[Note: My thinking on the issues discussed in this post has evolved somewhat. For the update, see here.]
Two days ago, The Intercept published a collection of dramatic reports (here, here, and here) regarding the long-running Brazilian investigation into high-level corruption. That investigation, known as the Lava Jato (Car Wash) operation, which began as in inquiry into money laundering and associated offenses at the Brazilian state-owned oil company Petrobras, has led to the prosecutions and convictions of scores of powerful business leaders and senior politicians—including, most notably, the conviction and imprisonment of former President Luiz Inacio Lula da Silva (known as Lula). That conviction prevented Lula from competing in the presidential election in 2018, an election that was one by far-right candidate Jair Bolsonaro. Anger on the Brazilian political left over Lula’s conviction, as well as the impeachment and removal of his successor Dilma Rouseff, has provoked accusations that the Lava Jato operation is really a right-wing conspiracy, and that the Lava Jato task force—the special team of prosecutors led by Deltan Dallagnol—and Sergio Moro, who presided over the most significant Lava Jato trials, including Lula’s, are politically biased enemies of the Left who are engineering a kind of coup d’etat through the judicial system. Many people, both in Brazil and internationally (me included), have pushed back against these accusations.
The Intercept’s recent reports assert that the critics were right all along. The evidence for this consists mainly of a huge quantity of data (texts, emails, and video and audio recordings) from a cell phone—almost certainly Mr. Dallagnol’s, based on the fact that all of the reported exchanges involve him. The Intercept has published a set of stories (some in English, some in Portuguese) based on a small portion of this material, mainly text message exchanges; the reporters emphasize that more is likely to emerge as they and other journalists review more of the leaked/hacked data. The big story here is that, according to the Intercept’s reporting, these text messages provide evidence of serious ethical breaches, particularly by then-Judge Moro, as well as evidence that the prosecutors knew their case against Lula was not strong, and, most damningly, that the task force prosecutors were motivated by partisan antipathy toward Lula and his party (the Worker’s Party, or PT), despite their claims to the contrary.
What to make of this? The news is clearly bad for the Lava Jato operation, the task force, and those of us who have supported the operation and defended it against various accusations and attacks. The question I want to address here is: Just how bad is it? My tentative answer is that, while the Intercept’s reports reveal some very upsetting, disappointing, and in some cases likely unethical conduct, the leaked text messages quoted in these first reports are not as damning as either the Intercept or other preliminary reports have made them appear. In this post (which will be longer than usual), I’ll try to work through the various allegations and associated texts and do my best to assess which revelations are most serious, which least so, and where we really need more evidence before making even a preliminary judgment.
Before proceeding, in the interests of full disclosure, I want to make clear that, in addition to my generally enthusiastic support of the Lava Jato investigation, I also have a friendly professional acquaintance with Deltan Dallagnol. I have hosted him for a talk at Harvard Law School, and interviewed him on the KickBack podcast. He has also hosted me in Brazil, arranging for me to give talks and participate in conferences in Rio and Brasilia, and on these occasions he has hosted me for social events like lunches and dinners, including at his home. He has also reached out to me in the past when seeking assistance in defending the Lava Jato operation from attacks in international forums. We have not, however, had any contact since April (and then only pleasantries), I have not been in touch with him about this post, and I do not have any pending or expected collaborations with him in the foreseeable future. I mention my cordial professional relationship with Mr. Dallagnol, including reciprocal hosting in our respective home countries, because it’s possible that some readers might reasonably worry that this relationship might distort my judgment, making me too inclined to forgive or excuse possible missteps. While I do not believe this to be the case, and have done my best to present in the remainder of this post my impartial assessment of the concern’s raised by the Intercept’s reports, I want readers to be fully informed as to my relationship with the parties involved. (As for Sergio Moro, I have met him on one occasion, to shake his hand and exchange brief courtesies at a conference over a year ago, but otherwise I have not have any contact with him.)
With that important disclaimer out of the way, on to the substance: The Intercept’s stories assert that evidence from the leaked/hacked cell phone data reveal three serious ethical lapses:
- First, Judge Moro, the presiding judge in the Lava Jato cases, was in regular contact with Mr. Dallagnol, offering suggestions, discussing strategy, and in one case apparently suggesting an investigative lead. This, the Intercept argues, is a serious breach of judicial ethics, and may mean that the Lava Jato defendants were deprived of due process.
- Second, the Intercept contends that the text messages exchanged between Mr. Dallagnol and the other prosecutors on his task force reveal that the prosecutors recognized that their case against Lula was not as strong as the prosecutors were claiming in public, but instead had quite serious flaws.
- Third, the Intercept argues that the texts demonstrate that the Lava Jato Task Force was indeed motivated by partisan hostility to Lula and the PT—a claim that the prosecutors and other Lava Jato supporters have long denied. In particular, in the immediate aftermath of a judicial ruling that would have allowed a journalist to interview Lula in prison shortly before the second round of the Brazilian presidential elections, the prosecutors exchanged text messages bemoaning this judge’s decision, worrying that such an interview could help the PT’s candidate (Fernando Haddad) win the election, and trying to come up with ways to stop the interview or mute its impact. This, the Intercept asserts, is the smoking gun evidence of what Lava Jato’s critics had been saying all along: the investigation was actually a right-wing conspiracy to destroy Lula and the PT, not the neutral, impartial investigation that the prosecutors had asserted in public.
After having read through The Intercept stories a few times (only the English versions, as unfortunately I can’t read Portuguese), my assessment runs as follows:
- The first allegation appears well-founded and, unless the texts in question were fabricated or the judicial conduct rules in Brazil are radically different than they are elsewhere, demonstrates a shocking and inexcusable breach of judicial ethics by then-Judge Moro (and, I regret to say, poor judgment on the part of Mr. Dallagnol). That said, the nature of the communications doesn’t seem to show political bias, or absence of evidence for the main charges, or procedural irregularities that might undermine the fairness of the trials, other than the fact of the communications themselves.
- The Intercept’s second allegation—that the texts show that the prosecutors knew that they didn’t really have as strong a case against Lula as they claimed in public—is frivolous. When one strips away the Intercept’s overheated rhetoric and attempts to relitigate the facts of this controversial case, the text messages themselves don’t reveal anything other than the typical sort of preparation that any competent team of lawyers would do for a case of this sort. The purloined text messages do not provide any reason, beyond what was already in the public record, to question the propriety of Lula’s conviction.
- The third allegation, regarding evidence in the text messages of partisan political bias, is the most challenging to evaluate. On the one hand, I found myself deeply troubled by many aspects of the text conversations that the Intercept published, both because I disagree with the Lava Jato team’s legal and political conclusions, and, more importantly, because I am discomfited by professional prosecutors speaking so freely about their hope that one party rather than another wins an election. I am discomfited even more by the fact that members of the prosecution team appear to have seriously contemplated what actions they might take to mitigate the potential electoral impact of a judicial ruling. On the other hand, though, nothing in the Intercept’s report indicates that any member of the prosecution team took any concrete steps (official or otherwise) to follow through on any of the courses of action that they considered. So we don’t have any evidence of politically motivated prosecutorial action (as opposed to discussions). The real question, though, is whether we can infer from the hostility to the PT evident in the text conversations following the interview ruling that the original prosecution of Lula (and other defendants) was motivated by improper partisan hostility. That inference is certainly possible, but it doesn’t necessarily follow, and there are some reasons to doubt it. As I’ll discuss more in a moment, there are some understandable reasons why the Lava Jato task force, by late 2018, might have been hostile to the PT and hoped that the PT candidate would not win the election, even if there was not any particular partisan antipathy toward the PT or Lula back when he was investigated and prosecuted in 2016. The answer might become clearer once other journalists (perhaps those with less of a partisan axe of their own to grind) have a chance to look through the full trove of text messages, including most importantly discussions that preceded the decision to prosecute Lula.
OK, that’s the quick summary of my conclusions. Let me now elaborate a bit on each of these points.
First, the Intercept reports that Judge Moro appears to have been in fairly regular contact, via encrypted text messages, with Mr. Dallagnol regarding various aspects of the Lava Jato operation, and these communications include advice about the timing and content of filings, potential leads to pursue, and other matters. The Intercept asserts that these communications were a clear violation of Brazil’s Code of Judicial Ethics, and though the Intercept fails to quote either the Code or a Brazilian legal expert on this point, I would be surprised if this weren’t true. For a judge to engage in secret, ex parte communications with a prosecutor (or, for that matter, a lawyer for any party) regarding a pending case is the height of impropriety—full stop. Maybe it will turn out that ethics rules are different in Brazil, such that these sorts of communications may be allowed under some circumstances, but I seriously doubt it. Judge Moro should never, ever have been sending Mr. Dallagnol private text messages with suggestions as to how his team should proceed. And frankly, Mr. Dallagnol—who, again, is someone I like and respect and think is a decent, honorable person—should have gently but firmly pushed back when he received these messages, saying something along the lines of, “I appreciate your suggestions, but I think we probably shouldn’t be having private conversations about the case.”
Because I strongly believe that there should be, and likely is, a per se rule against judges engaging in secret ex parte conversations with lawyers about pending cases, the fact that many of the communications might have been innocuous doesn’t really provide a sufficient excuse. That said, I do think that it’s important to emphasize that, for the most part, the specific communications disclosed in the Intercept’s story don’t seem to suggest anything all that significant, certainly not anything that would threaten any particular defendant’s right to a fair trial. Here are the specific text messages from Judge Moro to Mr. Dallagnol that the Intercept quotes:
- After Mr. Dallagnol had indicated his intention to apply for a new round of search warrants and interrogations, to be conducted in two phases, Judge Moro wrote to suggest that it might be better to “reverse the order of the two planned [phases].” It’s not clear from the story what the basis of this suggestion was; it might have been for efficiency or convenience, or it might have had a more substantive justification. But it doesn’t really have to do with any defendant’s trial. Furthermore, if a prosecutor has already already applied for warrants, and the judge would have the discretion to discuss with the prosecutor the best way to proceed with the issuance of such warrants, then the problem here appears to be more that the exchange is happening in a private encrypted channel rather than as part of the application process.
- After a month had passed without any new filings from Mr. Dallagnol’s team, Judge Moro sent him a message asking: “Hasn’t it been a long time without an operation?” Again, Judge Moro shouldn’t be sending such messages at all, but the actual content of this message doesn’t seem to bear on the fairness of any defendant’s trial. It might be construed as saying, “You should be prosecuting more people,” but it also might be meant simply as a question about the reason for the unusual period of inactivity.
- After the Federal Police made some sort of error (not further described in the Intercept report), Judge Moro texted, “You cannot make this kind of mistake now.” Again, the fact of the text itself is improper, but this sort of message wouldn’t seem to compromise anyone’s trial; indeed, it’s a warning to the prosecutors to make sure the investigation is conducted legally. If a judge were to say something like this to a prosecutor in open court, it’s doubtful anyone would see anything wrong with it.
- At another point, Mr. Dallagnol informed Judge Moro of a motion that he intended to file, and Judge Moro texted back, “Think hard about whether that’s a good idea… the facts would have to be serious.” Here again, though this sort of communication is per se improper, Judge Moro is admonishing Mr. Dallagnol not to overreach, which doesn’t seem like the sort of thing that would undermine the fairness of the trial, and the sort of thing that a judge might say to a lawyer in open court (“I warn you counselor, you’re making a very serious allegation here, and I urge you to consider whether you can back it up…”) without anyone deeming it improper.
- After the PT national board had made what Judge Moro characterized as “crazy statements” about the Lava Jato operation (not further specified in the Intercept report, but I’m presuming these were statements about how the whole operation was a political conspiracy), Judge Moro asked Mr. Dallagnol, “Should we officially rebut?” This text, of course, has nothing directly to do with any particular trial. The Intercept makes much of the pronoun “we,” and suggests—not without reason—that there’s something improper about a judge and a prosecutor viewing themselves as part of the same team. But in this context, it’s not too hard to understand, since the attacks on Lava Jato typically lumped the task force and Judge Moro together, and both the prosecution service and the judiciary felt like they needed to defend themselves against accusations that they were part of a politically-motivated conspiracy. Now, perhaps the judiciary and the prosecution service should have responded to these attacks separately (if at all), rather than considering a coordinated response. And I cannot say often enough that these messages should never have been sent. But there’s not enough here—notwithstanding the use of the first person plural pronoun—to show that Judge Moro was biased in the exercise of his judicial functions.
- Finally, it seems that in one case somebody approached Judge Moro suggesting a potential witness who might be able to aid the prosecution’s case. It might at first seem surprising that a source would relay this information to Judge Moro rather than to the prosecutors, but it’s more understandable when one recognizes that in Brazil, for many people Judge Moro had become the principal “face” of the Lava Jato operation. In any event, Judge Moro passed on the information to Mr. Dallagnol, writing: “Apparently the [witness] would be willing to provide the information. I’m therefore passing it along. The source is serious.” This is certainly odd, and I’m frankly not sure what a judge in another country, such as the United States, would or should do if she received a message from somebody saying that she had evidence for one side or another in a pending case. Probably the right thing to do would be to tell that person to contact the lawyer for that side directly, not to relay the message. But here again it’s hard to see how the messages compromised any particular trial, especially since it seems that the witness never ended up cooperating (though this isn’t clear).
Again, I don’t want to be misread as excusing Judge Moro’s serious lapse of judgment and ethics in regularly communicating via private text messages with the lead prosecutor in a set of pending cases. But if one wants to then ask whether these lapses likely compromised the results of any trials, or demonstrated impermissible bias, my tentative answer, based solely on the messages disclosed thus far, is probably not.
Now, what about the second claim, that, as the Intercept puts it, the leaked text messages “reveal that, while boasting about the strength of the evidence against Lula, prosecutors were internally admitting major doubts. They also knew that their claimed jurisdictional entitlement to prosecute Lula was shaky at best, if not entirely baseless.”
If prosecutors had brought a case that they knew was baseless, that would indeed be scandalous. But the texts quoted in the Intercept’s story reveal nothing of the kind. Rather, they show that the prosecutors correctly identified weak points in their legal arguments, and were trying to prepare as best they could to meet the potential objections. This is exactly what good lawyers always do, and what they’re supposed to do: Examine your own case critically, spot the potential weaknesses, and think about how to address them. And that’s all that the leaked texts (at least those quoted in the Intercept’s report) show:
- The key passage quoted in the report is a statement from Mr. Dallagnol to his team that reads: “They will say that we are accusing based on newspaper articles and fragile evidence … so it’d be good if this item is wrapped up tight. Apart from this item, so far I am apprehensive about the [jurisdictional issue]…. These are points in which we have to have solid answers and on the tips of our tongues.” So, a lawyer getting ready for a case has (correctly) identified the main arguments that the other side will advance, and is advising his team to prepare solid answers to those arguments. Quelle horreur! Oh please. I guarantee you that every competent lawyer has had conversations like this with his or her team. This doesn’t mean that the prosecutors were bringing a case that they thought was flimsy, let alone phony, and really the Intercept’s reporters ought to have understood this.
- Later on, Mr. Dallagnol sent a text to Judge Moro explaining his strategy to convince the court that the Lava Jato task force had jurisdiction over Lula’s case; much of that conversation concerned a PowerPoint presentation that Mr. Dallagnol had delivered, which was sharply criticized in many quarters. But there’s nothing in the private texts indicating that Mr. Dallagnol thought that he was making a baseless argument to the court. Quite the opposite, in fact. Though the text message is a bit hard to parse without more context, he seems to be trying to explain the reason for his much-maligned PowerPoint presentation, which was more a part of his communications strategy than anything else.
- The only other piece of evidence the Intercept presents here has to do with Mr. Dallagnol getting excited over a newspaper article that, he thought, strengthened his case. The Intercept then goes into a long digression about why this article does not actually prove the point in question—but that’s all irrelevant to the question whether the prosecutors were in some sense acting in bad faith. Everything else in the Intercept’s discussion of the strength of the evidence in this case is already a matter of public record, and I won’t bother trying to re-litigate it all here, not least because I don’t actually know which side is right.
So on this point, the leaked text messages don’t appear to add anything new. There are criticisms of the prosecutors’ arguments in this case on both jurisdiction and substance. These criticisms are well known, though both the trial court and the appeals court rejected them. The prosecutors knew that this case was not bulletproof, but that doesn’t mean that they didn’t think that there was sufficient evidence to pursue the prosecution. And we learn from the text messages that, because Mr. Dallagnol knew the case wasn’t airtight, he urged his team to prepare and did his best to find evidence that would strengthen their position on key points. Yawn. There’s no scandal here, and the Intercept’s breathless suggestions that there is are kind of silly.
Now, to the third and hardest issue: the text messages that seem to demonstrate partisan bias against the PT.
Here’s the context for the relevant text messages: After Lula was convicted and imprisoned, a journalist sought to do an interview with him from prison, shortly before the second round of the 2018 Brazilian presidential election. It turns out that Brazilian law is apparently unclear about whether the press is allowed to interview incarcerated prisoners, though in most cases the practice has been to allow it. After the journalist applied for permission to interview Lula in prison and was turned down, the journalist sought review of the decision in the Supreme Court. That petition was first heard by a single justice of the Brazilian Supreme Court, who (in an order issued on September 28, 2018) sided with the journalist. A rival political party subsequently sought review by the full Supreme Court, which stayed the initial order—the result of which was that Lula was not interviewed until after the election.
The Intercept focuses on a series of texts among the Lava Jato prosecutors after the original September 28 ruling, in which they lament the fact that if Lula is allowed to give an interview it might help elect the PT candidate (Haddad), explicitly state their desire that the PT not prevail in the election, and discuss various options for either overturning or muting the impact of the order allowing the prison interview to take place.
I find the exchanges troubling, for several reasons. First, though I’m not expert in Brazilian law, I’m persuaded by Victor’s legal analysis of the free speech issue, and his conclusion that in fact the interview should have been granted. It’s disappointing to see prosecutors whom I respect to cavalier in their disregard for the free press values at stake. Second, I disagree with the idea that a Haddad victory would have been worse for the cause of anticorruption, and for Lava Jato, than a Bolsonaro victory. I laid out my reasons for this conclusion in a prior post, and won’t restate them here. Third, regardless of the circumstances I find it unseemly for prosecutors to not only speak so openly about their desire for one political candidate or party to win an election, but to contemplate different steps that they might take to make that result more likely.
All that said, I’m not entirely convinced that these text messages are quite as damning as the Intercept and other critics have suggested. First of all, it’s worth emphasizing that although the Lava Jato prosecutors discussed various actions that they might take in response to the September 28 ruling, it doesn’t seem that they ended up taking any such action. And as the Intercept notes, the prosecutors determined that they could not themselves appeal this decision, as doing so would appear political. (The Intercept doesn’t actually quote the relevant text messages here, so it’s hard to tell whether the prosecutors’ decision not to appeal was based on a cynical calculation that it would look bad—the Intercept’s characterization—or rather based on the conclusion that doing so would be improper, which would be evidence that despite temptation, the prosecutors felt themselves ethically bound not to weigh in directly in a political fight.) Because another party ended up challenging the order and succeeded in getting it suspended, we’ll never know what if anything the prosecutors from the Lava Jato task force might have done. Though there’s a lot of troubling talk, we don’t actually have evidence of the prosecutors taking any concrete official action for partisan political motives.
But of course that’s not the main point that the Intercept report’s authors are really trying to make here. The real argument, as I understand it, is that the overt partisan favoritism evident in the discussions of how to respond to the judicial order on the prison interview reveals that the Lava Jato task force was biased from the get-go, and that the Lava Jato operation generally, and the case against Lula in particular, are really a political conspiracy against the left. That’s one possible inference one could draw, and for all I know it may be correct. But there’s another way to interpret the evidence that puts the prosecutors not exactly in a good light, but certainly in a better light.
For starters, while by September 2018 the Lava Jato task force prosecutors detested the PT and wanted it to lose the election, that’s not so hard to understand given that for over two years the PT and its supporters had been denouncing the Lava Jato investigators, calling for an end to the investigation, claiming that the prosecutors were all a bunch of partisan hacks, and threatening to shut down the operation and free Lula if the PT won the election. Is it really any surprise, then, that by September 2018 the Lava Jato prosecutors viewed the prospect of a PT win with something between trepidation and panic? (By analogy, would be really be all that surprised, or troubled, if we learned that members of the US Department of Justice, CIA, and Federal Bureau of Investigation are dearly hoping that Donald Trump loses the 2020 election, given that he’s been attacking those institutions and trying to undermine them throughout his term in office?) As I noted above, I think that the Lava Jato prosecutors were incorrect—we’ll never know, but I predicted that Haddad wouldn’t follow through on PT threats to dismantle the Lava Jato investigation, while Bolsonaro is already turning out to be quite bad for anticorruption efforts. But given the relentless attacks by the PT and its supporters on the Lava Jato team ever since the Lula investigation started, I confess I’m not really all that shocked, or even that troubled, that the Lava Jato prosecutors dreaded the possibility that the PT might win and try to shut Lava Jato down and undo the work they’d been doing for the previous five years.
Now, there’s the question of which came first: PT supporters would say that the PT was hostile to the Lava Jato task force because the task force was biased against the PT; defenders of the task force would claim that the task force did not start out with any partisan bias, but the relentless PT denunciations of the task force after the Lula case caused the task force members to view the PT with hostility. What we really want to know is not whether the Lava Jato task force members wanted the PT to lose the election in late 2018. What we really want to know is whether the Lava Jato task force was out to get the PT, for impermissible political reasons, back in early 2016 (and before). The September 2018 text messages don’t really shed much light on that question. What would help answer that question would be text messages from the earlier period that talk explicitly about hostility to the PT, or perhaps messages from 2016-2017 evincing a desire to make sure that Lula isn’t able to run in the election. But although the Intercept story says, generally and vaguely, that the prosecutors’ chat group “suggests that political considerations were routinely incorporated into the task force’s decision-making process,” the story doesn’t provide any examples from the period prior to the September 2018 court order.
Perhaps those examples do exist, and will come to light as more stories are written based on the huge mass of stolen data that the Intercept has obtained. And if the evidence of partisan bias is there, I will be forced to reassess my prior position on the impartiality of the Lava Jato investigation. But I haven’t seen that evidence yet. Moreover, to my mind the absence of text messages suggesting partisan motivations prior to 2018 would itself be good evidence—of the “dog that didn’t bark” variety—that in fact the claims that Lava Jato was a conspiracy against the Left are inaccurate. Right now we don’t know whether such material exists, and absence of evidence is not, without more, evidence of absence. But I confess I would have expected the Intercept reporters to offer, in their initial stories, the strongest evidence they could find of improper partisan bias. If they looked but didn’t find anything before 2018, I’d actually take that as evidence against the claim that the prosecutions of Lula and other PT figures were politically motivated. At the very least, I hope that the Intercept reporters and the other journalists who have access to the stolen data will not only search carefully for evidence of anti-PT hostility prior to 2018 (really, prior to 2016), and if they don’t find any, to clearly report that as well. The rest of us don’t have access to the data, so we can’t know whether the lack of any reports of such evidence means that it’s not there, or that nobody has yet looked.
So that’s my preliminary take on the Intercept’s bombshell reports on Lava Jato. First, it seems to me that there’s clear evidence that Judge Moro committed serious ethical violations in sending private messages to prosecutors, though whether any of those messages suggests the lack of a fair trial is much less clear. On the other hand, nothing in the new leaks demonstrates any improprieties in the case against Lula—all we see is prosecutors appropriately anticipating the weak points of their case and preparing responses. Finally, on perhaps the most important question at issue—whether the Lava Jato operation is biased against the PT—the evidence is troubling but also ambiguous: by September 2018 the Lava Jato prosecutors were rooting for the PT to lose the election, but there’s no evidence that they took any inappropriate official action, and the hostility to the PT might well have been the result of the PT’s relentless attacks on the Lava Jato operation, including threats to shut it down and quite personal denunciations of the prosecutors. The most important open question, to my mind, is whether the leaked data will eventually show improper partisan motivations in 2016 or earlier
But I’m not totally certain of any of this, and welcome comments, criticisms, corrections, and alternative perspectives.