“Say It Ain’t So, Sergio!”: Judge Moro’s Appointment to the Bolsonaro Cabinet Is a Setback for Brazil’s Struggle Against Corruption

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.

9 thoughts on ““Say It Ain’t So, Sergio!”: Judge Moro’s Appointment to the Bolsonaro Cabinet Is a Setback for Brazil’s Struggle Against Corruption

  1. Thank you Professor. This is a really fascinating post, which raises several questions to think about.

    While my knowledge about Operação Lava Jato and Judge Moro is definitely limited, I think that the post brings up once again the general question of the necessity of cooling off periods for judges before they can join politics or serve as cabinet ministers. Even without being involved in politically-sensitive trials, I think that such cooling off periods are a measure which ought to be seriously considered.

    However, I do want to mention that I know of highly ethical and honest public officials that as a guiding principle refuse to avoid taking steps which they believe to be beneficial and fully ethical solely because others might view those steps as unethical. I suppose that this has a lot to do with the personal character of each public official. (Although in this particular case, I understand from the post that Judge Moro had already mentioned in the past that it would be for the best if he didn’t take any public political position).

    • Great comment, Rubinstein! I agree with you that a cooling off period should be taken seriously regarding judges. By the way, I would also add to your post the prosecutors.

      Nevertheless, I must question you and professor Stephenson about this thought-provoking hipothesis: what about the weakening of anticorruption enforcement by politically indicating to head the Prosecutor Service the leading prosecutor of a big corruption probe, therefore putting him far away from the typical (and powerfull) decisions of a “first line combat” agent?

      • Hi Mr. Messias. That is an interesting question, but I suppose that the answer to it largely depends on the circumstances of the specific case. For example: may this prosecutor still be active in working on the case even as the head of agency? Are there any other good prosecutors whom he may appoint as his replacement?

        • Thanks for replying, Rubinstein! Speaking of Brazil, I believe I can say “no” to your first question and “yes” to the last one. So, this hypothetical scenario constitutes a sincere anticorruption campaign from the head of the government? Are we talking about a reward to the leading prosecutor for his services or, perhaps, a desirable weakening of the investigation?

          • If I understand you correctly, I do think that the questions you raise are indeed important factors in assessing the morality/justifiability of such a step as described in hypo.

  2. Professor Stephenson,

    Thank you for this post! I also was (and still am) surprised and nervous when I saw that Judge Moro had agreed. I wonder, however, if there are parallels to the US that can be drawn that can explain this decision further. Specifically, I wonder who the other option would have been if not Moro. For instance, every time someone resigns or is fired within Trump’s administration, many of us don’t really know how to react. On the one hand, we’re happy to see someone we disagree with out of a position of power, but on the other hand, we’re also afraid to see who will be replacing them. Is this an attempt by Moro, not only to serve his country and to enact anticorruption reforms, but to also prevent someone harmful from assuming that role? Moro might be the voice of reason on Bolsonaro’s cabinet, taking the position from a far-right radical that Bolsonaro might have also considered. That’s not to say that I disagree with your point that this might be a miscalculation, but hopefully that Moro, whether he’s able to enact anticorruption reforms or not, serves as an important roadblock just by virtue of his presence in the cabinet.

  3. Professor, thank tou for the post and for all the attention with the Brazilian anticorruption agenda. I agree with you that by accepting Bolsonaro’s offer to serve as Minister of Justice, Moro enhances the narrative of Lava Jato being a politically-motivated movement (or at least feeds it). I don’t believe however he did it without taking that into account. Judges in Brazil are public servants, selected by a tough public contest and became irremovable from office after receiving the commission (they only can be “fired” for cause and by a judicial decision – in practice is close to impossible this happening). Accepting the office of MJ is clearly a complete shift in Moro’s careers (giving up a life-career plan as a Judge) towards a aspiring political career. Although Moro said in a press conference that he would not be running next elections, Brazilian press is divided between considering him the natural successor of Bolsonaro in 2022 and the next Supreme Court Justice (an alternative offered by Bolsonaro jointly with the MJ office). I think where the now political career will drive Moro is yet to be seen. I insist, however, that the spillover effects of his new job on the “anti-Lava Jato” narrative seemed to have been sufficiently calculated by him. It has not changed much people’s opinion on him: PT’s supporters did not like him and this remain unchanged (although they may now have more material to complain in addition to other controversial decisions Moro issued as judge). The same applies to Bolsonaro’s supporters: they rejected the political crusade narrative and they keep doing so. Even in the press and in the academia, where some critique was raised against Moro’s choice, the fact that Moro seems to be a way more “serious” and “technical” choice when compared to others gravitating around Bolsonaro makes this fact not to be the major concern arising from the upcoming administration.

    On the other hand, I believe Moro himself now has a couple of more challenging issues to handle:

    a) MJ (if incorporates the Comptrollers’ Office “CGU”) will be responsible for negotiating leniency agreements with the dozens of companies involved corruption schemes (many of them implicated in Lava Jato and whose executives were convicted or investigated by the very own Sergio Moro). The coordination among CGU, prosecutors, Judiciary and other enforcers have been nothing more than troublesome for the past four years.
    b) While as judge Moro indicated that the criminal level should have preference over administrative enforcement, it is unclear which role anticorruption administrative bodies are expected to play under his supervision. MJ, as preliminarily discussed by Bolsonaro’s team, could incorporate different investigate bodies (including the above mentioned CGU, the financial monitor and the federal police), with powers to impose penalties (excluding imprisonment) to public servants and companies implicated in corruption scandals. With powerful tools in its hands, I would be skeptical about MJ being deferential to criminal enforcement and this could created – or reinforce – coordination problems.
    c) The MJ encampasses the organized crime agenda, including drug, guns and human trafficking, as well as public security and prison policy. These problems, very urgent and compelling in Brazil – and part of the claims brought by Bolsonaro himself, are structurally very different of corruption and will demand different abilities from the Moro administration.
    d) Ensuring human rights protection (a very strong critique made against Bolsonaro’s agenda and a troublesome topic for Brazil before the international community) – while it is not clearly under the MJ’s umbrella, much of its activities touches on criminal matters, incarceration problems etc. We need to watch carefully whether a tougher approach on organized crime won’t have spillover effects of undermining human rights protection.

  4. Thank you for this thought-provoking post, Professor Stephenson! I have no doubt that there are/were many American cabinet officials thinking through these same questions when receiving job offers from President Trump. Like Signa notes above, perhaps Moro thought it was better to have a seat at the table in enacting systemic anti-corruption reforms, regardless of how it seemed to others, especially considering the other people (who may have seemed more partisan) that could have taken the position. I also imagine that it is much easier to speculate about not taking a powerful job than it is to actually refuse said job when the opportunity arises. Ultimately, I agree that it is harder to hold oneself to a “red line” once you are in one of these positions, precisely because you convince yourself that you can do more good by staying where you are than by public resigning. It may be true. A public resignation could hold headlines for a week or two in today’s media landscape, while by remaining in your post you could prevent bad things from happening (or make good things happen) for years. I guess we’ll see how this plays out for Moro.

  5. Pingback: Narrativa da anticorrupção como movimento partidário se firmou, diz professor de Harvard – Bruno Dalólio Advocacia

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