Two weeks ago, far-right candidate Jair Bolsonaro was elected President of Brazil. Likely no single factor explains Bolsonaro’s success, but as I noted in a previous post, disgust at the corruption of the Worker’s Party (the PT), which had been exposed by the so-called Car Wash (Lava Jato) investigation, likely played a significant part. The Lava Jato operation has brought to light shocking levels of corruption, mainly though not exclusively at Brazil’s state-owned oil company Petrobras, and has led to the convictions of scores of businesspeople and politicians. Some of the key figures involved in the Lava Jato operation, including prosecutor Deltan Dallagnol and Judge Sergio Moro, have become national heroes, at least in some quarters. But their popularity is by no means universal. The fact that Lava Jato has investigated and convicted so many PT politicians, including former President Luiz Inacio Lula da Silva (known as Lula), has led some PT members and sympathizers to accuse the investigators, prosecutors, and judges involved in the Lava Jato operation as engaged in a politically-motivated right-wing conspiracy against Lula, the PT, and the left generally. On this account, Lula is a “political prisoner,” and the impeachment and removal of his successor, President Dilma Rousseff, was a “coup.”
Many people, me included, have pushed back hard against the notion that the Lava Jato operation is a politically-motivated conspiracy. The evidence that has come too light seems incontrovertible, and while critics have identified a number of questionable decisions by the prosecutors and judges (criticisms I’m not in a position to evaluate on the merits), the notion that it’s all a politically motivated sham are baseless. Overall my impression, shared by many other domestic and international observers, is that the Lava Jato operation has been conducted with great professionalism. Yes, it’s true that the operation has targeted many PT figures, but Lava Jato has gone after politicians from across the political spectrum, and if PT politicians seem to make up a disproportionate share, this is most likely because the PT had held the presidency from 2003 to 2016, first under Lula and then under Dilma. Furthermore, many of us in the international community, along with a number of Brazilian anticorruption scholars and activists, worried that these unsubstantiated attacks on the integrity of Lava Jato—attacks that go beyond challenging individual decisions or rulings—would do serious damage to the longer-term development of an effective set of institutional checks and balances in Brazil. One doesn’t need to subscribe to a naïve view that prosecutors and judges are entirely “neutral” to recognize the importance of developing institutions of justice that are not, and are not perceived as, partisan or “political” in the crude sense.
It’s in that context that I was so disheartened to learn last week that Judge Moro had accepted President-Elect Bolsonaro’s appointment to serve as Minister for Justice. I have no reason to doubt Judge Moro’s integrity or to believe that he accepted this job for any reason other than because he believes it will give him an opportunity to serve his country. But I nonetheless fear that it was a mistake, one that will set back Brazil’s ongoing efforts to develop more robust anticorruption institutions.
The main reason is a straightforward one: The narrative that many PT supporters have been propounding for the last several years is that the Lava Jato investigation generally, and Judge Moro specifically, are biased against the PT. Judge Moro and his supporters, both domestic and international, have challenged that narrative, emphasizing that Lava Jato is a legal rather than a political operation, and that the relevant institutions—principally the public prosecutor’s office and the judiciary—are not partisan political actors. For Judge Moro to accept a position in the cabinet of a president who defeated the PT candidate in a hotly contested election undermines that claim. To be clear, Judge Moro’s appointment does not change my view on whether Lava Jato was all a politically-motivated sham. The claim that Lula is a “political prisoner” still seem absurd to me, as do the other forms of conspiracy-mongering that some PT sympathizers have proffered. But that’s not the point: the point is that right now Brazil is in the midst of both an intense political struggle and a delicate process of institution-building. If Judge Moro had publicly declined Bolsonaro’s appointment, on the grounds that, as the presiding judge in such a politically-sensitive and controversial set of cases, it would have been inappropriate for him to accept such an offer, this would have sent a powerful signal to the Brazilian public about the separation between law and (partisan) politics. To have accepted that appointment sends the opposite message, however unintentionally. Indeed, as recently as last year Judge Moro himself said in an interview that it would be inappropriate for him to take any kind of public political position, because doing so could “put in doubt the integrity” of his work on the Lava Jato cases.
By way of comparison, suppose that a year or two from now, U.S. Special Counsel Robert Mueller releases a report that accuses President Trump and his associates of engaging in a variety of serious federal crimes, and President Trump denounces the report as the product of a “witch hunt” concocted by Democrats and the Deep State. Suppose that a Democrat wins the 2020 presidential election and immediately appoints Robert Mueller as the Attorney General, or to the Supreme Court. Whatever Mueller’s qualifications, and however absurd the accusations of political bias against him, for a Democratic president to offer, and for Mueller to accept, such an appointment under those circumstances would be widely seen as the height of impropriety—and rightly so, in my view. It certainly would undermine confidence in future special counsel investigations of high-level political figures.
It’s even worse that the position that Judge Moro accepted is a cabinet position—one from which, unless I misunderstand Brazilian law, President Bolsonaro could remove Judge Moro at will—rather than, say, a seat on the Brazilian Supreme Court. If it were the latter, then at least we wouldn’t need to worry so much that Judge Moro’s desire to keep his position—something that would likely influence even the most upstanding public servant in subtle, perhaps subconscious ways—might shape his decision-making in his new position.
And that leads into another concern that I have. As I wrote shortly before the elections, and as Jessie also noted in an earlier post, there are good reasons to predict that the Bolsonaro administration will have its own corruption problems, perhaps quite serious ones, especially given that Bolsonaro seems to have little regard for norms, institutions, or constraints on his own power. Bolsonaro has allegedly promised Judge Moro total independence in his new position, saying, “Even if he comes to get somebody in my family in the future, I don’t care.” Don’t believe it. This is what leaders like Bolsonaro always say at the beginning, and it’s virtually never true. And what happens when investigations, which the Justice Minister has the power to influence, do uncover leads that may implicate the president or people close to him? What happens if Bolsonaro, despite his professed support for the anticorruption reforms that Judge Moro believes his new position will give him the opportunity to implement, turns out to be less than enthusiastic for key measures that he views as politically threatening?
My hope is that if anything of the sort occurs, Judge Moro would resign, and do so “noisily”—that is, with a public declaration of his reasons. His stature as an anticorruption hero to many Brazilians—and the perception, which his recent appointment will cement, that he’s hostile to the PT—would likely give such a noisy resignation significant political weight. The problem, as my colleague Jack Goldsmith and others have pointed out in a different context, is that it turns out to be much more difficult, once in office, to define and adhere to “red lines” of this sort. And this is likely to be especially true for someone like Judge Moro, who presumably (unless I misunderstand how the Brazilian system works) wouldn’t be able to go back to his old job as a judge if he resigns from the cabinet.
I gather that, as noted above, Judge Moro may have taken the job because he believes it will give him the opportunity to push for more systematic anticorruption reforms, reforms that go beyond simply enforcing the existing criminal laws. That’s laudable—but I fear based on a miscalculation of what would be best, in the longer term, for strengthening Brazil’s anticorruption institutions. I fear that Judge Moro and other reformers will find the Bolsonaro administration much less receptive than they hope to genuine systematic anticorruption reforms, and downright hostile to any attempt to hold the president and his inner circle accountable for their own corruption. So this appointment may not be the opportunity that Judge Moro is hoping for. And at the same time, his acceptance of the appointment may have already done significant damage to the vital efforts to establish—not only in fact, but in public perception—institutions of justice, and anticorruption efforts in particular, as separate from partisan politics.
The title to this piece invokes a famous, though probably apocryphal, quote, attributed to a young baseball fan when he learned that his hero, the superstar Shoeless Joe Jackson, had taken bribes from gamblers to join a conspiracy to deliberately lose the 1919 World Series: “Say it ain’t so, Joe!” Given Brazil’s different sports passions, perhaps a different metaphor would be more fitting: Though likely well-intentioned, I fear that Judge Moro’s decision to accept a position in the Bolsonaro cabinet will end up as an “own goal” for Brazil’s anticorruption movement.