Four Steps Brazilian Judge Sergio Moro Can Take to Remain an Anticorruption Fighter as the New Minister of Justice

The biggest anticorruption-related news to come out of Brazil since the election of the far-right Jair Bolsonaro as Brazil’s next president has been the announcement that President-Elect Bolsonaro has tapped Judge Sergio Moro—the federal judge who oversaw the trials of several high profile Brazilian politicians in the Car Wash (Lava Jato) operation, including former President Lula Inácio de Silva—to be the next Minister of Justice. Some are hopeful that Judge Moro, who has emerged as an anticorruption hero to many Brazilians, will be well-positioned to use this new high-level post to push forward with systemic anticorruption reforms, including the “New Measures Against Corruption” championed by Transparency International and other civil society activists. Others, including Professor Stephenson in a recent post on this blog, worry that Judge Moro’s acceptance of this position would be a step backward for Brazil’s struggle against corruption, because his appointment could further politicize not only the Lava Jato trials, but the entire country. While President-Elect Bolsonaro wants to portray his appointment of Judge Moro as the first step toward making good on Bolsonaro’s promise to make anticorruption a priority of his administration, this appointment could be seen by centrists or the left as adding insult to injury by giving more power to the man who put Lula behind bars.

If Judge Moro accepts the appointment, then, he will be in a difficult and delicate position. He will have the power to influence the anticorruption agenda (assuming Bolsonaro follows through on his promise to give Moro autonomy in deciding how to deal with organized crime and corruption), but he needs to be sensitive to the fact that his very appointment risks entrenching the view in some quarters that the anticorruption agenda is really a politically-motivated conspiracy against left-wing politicians. There are four things Judge Moro can and should do in his new position to minimize this risk:

  • First, Moro should stay as technical as possible in his proposed reforms, particularly when he formally releases a full plan of proposed anticorruption legislation to Congress, scheduled to occur in February. In pushing for these reforms, Moro would need to justify the changes with research, and be sure to avoid singling out any particular parties or individual politicians. That is, Moro will need to present himself as a technocrat rather than a partisan. If he is seen as disproportionately attacking the Lula’s party, the PT, this could hurt the credibility of his policies. And he should avoid focusing on policies that will seem to many to appear targeted at PT politicians or a response to legal obstacles in prosecuting high-profile PT figures such as Lula. For example, one of the reforms Moro is keen on implementing is a reform that would require a defendant convicted of corruption to start serving jail time upon conviction, instead of after the full appeal process, which could take years. This may well be a good idea, but there’s a risk that this reform would be seen as a response to difficulties in the prosecution of certain PT figures, and if that is so, it might be advisable to focus on other reforms, at least at first, that are less politically charged.
  • Second, Moro should publicly commit not to accept a position on the Supreme Court for at least four years after his service as Minister. This is important given that, within days of winning the election, Bolsonaro said he was considering tapping Moro for the Supreme Court in two years, when a vacancy will open up, and presumably Moro would be an even more appealing candidate after two years of service as a Justice Minister. But for anyone—perhaps especially Moro—to hop from the judicial to the executive and back to the judicial branch in less than four years could undermine the perception that he would be a neutral, unbiased Supreme Court Justice. Indeed, among the proposed New Measures Against Corruption is a rule that new Supreme Court Justices cannot have served as cabinet ministers in the previous four years. Though Brazil has not yet enacted such legislation, Moro should unilaterally commit himself to adhere to this principle, and refuse to accept a Supreme Court appointment within four years of the end of his tenure in the cabinet. Doing so would send a powerful signal of his commitment to the anticorruption agenda over his personal ambition.
  • Third, Moro should make one of the reforms in his February reform package be about how to investigate the president and the party in power. Bolsonaro has already said in interviews that if Moro’s net catches people in Bolsonaro’s party (the PSL), then so be it, but it’s one thing to give speeches and another to demonstrate genuine commitment to a reform agenda even if it would threaten the current administration. If Moro, as Minister of Justice, were to push for policy reforms that would make it easier to investigate and prosecute senior members of the sitting administration, this would help signal that he is committed to anticorruption reform regardless of the party in power or the party being investigated. Furthermore, pushing for such policy reforms would be a useful litmus test of Bolsonaro’s promise that he would not interfere in Moro’s investigations. Moro should also publicly state that he is prepared to resign if the President doesn’t follow through on this promise, and should have an exit plan ready and be prepared to follow through on that promise if Bolsonaro reneges.
  • Fourth, though perhaps of less central importance in this context, Moro should delegate those aspects of his new job that deal primarily with violent crime and drug trafficking to someone else in his Ministry with more expertise in this area. On this point, it’s important to understand that Bolsonaro intends to consolidate the Ministry of Public Security and Ministry of Justice into one “Super-Ministry” of Justice. Given that political corruption and organized crime are often the two most-cited problems in the country, the new Super-Ministry will face difficult challenges. Judge Moro’s expertise is in the anticorruption arena, not the public security arena, and it may help his credibility to bring in a trusted deputy with expertise in that area—one who can also resist Bolsonaro’s more extreme impulses, such as easing restrictions on the use of lethal force by law enforcement officers. If Moro himself is seen as the principal executor of Bolsonaro’s policies toward violent crime and petty crime, Moro might further cement his image in the center, center-left, and international community as a right-wing partisan or Bolsonaro puppet. By choosing an effective, credible deputy with more moderate views on organized crime policy to handle that issue, Moro will be in a better position to credibly push ahead with anticorruption reforms.

Taking these steps would not only help Judge Moro preserve his legacy as a nonpartisan fighter against corruption, but would help prevent corruption from turning into an even more partisan issue under the firebrand President he will be serving. Brazil today is more polarized than it has been since its democracy was born 30 years ago. And largely because of the way Bolsonaro ran his campaign, corruption is one of the issue areas that has become increasingly polarized. Judge Moro has been a pivotal figure in bringing to justice high-level corrupt officials, and but how he comports himself in his new position will be critical in determining not only his own legacy, but the long-term political sustainability of Brazil’s anticorruption movement.

6 thoughts on “Four Steps Brazilian Judge Sergio Moro Can Take to Remain an Anticorruption Fighter as the New Minister of Justice

  1. Thanks for this thoughtful and interesting post. I agree that many of the reforms you suggest could help combat the notion that Moro is Bolsonaro’s political shill. However, I wonder about your fourth point. It strikes me as odd that, in order to counter the idea that corruption investigations are being used as a political tool, Moro should distance himself from the other work of the new Ministry of Justice and focus more fully on anticorruption work. This seems to me to be a bit backward. I would think that if Moro focused more on work that was seen as less overtly political, such as public safety, and delegated corruption investigations to an effective, credible deputy who was seen as less political, that would more effectively minimize the risk of undermining the anticorruption agenda. And then if that deputy implemented the rest of your proposals, that would be the surest way to innoculate anticorruption efforts against delegitimizing political attacks. I admit that this may seem to be a waste of Moro’s particular expertise, but there’s certainly plenty of other important work in the Ministry of Justice to which he could apply his talents. I wonder if you have thoughts on this. Thanks!

  2. The judiciary-politics is a common venture in so called democracy from USA to Uganda.
    The very direct applications are in US, India, and Brazil like powerful democracies. Trump-Modi-Bolsonaro are playing same to boost motivated corruption against scientific anti-corruption move.
    From this article it is much potentially proved that global anti-corruption movement is also confused to shout the judicio-political nexus that happended worldwide. Moro is the political base of president-elect Bolsonaro against the left icon, Lula who is blocked behind bar.
    This game is open in third countries who are socio-economically compressed by West.

  3. Thank you for your post, which was really interesting to read following Professor Stephenson’s post on Judge Moro’s appointment as Brazil’s next Minister of Justice.

    One thing in your post that especially caught my attention was Judge Moro’s plan to implement “a reform that would require a defendant convicted of corruption to start serving jail time upon conviction, instead of after the full appeal process, which could take years.” Aside from the risk you mentioned — that such a reform might be perceived as politically motivated — I was wondering what justification there can be for treating individuals convicted of corruption differently on this matter from individuals convicted of other offences. It seems that this is another example of an attempt to create a “corruption exception” to due process – a phenomenon that is far from being exclusive to Brazil (see, for example, https://www.haaretz.com/1.4834903). I would be happy to hear your opinion on the subject.

  4. I am not following what is happening in Brazil too closely, so this is extremely helpful to stay in the loop. My only comment is that most of the points raised here could probably be relevant to any lawyer who is considered for such a position – of course, the context makes it much more sensitive in this case.

    That being said, I am actually never quite sure what to make of such deliberations in less sensitive contexts, though. For example, if a lawyer had been a prosecutor overseeing high profile corruption cases at some point in his career – and then becomes a candidate to a political post, is that always a bad turn of events? Or another (real life) example – in Lithuania, my home country, earlier this year, the President vetoed the candidacy of a Ministry of Justice based on the fact that he has worked as a defense attorney in a high profile political corruption case…

    What I am trying to say is that while this specific situation has its own specificity, but this aside, I am never quite sure what is the “perfect” career path for a Minister of Justice. Don’t we actually want someone with years of practice for such an important work? And bearing in mind that the best practice comes from working on high profile cases – doesn’t it mean that the person will have either worked as a judge or an attorney? Or should this position in all cases be reserved to politicians who have never practiced law? I honestly do not have an answer to this.

  5. Thank you for your post! As to your fourth point, I wonder (similar to Jason’s thought) whether it makes sense for Moro to stay away from the violent and drug crime agenda. I think you’re right in thinking that appoint someone more moderate would be helpful, but I think your point assumes that Moro will take just as extreme a stance on these crimes as Bolsonaro. While I’m still surprised that Moro accepted the position, if Moro’s reputation is accurate, do you think he’ll take such a hard-lined position or do you think he’ll be a voice of reason? Additionally, I think it’s important for Moro himself to be accountable for the decisions and policies implemented. By accepting this position, Moro was well aware of Bolsonaro’s vision for Brazil, and if things turn out poorly, Moro should be held accountable for the part he played in implementing that vision, not just the anticorruption portions.

  6. Thank you for this interesting post! Your advice to Moro seems well thought out and I hope he is reading. I wanted to ask about your third point, particularly around having Moro make a public declaration that he will resign if Bolsonaro does not implement his suggested reforms that increase the ability to investigate the party in power. It seems to me that this public grandstanding could actually backfire and make the issue of corruption more partisan. From what I have heard about Bolsonaro (which is admittedly very little), it is very unlikely that he would respond well to such a public threat to his power. Bolsonaro would likely fire Moro before he has a chance to resign in order to maintain his sense of credibility and power. He would also probably replace him with someone more amenable to his line of thinking, thereby making the Ministry of Justice more partisan and likely less effective in their fight against corruption. Perhaps Moro can do more good from within, convincing Bolsonaro to implement these reforms privately over time rather than forcing his hand in such a public manner. Thanks again for your thoughts!

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