Pardon Steven Donziger

Biden can fight back against our corporate judicial system and for once use the presidential pardon to fight Big Oil

In late April, House Rules Committee Chair Jim McGovern (D-Mass.) led 10 House colleagues in calling on President Joe Biden to pardon human rights lawyer Steven Donziger, who was released recently after 986 days under house arrest. Issuing a pardon here is the right thing to do.

The facts in Donziger’s case are appalling. Donziger won a $9.5 billion judgment against Chevron-Texaco for contaminating what became known as Ecuador’s “Amazon Chernobyl.” Chevron then waged a years-long campaign of legal harassment and persecution against Donziger. Chevron’s campaign relied mostly on later-recanted testimony from an Ecuadorian judge who claimed Donziger had bribed him (in fact, the judge turned out to have been bribed by Chevron).

Federal Judge Lewis Kaplan, whose writings betray a seeming fondness for Chevron, later drafted up criminal contempt charges against Donziger. After the Southern District of New York refused to pursue those charges, Kaplan took the highly unusual step of appointing a Chevron-affiliated private law firm to prosecute Donziger. He then appointed Judge (and Federalist Society adviser) Loretta Preska to oversee the case. Preska proceeded to issue extraordinarily harsh penalties against Donziger. McGovern and his congressional colleagues correctly warn about the “chilling effect [Donziger’s] case will have on attorneys working on behalf of other frontline communities, victims of human rights violations, and those seeking environmental justice in the future.”

In this year’s midterm elections, Biden and congressional Democrats will be facing major political headwinds. Since 2006, an angry and disillusioned American electorate has punished the incumbent party in nearly every national election, with lawmakers seldom delivering the change that these “change elections” are supposed to compel. Exhausted from the pandemic, voters are expected to continue the trend this fall, and inflation and soaring gas prices are thought to be one major reason why.

There is a theory floating around that the Supreme Court’s overturning of Roe v. Wade will prompt backlash against the overreach from our corporate Federalist Society judiciary, allowing Biden and the Democrats to minimize their midterm damage. So far though, congressional Democrats have failed to pass any judicial overrides or even do the bare minimum to show how they’re pushing back against SCOTUS extremism.

To avoid the worst of the angry electorate’s wrath, Democratic operatives have argued, Biden needs a villain. Big Oil has the potential to provide him with one. Importantly, Chevron is one of the only oil majors that continues to do business with Putin following his war crimes. Moreover, the entire Donziger ordeal neatly showcases the corporate takeover of our legal system.

One driving force behind America’s angry electorate is a two-tiered criminal justice system that promises impunity for corporations and a corrupt class of well-connected wealthy individuals. The public has repeatedly watched this dynamic be reinforced in the modern era, as the pardon power has been abused to excuse political corruption and reward powerful friends by Presidents Ford, George H.W. Bush, Clinton, George W. Bush, and, most notoriously, Trump, Trump, and Trump. (It should also be noted that the history of controversial pardons overlaps with the American political system’s corruption by Big Oil, as seen through Poppy Bush’s pardon of oil tycoon Armand Hammer or Clinton’s exoneration of “King of Oil” Marc Rich for an illegal oil trading scheme.)

Biden’s initial response to Putin’s invasion of Ukraine seemed to strike the right tone, as he wielded strong rhetoric against fossil fueled “tyrants,” or what other Democratic politicians have labeled “petro-dictators” threatening democracy around the world. Along with Biden’s decisions to go big on fiscal stimulus and appoint officials intent on invigorating antitrust policy, Biden’s rhetoric seemed like a potential indication that he’d learned from key mistakes of the Obama presidency. In the weeks since, however, Biden has reverted back to a very Obamalike “all of the above” strategy, approving new fossil fuel development that locks in dangerous pollution for years to come.

Notably, Trump sent signals to his rabid right-wing base through his pardons of odious figures like former Maricopa County Sheriff Joe Arpaio. While despicable, symbolic acts like these helped consolidate and mobilize Trump’s base—which may partially explain why he won more votes in a higher turnout election in 2020, despite presiding over a pandemic that cost millions of Americans their lives and jobs.

Biden, by contrast, has spent the past several weeks not only violating campaign promises by engaging in ever more drilling, but antagonizing his left base by endorsing a pair of fossil fueled-congressional incumbents, one of whom played a major role in blocking his agenda.

There is still time for Biden to correct course. He may realize, as some Democrats have, that this election year is hardly a time to be friendly with Big Oil. In California’s 13th congressional district, for instance, Democratic candidate Phil Arballo is running an ad that highlights high gas prices while attacking his opponent, Assemblymember Adam Gray, for being in the pocket of Big Oil. (Gray counts Chevron among his top contributors.) There are many policy options available for Biden to frame this year’s elections as him vs. Big Oil in a battle for democracy. Biden can and should embrace congressional efforts to charge a Big Oil Windfall Profits Tax, for instance.

By using his power to pardon a lawyer who has represented indigenous people in Ecuador against one of the world’s most powerful and destructive corporations, Biden would take a small step toward correcting a gross miscarriage of justice by our corporate legal system. He’d also be taking a step toward showing the American people whose side he’s on.

Steve Donziger in Quito, Ecuador. Credit: Rodrigo Buendia

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