The unprecedented revenge campaign waged by Chevron against human rights lawyer Steven Donziger reached a new low last Friday, when the environmental justice activist was sentenced to six months in federal prison on criminal contempt charges by U.S. District Court Judge Loretta Preska. How has Biden’s Department of Justice (DOJ) allowed this miscarriage of justice, amid rising calls from members of Congress, Nobel laureates, and human rights organizations to investigate the case? Perhaps part of the answer lies in the fact that Biden has hired several lawyers from Chevron’s law firm to fill key roles across the executive branch.
For those unfamiliar with the case, here’s the gist: Shortly after Ecuadorian courts ordered Chevron to pay Donziger’s clients (over 30,000 Ecuadorian farmers and indigenous people) $9.5 billion in damages for dumping toxic oil waste in the Amazon in 2011, the fossil fuel giant filed a baseless countersuit against him in the U.S. and vowed to fight the settlement tooth-and-nail. In 2014, SDNY Judge Lewis Kaplan — a former corporate lawyer with ties to Chevron — invalidated the Ecuadorian judgment and charged Donziger with criminal contempt for refusing to hand his electronic devices over to Chevron (an order that would have violated Donziger’s attorney-client privilege). After the SDNY U.S. Attorney’s Office declined to prosecute Donziger, Kaplan took the unprecedented step of appointing private law firm Seward & Kissel (which represented Chevron as recently as 2018) to lead the prosecution and selected Judge Preska, a member of the Federalist Society (which receives Chevron donations), to oversee the case. Preska’s confinement of Donziger to nearly two years of house arrest during the trial — more than four times the maximum sentence that was handed down on Friday — was found by a UN panel of human rights experts to be a violation of the International Covenant on Civil and Political Rights. Legal experts have also deemed the Chevron-aligned private prosecution of Donziger a version of a SLAPP suit, intended to silence and intimidate those who stand up to corporate wrongdoing by burying them with legal defense costs.
Of particular note is the role that Chevron’s current law firm, Gibson Dunn, has played in leading the company’s decade-long legal offensive against Donziger: according to The Intercept, Gibson Dunn has “hired private investigators to track him, created a publication to smear him, and led a team of hundreds of lawyers to fight him”. In a report this May, my colleagues Andrea Beaty, Ella Fanger, and Zena Wolf noted that Gibson Dunn not only has a history of representing oil giants like Chevron, but also helped staff the Trump administration with pro-corporate alumni like Labor Secretary Eugene Scalia and EPA General Counsel David Fatouhi. It was likewise an influential feeder firm for DOJ hires during the Obama administration, and its prolific political influence may also explain why several high-profile New York Democrats have remained silent on Donziger’s case: the firm employs Representative Jerry Nadler’s son as an associate and has donated over $190,000 to Senator Kirsten Gillibrand and her PAC.
Gibson Dunn’s revolving door has also extended into the Biden administration, concurrent with the firm’s ongoing representation of Chevron. As noted in our Revolving Door Report on Gibson Dunn, at least three Gibson Dunn alumni who previously represented fossil fuel companies — including two who represented Chevron — joined the Biden administration in 2021:
- Jose Fernandez, Under Secretary of State for Economic Growth, Energy, and the Environment: Fernandez, a Biden campaign donor who previously served as Assistant Secretary of State for Economic, Energy, and Business Affairs during the Obama administration, was confirmed by the Senate on August 6th, 2021. In between his stints in the Obama and Biden administrations, Fernandez was a partner at Gibson Dunn’s New York City office, where financial disclosure forms reveal he represented oil giants Chevron, Occidental Petroleum, SK E&P, and Saudi Arabia’s sovereign wealth fund. In his new perch in the Biden administration, Fernandez will be tasked with “leading the State Department’s environmental and economic growth policies abroad.”
- Stuart Delery, Deputy White House Counsel: Delery, who previously served as acting Associate Attorney General from 2014 to 2016, was named Deputy White House Counsel to President Biden in December 2020. While working as a partner at Gibson Dunn from 2016 to 2021, Delery provided legal services to fossil fuel company Energy Transfer Partners, a major backer of the Dakota Access Pipeline that has routinely filed SLAPP suits against the project’s opponents. Delery also represented utility giant Southern, the company behind the Kemper coal plant in Mississippi, which promised to be the first “clean coal” plant but was a yearslong legal and environmental debacle.
- Avi Garbow, Former Senior Counselor to the EPA Administrator: Garbow, who previously served as the EPA’s general counsel during the Obama years, returned to the agency on a temporary basis earlier this year after a stint as a Gibson Dunn partner from 2017 to 2019. According to his LinkedIn profile, Garbow served as Senior Counselor to the EPA Administrator from January to June of 2021 while on a six-month leave from his employer Patagonia. While at Gibson Dunn, Garbow served as part of Chevron’s legal defense team in several municipal lawsuits concerning the firm’s role in exacerbating climate change, including those brought by the cities of New York and San Francisco.
Biden’s hiring of these three Gibson Dunn alumni over the past nine months is part of a larger alarming trend of tapping fossil fuel industry allies to staff the executive branch. Other Big Oil-connected personnel in or nominees to the Biden administration include Treasury Department nominees Neil MacBride and Elizabeth Rosenberg (ExxonMobil); Deputy Interior Secretary Tommy Beaudreau (Dominion Energy, BHP); Deputy Climate Advisor Ali Zaidi (Callon Petroleum, Midstates Petroleum); Deputy Attorney General Lisa Monaco (ExxonMobil); State Department advisor Amos Hochstein; and Domestic Policy Council Director Susan Rice (who holds investment stakes in Enbridge, ExxonMobil, and Chevron). Likewise, Attorney General Merrick Garland has resisted calls from ethics watchdogs to close the revolving door between the DOJ and fossil fuel-aligned corporate law firms.
For a president who campaigned on urgently addressing the climate crisis and has pledged to put “science over fiction,” Biden’s stacking of the executive branch with Big Oil’s allies is a betrayal of the climate-concerned voters who helped him defeat Donald Trump. Also appalling is the Biden administration’s failure to review Chevron’s highly fraudulent case against Donziger, despite months of calls to do so by human rights groups and members of Congress. As the appeals process continues, the DOJ should (as Donziger himself has suggested) not waste another minute and heed the UN panel’s advice: investigate the Chevron-tainted prosecution, remove Chevron’s hand-picked judges from the case, and demand Donziger’s immediate release.
The Trump administration failed to hold Big Oil accountable, regularly letting corporate polluters evade accountability and welcoming a coterie of industry lobbyists and consultants into high-ranking executive branch positions. If Biden is serious about restoring public faith in government, he must stand up to Big Oil’s efforts to purchase the justice system and free Steven Donziger.