U.S. defends appointment of special prosecutors in Donziger case

3 minute read

Attorney Steven Donziger outside the Manhattan Federal Courthouse in New York, October 1, 2021. REUTERS/Shannon Stapleton

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  • Justice Department rejects constitutional argument in environmental lawyer's appeal
  • DOJ filing says special prosecutors not 'officers' under appointments clause

NEW YORK (Reuters) - The U.S. Department of Justice on Friday told a federal appeals court reviewing the contempt conviction of disbarred environmental lawyer Steven Donziger that it should reject his argument that his prosecution by private attorneys violated the U.S. Constitution's appointments clause.

In a friend-of-the-court filing, the DOJ told the 2nd U.S. Circuit Court of Appeals that Donziger's argument that "unsupervised" private special prosecutors lacked the constitutional authority to prosecute him was "wrong in its inception."

Donziger's lawyer Martin Garbus said the government's position wasn't a surprise. The Justice Department did not immediately respond to a request for comment. Special prosecutor Rita Glavin, one of the private lawyers who was appointed to prosecute the case, declined to comment.

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Senior U.S. District Judge Loretta Preska in Manhattan found Donziger guilty of six counts of criminal contempt following a May bench trial. He was sentenced to six months in jail last month and has begun serving his sentence.

Donziger claims in his appeal that the special prosecutors who secured his contempt conviction lacked constitutional authority to pursue the charges under the appointments clause because they were acting as officers of the United States without higher government supervision.

But the DOJ in its filing said the special prosecutors were not acting as officers of the United States because they were vested with federal authority on a temporary basis.

"Accordingly, Donziger's constitutional challenge should be rejected, irrespective of the supervision or lack thereof by the Department, because he has not challenged the appointment of an 'officer' in the first place," Friday's filing said.

The criminal case against Donziger stemmed from post-judgment orders in a civil case in which a Manhattan judge, in 2014, barred enforcement in the United States of a $9.5 billion judgment against Chevron Corp that Donziger had won in an Ecuadorian court. The judge said the Ecuadorian judgment had been secured through bribery, fraud and extortion.

Donziger, who was disbarred in New York last year, was charged in 2019 with failing to turn over his computer, phones and other electronic devices in relation to the Chevron case.

While federal criminal prosecutions are normally conducted by the DOJ, the government had declined a district court referral to prosecute Donziger, leading to appointment of the special prosecutors by the judge overseeing the Chevron case.

The case is United States of America v. Donziger, 2nd U.S. Circuit Court of Appeals, No. 21-2486.

For United States of America: Rita Glavin of Glavin

For Donziger: William Taylor of Zuckerman Spaeder

For DOJ: Robert Parker with the DOJ

Read more:

Donziger appeal to center on special prosecutor role

Chevron foe Donziger surrenders after losing bid to avert prison

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Thomson Reuters

New York-based correspondent covering environmental, climate and energy litigation.