Speaker 1: Hey, Drilled listeners, we have a special update episode for
Speaker 1: you today. Stephen Donziger's contempt trial, which we opened this
Speaker 1: season with, is about to start on Monday. There's been
Speaker 1: a ton of back and forth between him and the judges.
Speaker 1: Several requests for a delay have been denied. Donziger was
Speaker 1: requesting that the trial be delayed mostly so that he
Speaker 1: could have a lawyer present. So at this point, the
Speaker 1: trial is happening on Monday, and he will not have
Speaker 1: a lawyer present as far as we know as of
Speaker 1: the Thursday before. He is being held in contempt as
Speaker 1: a result of a civil contempt charge that basically came
Speaker 1: out of this reco judgment against him and some of
Speaker 1: the plaintiffs and some of the other plaintiffs attorneys in
Speaker 1: twenty fourteen. Part of the judgment in that case was
Speaker 1: that Donziger and a few other of the named defendants
Speaker 1: were not allowed to profit in any way from the
Speaker 1: collection of the judgment. In the Ecuadorian case, Chevron suspected
Speaker 1: that Donziger was doing something that ran a foul of
Speaker 1: that ruling. They asked Judge Caplan to do something about it.
Speaker 1: They asked for what's called post judgment discovery, which is
Speaker 1: to be allowed to kind of look into it and
Speaker 1: see if Donziger was in fact making money off of
Speaker 1: getting this judgment. Judge Caplan granted that they asked for
Speaker 1: Donziger to hand over his computer and his phone and
Speaker 1: various other things. He refused. That's how the civil contempt
Speaker 1: charge came about. And then when Donziger continued to refuse
Speaker 1: to hand over his devices because he said it would
Speaker 1: violate attorney client privilege, Judge Kaplan filed a criminal contempt
Speaker 1: charge against him. That is the reason that he's been
Speaker 1: on house arrest since August twenty nineteen, so over a
Speaker 1: year at this point. My co reporter on this series,
Speaker 1: Karen Savage, has been following this part of the story
Speaker 1: very closely, and she's joining me today to bring us
Speaker 1: an update on where we're at now and what to
Speaker 1: expect on Monday. That's all coming up right after this
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Speaker 2: Hi, Karen, Hey, Amy, how are you?
Speaker 3: I'm good? I'm good.
Speaker 1: Remind people what exactly these contempt charges came out of,
Speaker 1: both the civil and the criminal.
Speaker 4: Civil content charging is stemmed from, of course, the recal
Speaker 4: case that was filed against Stephen and the plaintiffs and
Speaker 4: really almost anybody that was connected with that case in
Speaker 4: Ecuador by Chevron, and then the ruling in twenty fourteen
Speaker 4: by Judge Lewis Kaplan was that, you know, that judgment
Speaker 4: was procured through corruption and fraud and wasn't enforceable in
Speaker 4: the United States. So one of the things that was
Speaker 4: ordered by Judge Kaplan was that Steven Donziger and some
Speaker 4: of the other defendants would not be able to profit
Speaker 4: from the collection of the judgment. And so as time
Speaker 4: wore on, Chevron kind of pushed back and said, you know,
Speaker 4: we think this guy is trying to profit from the
Speaker 4: collection of.
Speaker 2: This judgment, and so they asked for.
Speaker 4: You know, they went back and forth in court and
Speaker 4: eventually asked for post judgment discovery.
Speaker 1: Which, yeah, so just to like for people who don't
Speaker 1: know what discovery is, they're basically asking, like to poke
Speaker 1: around and see if he is in factoring to profit
Speaker 1: from this judgment, right right.
Speaker 4: And so you know it, Eventually they Chevron asked for
Speaker 4: civil contempt charges, which the judge agreed to, and in
Speaker 4: the end asked Stephen and said, you know, look, you
Speaker 4: need to turn over your devices for forensic examination.
Speaker 2: And there were some other things too.
Speaker 4: I think they wanted him to turn over his passport,
Speaker 4: they wanted him to sign off on some paperworker related
Speaker 4: to the case in Ecuador. And so I think his
Speaker 4: biggest issue here, and actually it's really important point to make,
Speaker 4: is that he's always said, if the second Circuit says
Speaker 4: I need to do this, I will, So he's refusing
Speaker 4: to comply with the lower courts order to turn this
Speaker 4: stuff over. But with the caveat that, but if it's
Speaker 4: confirmed by the second circuit, Okay, once you turn over
Speaker 4: your computer and your phone and all this stuff for imaging,
Speaker 4: you can't then take it back. Right. Once Chevron has
Speaker 4: all this stuff and has seen it, they're not gonna
Speaker 4: unsee it. So anyway, there was back and forth. Once
Speaker 4: the civil contempt charges were filed. There was back and
Speaker 4: forth between you know, Donziger, who's like, I can't do this,
Speaker 4: it will endanger the folks at Ecuador, and then you know,
Speaker 4: he just he refused, and eventually Chevron kept asking for
Speaker 4: the civil contempt which was ordered, and in twenty nineteen,
Speaker 4: in the summer, Kaplan filed criminal contempt charges and then
Speaker 4: ordered them to appear. I think it was early August
Speaker 4: in front of Judge Loretta Prescott.
Speaker 2: So that's how they ended up there.
Speaker 1: So I know, we have some news from Donziger's criminal
Speaker 1: contempt proceedings, which we started this season talking about, and
Speaker 1: I was hoping you could kind of tell me what's
Speaker 1: happening now. I know they've asked for some extensions and
Speaker 1: some things have been going on. What's the latest.
Speaker 5: Yeah, So he's been asking for an extension until early
Speaker 5: December since late summer for a variety of reasons, you know,
Speaker 5: one of which is the COVID nineteen crisis.
Speaker 2: You know, just the safety of people being in.
Speaker 4: An enclosed courtroom for potentially two or three weeks, however
Speaker 4: long the trial takes. So there's that consideration to safety.
Speaker 4: And then you know, in that same vein is that
Speaker 4: the witness many of his witnesses are in Ecuador or
Speaker 4: I think there's one in Spain, in different places, and
Speaker 4: so just travel there back and forth is not possible.
Speaker 4: But the judge has just repeatedly denied request to move
Speaker 4: the trial to that December date.
Speaker 2: And the December date was actually brought up because he's had.
Speaker 4: A number of couple of his attorneys were disqualified because
Speaker 4: of their previous involvement in some of the stuff that's
Speaker 4: going to be at the heart of this trial, and
Speaker 4: a couple one has withdrawn and another one is like
Speaker 4: eighty seven, and he's worried about the COVID crisis, and
Speaker 4: so can't, you know, can't represent Steven. So he right
Speaker 4: now just has one attorney, Lauren Ragan, who's amazing, but
Speaker 4: she is in Oregon and is trying to decide whether
Speaker 4: or not she can be there in person.
Speaker 3: It's just been so bizarre, Like I've you know, since
Speaker 3: becoming the last of the lawyers on his team.
Speaker 4: You know, I thought by you.
Speaker 3: Know, taking kind of a respectful professional approach and just
Speaker 3: sort of saying like I'm the only lawyer and I'm
Speaker 3: in Oregon and we have all these Ecuadorian witnesses, Like
Speaker 3: what are we going to do? You know, I assume
Speaker 3: I mean almost every other federal court that I'm in
Speaker 3: right now, which I have three other federal court cases
Speaker 3: of California, one in Iowa, and one in Colorado, and
Speaker 3: all of them have punted big selony, you know, major
Speaker 3: case trials to like march, you know, one we have
Speaker 3: a status called in December just to reset it again.
Speaker 3: Like all federal courts are just sort of like, we
Speaker 3: don't want you in our space. And if the client
Speaker 3: isn't demanding a trial now, you know, like if they're
Speaker 3: not in custody and you know, demanding a trial, the
Speaker 3: courts are just sort of like, great, we don't have
Speaker 3: to deal with you right now, you know, by bye, right.
Speaker 3: The fact that this court is prioritizing a petty misdemeanor
Speaker 3: just really kind of illustrates the level of vindictiveness and
Speaker 3: retaliation that's going on here. And I think also just
Speaker 3: like you know, the power of Chevron to influence the
Speaker 3: legal system has been pretty daunting.
Speaker 4: But even before we back up, because in August, like
Speaker 4: they kind of realized that this was going to be
Speaker 4: somewhat of the situation. So Ronald Kooby from New York,
Speaker 4: who's a pretty well known attorney here, had volunteered to
Speaker 4: represent Stephen pro bono. But you know, as do, his
Speaker 4: calendar is busy. He's a really good player in his talent.
Speaker 4: He's got things planned out.
Speaker 6: When we're talking about a defendant who is on home
Speaker 6: confinement charges that are among the most minor or the
Speaker 6: least serious that can be found. We are in the
Speaker 6: middle of a pandemic, and he has a far flung
Speaker 6: legal team that said in the summer, we can't try
Speaker 6: the case in September. You know that, Judge, Let's put
Speaker 6: it on for December seventh, where he can have council
Speaker 6: of choice who's here in New York, avoiding the mature
Speaker 6: problems unless the city is locked down again. It's extraordinary,
Speaker 6: it's unprecedented. I've never seen such totally reasonable requests be denied,
Speaker 6: and especially denied in such a nasty fashion.
Speaker 2: And eventually the trial, which was, like you said, schedule.
Speaker 4: For early September, was moved until initially it was scheduled.
Speaker 2: For election day to start November.
Speaker 4: And so Stephen and Laura Reagan and them are like,
Speaker 4: you know, we can't do.
Speaker 6: That, and this judge said, oh, my mistake, I forgot
Speaker 6: it was November third. I mean, this judge is a
Speaker 6: member of the Federalist Society. Nobody forgot this election is
Speaker 6: November third. If there's one date it is seared into
Speaker 6: American consciousness is November third. So then she changed it
Speaker 6: instead of to December seventh, she changed it to November fourth.
Speaker 1: So then initially she changed it to November fourth, and
Speaker 1: then there was another request for delay. And now where
Speaker 1: are we at.
Speaker 4: So the next request for delay was really because of
Speaker 4: these witnesses couldn't get to New York. And you know,
Speaker 4: with the COVID nineteen crisis getting worse and worse, New
Speaker 4: York is actually fairly doing fairly well with that, but
Speaker 4: other places are not.
Speaker 2: And so you know, the travel restrictions from other places
Speaker 2: to New York are increasing, so.
Speaker 4: In order to accommodate the witnesses who are now going
Speaker 4: to have to testify remotely.
Speaker 2: She ordered the delay.
Speaker 4: She allowed a five day delay to kind of figure
Speaker 4: out what the parameters are going to be for what
Speaker 4: the procedures will be for video witnesses. So that's kind
Speaker 4: of in the process. Now there's been some kind of
Speaker 4: back and forth on that, and I think she just
Speaker 4: issued an order today kind of clarifying what her perspective
Speaker 4: is on that. And so it's scheduled to start on Monday.
Speaker 1: The trial is scheduled to start on Monday, November ninth, right,
Speaker 1: that's right. And I know Reagan submitted a request to
Speaker 1: basically remove herself because she wouldn't be able to come,
Speaker 1: and PRESCA denied that. Right, So why is that, I'm not.
Speaker 4: Exactly sure, other than the fact that it's so late,
Speaker 4: why that delay or why that was rejected, But it
Speaker 4: was and it seems, you know, I'm clearly not a lawyer,
Speaker 4: but when attorneys. One of Laura Regan's problems or issues
Speaker 4: with this and reasons for wanting to be withdrawn was
Speaker 4: that she felt uncomfortable representing don Zigger in a different
Speaker 4: court where she's not used to practicing in a different
Speaker 4: state where she doesn't live. And the normal procedure is
Speaker 4: that when attorneys do that, you know, attorneys will go
Speaker 4: from state to state or whatever.
Speaker 1: But they'll have like local council too, and Ronald QB
Speaker 1: is supposed to be that guy. But they won't delay
Speaker 1: the trial till he can be there.
Speaker 4: Right And I think another one of her concerns is
Speaker 4: that she came into this case I believe it was
Speaker 4: early July, maybe late June, and with the understanding that
Speaker 4: she would be working with a team of other lawyers,
Speaker 4: and she, I don't think ever planned on being the
Speaker 4: I know she didn't plan on being the only one
Speaker 4: to work on this case.
Speaker 2: And so that I think is something.
Speaker 4: Where she feels like, you know, she needs time to
Speaker 4: get herself completely prepared. And this is a huge case
Speaker 4: that's been going on in some forms since nineteen ninety three,
Speaker 4: and so that's understandable.
Speaker 1: The other thing that Ronald talked to me about, and
Speaker 1: I don't know if Lauren talked to you about this too,
Speaker 1: but was that you know, a lot of this is
Speaker 1: really setting up any decision PRESCA comes to for for appeal,
Speaker 1: and in fact, they've already appealed to the Second Circuit
Speaker 1: over some of the earlier things that were not addressed,
Speaker 1: and Ronald QB seemed to think that that basically the
Speaker 1: appeals court was saying, like, come back to us once
Speaker 1: the decision is made. So it's just it's I mean,
Speaker 1: that's that's part of the reason that judges will often
Speaker 1: coordinate with lawyers because one of the easiest ways to
Speaker 1: reverse a decision on appeal is lack of access to counsel.
Speaker 1: It's a pretty like fundamental part of the legal system.
Speaker 4: Right, and you brought up a second circuit, which I
Speaker 4: think is another really important point is that the civil
Speaker 4: contempt charges that are the underpinning of the criminal charges
Speaker 4: are under appeal. Those oral arguments were heard maybe September,
Speaker 4: but the decision hasn't hasn't come out yet.
Speaker 2: So if the Second Circuit.
Speaker 4: Were to decide in Donziger's favor, then the whole thing
Speaker 4: is moved. There. You know, there are no criminal contempt
Speaker 4: charges if there were no civil contempt charges, So I
Speaker 4: think that's a really big deal that I'm not completely
Speaker 4: sure how common that is that they.
Speaker 2: Don't wait for that appeal.
Speaker 1: So there's six different charges but all together, the maximum
Speaker 1: sentence that he would receive is six months in jail
Speaker 1: or five thousand dollars, which is kind of crazy because
Speaker 1: he had to put up eight hundred thousand dollars in
Speaker 1: bail and he's been on house arrest for over a year.
Speaker 1: They have some funny tape from Ronald about that.
Speaker 6: Let's remember what's at stake here. These are six federal
Speaker 6: Class B misdemeanors. Yes, they are, you know, a step
Speaker 6: above smoking pot in a national park, but a step
Speaker 6: below almost every other federal crime you've ever heard of
Speaker 6: in your life. The maximum penalty Donziger is facing is
Speaker 6: six months in jail. So it's not as though this
Speaker 6: is a trial of El Choppo that must go forward.
Speaker 6: For the massive security procedures, in the concerns that are
Speaker 6: all around us about you know, due process. The eyes
Speaker 6: of the world are making sure that El Choppo goes
Speaker 6: to trial. He's the head of this car.
Speaker 4: Now.
Speaker 6: Oh, these are a bunch of crappy little misdemeanors.
Speaker 1: In some ways, I feel like Chevron shoots themselves in
Speaker 1: the foot because whatever legit complaint they may have had,
Speaker 1: this is just so like, so far, Yeah, totally.
Speaker 4: And then like he's like Steven Donoker said, He's like,
Speaker 4: this is retaliatory.
Speaker 1: And it looks like that. You know, It's like, even
Speaker 1: if it didn't start that way, it now looks that
Speaker 1: way because it is so extreme. And then you have
Speaker 1: like this judge who's been told that the US Attorney
Speaker 1: doesn't even want to try the case. At that point,
Speaker 1: most judges just let something go, you know. But then
Speaker 1: to go and find a private a private prosecutor firm,
Speaker 1: and then the fact that they have ties to Chevron,
Speaker 1: like it just looks bad.
Speaker 2: I don't remember who.
Speaker 4: One of the people I talked to or read something
Speaker 4: from said, you know there are New.
Speaker 2: York we have that's Ronald QB. Yes, yeah, there are
Speaker 2: prosecutors everywhere.
Speaker 4: Why not pick someone who has absolutely nothing to do
Speaker 4: with Chevron, who has nothing to do with anything, and
Speaker 4: ask them to.
Speaker 1: Prosecute Yeah, I'm going to play some tape from Ronald
Speaker 1: about that too.
Speaker 6: Well. The Southern District of New York was asked by
Speaker 6: Judge Camplan to take over the prosecution and they said, no, no,
Speaker 6: we don't have the resources to spare right now. That
Speaker 6: was undoubtedly bullshit. They have all the resources they need.
Speaker 6: It is, you know, a vast prosecutorial apparatus. What they
Speaker 6: didn't want to do was prosecute this case because the
Speaker 6: case is bullshit. That's a technical legal term. Well, there
Speaker 6: is a provision in the Federal Rules of Criminal Procedure.
Speaker 6: When the government refused to prosecute a case, the judge
Speaker 6: in a contempt case can designate a private law firm
Speaker 6: or a private lawyer to conduct the prosecution. On behalf
Speaker 6: of the United States of America. Here in the Southern
Speaker 6: District of New York, we have thousands of ex assistant
Speaker 6: United States Attorneys. You see them all the time on
Speaker 6: MSNBC Assistant the United States Attorney for this other district
Speaker 6: of New York. There's an endless supply of them. Instead
Speaker 6: of going to one of those folks and somebody with
Speaker 6: a reputation who had earned a reputation in the prosecutor's
Speaker 6: office for integrity and propriety, of which there are many,
Speaker 6: he went to the law firm of Seward and Kissel,
Speaker 6: which has a long relationship with the oil and gas industry,
Speaker 6: and he appointed them.
Speaker 1: Actually, you know, I have some I have some good
Speaker 1: tape from our like one of our first conversations with
Speaker 1: Donziger about Seward and Kissel and their whole background.
Speaker 7: Over time, we had a sneaking suspicion that Seward and
Speaker 7: Kissel and Rita Glavin and the whole firm had ties
Speaker 7: to Chevron. And we noticed that the Chevron lawyers from
Speaker 7: another Chevron private law firm, Gibson Done the Crutcher, which
Speaker 7: had taken the lead and you prosecut and persecuting me
Speaker 7: for ten years in the Rico case, that they were
Speaker 7: showing up that all of my court hearings in the
Speaker 7: criminal contempt case, some of their lawyers were talking and
Speaker 7: sort of, you know, talking in a very friendly, extensive
Speaker 7: way with the so called independent prosecutor from the corporate
Speaker 7: law firm. This was back August September. You know, I'm
Speaker 7: now talking to you in May. What we learned a
Speaker 7: month ago is even more shocking, which is that they
Speaker 7: finally admitted the Seward and Kissel firm that's prosecuting me.
Speaker 7: They finally admitted that Chevron is a client of the
Speaker 7: law firm Chevron itself.
Speaker 4: That's interesting about that is that it wasn't disclosed upfront
Speaker 4: if Donziger and his team at that point. Hadn't asked
Speaker 4: for this full disclosure, it would never have come out,
Speaker 4: and even when it did, in reading, the report is
Speaker 4: kind of minimized.
Speaker 8: You know, we are free from conflicts and we haven't
Speaker 8: represented Chevron in over year or something like really like, wow, okay,
Speaker 8: wait a minute, hold them.
Speaker 1: I don't know anything else you think folks should know.
Speaker 4: The one thing that strikes me in their rush to
Speaker 4: get this case tried during COVID is that, you know,
Speaker 4: there are.
Speaker 2: A number of people waiting for trials.
Speaker 4: And a good chunk of those folks are most likely incarcerated.
Speaker 1: It seems like something that is meant to send a
Speaker 1: message about how attorneys should look at taking on cases
Speaker 1: against big companies.
Speaker 6: Yeah.
Speaker 3: I keep telling people this is sort of like a
Speaker 3: flap on steroids, where you know, the biggest kid on
Speaker 3: the block, you know, the biggest spoil and gas corporation
Speaker 3: has made it their goal to scare lawyers away from
Speaker 3: doing them, you know, and other industries. I mean, I
Speaker 3: really feel like that's sort of what this is really.
Speaker 2: About, exactly exactly. I mean, think about it.
Speaker 4: If you're a young attorney just out of law school
Speaker 4: trying to decide which way to.
Speaker 2: Go with your career.
Speaker 4: Will you choose to go up against a big corporation?
Speaker 4: And if you do, how rigorously would you push that?
Speaker 4: You know, I think the message that it sends, like
Speaker 4: like so many other people have said, is chilling.
Speaker 2: And you know, when Steven said this is retaliatory.
Speaker 4: Regarding the civil contempt, I kind of, you know, as
Speaker 4: a reporter, I'm like, Okay, everything people say, I have
Speaker 4: to kind of look into.
Speaker 2: And as I looked into that, with the delays.
Speaker 4: And with refusing to schedule in accordance with the attorney's
Speaker 4: schedules and all of these things added up together, I
Speaker 4: couldn't say no, it's not.
Speaker 1: Yeah, we will be watching this unfold on Monday. It's
Speaker 1: entirely possible that there will be some sort of last
Speaker 1: minute change, because that's happened like a few times in
Speaker 1: this case. So we'll keep people updated on that.
Speaker 2: I'm going to go in person.
Speaker 1: Maybe we'll have you give us a little update after that.
Speaker 1: Hearing Too Drilled is an original production of the Critical
Speaker 1: Frequency podcast Network. The show was created, reported, and written
Speaker 1: by me Amy Westervelt. My co reporter this season is
Speaker 1: Karen Savage. Our editor is Julia Ritchie. The show's editorial
Speaker 1: consultant is Rika Murthy. Mixing and mastering by Mark Bush,
Speaker 1: original score by b Beman, fact checking by Woodan Yan.
Speaker 1: Our artwork for this season was done by the super
Speaker 1: talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gertz.
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Speaker 1: Dot's it for this time, Thanks for listening, and we'll
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Speaker 6: Stay