Just How Damning Are the Lava Jato Leaks? Some Preliminary Reflections on The Intercept’s Bombshell Story

[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.

70 thoughts on “Just How Damning Are the Lava Jato Leaks? Some Preliminary Reflections on The Intercept’s Bombshell Story

  1. Fascinating revelations. It was great to get your perspective on them. I agree, it does seem that while there are absolutely troubling aspects of these findings (particularly Sergio Moro’s “coaching” of the prosecutors), it by and large seems that the gravity of these findings has been overblown, particularly by those who support Lula.

  2. Having read the original articles and messages in Portuguese, let me bring up additional details from two particular exchanges. In one, partially referred to in your post, Moro reaches out to Dallagnol mentioning a potential informant who could compromise Lula. Dallagnol says he will follow the lead. Later – this is not mentioned in the post -, Dallagnol gets back to Moro and says that the informant “would not speak”. “I am thinking of issuing a formal subpoena based on an apocryphal communication,” Dallagnol adds. Moro responds, “It is better to formalize it, then”. That is, Dallagnol is fabricating a scenario – that he had received an “apocryphal communication” – that would allow him to obtain evidence against Lula, in conversation with/under the guidance of the same Judge who would evaluate the evidence and the legality of the discovery process. In the second exchange, this one on the three-story apartment condo case and not mentioned in this post, Dallagnol reaches out to Moro and writes: “Our use of indirect evidence will be criticized by certain “jurists”; this is just going to go away once the case moves forward with the indictment. Maybe you could approach this topic then [i.e., by the indictment]”. Moro responds, “Frankly, the criticisms against you are exaggerated. Keep on going”. Once again, the prosecutor is working with the judge to boost the credibility of his case; the same judge is supposed to evaluate the case independently, though. All to say this was a truly collaborative relationship – could one say a “collusion”? – between Dallagnol and Moro, at the expense of due process and the right to a fair trial. Pretty damning to me

    • I would add another issue, it’s not up to question if the messages compromised the results of any trials, or demonstrated impermissible bias, the Brazilian Code of Criminal Procedure it’s quite clear in its 254º article:
      The judge must declare himself suspect [to judge the case], and if he does not so, he may be refused by any party:
      […]
      IV – if he has advised any party

      As I see, the judge Moro’s conduct was more than unethical, it was illegal and it irreparably damaged the process.

      • Thanks for citing the relevant section of the Code! I hate to nitpick the Intercept’s reporting, given that this is such important investigative journalism, but it really would have been better if the original story explicitly referenced the relevant law, instead of referring vaguely and abstractly to ethical violations.

        I guess I do have two questions, which I hope you or someone else will be able to answer:

        1) How broadly or narrowly has the “advised any party” language typically been construed? Does it apply to literally any advice? Or is it narrower? Are there any case precedents for situations like the Moro situation, that might shed light on the meaning of this term?

        2) Under Brazilian law, is the remedy for violation of this rule automatic nullification of the verdict (and presumably re-trial), or does Brazil have a “harmless error” or “substantial prejudice” standard similar to the one that exists in the US for certain kinds of procedural violations? (To be clear, I’m not saying that the errors here were harmless. I’m just wondering if that would be an issue that the reviewing court would have to decide, or whether once you prove the violation, vacating the earlier verdict follows automatically.)

        • First of all, I must state that I’m not a jurist, law student or similar, just an interested and curious citizen. So I won’t be able to give you final answers, specially on your first question.

          Back to the subject, I really can’t answer the first question, but maybe give some tips. The Code of Criminal Procedure (CCP) doesn’t explain what it means by “advised any party”, I don’t know what the jurisprudence says and never examined a previous trial that judged something like this, all I can say is: to state that the judge violated the (CCP) a legal process must be opened to judge that. There’s not an automatic removal of the judge. But, and here I start to answer the second question, the Brazilian law is quite strict with the judge’s impartiality and his equal distance of both parts. Our whole penal system is underpinned on this. The CCP states in its article 101:

          Deemed valid the suspicion of the judge, the acts of the main proceedings shall be null and void, and the judge shall pay the costs in the event of inexcusable error […]

          And also in its article 564:

          The nullity occurs in the following cases:
          I- incompetence, suspicion or bribery of the judge […]

          So, as you can see, suspicion is equated to suspicion when it comes to criminal procedures. But, like I stated before, I can’t affirm that Mr. Moro’s actions are sufficient to state that he violated the CCP, although it seems to me that he did so. And, if I’m right, the verdict should be declared null.

          • Hmmm…. maybe, but I feel like the “suspicion” term in Article 564 must have a narrower meaning, or perhaps a meaning that’s clearer in Portuguese than it is in English. It would greatly surprise me that _any_ “suspicion” of the judge’s impartiality would be enough to nullify a verdict, particularly when that term is sandwiched between much more serious failures (incompetence and bribery). But perhaps the experts on Brazilian law out there can help sort this out?

        • Hi. First of all, thanks @fsaesilva – I was about to post that excerpt as well, as I believe it is the most clear passage that demonstrates collusion.

          Matthew: usually Brazilian law adopts the principle of “pas de nullité sans grief”, which means that if there’s no harm, so there’s is no nullification. However, this usually does not apply for cases where the judge lacks impartiality and failed to declare it, as his partiality might have contaminated the due process, such as denying requests from one part while granting from another, etc. It would otherwise be impossible to determine of the partiality – once established – has been crucial for his decisions. That’s why I have no doubts that any higher instance in Brazil would – under normal circumstances – nullify the whole trial.

          I’ve seen judges refusing a case in Brazil for much less than this during my lawyer years.

          • Great, thanks for clarifying that point. I think it makes sense to say that if the judge is shown not to be impartial, the whole trial has to be nullified. But the hard question, it seems to me, then becomes the amount of evidence required to show a lack of impartiality. I’m still pondering this, and I appreciate the explanations that you and other commenters have provided.

          • Mr Matthew, about the question “how many evidence is necessary to lack of impartiality”, unfortunately i say, just a feel words in a secret conversation between two parts of a trial in any part of World must be enough. I’am a Brazilian, a businessman, with a left tendency, and I believe that Mr. Lula have some things to aswer to Justice, but not in this way. At this moment we can’t trust in justice system, as we say here: “Estamos com uma pulga atrás da Orelha” .. We have a flea behind the ear.
            Sorry by the poor english, tks to google. 🙂

      • They must be sued for conspiracy. The problem is that the judge now became a minister, as it was promissed tô him as a pact before the elections.

        • Well, wait a second. Is there any firm evidence that the ministerial post was promised to him before the elections, let alone that this was done as part of a conspiracy related to the pending cases? That’s a very serious accusation. Are there hard facts to back it up?

          • Here (in PT), Greenwald says there are conversations in which Moro says he is thinking about accepting Bolsonaro’s offer for the post, which took place before the election. Also, last November, when Moro accepted the nomination, he said he had been approached by Guedes (Finance Minister) five days before the run-off election.

            https://noticias.uol.com.br/politica/ultimas-noticias/2019/06/10/moro-relatou-convite-de-bolsonaro-antes-da-eleicao-diz-jornalista.htm

          • Ok, but did Judge Moro make any rulings that pertained to the PT, Lula, Bolsonaro, or any other matter that might affect the election after these communications? If not, then I’m having trouble understanding the problem here.

          • There’s no firm evidence on any of that, you’re 100% right. There aren’t any hart facts to back it up either. I guess the optics here are somewhat like what you would expect from Caesar’s wife.

            Are there any way in which a judge, who is presiding a trial that can determine wheter someone can or cannot run for president, is invited by that person’s main opponent to the position of Minister of Justice and does not appear suspicious?

          • I agree the optics are bad, and may well suggest something more sinister. But I’m trying to get clear on the timeline. You frame your question as involving a judge who “is presiding” in such a trial, but would it be more accurate, in this case, to write “had presided”?

            To be clear, I think it was a huge mistake for Moro to entertain, let alone accept, this offer. I wish he hadn’t done it. But I do think there’s a huge difference between discussing the offer _while_ he was presiding over Lula’s case and discussing the offer _after_ his role in Lula’s case had concluded.

          • (couldn’t fint the right “Reply” button)
            From what I’ve heard and read so far you can’t simply state that Lula is innocent. There’s nothing to say, evidence-wise, that Lula is not guilty yet. There are, though, a lot of signs of collusion. Maybe not about fabricating evidence, but undoubtedly about transgriding due process, not to speak about ethics.

            I’m no lawyer but from a lay point of view it looks like good material for the defense to argue a mistrial, even more when there are now evidence that the Prosecutors and the Judge were indeed doing what the defense always argued they were doing. It’s a “full plate” like we like to say here in Brazil, even more if there’s more to come from The Intercept.

            But the thing is: Moro quit being a judge do become a politician. And when you’re a politician, what you did doesn’t matter as much as what it seems like you did. How many leaders throughout the world resigned due to ethics violations accusations weaker than this one?

    • Thank you very much for the clarification. On these points, I think that my inability to read the original Portuguese sources, coupled with the Intercept’s somewhat awkward English translations, meant that I didn’t fully understand what these communications meant. (For example, I had no idea that the sentence “I am thinking of issuing a formal subpoena based on an apocryphal communication,” means “I am thinking of falsely claiming I received an anonymous tip.”) Is it safe to assume that all native Portuguese speakers would understand exactly what the passages you quote mean? Or is there any ambiguity in the original language? If the former, then this is indeed much more troubling than I initially appreciated.

      • The Intercept recently released (in Portuguese) an extended transcript of the controversial “apocryphal communication” dialogue, and in a larger context the outcome of the conversation is considerably less sinister than the one implied in the website’s original report. Since the website hasn’t provided an English translation for these extended transcripts, I’ll attempt to provide one myself, preserving the website’s original translation and placing the “new” bits of conversation (not mentioned in The Intercept’s original report) between asterisks:

        Moro – 17:42:56 – So. The following. Source informed me that the contact person is annoyed at having been asked to issue draft property transfer deeds for one of the ex-president’s children. Apparently the person would be willing to provide the information. I’m therefore passing it along. The source is serious.

        Deltan – 17:44:00 – Thank you!! We’ll make contact

        Moro – 17:45:00 – And it would be dozens of properties.

        Deltan – 18:08:08 – ***I called him, but he walked back on his remarks. He said he had nothing to say etc… when I applied some pressure, he hung up on me…*** I’m thinking of drafting a subpoena, based on apocryphal news.

        Moro – 18:09:38 – ***That’s wierd, since it was him who would have alerted the persons who talked to me***. Better to formalize then.

        Moro – 18:15:04 – ***Supposedly he would have spoken with — REDACTED –, who then passed the information ahead until it arrived here***.

        Deltan – 18:16:29 – ***May I identify this intermediary source?***

        Moro – 18:59:39 – ***I’m unsure about this now.***

        Moro – 19:00:22 – ***Perhaps you should talk with — REDACTED — beforehand***

        Deltan – 20:03:00 – ***Ok***

        Deltan – 20:03:32 – ***Ok, thanks, I’ll call***

        My interpretation of the dialogue: Person A approached Judge Moro mentioning that Person B would be willing to provide evidence regarding a case. Moro passes ahead to Dallagnol the information regarding Person B. Dallagnol gets in touch with Person B, who claims he has nothing to say. Dallagnol floats the idea of using “aprocryphal news” or an “apocryphal communication” to subpoena Person B (an expression of unclear meaning, which could plausibly be interpreted as the fabrication of an anonymous tip, but could also refer to some other kind of intelligence-based report). Only then does Judge Moro explain that Person A (the “intermediary”) was the actual source of the information, and suggests that the prosecution should get in touch with Person A. This suggestion is promptly accepted by Dallagnol.

        Therefore, the texts that were suppressed in the original version of Intercept’s report seem to imply: 1) that Dallagnol never actually acted on the idea of using an “apocryphal communication” (whatever that means), and 2) that instead of validating the “apocryphal communication” idea, Judge Moro’s actual suggestion (“better to formalize”) was that the prosecution should “stick to the book” and hear the intermediary source (Person A) instead.

        Obviously, the new information doesn’t exclude claims of impropreity regarding Judge Moro passing ahead a possible source of information to the prosecution. But there doesn’t seem to be anything unorthodox about the actions actually taken by the prosecuation, as a result of the conversation.

        • Oh, wow, that really does put things in quite a different light, or so it seems. I feel like I’m way out of my depth here, both because I don’t speak the language and because I don’t really understand the details/nuances of either the procedures or the ethical rules. I’ll need to think more about this, but I agree with you that when you see the whole, unedited exchange, it doesn’t seem nearly as nefarious as the Intercept first made it sound–though without more context it’s difficult to know if there was an ethical lapse here nonetheless.

          I’m curious, since many of those who have written in pointed to this exchange as the most serious of the ones that the Intercept (and I) discussed, whether seeing the full exchange makes you revise your views on its impropriety?

          • Exactly. That one was the most alarming exchange. In other words, to force the hearing of a witness who actually didn’t want to talk, they wanted to plant some news which would then give them legal grounds to warrant a subpoena to question the witness.

            But I disagree with some of your conclusions. The fact that the judge was actually reprehending the part because he appealed a verdict, saying that this wasn’t on the Federal Police interest, are equally disturbing – it shows that the judge is interested on the outcome of his decisions in the sense that they should not be questioned. And the Dellagnol agreed! A judge advising a prosecutor which steps he should take is clearly giving hints on how the latter should adjust his strategy so that a favourable verdict could be granted. If that’s admissible, I don’t know what else isn’t.

  3. Moro’s coaching represents a clear violation of brazilian criminal/civil procedure rules (e.g. art. 145, II, CPC). This results in a nullity of procedure, therefore Lula hasn’t had a fair trial.

    • Thanks for this clarification. I think you may have answered one of the follow-up questions I posed above to Mr. Duca, about whether violation of CPC 145-11 results in automatic nullification, or whether there needs to be some kind of additional analysis as to whether the violation caused actual prejudice (as is true with respect to certain procedural violations under US law). I take it you’re saying that the fact of the violation, no matter how small and inconsequential to the outcome, results in the automatic nullification of the verdict? Is that an uncontrovesial, uncontested view of Brazilian law? Just curious. (And to be clear, I’m NOT saying I think these violations were inconsequential. I’m still trying to figure that out, but it seems at least some of them were not. I’m trying to figure out what Brazilian law on this point looks like.)

      • I’m not an attorney or law student, just a Brazilian citizen interested in the case. From what I’ve read about it, there is no automatic nullification. It does need additional analysis. The sentence has already being confirmed (and slightly changed) by other 2 superior instances. A unlawfully obtained proof could be used to try to absolve Lula, but it would be very hard to consider it any proof since it could have been tampered by either the person who obtained it or even by whom is telling the story, something already being alleged by the prosecutors in https://noticias.uol.com.br/politica/ultimas-noticias/2019/06/12/apos-nova-denuncia-lava-jato-diz-que-hacker-pode-ter-forjado-conversas.htm

        I also dislike the way the narrative is created by The Intercept, mixing conclusions with facts and telling what they understand rather than what was actually written (with exceptions here and there). They leak authorities’ conversation in the name of transparency but they are not transparent about all the relevant conversation (and most of it irrelevant since it’s about the prosecutors’ private discussion on the case)

        • I share your qualms about the Intercept’s reporting. Especially when reporting on such an explosive story on such a politically polarizing topic, it would be better to maintain a bit more of a detached, impartial tone, and to let the facts speak for themselves. I also wish that the Intercept reporters had consulted with Brazilian legal experts about whether these communications amount to a breach of laws or ethics rules. The original story simply states, is if it’s uncontroversial, that Moro engaged in “serious ethical violations and legally prohibited collaboration,” when it actually seems like there are hard legal questions here. I don’t know why there aren’t interviews with, and quotes from, Brazilian experts who can speak to these issues. Surely the Intercept’s reporters, whatever their talents as investigative journalists, aren’t in a position to evaluate whether the communications breach Brazilian laws or ethics codes (and they don’t even cite to the relevant provisions–I’ve only learned which ones are relevant because commenters on this post have pointed me to them).

  4. Moro’s coaching represents a clear violation of brazilian criminal/civil procedure rules (e.g. art. 145, II, CPC). This results in a nullity of procedure, therefore Lula hasn’t had a fair trial.

  5. About the third issue you have commented on. You support that the Lava Jato prosecutors maybe were only personally reacting (i.e., they didn’t take any official measure) to what they saw as concrete menace represented by the Worker’s Party and that this menace was only visible after the attacks made by the Party along 2016-2017. So the 2018 messages maybe are just a response to these attacks. But if they were only expressing anguish, why the leading prosecutor of the workforce decided to go beyond any ethical and legal barriers and have private chats with the case’s judge as early as 2015?

    • I’m glad you asked this question, because this is something I’ve been thinking about, and it gives me the opportunity to note what I think is an important distinction that some of the commentary on this operation, and the recent revelations, tends to overlook:

      There are two kinds of bias/impropriety that we might be concerned about. (Well, probably there are others, but these are the two I want to focus on now.)

      (1) We might be worried about unfair treatment of _defendants generally_, regardless of their political affiliation. That is, we might worry that the judge and/or prosecutor, in their zeal to convict, ignored important due process principles.

      (2) We might be worried about unfair targeting of certain defendants based on their _political party or ideology_. In this particular case, the allegation against that task force is that they had a partisan bias against the PT.

      These concerns are not the same. Of course, if we focus on one particular case in which the defendant is also from the PT (Lula being the most obvious), then those two factors may be hard to distinguish. But again, they’re not the same. Even if we stipulate that the prosecutors were acting inappropriately back in 2015, this doesn’t show that they were _politically_ biased against the PT. It might be that they were just so zealous in their pursuit of those they thought had engaged in grand corruption, regardless of parties, that they crossed an ethical line. (I’m still not 100% sure that they did, but let’s just assume that they did for now.)

      So, the question we’re trying to answer is whether the prosecutors had _political or partisan_ bias back in 2015-2016. The fact that they (may have) overstepped ethical lines back then doesn’t demonstrate partisan bias. (After all, let’s keep in mind that Lula was not the only Lava Jato defendant, a fact that seems to keep dropping out of these conversations.) Now, we also know that by late 2018 that the Lava Jato task force members didn’t like the PT and didn’t want the PT to win the election. But that also doesn’t show that they had an anti-PT bias back in 2015-2016.

      That’s why I’m not (yet) convinced that the materials leaked to the Intercept show that the prosecution of Lula was motivated by anti-PT/anti-Left bias.

  6. I’d just like to point out that you forgot to assert the fact that, when Mr. Moro warned Mr. Dallagnol about that potential witness, Mr. Dallagnol suggests that he might “create” an “anonymous tip” in order to force that witness into court. That is absurd.

    • Thanks for explaining this. Another commenter above made a similar point. I think I simply misunderstood this because the Portuguese phrase used here doens’t translate all that well into English.

      As I asked above: Is it completely clear and uncontroversial that this is what they were talking about? I assume the answer is yes? If so, yeah, that’s really bad.

      • I guess in times like these you’ll find people who might say that’s not what he meant at all, but given the context of the convesation (Mr. Moro handing the prosecution a witness) it’s crystal clear that Mr. Dallagnol meant exactly that.
        I can’t see any way in which he give that sentence a different meaning, language-wise.

        It’s as simple as it looks.
        And about this, it’s not clear whether Moro gave the witness information in this chat or not. This got me thinking that they might have other ways to keep those ex-parte communications)

        • “Anonymous tip” was actually the interpretation from The Intercept, not what was actually written. Without the rest of the conversation it’s hard to infer what the phrase actually means even in Portuguese without the translation problem.

        • After reading the other comments, I’m not yet convinced that it’s quite as clear as you say, especially now that another commenter above has posted a translation of the full exchange, not just the parts that the Intercept included in its English language version.

          And even the Intercept story seems to acknowledge some ambiguity here, writing that “it is not entirely clear what [the reference to apocryphal news] means,” and saying only that “it _appears_ [my emphasis] that Dallagnol was floating the idea of inventing an anonymous complaint that could be used to compel the source to testify.”

  7. It is not possible to underestimate the fact that Judge Moro disclosed confidential information prejudicial to the PT campaign in 2018, which proved to be inconsistent afterwards, and that he accepted to be part of the Bolsonaro’s administration, a notorious unqualified extremist with dozens of well-known small corrupt affairs (he was a small polititian).

    • I’m aware of the controversy surrounding Judge Moro’s disclosure of the recordings of the Dilma-Lula conversations, and I won’t weigh in on that here, both because I don’t know enough about it and because it’s not directly relevant to the specific issues raised by the more recent reporting in the Intercept.

      As for Bolsonaro, and Judge Moro’s decision to take a position in Bolsonaro’s administration, I am on record as being strongly opposed to Bolsonaro (https://globalanticorruptionblog.com/2018/10/09/some-things-are-more-important-than-corruption-brazilian-elections-edition/), as believing that Bolsonaro will be worse for the anticorruption agenda than Haddad would have been (https://globalanticorruptionblog.com/2018/10/16/brazils-electoral-dilemma-which-outcome-will-be-better-for-anticorruption/), and as criticizing Moro for accepting a position in Bolsonaro’s cabinet, precisely because it would make Lava Jato look politicized (https://globalanticorruptionblog.com/2018/11/13/say-it-aint-so-sergio-judge-moros-apointment-to-the-bolsonaro-cabinet-is-a-setback-for-brazils-struggle-against-corruption/).

      Even before the Intercept leaks, I found that my general orientation–being strongly pro-Lava Jato and strongly anti-Bolsonaro–was a fairly lonely position to be in, and I suspect that after the recent revelations it will get lonelier still.

      • I read the article and was looking for a comment about Moro’s appointment, then quickly read your article “say it ain’t so, Sergio”.
        I wish this position wasn’t so lonely, it is pretty rational. We all know corruption was rampant and PT had been in the federal gov in the last 4 terms, they were quite obviously involved. Sure we all want a better country.
        But seeing Moro do everything he could(n’t) to make sure Lula was in jail for the 2018 elections, and then in Bozo’s gov — and then bozo publicly saying he promised him a position at the Supreme Court! (so of course he won’t step down or confront any corruption in this govmnt) – is too hard to excuse. (just as it is hard to excuse Lula’s involvment in corruption just because he was such a great president and/or because it’s the way it has always been done- as his supporters do).

        But there is also this passage:
        Dallagnol: “Caro, favor não passar pra frente: (favor manter aqui): 9 presidentes (1 em exercício), 29 ministros (8 em exercício), 3 secretários federais, 34 senadores (21 em exercício), 82 deputados (41 em exercício), 63 governadores (11 em exercício), 17 deputados estaduais, 88 prefeitos e 15 vereadores […].”
        A couple of hours later, Moro answers: “Opinião: melhor ficar com os 30 por cento iniciais. Muitos inimigos e que transcendem a capacidade institucional do mp e judiciário.”

        So, dallagnol finds way more public figures involved, then Moro and him just agree to keep to the initial 30%…? what 30%? why did they decide that? based on what? what did they do with the evidence of involvement of these other people? This is what bothers me the most.. wtf

      • I don’t think Mr Oliveira above is talking about the illegal release of the wiretapped conversations of President Roussef.

        Days before the election, Moro made public the plea bargain of Lula’s finance Minister, Antonio Palocci. The plea bargain was signed 6 months before and there was no relevant fact to release it.

        • Oh, sorry, I misunderstood. I don’t know anything about this incident, and unless I missed it it’s not mentioned in the English versions of the Intercept stories, so I won’t comment on it further for now.

  8. Deltan then asked Moro what to do, if he should subpoena him or file for a “apocryphal notice”. And Moro told him to do the latter. In Brazilian criminal system, an “apcryphal notice” is reporting a crime announimously to the authorities so they can investigate. By orienting Deltan to do this, Moro probably comitted a fraud: he knew who the source was and knew that the source couldn’t be officialy interrogated by the prosecutors. But he was out to get Mr Lula (apparantly at any cost), so he told Deltan to fake an “apocryphal notice” with a clear intent to create evidence.

    • Many thanks for the helpful clarification, which a number of the other commenters above also noted. This seems to be by far the worst transgression contained in the Intercept report, and I think I just didn’t understand before what the exchange was really about.

      Question here; Do we know for sure that this exchange involved the Lula case, or might it have involved a different case? And would this ethical violation taint only the specific case in which this incident occurred, or would it taint all the other cases, on the grounds that once the judge has advised the prosecutor on any matter whatsoever (including a related, or even an unrelated, legal case), the judge must disclose this and possibly recuse?

    • And one more question: A commenter above provides a translation of the full, unedited text exchange on this point, and suggests (plausibly) that the full exchange suggests that the conclusion that you (and the Intercept) draw here may not be correct. In particular:

      1) It’s not at all clear that “apocryphal news” actually means fabrication of evidence, rather than based on the tip that Moro had already received and passed on.

      2) It appears that, rather from endorsing this course of action (as you and the Intercept conclude), Moro in fact told Mr. Dallagnol _not_ to proceed in this way, but rather to “formalize” everything (that is, do everything by the book), and to get in touch with the original source who talked to Moro directly.

      3) It also appears that Mr. Dallagnol never actually applied for a subpoena based on “apocryphal news” (whatever that means), and so even if what he’d had in mind was illegal, he never actually did it–possibly because Judge Moro cautioned him not to proceed in a fashion that might not be legal.

      What do you think of that alternative interpretation, based on the full conversation?

  9. I appreciated your detailed analysis of the “Car Wash Leaks” matter. Very professional and careful. I also value your potential conflict of interest declaration as regarding your personal interaction with Mr. Dallagnol, since it allows the reader to make of this conflict in their own appreciation of your analysis. Notwithstanding, perhaps because you have not read the Portuguese version, I was surprised that you have not commented one of the most significant “leaks” – Moro and Dallagnol’s interaction in the episode of their “illegal leaking” of a phone call between the President Dilma Rousseff and former President Lula. The Supreme Court judge decided to pose a public censure to Moro that – and this is very relevant -, at their occasion, has asked excuses “saying that he had not the intention to interfere etc”. This is now clearly show as a lie. Nobody should be expected to lie, especially a federal judge. Would you agree? I would appreciate to see your comment about this point. Claudio Gil Araujo, MD, PhD, Rio de Janeiro, Brazil

    • First of all, thank you very much for the kind words. This is obviously a challenging subject for me to write about as an outsider, especially because I know that people feel very passionately about it, and understand the details and nuances better than I do.

      As I noted above, I do know about the incident in which Judge Moro leaked the recording of a conversation between Lula and Dilma, as well as a bit about the controversy surrounding that event. I didn’t discuss it in my post mainly because it didn’t seem to me that the Intercept story (at least the English version) added anything to our understanding of that event, beyond what was already in the public record. I think that perhaps the Portuguese version discussed text messages between Judge Moro and Mr. Dallagnol specifically regarding these leaks? I didn’t see any discussion of any such messages in the English version. Could you provide a rough translation or summary of those exchanges?

      Finally, it should go without saying that nobody should lie, especially not a federal judge, at least not without a very good reason.

      • I appreciate your comment.
        Let’s try to help you to get more information regarding this rather complicated matter that includes to have text in two different languages. In the first part of The Intercept material – https://theintercept.com/2019/06/09/editorial-chats-telegram-lava-jato-moro/ – there is a specific paragraph mentioning the famous Dilma-Lula’s phone call.
        Reproducing from the original from The Intercept’s first part, we have:
        A bem da verdade, ao produzir reportagens a partir desses arquivos, somos guiados pela mesma argumentação que levou boa parte da sociedade brasileira – aí incluídos alguns jornalistas, comentaristas políticos e ativistas – a aplaudir a publicidade determinada pelo então juiz Moro das conversas telefônicas privadas entre a presidente Dilma Rousseff e seu antecessor Luiz Inácio Lula da Silva (em que discutiam a possibilidade do ex-presidente se tornar ministro da Casa Civil), logo reproduzidas por inúmeros veículos de mídia. A divulgação dessas ligações privadas foi crucial para virar a opinião do público contra o PT, ajudando a preparar o terreno para o impeachment de Dilma em 2016 e a prisão de Lula em 2018. O princípio invocado para justificar essa divulgação foi o mesmo a que estamos aderindo em nossas reportagens sobre esse acervo: o de que uma democracia é mais saudável quando ações de relevância levadas a cabo em segredo por figuras políticas poderosas são reveladas ao público.

        Mas a divulgação feita por Moro e diversos veículos da imprensa dos diálogos privados entre Lula e Dilma incluíam não apenas revelações de interesse público, mas também comunicações privadas de Lula sem qualquer relevância para a sociedade – o que levou muitas pessoas a argumentarem que a divulgação tinha o propósito de constranger pessoalmente o ex-presidente.

        Rather than try to provide a fair translation to you, I have preferred something very impartial. I experimented to use Google Translator (a free public tool) to do it and I am pleased with the result. So, I may suggest you to do the same to “catch” a quite good English version of the original text that will allow you to have a better appraisal of the overall issue.

        This relevant question, at least to me, about the illegal leaking of the Dilma-Lula’s phone call performed by a federal judge was clearly detailed in the The Intercept’s part 4 – https://theintercept.com/2019/06/09/chat-moro-deltan-telegram-lava-jato/ -, as follows:

        Três dias depois, Dilma tentaria nomear Lula para a Casa Civil, e Moro divulgaria a famosa conversa gravada entre a então presidente e o ex-presidente. Naquela manhã, Dallagnol e Moro conversaram sobre a divulgação dos áudios e se consultaram sobre a estratégia.
        Dallagnol – 12:44:28. – A decisão de abrir está mantida mesmo com a nomeacao, confirma?
        Moro – 12:58:07. – Qual é a posicao do mpf?
        Dallagnol – 15:27:33. – Abrir
        As críticas à divulgação dos áudios foram fortes e, seis dias depois, o procurador e o juiz ainda discutiam o assunto:
        Dallagnol – 21:45:29. – A liberação dos grampos foi um ato de defesa. Analisar coisas com hindsight privilege é fácil, mas ainda assim não entendo que tivéssemos outra opção, sob pena de abrir margem para ataques que estavam sendo tentados de todo jeito…
        […]
        Moro – 22:10:55. – nao me arrependo do levantamento do sigilo. Era melhor decisão. Mas a reação está ruim.
        Uma semana depois da conversa, porém, Moro pediu desculpas pela decisão.

        Differently than you thought, this specific dialog between Moro and Dallagnol were not public and indeed, very embarassing to say least.

        Again, I would suggest you to use Google Translator.

        In summary, they (Moro, Dallagnol et al.) have worked as a team to accomplish their goals. Sadly, for the democracy, going far out of their legal boundaries and placing their political/ideological interests to play at least since 2016.

        I might add one piece for your thinking. Whatsapp is the standard app for mobile personal/group communication in Brazil. Very few Brazilians had even heard about Telegram before last week. Why Moro et al, were communicating using Telegram? My first guess is that their belief that they will be secure to talk about everything that they want it in a secure way. Sadly for them and great for democracy that this seems not to be 100% correct.

        Thanks for your support against corruption. We are in the same team.

        Claudio Gil Araujo, MD, PhD.

        • Thanks very much! To save other English-only readers some time, I’m going to paste below the Google translate results from the passages you quote. I won’t tinker with the results, even for clarity, to avoid any concerns that I might be (possibly subconsciously) shading the translation in one direction or another.

        • The Google translation of the material you quote from part one of the Portuguese versions of the story is as follows:

          In fact, in producing reports from these files, we are guided by the same argument that has led a good part of Brazilian society – including some journalists, political commentators and activists – to applaud the publicity determined by the then judge Moro of private telephone conversations between the president Dilma Rousseff and his predecessor Luiz Inacio Lula da Silva (in which they discussed the possibility of the former president to become minister of the Civil House), soon reproduced by numerous media vehicles. The dissemination of these private links was crucial to turn the public’s opinion against the PT, helping to prepare the ground for the impeachment of Dilma in 2016 and the arrest of Lula in 2018. The principle invoked to justify this disclosure was the same one we are adhering in our reports on this collection: that a democracy is healthier when actions of relevance carried out in secret by powerful political figures are revealed to the public.

          But the disclosure by Moro and several media outlets of the private dialogues between Lula and Dilma included not only disclosures of public interest but also private communications of Lula without any relevance to society – which led many people to argue that the disclosure had the purpose of personally embarrassing the former president.

        • The Google translation of the passage you quoted from part four of the Portuguese versions of the Intercept stories is:

          Three days later, Dilma would try to name Lula for the Civil House, and Moro would divulge the famous conversation recorded between the then president and the former president. That morning, Dallagnol and Moro talked about publicizing the audios and consulted about the strategy.
          Dallagnol – 12:44:28. – The decision to open is maintained even with the appointment, you confirm?
          I live – 12:58:07. – What is mpf’s position?
          Dallagnol – 15:27:33. – Open
          Criticism of the publicity was strong and six days later the prosecutor and the judge were still discussing the matter:
          Dallagnol – 21:45:29. The release of the clips was an act of defense. Analyzing things with hindsight privilege is easy, but I still do not understand that we had any other option, otherwise we could open the door to attacks that were being tried anyway …
          […]
          I live – 22:10:55. – I do not regret the lifting of secrecy. It was a better decision. But the reaction is bad.
          A week after the conversation, however, Moro apologized for the decision.

        • Oh, now that I’ve read through the translation of the excerpt from part one, I see that this passage _was_ included in part one of the Intercept story. Yes, I saw that. I wasn’t saying that the Intercept didn’t mention this incident, I was only saying that the leaks reported in the Intercept’s (English-version) reports didn’t add anything to our understanding of that incident beyond what was already in the public record.

          I see now, thanks to your comment, that part four of the Intercept series (which has not yet been translated into English) _does_ include text messages specifically on the decision to release the recordings. But on reading the translation, I’m struggling to find anything even remotely scandalous (at least beyond what’s already in the public record):

          * In the first exchange, before the decision to release, Judge Moro asks Mr. Dallagnol what the Federal Prosecution Service’s position is on releasing the recordings. and Mr. Dallagnol says their position is to release them. OK, fine… maybe that was the wrong decision, but there’s no discussion here of any evil motive or secret plotting.

          * As for the second exchange, both Judge Moro and Mr. Dallagnol are discussing the adverse reaction to the release of the recordings, and saying that they think they made the right decision, given the tough situation that they were in. Again, maybe they made the wrong decision, but I don’t see anything nefarious in this exchange.

          Now, maybe this is an incident where the fact of the communication is itself unethical, even if none of the content is problematic. I don’t have the expertise to evaluate that question, but I’d be interested in what the experts have to say. But as for the actual content of the exchanges, I really don’t see any evidence of “political/ideological interests” driving the decision.

          Let me emphasize, despite my (provisional) disagreement with you on this point, that I respect your views and appreciate the thoughtfulness and thoroughness with which you expressed them. We are, as you say, most definitely on the same team, and I’m glad that we can have such a serious and substantive discussion about a topic that understandably arouses great passion.

          • Thanks for your thoughts and for the very objective analysis that you did about my previous post. As I have indicated before, I am a Brazilian physician. However, there are three aspects that push to get me involved in these political issues. My grandfather and my father were federal judges, I have had chance to visit and to culturally interact with people living in more than 80 countries and I have a very strong personal feeling regarding social inequality and faking, cheating, lies or crimes. I am currently 63 y-old and as part of my leisure and academic activities, I have been visiting US more than 50 times (indeed, > 25 US states). I have had the honor to have been invited to speak several times as faculty member in the most prestigious annual scientific meetings of the American College of Cardiology, American Heart Association and American College of Sports Medicine. I have published dozens of scientific papers and even a technical book in US and been interviewed by CBS etc regarding my sitting-rising test protocol (Google search my name if you are curious!). I am just saying that to make clear to you that I know quite well the “American” way of thinking, and then, t is easy to understand how much hard it would be for you to completely “catch” our feelings and to fully understand this Brazilian’s scandal.
            As a MD quite often I have to face with a severely sick patient that I can quickly realize that it is a terminal case, despite of dialysis, pacemaker, mechanical ventilation, last generation meds etc. It is my strong impression that Moro, Dallagnol et al. are terminal cases. Gleen Greenwald is a very serious and competent journalist. Even being emotionally involved on this matter, he and his team have a very strong material that they are strategically releasing in small drops – like a dipping venous infusion -. They are playing chess with the difference that they already know all the possibilities and their opponents can only look part of the chess and to play a single movement.
            They already divulgated that they have more than 1,700 printed pages of leaked material. They have just released less than 1%!! They have already publicly told that they have hundreds of recorded audio messages (messages that their opponents leaved with their own voices in the Telegram app) that they are only looking for the more appropriate timing to make it public. It will be very dramatic to be able to hear these “stories and facts” on real Moro and Dallagnol’s voice messages. I guess the impact will be much bigger than in a text msg.
            About two hours ago (https://theintercept.com/2019/06/14/sergio-moro-enquanto-julgava-lula-sugeriu-a-lava-jato-emitir-uma-nota-oficial-contra-a-defesa-eles-acataram-e-pautaram-a-imprensa/ ), they have just released the part 6. Again, as the previous ones, they did a very careful and precise chess movement. At this time, to specifically contest the last Moro’s public explanations. To be frank, in my opinion, it is just a matter of time. There is no way to stop the Lava-Jato’s hemorrhage. It will bleed to death. The only question is how many parts they will need to release before the Moro et al.’ castle will ruin.
            You may (and the others in the blog) find interesting to listen the Greenwald’s interview in http://www.democracynow.org. https://publish.dvlabs.com/democracynow/360/dn2019-0612.mp4?start=986.0&end=2775.0. Particularly after minute 31.
            Thinking ahead, we will have to rebuild the public confidence in Brazilian courts and law system, if our endemic corruption should be menaced. New players and perhaps new rules are needed.
            Finally, thanks for your interest in Brazilian matters. At this moment, international attention is very important since, sad to say, most of Brazilian press is not trustable.
            Best. Claudio Gil Araújo

        • Oh, one more thing: I don’t think it’s all that suspicious that Judge Moro and Mr. Dallagnol used an encrypted messaging app to communicate. It seems that there are at least some contexts in which it might be appropriate for a prosecutor to communicate with a judge–say, alerting him that a warrant application was on the way. (At least in the US, such applications are sometimes done by telephone, so I’m not sure why text would be any different.) There are obvious reasons one would want such a communication to be secure. So I don’t think the use of Telegram, in and of itself, is all that suspicious.

  10. The task force took steps to ensure that the interview did not occur. A team co-worker, referred to as ‘Carol PGR’ (who had conversations with the group and has a friendship with Dallagnol), is involved in the request made by the party “Partido Novo” that resulted in an injunction that prevented the interview. Task Force member Januário Paludo comments: “We should thank our PGR. Partido Novo !!!”

    • Really? I think that either this wasn’t clear in the English version, or else I simply missed or misunderstood the relevant passages. The line you quote in your last sentence is in the English version, but it appears to just be the prosecutor saying, essentially, the fact that the Partido Novo filed this appeal is great for us–there’s no discussion of any communication from the Lava Jato task force to the Partido Novo. And while Carol PGR is mentioned in the English version, we see only her conversation with Mr. Dallagnol, not any discussion of her being in any way involved in getting Partido Novo to file the appeal.

      What does the Portuguese version say? Is there an explicit discussion of Mr. Dallagnol asking Carol PGR to get the Partido Novo to file an appeal, or anything along those lines?

  11. Thanks for your perspective about – one more – Brazilian political and institutional crisis episode. I myself find it very hard to make any definitive affirmations on the leaks impacts, but, as some before me said, on the legal procedure side, it has clearly opened a lot of perspectives for the defense teams, since it’s noticeable an objective violation of the legal codes.

    But, is on the indications that both Mr. Moro and Mr. Dallagnol acted misusing the public functions and prerogatives that they held, that lies my deepest fears. See, it is very unlikely that the media narratives lead by all the majors’ newspapers, magazines (to be more specific: Veja) and TVs were not fed by unproven claims from the prosecutors + judge Moro team. For a long time, this was on the speculation and conspiracy-theory land but, now, seeing the kind of thing and – maybe more clear to the native Portuguese speakers – the tone that they’ve adopted? It’s really looking like that the involved have assumed an all-in posture, no rules or grounds, in order to win, judicially, the political battle.

    Obviously, this does not imply automatic innocence for former president Lula or to any of the people that were involved in the Lava Jato investigations. New trials, properly conducted, may bring this answer that we are in so much need.

    Surely, on the other hand, the current political mindset on the Brazilian population is based on less organic, technical, but on much more articulated and full calculated strategic actions. In the aftermath, all of this reminds me of Leo Dicaprio’s character quote on Inception: “An idea is like a virus. Resilient. Highly contagious. And even the smallest seed of an idea can grow. It can grow to define or destroy you

    • I don’t have much to add, other than to say I share your worry. I don’t think that these revelations discredit all of Lava Jato, but they certainly hurt the operation’s reputation and provide ammunition to those who want to say it was all a conspiracy. But that’s one of the reasons I think it’s incumbent on us–both informed insiders, as well as half-informed outsiders like me–to carefully scrutinize all of the available evidence and to reach a nuanced judgment. I fear that there’s a tendency in many countries, including both the US and Brazil, to view these issues in black-and-white terms, as if Lava Jato was either a holy crusade or a diabolical conspiracy. I suspect that it was neither, and right now we’re all trying to sift through the evidence and figure out how to understand what’s going on, and what to do going forward.

  12. Wow, thanks so much to all of you who wrote in with reactions, criticisms, and clarifications. This is extremely helpful. It’s always hazardous for an outside like me to weigh in on complicated legal and political matters in a foreign country, especially when I don’t know the language and therefore have to rely on translations and second-hand reports. I’m glad that my post has promoted such thoughtful, substantive reactions–and I should add that I’m also grateful for everyone’s measured, civil tone despite the fact that these issues provoke strong emotions.

    I am continuing to formulate and reformulate further thoughts on these revelations, and if those thoughts congeal into something semi-coherent, I may post again. And I’ll try to respond to at least some of the specific comments above. But for now I’ll just thank all the commenters for taking the time to contribute to the discussion.

  13. I generally agree with Mr. Stephenson’s assessment that “for the most part, the specific communications disclosed in the Intercept’s story don’t seem to suggest anything all that significant”, and that several claims asserted in the (unabashedly partisan) report were overblown, even if one presumes that the messages were presented accurately and without tampering (I seriously doubt that criminal hackers are concerned about chain of custody).
    On the other hand, Mr. Stephenson describes the fact that Judge Moro exchanged encrypted text messages with the prosecutor in charge of the Lava Jato operation as “a shocking and inexcusable breach of judicial ethics”, regardless of the specific contents of the communications. This assessment, while perfectly understandable from a foreign observer’s viewpoint, barely resonates from a local’s perspective. To be sure, there is plenty of ongoing controversy in Brazil regarding the supposedly improper content of conversations between Moro and Dallagnol, but the mere existence of ex parte communications between a judge and a prosecutor has not been considered “shocking” – to the contrary, one may argue that the events described are not that much of a deviation from usual judicial practice in Brazil.
    Regarding this subject, there are two significant aspects of Brazilian procedural law that one should keep in mind:
    1) In Brazil, ex parte communications between judges and attorneys are the rule and not the exception. Here, I use the word “rule” to describe not only an accepted and generally expected practice, but the actual letter of written law: according to article 7, VIII of Federal Law nº 8.906/94, attorneys are legally entitled to speak directly to judges, regardless of previous appointments or any other prerequisite (including the presence of the opposite party). Article 9, p. un, I of the Brazilian Judicial Ethics Code also expressly states that there is no violation of impartiality if a judge grants a hearing to only one of the parties or their lawyers, as long as the same possibility is granted to the opposite party, when (and if) requested.
    The rule that allows ex parte communications applies even to Supreme Court justices: a few years ago, an attempt at reform that would allow the justices to limit attorneys’ access (for instance, by requiring the presence of the opposite party) was shot down, in no small extent, due to pressure from Brazil’s powerful Bar Association (OAB).
    Therefore, face-to-face communications between judges and attorneys (in civil or criminal cases alike), without opposing parties, and frequently behind closed doors, is standard and common practice in Brazil. Lawyers have nicknamed the practice of “making your case” in a private audience with a judge as “embargos auriculares” (which could be roughly translated as “auricular appeal”).
    2) According to Brazilian criminal procedure law, a prosecutor must request judicial warrants in order to collect virtually any confidential information while investigating a case, including bank records, electronic communications and wire taps. Warrants for wire taps, in particular, are legally valid for only 15 days, after which they must be renewed by another judicial decision. For obvious reasons, such warrants are granted in secret, without any hearing from the investigated party.
    In Brazil, the judge that grants such warrants during the investigation is the same judge that will try the case (unlike some European countries, where matters regarding pre-trial evidence collection are adjudicated by a different judge – “judge of instruction” – than the one that will preside over the trial).
    In complex criminal cases, this usually means that intense ex parte communications are established as the prosecutor presents his pre-trial requests (and the evidence that supports such requests) before the judge, possibly months before a criminal accusation has been filed, and therefore long before any hearing is granted to the defense. Specifically in the case of the Lava Jato operation, such complexity is compounded by the fact that dozens of cases were being submitted by the same prosecutors to the same judge (in different stages, ranging from pre-trial investigations to appeals against sentences), over the course of years.
    In such a context, that combines a huge amount of ex parte communications with the need to assure secrecy to the proceedings, the use of an encrypted message app could be seen in good faith as a natural extension of the face-to-face communications that prosecutors and judges establish on a regular basis in Brazil.
    There is certainly a legitimate concern that this system might foster proximity and a sense of collaboration between prosecutors and judges while fact-finding for a criminal case: but such an outcome is mostly a matter of (arguably) flawed institutional design rather than a question of individual ethical choices.
    In closing remarks, there is one of Mr. Stephenson’s claims that I take issue with: “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”. Unfortunately, such ex parte communications barely scratch the surface of improper and unethical – yet commonplace and widely accepted – practices regarding the relationship between judges, parties and attorneys in Brazil.
    Brazil’s judicial system has an extremely lax approach to serious conflicts of interest regarding judges, especially in high courts. For instance, in Brazil it is perfectly usual for judges (including Supreme Court justices) to adjudicate cases involving law firms that employ their spouses and/or relatives, as it is common for retired judges (as well as Supreme Court justices) to resume their careers as attorneys, using their privileged connections to influence the court’s decisions. A few months ago, a Supreme Court justice infamously did not recuse himself from a criminal case, despite being godfather to the defendant’s daughter.
    To be sure, there are legitimate causes for concern regarding the appropriate relationship between judges and attorneys in Brazil, and the need to adopt procedures that safeguard judicial impartiality, but such discussion should not be limited to supposed ethical lapses in the exchange of messages between Moro and Dallagnol. As members of the Supreme Court have already begun questioning Moro’s impartiality, while failing to address their own – way more serious – conflicts of interest, one is reminded of the biblical sermon on hypocrisy: “First, remove the beam out of your own eye, and then you can see clearly to remove the speck out of your brother’s eye”.

    • Wow, thanks so much. This is incredibly helpful, and offers a perspective that’s very different from that of most of the previous commenters. I anticipated in the post that my strident condemnation of the secret ex parte consultations might have been off the mark if Brazilian procedural law is different from US law, and it appears that in your view, I erred in precisely this way.

      I confess, though, that now I’m even more confused:

      Several of the commenters who weighed in above pointed to Articles 145 and 254 of the Brazilian Code of Criminal Procedure, which they say clearly make it unethical, and possibly unlawful, for a judge to preside over a case in which the judge has provided advice to any party (without disclosing it and giving the other parties the right to demand the judge’s recusal).

      But you point to Article 7, VIII of Federal Law nº 8.906/94, as well as Article 9 of the Brazilian Judicial Ethics Code, which seem to allow ex parte communications between the judge and the lawyers for one or the other party. (Of course some proceedings are always ex parte, like warrant applications, but I take it in Brazil, on your account, there’s more latitude for such communications even in the context of an ongoing trial.)

      Can you or any other Brazilian lawyers out there explain how to reconcile these seemingly conflicting legal provisions? Is the idea that the judge may meet ex parte with lawyers for one side or the other, but may only listen to their arguments, not give any advice or suggestions? That would seem to reconcile the provisions, but it would also imply that in these ex parte conversation the judge must be a mostly-silent, passive listener, which I gather is not the typical practice in Brazil. Another way to reconcile the provisions is to construe the bit about impermissible judicial “advice” narrowly, so that it doesn’t cover things like suggesting the order in which a prosecutor applies for search warrants, or cautioning a lawyer not to overstep, or things of that nature. I take it that’s the reconciliation you’d endorse?

      Anyone else out there care to weigh in on this? I need help understanding, and I bet others do too!

      • Regarding the interpretation of article 145, II of the Civil Procedure Code and article 254, IV of the Criminal Procedure Code, the key word in Portuguese would be “aconselhamento”, which could be construed as “advice” in a vulgar sense, but should probably be read as “legal counsel” in a stricter sense (some quickly researched precedents: STJ-6ª Turma HC 206706/RR and STJ-3ª Turma REsp 307045/MT). The Civil Procedure Code (which may be applied to criminal procedure as a subsidiary rule) is more specific, citing “advice / counsel regarding the contents of the case” as grounds for judicial disqualification.

        I agree that the proper conciliation between the legal provisions you mentioned would be for the judge to remain “a mostly-silent, passive listener” in ex parte communications: a judge could (and frequently does) ask questions regarding the case and the legal arguments brought before him, but should never anticipate his verdict or offer legal opinions to either party.

        However, I would not qualify a suggestion regarding, for instance, the best date to enforce a search warrant as a “legal counsel”: given that such actions generate a surge of judicial activities and may have practical consequences dealing with the allocation of the judge’s time and human resources, there would be several legitimate reasons for which a judge may suggest moving the date of an “operation”. Besides, discussions regarding the most efficient way to enforce a warrant that has already been granted have virtually no relation with the actual contents of the case.

        There is, inevitably, a grey zone between strictly practical suggestions and illegitimate legal counselling, and the question of where to draw the line is open to debate. Generally, I would consider the “red line” to be crossed when the judge offers to one of the parties a “roadmap” to a future decision (as in, “if you want X, you should do Y”), but even in such cases there may be some ambivalence in the language used.

        • Ah, I see, that’s helpful. The “grey zone” you identify seems like a real problem area, and may illustrate the disadvantages of having a system in which the judge supervising an investigation is also the judge who presides over the trial. It’s easy to imagine that the judge overseeing the investigation would want to give prosecutors feedback of a certain kind–“if you want a warrant for X, the evidence you have isn’t good enough, I’m going to need something more concrete,” or “if you’re going to apply for a wiretap, you’d better be careful to limit the scope appropriately”–that could, I suppose, be characterized as “legal advice.” More generally, when the judge is working closely with the prosecution team over a long period of time (often with multiple secret meetings), it would quite likely that the judge might start to identify with the prosecutors. Perhaps one of the lessons that ought to emerge from this whole fiasco is not that the Lava Jato operation is some weird tainted perversion of Brazilian justice, but that there’s a structural feature of Brazilian criminal procedure that really needs to be fixed.

      • Hi. I’m a brazilian lawyer and Federal Law 8.096 is, basically, about rights and duties of lawyers and about the structure of OAB (BAR).
        Article 7th, VIII, mencioned above, gives us, lawyers, the right to be heard by a judge without making an appointment.
        In my practice, this means that, in important cases, I “orally” file my petition/request (although I do speak a little English, I’m not familiar with translation of technical terms, for what I apologize, if it makes comprehension a little more dificult, but I just mean that I make my request directly to the judge, instead of writing a petition), showing the judge my arguments.
        In my interpretation, this article does not allow the conversations revealed by Intercept. It just obligates the judge to hear us if, in our judgement, the urgency or the complexity of the case, for example, requires it.
        Before finishing, I must warn that I don’t usually act in criminal cases, but fellow lawyers in that area commonly complain about the proximity of judges and prosecutors in their cases.

        • Great, thanks. I feel like this comment thread is giving me a crash course in Brazilian criminal procedure!

          Your interpretation of the provision on ex parte communications makes sense to me, though I confess the fact that they’re allowed at all (once a proceeding is underway) is still a bit unsettling to me, since in the US the sorts of ex parte requests that seem to be allowed in Brazil wouldn’t be permitted.

          But I’m still a bit unsure how to handle the fact that many (maybe all?) of the allegedly problematic exchanges occur not during the trial phase, but rather during the investigation phase, when the judge is doing things like evaluating warrant and surveillance applications. In that context, doesn’t it seem like the judge might not be wholly passive? Would the judge, in that context, not be allowed to explain why, for example, a particular warrant application was deficient, or to advise the prosecutor about the evidence that would need to be provided before the judge would approve an intrusive surveillance request?

  14. It is peculiar the importance that is given to their dislike for the Workers Party. After years investigating a corruption scandal whose core is the Workers Party, isn’t it absolutely natural and human that the Lava Jato team developed a rejection for it? Claiming for “neutrality” from the prosecutors is unrealistic. Even before the trial, they already knew what they were dealing with.

    It should also be commented that Moro represents the Brazil State. And Brazil is the victim in this case. If he already had evidence that corruption happened, it is natural to expect a closer look to the prosecutors arguments.

    Intercept’s journalists defend that Lula is innocent. Their writing is biased and distorted to defend their view.

  15. Entendo que ao longo de cinco anos se tenha desenvolvido uma relação de proximidade entre o MP e Juízo e é provável que devem haver conversas entre eles e com certeza da culpa de todos os envolvidos houvesse uma vontade muito grande de vê-los preso. O atual presidente era um candidato que não tinha segundo os institutos de pesquisa, mídias e políticos a menor chance de chegar ao segundo turno muito menos a presidente da republica, então acho pouco provável o Juíz Moro ter algum tipo de acordo com ele. Sobre a entrevista do Ex Presidente Lula e as questões do PT é plenamente justificável a temeridade da chegada do Sr Hadade a Presidência pois era notório e explícito que este governo acabaria com a Operação Lava Jato e inclusive ele havia dito que subiria a Rampa do Planalto com o Ex Presidente levando ao escárnio um trabalho longo, exaustivo e extremamente perigoso,por este meu pensamento entendo como uma preocupação dos agentes da justiça.

    Sou uma pessoa comum, assalariado, com formação secundária e entendo que o nosso País precisava passar por isso e o Moro e toda a equipe da Lava Jato fizeram tudo que o povo Brasileiro queria que fosse feito e ainda esperamos mais, parabéns por sua percepção da nossa Nação e por seus comentários isonomomicos.

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  17. Another point: the interpretation that you classify as frivolous regarding what would be typical case discussions between lawyers. I agree with you – I don’t think they – per se – show much more than that – lawyers preparing a case.

    But what you might be missing here is context: there were two main criticisms to this whole prosecution against Lula: one, the ilegal measures (brought to questioning by force, making public what were private telephone conversations, etc) carried out by the judge, and two, the allegedly fragility of the evidence. Property in Brazil only happens when it can be documented. Therefore one could not say he, Lula, was the owner of the apartment. I’m just giving this example because my point is – they were all the time denying that the evidence was weak.

    Yes, they were not obliged to work publicly against their own case. But what the dialogues truly reveal now is that the case for weak evidence is a strong one, since even those working on it thought so.

  18. I tried to post this earlier, but some how it didn’t go through.

    There are very few objective pointers on the procedural code, and my experience is that it is so in most countries. The objective criteria are whether the judge is a friend, an enemy or a relative of the parties. The subjective part is mostly based on his personal interest on the outcome of the verdict. This of course is always very debatable.

    But the threshold is not that high for a judge to be excused from a trial in Brazil.

    The image of the judiciary plays a big role on these decisions. Brazilians are always suspecting that there’s partiality on things – when something doesn’t follow their plan, they (we) quickly suspect that the other party had an agenda. Because of this, judges are sometimes VERY quick to refuse a case when there are allegations of partiality. Some don’t, though – and in some cases this just creates a very bad atmosphere for the whole trial. Of course, some parties use partiality as means to get a judge known to be more sympathetic to a their view on the subject-matter.

    But, as I was saying, once the image of a lawsuit is compromised, it is very hard for a judge not to declare himself partial, even more because the law doesn’t require much from him to do so other than saying that “for intimate reasons I excuse myself”.

    Recently the higher court minister Gilmar Mendes was accused of being partial because he attended to the wedding of the defendant’s son, and many jurists agreed that this was enough reason to assume partiality.

    The volume of messages, late a night, tips being exchanged, complaints by the judge because the prosecutors appealed, etc, this all makes a very strong case for partiality.

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