Documents obtained by The Nation reveal a close collaboration between Chevron, its law firm, and the “private prosecutor” who sent environmentalist lawyer Steven Donziger to federal prison in October. The oil giant has pursued Donziger since he won a legal case against it for contaminating a vast stretch of rain forest in Ecuador. So far, although e-mails and billing statements between Chevron, the law firm Gibson, Dunn & Crutcher, and the lawyer Rita Glavin do not show evidence of legal wrongdoing, they do raise questions of fairness. And Donziger’s team is exploring legal action to remedy what they regard as this latest injustice.
“Private corporations aren’t supposed to be able to help put people in prison, which is what Chevron did to me,” Donziger told me. “Corporations can sue you in a civil proceeding, but they aren’t allowed to finance a criminal prosecution. If Chevron gets away with this, what kind of a country are we living in?”
On December 9, Donziger was furloughed from Danbury Federal Prison after 45 days, and is serving the rest of his six-month sentence under house arrest at his New York City apartment. He had already been confined there for 813 days while awaiting his trial for criminal contempt. A judge refused to grant him bail, deeming him “a flight risk” with “connections in Ecuador.”
Here, briefly, is some background: In 2013, Donziger and his allies won a victory in Ecuadorian courts that required Chevron to clean up 1,700 square miles of polluted rainforest, an area larger than the state of Rhode Island. Chevron refused to comply, and counterattacked in New York federal court by bringing a new suit under the RICO Act, which was designed to pursue the Mafia. In 2014, Judge Lewis Kaplan—and not a jury—found Donziger and certain allies civilly liable of racketeering, bribery, and fraud. Donziger has never faced a jury during his ordeal. (More details about the oil giant’s legal crusade are available here and here.)
Chevron’s onslaught continued after the RICO trial, when it demanded access to Donziger’s electronics. He declined, arguing that his cell phone and computer records would allow the corporation to snoop on his communications with his Ecuadorian clients. At first, Chevron pursued a civil case to hold Donziger in contempt and force him to produce the electronics. Gibson, Dunn & Crutcher, a large corporate law firm, has been a major Chevron legal representative for years, and it started to prepare the civil case. I got access to documents that show that the Gibson firm billed Chevron more than $3,028,000 between January 2018 and April 2019. About a dozen Gibson Dunn employees worked on the case.
Then, in a move that surprised legal experts, in July 2019 Judge Kaplan changed the charge to “criminal contempt.” Judge Kaplan initially followed standard procedure and asked the US Attorney for the Southern District of New York to prosecute Donziger. The US Attorney declined. Martin Garbus, the veteran human rights lawyer who is part of the Donziger legal team, explained: “It was only a misdemeanor case. US Attorneys understand they should be concentrating on corporate and bank frauds, on heavy drug and violence cases, and on government corruption.”
But Kaplan stunned legal scholars by asking a “private prosecutor,” Rita Glavin, who worked for a private law firm, Seward & Kissel (which later turned out to have business ties to Chevron), to bring a case against Donziger. Donziger argues that Gibson Dunn’s long-standing relationship with Chevron was likely indispensable to putting him in prison. Donziger said: “Glavin’s submissions from the very beginning of the criminal case against me were very sophisticated, and cited very esoteric portions of the record that she would have no way of knowing about.”
The documents show that Glavin and her assistants met in person with Gibson Dunn’s lawyers at least 32 times. E-mails show numerous additional telephone conferences between the two. In one December 3, 2019, e-mail, Glavin is scheduling a phone call with a lawyer from Gibson Dunn at 10 pm. Charles Nesson, a professor at Harvard Law School who has followed the case for years, and already cites it in his courses, told me, “The biggest evidence of Chevron’s involvement is the size of the legal docket. The docket sets records in legal docketry. Who paid for all of that legal stuff?”
Donziger said, “It seems very clear that Gibson Dunn was either writing her legal papers, or heavily editing them, or writing her drafts, or telling her where parts of the record were. It was a clear, deep collaboration.”
Gibson Dunn insists that it “donated” the hours that it consulted with the Glavin team about prosecuting Donziger criminally. This claim, even if narrowly true, raises plenty of suspicions. Chevron has surely paid Gibson Dunn millions to pursue Donziger. Nesson said, “Chevron and Gibson Dunn have carried out their war against Donziger for years. The idea that Gibson ‘donated’ time is almost laughable.”
What’s more, Gibson Dunn didn’t stop billing Chevron from April 2019 onward—but the sum since then is a secret. Judge Loretta Preska, who presided over Donziger’s criminal contempt trial, allowed Gibson Dunn to submit that figure to her alone, and she declined to make it public, contending that “the amounts billed for hours billed relating to Chevron is confidential law firm information.”
The court did hear one Gibson Dunn attorney testify vaguely that “we would be willing to stipulate that…Gibson, Dunn & Crutcher…has billed millions of dollars in fees to Chevron since on or about April 15, 2019.”
So far, Glavin has billed an estimated $776,000—paid for by American taxpayers, because she was supposedly working on behalf of the US government. (The Donziger team says this figure will eventually be higher, because they suspect that additional Glavin billings have been delayed to minimize the total amount.)
Add the eventual total of Glavin billings to the Gibson Dunn legal bill, and Donziger estimates: “The total cost of my prosecution—for a misdemeanor—will be somewhere between $5 million and $10 million. A normal misdemeanor is like a $5,000 prosecution.”
Efforts to reach Chevron and Gibson Dunn for comment have been unsuccessful. I was therefore unable to ask for more details about their collaboration. Glavin did acknowledge receiving the request, but she said she was unable to respond before deadline.
Donziger is appealing his conviction, even as he continues to serve out his sentence. Donziger said, “This is the most egregious example in the history of our country of a private corporation taking control of a public prosecution against a private individual and depriving him of his liberty.”