The Incredible Shrinking Scandal? Further Reflections on the Lava Jato Leaks

Last week, I published a lengthy commentary on the recent explosive reports from the Intercept regarding the Lava Jato operation in Brazil—reports that were based primarily on text messages provided by a source who apparently hacked (or otherwise gained unauthorized access to) the cell phone of Deltan Dallagnol, the lead prosecutor in the case. Because I am unable to read Portuguese, my discussion was based exclusively on the two substantive English-language reports, here and here. (There are more reports in the series, but so far they’ve not been translated into English; if and when they are, I may update my commentary.) The Intercept’s reports argued that these leaked text messages indicate: (1) that Judge Moro engaged in unethical and possibly illegal coordinating with and coaching of the prosecutors; (2) that the prosecutors recognized that their case against former President Lula was without solid legal or evidentiary foundation; and (3) that the prosecutors were motivated by political/ideological bias against Lula and his party, the PT.

In last week’s commentary, based on my preliminary analysis of the Intercept stories, and what I knew about the background context, I reached the following tentative conclusions:

  • First, I thought that the evidence of extensive text communications between the lead prosecutor and the presiding judge was (or at least should be) per se impermissible. I used very strong language in making this point, describing the fact that the two were in regular text contact as “the height of impropriety,” and a “shocking and inexcusable breach of judicial ethics.”
  • Second, though, I thought that the specific text exchanges reported by the Intercept—the ones that allegedly showed the coaching and collaboration—were largely innocuous, and didn’t seem to contain much problematic material over and above the fact of the communications themselves.
  • Third, I did not think that the text messages reported by the Intercept provided any reason to call into question the legal and evidentiary basis for Lula’s conviction. That conviction was and remains controversial, but the leaked text messages don’t show anything other than a prosecutor preparing appropriately for his case.
  • Fourth, I concluded that although texts exchanged among prosecutors in late September 2018 did indeed indicate that the prosecutors did not want the PT candidate to win the election, this didn’t necessarily show that the prosecutors were biased against the PT back in 2015-2016 (when the decision to investigate and prosecute Lula took place), nor was there any evidence that the prosecutors had taken any concrete action that could be ascribed to partisan bias.

Much to my surprise, last week’s post seems to have attracted a lot of attention, particularly in Brazil. As a result, I’ve had the opportunity to engage in substantive exchanges with multiple Brazilian experts from across the political spectrum, who hold a wide range of views on Lava Jato, Lula, and related matters. Some of these exchanges can be found in the comment section of last week’s post, which I highly recommend that interested readers check out (particularly those who might have read that post the day it came out, before the comment thread included over 60 separate entries); others have communicated with my privately. (To be clear, though, I have not communicated about the post, publicly or privately, with Mr. Dallagnol or anyone else named or discussed in the Intercept story.)

Based on these conversations, and on further reflection, my views on the Intercept’s reporting have shifted somewhat, mainly in the direction of thinking that this “scandal” is considerably less scandalous than the Intercept reported, or that I’d originally believed.

Before I explain why, though, let me note three important caveats: First, as I disclosed in the original post, I have a friendly professional acquaintance with Mr. Dallagnol, and while I don’t think this biases my analysis, readers have a right to know. Second, my discussion here is still based only on the Intercept’s English reports. There have been a number of subsequent stories published in Portuguese, and it may well be that my views might shift based on what’s in these reports once I’m able to read a translation. Third, I’m not an expert on Brazilian law, so it’s entirely possible that my analysis may be flawed due to misunderstandings of the relevant Brazilian rules. (Indeed, it seems this was to some extent true of my original post.)

OK, with those caveats out of the way, let me say a bit more about my current perspective on the Lava Jato Leaks.

First, my conviction that the leaks do not undermine Lula’s conviction is as strong, or stronger, than it was last week.

In last week’s post, I chastised the Intercept for its sensationalist suggestion that the leaks showed that Mr. Dallagnol and his team knew that their case against Lula was baseless. I called this piece of the Intercept’s reporting frivolous. I stand by that. Indeed, I find it telling that among the numerous comments I received, many of them suggesting that I’d understated the extent of the ethical lapses and asserting clear bias against Lula, none offered any serious challenge to my conclusion that the allegedly damning texts regarding the legal and evidentiary weaknesses of the case against Lula showed anything other than a lawyer doing a good job prepping for a hard case. Yes, yes, I know there are still arguments that Lula shouldn’t have been prosecuted or convicted for the alleged corruption involving this beachfront apartment, but my point is not to re-litigate that issue, but simply to stress that the leaks don’t add anything.

Second, I remain unconvinced that the September 2018 texts “lend obvious credibility” (as the Intercept put it) to accusations that the Lava Jato prosecutors are “right-wing ideologues whose overriding mission was to destroy the PT and prevent Lula’s return to power in the 2018 election.”

That is a grave accusation, one that, if lodged by serious journalists, ought to be supported by convincing evidence. But while the stolen text messages do indeed show that by September 2018 the Lava Jato prosecutors (or at least some of them) were bitterly hostile to the PT, they do not show that such hostility (1) existed back in 2015-2016, when the investigation and prosecution of Lula began, (2) influenced any actual prosecutorial decision, or (3) was based on right-wing ideological motivations (rather than, for example, the fact that the PT had been attacking the Lava Jato team in aggressive, often personal terms for years, and had overtly threatened to shut Lava Jato down and undo much of its work).

Now, on that last point, I think it’s worth emphasizing a distinction that much of the current commentary seems to overlook. The question whether the prosecutors (and Judge Moro) treated Lava Jato defendants (including Lula and other PT members) unfairly is different from the question whether the Lava Jato team was politically or ideologically biased against the PT, or the Left more generally. I say this because in response to my claim that texts sent in September 2018 don’t show that there was partisan bias back in 2016, several commenters responded with some version of, “But what about the evidence that Dallagnol and Moro were collaborating back in 2016? Doesn’t that show they were out to get Lula?” The answer is no. Let’s assume for the moment, just for the sake of argument, that it’s indeed the case that the prosecutors and Judge Moro engaged in impermissible collaborations in the case of Lula and other defendants, and that the goal of these impermissible collaborations was to secure convictions. (I’m not convinced that this is in fact true, for reasons I’ll elaborate below, but for now let’s assume it’s true.) This would be really bad, for sure, but it would not be evidence of political/ideological bias. The prosecutor and judge might have been (over-)anxious to convict because they genuinely believed these defendants to be guilty. Indeed, most instances of prosecutorial misconduct, at least in the US (and I suspect elsewhere), arise due to a desire to convict at all costs, not because of the political ideology of the defendants.

Is it possible that the prosecutors and the judge were ideologically biased against Lula and the PT? Sure, it’s possible. But there’s at least one piece of prima facie evidence against that conclusion: The fact that Lava Jato has gone after lots of people from a range of parties across the political spectrum, including the PT’s political opponents (like Michel Temer and Eduardo Cunha). Furthermore, the Intercept’s reports to date actually may imply another piece of evidence against the right-wing-conspiracy view of Lava Jato: the absence of any incriminating text messages (so far) that show a strong anti-PT or anti-Left bias back in the early days of the operation, before the Lula prosecution caused the PT and its supporters to launch their scorched-earth, no-holds-barred attack on Lava Jato. It’s plain that the Intercept reporters have it in for the Lava Jato operation, so I think it’s fair to assume that they’re doing their best to publicize the worst, most incriminating texts they can find. If they’d found texts from 2015-2017 that adopted the same anti-PT tone as the September 2018 texts, I’m sure the Intercept would publish them right away. So, the more time passes without stories revealing such texts, the more I’m inclined to believe that they don’t exist, which would be an exoneration of a sort for the Lava Jato team from charges that their prosecutions were motivated by anti-Left bias.

Third, I think I may have been too quick to condemn the mere existence of the text exchanges between Judge Moro and Mr. Dallagnol as per se illegitimate.

Although I thought that the Intercept had gone overboard in some of its accusations, my original post did agree that Judge Moro likely did engage in a serious breach of judicial ethics in communicating with Mr. Dallagnol privately by text, and that Mr. Dallagnol had committed, at the very least, a lapse of judgment in engaging in these conversations. Indeed, I used very strong language in condemning these conversations.

I now think I was too hasty in reaching conclusion that the text communications were clearly unethical, regardless of their content. To be clear, I am still deeply troubled by the fact that a prosecutor and a presiding judge were regularly texting each other, and the tone of some of the messages does suggest an overly collaborative tenor to the relationship. But in my original post, I’d written (among other things) that “for a judge to engage in secret, ex parte communications with a prosecutor … regarding a pending case is the height of impropriety—full stop,” and I now think that that may not be quite right, at least in this context, for two reasons.

  • First, and more importantly, on closer review it appears that most, perhaps all, of the private communications in question were in the context not of the trial phase, but rather the investigation phase—when the prosecutor was doing things like applying for warrants, subpoenaing witnesses, etc., which the judge has to approve. In this context, the prosecutor and the judge may (indeed must) engage in secret ex parte communications. And I gather, based on some of the comments I received, that these exchanges are likely to be more frequent in Brazil than in other jurisdictions due to certain features of Brazilian procedural law that require the judge to be more closely involved in overseeing the investigation phase than is true in other countries. It’s a bit unusual for these communications to take place via text message, to be sure. But it’s not unheard of for US prosecutors to apply for warrants over the telephone, so this doesn’t seem like that much more of a leap. That doesn’t mean that any communications that take place in this context are ethically fine, and I’ll say a bit more on this in a moment. It does, however, mean that I was wrong to say there is or ought to be per se bar on secret private communications between a prosecutor and judge. Even if that were true at the trial/litigation phase, it isn’t and couldn’t be true at the investigation phase.
  • Second, Brazilian law doesn’t seem to prohibit substantive ex parte communications even at the litigation phase, so long as both sides have an equal opportunity to engage in such communications. In the US, the American Bar Association’s model code of judicial ethics flatly forbids such contacts except under a narrow range of circumstances, and I wrongly assumed that something like that standard also applies in Brazil. But Brazil is apparently more liberal regarding ex parte contacts between judges and lawyers (see Federal Law 8.906/94, Article 7, Section VIII). I don’t think that section applies to these communications, in part because Judge Moro was an active participant rather than simply letting Mr. Dallagnol make his case. But I feel like I should correct the record, since I’d wrongly assumed that the fact of the text contact about the case, even without looking at the content, would establish an ethical violation, but that seems not to be true in Brazil.

Now, the fact that extensive ex parte contacts between the prosecutor and judge at the investigation phase are unavoidable raises a tricky legal problem, which I don’t think most of the existing commentary (including my prior post) really grapples with adequately. It goes like this:

  • Brazil, section 254 of its criminal procedure code, sensibly prohibits a judge from presiding over a trial if the judge has given legal advice to any party to the case.
  • However, in the context of overseeing a criminal investigation, it may not make sense for the judge to be wholly passive; rather, the judge should give feedback to the prosecutor, including warning the prosecutor when his or her investigative plan may run afoul of legal rules, or explaining to the prosecutor the sort of evidence that must be produced to justify the authorization of intrusive investigative measures. Think about some of the things Judge Moro appears to have said to Mr. Dallagnol, along the lines of (and here I’m paraphrasing, but I think fairly): “Make sure the police doing these investigations follow the legal rules,” “Be careful about filing that request unless you have substantial evidence to support it,” “If you want to talk to that witness, make a formal request through the regular channels.”
  • The problem is that it’s conceivable that the latter sort of guidance might be construed as “legal advice.” But maybe it doesn’t, or shouldn’t, given how prosecutors and judges interact in the context of conducting a complex investigation. As I can’t emphasize enough, I’m not an expert on this subject. I’d very much welcome any commentary from those who can explain how Brazilian law has typically resolved this tension. At the very least, it seems that the case that Judge Moro overstepped ethical lines is far from clear.
  • The more general problem here is that by involving the judge so heavily in overseeing the investigation, the judge may start to identify overmuch with the prosecution, and develop an overly collaborative relationship with the prosecutors. That may well be a problem, but if so it’s not so much an ethical failing by this particular judge (or these particular prosecutors), but rather a structural problem with Brazilian criminal procedure.

Fourth, the most potentially problematic text exchange between Judge Moro and Mr. Dallagnol is sufficiently ambiguous that I’m not prepared to say that it was unethical.

In my original post, I went through the content of the Moro-Dallagnol text messages quoted in the Intercept’s English reporting and concluded that “none of them seem to show … procedural irregularities that might undermine the fairness of the trials, other than the fact of the communications themselves.” Several commenters argued that I’d failed to fully comprehend the allegedly most serious (and certainly most confusing) of the exchanges at issue.

Because this is so hard to understand (at least to me), here’s the key passage from the Intercept story, reproduced in full:

Another example of Moro crossing the line separating prosecutor and judge is in a conversation with Dallagnol on December 7, 2015, when he informally passed on a tip about Lula’s case to the prosecutors. “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,” wrote Moro.

“Thank you!! We’ll make contact,” Dallagnol promptly replied. Moro added, “And it would be dozens of properties.” Dallagnol later advised Moro that he called the source, but she would not talk: “I’m thinking of drafting a subpoena, based on apocryphal news,” the prosecutor said. While it is not entirely clear what this means, it appears that Dallagnol was floating the idea of inventing an anonymous complaint that could be used to compel the source to testify. Moro, rather than chastise the prosecutor or remain silent, appears to endorse the proposal: “Better to formalize then,” the judge replied.

The Intercept’s interpretation thus seems to be that Mr. Dallagnol proposed inventing a (fake) anonymous complaint that could be used to compel a witness to testify, and that Judge Moro went along with this, telling him to “formalize” the request. That sounds outrageous. But it’s not clear this is the right interpretation of the exchange. One of the commenters on my original post rendered the entire exchange (which I gather is in the Portuguese version) into English, as follows:

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 weird, 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

It’s hard to figure out what to make of this exchange, not least because the most crucial phrases–“apocryphal news” and “better to formalize”–are ambiguous, at least to me. It’s possible that the Intercept’s interpretation is correct. As I noted in my original post, it’s strange (at least so it seems to me) that a judge is passing on a witness tip to a prosecutor in the first place. But putting that aside, it’s possible to interpret this exchange as follows: Person X tells Intermediary Y that he has relevant evidence against Lula and might be willing to testify. Intermediary Y tells this to Judge Moro. Judge Moro can’t do anything with this information himself, so tells Mr. Dallagnol. Mr. Dallagnol calls Person X, who refuses to cooperate. Mr. Dallagnol relays this to Judge Moro, and says he’s thinking of subpoenaing Person X’s testimony, based on an anonymous tip that Person X has information. This is not fully accurate, since Mr. Dallagnol knows the identity of Intermediary Y. But it’s not the case that the tip is “fabricated,” because there really is a source—Intermediary Y. It seems Mr. Dallagnol is contemplating drafting the application for a subpoena without using Intermediary Y’s name. Judge Moro then tells Mr. Dallagnol to proceed through formal channels (which I assume must mean drafting a subpoena rather than making an informal phone call). But Mr. Dallagnol then asks if it might be better to use Intermediary Y’s name in the subpoena, rather than treating his tip as anonymous. (That is, to the extent that Mr. Dallagnol’s initial instinct to say the tip was anonymous might have been improper, he almost immediately backs away from that idea and asks Judge Moro about that.) Judge Moro advises him to get in touch with Intermediary Y directly, which seems like a sensible thing to do under the circumstances. And then, so far as we can tell, nothing ever happened. Neither the Intercept nor any other commenter has pointed to any evidence that Mr. Dallagnol ever subpoenaed this witness, with the tipster’s name or otherwise.

Was this unethical? Honestly, I have no idea. The only thing that’s clear to me is that the answer isn’t clear. Some questions to which I don’t know the answers:

  • Is it ethical in Brazil for a judge who receives a tip that a witness may have evidence relevant to the investigation to pass that information on to the prosecutor? Or would the judge be ethically obligated to tell the source he/she must contact the prosecutor directly?
  • Is it ethical in Brazil for a prosecutor to file a subpoena for a witness based on a genuine, credible tip that the witness has information, but stating the source of this tip is anonymous even when the prosecutor (and the judge) knows the tipster’s identity?
  • Assuming the phrase “apocryphal news” does mean anonymous/unidentified in this context, does a subpoena based on “apocryphal news” imply that the identity of the source is in fact unknown to the prosecutor (and judge)? Or is it just a way of saying that the formal filing will not list the informant’s name (that is, it’s more like a “confidential informant” than an “anonymous informant”)?

If anyone out there knows the answers to these questions, it would be extremely helpful!

Oh, also, one more thing: While the Intercept says that, when presented with Mr. Dallagnol’s allegedly unethical plan, Judge Moro, “rather than chastise the prosecutor or remain silent, … appears to endorse the proposal,” this is a bit unfair. True, Judge Moro initially responds with the ambiguous phrase “better to formalize,” but less than an hour later he tells Mr. Dallagnol that he should talk with the intermediary first. And, again, so far as we know nothing happens after that (or at least the Intercept hasn’t yet reported it).

This brings me to an additional, more general observation here: While I have great respect for investigative journalists, and I agree with the Intercept’s argument that in this case these leaked materials are of sufficient public importance that they can be disclosed in the context of this sort of story, I am disappointed in a number of aspects of the Intercept’s coverage of this issue. I’ll put to one side the fact that the Intercept, disregarding the usual practice of professional journalists, did not contact the subjects of the story to give them an opportunity to respond prior to publication—which the Intercept claims was because they had a credible fear that the Brazilian government would react by enjoining publication. Even if we give the Intercept the benefit of the doubt on that one, there’s also the fact that the Intercept appears not to have consulted with any experts on Brazilian law or legal/judicial ethics, instead appearing to believe that the reporters’ own judgments regarding what is permissible under Brazilian law are correct and do not require substantiation. So, the stories say over and over, in conclusory fashion, that Moro’s communication with Mr. Dallagnol “is unethical for a judge” and “violates the Judiciary’s Code of Ethics,” that the leaked texts “reveal serious ethical violations,” etc. There is no hedging language (“possibly,” “arguably,” “probably,” etc.), nor are there any quotes from legal experts supporting the claims of unlawful conduct. The Intercept stories don’t even bother to cite or quote the relevant provisions of the law or ethics code that were supposedly violated. With all due respect to the Intercept’s journalists, this seems to me rather arrogant.

And that’s of a piece with the more general editorializing, and occasional gratuitous potshots, scattered throughout the pieces. Just to take one trivial but grating example,when quoting texts in which Mr. Dallagnol discusses praying for a certain result, the Intercept declares that Mr. Dallagnol “often boasts of his religious piety,” an unnecessarily snide way of saying that Mr. Dallagnol often speaks openly about his religious faith. (And while Mr. Dallagnol may have his faults, as do we all, I’ve never known him to be boastful about anything.) That’s but one example among many.

Two final points here before closing:

  • First, I regret to say that this story and its reception has demonstrated that those of us who thought Judge Moro was making a huge mistake—and threatening to undermine the reputation of the Lava Jato operation as a whole—when he accepted the post in Bolsonaro’s cabinet were right in their fears. Both the original Intercept story and virtually all of the subsequent commentary have emphasized that this appointment casts doubt on Moro’s impartiality from the beginning, and might even suggest a quid pro quo. Imagine how different the impact of the Intercept revelations would be if Moro had not only declined the nomination, but had done so with some sort of public statement that it would be inappropriate for him to accept the appointment because of the importance of maintaining the neutrality of Lava Jato. Had that happened, the Intercept leaks would still have made Judge Moro look bad, but his defenders would have found it easier to excuse the possible improprieties as the result of excessive zeal in the anticorruption cause (much as many, to the PT’s chagrin, were willing to forgive Judge Moro’s release of the secret recordings of the Dilma-Lula conversations). In that alternative universe, Judge Moro’s conduct in the Lava Jato cases wouldn’t have looked like it was motivated by ideology or desire for advancement—now it does, whether or not that’s actually the truth.
  • Second, though the focus right now is understandably on the content of the leaks, at some point people need to start worrying about how the Intercept’s source got hold of all that data on Mr. Dallagnol’s cell phone in the first place, and what their motivations are. This is a big-time data theft, a serious felony. Pause for a moment and think about how you’d feel if you know that someone out there had all of the information on your phone, going back at least five years. Now think how you’d feel if the people who had that information had a powerful ideological/political interest in discrediting you. And though the Intercept reporters are honorable journalists who are careful not to disclose private material simply for the sake of embarrassing people, we have no way of knowing what else the original source might do with the data. Is this an attempt to shut down Lava Jato via a veiled blackmail threat, if the initial adverse publicity from the Intercept stories doesn’t suffice? Is the goal specifically to shut down Lava Jato, or is it to further polarize and destabilize Brazilian politics more generally? Whatever the public interest in writing stories based on these leaks, and I agree with the Intercept that there is such an interest, the fact that sophisticated hackers are targeting the personal cell phones of public figures and releasing the information in order to either undermine an anticorruption investigation or destabilize a country is quite scary.

In closing, and circling back to the main focus of the discussion, I’m beginning to wonder whether theere’s much of a scandal here after all. Yes, I’m concerned about what looks like an overly chummy relationship between the lead prosecutor and the presiding judge. And yes, the leaked material disclosed so far (at least in the English versions) contains some troubling material, which might suggest ethical violations. But even the most problematic text exchanges contain considerable ambiguities, such that the case for an ethical violation, while plausible, is not nearly the slam-dunk that the Intercept made it out to be. Indeed, when you strip away the rhetoric, insinuations, and rehash of material already in the public record, it’s not at all clear that the leaked texts reported so far (in English) actually demonstrate serious wrongful conduct.

That view is highly tentative. I know that many readers will likely disagree, and I invite, indeed request, that those of you who think I’m wrong share your critique of my analysis in the comment section below. I’ve learned a lot from the feedback on the earlier post, and I appreciate the substantive, respectful, informative discussion that seems to be underway. It should also go without saying that, as more evidence comes out (and/or is translated into English), I will update my views accordingly. Nobody should rush to judgment in this case.

159 thoughts on “The Incredible Shrinking Scandal? Further Reflections on the Lava Jato Leaks

  1. Professor, the term “apocryphal news” seems to be used in referente to a “notitia criminis”, which is a form of reporting a possible crime.

    In other words, the prosecutor suggested that he would – “anonymously” – report a possible crime, and thus the presiding judge would be able to subpoena the witness that denied knowing anything about the information.

    But, more important than that, is that we do not have a “trial phase” as opposed to a “investigation phase”. After the Ministério Público (akin to a DA’s Office, I suppose) presents the charges, the judge presides over the “instruction phase”, in which both the prosecution and the defense require the production of any evidence they regard necessary.

    The judge either allows or denies each request and, at the end of this phase, he, himself, rules over the case.

    That is why this “ex parte” exchanges are deemed enough to void the whole process, since the impartiality of the judge is considered a fundamental aspect of due process.

    Had the judge come across any information regarding to the case, he was obliged to refer, oficially, the necessary documents to the Ministério Público, duly registered in writing and properly filed. Otherwise, he is, in fact, helping the prosecution to make a case that *he* will rule on, not a jury of the defendant’s peers.

    I hope this brief message helps elucidate the case.

    Best regards.

    • Thanks for this information. I’m still trying to sort through these incredibly complicated legal issues, and I’m not sure how I come out yet—especially because it seems other experts elsewhere in this comment section seem to have a different perspective. I should probably know better than to opine on a controversy on a foreign legal system where I don’t know the law and don’t speak the language, but I’m sufficiently interested in Brazil that I’m going to keep trying to sort through these issues. Your comments, and those that others have posted, are invaluable to me as I wrestle with this. So thank you!

      • Thank you for your reply, Professor. And for this exercise, as it is a priceless opportunity to have a look at the problem through the eyes of a jurist from another judicial system.

        The greatest problem we are seeing in Brazil, regarding to these leaks, is that most of us have a horse in this race. But not all (and I tend to include myself in the exception, as I have been raised with a strong Anti-Worker’s Party education).

        I am curious to know if this type of secret, encrypted communication, would be frown upon in the United States. Around here, most people defending the actions of Moro and Deltan tend to be prosecutors or retired judges. Or, at least, that is my impression by a very unscientific sample of the articles I have been reading.

        And most of the arguments follow the logic of “this is business as usual” or “well, they did catch a whole bunch of corrupt politians”.

        I am just not convinced that we can call it justice without an impartial judge. I am not sold on the “ends justify the means” line of thought.

        In our system, the judge is meant to stay at an equidistant position, between prosecutors and defendants. He will allow or deny requests, but never more than that. It would be right scandalous if these messages had been exchanged between Moro and one of the defendant’s counsel.

        But there is also the greater picture, some context that might skew the interpretation of the facts. For instance, when they are discussing in those messages the release of President Dilma’s recorded phonecall with Mr. Lula. Mr. Moro did not have the legal authority to do it, but it was important for him to gain popular support and maintain his jurisdiction over the case (at the time, the former President was planning on making Mr. Lula a cabinet member, which would guarantee him the right to be prosecuted before the Supreme Court).

        This is akin to a “battle for the minds and souls” of brazilians. Though I lack the experience, I cannot bring myself to agree with the idea that it would be necessary to overstep very clear legal boundries (no, if judges do act this way regularly, which I have never seen, and against which many of our brightest law professors have stood against) to convict a guilty person, whoever he is.

        I cannot, in good conscience, sacrifice everything I believe in regarding to the law, just to exact revenge against a widely known criminal. Giving him all the guarantees of due process is what makes us different. And Mr. Moro forgot that at the moment he started coordenating public statements with the prosecution, at the very least.

        And, if I may, how much in arms would the US be if it was found out that Mr. Mueller was in direct and encrypted contact with a judge presiding over one of his cases, getting tips about witnesses, coordenating public statements, and,at the end, the judge (and not a jury) would convict, say, Mr. Manafort?

        It is a concept that, to my contention, goes beyond legal codes. Would you agree, Professor?

        Once again, thank you for this opportunity!

        • Professor Stephenson and Guilherme:
          “The end does justify the means” in this case. Why? Because Guilherme knows that the innumerable laws, especially the Criminal laws, have been for decades made up to favor the criminals, the corrupt, the law-trespassers. Presidents, governors, Senators, committees chairmen, anybody with a political clout, can and do at their will, remove or change a prosecutor that intends to “investigate”, however lightly, their personal and family interests. They are permitted to “legally” drag for endless years their cases at the courts. Judges at the Supreme court are all Presidential political appointees, and most judges, but not all, will return the favor to the party which placed them in that precious and most coveted position.
          Moro and his staff and many other prosecutors and judges at the Judicial system are to some degree obliged to sometimes slightly “bend the rules” if the criminals and corrupt politicians are to be “punished” by placing them in comfortable cells and few restrictions (especially if it is an ex-president).
          Guilherme seems to be a well-intended purist, but he must not allow his purist views about “the end does not justify the means” in Moro’s case because in doing so he is precisely allowing the laws created by so many self-interest criminal and corrupt congress members to operate with the objective that were created: Total impunity, “catch me if you can” philosophy. “Guarantees of due process” in the Brazilian judicial system are clearly and uncontestently skewed to favor the criminals. And Guilherme is not in favor of criminals and corrupt politicians, I am sure. It is not possible for Guilherme to ask you “what would you think would happen” if this current Moro’s “phone revelations” would have occurred in the USA (Mr. Mueller, etc.,), because our laws in the US are not made to favor criminals or political parties.
          Yes, professor Stephenson, it will definitely take you a long time, probably years, to understand the very complicated Brazilian judicial laws, as you have already noticed. Not even the “local” brazilian lawyers, from the Supreme court to the lowest level, are able to understand them. Everybody has their own interpretation, as per their own self-interests. You are doing great in your evaluation of the facts at hand.

          • I think your best comment was implying no one who doesn’t understand Brazil can understand Brazil. I express that to friends as a frame of reference error. What an American considers corruption is not corruption. Politicians Americans complain about are diamonds compared to the thieving, incompetent, morons that administer Brazil. Until you understand the Calheiros’, Cabrals, Maias, Maluf, Picciani, Garotinhos.., you can not understand Brazil.

            One not familiar with Brazil, must learn to think of Brazil not as a country, but as a criminal organization disguised as a country. Everything designed around stealing and protecting those who steal. A compromised judiciary that almost certainly includes the Supreme Court, (all of whom have questionable credibility as they were appointed by people either impeached or arrested) and probably close to 100% of legislators involved in criminal activity.

            Do I think Moro did anything wrong? No. He is too careful.

            Do I think he has a personal bias against the PT. Of course, what good law abiding citizen who has any concept of fairness would not? The PT was a criminal organization. Argue about Lula to your hearts content, but everyone surrounding him seemed to be stealing from every direction. Maybe Ali Baba was more careful, but no honest man surrounds himself with 40 thieves.

            Brazil is an enormous potential, a country as wealthy as any other, but it must remove almost all of the current legislators. If it is to survive, it needs someone to stand up and set an example of right and wrong and how to behave. How can one tell some poor street kid it isn’t right to steal when that kid turns on the TV at night to hear the previous president (Temer) saying “we need to keep this (stealing) going”

            2022 – President Moro!

      • Hi professor, i’m a student of law from brazil and a intern in a criminal investigation institution and i want to tell you that a “notícia apócrifa” is not very about being anonymus, it’s more about not being trustworthy. if a witness tells about something that he cant explain how he knows, or can’t give something that helps toprove, it’s a “notícia apócrifa”. Like the onw noticie of the intercept. It seems true, worth it to check, but it is not trustworthy itself. this term its very used in this cases.

        • Really? Wow, that gives a very different impression of what Mr. Dallagnol was trying to say here, one that is much more favorable to him (and to Judge Moro). Do other legal experts out there share this interpretation of the phrase “notícia apócrifa.”

      • In the Code of Criminal Procedure of Brazil (see http://www.planalto.gov.br/ccivil_03/decreto-lei/del3689.htm) we have article 156, which reads:

        “Proof of the allegation shall be incumbent upon those who do, but shall be FACULTY TO THE JUDGE OF OFFICE:

        I – order, EVEN BEFORE INITIATED THE CRIMINAL ACTION, the anticipated production of evidence considered urgent and relevant, observing the NEED, ADEQUACY and proportionality of the measure. “(I emphasized)

        We also have, in our Constitution (see http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm) the indications on how the Public Prosecution Service can act, for example, in article 129, which says:

        “The following are institutional functions of the Public Prosecution Service:

        II – to ensure the effective respect of the Public Powers and services of public relevance to the rights guaranteed in this Constitution, PROMOTING THE MEASURES NECESSARY TO THEIR GUARANTEE. “(I emphasized)

        In addition, in the Statute of Advocacy itself, we have:

        Law 8.906 / 94 (Law Statute):

        “Art. 6 There is no hierarchy or subordination between lawyers, magistrates and members of the Public Prosecution Service, all of which must be treated with mutual respect and consideration.

        Art. 7 The rights of the lawyer are:

        VIII – to go directly to the magistrates in the rooms and offices of work, regardless of previously scheduled hours or other condition, observing the order of arrival. ”

        I can come back later to discuss the issue of nullity. I am a lawyer here and in my interpretive analysis, there is nothing wrong with Moro and Deltan.

        • Correct me if I’m wrong, my friend, but isn’t the order to produce certain evidence a “decision”? And don’t all decisions need to be fundamented, as established by article 93, IX of the Constitution?

          That is, don’t they all need to be in the case file?

      • Dear Professor, you have just been very briefly mentioned by Mr. Moro in his Senate hearing, as evidence that his conduct was above water.

      • The conversations between Moro and the prosecutors, if they are authentic, violate the accusatory model and the principle of the natural judge and violate the judge’s requirement of impartiality and can cause the nullity of the proceedings.
        “The judge shall be a suspect, and if he does not do so, he may be refused by either party if he has advised either party,” says section IV of art. 254 of the Code of Criminal Procedure.
        However, the nullity, whether absolute or relative, is only recognized as a cause of annulment of the case if it is proved that the violations caused a concrete loss to the party that is said to be prejudiced.
        “No case shall be declared null and void;
        result in prejudice to the prosecution or to the defense, “says article 563 of the Code of Criminal Procedure.
        “It will not be declared null and void a procedural act that has not influenced the determination of the substantial truth or in the decision of the cause,” says article 566 of the Code of Criminal Procedure.
        There is no nullity without prejudice, says the principle of pas de nullité sans grief.
        In this case, prejudice is not presumed, it must be proved in the world of facts, demonstrated through a relation cause and effect that the conversations, brought to the context, when they took place in acts brought an effective defense damage.
        As long as the conversations reveal a close relationship between the judge and the prosecutors, only the conversations between them are not capable of nullifying the proceedings.

        • I cannot think of a greater damage than 1) preventing a presidential candidate with a majority approval rating from running and winning an election; and 2) allowing a president who won roughly one third of all votes cast to ruin the country’s economy; to condemn millions back to starvation; and to lift laws against slavery, torture in mental hospitals, and feminicide.

    • This is not that complicated. In fact, it’s intuitive, because it got to do with fundamental principles of common sense, therefore fundamental universal law principles. The judge don’t do that. Period. It’s not about contact between judge and prossecutor. That’s ok. By the way, no one contested that. It’s about the content of the messages. I’m sorry, but it’s clear the judge and the prossecutor are buddies in the same side. Worst, the judge is leading the prossecutor. Even worst, it stinks with politics. So, you don’t even have to know the brazilian constitution. Just analize that as if it happened in Lousiville or New York City. What would happend to them, by the way?… Having said that, there is one thing much worse to democracy than corruption: bad justice.

    • The problem comes from the Supreme Court itself and its promiscuous relationship with Lava-Jata Defendants’ lawyers. Many Ministers have been appointed by “Workers’ Party” politicians and, instead of acting as judges, act as true defense lawyers. As you can see, the Supreme Court is the archetype of this allegedly incestuous relationship (notwithstanding, the example comes from above). The STF Ministers are the hermeneutics of the law, and if they interpret it in this way, there is no way to condemn Moro-Dallagnol for (supposedly) to do so.

  2. In the Brazilian criminal justice system, a judge who is randomly selected to rule on warrant applications in the investigative stage remains assigned to the case for the whole of proceedings, including indictment review and adjudication on the merits. While judges must communicate ex parte with prosecutors during the investigative stage, I would deem it essential in the interest of judicial impartiality that (a) such communication be strictly official and (b) judges do not in any way get involved in matters of strategy.
    I couldn’t emphasize the latter enough. The defendant’s right to a fair trial becomes seriously jeopardized once his trier of both fact and law — that’s what Brazilian judges are — acquires a stake in the outcome of the investigation.
    Mr. Moro has unambiguously provided advice to the lead prosecutor in the Lava Jato case and shown a very clear stake in outcomes rather than proceedings. Tipping the lead prosecutor on a potential witness or informant is not too relevant in this respect. But incentivizing him to step up the pace of police raids is. Suggesting that the lead prosecutor invert the order of investigative raids also is. Suggesting that the lead prosecutor issue a press communique to outline and expose contradictory statements by a defendant who took the stand obviously is. Asking the lead prosecutor to provide training to one of his assistant prosecutors because she performs poorly at cross examination unambiguously is. And complaining to the lead prosecutor because of a prosecutorial appeal, on the grounds that it would delay enforcement of the sentence, is as biased as it gets.

    Would love to hear you on those.

    • Thanks for emphasizing these points. Not all of them seem to have been covered in the English-language reporting so far, and some others have been mentioned but without much explanation of the ethical problem (which is not necessarily obvious to an outsider). For what it’s worth, while your points are all well taken, I’m not convinced that all of these incidents are “unambiguously” improper. I’d need to know much more, particularly about the traditional role and responsibilities of a judge in overseeing the investigation process, before I’d feel confident in distinguishing “strategic advice” from oversight/management guidance and admomitions to take care to comply with relevant legal restrictions.

      • Well, I’m not a lawyer, nor judge, but my mother is a judge of first stance nas my stepfather is from the second stance. I showed your questions to them (in portuguese) and they answered me.

        “Once a judge knows about the existence of licit proofs that can help to uncover the truth, he/she can determinate means to obtain it. For example, I (my mother) asked a bank about deposits made on the employee’s bank account”

        Both of them are very clear that what Moro did was not against the law because of brazilian (as you stated earlier in your text about structural problems in brazilian law, and not ethics problems.

        I do hope that I made myself clear. Any questions, professor, you can ask my e-mail and I’ll happily provide it

      • Well, I’m not a lawyer, nor judge, but my mother is a judge of first stance nas my stepfather is from the second stance. I showed your questions to them (in portuguese) and they answered me.

        “Once a judge knows about the existence of licit proofs that can help to uncover the truth, he/she can determinate means to obtain it. For example, I (my mother) asked a bank about deposits made on the employee’s bank account”

        Both of them are very clear that what Moro did was not against the law because of brazilian (as you stated earlier in your text about structural problems in brazilian law, and not ethics problems.

        I do hope that I made myself clear. Any questions, professor, you can ask my e-mail and I’ll happily provide it

        Aldo, there’s the law 12850/2013, that determinates cohoperation between institutions

      • I can tell you for a fact there’s no single, uniform tradition in one direction or another. Most Brazilian criminal court judges distance themselves functionally from both parties, while a few will engage more intensely either with prosecutors or defense attorneys. The legal principle, however, is straightforward: judges are not supposed or allowed to perform investigative or prosecutorial functions, which are by nature executive.
        Distinguishing between strategic advice and oversight-related guidance or admonition is, furthermore, a conceptual exercise — it doesn’t vary too much from one jurisdiction to another. How in any jurisdiction where a judge has no investigative responsibilities (ruling on investigative-stage warrant applications is a different responsibility from conducting investigative acts) would a suggestion by a judge to step up the pace or invert the sequence of police raids not qualify as strategic advice to prosecutors? How would a suggestion by a judge that a certain prosecutor (Ms. Tessler) not be assigned to cross-examinations and be provided training because she performed poorly? What if that same judge had sent similar messages to a defendant — how would that not be considered biased? I don’t purport to delve into Mr. Moro’s political affiliations, let alone suggest they’re behind his judicial conduct as exposed by The Intercept. I just feel confident to construe such conduct as tantamount to providing advice to one of the parties and clearly improper. If you should need the translation of any passages you deem relevant to fully understand the situation, please feel free to reach out.

  3. You are clearly on the wrong side of history. We are talking about a judge who was clearly commanding the whole accusation operation, telling them to improve the skills of one of their staff, when to release certain qualified information, the different steps of the process combined with the accusation. At one point, Dalagnol says he’s not really convinced about the evidence they have against Lula, but that he believes the leaked conversation between Lula and Dilma will help them gain the popularity they need to enact it. In another conversation, they mentioned that they knew someone at the STF (Supreme Court of Justice) which was on their side Fux, who told off Teori Zavascky (the same judge who died a few months later in a very suspicious plane crash) . SO it seems to me that the level of corruption in the judiciary went all the way up to the highest echelons. To make things worse, Moro and Dalagnol combined among themselves that they’d not allow Lula to give an interview because it could be politically positive to political campaign. So we have an anti-corruption operation that is itself corrupt. A judge is imparcial and ‘passive’, listens to the prosecutor and defence giving them an equal opportunity to present their case. DO yo utruly think this happened in this particular instance? It says here you’re a professor of Law at Harvard, I wonder if this is what you teach your students. I am appalled.

    To make it worse your fellow countryman Glenn Greenwald has been the target of hatemail, and defamation stories (just check his twitter account) which have been likely put out by people connected to PSL and or tercalivre, supporters of Bolsonaro. People are trying to denigrate his image, libel, make him look like a terrible person so they can attract the attention not on the message but on the messenger.

    So, yes, here’s to me waiting for you to change your mind accordingly.

      • Case in point. This is what they do. If you disagree with them, and just for a moment, try to change the narrative they wish to control, they’ll come after you, try to diminish you, and bully you. This is what Lava-Jato represents and has started. They were never after corruption, just political opponents. They were never trying to solve anything, just wanted to make everything worse. It is far-right people we’re talking about here anyways. They abused the system to promote themselves. Moro, the ‘supposed’ judge and arbiter of this process, is now MINISTRY OF JUSTICE. No less.

        • I agree that we should all calm down, and lay off the name-calling and impugning the motives of those who disagree with us.

          But perhaps you might pause to take a look on the mirror, reread the language you used in your earlier post (directed at me) as well as the PT rhetoric directed at Lava Jato as soon as Lula became a target. And then reread your opening line from this comment—“If you disagree with them, and … try to change the narrative they wish to control, they’ll come after you, try to diminish you, and bully you.”

          And your accusation that Lava Jato was never about fighting corruption, but just a bunch of far-right people pushing a political agenda, is without evidentiary support. Just because you say so doesn’t make it true. It’s inconsistent with the Lava Jato prosecutions of numerous conservative politicians and business executives. It’s inconsistent with the fact that many people from the left of the political spectrum support (and in some cases work for) Lava Jato. If you want people to take you seriously, and if you’re going to call out other people for “bullying” and trying to “diminish” those who have a different point of view, you should be more cautious about casually throwing around such grave accusations without strong evidence.

          • Well, you seem to be taking my reply a bit too far as well. Where exactly did I say that ‘Lava-Jato’ was just a bunch of far-right people’? And what was wrong with my language? Where exactly was I a bully?

            The evidence that there was a clear bias towards left-wingers and ultimately Lula was circumstantial but present. The famous ppt by Dallagnol for instance, but now it became clear, the conversations that have been released. Dallagnol wasn’t even certain his circumstantial evidence against Lula were going to stick with public opinion. And you cannot hide forever with the fact that they are not translated. Just use Google Translate, it’s not perfect, but you’ll get the gist.
            Finally, Can you give me any example of a right winger who was arrested because of Lava-Jato?

            “It’s inconsistent with the fact that many people from the left of the political spectrum support ” Lava-Jato should be either supported or not by people on the left or on the right, because it shouldn’t be political – it’s a judicial operation.

            And to be honest with you, I don’t need to be taken seriously I am just expressing my views. I don’t understand how someone who is a Professor at Harvard can in anyway defend the collaboration between a judge and the prosecution. Whatever happened to due process? It is a question I ask you? And please show me where was I ‘a bully’ or ‘tried to diminish’ you?

            And finally I am not a member of ‘PT’ just to make it clear. I am someone who believes in democracy and separation of powers. And yes, it is revolting that Lava-Jato has shown to be as corrupt as those who it claims to fight.

          • You ask: “Can you give me any example of a right winger who was arrested because of Lava-Jato?”

            How about Eduardo Cunha and Michel Temer, just to name two?

            I have no desire to continue to argue about who’s being unfair to whom, so I’ll let all of that drop. Let’s stick to substance. As for how I can defend that communication between the prosecutor and the judge in this instance, I tried to address in the body of the post why I think in this case it is a hard question.

    • Well, I don’t know if I’m on the “wrong side of history or not.” I don’t really care about that. I’m just trying to do my best, admittedly as an outsider non-expert, to carefully assess each piece of evidence to decide whether there were improprieties here, and if so how serious they were.

      With respect to the specific evidence you reference, some of these incidents haven’t yet been translated into English, so I can’t comment. With respect to others, such as Mr. Dallagnol’s discussion of the evidence in the Lula case, I don’t have much to add beyond what I said before, and I frankly don’t understand your response, which seems to be just a more rhetorically extreme assertion of the Intercept’s claim that the prosecution knew they had no case against Lula—a claim that seems flatly inconsistent with the actual text message, at least to anyone who knows anything about how competent lawyers operate.

      I’m sorry to hear that you’re “appalled” by my attempt to sort through these issues, as I’d be more than happy to listen carefully to reasoned arguments (preferably without gratuitous insults) explaining why my tentative views are incorrect. Indeed, many other commenters have offered such arguments, and I’m going to think about them carefully and may change my mind (or may not—still processing).

      Finally, it should go without saying that the personal threats directed at the Intercept’s journalists are revolting, I condemn them unequivocally.

      • Hello,

        Again being appalled is not a ‘gratuitous insult’. I am appalled because I don’t understand how you may be trying to defend that a judge working in strict collaboration with the accusation is unethical at the least, illegal at the worst.

        • Well, if you don’t understand, then I probably didn’t do a good enough job explaining in the post why I’ve come to think that this is in fact a hard question. I’ll think about whether there’s a clearer way I can try to explain myself. But suffice it to say I’m not (yet) convinced that the leaks that have been disclosed so far actually do show unethical or illegal collaboration. That’s the Intercept’s interpretation (and apparently yours as well), and you’re entitled to your view. But I don’t think the evidence that has been produced is nearly so unequivocal, for the reasons I tried to explain.

          • You mention Eduardo Cunha, you do know that he was blackmailed into accepting the impeachment of Rousseff so he could keep his place as leader of the House. He was not put in jail thanks to lava jato in fact but from information from a Swiss office. As to Michel Temer that was just for show he isn’t even in jail nor was he condemned. He’s not in jail righ as we speak. New leaks have transpired including one in which Moro clearly picked the prosecutors to sit a Lula’s trial. In a conversation also, your friend Dalagnol mentioned that he was going to propose indicting FHC for crimes he knew had already prescribed just to ‘keep an appearance of impartiality’. Moro thought this was not a good idea. Are you really defending this? Moro used and abused of the information present in this blog in his Senate hearing. Even if you do criticise him here and there in your text, you keep defending that this isn’t a scandal. We also know that Moro lied to the Senate. Lava Jato seems more and more corrupt by the minute.

  4. Hi Sir, Very grateful about your considerations, but what about the similarities with the germany Auschwitz prosecutions and the icontact bettween Judges and attorneys? In that case, a “Task Force”, an informal team, was made to disrupt an old pró-nazi judiciary generation. Just to jail Eichman, Mengele, and so on. It’s justified if the system is vicious or continue with an abuse over the citizens/politicians?

  5. As a Brazilian Lawyer, I 100% agree with your third and fourth conclusions. No need to keep discussing these items, as they show a clear (wrong) bias on the Intercept editorial opinion. In regards to the contact between moro and the prosecutors, however, I see much more problems. The thing is that the context of Moro’s personal agenda (including accepting the position at Bolsonaro’s office, as you have correctly pointed) indicates that he is indeed giving legal advice to the prosecutors, as established in section 254 of our criminal procedure code. I understand the argument that he could have been only presiding the investigation, however, the context indicates that he was biased on the ruling and conducting of the investigation procedure. Moro had a very clear agenda in the sense that Lava Jato should be successful, arresting as many politicians as possible, even if it meant breaking some rules. Maybe this is not enough to completly nullify all the Lava Jato proceedings that Moro participated (and I agree that there is enough evidence to sustain the prision of many politicinas, namely, Lula himself), but there is more than enough evidence to sustain that Moro is not unbiased as he should have been.

    • Back in 2015, Bolsonaro wasn’t even considering running for president. Until mid 2018’s nobody really believed he had any chance to win. The hyphothesis of this having anything to do with a long-term hidden personal agenda to get in the government can’t be sustained.

      • Yes, the timeline is important here. I wish more people were focusing on the sequence of events, which, while not dispositive, provides important context for evaluating the competing claims.

    • I agree that the first couple of issues (relating to possible judicial/prosecutorial misconduct) are much harder, and the leaked texts much more problematic, than the claims that the texts reveal that the charges against Lula were baseless or motivated by anti-PT partisanship. Your conclusions on the judicial ethics point are plausible, and may well be right, but I’m not yet fully convinced, because I think there may be a more benign explanation, consistent with standard practice in the Brazilian justice system (which I’m still struggling to understand). I also need to know more about the context of the exchanges. So, again, while I’m open to the idea that your evaluation is correct, I’m still not sure, and still leaning (very slightly) in the other direction.

  6. When you read the next reports, you will probably change your opinion again. It’s not just a regular work between jugde and prosecutors. It’s an ilegal collaboration that changed Brazilian 2018 election.

  7. i agree in gender,number and grade with your clear and centrate explanation about this assault on brazilian security

  8. Our criminal law goes under a principle called “real truth principle”, opposed to a civil law principle, called, “principle of party disposition”. That means, the judge has de task of digging into de facts, as much as needed, to obtain de “real truth” about the situation under trial. And, in Brazil, every public server, no matter if a Judge or a simple civil worker, have de obligation, under the law, to report to the prosecutor’s office any fact that can characterize a crime.

    • Dear Shap, that is a very peculiar take. Could you point me in the direction in which a judge can refer to the MP a secret indication of a potential witness, without any semblance of formality, through encrypted messages?

      • The important point is the witness cannot ramain secretive. The prosecutors will decide to bring it to the process, under the contraditory sistem, or not use it at all! It is so much less complicated than you imply it to be!! Are you a law operator? Because I am and I, frankly, don’t see things the ugly way people are pointing.

        • I am a lawyer, actually. Been practicing in São Paulo for the last six years, in fact.

          And by far the anonymity of the witness is not the crux of the matter, at all.

          You do realize that this information was not in the case file, correct? As far as I am concerned, se não está nos autos, não existe no mundo.

          Of course Moro would have to sign off with the subpoenaing of said witness. Would he evaluate without bias the possible request or even the value of such testimony if he, himself, referred the information that he got from a “source” without any formality? No record of getting the information or sending it to the MPF?

          “Oh, look at this new witness you’ve found based on a totally legit anonymous notitia criminis.”

          Come on, Doc! You can’t be serious. If it was a message sent to the defense, Moro himself would order the arrest.

          To make it seem like it was a regular thing, without any bias, total day to day business that happen all the time between judges and lawyers, is not only a disservice to our country, but an offense to our profession.

          I never got the personal cell number from a judge. Nor have I messaged one regarding to a case I have before him. Much less have I got any tip from one.

          People are making it look as if Deltan was asking for an opinion on something he was going to ask in a future petition, regarding an aspect of the law. It was not, as bad as that could be in itself. It is much worse.

          Was jurisdiction not sipppsed to be inert?

          Regardless, I apologize if I might seem excited. But due process is a matter that is very dear to me, and I intend on pursuing a master’s in this area (more specifically regarding precedents and the refusal by courts to apply them when warranted without applying the necessary “distinguishing” technique).

          In any case, best regards.

          • Olá guilherme, gostei muito das suas falas, acho que vc tem bastante conteúdo aí, procurei seu nome no site do TJ e seu escritório no google, vc usa outro nome como advogado ou não atua diretamente nas causas? Continue o bom trabalho de esclarecimento aos incautos 😉

      • I can, if you let me.This “claim” against judge Moro has no basis in the Brazilian constitution, nor in the Brazilian criminal code nor in any Brazilian sparse law to prohibit contact between judge and MP. You have to look at art 240 and art 252, for better information. Furthermore, the article 40 of the Brazilian Criminal Code (which is from 1940) requires the judge to communicate with the MP (79 years ago there was no internet and much less apps – So “to communicate” is understood in the Brazilian juridical sphere as “talk by any means, including internet, apps or phone”.

        Modern Brazilian law recognizes the “electronic” contact as a valid proceeding. Members of the Brazilian public institutions whose objective is to discover the truth in favor of justice has the obligation to communicate with each other! It is an official duty, especially in view of a legal principle called “secrecy of the inquiry and investigation”. There is also the principle of efficiency to be considered ! Judges have to discover the truth (= make up their minds) with efficiency. Communication between judges and the MP does not take the independence of the judges and any state officer, whether prosecutor, prosecutor, judge, exists to defend the interests of the Brazilian state and the Brazilian nation. The communication between judges and the MP is part of the definition of their position. It is the duty of the judge and the prosecutor to unite efforts to discover the truth. MP and judges are collegues in Brazil by law. The two positions receive the salary of the judiciary power of the state or the federal government, depending on whether they work for the state or federal government. The MP has the obligation to communicate with the judge.

    • I wrote the post above before I saw this latest English-language story from the Intercept. I just read it (quickly), and will consider it carefully and might post again on whether/how it alters my views. But right now I’m about to board a 16 hour flight, so it may be a while before I have any comment on the most recent (English-language) revelations.

  9. Dear professor,

    Have you read the latest leak? Moro mocked Lula’s defense team. He said, and I quote, “a defesa já fez o showzinho dela” (the defense has already made its little show). If I were on trial and the judge and the prosecutor were mocking me from behind the curtains, I wouldn’t say that I was having a fair trail. Would you, sir?

  10. Uma reflexão muito interessante e consistente sobre um caso que põe em xeque a maior operação de combate à corrupção que se tem história no mundo.
    Seus textos, professor Matthew Stephenson, trazem um facho de luz sobre uma situação rumorosa que tem causado muitas inquietações e incertezas na sociedade brasileira.
    Continue contribuindo com suas lúcidas reflexões

  11. I’m not sure if there was a problem with my last comment, Professor, but there is a point that I have not seen brought up in the comment section of the previous blog post, regarding the “apocryphal news” and the nature of the “ex parte” in this particular case.

    To keep it as brief as possible, the “apocryphal news” seems to be used in reference to a “notitia criminis”, basically the anonymous reporting of a crime. It has place when someone holds knowledge of a crime and reports it to the competent authorities.

    Herein lies one of the points I was meaning to bring up: the prosecutor, in this instance, is not asking for a subpoena “per se”, but discussing a strategic legal maneuver to validate an evidence that was disclosed to him by the presiding judge, without any official record of such a thing ever happening. As if someone else reported said crime and they were acting upon it by pure chance.

    Altough the use of “ex parte” audiences is not unnusual in our system, they tend to happen in chambers, usually with some sort of clerk present. In the particular case of Mr. Moro, these “ex parte” meetings with lawyers were not only rare (by all accounts), but were only allowed if previously filled with his staff in writing, and then formally scheduled. We call those “despacho”, usually meant to clarify the contents of a petition or brief that would be annexed to the case file.

    As hard as many might try to argue, that practice is not the same as having a judge giving a party any sort of tip or advice through encrypted messages. Honestly, I have yet to hear any story of the sort.

    Another point to be mindful of, is the fact that the judge who presides over this discovery phase of the criminal procedure, is the same who will rule over the defendant’s destiny. Mr. Lula was not judged by a “jury of his peers”, but by a magistrate who would discuss strategies or evidence that was not brought up in the case file with the leading prosecutor.

    That contact should (and most likely will) void the sentence for a (mostly) clear breach of due process, as there is no longer a semblance of impartiality by the presiding judge who oversaw the discovery phase.

    In any case, I am eager to find out if such interactions would be considered improper or even grounds to void the guilty ruling in the US system.

    Best regards!

  12. Professor, I am an attorney in São Paulo. Having practiced law in Brazil and in the US, where I studied at the Univerity of Michigan Law School, class of 1980, it is necessary to point out that Brazilian criminal procedure laws and constitutional law do not have the same “ex parte” concept provided for in the US system. Furthermore, the prosecutor in Brazil has a dual function, much of it is more as a guardian of the law than a party in itself as common in the US. The telegram conversation obtained by Mr. Greenwald under Brazilian law are firstly proof of a crime committed by those who hackered Brazilian authorities, including Mr. Greenwald himself, and secondly need to be audited by criminal legal experts to verify its authenticity. Until then such conversation have no legal effect whatsoever, prove no wrongdoing, and cannot be accepted in court.

    • Ah, that’s interesting. So suppose that Moro and the prosecutors refuse to either confirm or deny that the texts are genuine, and suppose that we all agree that they were obtained illegally. Does that mean that they cannot be used to impugn the verdicts? Suppose (contrary to my interpretation of the actual texts leaked so far) that we had texts that, if genuine, would show clear judicial misconduct that unambiguously deprived a defendant (Lula or anyone else) of a fair trial. Would there be no way to use those leaks as evidence, at least to support a subpoena seeking the original texts?

      Also, another question: What is Brazilian law on journalists protecting their sources? Is there a legal bar to the Brazilian authorities subpoenaing the Intercept to try to force them to disclose information about their source, since the latter appears to have engaged in a serious felony by hacking the phones? Are there any Brazilian precedents on this point?

      • Excellent points. I am not a lawyer but what I saw on the news indicates that if some proof is illegal, it can’t be used on court. But it can start an investigation, which will seek legal proofs of the wrongdoings. As an example, the recorded phone call between Lula (his phone was tapped legally but the recording was after the end time for recordings) and Dilma. It implied that Dilma was probably commiting a crime, but further investigations could not find legal proofs and the case was dismissed.
        The same is valid. If an investigation does not find new evidences (it could be even the cell phones of the involved) then the case is closed.
        My opinion is that 3 instances of the brazilian justice condemned mr Lula, not just the first. And all of them agreed with the proofs.

      • Dear prof. thank you for your time on analysing these news/leaks. I’ll try to answer some of your questions:

        Does that mean that they cannot be used to impugn the verdicts?
        Yes, “illegally obtained” proofs cannot be used in court in Brazil.(Federal constitution article 5:
        LVI: Proofs obtained by illegal means may not be used in the process
        (free translation, source here – federal senate site: http://www.senado.leg.br/atividade/const/con1988/con1988_12.07.2016/art_5_.asp)

        What is Brazilian law on journalists protecting their sources?
        All sources are protected by law. (same Federal constitution article 5, part XIV: it’s secured all access to information and the secrecy of the source shall be kept, when needed for the work – also free translation, source same as above). However, just the news/report they made cannot be used as proof by itself, since they weren’t ‘ascertained’/’proven’ by any legal organ.

        Regards, keep us updated on your opinions.

  13. The actual scandal is the concerted attempt to destroy the fight against corruption in Brazil. Not by accident, the hackers targeted only those professionals involved in fighting corruption. As a comparison, Brazil’s Supreme Court Chief Justice was the main PT lawyer for several years. He was closely involved with the largest criminal organization of the country. His phone was not hacked. The Intercept did not investigate his connections or the deep involvement of other justices with politicians tainted by corruption. This kind of bias supports the idea that Glenn Greenwald is functioning as a political operative rather than a journalist.

    I understand that from an institutional and ethical perspective each case has be considered separately. The problem here, respectfully, is that while trying to be thoughtful and fair at the game, you failed at the meta-game.

    Of note, I don’t believe that Moro made a mistake by accepting his position at Bolsonaro’s administration. The Brazilian people is aware that the fight to corruption needs to be taken to Brasilia and support his decision. That’s one of the reasons behind Bolsonaro’s overwhelming victory. Nonetheless, Bolsonaro and his family made several embarrassing political mistakes since the beginning of the administration. (Let’s be honest, Bolsonaro is no Churchill.)

    Brazil is no for beginners. Paradoxically, the attack against the Car Wash operation will shore his popular support. I will not be surprised if Greenwald finds himself at one of Curitiba’s jail cells. Apart the echo chamber of the left, the Brazilian people know who the criminals actually are. The North remembers.

    • I’m not sure I would agree with your blanket condemnation of Mr. Greenwald and the other Intercept journalists, much as there are certain things that he’s done in the past, and that the Intercept has done in its reporting on this case, that make me uncomfortable.

      I do think that it’s important to think about who might be behind this cyberattack on the Lava Jato prosecutors and Moro. It’s not, so far as I can tell, an internal leak, but an external attack, likely a sophisticated one backed by either a foreign government or a very well-financed private organization (possibly an organized crime group)–or so it would seem to me, based on my limited understanding of the kind of hacking involved. Who would have both the interest and the capacity to engage in such a cyberattack? That seems like an important question to start asking, whatever we conclude from the leaks about the integrity of the Lava Jato prosecutions.

  14. Prof. Stephenson- I admire your apparent willingness to go to great lengths to justify your positions. You have real skill for this. In my firm we have instituted policy of compulsory contestability, which I have found is very good at separating wheat from the chaff. In the interests of objectivity, and high scholarly attributes, I would be most pleased if you would indulge us in attempting honestly to refute the arguments you have made on this topic. I suggest it would be enlightening to us and, perhaps more importantly, to yourself. Respectfully, FP

    • I’ve done this in my own head, but haven’t written in up. Perhaps I should—and perhaps I will. But for now it’s hard enough articulating even one side of the argument coherently (and several of the other commenters think I’ve failed at that!).

      • It’s good to see you acknowledge the limitations of your arguments generally (as one-sided) — at the same time, I would expect a rigorous law prof like yourself to reach for greater objectivity by publicly exposing the flaws in your one-sided arguments. You don’t have a dog in this hunt, do you? Or are there deeper, ideological bases lurking behind your arguments that you would be embarrassed to bring into the sunlight? I trust not, but we all have unarticulated, perhaps unconscious, biases that, in my view, should routinely be exposed, challenged, and re-assessed. In matters like these, imbued with political economy and ideology, we should challenge ourselves to act justly, not how we believe it fits our own political, ideological preferences. If we opt for the latter, I predict the otherwise noble norm against corrupt conduct by public officials will be permanently instrumentalised to serve our tribe’s preferred ends, and we will all be the worst for it. Best, FP

        • One couldn’t honestly say, based in your first intervention, that you, FP, had a dog in this hunt, but considering the very different tone of your second reply, I would say that you should take more seriously your firm’s policy of compulsory contestability, because your second reply’s gratuitously suspicious and even angry tone cannot hide you’ve probably already reached a conclusion that you haven’t submitted and aren’t willing to submit to that same policy.

          • Rodrigo- Thanks for your comment. You have inferred much from my quick, under-developed posts. Suspicious? Yes, I am very suspicious of leaked conversations between judges and prosecutors, and also wary of admittedly one-sided arguments from an eminent law professor. This, I submit, is natural and desirable. Angry? Not sure at all how you infer anger from my post. Perhaps this is projection? Nonetheless, my concern about this matter, and about corruption analysis and rhetoric in the US more generally, is that I see a growing and dangerous politicization of analysis of this conduct. This trend, in my view, threatens to balkanize analysts along perceived political lines. As for my firm’s policy of internal contestability, we make many of our strategic decisions by committee and we have found enforced contestability to be very useful in improving the soundness of advice we receive and deliver. I must say, I am bewildered that something as basic as arguing well the other side is too hard or perhaps undesirable. For me, failure to argue the other side often betrays a certain intellectual weakness, or worse, undeclared bias. Lastly, I have reached no considered conclusions on the Lava Jato matter, other than to view Brazil as a state mired in major corruption and poverty, with a democracy that is deeply threatened, and a proud people who demand and deserve better.

          • FP,

            I’m sorry, but you can’t write posts and, after being criticized for what you’ve written in them, understate them as “quick, underdeveloped” ones. Quick, underveloped as they may be, they were representative of what you considered relevant to say about the matter until that moment, and they were all I then had to refer to and from which to infer something, whatever it is, as wrong as it may prove to be, afterwards.

            But what I think is most problematic in what you’ve written is that you are using Professor Stephenson’s obvious intellectual honesty as evidence against him, as if he had produced it inadvertently.

            Are his arguments one-sided, admittedly one-sided? Yes, but in the specific sense that, although he has refuted his own arguments in his head, he hasn’t written it up, as he himself has clarified. This procedure may not be in accordance with your firm’s praiseworthy policy of compulsory contestability, but it is far from being unusual or evidence of one-sidedness in the worse sense of there being “deeper, ideological bases lurking behind Professor Stephenson’s arguments that he would be embarassed to bring into the sunlight”. By the way, do you really believe there isn’t any hint of anger in this kind of questioning? I don’t.

            And there is no projection whatsoever, because, if I were moved by anger, I would be furious at Professor Stephenson, because I admittedly hate the Workers’ Parry so much that Professor’s overcautious tone (“I have a friendly professional acquaintance with Mr. Dallagnol”, “I don’t read Portuguese”, “I’m not an expert on Brazilian law”, “I’m still not sure, and still leaning (VERY SLIGHTLY) in the other direction”) get on my nervers quite a lot, but I can not fail to recognize Professor Stephenson’s obvious good-faith.

            I agree with you that the trend to which you referred (growing and dangerous politicization of analysis of this condut threatening to balkanize analysts along perceived political lines) is really preoccupying. But I think your general assessment of what Professor Stephenson has said doesn’t express this specific concern of yours very well.

            You seem to hold him against the high standards of your firm’s specific policy of enforced contestability, although even in the academic world the consideration of opposing arguments may not be made the way your firm’s policy would consider adequate: maybe a long, almost insufferable sequence of “on-one-hand-this-but-on-the-other-hand-that”?.

            What really matters regarding accountability is to present all the relevant premises on which your conclusions are based, in a way that anyone can evaluate for yourself if the conclusions are really supported by the relevant premises. And Professor Stephenson did that, in a very disappointing way for people like me who would prefer him to reach much less ambiguous, overcautious conclusions.

            So, I’m sorry again, but I don’t think your stated concern (analysts’ balkanization along perceived political lines due to growing and dangerous politicization of analysis of this conduct) has matched your actual arguing, not at least so far.

          • Stephenson, Marcelo, Paulo, Rodrigo, Guilherme:
            It is not fair that Mr. Stephenson keeps receiving the English-translated articles from Intercept. It is very easily seen this magazine selects many statements made by Mr. Moro and its “Journalist” critics and bolds them to make a higher impact in the readers’ minds. This “Selective Journalism” is at its best in this magazine in the same style of its British populist counterparts. No doubt it is also being paid by Brazilian parties with high special interests in the political arena. Hence the excellent commentaries made by Marcelo and Paulo pinpoint exactly what nobody, not even Mr. Stephenson, have done regarding the deeply occult political and economic motives and objectives behind Mr. Glenn Greenwald and the Intercept’s illegal phone-hacking revelations. No doubt this “Journalist” is politically motivated, for none of the +1,000 corrupt congressmen were hacked, only the federal prosecutors that dared to investigate them and their buddies. You gentlemen (Marcelo & Paulo) are 200% correct in your statements, and I hope that Mr. Stephenson takes proper notice of them in his evaluation.
            As for Mr. Guilherme, I hope that thru his proposed Master’s degree study program he becomes more open-minded and realistic about the Brazilian Justice system. Do not try to be more Pope-like than the Pope itself, if you get my jest.

            FP has stated that Brazil is marred in major political corruption and poverty, and that its proud people deserve better. Beautiful statement. Yet he obviously attacks and criticizes the only judge and his many judicial followers who have dared, against all odds, to put behind bars the same white-collared corrupt politicians who have, for many, many years, stolen countless opportunities for education and health from the same proud people that you hypocritically say “deserve better”. Who are you kidding, FP? Obviously only yourself. What is “your dog in this fight” ? Certainly not Justice! Mr. Rodrigo has echoed my belief that your firm’s “Compulsory Contestability” philosophy is nothing but rhetoric and a “game of words” that tries to hide a strong, very deep anti-USA stance. And yes, you are attempting to use Stephenson’s humble intellectual honesty and good faith for your own special purposes.
            Has your firm’s “Compulsory Contestability” (You FP) ever been used to question the PT’s economic/political policies during its 14 years in power? Why not? You also say that you have reached NO conclusion on the Lava Jato matter. Why not?? Do the millions and millions of USD$ forced to be returned to the Brazilian Treasury by the politicians and construction companies that were caught by Moro and the judicial system of Lava Jato NOT convince you yet? Did the Lava Jato investigations greatly diminished your Firm’s income derived from your political customers? You and your firm’s “Compulsory Contestability” policy is just another word for Hypocrisy.

  15. Dear Prof. Stephenson,

    Thanks for the very thoughtful, comprehensive post. Although I am Brazilian I have not found similarly thorough evaluations of the situation in Portuguese.

    On the first of your final points, I would like to hypothesize an explanation which I think is the most likely for Judge Moro’s acceptance of the nomination that I did not see explored in your writing in this blog entry, nor in the previous one for which you provided a link: to have permanent impact and avoid the fate of Operation Clean Hands in Italy.

    In accepting, Judge Moro saw an opportunity to solidify and institutionalize changes in the Brazilian legal system necessary to create a significant deterrence effect against corruption cases, which today is lacking. Operation Lava Jato so far has seen relative success, but it is currently a single example among a sea of corruption cases which did not result in any punishment.

    When accepting the invitation to become minister, I believe that Judge Moro had full awareness of an object of his earlier academic studies, Operation Clean Hands in Italy, which, for lack of exactly the kind of institutional support that Judge Moro would like to see adopted in Brazil, petered out without strong consequences for corrupt actors and therefore allowed perpetuation of corruption.

    So, Judge Moro had two options: 1) remain a judge, keep his credibility intact as you argued, but risk seeing “the system” take over and destroy Lava Jato from the top, just as in the well known Italian case; 2) take on the risk of accepting his appointment, accept the consequence of facing reputation-damaging quid pro quo accusations with impact on the credibility of Lava-Jato operation itself, but with the potential upside of avoiding the Italian fate by implementing lasting institutional improvements. That he chose (2), even knowing that his odds may not have been great at succeeding in addressing institutional frailty, and at risk of his own reputation, in my view shows more courage and determination than greed, and ultimately is, in my hypothesis about Judge Moro’s thinking, better for the long term success of the Lava Jato operation and corruption fighting in general than the most likely outcomes of option (1).

    • Dear Alexandre, that is a very interesting hypothesis.

      But, if I may expand on the idea, would you say that the desire to “fight corruption” as a greater goal was somewhat implied in the messages, actions or public statements by then-judge Moro?

      I ask, because in that case, wouldn’t it be a additional element to be considered when pondering his impartiality and possible violation of art. 254, CPP?

      • Judge Moro received an information of a possible crime . His obligation under Brazilian criminal law is to passed such to the prosecutors’ office which he did. One may argue, though a very weak argument, that Jude Moro should not have used the telegram app. The question then is: should an entire legal proceeding be nullify because the form of communication was via an app and not a formal notice? I do not think so. Besides, such communication could have also be made orally.

        • Respectfully, that is not how it works. He was suggesting a possible witness he came to know of by a “source”. He did not register and communicate a possible crime. Deltan was going to do so by offering a apocryphal notitia criminis.

          He was giving information that he would rule on later on, which he cannot do, by any standard.

          • Guilherme you are working on the hypotesis that those messages actually have any legal value.

            From what I got, those messages are impossible to audict. It is literally impossible to tell if they are real or not.

            The intercept fabricated this “scandal”, with OBVIOUS goals and now they are unable to turn their news into actual proof for anything.

            As it stands, I don’t think those messages can even be used to take any sort of action against any one on the car war operation, be it Moro be it Deltran, nor to nullify any acts in any process related to the car wash operation because it does not even qualify as proof, they are just rumors, therefore the principle “In dubio pro reo” cannot be aplied.

            If a proof cannot be audicted / veryfied, how can it be called a proof?

            If we starting accepting rumors as facts, then we can go and arrest Jean Willys, Greenwald, and hes husband based solely on the rumors released yesterday linking them to some bitcoin payment to that russian hacker, which was suposedly him ordering the hack, and Jean Willys selling the congressman position to greenwald’s husband. All very serious accusations that suffers from the same problem as the intercept’s “leaks”, until they are proven, they are just rumors and lack any legal value.

            This entire discussion is POINTLESS if Greenwald and hes party are unable to prove that what they are leaking is real, and that requirer an audict that might be impossible.

            Here is an article from Globo’s G1 on the subject to add some light on the subject. https://g1.globo.com/economia/tecnologia/noticia/2019/06/16/pericia-nos-dialogos-do-telegram-pode-ser-tecnicamente-impossivel-diz-professor.ghtml

          • But, Mr. Luiz, those involved did not deny the content of the messages. On the contrary, Moro tried to justify his actions saying that it was a simple “descuido”, and that his actions were taken in accordance to article 40 of the CPP.

            That, in my most humble opinion, validates the evidence. And as illegal evidence can be used in benefit of the defendant if he did not commit the crime related to obtaining them, and nobody denied those conversations took place, they are admissible.

            Also, let’s not forget that not all proof can be audited. Heck, isn’t one of the points of most contention in this case the lack of solid, direct proof of wrongdoing by some of the defendants?

            Not only that, but you do remember that the Operation wiretapped the defense attorney’s law firm, right? And that Lula’s conversation with Dilma was captured after the wiretap should have been lifted, no?

            The messages only confirm what the actions taken during the case suggest. And as neither Moro, nor Deltan, denied their content, I think this is a valid point to argue, specially considering the terrifying implications of it being made the norm.

            Just because the judge presiding over the case and the prosecutor hid their conversations, it should not mean they can collude against any defendant. That is scandalous.

        • It wasn’t just that that he did. He gave instructions on the staff members, he said he would organize the files differently to fit with the methodology of the operation. Dalagnol told him that there were people at the STF that were on his side. They discussed whether or not xx or yy should be allowed to give an interview because it could boost the chances of the PT party to win.

        • Such is the case, that he was presented as a witness for a case, to be talked to directly.

          It was not started as a notitia criminis, thus, there was no interest (that you can infer from these messages) in verifying a possible crime that could have nothing to do with Petrobras, and thus, with Lava Jato.

    • Hello,

      everybody knows about Lula’s wrongdoing, yes, he got illegalt a small ranch and a middle class beach apartment, yes, illegal, jailed, done, that’s it. Just hope that many other high ranked government officials and politicians that steals hugely more be prosecuted under same power of will. Hope this means a new age here. Hope.

    • This is all correct. This is what I called the meta-game in my original comment.

      Judge Moro proved himself to be quite proficient at the meta-game played by political-criminal organizations. Political sensitivity and coordination with the task force regarding public sentiment was essential to counter a system commanded by a president, infiltrated at congress, and supported by members of the Supreme Court. It could not have been otherwise.

      These leaks had an illegal origin and therefore cannot be considered proof of anything. They were not forensically validated. They were also heavily redacted to convey the idea of impropriety. At any rate, Mr. Lula was given ample opportunity of defense. He was adjudicated guilty at several levels. This we all know (although some pretend not to). Billions of reais were already repatriated.

      It was interesting to see Mr. Lula’s defense reduced to chicanery, legal maneuvers and gathering support at the Supreme Court. His attempts to influence public opinion beyond his followers (and some of the Supreme Court justices) failed. This is a man who was profoundly influential to the Brazilian society. Nonetheless, he was out-meta-gamed by Moro.

      There was an abundance of proof. At some point the task force must have been overwhelmingly aware of this. Certain things cannot be unseen. Mr. Moro run a tight ship regarding each step of the legal process. However, my point here is that Judge Moro managed to restrict ex-president Lula domain of actions to the _game_. This is a remarkable political meta-game achievement

      In conclusion, soon after realizing the magnitude of these crimes Judge Moro became aware that the challenge was in the meta-game. From this perspective, it was natural and even expected that he would have taken a position as minister of justice.

  16. With all due respect, but Glenn is the one who seems to be biased and politically motivated, amongst the attempted chaos.

  17. Dear Matthew, thanks for you new post and for remaining interested in this Brazil’s scandal. It is interesting to read your arguments. They are consistent and coherent. My perception is that you are far from being convinced that this was a real scandal, at least as big as it has been extensively reported in most media news around the world (Le Monde, Financial Times, The Washington Post, The Guardian, The Economist just to name some of them). Indeed, you are acting as a careful judge that want to be fully convinced by clear and unquestionable evidences that “something has really happened”. I appreciated your posture. Surely, very professional. However, being and experienced Brazilian citizen, it is quite easy to perceive that the scandal is big. Very big. There are several evidences in the brief pieces of information already released. Just think in the judge sending a private message to the prosecutor at 03 AM (??!!) as “natural” part of professional and ethical communication between judge and prosecutors. What is the sense on this in any country of the world? (https://theintercept.com/2019/06/12/chat-sergio-moro-deltan-dallagnol-lavajato/ ) just use CTRL-F to locate this msg send by Moro. There are several other pieces of very serious and strong interactions. But let’s just wait what The Intercept has yet to tell everybody.
    Finally, you may find interesting to know that “O Antagonista”, a far-rigth wing website, had twitter your post. They included a nice picture of you, as a Harvard Professor. Claudio Gil

  18. So far, this is the only publication that is not directly from TRAFFICKING DEFENDING ITS TRAFFIC MARKET. Well remembered professor, the Brazilian Social Control had already made these reservations.
    Lula is a confessed defendant, produced public evidence against him and some others were taken by the MPF, he was convicted of the crime, which would happen regardless of the Moro \ MPF TRAFFIC NETWORK.
    It is undeniable that MORO\MPF TRAFFIC NETWORK caused Morals damages because the improbity was characterized, not necessary 1\3 of that theater, except to CHANGE OUR RULE OF LAW.
    It proves that the Traffic Network that exists in Brazil does not deal with Law, they use credibility of public offices to manipulate public opinion. NOR JUDGE AND PROSECUTOR HAVE COMPETENCE TO RELEASE NOTE TO THE PRESS.
    NOTE TO THE PRESS, OR MEDIA TOOLS are the competence of lyrics professionals as journalists, communication advisers, etc. Not published anything technical, RIGHT!
    What strikes the eyes is that there was only violation and usurpation of skills, as noted, in Brazil the criminal prosecution is different. MORO AND MPF ARE NOT DELEGATES OF POLICE, DO NOT INVESTIGATE!
    Investigative competence MPF was given by the STF! They have used TRAFFIC NETWORK TO OBSTRUCT AND REPLACE POLICE INQUIRY, only exchange evidence by speech, combination, Press Releases.
    Serves to Lula civilly because Lula is confessed defendant, suffered Law Fare with the media conduction unnecessary. BUT, PUBLICATIONS PROVE THE TRAFFIC NETWORK EXISTING IN BRAZIL USED AGAINST ALL, not only in criminal action.
    It has been proved, Traffic Networks elect and excludes from the appraisal Law offense justice. They are specialized militias to legitimize their own reasons for DISQUALIFYING AND PERSECUTING PEOPLE.

  19. Nice text, very rational. It should have a portuguese version. Lots of people in Brazil thinking with their guts.

  20. The analysis is very precise over the leak. The main defense claim is that Moro has “advised” prosecutors along the lawsuit.
    In fact, the Brazilian Criminal Code of Procedures states that a judge may be refused by a litigant if he has advised another litigant (article 254 – http://www.planalto.gov.br/ccivil_03/decreto-lei/del3689compilado.htm).
    The Code lists a number of situations of “jugde’s suspicion”, as it calls. The Brazilian Supreme Court has already decided that a judge’s suspicion implies absolute invalidity of a lawsuit (STF, habeas corpus nº 77.930).
    Nevertheless, both the Brazilian Supreme Court (STF) and the Brazilian Superior Court of Justice (STJ) applies on criminal suits the “pas de nullité sans grief” doctrine (no nullity without a prejudice).
    Therefore, defense lawyers might prove that Moro’s decision is a “legal oxymoron”. The decision has been confirmed by the Regional Federal Court for the 4th Region and lots of appeals have been already denied by the STF and the STJ.
    Furthermore, dialogues between Prosecutors and Judges are not uncommon on Criminal Courts. Judges and prosecutors shall work independently, but on criminal lawsuits Judges and Prosecutor interests are much similar.
    Judges invest a lot of time on a single suit. The judge who decides about Police investigation measures also make a preliminar analysis of the Prosecutor’s accusations, conduct hearings and decide whether to convict or not.
    Moro apparently just wanted the lawsuit to flow properly. There was, by reading the conviction decision, proof above a reasonable doubt about Lula (and other Lava Jato defendants) criminal responsibility.
    Therefore, I do agree that there was no message demonstrating a serious misbehavior of judges and prosecutors in the Lava Jato task force. The leak is not such a “big case”. The invasion itself is much more serious.

    • Thanks for your careful explanation of the Brazilian law and practice on this point. I’m still not in a position to make my own firm conclusion on this issue, but your comments are very helpful, as are those who have made substantive, legally detailed arguments for the opposite conclusion elsewhere in the comments posted here. The discussion is very helpful, and I urge everyone else here to offer similarly careful, substantive arguments.

    • Please provide other examples of judge misconduct whereby the judge asks the prosecutors to time the arrests and everything else accordingly to his own agenda. Please provide other examples of judges providing opinion on members of staff of the prosecutors claiming ‘that they are not very good in public’ and should be trained otherwise. Please provide other examples of judges being informed by prosecutors of privileged information about the Supreme Court of Justice (STF) in which he claims that they have on of the judges ‘on their side’. Because if you do have such information, then the system is a lot more rotten than we thought!

  21. In short… the continuation of Lava Jato is crucial for a more transparent democracy in Brazil. Its effects brought hope for justice and political fair play. Lava Jato became bigger than the leading prosecutor, Deltan Dallagnol, and the presiding judge at the time, Sergio Moro. The crude reality is that gigantic thefts and embezzlement of public funds, crimes and all kind of distortions have been the foundation of political practices since the end of the militar dictatorship. It’s a shame! All former presidents of the nation are indicted, arrested or will be sooner or later, hopefully. The last decades have been under the spell of left wingers, socialists and communist alike, and they literally destroyed the economy, the education, ruined the Health system and, most of all, our moral values, ethics, and cultural traditions. Everything is the “name of helping the poorest”. Watch the numbers, see where we stand!
    The fight to discredit Lava Jato is just because most of them are in the verge of being uncovered. Fear surfaces only in guilty people. These are the real nemesis.
    USA does not have the shameful Brazilian way to protect outlaws through “foro privilegiado”, a sort of privilege (amongst several other absurdities) given ONLY to politicians to be not prosecuted during their political terms, unless by the Supreme Court, which has also proved to the population to be at the wrong side of the country’s hope for justice. Most likely, they will judge in favor of criminals. We have seen it! Most of them nominated by the mere thieves Lula and Dilma. They share the same ill roots. It’s so obvious why they protect bandits. The bottom line of all this fuss is just an attempt to confuse the public again, to mess up a democratically elected government and spread out fake news of ideological bias against Lula and PT (Labor Party), which is the living proof, the mastermind of spread-out corruption ever seen in a civilized world. The truth is the majority of decent Brazilians are for Lava Jato. The remaining are those afraid of been caught, or hoping to ascend PT and left wing to power again. Finally, if there is an illegitimate and unacceptable ethical and criminal conduct in this case of private mobiles being invaded and hankered, it is the manipulative, sensationalist and ill-gotten “journalism” of Glenn Greenwood. Shame on him!!!

  22. I feel like it would be fair to inform your readers that WE DO NOT HAVE A JURY SYSTEM for those kind of crimes um Brazil. So this judge, who happened to be passing on tips on witnesses and suggesting on courses of investigation was the only person responsible for the conviction of Lula. I think its impossible to compare an american presecutor calling a judge for a warrant, for exemple, to those texts because in the US , NO MATTER WHAT, you will have the right to an imparcial JUROR. Think about it: would it be okay for a JUROR to pass on information to the prossecutors? Would it be fair to pick a JUROR who adviced and counseled the prossecution team? Here Moro was Judge and Juror. What he did was criminal and im sorry you cant see it.

    • I appreciate your comment, but with respect, I’m not sure I agree with your reasoning. Your point about Brazil not having a jury (or, for that matter, a separate judge) to serve as a factfinder, but rather entrusts the same judge with both overseeing the investigation and presiding over the trial, suggests to me a structural problem with the Brazilian criminal justice system, but does not necessarily show that this judge (or these prosecutors) acted unethically, within the context of that system. My point (or one of them, at least) was that in a system like Brazil’s, the judge would almost inevitably interact repeatedly with prosecutors, and likely offer “advice” (or guidance) at the investigation stage, thus making it hard, perhaps impossible, to enforce a strict rule that the judge can’t preside over the case if he/she has offered any guidance to prosecutors. I’m still not sure how to sort out these complicated ethical and legal issues. But I don’t think that pointing out Brazil’s lack of a jury system gets you where you think it does.

      One more thing, which may seem like technical nitpicking, but I think it’s important: even if you and others are correct that Judge Moro behaved unethically, that does NOT mean his conduct was “criminal.” Not every act that is against the rules is a crime. Be careful about using this sort of terminology if you’re engaging in a legal argument rather than political rhetoric.

      • Sou brasimeiro quero falar tbm Serjio moro e salvador da patria meus amigos uns dos primeiros juizes do brasil disposto a enfrenta crimes de colarimho branco e adimirado querido homenageado parabenizado adorado por tds brasileiros que ama esse pais a tempo pesoas comun robavam 1 pacote de arros e ficava anos preso e politicos empresarios funcionarios de confianca de deputados e senadores e presidente robavao a naçao gozavao com dinhero publico e nada acomtecia apos mensalao lava jato juizes como morro disposto a enfrenta ese sistema de corrupcao no brasil começarao a agir e prender eses ladroes fantasiados de pesoas boas protegida pela classe alta e o tal forum preveligiafos pessoas como esse grem agindo por por ideoligias por causas proprias pesoas que forao e vao ser ainda condenados pro crimes praticados a anos atras praticados no presente tentao tirar os creditos da operacao do juiz o culpando de lula esta preso amigo sou brasileiro e digo mais ta preso porque robo criamca robo adolecente robo adulto e idosos ele ta preso pq robo pais todo vc ta esta certo no seu ponto de vista parabens o conteudo da materia nao bate com titulo pois nas conversas nao mostra nada ao nao ser pessoas que se unirao pra penaliza e prende bandidos ladores que robarao a patria por anos prejudicando todas clases no brasil esas mensagens nao anula nada nao prova nada nao mostra nada que povo nao sabia que hironia quere prejudica um juiz pq ele trabalho en conjunto pra prende uma quadrilha ja imagino q ponto chegamos aqui e brasil sou cidadao de bem nao apoio nenhum partido nada de direita nem esquerda os dois cometerao atrocidades pelo mundo essa e a vdd mais lula e condenado por juiz desembargadores e ministros do supremo e a maioria indicacao politica dele que jamais o condenaria ou decharia escapa uma brecha pra ele nao esta preso nao esiste conspiracao nenhuma na lava jato merecia mt mais juizes como moro procuradores olha quanta gente ja foi presa olha tamanho da quadrilha entao como juiz ou minesterio pulblico agiria sosinhos imposvel a quadrilha se sairia facil como tento ne mais chego a hora de tds que robarao noso dinhero a merenda aposentadoria de senhoras e senhores as propinas de empresarios os favorecimentos a clase de empresario corruptas pessoal isso ainda nao e nada ainda temos muito pra se arruma brasil precisa de investigacao em tds prefeituras do pais tds sedes de giverno estaduais nao descobrirao ainda metade dos esquemas iso e so um esquema que envolve deputados senadores ex presidentes ainda temos muitas fraudes e esquemas nos estados e municipios ainda muitos juizes decentes como moro terao mt trabalho pela frente e ainda encontrarai muitos pesoas como gremn disposto a tirar a credibilidade da opeacao disposto a denigrir a imagem de juizes e prucuradores eu acho que ele merecia responder na justica pelas acusacoes sem sentido que as msg dele adiquirida de forma ilegal nao vale de nada nao orova nada e o conteudo tambem nao dis nada parabens sua visao esta certa as msg nao mostra nada e nao tira pra nois brasileiros a credibilidade q lava jato tem no brasil nem a credibilidade de pricurador nem de juiz parabens a todos que fizerao parte da operacao lava jato primeira ves na historia que politicos nao so de esquerda nao so lula como falao comecerao a ser punidos parabens serjio moro enfrenta td iso ta disposto a enfrenta esas estrategias pra combate a corrupcao parabens

  23. Hello. The WhatsApp exchange is probably a fabrication itself, or at least contains some fabrications. Assume neither authenticity nor context integrity. Greetings from Brazil.

  24. Attacks on Sergio Moro have been generally based on Article 254, re the communication between prosecutors and judges:“O juiz dar-se-á por suspeito, e, se não o fizer, poderá ser recusado por qualquer das partes: … IV – se tiver aconselhado qualquer das partes. …l).
    However, the Ministério Público/the prosecutors are not to be considered as a PARTE according to Article 127 of the Constitution : “Art. 127. O Ministério Público é instituição permanente, essencial à função jurisdicional do Estado, incumbindo-lhe a defesa da ordem jurídica, do regime democrático e dos interesses sociais e individuais indisponíveis.” Hence the anti-Moro campaign seems to be (deliberately?) confusing Public Law with Private Law. The Ministerio Publico does not defend private interests, which is the realm of Private Law. It exists to defend public interests. Wiping out corruption concerns Public Law, in which case Prosecutors must act in conjunction with the Judge.

    • Hmmm…. I’m not so sure that I buy that argument. It seems to prove far too much. Suppose that there were leaked texts that really did show, clearly and unambiguously, that Judge Moro consulted with the prosecutors, told them what legal strategy to use, told them what evidence they should present at trial, etc. In that sort of case, I would hope and expect that there was a violation of the rules requiring the judge to be impartial. But if your interpretation of Article 127 is correct, and the prosecution service isn’t a “party” within the meaning of Article 254 of the criminal procedure code, wouldn’t that mean there’d be no violation, no matter how egregious the communications? That doesn’t make much sense to me.

      But I’m open to the possibility that I’m just wrong on this, and that in fact in Brazil in a criminal case, there’s not a requirement that the judge be neutral, but in fact the judge acts as an inquisitor more along the lines of a traditional civil law model. Can other experts weigh in on this? Are there any clear precedents or rulings as to whether Art. 254 applies to communications with the prosecution service at all?

      • This is not a consensus even for jurists in Brazil. The usually accepted opinion sais the “Public Ministry”/Ministério Público is not a “parte” when it’s no directly involved in the process, i.e. when there’s a private ‘parte’ accusing another private ‘parte’, being the judge the thir part/’parte’, in this case, MP is responsible to keep juridical order etc. so, conversations with the judge shouldn’t show any interest for the MP.
        In this operation, Lava Jato, the MP is actually the on accusing people/companies of corruption and other crimes, being itself a ‘parte’ of the process, it has interest in the outcome (conviction of the accused).

        Regards.

      • There is this important brazillian author, Roberto Kant de Lima, who is an anthropologist that studies the cultural bases of Law. He points out that in Brazil, acting like Moro and Dallagnol is actually normal. That has to do with the fact that our legal system is from the 1940´s and is based on a strongly inquisitorial tradition. Nonetheless, even in our inquisitorial system, the judge willing to take part in producing evidence has to order himself the people he wants to testify, not ask the prosecutor to do so, specially informally. It seems like he did not want to look inquisitorial- although he actually could- because he was worried about giving the impression to be a neutral umpire. That is because, although we have an inquisitorial system, from the 1940´s, our Constitution, from 1988, has a accusatorial approach to law. So there is this great confusion in our legal system.

        What makes Moro´s situation worse is that it is clear he did not had the same proximity with the defense. Which is also common in Brazil, although against our Constitutuion.

        So, yes, our legal tradition is to blame for Moro´s behavior. Brazillian courts tolerate a lot of inquisitorial behavior. But that does not make it ok to behave as he did.The respect to the Constituition should be bigger than any ambiguos old inquisitorial procedure code from the 1940´s or any inquisitorial practical culture.

        PS: About MP being or not a party, there are legal schollars that say MP is an “impartial part” as if it made any sense. It is part of a kind of a scholastic rethoric present in brazillian law that try to conciliate conflicting principles like inquisitoriality and the respect to the due process.

  25. Professor, o fato é que, o sr. Lula da Silva e sua quadrilha roubaram o país como nunca se viu nada igual na história do planeta terra. Esse verme deve mofar na cadeia e também toda a sua quadrilha de genocidas que destruíram sonhos e mataram milhares de brasileiros em filas de hospitais, por exemplo, enquanto bancava ditaduras nas americas Central e Sul, assim como países africanos. Com o dinheiro que deveria ficar aqui para solucionar nossos problemas, e não financiar a desdita de povos oprimidos ao redor do planeta. Esse homem é um lunático e em brave todo o mundo vai conhecer sua verdadeira história de horror.

  26. Professor Stephenson,

    I shouldn’t be commenting on this, for two good reasons: my English is quite poor, and, although I graduated in Law, I’m far from being a specialist in Criminal Law, but I’d like to say one thing or two, even if they have no direct relation to the issue.

    It’s much more uncommon here than in the US that a scholar tries hard to understand something with evident, but collateral, political implications in an impartial way and, in the process, even confesses that he doesn’t understand fully all the relevant details. This intellectual honesty is rarely seen here. I congratulate you for that.

    I am not capable of being impartial, because, having seen the long period of institutional deterioration the Workers’ Party has lead us to, I hate it with all my heart and soul. So, I won’t be commenting on anything specifically, because it wouldn’t have any value.

    But I remember a Criminal Law teacher I had (Ela Wiecko), who is a leftist deputy attorney general that even called, publicly, and outside Brazil (in Portugal), for Temer’s impeachment, making a criticism very similar to the one about a “structural problem with the Brazilian criminal justice system”, in which “the judge would almost inevitably interact repeatedly with prosecutors, and likely offer ‘advice’ (or guidance) at the investigation stage, thus making it hard, perhaps impossible, to enforce a strict rule that the judge can’t preside over”. And this was before 2012, when I graduated, so it couldn’t possibly have anything to do with all we’re talking about.

    So, my two miserable cents here: I think everything we’ve seen so far could rightly be said to be unethical, and even illegal, accordingly to a strict reading of the Procedural Criminal Code, but it’s also “business as usual”, because of the difficulties inherent to this system, as you have rightly suspected in the first place.

    Moro and Dallagnon may have acted unethically, and even illegaly, but then we would have to say that almost all judges and almost all prosecutors in Brazil act, regularly, in unethical and even illegal ways.

    • The point that you raise is very important, and I hope it gets more attention. People will continue to debate whether this (former) judge and these prosecutors violated the laws and ethical codes, and that debate is important and should continue. But it does seem highly plausible that one problem here is that there’s a persistent gap between the rules that exist on paper and what have become “standard” practices, partly due to the fact that the rules on paper don’t correspond well with the structural imperatives (or at least the structural incentives) of the system. I hope that, once passions over the immediate case cools a bit, people from across the political spectrum will be able to recognize the need to consider more fundamental reforms to the criminal procedure system. These problems, I hasten to add, are not at all unique to Brazil.

  27. They arrested a lot of right wing politicians including a former congress president – Eduardo Cunha. Also in Brazil, we don’t have an “instructor judge”, so nothing about what the intercept published is illegal. Glenn is an extremist leftist trying to imposed sensationalist news to embarace the lava jato, trying to set Lula free. Now he’s mad that people are not buying his story zand that’s certainly for a reason.

  28. Moro is meeting with the Senate CCJ (Comissão de Constituição e Justiça — Constitution and Justice Commission) as I type. This is a long interview/arguição. It will be difficult to translate to English. Pieces will be selected either way by supporters and critics. The meta-game is a conflict of narratives. I recommend (if you have the patience) to have someone hear the interactions and interpret for an unbiased perspective. It is interesting. Best.

    • An unbiased perspective is the Holy Grail of this whole conversation! The problem, or so it seems from where I sit, is that it’s hard to find an opinion on what’s going on that’s both expert and unbiased. The people who know enough about the situation to be experts also tend to have strong political views that might bias them. The people with enough personal/political distance from Brazilian politics to be at least relatively impartial also tend not to know enough to have the expertise required to truly understand what’s going on.

      But your suggestion that I find someone (or several someones) whom I trust to give me their summaries of Moro’s meeting with the CCJ is a good one, and I’ll see what I can do.

  29. Dear Professor Stephenson,

    I very much enjoyed your last two posts discussing the #VazaJato issue and agree wholeheartedly with your conclusion that the whole debacle is not so much about particular failings of specific judges, but about structural problems in Brazil’s legal practice*. However, if you would allow me to be so bold as to offer a small piece of unsolicited advice: I think you should avoid commenting on the issue so early on. The Intercept still has a veritable treasure trove of leaked information, and if you decide to publicly update your opinion with every leak you may find yourself backtracking again and again.

    As much as it pains me to say so, it seems to me that the odds are that they will reveal more compromising information, not less. Probably no smoking gun per se, but enough dodgy behaviour that you may not be willing to give Lava Jato the benefit of the doubt any longer. For instance, just yesterday The Intercept revealed an exchange where Judge Moro recommended that the prosecutors did not try and prosecute statute-barred crimes commited by former president FHC because it would lead nowhere and would offend someone whose political support was important. Illegal? Absolutely, the cases were not under his jurisdiction. However, it certainly doesn’t help Moro to look any more impartial.

    I, for one, don’t think the Intercept will reveal any major crimes, if they could they would have already done so. Their approach seems to be death by a thousand cuts, little snippets of politically tinged conversations that just skirt by absolute impropriety without ever doing so.

    Thank you very much for your time and your interest in our national politics. I apologize in advance for any english mistakes, it’s not my native language. I can only hope my suggestion does not offend you. It’s certainly not my intention do to so, having the utmost respect for your scholarship.

    * For example, it’s entirely common for Supreme Court Justices to judge cases where one of the parties is represented by firms that employ their own spouses or relatives. Banal, even. The ones defending Judge Moro’s conduct are mostly arguing that the passionate calls to nullify the verdict are selective, to say the least.

    • That is factually incorrect. Moro could not have recommended that the prosecutors not try and prosecute statute-barred crimes because the case had been referred to São Paulo, not Curitiba. Moro asks Dallagnol about a news report he has just seen about FHC and wether the case is strong. Dallagnol replies that the case is weak. Moro then says he beleives the case is actually statute-barred, and asks for confirmation. Dallagnol asks another prossector, who confiirms it is statute-barred. Dallagnol ten relays this information to Moro and remarks that the Federal prossecutor (remember that the Curitiba prosecutors had a feud with the Federal prossecutor) probably only entertained such a weak and probably hopeless case as a demonstration of impartiality. Moro then wonders out loud whether it was a good move (for the Federal prossecutor) to “assail” a politiican whose support for operation Car Wash was important (over a weak and statute-barred case).

      • That’s what I said. It was outside his jurisdiction. There was no crime.

        “Moro could not have recommended that the prosecutors not try and prosecute statute-barred crimes because the case had been referred to São Paulo, not Curitiba”

        He didn’t even have to be a judge to issue a personal recommendation. It might not have been illegal, but it certainly was a recommendation.

        • I see now that I misspoke earlier. I meant:

          “Illegal? Absolutely NOT, the cases were not under his jurisdiction”

        • You surely mean ‘opinion’. No, if you are not the judge in the case, and you are not speaking to the prossecutor in the case, then whatever you say is not a recommendation as it could never be acted upon. And his opinion shows no impartiality. What he said was that if the case against FHC was relatively unimportant (unreported campaign donations, not bribes), weak and statute-barred, was it a good idea to prossecute an open supporter of the Car Wash operation only to prevent the Workers’ Party from calling the justice system impartial?

  30. Dear Prof. Stephenson: we appreciate your efforts to understand the Lava Jato leaks published by The Intercept. No doubt your first article attracted a lot of attention; as will this more recent revision. I was appalled at then Judge Moro’s self-promotion during his work as the presiding judge over the Lava Jato cases and understand the leaks as consistent with his self-promotion, an effort to cross ethical lines to shape prosecutions before the convictions he handed out. What I find interesting is that he fully understood the gravity, the historical importance of his position, but still chose to play a coordinating role in the prosecution. What are the comparable experiences of judges treating corruption cases that stepped over the line and played direct roles in prosecutorial decisions? Thank you.

    • Mr. Langevin,

      Everyone that has once heard Moro speaking can not fail to notice his low profile, his calmness, with which he has answered all the absurd questions some highly suspicious politicians have asked him today. It takes a great deal of imagination to state that he is the self-promoter kind of guy. You could say that of Dallagnol, Mr. Stephenson’s friendly professional acquaintance, but not of Mr. Moro.

      But you already thought that about Mr. Moro two years before Greenwald’s crusade, when you wrote:

      “President Lula and Federal Judge Sergio Moro missed an historic opportunity during the trial. Judge Moro has zealously pursued the former president through Brazil’s odd system for Federal judges that allows them to act as prosecutor, jury and judge all together in a confusing whirlwind of conflicting institutional interests. Rather than tread lightly and guarantee constitutional due process, Judge Moro used every power under his authority to publicly condemn Lula before the trial began, and may have engaged in unethical or illegal acts related to the wiretapping of then President Dilma. He also selected to hear a case based on evidence that does not clearly indicate that Lula enjoyed or benefited from the beachfront apartment under the control of OAS, which would seem to be an essential condition of any Quid pro quo; that any suspected influence peddling on OAS’ behalf be contingent upon a benefit enjoyed by the president [that’s simply incorrect: according to Brazilian law, the mere promise of influencing decisions in favor of OAS in exchange of something is enough to caracterize the crime of passive corruption]. The underlying evidence and logic of Lula’s trial suggests that Judge Moro was zealous about this particular case, a relatively weak case in light of the scope of the Lava Jato scheme. Why did Moro choose this case, one that did not feature a smoking gun or evidence that Lula directly owned, enjoyed, or benefited from the OAS apartment? The answer: poor judgment by Judge Moro.”

      So, it is not as if people who already thought like you could now say: do you see how we were really right from the very beginning? It’s more like Greenwald cherry-picking messages, even separated by several months, to tell the story in a way consistent to the narrative PT has being trying to sell [with considerable success abroad, but not in Brazil] since day one.

      • Dear Rodrigo: Thank you for your comment. This thread is very important because it touches on a peculiar aspect of the LJ and serves an one of the Achilles Heel of Brazilian democracy. Your quote is correct and is drawn from my participation in a private meeting with Judge Moro in the second half of 2016 and my private meetings with Lula’s lawyers, Cristiano and Valeska Martins just a few months after my encounter with Moro. Your take on passive corruption under Brazilian law seems to be an accurate description, but it raises important questions about the political nature of such a definition. I do not think “passive” corruption exists; corruption exists, procurement kickbacks exist, and the unethical acceptance of “favors” are rampant in Brazil, including then Judge Moro’s acceptance of several invitations for paid international travel to speak about the LJ (as well as former presidents’ habits of accepting privileges and favors). The #vazajato really only confirms what we knew all along, that supporters of Moro supported his disregard for due process and Lula supporters assigned the case to lawfare and Moro’s political preferences. Many, if not most, Brazilians will slowly digest the drip of the #vazajato and draw their own conclusions. My conclusion is a bit different than most; since I focus on the bottom up dynamic that tries to answer the question: why do winning candidates need slush funds in Brazil when they and their parties get free TV and radio, public campaign monies, and cannot spend on lavish expenses like showmicios? The LJ is much more about the need by almost all winning candidates (except the recent PSL candidates) to make illicit payments to gatekeepers for access to organized constituents at the local levels, from business associations, unions, neighborhood associations, etc. Most of the LJ kickbacks trickles down, as a plea bargained testimony put it, “Eduardo Cunha needed $5 million for his group.” Yes, Eduardo packed some of it away for his personal spending, but most of the money went downstream to secure his political support for election and the chamber’s presidency. Deltan, Moro and the taskforce showed no interest in this corrupt practice and did not prosecute anyone for accepting an illicit, unreported payment (I know many retired folks in Brazil that make an extra $5 or $10K during campaigns through this practice. Winning candidates need slush funds to finance these illicit payments, with few exceptions-such as the 2018 PSL (although laranjas were used) and (see my work on the PSL herehttp://www.brazilworks.net/partido-social-liberal). My conclusion also includes the observation that Deltan and Moro’s choice not to seek prosecution of gatekeepers through tax evasion laws demonstrates that they were interested in headhunting across the board, but the biggest head was Lula and so they intensified their inappropriate, if not illegal, cooperation to guarantee the result. In the end, their work jailed and fined corrupt politicians and business leaders; but the damage they have done to due process (confirmed by the #vazajato) and the long term fight against corruption is evident and the costs will be paid by those least able to carry this burden.

  31. Moro just mentioned this article in a Senate hearing, to support his point about the charges against him are innocuous. So a) be prepared for traffic/comments surge and b) he failed to mentioned that this was published before the latest releases, of him telling prosecutors to drop a case against FHC, a political ally of Lava Jato.

  32. Pingback: Sergio Moro e o artigo “O incrível escândalo que encolheu” | Web Rádio Cariri Mix

  33. Pingback: Professor de Harvard escreve sobre ‘o incrível escândalo que encolheu’ – Blog Henrique Barbosa

  34. Professor, I really liked you comments on the case, even if I don’t agree with some conclusions, specially that it was a mistake for former judge Moro to accept the invitation to be Minister. There is evidence that the conversation was published out of context and order, to induce the reader that Moro was unethical. The best thing to do, it’s to read de full conversations, which I think it’s impossible, since only the Intercept and the hacker, apparently, have the full content. In conclusion, it’s very important to remind that even if dallagnol and Moro acted together, with bias, in order to convict former president Lula, he was then judged and found guilty by another at least 8 judges, of whom most of them were appointed by Lula and Dilma.

  35. It`s interesting that Sergio Moro cited you 5 times today in his testimony today in the Brazilian Senate yet he ignored the dozens of criticisms he has received by Brazilian legal experts, most of whom have absolutely no connection with Lula and the PT. And you say that there is no evidence of political/ideological bias by Moro (despite a long and cozy history with leading politicians from right-wing parties) yet messages released yesterday by The Intercept show clear bias in favour of-ex-President Fernando Henrique Cardoso. The history of Lava Jato is a history of lawfare, a concept that should be central in any analysis of this scandal.

  36. Professor Sean Purdy,

    Being a scholar yourself, you should be more careful in your statements. Are you suggesting Professor Stephenson can be hold responsible for being cited five times by Mr. Moro? Or are you suggesting Mr. Stephenson shouldn’t have written anything about the case to avoid being instrumentalized in what people like you believe to be a case of lawfare? By the way, Lula’s supporters claim he is victim of lawfare since the beginning of his prosecution and distort everything they can to fit that narrative. Was Eduardo Cunha victim of lawfare, too? About the criticisms he has received of dozens of legal experts: he has also received support by dozens of legal experts, too, including a former Supreme Court judge, Carlos Velloso. And it is a big fat lie to say he showed clear bias in favour of Fernando Henrique Cardoso, because the investigation of Fernando Henrique’s institute wasn’t being conducted by Dallagnol and not being presided over by Moro. Moro only lamented that the prosecutors responsible for investigating Fernando Henrique institute chose to go on with the case, even knowing that the case wouldn’t have any consequences, because of the limitation period (prazo de prescrição), just to avoid being criticized for partiality. Indeed, the person who could really complain of unjust persecution would be Fernando Henrique Cardoso, because prosecutors thought of going on with the investigation about him, even knowing it wouldn’t result in any condemnation, because of the limitation period, only to avoid being criticized by PT’s supporters for partiality. And they were right to be concerned, because PT politicians sream persecution whenever law agents find them envolved in criminal activity. And you state firmly that any analysis of the case should take the concept of lawfare as central in the analysis of this scandal using the same inflated, but unsubstantiated rethoric Greenwald uses in his stories, which take disproportionate conclusions from cherry-picked messages, some of which are even separated by several months.
    By the way, it was impressive how cool-headed, calm, and collaborative Moro was today at the Senate. PT tried to embarass him, but failed.

  37. Professor Stephenson, Thank you for your views and for giving this case the publicity it deserves on this forum. It was brought to my attention by Sergio Moro’s repeated – and quite self-serving — invocations of this post during yesterday’s senate hearing.

    Of the many well-informed points you have raised, I would disagree with your statement to the effect that “Judge Moro can’t do anything with [the information regarding the existence of a potential witness] himself, so tells Mr. Dallagnol.”

    I’m not sure that is correct. For one thing, he could ask for information or the witness to be produced before him, even prior to the introduction of the criminal case by the prosecutor. Indeed, and as another commenter has already pointed out, Article 156 of the Code of criminal procedure reads:

    “Proof of an allegation must be produced by whoever invokes the fact, although the judge may ex officio:
    I – order, even prior to the opening of the criminal case, the anticipated production of evidence considered urgent and relevant, respecting the necessity, adequacy and proportionality of the measure;
    II – determine, during the instruction phase or prior to sentencing, the realization of inquiries to eliminate doubt on a relevant point.” (source in Portuguese: http://www.planalto.gov.br/ccivil_03/decreto-lei/del3689.htm)

    Moreover, Article 209 of the same code, on witnesses, states that the judge may “when necessary, hear other witnesses beyond those called for by the parties.”

    Therefore, Moro had plenty of options to try to produce evidence by clear procedural mechanisms, if he considered the witness’ views to be relevant to the case. He could do so before any indictment if he though that there were urgent reasons to hear the witness. Of course, had he chosen to ask for proof or testimony to be introduced ex officio, he would probably have had to inform the defense, would have raised further questions and/or provided additional fodder for allegations of partiality.

    If he chose not to proceed within the procedural framework, preferring to ask the prosecutor through private, undisclosed exchanges, to locate and hear that potential witness, he must have had other reasons. I wouldn’t dare speculate which reason he had, but it might have been anything from (a) unwillingness to commit his own time and effort to research this tip (though he did seem to consider it relevant, and the source trustworthy); (b) fear of having to disclose how he heard of this potential witness, or having to explain why members of opposition political parties were in direct talks with the judge ruling over a former president; or, (c) fear of giving the impression of partiality by producing evidence ex officio.

    Discretion, therefore, must have seemed instrumentally preferable to Moro at the time, even if that meant bending ethical lines close to, if not beyond, the breaking point. The problem with this attitude, of course, is that when evidence of this emerges, it becomes really difficult to deny that there is something fishy going on.

    In any case, it is clearly not the case that Moro’s hands were tied, and that the only way to hear this potentially crucial witness was to tip off the prosecutorial team without also notifying the defense.

    Whether this procedural impropriety is enough to annul any specific finding, or sentences is a matter for another discussion.

    • Matthias,

      You seem to be one of those who think that the due process demands that even in the inquiry phase the defense be informed prior to the police operations. It is a not uncommon opinion among lawyers and leftist human rights activities.

      Everybody who really knows the day-to-day judicial proceedings knows there wasn’t nothing in the “scandal” that is different from what judges and prosecutors do routinely, in Brazil. It may not be ethical or even legal, according to a strict interpretation of the Procedural Criminal Code, but it’s common, nothing that could lead one honestly to the conclusion that Moro and the prosecutors were any more partial then they or any other judge or prosecutor are in any othet case in Brazil.
      The problems appointed by the critics are really due to structural problems within the criminal legal law, as Professor Stephenson rightly suspected.

    • Thanks for bringing this section of the procedural code to my attention. I confess that I’m a bit skeptical that the ordinary, routine thing for a judge to do when he/she receives information that a person might have evidence relevant to a case is to order that witness to produce evidence, particularly in the early phase of the case, before anybody has been formally charged–though I see that the statute does specifically apply even prior to the opening of a criminal case. And I can think of many reasons that are entirely aboveboard for a judge not to want to invoke this formal mechanism to compel testimony, especially in a case like this one, where an intermediary reports that a source _might_ have relevant information that he _might_ be willing to share. It’s very disruptive and burdensome on the potential witness to impose an order like this, especially when it might turn out that the witness doesn’t have, or ends up claiming he doesn’t have, any relevant evidence after all. In that case, I’d rather the judge pass on the tip to the prosecutor than compel the witness to give evidence (at this stage in the proceedings).

      Now, as I believe I mentioned in my post, what I’d really prefer to happen in a case like this one is for the judge, instead of passing the tip onto the prosecutor, to tell the intermediary that he/she should contact the prosecutor directly. I’m deeply uncomfortable with the judge acting as the relay for evidence that might help one side or the other, whether or not it’s technically unethical. I don’t know what standard practice is in Brazil. But if confronted with a choice between what Moro seems to have done in the real case, and the alternative of invoking Article 156, the former seems more appropriate under the circumstances, doesn’t it?

      • Thank you for your response, professor. Indeed, one could presume that the act of calling a witness to the attention of the prosecution is merely a time-saving measure not indicative of wrong-doing. I think it is harder to accept that presumption when reading the repeated exchanges between judge and prosecutor, as a whole.

        It is important to note that public perception and media coverage in Brazil has indeed treated Moro as the ‘head’ of the Lava Jato Operation, and considered him and the prosecutor’s office as functionally indistinguishable. This confusion of roles might explain why the PSDB politician chose to speak with Moro, rather than approaching Dallagnol directly with the tip. But if in such a high-profile case the leading judge does not take extreme precautions to clarify his role to the public and clearly distinguish his function from that of the prosecution, it is hard to see how we can avoid perceptions of partiality.

        In talks with fellow Brazilians I often compare Lava Jato with the Mueller investigation, and try to contrast their management of public information and the efforts put by the office of the special counsel to clearly delineate what it is doing, how, and why. Given the reaction to the Strzok/Page leaks, for instance, what would the American public make of the Moro/Dallagnol exchanges? If “justice must not only be done it must also be seen to be done”, I find it profoundly tragic that such an extraordinarily important case could be managed so carelessly. I also find it disturbing that so many people in Brazil are willing to turn a blind eye to prosecutorial/judicial improprieties as long as the end result is the conviction of individuals who the public believe to be guilty.

        I am not a practicing criminal lawyer in Brazil, so I couldn’t assert with any confidence what the ‘standard practice’ on these witness referrals in Brazil currently is. I know that there is an extremely low rate of success for challenges to judges on the grounds of “suspicion”/partiality. I know that many an individual prosecutor (federal or state) have taken to social media to say that “there is nothing unusual” in these exchanges, which is, to me at least, not particularly reassuring. The thought that this proximity is considered business as usual by a sizeable portion of prosecutors and the public at large really tells us something about how the ‘rule of law’ is understood in Brazil.

        If you would allow a comparison, the standard practice in Brazil is that 40% of the 726 thousand detainee population have yet to be judged in first instance, and are kept incarcerated under preventive detention rules that have been interpreted so broadly — with the shameful acquiescence of higher courts — that their basically aren’t real criteria for their use. It might be ‘standard practice’, but it is shocking to most people’s moral intuitions.

        One of the tragedies of the Lava Jato probe is that in its desire to combat corruption it has revealed to the world how ordinary criminal justice in Brazil is done, and how far it is from the letter, or the spirit, of the law. It is definitely worth celebrating that even the wealthy and powerful are held accountable; but it isn’t worth celebrating that accountability is achieved by hand-waving due process.

  38. Pingback: As Dicotomias de Moro, ou as Argumentações de Schrödinger – JVDR

  39. Even if we assume, for the purposes of this argument, that everything published by the Intercept is true (big if), there is virtually an impassable set of obstacles for the proponents: authentication of the evidence.

    Unlike in common law jurisdictions (US/UK), civil law countries demand originals. Originals are on Telegram servers, and because the chats are private, they are encrypted device to device, as opposed to device to server, where the server keeps the encryption keys. On device to device encryption, the keys are stored on devices. So, even if one were to obtain the originals from Telegram (which is a non-starter, since Telegram has yet to comply with one request for records, even coming from Mother-Russia and under a threat of blocking), all he/she can get is encrypted messages, which cannot be deciphered even by Telegram employees. Theoretically, the original chats can still exist on the phones of people involved, but if someone took full control of any of the smart phones (and this is how the theft was done, whether over the air or physically), that one could have done anything with the device including doctoring the chats.

    Returning to the originals vs copies: So, it is not enough, as in the US, to have someone say, I took screenshots of the relevant cellphone(s), and the pictures are true and correct representations of the originals. It is also not enough, because Moro has already questioned the authenticity of the chats attributed to him and claimed that some of the chats may have been tempered with: https://news.yahoo.com/brazil-justice-minister-says-nothing-132453924.html
    And that’s another reason to have the originals, which have to be compared with whatever the Intercept has. But even if Brazil were to accept someone else authenticating the chats, it is extremely unlikely that such a person would come forward, as he/she/they would be immediately charged with hacking and stealing information from government entities. That person is facing multiple years in prison, and I doubt he/she would get immunity in exchange for authentication.

  40. This is my view as someone who follows Brazil politics daily:

    1- Lula was (and still is in some regions) very popular. He is MUCH bigger than PT itself, and his image alone can yield a lot of political dividends. Lula is a central character since the rebuilding of Brazilian democracy and have always identified with the Left, who always supported him almost unanimously.

    2- Lava Jato started in 2014, revealing a massive scheme of corruption across a lot of political parties (from Left to Right), but only reached Lula in 2016. The evidence against him was so clear, so solid, and considering the rigor and efficiency of Sergio Moro and the prosecutors, it was only a matter of time until a corruption conviction.

    3- Unable to refute the evidence against Lula and sustain a reasonable legal defense, in 2016 PT started a political war against Sergio Moro and Lava Jato task force. Day after day there was personal and professional attacks against Sergio Moro made by Lula himself and allies. Some high rank PT members were even accusing Judge Moro to be a secret agent from CIA. And the Lava Jato ultimate plan was to give Brazilian oil (“pre-sal”) to the USA. The same stuff Nicolas Maduro from Venezuela usually says.

    4- Attacking Sergio Moro, PT was trying to create a scenario where they could put into question the judge’s impartiality. They tried a few times, but it was denied. There are also political motivations, seeking to create a false narrative that Lava Jato is a witch hunt.

    5- That false narrative worked, somehow. After the last elections PT remains considerably strong. You want to know the supreme irony? PSDB, the great historical adversary of PT, was devastated in the last elections, because of Lava Jato. Yes. The Lava Jato was much worse (politically) for the PT’s biggest adversary.

    6- Those messages seems to be a part of a biggest scheme to discredit the fight against corruption. Even Renan Calheiros, one of the most infamous Brazilian politician, are on Twitter calling Judge Moro and Deltan Dallagnol “outlaws”.

    7- Nothing on those messages are much different of what happens daily on Brazil criminal system. And Lava Jato is no ordinary cause. It was the biggest criminal investigation ever, and for the first time reaching very powerful people. No wonder the judge and the prosecution needs more interaction during the investigation process.

    8- Maybe some messages could be questionable. Judge Moro privately called the Lula’s defense team as a “little show”. So what? Lula and his attorneys are viciously attacking Sergio Moro. It’s humanly impossible to not have negative feelings towards that attitude. If Judge Moro declares himself “suspect” because he is been attacked by the defense, you are only rewarding a bad faith behavior.

    9- Unfortunately, the brazilian legislation takes very easy on criminals (mainly the powerful ones). Lula will be out of jail in the following months. And there is a powerful lobby to revert a decision that will only allow people like Lula to be imprisoned not after conviction in second instance, but only after the very last appeal to the superior courts – something that could take a decade.

    Professor Stephenson, thank you for taking interest in Brazil. We need your support because there is an international effort to discredit the fight against corruption in our country.

  41. Pingback: Na Prática, a Teoria é Outra? | Luzia | Canto do Escritor

  42. Professor, you went straight to the Brazilian Law flawless point when you wrote:

    “Now, the fact that extensive ex parte contacts between the prosecutor and judge at the investigation phase are unavoidable raises a tricky legal problem, which I don’t think most of the existing commentary (including my prior post) really grapples with adequately. It goes like this:
    … and then you described consequences of Brazilian due process”

    That is really a tricky legal problem because raises the opportunity of SUBJECTIVE judgement of a Judge conduct. Due to this “trick”, a message saying “Better to formalize then,” can be read as a diligent, carefull act according to the rules of process but also can be read as an instruction wich would jeopardize Judges impartiality.

    In other words, following the law during investigation phase may lead the Judge to be accused of not following the law in the trial phase.

    This is not new news, Professor.
    Actually, this is one of many “tricks” embedded in Brazil’s Criminal Judiciary System which made many corruption processes being nulled in the past and is one of main sources of our general sense of impunity.

    This said, once the legal system “trikly” allows SUBJECTIVE judgements of a Judge partiality, there are people who take this flaw in the law to accuse Mr. Moro of partiality.
    Among these people, in my point of view, there are some who really want to be sure about Mr. Moro’s impartiality, there are some who have preexisting feelings about Mr. Moro’s and take these leaked messages as a kind of proof of their own feelings and, as since the beginning this is a process involving high political figures, there are some who are politically exploring these leaked messages.
    This is the place where people not only accuse Mr. Moro of partiality but also say that his partiality comes from a political bias in collusion with the Prosecutors.
    That is, in my view, the argumentation of the The Intercept.

    On the other hand, once the legal system “trickly” allows SUBJECTIVE judgements of a Judge partiality (sorry by being repetitive), there are people who take this flaw in the law to guarantee that Mr. Moro’s impartiality can not be OBJECTIVELY disputed.
    This is the place where arguments in favor of Mr. Moro’s impartiality are taken as evidences, such as:
    – Mr. Moro is an experimented judge in many complex previous cases, some of them nulled by other “tricks”, so he would not be careless about the rules of the law;
    – Many judges, some of them retired from Supreme Court, say this communication process between Judges, Prosecutors and Lawyers, during a criminal prosecution is business as usual;
    – During the whole Operation Lava Jato, Mr. Moro’s decisions were not fully accepted by Prosecution, actually, from 45 acquitted persons, Prosecution went after 44 to the Court of Appeal, so this would be a proof of no collusion;
    – During the whole Operation Lava Jato, there were many political figures investigated, prosecuted, some acquitted and some condemned from many Political Parties, so this would be a proof of no political bias on his decisions;

    In the end, back to your finding, YES, Brazil has a tricky legal problem which would raise the will to improve it but, unfortunately, this is not yet the case.

    Hope this helps.

    Jose Francisco

    • Thank you very much, this is a very helpful explanation. I’m glad to hear that my interpretation of the problem was not, in your view, that far off the mark.

      Given that this appears to be structural problem embedded in Brazilian criminal procedure as it currently stands, I hope that these revelations might provoke some discussion of potential reforms to the system as a whole. I hope that structural reform issue doesn’t get drowned out by all of the (understandable) focus on _this_ judge in _this_ case.

  43. Dear professor Stephenson,

    I’m sorry, but I think you should know that a certain magazine and Mr. Dallagnol himself are improperly using your name to discredit Glenn Greenwald’s work. Mr. Dallagnol says on twitter:

    “Deltan Dallagnol‏
    Verified account
    @deltanmd
    Following Following @deltanmd

    Matthew Stephenson, professor de direito de Harvard e um dos principais estudiosos da corrupção, diz que ‘aqueles que roubaram as mensagens do celular de Dallagnol foram movidos por ideologia, desejo de desestabilizar a política ou proteger corruptos’

    Matthew Stephenson, Harvard law professor and one of the leading scholars of corruption, says that ‘those who stole the messages from Dallagnol’s cellphone were driven by ideology, desire to destabilize politics or protect corrupt people’”.

    Mr. Dallagnol shared an article from a right-wing magazine called “Crusoe”, link below:
    https://crusoe.com.br/secao/entrevista/o-proposito-e-desacreditar-a-lava-jato/

    I read your articles and you clearly are very rigorous with your arguments and very careful about your conclusions. This magazine’s article is obviously false. You are a respected scholar at a very prestigious University and what this magazine is trying to do by publishing this about you does not seem right to me. It actually seems very dishonest of them.

    Best regards,
    Claudio.

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