fossil fuel industry is setting legally will have ramifications for every other type of civil protest. Right, that is very concerning. So I know that they are drafting a letter to Attorney General Garland this week asking the Department of Justice to review this case. So that should be interesting too to see if anything happened there.
Yeah, and I was just reading I don't I forget where, but that the Biden administration is totally within bounds. They could the DJ could say, you know what, we want to take on this case and take over the prosecution.
That's interesting.
That would be really interesting.
That would be very interesting. Huh wow. Well, yeah, so the plot continues to thicken with this case. This story is like the most mind blowing story I think I've ever worked on, and it just continues to go on.
Yeah, And what's what's amazing to me is that I feel like there is so much that just in the interest of time, we didn't cover, you know what I mean, Like there are just yeah, probably millions of documents, yes, of just fascinating little side stories. Yeah, definitely something to watch. Will keep us, We'll keep us busy for a while.
Yeah, yeah, something to watch. And it is the thing that is very concerning about it is that this case has set a lot of precedents all along the way, most of which have been pretty bad for democracy, and this is sort of the latest phase of that. So it's very it's important to sort of to keep tabs on what happens here and how it might affect lots of other things.