On October 1, 2021 at the Southern District of New York RepairRestoreSafeguard (MN) monitored the sentencing in US v Steven Donziger, Nos 19-cr-561 (LAP), 11-civ-691 (LAK), a contempt of court prosecution within one of the largest and most complex environmental disputes ever litigated. Initiated against Texaco (now owned by Chevron) 28 years ago its suits, countersuits, arbitration and prosecution have been heard on three continents and at The Hague with no end in sight. Three overflow courtrooms with closed-circuit TV were needed to accommodate the media, monitors representing international organizations, and the interested public. Donziger supporters rallied at 8:30 AM before the courthouse. A friendly lawyer from the diplomatic world got me a corner seat in the jury box: perfect view, at the court’s eye level.
No case can become this big a mess unless both sides and the courts are playing. After a cursory layman’s review of the record I believe that while well-intentioned Donziger is both incorrigibly corrupt and almost suicidally stupid but neither alters his constitutional rights in the justice system. Nothing explains or excuses their abridgment by the courts. Abridging them while he was fighting the great for the small can have the effect of deterring other public-interest advocacy, work no society can afford to dissuade.
Please join us down the rabbit hole.
For simplicity this report mostly uses “Chevron” for the entity, its in-house and its retained counsel; primary counsel here is Gibson, Dunn & Crutcher.
Disclosure: In 2013 I filed with the Judicial Conference (unrelated to Donziger) regarding two of the judges in this case’s many US proceedings: a member of the appellate panel that partly affirmed, partly reversed and partly vacated the judgment and orders in Chevron v Donziger, Nos 18-855-cv (L), 18-2191-cv, 19-1584-cv, (2d Cir, March 4, 2021), and the judge presiding today.
Case History, Pt I
“It’s a great huge game of chess that’s being played--all over the world--if this is the world, you know.”
Facts Chevron no longer disputes include: that Texaco, as sole operator of a consortium with Gulf Oil and the Republic of Ecuador (“ROE”)’s national oil company Petroecuador, drilled on 1,700 square miles of the Lago Agrio region from 1964-1990; that in an apparent attempt to externalize costs of production it dumped over 16 billion gallons of toxic oil waste and 17 million gallons of crude in lakes, rivers and roughly 900 open, unlined swimming-pool-sized pits; that oil waste can increase rates of cancers and birth defects; that the region’s population is 30,000, mostly indigenous, largely farmers; that five peer-reviewed studies (including one by USNIH) have shown cancer has increased among them, rebutted by one peer-reviewed study whose author failed to disclose longterm consulting for Chevron; that 35% of the population no longer has water they can drink; that the unfenced pits have claimed livestock.
Almost every decision in the record should be asterisked.
From 1964-74 the consortium was just Texaco and Gulf. The 1973 agreement giving ROE the option of joining requires preserving natural resources and bars pollution. It was under this agreement that ROE bought a stake in 1974 and bought out Gulf in 1976. Texaco remained the sole operator until 1990.
In 1993 Texaco was sued in the Southern District of New York (Aguinda v Texaco, 142 FSupp2d 534, [SDNY 2001] aff’d as modified, 303 F3d 470, 473 [2d Cir 2001] “Aguinda I”) by an environmentalist group whose legal team included Mr. Donziger, then two years out of law school. The class action sought an injunction to conduct a full clean up, restore access to hunting and fishing grounds, and set up environmental and medical monitoring; also restitution.
After doubling ROE’s economy Texaco’s political power with the ruling junta had long been absolute. In contrast, indigenous activists had clashed with government, at times violently. Texaco made an exit agreement with ROE in 1995, renegotiated several times until 1999. Arguing that Petroecuador had eventually become the majority partner Texaco only agreed to clean up 168 pits. It spent $40M on this. Dozens of waste pits were cleaned up. Others were only capped with cement, leaving the pollutants underneath. Still others were simply covered with dirt and leaves, or not touched.
The 1995 agreement limited enforcement to existing environmental laws. Dumping toxic waste was not yet a crime but ROE’s legal code requires good faith and allows cancelling contracts for legal reasons. Torts will be indemnified, and malice or negligence will be compensable. After a change of government ROE’s comptroller would sue the signers of the 1995 contract for criminal falsity, procedural fraud, and corruption. 1998’s agreement releasing Texaco from liability was based on fraudulent certification that it had completed the cleanup. Two Chevron lawyers were later indicted for their parts in the certification fraud. Chevron would also try to bar suits by residents based on the 1995 agreement’s assertion that protection of public health is a state responsibility, which of course it is but which an ROE court correctly held has no bearing on whether the public can also protect its own health.
It’s worth a thought that Chevron’s inherited agreement lets them pass on any losses by fines or damages to that nation’s taxpayers through Petroecuador. No court has yet held this up to scrutiny. We haven’t gotten that far.
Texaco wanted to be sued only in Ecuadorian courts. SDNY accepted this, dismissing in 1998 for lack of jurisdiction, especially since ROE was not a party. ROE joined the case, so the circuit remitted it back to the district. The next year Texaco and ROE renegotiated their agreement: Cases could only be tried in ROE. Lawyers from what was then Chevron-Texaco appeared, later held significant to binding Chevron. In 2001 the district court, affirmed by the circuit, dismissed Aguinda I for lack of jurisdiction. The same year, Texaco melted away into Chevron.
Texaco had outwitted its pursuers. Residents had neither a cleanup nor restitution for wasted farmland, contaminated water, damaged health and lost lives. They admitted defeat.
Then “Bananas” came out, a David-and-Goliath documentary about another group in another South American country who’d beaten an agricultural giant by fighting corruption with corruption. Steven Donziger started his own cleanup company and legal team and in 2003 refiled (Aguinda II) in ROE.
When ROE’s government changed in 2006 it switched sides. The case began spreading like an oil spill. The Ecuadorian attorney general would learn that Texaco had spoken privately with ROE’s president, offering to drop an arbitration it had fi2led with the UNCITRAL Arbitration Tribunal at the Hague if he’d falsely allege the existence of a 1993 remediation contract and its fulfillment. The arbitration was dismissed anyway. In 2009 Chevron filed again at the Tribunal (PCA No 2009-03), claiming ROE had violated the 1999 agreement by letting it be sued.
Meanwhile, Donziger interested a documentarian in the case. “Crude” was released in 2009.
A 2009 email by Chevron’s PR firm revealed their longterm strategy: “to demonize Donziger.” Since this was two years before the Aguinda II verdict it’s relevant to that case’s conduct. They sued the documentarian for access to all footage whether used in the final product or not.
Chevron did a little filming of its own. One judge was forced off Aguinda II after a taped bribery sting involving a cleanup contract. Later the company compensated the fake bribe-seeker, a onetime Chevron contractor.
Chevron requested a criminal investigation of the judge then presiding. That would give them access to internal government documents. ROE dismissed the attempt as “malicious and reckless.” But filing a RICO case against Donziger would give it access to sealed documents for years. ROE opened a criminal investigation of Chevron but its sealed documents are off-limits to the Aguinda plaintiffs.
In 2010 Chevron won the “Crude” suit.
Donziger had handed them power. They used it, filing their first RICO civil suit at SDNY. Chevron now claimed the ROE courts’ “systemic weakness and corruption” forced a US case. It was dismissed. They filed again.
Donziger and his team would fail to dispute allegations of fact about the conduct of Aguinda II and its appeal. Maybe they expected dismissals for relevance. The gang that couldn’t shoot straight bribed a judge who wouldn’t decide the case since ROE rotates jurists among cases in progress, set up falsified reports then didn’t submit them, bribed expert witnesses who neither testified nor wrote reports. In a “Crude” outtake, an expert witness required to be neutral attends a legal strategy meeting. Donziger has a camera-ready personality: He was taped making macho remarks like “if we need weapons, we can provide weapons” and responding to concern that a judge might be killed for ruling against locals, “He thinks he will be, which is just as good.” They’d later coerce that judge into misconduct. By threatening him with a misconduct complaint. But he wouldn’t decide the case either. The paranoid team began using code in e-mails, but managed to choose code words (like puppet and puppetmaster) that sounded criminal. The Tribunal would call the use of code “the sign of nefarious conduct and guilty minds.” Weird is this case’s middle name, but corruption and coercion are no joke. Donziger has since been disbarred. It’s probably for his own good.
In 2011 the Aguinda II plaintiffs won--at $17.292 billion, the largest environmental award against an oil company in history.
All three levels of Ecuadorian appellate courts would affirm the judgment because the fraud had been discovered prior to judgment and the ruling judge affirmed that he’d discarded the tainted report eventually filed. Canada’s Supreme Court would affirm enforcement for Chevron holdings there, but it would be denied in the US, Argentina and Brazil. The plaintiffs have yet to recover.
Start with repetitive actions and motions all around in an endless, vexatious caucus-race. But Chevron had its in-house counsel, over 100 attorneys at Gibson, Dunn, and dozens from other firms working on the case, at one point serving over 10,000 pages of pleadings per month: repetitive motions to reinstate dismissed claims or for case-ending sanctions, and a stream of discovery motions. Just in the US they filed 23 actions in multiple states. The plaintiffs’ case was funded by donations and prospective shares of the judgment. After an $800,000 judgment requiring him to pay Chevron’s legal fees Donziger would at times represent himself or be represented pro bono.
Chevron went after funders. They coerced a firm representing the plaintiffs in other countries to switch sides by suing them as non-party co-conspirators. They lobbied two administrations to threaten ROE with ending trade preferences unless they settled. They contacted clients and insurers of an involved environmental-study company to warn that its experts were about to be prosecuted, while attacking in the media to give this credence.
The closest thing to justice here is the ROE cassation court’s Solomonically splitting the award, daring either party to prove itself the false mother by filing anything further on the case in ROE. On the record forward of that, depriving attorney benefit on both sides would serve justice better and would still leave us the question of the courts’ own conduct.
Chevron’s civil RICO suit called the Aguindas a sham whose sole purpose was “to extort [Chevron] into paying to stop the campaign against it.” It was closed and reopened, closed and reopened. Judge Kaplan of SDNY referred Donziger’s team’s conduct to the USAO for prosecution. The US attorney declined to institute any civil or criminal action. SDNY let Chevron proceed anyway with Chevron Corp v Donziger, 833 F3d 74, (2d Cir 2016), cert denied, 137 S Ct 2268 (2017), a civil RICO suit against the Aguinda II lawyers and its 49 named plaintiffs.
When the People is a Person:
Special prosecutor, special counsel, and independent counsel have been used at various times for a private prosecutor appointed when a case might create a conflict for public prosecutors.
Are they constitutional? They're not expressed. We managed without them for nearly 100 years. President Grant appointed the first. Presidents Coolidge, Theodore Roosevelt and Truman followed. Meanwhile Congress vested the AG with power to appoint special attorneys for Tribal-country prosecutions and other unusual situations (currently 28 USC 543, under 28 USC 2801 et seq and 28 USC 533; see also 18 USC 1152; other relevant law summarized in US v Johnson, 637 F2d 1224 [9th Cir 1987]).
Until Watergate, we thought nothing of this. But when five men were caught breaking into the headquarters of the Democratic National Party to bug them a criminal prosecution was needed that clearly might reach the White House. What if it implicated the president? The DOJ prosecutes federal crimes. But the AG, US attorneys and solicitor general are appointed by the president. We had a self-policing problem.
The district court appointed a special prosecutor in the Executive branch. Chaos ensued. President Nixon demanded that AG Mitchell fire the special prosecutor. The AG resigned in protest, the deputy AG became the acting AG, the president demanded that the acting AG fire the special prosecutor, the acting AG resigned in protest, and the president appointed another acting AG who fired the special prosecutor. Another was promptly appointed. There was no out for Nixon.
The Ethics in Government Act of 1978, Pub L 97-409, 92 Stat 124 et seq (exp’d 1989) and subsequent Acts vested the AG with conducting a preliminary investigation of potential grave violations of US law by high-level US officers. If needed the AG could then ask the DC Circuit to create a panel of 3 of its judges to appoint an independent counsel to investigate further and prosecute if needed (28 USC 591-599). This was upheld in Morrison v Olson, 487 US 654 (1988).
The independent counsel statute was invoked for more than 20 cases in the Carter, Reagan, Bush I, and Clinton administrations. It was allowed to expire in 1999. Instead, the DOJ promulgated regulations (28 CFR 600) letting the AG unilaterally hire and fire special counsel. Appointed solely by one branch, and the branch headed by one officer, they’re anything but neutral. Nor is the AG’s power lawful as it was self-vested without statute, without even the notice-and-comment process mandated in 5 USC 553.
Morrison was essentially overturned by United States v Arthrex, 594 US _____ (2021), Docket No 19-1434, decided June 21, 2021, following Arthrex v Smith & Nephew, Inc., 941 F3d 1230 (DC 2019).
Both Morrison and Arthrex are embarrassing decisions.
The Morrison Court held that neither Article III's vestiture of powers nor separation of powers is violated, but neither argument is quite on point. It also tries to resolve the question of when an office is superior or inferior by creating a test:
the Court affirms that a special prosecutor is an inferior officer, not subject to presidential nomination or Senate confirmation. This has the benefit of at least sounding reasonable. But it also evades the central questions.
So does Arthrex. While scorning "machinations" that "blur the lines of accountability," the Arthrex Court itself blurs the lines of accountability by machination, calling adjudication an Executive function merely because the rules being adjudicated are Executive rules.
There are two issues here.
The status of independent prosecutors versus US attorneys may be the more easily resolved of the two.
The Morrison Court never considered whether an independent prosecutor need be a public officer at all. Government can contract out functions that are not strictly governmental to private contractors.
But isn't criminal investigation and prosecution as governmental as it gets?
We already have private investigators.
The public aspect of prosecution is easily seen from the number of clauses devoted to it. But the Constitution doesn't assign prosecutors to a branch. First placed in the judicial branch, they were moved to the Executive piece by piece starting with cases involving Treasury. Finally an 1870s overhaul made Attorney General a management position and moved all prosecutorial functions under it.
Nor does the text bar private exercise. Private criminal prosecution of private citizens by private citizens was common in the Founding era. The victim of a felonious assault, say, could hire a professional prosecuting attorney to represent them, at their own expense. It’s not an exclusively public action.
If it was, we'd have a problem. Having a private person take an oath to uphold the Constitution in their actions is enough for juries, the military, and similar aggregate people’s conduct. But wouldn't be enough to hold a public office. It would create a semi-constitutional office, in violation of Article VI. We'd have to have every AUSA (there are about 6,000) nominated and confirmed instead of being civil servants under the US attorney's vestiture.
Not with any confidence. A special prosecutor can only represent the United States from outside government, where neither chains of command nor the favor-trading aspect of legislative action can defeat its function. Impartiality requires not a government appointment at all, but a private contract. It can be argued that in a democratic system a private person can only be publicly prosecuted and a public officer can only be privately prosecuted.
The underlying issue is a greater challenge.
How can we prevent or address corruption or abuse of power by special prosecutors?
Congress should have long since established detailed statutory algorithms for prosecutorial decisions. In their absence, the DOJ already acts as an independent agency making and adjudicating its own rules. These allow a great deal of prosecutorial discretion that extends to special prosecutors. The question of abuse of power by special prosecutors illustrates the question of abuse of power by ordinary ones. And as the most extreme example of an independent agency, abuse of power in the DOJ illustrates the issue of independent agencies that legislate and adjudicate their own rules, outside the branches in which the text vests those functions, and with no officers either elected or appointed by two elected branches.
What is a rule? We’ll use the word here to include any government rule, regulation, decision, order, practice, etc:
It is certainly true that performing your own branch's functions can require using a power of another branch when narrowly tailored to achieve a compelling state interest, and when no constitutionally-expressed alternative exists. But broad powers of self-legislation and self-adjudication fail both prongs of the test.
Rules categorically violate Article I §§1, 7 and 8, and officially for nothing more than convenience, so their legality is easily defeated. Convenience is by far the weakest state interest, if it’s a state interest at all. Beyond the textual bar, there's an important argument against broadly revesting legislation and adjudication: It facilitates corruption by removing public functions from offices accountable to the people by election at first or second hand, arguably these extraconstitutional functions' purpose as they operate today.
And we have a constitutionally-expressed alternative to extracongressional rules binding on the public and affecting our rights, liberties, powers, privileges, or immunities: laws.
Article I, §8 requires Congress to pass any law necessary and proper to execute laws. This plainly refers to Executive rules because Article 2, §1 affirms the people's right to be bound by the United States government only by laws made by the Article I, §7 process. This right controls. It's crucial to a republican form of government (art IV, §4). The only extralegislative law the text allows is one that only affects internal government functioning without affecting the public's rights, liberties, powers, privileges, or immunities, or binding us.
Article III is indeed violated by adjudicating rules in the Executive branch or an independent agency. The text requires that they be United States laws. They must be adjudicated as United States laws.
Neither Congress nor the courts can ever resolve the superior/inferior officer question while they avoid addressing the unconstitutional revestiture of their own powers in Executive and independent agencies. Will they? Not this Congress. Not these courts. Probably not this generation of Americans. As long as Congress stubbornly retains its dysfunctions Americans will argue that revestiture is needed despite the text. But ceding to corruption its talking points just encourages it.
Digression: Amicus Curiouser
“Fury said to a Mouse, that it met in the house, ‘Let us both go to law: I will prosecute you.’”
Let us travel to the future, briefly. After the civil RICO and contempt of court trials, Donziger will appeal the second (US v Donziger, 21-2486, 2nd Cir 2021) on the insufficient grounds that the court’s appointment of a private prosecutor violated Article II, §2’s Appointments clause.
On November 12, 2021, the DOJ will take the curiously lawless step of filing an amicus brief to argue against a criminal appeal.
On whose behalf?
Its filing says, “On behalf of appellee.”
The DOJ’s brief cites two precedents: US v Providence Journal Co, 485 US 693, 694 (1988) and Young v US ex rel Vuitton et Fils SA, 481 US 787, 789 (1987; “Vuitton”). Both are nonsense, at least on this point.
The recent practice violates FRAP Rules 32a2E (requiring a brief’s title to state the party for whom the brief is filed), 29A4D (requiring a statement of the amicus’ interest in the case and its authority to file), and 28a4A (requiring the appellant’s brief to state the basis for the district court’s jurisdiction) in conjunction. These statements must make sense when read together.
Besides, United States power must be affirmatively granted. Nowhere do we the people authorize the US to split itself into two USes so it can file an amicus brief to benefit itself.
The amicus brief's content relies on the same two cases.
This is true. A special prosecutor is really a government contractor. Appointing them defeats their purpose.
This is false.
Representing someone does not transfer their sovereignty to you, just their power of attorney. And government contractors may not exercise sovereign power. It would violate Article I, §9’s prohibition of titles of nobility (By any name privately-held, and potentially privately transferrable or heritable, sovereign power creates a nobility, changing our system into partial royalism).
This is incorrect.
Being external to government (and being vetted for relevant connections) is what affords the needed neutrality when an officer above prosecutors or a judge is prosecuted. The US is a party to a US criminal case with no neutrality to offer, so in the executive act of appointing a prosecutor it has no neutrality to give that prosecutor. Only in its Article III functions can the court assert judicial neutrality, so it can't appoint prosecutors either.
A special prosecutor is a contractor exercising their private profession as an attorney to neutrally represent the US as a party when a government prosecutor might have a conflict of interest. No matter who hires them.
When the People is a Person...and So is the Respondent
“I could tell you my adventures--beginning from this morning--
but it’s no use going back to yesterday, because I was a different person then.”
A civil RICO need not be filed by the US as a party, whether publicly or privately represented.
Wait. A what?
The Donziger courts consistently use the word prosecution instead of lawsuit. Civil cases are also prosecuted, but the lay public associates the word with crime. The word defendant can also be civil or criminal. Respondent is the other word for a sued party. We’ll use it to keep the distinction clear.
RICO was originally geared towards violent crime, illegal goods and services, corruption in government and labor unions, and commercial fraud. Civil RICO suits (18 USC 1964c) let victims of racketeering file for equitable relief after the racketeers are convicted. It’s good law. But in a corrupt era strange things happen to good laws.
“The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, “private attorneys general,” dedicated to eliminating racketeering activity.” NOW, Inc, v Scheidler, 267 F3d 687 (7th Cir 1992), 510 US 249 (1994; “NOW I”), 267 F3d 697-98 (7th Cir 2001), 537 US 393 (2003; “NOW II”), quoting Rotelin v Wood, 528 US6 549, 775 (2000).
Curiouser and curiouser!
18 USC 1964c’s phrase Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue requires a violation of 1962 before a party can sue. But the trial court’s decision falsely and misleadingly represents the predicate criminal offenses for RICO charge as mere “predicate acts” at 601. Unconvicted predicate acts do not satisfy either 18 USC 1962 or 1964. Only predicate violations do. The appellate court quotes SDNY’s grave error and even repeats the phrase “predicate acts” itself at 132. It follows this with the phrase “acts of racketeering activity.” Where discussing these acts at 132 it elides the sections of 18 USC 1964 that require a violation before a civil RICO suit can be filed.
A criminal violation is not determined preindictment.
A criminal violation is not determined preconviction.
A criminal violation is an act that has been criminally convicted.
Authorizing a civil RICO suit to proceed when no criminal charge has been filed, let alone convicted, is judicial encroachment on the executive branch. These courts just find violations of 1962 in their civil decisions. Criminal violations are not found but held, and you can’t hold them in a civil decision.
You can find a statutory civil violation in a civil decision, but that doesn’t satisfy 1964. 1964 requires a violation of 1962, and 1962 is a criminal statute.
SDNY found, and the circuit affirmed, that the respondents had committed indictable acts. Had they been indicted for them, then convicted of them, any two would have constituted RICO. That would have enabled a civil RICO suit. But with no indictment, let alone conviction, the trial and appellate courts were grasping at dream-rushes that melted away in their hands, leaving scent but not substance.
Even worse, the courts’ point seems openly to be to violate Amendment V due process like the criminal standard of proof, not to mention textual requirements for warrants (amdt IV), grand juries (amdt V), public trials with juries (amdt VI), and so on. Authorizing a civil RICO suit preconviction is deliberately unconstitutional.
And of course making laws outside Congress violates Article I §§1 and 8 and Article VI.
Are you with us so far?
When the People is a Thing
“How the creatures order one about here...!”
A private civil RICO suit need not even be by a person. A corporate entity can file it.
Some of Chevron’s filings against everyone remotely connected were obviously doomed. For example, ROE’s cassation court did not rule on procedural fraud because they didn’t present a rule that had been violated. Why file something that can’t succeed?
Can you afford this? Public prosecutors can. Giant corporations’ attorneys can. You probably can’t.
Some potential impacts on justice of preconviction civil RICO:
Justice is hard enough without this.
When the People is the Judge
“Well, it’s no use your talking about waking him,” said Tweedledum, “when you’re only one of the things in his dream.”
US district courts have decided they can file cases too.
Government functions by using powers divided up and vested in offices. A government action can require the powers of more than one office. For example, a US law is made by Congress and the president. That doesn’t split the US into two USes. Each office fulfills its own function. A US office is limited to using its own vested powers and performing its own function. Powers are not interchangeable.
The Constitution leaves vesting the prosecutorial powers to Congress under the Necessary and Proper clause but checks it by other clauses. By vesting the judicial powers in the Supreme and inferior US courts Article III, §1 bars vesting prosecutorial powers in them.
No US office can be vested with both prosecutorial and judicial power. These functions must be kept separate to establish justice, a Preambular mandate. Judicial and prosecutorial functions are mutually exclusive. Why?
To allow the US courts to take on the prosecutorial function we’d have to amend at least Article III and Amendments IV-VIII, and since keeping the prosecutorial and judicial roles separate is a state interest no state interest can exist for such an amendment.
Caselaw violates 18 USC 1962-1964 by holding that they can be interpreted to vest judges with an independent prosecutorial power instead of simply empowering them to refer RICO to prosecutors.
The 2nd Circuit in Chevron v Donziger (Kearse, Parker, Wesley) discuss an apparent circuit split on 18 USC 1962-64 but NOW II adds text to the statutes and removes text from them. Religious Technology Center v Wollersheim, 796 F2d 1076 (9th Cir 1986) reads them more closely.
Chevron v Donziger, 833 F3d at 138:
As we read section 1964, subsection (a) gives the federal courts jurisdiction to hear RICO claims and sets out general remedies, including injunctive relief; subsection (b) makes it clear that the court, on the application of the Attorney General, has authority to grant temporary injunctive relief even before there is a final adjudication; and subsection (c) provides a private right of action for any person injured in his business or property by reason of a violation of section 1962.
The court calls this the most logical reading. But it’s not a lawful reading.
It accepts the 7th Circuit’s holding in NOW II that 1964a empowers district courts to institute civil RICO actions, and that 1964b does not empower the Attorney General (“AG”) to institute them, but only to seek interim relief.
That is not an available analysis. (The Circuit at 132 elides the sections of 18 USC 1964 that require the DOJ, not the court, to institute proceedings. Would it do so if confident of its analysis?)
To distinguish 1963d’s power to seek injunctive relief for victims the circuit finds that while the US is not a person for the purposes of 1964c, it can obtain relief under 1964b, making 1964b an AG power to seek injunctive relief for the US itself.
But the court’s reasoning would also bar corporate plaintiffs like Chevron. It finds:
[W]hile the US is capable of owning property, the term “person” in RICO is used in 1964 to apply both to potential plaintiffs (subsection (c)) and potential defendants (subsection (a)). As there is no indication that that word was meant to have differing meanings in the same section, and as there is no indication that Congress intended RICO to waive the United States’ sovereign immunity—as would be required for the United States to be a defendant—we have concluded that the United States does not come within the RICO definition of a “person.”
A RICO conviction can include a prison sentence. No artificial entity can be imprisoned, so Chevron would not be a “person” by 1964’s definition either. By the circuit’s reasoning it would have to dismiss Chevron’s action.
And for future reference, injunctive relief requires a prospective injury that will be irreparable unless the court orders a fine, forfeiture of assets, imprisonment, or restraint of defendant conduct. What need for RICO injunctive relief could the US ever assert?
As far as ReReSa can see, no RICO act can irreparably injure the US as a RICO act. 1964b can’t be an AG power to seek injunctive RICO relief for the US itself.
And most significantly:
If the US Code and the Statutes at Large conflict, the Statutes at Large, the actual laws passed by Congress and signed by the president, controls.
1 USC 114, Statutes at Large:
The Archivist of the United States shall cause to be compiled, edited, indexed, and published, the United States Statutes at Large, which shall contain all the laws and concurrent resolutions enacted during each regular session of Congress.
The United States Statutes at Large shall be legal evidence of laws…
In Am Lung Assoc v EPA, 985 F3d 914 (DC Cir 2021) the House and Senate had passed slightly different versions of a law and let the final statute contain both. The Office of Law Revision Counsel chose just one for the US Code. The court held that because “United States Code provides only prima facie evidence of the federal law” and the statute in the Code “conflict[ed] with the Statutes at Large, which is the definitive legal evidence of what the law is” the court would have to textually harmonize the two versions, both of which were law.
18 USC 1962 is the Organized Crime Control Act of 1970, Pub L 91-452, title IX, section 901(a), Oct 15, 1970, 84 Stat 942; amended Pub L 100-690, title VIII, section 7033, Nov 18, 1988, 102 Stat 4398. 18 USC 1963 is Crime Control Act of 1970, 84 Stat 943, repeatedly amended. 18 USC 1964 is Crime Control Act of 1970, 84 Stat 943, repeatedly amended.
Its 1964b is a little fuller than the US Code. It states, “The Attorney General may institute proceedings under this section. In any action brought by the United States under this section, the court shall proceed as soon as practicable to the hearing and determination thereof. Pending final determination thereof…” The second sentence, making it plain that the US Attorney brings the case, is omitted from the US Code.
Case History, Pt II
In 2014 Chevron would prevail in its quasi-legal lawsuit.
Quasi? Yes. The company also filed under NY CPLR 5304, the Recognition of Foreign Country Money Judgments Act, that at b3 allows challenging foreign judgments obtained by fraud. CPLR 5304 was enacted because not all foreign courts accept common law. Some require statute. New York State law on fraud is only common law. The only claim against most of Donziger’s co-respondents was common-law fraud, not RICO, as no evidence existed against them. And civil trials can be lost by default. Criminal trials can’t.
One downside of civil RICO: a jury. But there was a way around that. Chevron filed for damages to get standing, then waived them. This didn’t moot the case because enjoining collection of the judgment was an interest the court could remedy without, somehow, being enough of an interest to require a jury. The Supreme Court had just opened this loophole a few months before.
A onetime tobacco counsel, Judge Kaplan seemed sincerely offended by the notion of suing corporations for harms based on epidemiology. Environmental impacts were technical fictions because Donziger’s team’s corruption had left the court of 8origin without an untainted expert report (testimony, stipulated facts, and photographs and agreements in evidence contradict this). Prejudicial remarks from the bench included: the plaintiffs were “so-called plaintiffs,” their case in ROE “not a bona fide litigation” and worse. Meanwhile, Chevron was “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities--gasoline, heating oil, other fuels, and lubricants--on which every one of us depends every single day. I don’t think there’s anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there because these folks have attached it…”
Chevron’s star witness was a former judge who’d sat during part of Aguinda II. He testified that Donziger had bribed him and that he’d ghostwritten most of the deciding judge’s verdict.
In 2015 before the UNCITRAL Arbitration Tribunal the star witness recanted, confessing to perjury. He now claims he solicited bribes from both sides in 2009 without success, then in 2012 Chevron bribed him to commit perjury, starting with a backpack full of cash. The company admits to paying for immigration lawyers for him and his family, moving them to the US and paying him $12K/month for housing and living expenses. Even if you’re not trying to influence testimony, paying a witness to testify violates 18 USC 201c2. This is clear because paying to influence testimony is a separate offense (b3 & 4). A party can pay the witness’ travel and subsistence costs, but only up to $40/day. About a tenth of what the company admits to paying.
In 2018 the Tribunal would find in Chevron’s favor anyway, calling the Aguinda II judgment obtained by fraud, bribery, and corruption while holding that from the evidence it had seen there was no basis to find that Chevron had conducted itself improperly.
Donziger threatened to sue for fraud and requested prosecution for obstruction of justice.
The USAO continued to stay out of it.
The district found that the ROE judgment was procured by multiple acts of bribery, coercion, and fraud. Judge Kaplan opined, “If ever there was a case warranting equitable relief with respect to a judgment procured by fraud, this is it,” at 384. Excellent conclusion and we’d probably agree (except for the parts that relied on the star witness’ perjured testimony, which we’ll get to), but inapt under RICO. And the court expressly concluded that this equitable relief was under RICO, at 639.
A trust would be set up for the company. Donziger and his team were ordered to assign to it any share in the Aguinda II judgment and all legal fees already paid or pending. SDNY took a stab at comity by upholding the ROE judgment for the plaintiffs but surgically removing any counsel benefit from its civil RICO acts.
While granting an unprecedented worldwide injunction against letting the respondents collect.
This would effectively bar recovery by any plaintiffs since they’d sued for remediation of a polluted area the size of Rhode Island, environmental monitoring of the region, medical monitoring of residents, and medical treatment for any condition traceable to the pollution.
Was state common law well used here to keep an attorney from profiting from corrupt process and deter similar conduct? No, because Chevron’s second purpose required RICO. Common-law fraud alone would have done better against Donziger.
It’s not equitable to keep the plaintiffs from their share of relief. It’s not tainted. Upholding the judgment says it’s not.
The injunction was based on state interest because “[t]he misconduct at issue was planned, supervised, financed and executed in important but not all respects by Americans in the United States in order to extract money from a United States victim.” But SDNY upheld the Aguinda II judgment. And even if his Honor’s statement were true, that wouldn’t create a state interest. Most offenses tried in our courts are by Americans in the United States, with United States victims. The court’s narrative only describes barratry, no state interest (and never the plaintiffs’ fault).
The attempt to assert SDNY jurisdiction over the rest of the world didn’t work on the court across the street. The circuit quickly reduced the injunction to the US.
Donziger failed to appeal on the basis of 18 USC 1964’s requirements for a civil suit. He came tantalizingly close by denying that 1964 allows equitable relief.
The circuit's (14-0826[L]; 14-0832 [C]; Kearse, Parker, Wesley) affirmation:
It takes all the running we can do to stay in the same place.
They didn’t send it back to SDNY for reargument despite the confession and recantation. They didn’t throw it out despite the misuse of civil RICO. Without going as far as Judge Kaplan, in dicta the panel also endorsed his encouragement of using (civil) fraud to deprive the class of relief. They supported this with two inconsistent findings:
SCOTUS denied cert in 2017. But, abandoning comity, the circuit had extended a new limb: (civil) fraud. Chevron grabbed and moved posttrial (Chevron Corp v Donziger, 11-civ-0691 [LAK] SDNY, Feb 28, 2018) to effectively enjoin all enforcement of the Aguinda II judgment.
The decision falsely states at n2, “”LAPs” refers to the Lago Agrio plaintiffs, i.e., the plaintiffs in the Ecuadorian case, all of whom were defendants here.” The court and Chevron used the abbreviation LAP (for “Lago Agrio plaintiffs”) to conflate two groups:
Most but by no means all RICO respondents were also named Aguinda plaintiffs. And only a handful of the 30K Aguinda plaintiffs in fact were named in the civil RICO suit.
Four appearing and 45 nonappearing respondents had failed to respond to the 2011 complaint.
Remember, you can default in a civil case.
If a civil conspiracy case bars the losers from recovering from a prior judgment, defaulters are usually automatically barred from recovering. But the case against Donziger’s team was about acts by legal counsel, and most of the 49 defaulters were not attorneys but clients. No evidence placed any but a handful of them on the fringes of the conspiracy. By using default to bar them from recovery Chevron didn’t have to prove they conspired in their legal team’s acts.
Moving for default would deduct millions of dollars in Chevron’s legal fees and costs from the judgment up front, not just from the defaulters’ share, since it wasn’t the kind of judgment that could be divvied up.
Having divested in the meantime (see The Judge who Wore Thirteen Hats below) Judge Kaplan got to decide.
But he wouldn’t be rehearing the original evidence that established that Donziger and his team had civilly violated Chevron’s rights by acts that could perhaps also be predicate RICO offenses if they were ever, you know, criminally tried. The judge refused to tell anyone what evidence had been admitted until the judgment.
In April, 2018 the court entered a default judgment.
Oddly, nearly all the opinion talks about is Donziger, neither a defaulter nor an Aguinda plaintiff.
At 22 it requires Donziger’s clients to pay to defend him despite their retainer’s express rejection of responsibility for this if a judgment determines that he “has committed actual fraud, professional malpractice or willful misconduct.” Not required to be directed at his clients but Judge Kaplan makes that leap. Now the Aguinda II judgment would have to cover every possible cost for both sides, paid or pending. Since no recovery had yet been made this would create grave obstacles. Side note: Judge Kaplan had appointed a friend as one of two special masters to oversee discovery, a lucrative post in such an extended litigation. Chevron had agreed to pay for them at the time. Now the plaintiffs would.
One thing that slips by is the potential to charge costs to one proceeding that benefitted (and may have been initiated in) multiple Chevron actions all over the country and all over the world. Detailed discovery of all of Chevron’s costs was not ordered. It should have been.
The opinion denies that Chevron bribed its star witness (already in Tribunal testimony by that witness) or that the company failed to disclose all payments to him (contradicting that same testimony).
Donziger did not default but the judgment also bars him, and from things the RICO judgment already bars. The judge even mentions that “[t]he award of another judgment for the transfers per se would result in a duplicative recovery.” then proceeds to order duplicative recovery in different words, by entering a supplemental judgment for a sum already included in the RICO judgment.
The motion cited 49 defaulters but the win effectively barred recovery at all.
Future recovery actions are going to be hard to file.
This is interesting in light of the events at the Capitol on January 6, 2021. The DC district has been complaining of the difficulty of trying all defendants, who may ultimately number as many as 800. SDNY effectively convicted 30,000 people of fraud at once.
Donziger being Donziger failed to turn over two contingency fees, not even disclosing one until a 2018 deposition. He also commingled his and his clients’ funds. And pledged a share in the award to an unrelated third party. When caught he tried to evade, saying those were his clients’ interests, not his, and the judgment didn’t intend those. Kaplan assured him that it had.
Chevron kept busy too. They filed four civil contempt motions, some duplicating previous ones in part.
But Kaplan hadn’t held Donziger in contempt.
Is Contempt Civil?
Is it a Crime?
Contempt of court has been meaninglessly called criminal. It has been meaninglessly called civil. Either is judge-made law and invalid.
The Judiciary Act of 1789 empowered United States judges to summarily punish contempt of court in any cause or hearing by fine or imprisonment. In 1831 because of Amendment I violations Congress narrowed it. The first subsection of the Act of March 2, 1831, ch 99, §1, 4 Stat 488 says,
That the power of the several courts of the United States to issue attachments, and inflict summary punishment for contempts of court, shall not be construed to extend to any cases, except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.
Now it would only cover acts in court or procedurally near enough to obstruct the administration of justice. Anything that can be proved by court records alone counts because court records are legally in the court’s presence. And anyone can contemn the court: parties, witnesses, prosecutors, counsel, jurors, staff, bystanders, anyone. Even the judge can contemn the court but they don’t like being reminded of this (only possible by misconduct or inability). The 1831 Act would be upheld in Ex parte Robinson, 86 US (19 Wall) 505 (1874).
The King’s argument was that anything that had a head, could be beheaded, and you weren’t to talk nonsense.
Judges may not make law. Creating a new crime with a new kind of proceeding is definitely making law.
The Constitution uses punishment to refer to any government act that abridges or denies a right, liberty, power, privilege, or immunity as a consequence of a person’s actions. It needn’t involve criminal conviction. In Ex parte Robinson a judge had summarily disbarred an attorney for contempt of court. SCOTUS voided the disbarment because, at 512, the Act of 1789 limits the court’s responses to punishment by summary fine or summary imprisonment. This would exclude ordering a separate hearing, let alone the separate trial Judge Kaplan would ultimately order here.
A summary judgment can be made in a civil suit where facts are not disputed and the court can decide a single issue or an entire case on the law. Because the facts are not disputed, no jury is needed. If no facts are disputed at the outset, summary judgment can decide a case even before the discovery stage.
Summary punishment of contempt enforces the efficient administration of a government proceeding. The facts are self-evident because contempt takes place in the presence of the government.
18 USC 401, Power of Court, grants every US court power to punish contempt. It doesn’t create a crime called “contempt of court.” 401 was formerly in 28 USC 385 together with one other power, the power to administer oaths. Oaths aren’t a crime either. A 1948 Act moved Judiciary and Judicial Procedure into Title 18, Crimes and Criminal Procedure. Title 18 also covers matters like witness immunity in congressional hearings.
18 USC 401--Power of Court
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as-
18 USC 401 grants discretion to summarily punish, not power to institute a separate proceeding. Power to institute a proceeding would have to be expressed. 401 follows the 1789 and 1831 Acts, limiting this power to the instant proceeding. This is usually possible because contempt of court is usually self-evident, proved by the circumstances:
401 is modified by other statutes.
The names of 18 USC 402 (Contempts Constituting Crimes) and 18 USC 3691 (Jury Trial of Criminal Contempts) sound like they criminalize some contempts but they don’t. The phrase criminal contempt always describes one act that simultaneously contemns a court and violates a state or United States criminal statute.
18 USC 402’s definition:
willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed
18 USC 3691’s definition:
Willful disobedience of any lawful writ, process, order, rule decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or omitted
18 USC 402 sets out consequences for any act that contemns the court while also violating a law.
Caselaw violates 18 USC 401, 402 and 3691 by holding that they can be interpreted to vest judges with an independent prosecutorial power instead of simply empowering them to refer criminal cases to prosecutors.
18 USC 3691 provides for an exception to 401’s limitation of judicial power because Amendment VI guarantees a jury for a criminal trial.
The district courts’ contempt power is extended to magistrates in 28 USC 636e5, that says when the court is contemned by an act that also breaks a law, the magistrate can’t punish beyond a class C misdemeanor. 636e6 confirms that this statute is not creating a new misdemeanor of contempt. It requires a magistrate to refer to the district court any contemning act the magistrate thinks could also violate a statute beyond a class C misdemeanor. These delineate powers of magistrates, they don’t criminalize contempt.
If the act occurs after the case is disposed of, 18 USC 3285 limits the power to order a contempt hearing to a year after the case is disposed of. It also addresses two separate proceedings (a contempt hearing for the contempt and a criminal prosecution for the crime). Additional confirmation that contempt of court is not a crime. Rule 42 of FRCrP consists with this (Any person…may be punished for that contempt after prosecution on notice. says a hearing can be initiated by notice if a post-disposal contempt also violates a statute). The Rule is poorly worded but the statutes are plain.
Only if a particular FRCP addresses an enacted statute can its violation be a crime.
That doesn’t mean violating a court order or judgment doesn’t violate a rule. But rules and laws serve different public functions and are executed and enforced differently. A law is executed by the executive branch and enforced by the executive and judicial branches. A rule is both executed (by an order of a court, Congress, or an agency) and enforced by the relevant branch.
Why can’t contempt be criminalized?
Government in a constitutional democratic republic may not criminally punish refusal to comply with its orders because:
The enforcement of judgments and court orders can only abridge or deny rights, liberties, powers, privileges, or immunities because they take place within a court proceeding already engaged in enforcing a statute or adjudicating a right, liberty, power, privilege, or immunity, with at least civil due process already observed.
The court addresses contempt summarily unless the relevant proceeding has been disposed of. If it has been disposed of, procedures exist to enforce a judgment or order and any contempt in failure to comply can be addressed then or by a contempt hearing. No civil or criminal trial may be instituted if no tort or crime was also committed by the contemning act.
Amendment V requires an indictment by a grand jury for a felony case (a charge punishable by more than one year in prison). The Code of Federal Regulations lists some federal misdemeanors. FRCrP 7 allows making an arrest on a court-okayed information by a prosecutor or by a complaint filed by a law enforcement officer and sworn before a judge, but then the case still has to go to a grand jury. Rule 58, Petty Offenses and Other Misdemeanors, lets misdemeanor cases (punishable by up to one year in prison) proceed on an indictment, information, or complaint. Petty offenses (no prison time) can proceed based on a citation or notice of violation by a law enforcement officer, and can be tried without a jury. 58b1F requires a jury trial for any but a petty offense. But Rule 58 appears to have fallen out of use, or rather been tossed. Class B misdemeanors are now treated as petty offenses that can proceed on a citation or notice and be tried without a jury.
“Why, sometimes I’ve believed as many as six impossible things before breakfast.”
18 USC 402 continues:
Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct;...
18 USC 402 lets the court order a contemnor to pay a fine to someone injured by an act that contemns the court post-disposition, but this paragraph follows the one quoted above, only coming into play when that paragraph's terms are met.
No contempt can be a civil violation unless the contemning act also violates a criminal statute. Dividing contempts into civil and criminal violates 18 USC 402. 402 does not create a separate kind of contempt called “civil contempt” or a new kind of proceeding to address it, or a private right to assert contempt of court.
Contempt is not a civil wrong in itself. It doesn’t violate the judge’s rights. It fails to comply with an order needed for the justice system to proceed. You thought it meant showing contempt for the judge? Not quite. You’re entitled to free expression as long as it allows the court to proceed.
Caselaw may not substitute for law. Every decision that changes contempt from what Congress enacted must be reviewed in that light. Yes, all of them, all the way back to In re Chiles, 89 US 157 (1874). Ex parte Robinson had been decided in May at the end of the 1873-74 term. The new CJ, Morrison Waite, had just joined the Court in March. In re Chiles attacking Robinson was decided that very autumn at the beginning of the 1874-75 term. Don’t let them tell you appointments don’t matter.
Courts hate overturning miles of caselaw and Congress tries to stay out of controversies. But it still has to be done. The statutes are inarguable. “Civil contempt” is entirely a judicial golem, not only absent congressional creation but affirmatively defying the US Code and the FRCivP. Caselaw on this imaginary topic conflates several things the law holds distinct.
Rule 37 of the FRCivP separates discovery failures that are civil violations (a, c, or d) from those that are contempt of court (only b is: refusing to comply with a court order to swear or answer in a deposition, or refusing to comply with a court’s discovery order), and doesn’t let the court order 2Avii (treating as contempt of court) for a, c, or d.
But the courts mixed what the FRCP holds distinct: “Civil contempt” purposes “to compensate for injury caused by any violation of a court order or process, to coerce compliance, or both.” Hess v New Jersey Transit Rail Operations, Inc, 846 F2d 114, 115 (2d Cir 1988). Hess is invalid (and violates the Constitution). Here's another mangling: “[T]he sanctions for civil contempt serve two purposes: to coerce future compliance and to remedy any harm past noncompliance caused the other party.” United States v United Mine Workers of America, 330 US 258, 302-04, 67 S Ct 677, 700-01, 9 L Ed 884 (1947).
A private motion to hold someone in “civil contempt” duplicates the existing statutory process initiated by the court (see 18 USC 401 and 402).
But courts have decided the invented motion can tack on legal fees. “The district court in either case may award appropriate attorney fees an costs to a victim of contempt.” Weitzman v Stein, 98 F3d 717, 719 (2d Cir 1996). Civil contempt is revealed as duplicative fee-seeking.
And who is this “victim of contempt”? A court’s order is contemned, not the simultaneously injured party.
If it’s not civil and it’s not criminal, well, what is contempt of court?
It’s an administrative violation punishable by a summary administrative sanction.
Look at 18 USC 401(2) again. Misbehavior of any of its officers in their official transactions contemns the court. This doesn’t mean bribery or other crimes. Criminal statutes already address those. The court’s power here is analogous to the congressional power in Article I, §5 to punish its Members for disorderly behavior. That power is distinct from each house’s power in the next phrase, and, with the Concurrence of two thirds, expel a Member. Expulsion is loosely analogous to firing a court officer.
Summary punishment by the court is an administrative sanction.
Administrative sanctions are some of our most delicate, controversial, and easily misunderstood punishments. Impeachment, expulsion, and stripping of congressional committee membership are all administrative sanctions. They restrict an officer’s ability to use the powers of governance because they broke the rules. This restriction can be lifelong in extreme cases.
Enforcement is an executive power. Problem? No. Separation of powers bars encroaching on another branch’s function, not doing what’s strictly needed to perform your own. See Anderson v Dunn, 19 US (6 Wheat) 204, 227 (1821).
Can government sanction a civilian?
Yes. Amendment XIII expresses it. Have you ever wondered why it lets states individually strip a convicted felon of the vote? Seems like an unusual criminal punishment, doesn’t it? It’s an administrative one. The United States is self-governed. If you refuse to comply with rules needed to administer government you are subject to punishment by administrative sanction. If you are being criminally punished the administrative punishment is coterminous. [RepairRestoreSafeguard objects to exercising this for other reasons.]
Contempt is a failure to comply with the proper administration of a lawful government proceeding (outside of the military or militia), when ordered to comply by an officer empowered to enforce compliance. Government has the right to compel compliance.
Coercing compliance with a lawful order is a punishment because it’s an act of government that negatively impacts a person or entity as a response to that person’s or entity’s conduct. But even though it can include jail time, an administrative punishment is distinguished from a criminal punishment by having to end when compliance is obtained. This exempts it from Amendment V’s due process requirement. (Amendment VIII’s prohibition of cruel and unusual punishment addresses all punitive acts by government because it fails to limit its guarantee.)
Digression: Contempt of Congress
“We’re all mad here.”
Contempt of Congress is 2 USC 192.
Now this is a criminal statute.
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry…willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a
fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
Not being a court itself Congress has recourse to the courts for contempt. The words shall be deemed guilty of a misdemeanor, punishable by are plain.
The last conviction was in 1974. As of November 2021 criminal charges are being filed again, for failure to appear before a congressional committee or to produce subpoenaed documents.
Congress can also sue to enforce a subpoena.
And it can coerce compliance summarily like a court, by imposing an increasing fine or jail for ordinary contempt until compliance. Enforcement is an executive power, but Congress can need it in narrow situations to perform its textual function. It governs militias (roughly, police) when in the active service of the US. There are federal police for various departments in every state, territory, and the District of Columbia. They can arrest contemnors on a congressional order pursuant to Article I, §8. At the Capitol, the USCP was founded in 1828.
Case History, Pt III
To refresh your memory:
Chevron’s motions asking the court to “hold Donziger in civil contempt” asked two things of the court at once: to hold him in contempt, and to hold he’d committed a civil wrong. Both motions were invalid, and SDNY shouldn’t have accepted them for filing.
When Donziger did not comply with Chevron’s motions Judge Kaplan ordered him to. When Donziger failed to comply with those orders, he was charged with criminal contempt. It was not criminal contempt, just contempt; and for contemning orders based on (invalid) civil contempt motions themselves based on nothing.
Criminal contempt can only exist when an act the court has held in contempt also violates a law.
Civil contempt can only exist when an act the court has held in contempt, that has also been convicted of violating a law, also civilly wrongs someone.
Chevron filed a restraining notice that grew into another contempt motion when Donziger failed to honor it. FRCP 69 lets states decide whether to let a private creditor serve a private debtor with a restraining notice. Judgments can be hard to collect and creditors wanted more power. New York’s CPLR 5222 (among other state laws) calls failure to honor such a private notice punishable as contempt of court because an attorney is “an officer of the court.” Lots of caselaw goes along but RepairRestoreSafeguard disputes it all. (Example: Adidas Sportsschufabriken v New Generation, No 88-cv-5519 (PKL), 1995 WL 646213, at *3 (SDNY Nov 3, 1995). “Refusal or wilful neglect by any person to obey a restraining notice shall…be punishable as contempt of court.”)
The law already supports the private industries of collections agencies and credit rating bureaus. Where is the compelling state need to add another proceeding, using judicial resources where more than one private resource is readily available?
There’s also a public resource. The US marshals have served the courts since 1789. A marshal for each district is nominated by the president and confirmed by Congress. About 3,000 deputy marshals must pass a background check and have police/military experience and a related degree; the hiring process takes 9-12 months. Their duties include security, arresting fugitives, transporting and housing US prisoners during trial, operating the witness protection program, conducting some fairly creepy tactical ops we won’t get into, and dealing with criminal assets seized by the DOJ. Since they execute both court orders and DOJ notices, if the DOJ filed a criminal RICO case under 1964b or moved under 1963d no private notice would be needed. If 1964c allowed private preconviction RICO lawsuits, wouldn’t the court order and the marshals execute any needed notices? Doesn’t the court order and the marshals execute any needed notices when contempt is addressed summarily or by a post-disposal contempt hearing?
Attorneys are officers of the court but are not equivalent to federal judges. We the people did not by our elected representatives nominate, confirm, or commission them to judicial office. They did not undergo the required background check or take the oath of the office of United States judge. They are not subject to the JIA (28 USC 351 et seq), to the Code of Conduct for US Judges, or to investigation or sanction by the Judicial Conference of the US under the JCJDP. They’re not even subject to laws governing US officers in general like 28 USC 455. Their notices are NOT a federal court’s lawful writ, process, order, rule, decree, or command. 18 USC 401(3) does not apply. FRCP 69 lets state laws violate Amendment IV. CPLR 5222 does violate it.
When Chevron moved for contempt/civil contempt it sought leave to investigate Donziger (based on post-judgment hearsay) just in case Donziger could also be held in contempt for other actions, cutely calling it discovery “in order to compile a full evidentiary record” for a closed case. Chevron not being an investigator but an oil company, we must presume the attorneys it retained were seeking this leave for themselves, but lawyers are not police or FBI either. Judge Kaplan okayed this request with a Forensic Inspection Protocol.
Protocols allowing discovery proportional to the needs of the case are a recent development. They have the potential to speed discovery and smooth process. But protocols are bilateral and agreed on by the parties in advance, not imposed on one side by the court post-judgment. Whence came Kaplan’s authority to give search and seizure power to a private party? And post-disposal, to fish for grounds for contempt of court? A request for a warrant must be by law enforcement and requires probable cause (amdt IV). Not even the power to prosecute criminal acts that are also contempts grants power to investigate people just in case they’re doing something contemptuous or criminal. If contempt is not apparent to the court the court has no authority over it. It can’t be dug up. Doesn’t that let people get away with not paying judgments? Yes. Most contempts, even most crimes, are never known or punished. We the people prefer that to a police state, or in this case a vigilante one.
Judge Kaplan would state that he was “left with virtually no choice.” He only had one: to deny Chevron’s illegal, unconstitutional motion. He didn’t have the choice of going contempt fishing.
Chevron would ultimately, successfully and illegally move for both civil and criminal contempt charges for Donziger’s refusal to comply with the improper Forensic Inspection Protocol ordering him to submit all devices, passwords, and documents the court ruled not protected by Amendment I. Amendment IV was never addressed.
Not because of IV, though. He keeps harping on attorney-client privilege, something that doesn’t protect potentially criminal evidence.
He has yet to submit them.
In September of 2018 SDNY granted motion #1. Finally holding Donziger in contempt, Judge Kaplan imposed coercive sanctions including a fine escalating for each day of noncompliance after a grace period. Held in contempt, fined and compelled, Donziger finally assigned his fee rights to Chevron. Only one motion was denied, “continuation of pattern of racketeering,” denied as an offense a private party couldn’t assert in a motion, not a contempt (that a private party can’t assert in a motion).
And what happened to the removal of jurisdiction to the circuit on appeal?
In March, 2021 the circuit (18-855-cv[L]; 18-2191-cv; 19-1584-cv; Jacobs, Lynch, Sullivan) would hold that two post-RICO orders read together created ambiguity on the fundraising activities the trial court was barring. This mooted that contempt charge. They reversed $666,476 in noncompliance sanctions, clarified the ban for the future and ordered a new accounting of Chevron’s legal fees.
Judge Kaplan refused to summarily address any contempts of court that might also violate laws. Once again he referred potential charges to the USAO for prosecution.
The USAO once again declined to prosecute. When pressed it explained that “the matter would require resources that we do not have readily available.”
The judge ordered Donziger to show cause for not being criminally convicted of six charges of criminal contempt of court. An order to show cause is a curious way to file a criminal case. The court had neither a grand jury indictment nor a prosecutorial information nor a law enforcement complaint.
There are six counts in the order to show cause.
I, II, and III: Already proved beyond a reasonable doubt by the court’s own records because provision and surrenders go through the court, so they are self-evident: no proceeding is needed to prove them. These are not even civil contempts because they did not wrong Chevron. They’re just ordinary contempts of court. Should have been summarily addressed.
IV, V, and VI: These were simply contempts of court that also torted Chevron, until compliance was obtained. Compliance was obtained. These were assigned to Chevron in September 2018. Assignment already proved beyond a reasonable doubt by the court’s own records because funds are assigned through the court, so they are self-evident: no proceeding is needed to prove them. Should have been summarily dismissed.
Not one of these charges asserts a violation of any statute.
When the People Is a Person...and so is the Defendant
And a great many voices all said together (“like the chorus of a song,” thought Alice),
“Don’t keep him waiting, child! Why, his time is worth a thousand pounds a minute!”
The Appointments clause (art II §2) vests the appointment power in the president and Senate, but lets Congress vest the appointment of inferior officers by statute in the president alone, the courts, or heads of departments. Private prosecution can perhaps be implied when prosecutors or officers above them, or judges, are tried.
But for private-citizen suspects and defendants?
In the early Republic a crime victim could hire a private attorney to prosecute a crime as their representative. We no longer do this. Now that we have public prosecutors' offices in every state and every US district and even in local jurisdictions, private prosecution of private citizens is no longer needed.
15 states still let citizens file a complaint and ask their state AG or district attorney to pursue charges against someone, but once inveighed upon the state can decide not to proceed. The public can petition but not coerce government.
New York State law allows private criminal prosecution, oddly, where an underlying civil cause of action also exists. But state law does not govern the operation of United States courts.
FRCivP Rule 42 allows it “[f]or convenience, to avoid prejudice, or to expedite and economize.” What it expedites or economizes is a mystery. The same goes for convenience. It adds a complication.
What do you think of this idea? Here’s what we, a lay anticorruption organization, think:
When the People is the Judge AND a Person
And so she went on, taking first one side and then the other, and making quite a conversation of it altogether;
Judge Kaplan ordered Donziger to show cause why he couldn’t be criminally prosecuted, and appointed a private prosecutor.
In addition to the constitutional violations listed in other sections, the court’s actions violate the defendant’s rights under Article IV, §§1 and 2, Amendment I, Amendment V, and Amendment XIV, §1.
Judge Kaplan ordered a prosecution himself and appointed a private prosecutor because the DOJ declined to prosecute. The general standard of review for constitutional cases presumes government action is constitutional unless it can’t be rationally related to a legitimate government interest. Even a hypothetical rational basis is good enough. This level of deference was first formally applied in Nebbia v New York, 291 US 502 (1934).
There are three possible rational government interests here.
The court’s institution of a criminal prosecution and appointment of a private prosecutor violate the defendant’s constitutional rights with no rational basis in legitimate government interest and in defiance of the existing constitutionally compliant statutory procedures (summary address of the contempts of court, referral to the USAO, petitioning Congress for better DOJ funding, and accepting the other branch’s use of its discretion or referring it to the House).
Discretion only includes the existing powers of your own office. Just using a judicial order to institute a criminal prosecution when prosecutors decline does not make it an exercise of judicial discretion.
From Vuitton at 793, 802:
Although Federal Rule of Criminal Procedure 42(b) does not authorize the appointment of private attorneys, its reference to such appointments acknowledges the long-settled rule that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, which authority necessarily includes the ability to prosecute…since the judiciary must have an independent means to vindicate its own authority without dependence on another Branch to decide whether proceedings should be initiated.
When they say “inherent” you say “Whence?” OK, you don’t have to say “whence,” you can ask, “Where does the Constitution express this exceptional power?” The Framers called the judiciary they’d devised “the weakest branch” because it had no lawmaking power like Congress, no army or militia power like POTUS, and could only act upon whatever was brought to it. The text vests in judges no power to initiate cases.
The Rules were changed in 2002. Rule 42a2 lets courts consolidate actions that involve a common question of law and fact. It doesn’t express that these include hearings for post-disposal contempts that also allegedly violate laws, but the courts have been interpreting it as including them. (Since contempt is not alleged but self-evident and so doesn’t require a trial at all, this is overkill.) Rule 42b allows consolidating trials of separate issues, claims, crossclaims, counterclaims, or third-party claims, a list that excludes contempt orders.
USC 401, 402 and 3691 address contempts of court that also violate laws. The court can address contempt summarily. If contempt occurs post-disposal it can order a hearing. Under 18 USC 1962-64 the court can request that the AG prosecute a contempt that also allegedly violates RICO if either the contempt is post-disposal or the instant proceeding has no jury. Prosecutors have discretion to decline. Judges must learn to take rejection graciously. That is where the law stands. The Rules are another story.
The Advisory Committee Notes on the changes:
Revised Rule 42 now explicitly addresses the appointment of a ‘prosecutor’ and adapts language to reflect the holding in [Vuitton], permitting a judge to appoint a ‘disinterested’ private counsel to prosecute the alleged contempt when the government declines.
This doesn’t resolve anything. It makes law and vests a power. Congress could of course by statute vest the appointment of a special prosecutor in the district courts. It hasn’t. Neither the Judicial Conference nor the Administrative Office of the US Courts nor the Supreme Court has power to make laws or vest powers.
When the text doesn’t vest a government right or power, consider whether that's because it didn’t have to. When none is needed we should, and the Framers generally did, refrain from vesting one.
Power to address contempt summarily vests an executive power in the judiciary but narrowly tailored to achieve the compelling government interest of administering justice in a speedy and efficient manner. Like the subpoena power, it’s a necessary and proper power to execute the judicial function.
Instituting either civil or criminal proceedings by court order is not narrowly tailored to administer justice in a speedy and efficient manner. Nor is it necessary to execute the judicial function. It’s just judicial encroachment on a function we consider executive (and even if the DOJ moved to the judicial branch it would be separate from the judiciary; separation of powers would still apply).
The court may refer for prosecution a contempt that appears to violate a statute, a situation that can come up within its daily judicial work. Beyond that is the prosecutors’ function. The court has done its job. The court may not file cases. That encroaches on the executive branch. No statute authorizes a court to “order” a prosecution and appoint its own prosecutor where the AG or US attorney (the officers appointed by the Article II process to make this decision) decide no criminal trial is required under the law. Contempt of court can always be addressed by the court, including by a separate hearing if needed. The amended Rule does more than make law, it vests an executive power that far exceeds the need for the court’s own function.
The separate “criminal contempt” trial though endorsed by the FRCP and the Supreme Court wastes court resources, the opposite of economy. It wastes all parties’ time, the opposite of expedience or convenience. These suits have gone on for twenty-eight years to date.
Did ordering a separate contempt proceeding avoid prejudice?
No. Kaplan immediately compounded his error. He assigned the presiding judge. Against Local Rule 50.2 (All cases shall be randomly assigned by the clerk or his designee in public view in one of the clerk’s offices.). He also remained on the case to assign the private prosecutor, something only a presiding judge can do.
The Judge Who Wore Thirteen Hats
How many hats is Judge Kaplan wearing in this litigation?
Hats worn by Lewis Kaplan in Chevron Corp v Donziger:
Hats worn by Lewis Kaplan in US v Donziger:
Kaplan’s appointed judge added to her own hat, giving Kaplan the same:
Did we miss any?
Judge Kaplan submitted that a judge could both transfer and keep authority over a criminal contempt case but cited no case that supports this. The cases he cited only address keeping the entire authority.
The FRCP doesn’t bar mad-hatting despite its increased potential for misconduct where plentiful opportunity exists for more independent adjudication, a justice interest. The Conference even deems it more convenient to have a judge interpret that judge’s own rulings, guaranteeing the people the absence of independent interpretation. They ought to prohibit a judge’s wearing more than three total judicial and other hats in no more than two related cases in the same dispute. Mad-hatting multiplies the power of one person in a complex dispute where more than one head would benefit justice.
One urgent problem with the existing system:
A motion for recusal is usually heard by the affected judge, and appeal usually requires alleging judicial misconduct. The circuits seldom grant these, probably because they stain a judge’s record.
Because Kaplan did not recuse from the contempt of court case (without recusal the question of why the contempt of court was not managed in-court becomes a more pointed ethical dilemma) he retained power to communicate with the special prosecutors. This would be barred as ex parte had the judge recused.
Then it came to light that while ruling against a jury trial, while calling the Aguinda II judgment the product of fraud, bribery and coercion, while ordering Donziger to pay Chevron any money made from the case, Judge Kaplan held JP Morgan mutual funds with significant Chevron and other relevant oil holdings (per Morgan’s reports), and an American Century Equity mutual fund that advertises (per their 2013 annual report) 1.7 million shares of Chevron worth approximately $201 million. Donziger submitted emergency recusal motions to the circuit.
28 USC 455d4 requires recusal for any legal or equitable interest, however small and requires judges to inform themselves about their own and their families’ holdings. Neither trusts nor professionally managed portfolios are exempt. But mutual funds are. Only individual stocks count as stocks. Congress’ rules have the same (unwarranted) exception. Worse still, the law lacks enforcement provisions. No penalties are set out. And even this 1974 law is subject to later judicial self-policing laws.
18 USC 201, however, does include judges, and indirect receipt is expressly listed as a violation. Nonrecusal for conflict of interest is an impeachable high crime. It violates the Preambular mandate to US government to establish justice.
The Ethics Reform Act of 1989, 5 USC sections 101-505 require a financial disclosure report within 5 days of the president’s submitting your nomination to Congress. Congress may ask further questions. Once serving, reports must be annual. The Act goes into required disclosures in detail. The AG may bring a civil action for failure to file or filing false information. The maximum civil penalty is $10,000. The Judicial Conference may sanction you. Reports must be made available to the Comptroller General and the public. (a special counsel whose name has not been revealed to the public is exempt from public disclosure). The Conference must ensure that reports are reviewed within 60 days and can request further information. If a report appears to show the you’re not in compliance with applicable laws and regulations you have an opportunity to explain and then exercise such needed options as divestiture, restitution, the establishment of a blind trust, request for an exemption under 18 USC 208b, or request for transfer, reassignment, voluntary limitation of duties, or resignation. Then the Conference confers and issues an advisory opinion.
Today judicial disclosure forms are screened by software that is flawed, but that doesn’t excuse judges’ own due diligence.
In 2021 governors of the Federal Reserve were caught using their privileged information on the Fed’s unprecedented CARES Act powers for insider trading. And half a dozen senators used their own privileged information the same way. This is really bad. But surely the courts are better than that?
An investigative series by the Wall Street Journal found in 2021 that between 2010 and 2018 more than 130 US judges oversaw cases involving entities in which they or their families held stock. Since 2010, they have failed to recuse in 685 such cases. (Jones, Coulter, and Joe Palazzolo. “131 Federal Judges Broke the Law by Hearing Cases Where They had a Financial Interest.” Wall Street Journal, Sept 28, 2021. Add’l reporting byAva Sasani and Lisa Schwartz.)
Two out of three contested motions in those cases favored the judges’ interests. Two out of three district judges have disclosed individual stock holdings. One in five (!) of those who disclosed heard at least one case involving those stocks. This is an epidemic. Nor is it confined to the “finance industry” states of NY and IL. The article found cases in AL, AR, CA, CO, FL, MI, MS, NJ, OH, SC, TX, VA, and WA. One judge was even a member of the Commission on Codes of Conduct for US Judges.
After the first WSJ piece came out 56 federal judges notified parties in 329 suits that they should have recused. New judges will be assigned for retrials.
Article I, §2 expresses plainly that Congress alone must regulate United States courts. Article III, §2 further requires that it regulate federal courts in all circumstances (with two exceptions). In 1792 Congress set out a principle: No one should be a judge of his own case.
For context, the dirtiest district judge we’ve heard of handled cases involving his own or his family’s interests about 5% of the time--and no other judge we know of comes anywhere near that record.
Does that make it OK? No! A judge who rules dishonestly ONCE must be removed from office, barred from holding any other public office, and criminally prosecuted. We have far more qualified people than judicial appointments. We will never run out. We can afford to enforce the Good Behavior clause with stronger statutes, more transparency and oversight and, especially, tougher enforcement.
From the Guide to Judiciary Policy Vol 2: Ethics and Judicial Conduct, Pt A: Codes of Conduct, ch 2: Code of Conduct for US Judges as of March, 2019:
They start out well then sort of wander off.
Judge Kaplan divested and stayed on the case. While the US Code allows this and the FRCP endorses it to conserve judicial resources, an appearance of impropriety existed considering his illegal failure to disclose, his nonrecusal and the quantity of prejudicial remarks in the record.
Case History, Pt IV:
US v Donziger
“He’s in prison now, being punished: and the trial doesn’t even begin until next Wednesday:
and of course the crime comes last of all.”
“Suppose he never commits the crime?” said Alice.
“That would be all the better, wouldn’t it?”
Judge Kaplan ordered the prosecution on 7/31/19, assigning three prosecutors from Seward & Kissel (“Seward”). The trial opened on 8/5/19 under Judge Preska. The United States was represented by Seward’s Rita Glavin, assisted by Brian Paul Maloney and Sareen Karla Armani. Mr. Donziger was represented by Martin Garbus of Offitt, Kurman, by Ronald Kuby assisted by Rhidaya Shodhan Trivedi, and pro se.
Glavin, a former US attorney, as a private attorney served as a senior special prosecutor once before. The conduct of that prosecution was investigated and found to have elements of potential misconduct. In ReReSa’s view there are too many qualified attorneys in the Southern District of New York to appoint one who has demonstrated poor judgment in the prosecutor’s role.
And of course it’s come out that Seward’s clients included Chevron until 2018, a fact not disclosed until pretrial had been underway for eight months. Glavin stated no conflicts existed, narrowly interpreting it as whether the three Seward attorneys had personal conflicts, not whether their employer did or whether the three were chosen for that reason. “An attorney’s conflicts are ordinarily imputed to his firm based on the presumption that ‘associated’ attorneys share client confidences. Hempstead Video, Inc v Incorporated Village of Valley Stream, 409 F3d 127, 133 (2d Cir 2005). The special prosecutor even called the defense insistence on seeking disclosure “throwing mud” and suggested moving up the trial date as punishment, for questioning prosecutorial integrity or something like that.
The only available facts on the conflicts of interest are publicly-available documents because neither judge required Seward to disclose. Seward is a fairly specialized midsized NYC & DC firm whose key practices are financial services (notably for hedge funds) and maritime finance/shipping. Its clients do offshore drilling and services such as oil tankers. Oil is a highly concentrated industry. There is little question that a fair proportion of Seward’s clients rely on Chevron contracts. It’s hard to believe that Chevron’s good will is unimportant to the firm. And Seward has represented Chevron itself not once but twice, most recently ending March 6, 2018.
Donziger’s court-appointed attorney, Andrew J Frisch, noted how SDNY usually proceeds when a prosecutor delays disclosure of her firm’s attorney-client relationship with an interested party for eight months into a case while practicing deception in the courtroom to cover it up:
“A judge might invite the United States Attorney or a supervising prosecutor to answer for the prosecutor’s conduct, refer the prosecutor to the Department of Justice’s Office of Professional Responsibility, rebuke and possibly sanction the prosecutor or all of the above.”
But Judge Preska declined to question Seward’s contradictory refusal to provide requested information while asserting attorney-client privilege on Chevron’s behalf. While not an admission of conflict, attorney-client privilege is not asserted if no attorney-client communications exist. When Donziger pressed an inference that the appointing and presiding judges had prior knowledge of the conflict of interest, neither refuted it. Judge Preska said she was satisfied with the prosecutors’ representations with respect to contacts with Judge Kaplan.
US v DiStefano, 555 F2d 1094, 1104 (2d Cir 1977): Adverse inferences from deception “have independent probative force”. The failure to disclose until eight months into the case (and then only after repeated defense requests), when viewed with the contradictory assertion of attorney-client privilege and statement of disinterest, strongly suggest that the need for rigorous disinterest barred these prosecutors.
When Donziger asserted that the special prosecutors are not disinterested the judge denied that Vuitton requires disinterested special prosecutors. Then her Honor makes Donziger’s point in so many words: “Young [this court somewhat eccentrically calls Vuitton “Young”] requires only a disinterested prosecutor, not disinterested witnesses.” And then does it again! At n464: “See Young, 481 US at 804 (“A private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”)”
And while we are entertaining the legal fiction that this trial is lawful, Vuitton is relevant. Judge Kaplan appointed three Seward attorneys, and no non-Seward attorneys. No one at the firm was eligible because Chevron was a client less than a year before the appointment was made. And Seward’s substantial oil industry practice makes them an indirect beneficiary of the court order. Judge Preska finds that its benefit would be too attenuated. (And that $30,000 is somehow de minimis.) Less than a year before their appointment on July 31, 2019 (and remaining counsel for multiple companies that would benefit). Since a court trying charges it does not know, in classes it does not know, in a proceeding that violates multiple US statutes, assigned by a method that violates local rules, from a proceeding that violates multiple US statutes, might be especially concerned about the appearance of impropriety the slightest connection, however attenuated, should be sufficient to disqualify.
Glavin resolved the issue for herself in March, 2021 by opening her own firm. Twenty months after being appointed, and four months before trial. One of the other prosecutors joined her. The third is still employed by Seward.
Only a memo, not 28 USC 455, requires an interested prosecutor to recuse. If you are familiar with ReReSa, you know what we think of memos. The special prosecutor appears to share our opinion, as the memo has been ignored. You know what we think of prosecutorial discretion.
A Grin Without a Cat
The trial was held in July, 2021.
Judge Preska correctly called the proceeding before her a “new type of proceeding” and added, “[W]e are in a brave new world now.” It’s not a very common occurrence for a judge to open a trial by citing Huxley.
The court made remarks on the first day of trial suggesting its outcome was certain before any testimony was heard. Law360 reported that the judge read newspapers during witness testimony. The court’s demeanor suggests provocation, a display of indicators of rigging to provoke further violations by the hotheaded defendant. Perhaps contempt of court during the contempt of court trial? Could Donziger be provoked into violating his way into lifelong limbo? Fighting words are exempt from Amendment I protection. O brave new world, that hath such jurists in it! We’ll never know. If provocation was committed, no response was obtained.
After denying a jury trial, the court barred the public Zoom access as a pandemic tightly restricted court access. Ruling against a jury in a privately prosecuted trial removes the people from the case entirely. Keeping the public from even listening to the trial added to its unusually closed status, creating a creeping feeling that Judge Preska would have sealed the record had the law allowed it.
Judge Preska cited 18 USC 321: District courts have original jurisdiction of all offenses against the laws of the United States. But the court cannot name a law of the United States that has been violated. Neither 18 USC 401 nor 18 USC 402 establishes any criminal offense. The judge cited two cases saying that the district court’s subject-matter jurisdiction depends on statutory or constitutional power. Great. Still no statute or clause forthcoming to grant subject-matter jurisdiction.
The court merrily cited Ex parte Robinson: “The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Punishing contempt of court summarily (within the instant proceeding) was used immediately. Punishing it in a separate trial was not. Not for almost another hundred years was that pernicious error made.
Judge Preska opted to decide the case without a jury because Amendment VI’s guarantee of a jury trial has been held to exclude misdemeanor cases. Contempt of court is not a misdemeanor. It has no criminal class. It is a rule violation, administratively sanctioned. But the courts have rejected 18 USC 402’s absence of criminal classification or punishments (it must have been while they were rejecting its requirement that a contempt separately violate a statute to be a crime). They made up a class and punishment range, based on the FRCivP’s reasonable prohibition against magistrates making decisions on any contempt of court that also violates a law above a class C misdemeanor. A class B misdemeanor is punishable by up to six months in prison. But even class B requires an indictment, information, or complaint under FRCrP 58. And unless the defendant consents (Donziger didn’t) a trial for a misdemeanor punishable by six months in prison requires a jury.
28 USC 591a limits the appointment of a special prosecutor to suspected federal offenses above a Class B or C misdemeanor or an infraction. Congress decided special prosecutors are for grave offenses, not minor ones.
The court also cited Vuitton at 801: “[T]he Supreme Court observed that a court’s use of its contempt authority must be restrained by the principle that only the least possible power adequate to the end proposed should be used in contempt cases.”
What we see in this proceeding is a fabulous monster:
Private, not fully disinterested prosecutors conducting a criminal trial whose charges assert no violations of any statute but merely reassert contempts of court and already-satisfied civil claims as criminal charges, a trial barred by statute, before a judge improperly assigned by the judge in the contemned trial: a contemned trial that violates statute as a preconviction civil RICO (and where no criminal RICO case is now likely since the star witness recanted and has sworn the petitioner bribed him to commit perjury, and since by other evidence RICO applied equally to the petitioner); a contemned trial whose judge improperly failed to recuse for failure to disclose, and who has now improperly failed to recuse from the instant trial despite continuing to rule on posttrial motions in the contemned trial, and with whom prosecutors admit to communicating ex parte.
Did we miss anything?
Witnesses included two attorneys from Gibson, Dunn.
Two officers of the court clerk’s office also testified.
Donziger was found guilty.
At the first pretrial hearing Judge Preska had placed Donziger under pretrial house arrest as a flight risk. This was ordered to continue until sentencing.
OK. Now that we’re in the courtroom we honor honorifics. The Honorable Loretta A Preska will preside. Ms. Rita Glavin is the chief prosecutor. Messrs. Ronald Kuby and Martin Garbus will defend. Each of these four has a national reputation. Mr. Garbus has an international one, having aided Czechoslovakia in drafting its constitution. While Mr. Garbus worked on this case at an earlier point this was not continuous. Mr. Kuby is new to the case.
The prosecution will speak from a table facing the judge. The defense table is to one side, with a lectern facing the judge. For Covid protection a clear plexiglas booth has been erected around the lectern so the defense can unmask.
18 USC 3553 governs sentencing in general. Precedents in this circuit cited by the prosecution on attorneys being jailed for criminal contempt of court: Rojas v US, 55 F3d 61 (1995); US v Agajanian, 852 F2d 56 (1988).
Mr. Kuby challenges those charges where Chevron’s interests have already been vindicated. After Judge Kaplan fined the defendant he assigned the funds in question to Chevron. The only remaining contempt is the failure to surrender devices and passwords to the court. That should be summarily addressed by Judge Kaplan. And Mr. Donziger had offered to plead guilty (though defense counsel is too wise to use the word guilty in court) to civil contempt if some arrangement to preserve attorney-client privilege could be worked out. Amendment IV not cited.
Occasionally tapping the bench for emphasis, Judge Preska reminds the defense that they never sought a mandamus review on the fee charges’ inclusion, or appealed on the devices. Mr. Donziger did not provide a privilege log listing attorney-client communications for exclusion. And civil versus criminal contempt is not up to the suspect. [ReReSa would say it’s not up to anyone since there’s only one kind of contempt of court.]
The court says twice that “ends do not justify means.”
And “Court orders are applicable to the bad and good alike.”
While repeatedly denying Mr. Donziger any defense based on the propriety of the overarching case, saying neither it nor Chevron is at issue, “just the rule of law regarding the court orders,” none of which is more than three years old, her Honor repeatedly relies on ten years of case history--but only where it shines a bad light on the defendant.
Mr. Kuby raises some trial issues anyway, using this proceeding to preserve possible questions on appeal.
Mr. Kuby: Trial by jury is a right in a criminal case. The DOJ declined to prosecute because as the attorney general, Mr. Berman, said, the DOJ didn’t have the resources. Considering the neverending actions in this case that may have been an understatement.
Mr. Kuby: Judge Kaplan was not impartial. Letters submitted to the court by many notable attorneys and watchdog organizations repeat a theme: “This is not normal.”
The defense appeals to the court’s sense of justice with, “You can’t correct that, but you can do no more harm,” and points out, “Because court orders must be obeyed, they must also come with restraint.” The issues protected by federal court orders are different, so they bear a different weight. Jail time for contempt of court should reflect a larger public interest, and (emphasizing) the corporation’s interest here has already been vindicated.
Mr. Garbus raises only one document, from the referee in Mr. Donziger’s disbarment hearing. That letter asks the court to suspend any sentence. Mr. Garbus repeats, “You can’t correct that, but you can do no more harm.”
The court points out that the appellate court found the contempt trial OK this time.
The defense raises mitigating factors: No criminal record. Lowest level of US offense [ReReSa would have said none at all].
After the defendant speaks the court states that she hears no contrition, that he continues to blame others.
The judge raises deterrence and points out that compliance with the Protocol has yet to be obtained. Her Honor also finds that a serious sentence might deter others who are fervent about a cause from emulating Mr. Donziger’s conduct. The court noted that it must also consider the length of contempt, the number of court orders contemned, and the contemnor’s degree of willfulness.
A Grin Without a Cat, Pt II
At this juncture the court adds her opinion that “only the proverbial 2x4 between the eyes will instill in him any respect for the law.”
Mr. Donziger is still under house arrest after nearly two years. The UN’s Working Group on Arbitrary Detention investigated. Its report found that when the maximum sentence is six months confinement of any kind past that point is arbitrary, in violation of the International Covenant on Civil and Political Rights, a treaty to which the US is a party. While presidents have successfully dared the DOJ to enforce treaties against them Article VI is plain that they must be enforced and no court can hide from the text. This interesting issue was resolved by three determinations:
But the government’s power to prevent flight is not unlimited. Potential impacts of this flight-risk determination on public-interest advocacy against a multinational company:
The defendant claims detention has prevented political activities such as First Amendment conduct and organizing. Nobody in the courtroom would be surprised if it has, and the Working Group’s report shows concern on this point. The possibility of a retaliatory effect and the detention’s potential to chill speech--and not just by Mr. Donziger--should be explored. But by citing no caselaw or even any instance of requesting permission to leave the house for political action and being denied, Mr. Donziger lets the court ignore him.
Six months. No fine. Exempt from supervised release as a petty offense.
13 USC 3013a mandates a special assessment. The court sets special assessment fee of $10.
Mr. Donziger can appeal.
Mr. Kuby: “I won the office pool with a guess of 6 months.” He holds up a paper towards the judge, up against that side of the plastic booth.
Bail application? Post-conviction bail is covered by 18 USC 3143. Court: Flight risk. Bail is denied.
Instead of just announcing the terms and telling us to expect a full written decision and order, her Honor reads a multipage, largely prewritten decision and order into the record. This is lawful but tends to degrade the day’s work.
Our courts have utterly failed this defendant, the Constitution and the people.
ROE has a land-management duty to clean up Lago Agrio even if the courts never securely assign blame. No doubt this has been suggested before but it’s worth considering again: Why not start a remediation research postgraduate program, with its own center? With all those pits to play with, somebody’s bound to come up with something. Become a world leader. And pay the locals pit rental; you know you owe them something. (Locals: Get it in advance.)
The private corruption here is the most disturbing kind. This is not litigation by attrition. That requires parties of roughly equal strength. This is litigation by absorption, of the “Git! In! Mah! Belly!” kind. We’ve already privileged corporations with immortality. Chevron’s discovery efforts go far beyond relevant materials. Repetitive motions to compel additional discovery even when already denied or held to be moot, motions to pierce attorney-client privilege, and even a number of their lawsuits seek something like omniscience, as their use of information not just in litigation but in corrupt (and possibly RICO) attempts to destroy or absorb opposition of any kind seek something like omnipotence. Whenever one petition is denied cert the whole beast slouches a little closer to the Supreme Court.
Both the RICO case and the contempt case should be voided.
The RICO star witness’ perjury, bribery, and subornation must be prosecuted. This entitles Donziger to a mistrial or a new appeal if the court knew about it. Future cases relying on the testimony must be appealed or retried. They haven’t been.
There are grounds for state and federal RICO prosecutions of Chevron, its relevant attorneys, and the witness, at least. Civil RICO is also available, once Congress clarifies that it can only be used after criminal RICO conviction.
Every case brought by Chevron against Donziger can and should be brought by the plaintiffs against Chevron’s counsel. Once sufficient discovery is obtained, the International Arbitration Tribunal can be convened to address the other side of corruption in this case.
Legal oversight law is dangerously skimpy and disorganized. Attorneys are seldom prosecuted; judges, so rarely that the Donziger debacle has raised the question of whether they can be prosecuted on the merits of decisions at all! After nearly 250 years we ought to have a comfortable body of precedent on when, how, and to what effect. We have yet to see a single prosecution of those who oversee either judges or attorneys. Oversight decisions are seldom even reviewed because with so little guidance from Congress institutional discretion is virtually absolute on procedure and on all subject matter but constitutional questions. Part of the problem: Neither disbarment proceedings nor the judicial misconduct/disability investigative process is integrated into the justice system. Their decisions have no precedential value: not in caselaw, not in identical proceedings in other jurisdictions, not even in the same jurisdiction. Nor are they well integrated into civil, criminal or impeachment investigations. They’re dead ends unless the Judicial Conference in its discretion refers a judge to the House. They do this once every fifteen years or so, a thin record indeed for a national judiciary with 870 judges serving each year. Without so much as a House review process referrals and nonreferrals can be purely political. Nobody is paying attention. Sloppiness, bias and corruption sound no alarms.
Courts may strike but not make laws. To strike any part of a law remands it back to Congress. Both branches' refusal to acknowledge this is a grave problem that has birthed many harmful and even noncanonical decisions. Correcting this won’t take money or even a law. The day the Court starts concluding such decisions with the appropriate notice that the remainder of the statute, or the subject matter if the entire law is struck, is remanded to Congress, the affected public will be calling the Capitol before evening.
Until we establish regulations and procedures, corruption by judicial officers is for Congress to address. The Judicial Council never will. The Administrative Office of the US Courts never will. We already need a round of impeachments (about 130 from the WSJ investigation alone), then procedural statutes to prevent this in the future.
Towards these needed ends Congress must investigate the spreading use of prosecutorial discretion and of private, or special, prosecutors as part of a systemic erosion of impartial and even constitutional governance.
We are happy to see that Congress seems to be climbing on top of this one at last. Senators Markey and Whitehouse wrote to Judge Mauskopf, the director of the Administrative Office of the US Courts, on July 29th with questions raised by Judge Kaplan’s appointment of the three private prosecutors under Rule 42a2:
Senator Warren and Representative Jayapal wrote to John Roberts, Chief Justice of the Supreme Court. The CJ is also the head of the Administrative Office of the US Courts AND of the Judicial Conference of the US. These members asked what CJ Roberts intends to do to establish and enforce ethics rules in light of these systemwide violations, a “direct result of the inadequate processes for judicial accountability.” They also pointed out that the Rules have been held not to apply to SCOTUS and asked whether the justices would recuse in future.
They included these numbered questions:
The Anticorruption and Public Integrity Act would impose transparency on disclosure forms and empower CJs of district or circuit courts to establish recusal rules, requiring written explanations for recusal decisions. It would also bar ownership of individual stocks. Best of all, it has some teeth: civil penalties, injunctions, and expedited disqualification and impeachment.
We’d prefer that Congress establish procedures and criminal punishments but we endorse this bill as a step in a long-needed direction.
The FreeLawProject wants to put jurists’ disclosure forms online. RepairRestoreSafeguard endorses this. Calling it an oversight is insufficient. Trusting a person’s word that they were impartial or unknowing is insufficient.
Should the personhood liberty of holding stocks be abridged during the term of office of a person who wields people’s powers? The Qualifications clauses bar mandatory abridgment for elected US officers, but not for judges. It might encourage retirement, another pressing problem today as judges are appointed at younger and younger ages. What do you think?
Six US Representatives (McGovern, Bush, Tlaib, Bowman, Ocasio-Cortez, and Raskin) have written to AG Garland asking him to review the courts’ role in what they called Chevron’s “campaign to muddy the waters and deflect blame.” They alleged judicial abuse and disparate treatment to “intimidate and stifle” those who would hold large entities accountable. Rep Tlaib stated that “unchecked corporate power rigging our justice system” could result in polluters’ never cleaning up dangerous pollution whose existence they no longer dispute and never providing for environmental monitoring of their pollution’s impacts or the medical monitoring and treatment their pollution requires.
We need to codify ethics laws for legal practice. Only a handful exist. Collateral attacks on an opposing attorney can be the torts of harassment, menacing, or stalking; threatening one is the crime of assault. If your intent is to defraud a party or the court they’re all crimes, and any can obstruct justice. Don’t forget 18 USC 1513e (retaliation for providing to law enforcement truthful information relating to the commission or possible commission of any federal offense) and f (conspiring to do so). 18 USC 1514 allows seeking a TRO to restrain harassment of a victim or witness in a federal criminal case. Political coercion violates 18 USC 610.
Here’s this report’s most important point:
The judges in Chevron v Donziger and US v Donziger appear to have broken multiple laws: at least 5 USC 101d, 18 USC 201, 321, 401, 402, 1346, 1962, 1963, 1964, 3143, 3285, 3553, and 3691, and 28 USC 541 and 591. Possibly sections of 18 USC Ch 47 (defrauding a party or the court) or of 18 USC Ch 73 (obstruction of justice). A court must refer evidence of possible crime for prosecution. A judge who obstructs justice or conspires to do so commits theft of honest services (18 USC 1346). Abuse of office for gain is a crime (18 USC 201). They and the precedents they rely on have violated 28 CFR 600.
The judges (and the decisions they rely on) also appear to have violated multiple clauses: Art I §§1 and 8, Art III §2 (making rules), Art IV §§1, 2, and 4, Art V, Art VI, and Amdts I, IV, V, VI, and XIV §1.
These are prosecutable crimes.
Prosecution is strongly recommended because:
A question has been repeatedly raised: Can jurists be prosecuted on the merits of decisions?
Of course they can. Article I, §6 immunizes members of Congress against questioning anywhere but in Congress itself for their speech and debate in either House. By doing so it bars parallel immunities in the other branches. Expression excludes what is not expressed.
The American Bar Association, judicial commissions and executive-branch enforcement have proven inadequate to enforcing even the FRCPs. And good behavior is a higher legal standard.The Preamble mandates establishing justice. Public corruption, the knowing establishment of an injustice by someone who has taken an oath to establish justice, is a high crime. A high crime or misdemeanor need not violate a statute, regulation, rule, order or practice. Evidence of any of the above violations by a judicial decision more than warrants both prosecution and an impeachment investigation.
Ignorance of the law is never an excuse for violating it, and judges are presumed to know the law. The judicial encroachment on the executive branch in this case, and its use to authorize private, corporate encroachment on government, follows caselaw but to say the caselaw on this topic is unreliable is an understatement. Judges are required to research the statutes relevant to their cases, not just the caselaw. Stare decisis may not violate a statute.
Because this report alleges US felonies, we filed a Civilian Crime Report with the US attorney for SDNY. If you’d like to do the same, it’s easy.
The form can be gotten from https://www.justice.gov/usao-sdny/report-crime.
The Canadian courts empowered CN Rail to privately prosecute environmentalist protesters for criminal contempt. Sound familiar? On January 14, 2022 CN Rail changed its mind, deciding against using this power. They gave no reason. We believe they are waiting to see whether the US Attorney prosecutes the judges in US v Donziger.
CN Rail may have heard that international organization IMPETUS was about to drop its long-awaited report. Their recommendations to US authorities include, “Conduct an independent and impartial investigation into the conduct of Judge Lewis A. Kaplan and Judge Loretta A. Preska related to all proceedings against Mr. Donziger.” Strong words from a group of their stature. Their PDF of this report is at https://t.co/AykCh8jdmq.
The court-ordered private prosecution violated Donziger's rights under Article IV and Amendment XIV. To understand how you need to understand the Vanishing Clauses and what happened when we tried to restore them.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (art IV §1)
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. (art IV §2)
What do these clauses express?
Both appear in the Articles of Confederation in slightly different form. They mainly helped people from free and slave states do business together.
Changing from a confederation to a nation changed their meanings, and the Framers knew we’d be able to enforce them.
The Full Faith and Credit clause guarantees comity. Any status conferred on you by one state, like marriage or a professional license, remains legal if you move or travel to another state whose laws wouldn’t have allowed it. That narrow conception of comity is as far as the courts have upheld it.
But look again.
A textual guarantee is absolute unless checked, balanced or limited in jurisdiction. This clause’s mandate has none, expressly covering laws, nonlegislative acts, court rulings, and records, not in a narrow strip of situations but for every situation and person, in every state, all the time. Since each state believes in its own laws, one must be chosen and Congress must oversee the process, passing laws as needed to smooth and speed it.
Without proof, what are the criteria? Consistency with the Preambular mandates, then the rest of the Constitution, then federal law and treaties. Empowering Congress to determine how changes would be proved and the effects of proving them balances states’ power.
This process will gradually form a more perfect Union (Preamble). The clause is laying out work for the states, to perfect their union as a nation by unifying their existing laws of general application. When fully exercised Full Faith and Credit will strengthen the country. Our legal framework will fit together into one comprehensible code, with US law developing from the Constitution and state laws addressing things it doesn’t cover. This will simplify compliance and reduce caseload, conserving judicial resources.
The Privileges and Immunities clause has a narrower scope but its more straightforward wording doesn’t let states, courts or Congress define “full,” “faith,” or “credit.”
These clauses are meant to be used separately or together as needed, backed up by Article VI, to fulfill the Union clause’s mandate. They give the states power vested nowhere else. Power to largely define the nation.
But few state governments wanted that power.
Combined with the Preambular mandate to increase liberty for posterity Full Faith and Credit would gradually increase pressure to assure equal protection under state laws for people of all religions, for women, for children, for the poor, for indentured servants, and for slaves. Full Faith and Credit was a problem for most states in one way or another.
It would nationalize or end slavery. Eight states already had laws gradually abolishing slavery. The Declaration declares liberty and equality inalienable. The Preamble mandates preserving liberty and establishing justice (which requires equal treatment). When any state reached full abolition and honored all residents’ sovereignty, all states would have to honor all residents’ sovereignty.
The Privileges and Immunities clause was also a problem.
Does this clause establish state citizenship?
No. The Constitution expresses United States citizenship in 1787 (art I §§2 and 3; art II §1). It even says you could be a citizen of the United States at the time of the adoption of the Constitution (art II §1).
[T]he several states means all states taken as a group: a federal government. [C]itizens in the several states can’t be establishing state as opposed to US citizenship because if each state had its own citizenship to offer each would offer it individually, not as all the states acting together. [C]itizens in the several states means US citizenship is federal. Nor does Citizens of each State say each state has citizenship of its own to offer. It says US citizens of each state.
Why doesn’t the text just say “US citizens”? Because the United States of America was already both a sovereign confederation and a nation. It preserved United States citizenship as federal. More on that in “Restoration” below.
But citizenship was also national.
If Privileges and Immunities doesn’t vest the power of granting citizenship, what power does the clause vest?
Citizenship is a privilege itself, but privileges and immunities of citizens refers to the various privileges and immunities attaching to citizens, not to the privilege of being a citizen. A citizen can vote, serve on juries, etc.
Article IV, §2 preserves more federal powers, not state powers. Instead of listing United States citizenship privileges or immunities the text commands the states to come to an agreement on them. With opposing orders from their state legislatures the delegates to the Philadelphia convention could never have agreed, and had the text empowered Congress to make them ratification would have been unlikely.
IV’s clause is a broad mandate with an accordingly broad grant of power.
Both the US and every state must affirmatively uphold a privilege or immunity of US citizenship that all states agree to grant.
In the meantime, what was the problem?
Read with Full Faith and Credit, once one state grants a citizenship privilege or immunity confirmable in the Declaration or Constitution the others have to do the same.
Aristocracy was derided as a European evil beneath the new republic but somehow wealthy, powerful people were not as opposed to it as others. The Roman Republic was one model for our government. Citizenship was restricted in ancient Rome. Some Framers wanted to set economic requirements for citizenship while increasing the privileges and immunities it granted. But in five states free black men with sufficient property already had citizenship.
Article I, §8 in conjunction with the Preamble mandates citizenship for former slaves:
Article IV required all states to accept citizenship for former slaves. They would refuse, violating the Article; in the 1857 Dred Scott decision even the Supreme Court would check it, violating the Article. Knowing they’d be citizens would increase slaves’ incentive to be free.
Privileges and Immunities orders all states to act together concerning the privileges or immunities attaching to citizenship; Full Faith and Credit, in every law of general application and every related executive action, judicial decision, and public record. Today states no longer hold conventions to pass state-level resolutions but they occasionally did this in those days. State conventions usually required unanimity to pass resolutions, but they didn’t have to. Taken together, these clauses meant that former slaves would have every privilege and immunity any other citizen enjoyed. Equal Privileges and Immunities would make them...equal. In every state. That would increase slaves’ incentive to be free even more.
And Congress could make sure states complied. With their new Supreme Court!
This two-pronged tactic was never tested. Instead states simply made IV’s commands disappear, knowingly misreading it to build a fiction of separate state and US governments. Article IV fell to bold corruption, especially after 1800 when Congress and the president unconstitutionally cut their own governmental power in favor of their power as wealthy citizens within their states.
In Corfield v Coryell, (CCED Pa., 1823) Justice James Bushrod Washington, a nephew of the first president’s, invalidly amended the Privileges and Immunities clause by limiting it to
those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
This voids Article IV altogether. If it’s limited to things no states ever differed on, why does it exist? Why did we bother?
And what is the meaning and purpose of §2’s all?
Corfield invalidly amends Full Faith and Credit, reducing it to a shadow of the textual mandate.
It does worse to Privileges and Immunities, making it a mere repetition of the narrowed Full Faith and Credit clause in the same Article.
No court has ever applied the surplusage canon to this repetition.
These powerful clauses, designed to establish a complete national legal code and combined federal/national citizenship, have been reduced to protecting state licenses for travelers or people who move. Exactly what they did under the Article of Confederation.
By calling fundamental rights mere privileges and immunities granted by governments, the decision also invalidly amends the We the People clause and Amdt IX. In fact, Corfield pointedly invalidates all consitutionally granted privileges and immunities. The text, after all, is not a government. And states became free and independent of Britain either in 1776 or when we won the Revolution, before the Constitution. The Court even calls states sovereign. This decision skates close to counterrevolution.
Corfield has been cited over and over. States love it.
The vanishing clauses have even been given a political exception. States today require residency before voting, and the length of residency varies by state. There go both Vanishers, We the People, Supremacy, Amdts IX and X, and Amdt XIV’s Privileges or Immunities, not to mention its Right to Vote clause.
Our present era isn’t the first or second time we’ve restored degraded clauses. The first restoration was at the end of the Civil War.
Here come the myths.
“All Amendment XIV does is assert the rights of former slaves.”
Fact: XIV does far more.
“Article IV’s Privileges and Immunities and Amendment XIV’s Privileges or Immunities are identical.”
Fact: They’re different, and that’s the point. Restoration is not simple restatement. It also addresses the invalid amendment.
“Amendment XIV merely restates equal privileges, equal immunities, and due process to apply these to the states. The surplusage doctrine means the original versions couldn’t apply to states.”
Fact: Accepting this myth takes legal pragmatism, a textual reductionism the courts allow when adjudicating contracts. It can’t be used in constitutional law. The text is one whole law, so by citing any clause you really cite the entire Constitution while calling attention to that clause. Citing one clause doesn’t exclude the rest of the text.
Restating a phrase in a different clause can affect its meaning or purpose, not just its application. Restoration echoes invalidly amended clauses to draw legislatures’ and courts’ attention back to them.
Amendment XIV also echoes Amendment V’s Due Process clause.
“Article IV, §2’s Privileges and Immunities clause covers areas of law controlled by the US while Amendment XIV, §1’s Privileges or Immunities clause covers areas of law controlled by the states.”
Fact: Each guarantees privileges and immunities by vesting, checking and balancing powers.
The areas of law covered by Congress versus state legislatures can vary over time, so reading these clauses as working by dividing law into state or US areas adds needless vagueness to law.
“XIV creates United States citizenship for the first time, reconstructing a text, and a system, where only state citizenship existed before.”
Fact: The Constitution expresses United States citizenship in 1787 (art I §§2 and 3; art II §1). It predates the Constitution. Article IV, §2 does not vest in states the power of state citizenship (see Vanishing Clauses above) but states had been invalidly amending the text by falsely reading it that way.
XIV reasserts that we have one government, not two.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (amdt XIV §1)
What does XIV’s Citizenship clause express?
XIV strengthens Congress’ legislative power to restore a national unity that hadn’t shattered all at once but had eroded over years. But because the requirements for citizenship are now in the text only the text can now add to, take away or amend them. Congress can’t. States can’t, either individually or together.
Congress had failed to use its Full Faith and Credit power with Privileges and Immunities to gradually provide citizenship for slaves, leaving us in a dangerous split and in violation of the Preamble and the Declaration. The several states had also failed. We had ended up in a civil war. We ended federal citizenship and amended Congress’ power to decide the full rule of citizenship to a mere procedural power.
The courts refused to recognize this. The states had no intention of giving up what they had lied so hard for. Especially their power to establish their own state citizenship. And Congress had no intention of giving up its power to make criteria for citizenship.
XIV was invalidly amended the first time it was adjudicated, in the Slaughterhouse Cases, 83 US (16 Wall) 36 (1873). The Slaughterhouse Court corruptly restored a false form of government, undoing Amendments XIV and XV (and the original clauses they restored after long decades of invalid amendment).
The Slaughterhouse decision notes a “never resolved” question of whether people who lived in territories and in DC were citizens before XIV. That dilemma was just one inconsistency caused by the lie. They were always citizens because we, the people, empowered one bilevel government in 1787 and Congress made the rule of naturalization.
XIV discusses the rights of citizens before the rights of persons because few members of Native nations were naturalized and most were born on their own ancestral lands or on reservations (Tribes’ national lands), where they also retained some Tribal laws. They didn’t meet the citizenship criteria. But on US land they joined diplomats, travelers and immigrant residents who keep their home citizenship while protected under the Equal Protection clause.
And Privileges or Immunities repeals states’ power to abridge US citizenship privileges and immunities even by mutual agreement.
Article IV Privileges and Immunities had left the people with another unresolved problem:
What if all states agree to abridge a US citizenship privilege?
What if Congress does?
XIV closes the loophole.
Because the free states had refused to use the federal power Privileges and Immunities had granted them to equalize rights and end slavery, leaving us in a dangerous split and in violation of the Preamble and of the Declaration, and because some states had individually abridged some citizens’ privileges and immunities, Privileges or Immunities repeals part of that vestiture by directly entitling citizens in every state to all citizenship privileges and immunities.
A US citizenship privilege or immunity can’t be abridged by state or US law even if all states agree.
This federal power has checks, of course. Its use must comply with the rest of the Constitution.
XIV says make or enforce. States enforce both state and US laws (art VI). To limit the clause’s legal force to state laws would have drastically changed the balance of powers. Instead, neither Congress nor any state can pass a law abridging a US citizenship privilege or immunity once established, because the states couldn’t enforce it.
This distinction can be confusing. Let’s go over it.
Can it say:
“XIV bars states’ abridging US citizenship privileges or immunities by laws, but they can abridge them by state rules.”?
No. The Constitution is the supreme law of the land (art VI) and it says all state actors must comply with the Constitution, US law, or US treaty, not just state legislatures (also art VI). To amend this structural principle of the Constitution itself, we’d have to restore each provision of Article VI to make sense the new way. XIV doesn’t. Amendment can’t make nonsense of any existing clause.
Can it say:
“XIV bars states’ enforcing US laws that abridge US citizenship privileges or immunities, but they can enforce US rules that abridge.”?
Only if all states agree to allow the abridging US rule, because Art IV, §2 won’t let them abridge separately even if a US rule tells them to. The Supremacy clause only puts the Constitution, US laws, and treaties above state acts.
XIV’s jurisdictional limitation to laws, not rules, retains a broad federal (as opposed to national or state) mandate and power.
IV’s Privileges and Immunities still requires states to enforce any (constitutional, of course) citizenship privilege or immunity all states agree on, above any state or US rule. While this can no longer be used against laws, it still empowers the states, acting by mutual agreement, to protect us against tyranny by the other two branches of the US government. There are few checks on the Supreme Court in particular. We shouldn’t vanish the ones we have.
US v Donziger is a good example of why.
Subhead quotes from Carroll, Lewis. Alice in Wonderland (Oxford: Clarenden, 1861) and Through the Looking-Glass, and What Alice Found There (London: MacMillan and Co, 1870)