A federal appeals court in Manhattan heard dueling arguments Tuesday over whether to throw out the criminal conviction of environmental lawyer Steven Donziger on constitutional grounds.
Donziger has been imprisoned since Oct. 27 for criminal contempt in connection with his long-running legal battle with Chevron Corp over oil pollution in Ecuador. His lawyers say the private attorneys appointed as special federal prosecutors in his contempt case lacked supervision by a higher U.S. authority, violating the Constitution’s Appointments Clause.
Arguing before a three-judge panel of the 2nd U.S. Circuit Court of Appeals, Donziger’s lawyer Stephen Vladeck said Tuesday that because the special prosecutors acted as officers of the United States without proper supervision, the court must exercise its authority by reining them in.
“Whatever powers district courts still have to appoint a prosecutor to try criminal contempt, that power must be limited,” Vladeck said.
One of the special prosecutors, Rita Glavin, countered that “I do want to say for the record that at no point did we state that we were not under the supervision of the attorney general.”
Donziger, who was disbarred in New York last year, was charged in 2019 with failing to turn over his computer and other electronic devices in the Chevron pollution case. In that case, a Manhattan judge in 2014 barred enforcement in the United States of a $9.5 billion judgment that Donziger won against Chevron in Ecuador, finding it was secured through bribery, fraud and extortion.
A federal judge in Manhattan appointed the special prosecutors after the Department of Justice declined a court referral to prosecute him.
During Tuesday’s arguments, U.S. Circuit Judge Steven Menashi asked Glavin, “if the policy of the United States was they don’t want Mr. Donziger prosecuted, you would abide by that policy?”
“If they directed me to take that position in court, yes,” Glavin responded, adding later that she was subject to “a mix of judicial and executive supervision.”
Justice Department attorney Robert Parker told the panel that the special prosecutors were not acting as officers of the United States to begin with, undercutting Donziger’s Appointments Clause argument.
Donziger, meanwhile, has continued to generate support outside the courtroom. On Monday, nine members of Congress sent a letter to U.S. Attorney General Merrick Garland asking his office to “rectify the unprecedented and unjust imprisonment of Mr. Donziger.”
The case is United States v. Donziger, 2nd U.S. Circuit Court of Appeals, No. 21-2486.
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