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Lawyer imprisoned after taking on Chevron finds friends at high court

The justices will not be hearing Steven Donziger's appeal, but two slammed the prosecution of the environmental lawyer as unconstitutional. 

WASHINGTON (CN) — Justice Neil Gorsuch railed against the Supreme Court’s decision Monday not to review the prosecution of Steven Donziger, claiming the criminal case against the disbarred environmental lawyer violated the U.S. Constitution. 

“However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty,” the Trump appointee wrote

Justice Brett Kavanaugh joined Gorsuch in the dissent after the majority of the court opted not to hear the appeal.

Donziger was sentenced to criminal contempt in New York, where the oil giant Chevron sued him after the lawyer represented indigenous Ecuadorians whose rainforest home is now polluted by decades of oil development. Though the case in Ecuador ended in a $9.8 billion verdict, Chevron later won a judgment in the Southern District of New York that said the verdict had been obtained by fraud. U.S. District Judge Lewis Kaplan presided over those proceedings and later charged Donziger personally after the U.S. Attorney's Office declined to pursue the case.

In the view of the dissenting justices, the district court usurped the power of the executive branch by appointing prosecutors for the case. 

“The notion that the Constitution allows one branch to install nonofficer employees in another branch would come as a surprise to many,” Gorsuch wrote. “Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House?” 

Gorsuch said judges have as much power to choose prosecutors as prosecutors have to make judgments. 

“In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge,” Gorsuch wrote. 

Calling the court’s denial a failure, Gorsuch said future courts should consider their authority before making the same decision in the future. 

“Our Constitution does not tolerate what happened here,” Gorsuch wrote. 

Chevron never drilled in Ecuador but in 2001 it acquired Texaco, which operated an oil consortium in the South American country from 1972 to 1990.

After Judge Kaplan found that the judgment against Chevron in Lago Agrio, Ecuador, was obtained by corrupt means, Donziger was disbarred, convicted and sentenced to the maximum sentence of six months in prison.

On appeal, the Second Circuit affirmed

Donziger then appealed to the high court questioning if judges had the authority to make these kinds of appointments. 

“This court has held that the enforcement of federal laws is exclusively an executive function,” attorney Stephen Vladeck wrote in a petition for Donziger. “It has clarified that those exercising authority like that wielded by the private special prosecutors here are ‘officers of the United States’ whose appointments must comport with the Appointments Clause.” 

The government waived its right to respond to Donziger’s petition. 

Chevron said Donziger's appeal to the high court had no relevance to his convictions.

“Mr. Donziger’s petition had no bearing on Chevron’s federal racketeering judgment against him, in which a unanimous Second Circuit panel found that Donziger engaged in a ‘parade of corrupt actions … including coercion, fraud, and bribery,’” the oil giant's attorney, Theodore J. Boutrous Jr. with Gibson, Dunn and Crutcher, said in a statement.

Justice Gorsuch's dissent in the Donziger case is part of an order list where the high court agreed to consider standing for Americans with Disabilities Act litigation. Deborah Laufer has filed over 600 federal lawsuits against hotel owners and operators for alleged ADA violations. Acheson Hotels claims Laufer should not have standing to bring these suits because she does not actually intend to book a stay at these hotels. 

“Laufer’s abstract desire to ensure compliance with federal law does not give her Article III standing,” Adam Unikowsky, an attorney for the hotel with Jenner & Block, wrote in its petition.

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