Citing Arthrex, Donziger says private prosecutor unconstitutional

(Reuters) – American lawyer Steven Donziger has once again asked a Manhattan federal judge to dismiss his criminal case arising from his battles against Chevron Corp over pollution in the Ecuadorian rainforest, arguing that a U.S. Supreme Court ruling issued earlier this week suggests the private prosecution charging him is unconstitutionally appointed.

In a motion to dismiss filed on Tuesday, Donziger who is charged with criminal contempt argued that the high court’s ruling, which found certain administrative judges’ appointment violate the U.S. Constitution because they lack supervision, should “void” his case because the private prosecutors acting for the United States in his case similarly lack proper supervision.

Lead private prosecutor Rita Glavin did not immediately respond to a request for comment.

Donziger’ criminal case springs from post-judgment orders in a civil case brought by Chevron in which a district judge in 2014 barred enforcement in the United States of a $9.5 billion judgment, which Donziger had won in an Ecuadorian court, against the oil major. U.S. District Judge Lewis Kaplan found the judgment had been obtained through fraud.

The disbarred human rights lawyer is charged, among other things, with failing to turn over his computer, phones and other electronic devices and refusing court orders to surrender his passport in the civil case Chevron won in 2014.

In Tuesday’s motion, Donziger and his attorney Martin Garbus of Offit Kurman argue that the Supreme Court’s June 21 ruling in United States v. Arthrex Inc “ma(kes) all the more clear” the private prosecutor’s appointment is unconstitutional.

The U.S. Department of Justice does not supervise the private prosecution in Donziger’s case, according to the filing.

In the high court’s decision, a slim majority of the justices ruled that the appointment of judges on the Patent Trial and Appeal Board violated a constitutional provision intended to ensure accountability for powerful government officials.

“The same constitutional principles necessarily limit appointments under (the Federal Rules of Criminal Procedure),” Garbus’ motion says.

“It follows that the appointment of the private prosecutor here exceeded the district court’s constitutional authority,” it adds.

Donziger was tried in May after being confined at home for nearly two years amid repeated postponements of his trial due to the coronavirus pandemic and issues with his legal representation.

He faces a maximum of six months behind bars.

The case is United States v. Donziger, U.S. District Court for the Southern District of New York, No. 1:19-cr-00561.

For United States: Rita Glavin of Glavin and Brian Maloney of Seward & Kissel

For Donziger: Martin Garbus of Offit Kurman and Ronald Kuby of the Law Office of Ronald L. Kuby

Read more:

Attorney Donziger, prosecutors clash over contempt charges in pollution case

Lawyer who sued Chevron over Ecuador pollution faces N.Y. contempt trial

Judge ‘reluctantly’ postpones attorney Donziger’s trial for fifth time

Chevron wins U.S. ruling blocking $8.6 billion Ecuador rainforest award

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