The Devil and the Harvard Lawyer

For some years now the "Amazon Chernobyl" has been an environmental cause célèbre. Texaco is alleged to have polluted the Ecuadorian Amazon and poisoned its indigenous inhabitants.  As the successor in interest to Texaco, Chevron has been sued for years by counsel representing 30,000 Amazonians, but asserts that Texaco cleaned up its own spill and left the country decades ago, while current pollution is the result of the later (and ongoing) shoddy operations of Ecuador's government-owned oil company.

The documentary film "Crude," directed by Joe Berlinger, wholeheartedly adopts the position of the indigenes, who are represented by New York's Harvard-trained plaintiff's lawyer Steven R. Donziger.   Admirers of "Crude" were thrilled when, several years ago, Donziger won an $18 billion judgment against Chevron in an Ecuadorian court.  Like the makers of "Crude," Wikipedia also wholeheartedly adopts Donziger's position, but today added an interesting offhand link to an unwelcome development:   a federal district court in New York handed down a 500-page judgment on Tuesday enjoining Donziger and others from profiting from enforcement of the Ecuadorian judgment, including Donziger's expected $600 million share of the fee, on the ground of a RICO conspiracy to corrupt the Ecuadorian trial.

I've never read anything quite like the judgment, which details a long and lurid story in dispassionate and organized prose, detailing the many instances in which Donziger and his allies betrayed their troubled consciences:

Indeed, [wrote the court,] one Ecuadorian legal team member, in a moment of panicky candor, admitted that if documents exposing just part of what they had done were to come to light, “apart from destroying the proceeding, all of us, your attorneys, might go to jail.”

“Deal with Gustavo Pinto [Donziger wrote in his journal] – feel like I have gone over to the dark side.  First meeting like that I was not eaten alive.  Made modest offer, plus bonus.  Agreed to keep it between us, no written agreement.  Independent monitoring.”

The exposure feared by the whole team included a bewildering array of dirty tricks, including extortion and bribery, striking at the heart of the case against Chevron.  Supposedly independent experts were pressured to abandon analytical techniques that implicated the Ecuadorian government's drilling operations rather than the much earlier ones of Texaco; expert reports apparently were ghostwritten or even forged.

That this story can be told in any detail is a testament, not only to the power of unguarded (and incompetently encrypted) email communications, but to Donziger's insatiable desire for publicity:  it's the out-takes from the filming of "Crude" that put many of the nails in his coffin:

“[A]ll this bullsh*t about the law and facts but in the end of the day it is about brute force....” 

“[A]t the end of the day, this [i.e., the lack of evidence on a key point] is all for the Court just a bunch of smoke and mirrors and bullsh*t.  It really is.” 

Donziger doesn't seem to have considered the danger of letting the cameras roll during some of these frank discussions; he went so far as to reassure a member of Amazon Watch, who asked whether the film clips might one day be subpoenaed, that it couldn't happen under Ecuadorian law.  (Pro conspirator's tip:  if one of you starts wondering if the video might be subpoenaed, stop conspiring until you've turned off the camera.)

The New York federal judge concludes there's little doubt that Donziger orchestrated a RICO conspiracy that included a $500,000 bribe to the Ecuadorian judge--though that's really only a minor part of the extended corruption.  (It's actually hard to keep track of the Ecuadorian judges in the case, so many of them having been removed from office for corruption or by naked political fiat.  Towards the end of the New York judgment is a lengthy and dispiriting account of the collapse of the Ecuadorian justice system at the hands of President Correa.)

Donziger is an interesting man.   He attended Harvard law school not only with Barack Obama, his sometime hoops-shooting buddy, but with the grandson of a former Ecuadorian president, who got him interested in a brewing scandal over oil operations in the Amazon.  Donziger quickly got an accurate grip on the realpolitik of the Ecuadorian justice system in the 21st century, concluding that justice had almost nothing to do with it and politics was everything.   People give that rap to the U.S. system, too, without any genuine understanding of the very minor degree to which it's true here, in comparison with the thorough-going truth of the accusation in Central and South America.

What's remarkable about Donziger is that he kept a diary, that he didn't destroy it, and that he allowed it to be produced to an honest court:

Donziger viewed the Ecuadorian courts as corrupt, weak and responsive to pressure – as institutions that, at best, “make decisions based on who they fear the most, not based on what the laws should dictate.”  In a particularly revealing comment, made in his personal notebook, he wrote that “the only way the court will respect us is if they fear us – and that the only way they will fear us is if they think we have . . . control over their careers, their jobs, their reputations – that is to say, their ability to earn a livelihood.”

That and, of course, the fact that he allowed a fawning documentary film crew to follow him around and record his frank and off-the-cuff descriptions of his own cheerful collaboration in a corrupt system.  

To tell the truth, I'm a little impressed that Donziger maintained as much internal integrity as he seems to have done: he was clearly aware of when he "went over to the dark side."   A truly corrupt man would have lied to himself more, and avoided leaving so many of his own fingerprints on the critical decisions.   Donziger doesn't seem to have put any serious effort into setting up a scapegoat to take the fall for him.  It's even possible that he believes to this day that he was on the side of the angels, ready to use any weapon necessary to get "justice" for the Ecuadorian Amazon peoples.

I have to wonder, though, whether he cares enough to try to make a fair determination of who caused whatever pollution they are now suffering from. It is the besetting sin of a plaintiff's lawyer (and many crusaders for social justice) to care only who has the deepest pockets to ameliorate the victims' financial and social burdens.  Donziger may even believe that the real purpose of his expected $600 million fee was to finance his future heroic escapades:

“Yeah, but, that is evidence. . . .  Hold on a second, you know, this is Ecuador, okay . . . . You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want.  Sorry, but it’s true. . . .  Okay.  Therefore, if we take our existing evidence on groundwater contamination which admittedly is right below the source . . . .  And wanted to extrapolate based on nothing other than, our, um, theory that it is, they all, we average out to going 300 meters in a radius, depending on the . . . gradient.  We can do it.  We can do it.  And we can get money for it. . . .   And if we had no more money to do more work, we would do that.   You know what I’m saying? . . .  And it wouldn’t really matter that much. . . .  Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullsh*t.   It really is.  We have enough, to get money, to win.”

And yet a coverup of the culpability of the Ecuadorian government's drilling agency in favor of sticking the liability to deep-pocketed Chevron, the successor to a company that may well have entirely remediated the only spill it ever caused, only ensures that whatever pollution is now affecting living, breathing Amazonian residents will not be stopped.