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, I’ve just found out about you via your acquaintance’s tweets. I imagine that the fact that he’s using your opinions to defend himself must be quite an interesting turn of events for you, alongside with the massive exposure that it represents.

    This has been a very interesting read. I commend you for taking your time to engage with the matter, and I fully welcome your opinion, regardless of whether or not I agree with it.

    For the time being, there’s only one question I’d like to raise with you and fellow commentators,

    On this paragraph, you’ve quoted (paraphrasing) the following sentence out of The Intercept’s reporting and, probably, Mr. Moro and Mr. Dallagnol’s own fingers:

    “Be careful about filing that request unless you have substantial evidence to support it,”

    It grabbed my attention because I believe there has been a relevant misunderstanding of what they’ve meant by the word ‘it’, used here. I tried to find the original quote in Portuguese but couldn’t quite tell what it was.

    I agree it would be innocuous if by ‘it’ they meant ‘the request’. A judge instructing a prosecutor to make sure he has enough evidence to support a request is perfectly fine for me. But I’m afraid that’s not what they meant. They meant “the narrative”.

    Moro was telling Dalagnol to be cautious not to have the public opinion shifting against Lava-Jato, curiously showing their belief that “against Lava-Jato” is automatically the same as “pro-PT”, “anti-Dilma”s impeachment”, or even a plurality of skeptics. In reality, all those different groups intersect, but are often separate.

    They lived in a bubble of unanimity – what they view as “public opinion” – where any person who dared to question their motives was likely a PT enthusiast, a corrupt politician, or just a terrible human being for any other reason. That, by the way, was the moment when I, a lifelong centrist and in no way a member of the PT, started to become very suspicious about this whole anti-PT crusade and the apparent righteousness of its most prominent actors.

    I do still believe a little bit in the over-zealousness argument, that judge and prosecutor were just naively “caught in the moment” of fighting corruption and made some mistakes, while blinded by the spotlights of a media elevating them to the status of deities.

    Day after day though, I believe less and less in this argument, and more and more on what you called a right-wing “conspiracy” to remove the Left from the federal government after four straight losses. After all, Dilma’s supposed “crimes” were standard practices undertaken by all presidents before her since 1989 (at the very least), and by most state governors before and after her impeachment.

    On that note, Mr. Dallagnol’s religiosity isn’t anecdotal or irrelevant, as you suggested, but central and more conspiratorial than you could ever imagine. I suppose you would have to have been born and raised here over the last almost 40 years, like I was, to truly grasp what’s going on.

    The quick rise of Neo-Pentecostalism, their entrance in politics, their unholy alliance with militarists, narco-trafficking organizations and illegal militas are not a coincidence, and evidence to corroborate such a “theory” is everywhere. It starts on the top, with president Bolsonaro, his family, and the places they’ve been and the friends they’ve made on the gated communities in Rio where they used to live in.

    Conversely, PT has been historically attached to the Catholic Church, still the major religion in Brazil, but in practice only to the most progressive, poor-loving wing of the Pope’s followers. Most Catholics dis embrace Moro’s and Dallagnol’s crusade and turned on the PT, but there’s still a lot of skeptics. It’s been indeed a crazy time since 2013, so it’s understandable that all parties involved are feeling uneasy about taking anything on its face value. Be it the PT, Moro, Lula or Dallagnol, it’s not absurd to believe that there are absolutely no uninterested participants on this mess. And their interests are often not democratic or ethical, and it’s my personal opinion that, when this is coming from The Law, it’s much, much worse.

    Again, I thank you for taking your time to share your analysis of this very complex situation with us all, whether we’re pro- or anti-Moro or just skeptical. I hope my contribution helps you a little bit, on your effort to understand the situation.

  2. This is a blog that is concentrating on legal issues. I believe it is trying to stay away from politics. So, posting or embedding a video where Intercept’s Greenwald is interviewing Lula has very little sense here:

    Both the Intercept and Greenwald have very little to do with real journalism. At best, they are advocates with an agenda, left and far away from the center. As such, they only present facts (or massage others) to fit their points of view and support their cuase. Greenwald (who lives in Brazil) and the Intercept have always supported Brazil’s left and specifically PT even before the Car Wash Investigation. They have called every politician on the right a fascist. The Car Wash investigation has sent to prison quite a few billionaires on the right of the political spectrum, but Greenwald and the Intercept are only calling for the release of those on the left, clearly having no problem whatsoever keeping the right wing politicians incarcerated. So much for journalistic integrity.

  3. Dear Professor,

    I am a French engineer and retired entrepreneur and have lived in Brazil for the last 40 years.
    I am not specially fond of the new Bolsonaro president but I am quite sure that former president Lula is a gangster and rightly deserves to remain in jail.

    First I would thank you for having the integrity to say and write that you were wrong. This is simply something that would never happen in Brazil. Perhaps only with a person as ethical as judge Moro would be able to have such an admirable conduct.

    But most importantly I have been shocked and extremely sad that a highly regarded specialist as you could be fooled by prejudice and regionalism.

    Prejudice because of the international biased news about Brazil assimilated to a reborn military dictatorship. The persisting image of the latin american bananas republic. I arrived in Brazil in 1973 among the military dictatorship and it had been a strong cultural shock for an european citizen. Also I have never liked military peoples in politics. Ironically, the most democratic elites are the highly educated newly appointed generals in the present government. I understand that this is difficult to apprehend for a foreigner. Also how to feel how deep is the hate of the majority of the citizens against the corrupt system universalized by the pt party conducted by lula. How deep is the hate against who is trying to destroy the Lava Jato and is hero judge Moro. Who? The still powerful corrupts…and apparently accomplices abroad such as journalists and intellectuals like you. I put apparently thinking specifically of you who wrote your first article in evident good faith.

    Regionalism because it is obvious that you analysed, at first, only one side of the story. Just the English one and from a known international entity. Once again I thank you for the intellectual honesty to recognize that. I am no jurist and am not interested here to discuss legal details.It is very clear that you were shocked by the fact that the judge and prosecutors were exchanging texts. I am not speaking of the content of the texts but only that the texts existed. You rightly stressed that this is flatly forbidden and would nullify the whole sentences….IN THE USA. As it has been confirmed by judge Moro himself and renowned jurists, in he brazilian tradition it is very common that the judge, the prosecutors and the lawyers routinely speak obviously within the legal restrictions.

    Finally I would like to suggest you an interesting subject of study. Could you write an article about how the members of the brazilian Supreme Court behave? How they are elected. Their relationships with politicians. Their public declarations in newspapers, on Tv,…
    I am sure a comparison with yours would be of upmost interest. Who knows, perhaps even reinforce democracy in Brazil ?

    With regards.

  4. Dear mr. Mathewson, As the comotion surrounding your self confessed ill-informed blog on the issue rises, and more details of the whistleblower leaks emerge on different news outlets (which you can not read unfortunately). It seems more and more unlikely your assumption of the incredible shrinking scandal is correct.
    It’s not shrinking. Your close conection to one of the main actors in vazajato scandal and their reference to your blog in their defence, i would suggest, actually does not help their narative. Repaetedly saying that there is not much to see here, doesn’t make it so. In the meantime the scandal only grows. While the context in which the messages were exchanged become clearer by the day, the image of judge Moro’s imparciality seems harder defend. At some point (and it’s been 2 weeks now) i would assume that any law professor would dare to state the obvious: That the while separate parts of the dialogue may actually be within legalaty acording to brazilian law, the entirety of the dialogues show a clear political bias amongst the judge and the prosecuters. The frequence and the tone of the dialogues show a judge and the prosecution working as a team in their collusion against the defendant.

    I would dare to say that the more people say that this is no scandal, the bigger it will become. And the longer it will take for you too see the writing on the wall, the deeper you will get involved in this scandal you believe will disappear soon….

    • It’s just a matter of reading the judge’s decision and the “leaks”: nobody serious would point a spot on it. Considering there’s a huge anti-Moro and anti-Bolsonaro campaign outside Brazil – mainly in Europe – I would not be surprised to know this above comment has a paid origin. Anyway, the other note from Brazil to the world is: things are getting better here, although lots of media channels say the opposite.

      • Finding someone guilty of undetermined facts, does that have any precedent in the history of mankind, i would be curious to know….

        Don’t worry i wasn’t paid to write my opinion, were you? (I know, it’s a silly question)
        In the meantime mr. Mathew Stephenson ( excuse me for my prior error in writing your name erroneously) during the deafening silence of this blog your opinion has been misquoted and spun out of context by guess what: the brazilian sensational magazine cruzoe wrote a article about you atricle. After mr. Moro allready having pointed to your article several times in his defence in the senate, it was foreseeable Deltanhol would do the same soon after.
        And you guessed it, Deltanhol posted the crusoe post on his twitter page (omitting the fact that you were his professor), while falsely qouting your question as a confirmation. Claiming you said that: the goal of the information theft is to shut down Lava Jato, or to further polarize and destabilize Brazilian politics.

        Your former student cherry picked a quote from your text, misquoted it and placed it out of context ( in a rather sensasionalist way.) Since you do have his contact maybe now would be the time to request deltan to correct his error.

        Furthermore it seems to me that you have gone for Moro-bait of the hacker narrative hook line and sinker. All we know is that there was a leak ( the hack story originated from moro himself and he has not provided any evidence for this thesis)

        Now, correct me if i am wrong. Aren’t all leaks illegal?
        And one would assume whistleblowers, in light of their knowledge, choose to break the law in order to lift the lid on unethical and/or criminal behaviour. If you can find any examply of a leak meant to support those whose privacy was invaded i would be verry curious to hear about it.

        Which bring me to my point. Why the sudden focus on the gravity and criminal origin of the data leak? It’s a first for this blog, at a seamingly convenient moment for the moro-narative, while it undermines the content of other posts in this blog. As you may remember that just before the vazajato scandal came out, sir posted an article on the positive developements in the protection of whistleblowers in kosovo.

        Do you see no problem in the effort of criminalizing a newsoutlet reporting on leaks? Because that is what has been happening in Brazil and so far your position on this has only added to the fire.

        Personally i agree with Deltan when he said: “No conflito entre direito à informação sobre crime grave e direito à privacidade, ganha interesse público”( in the conflict between the right to information on serious crime and the right to privacy, the public interest wins)
        To me it seems , in this case, the intercept absolutely made the right call when deciding to start publishing the vazajato leaks.

        Unfortunately, mr Stephenson you clearly have very little knowledge of the brazilian media landscape, it is far from plural. (And much has been written about it) It is no coincidence the intercept started a brazilian page during Dilma’s impeachment. All main media outlets alligned in giving much more attention to the pro-impeachment narative, that followed a questionable process and was based on shacky foundations. ( you can google it)

        It might interest you you know that several main newsoutlets attacked Glenn Greenwald for reporting a leak and protecting it’s source (which one would assume is the basis of any investigative journalism).

        All politics asside, the initial repercussions on the reporting showed clearly that if you were a whistleblower in Brazil, when it comes to trustworthiness Glenn is your man. ( Moro not so much) and who says Glenn even knows who this supposed “Hacker” is. (Proof please)

        In the meantime the incredibly shrinking scandal seems to rock the heart of Brazilian democracy, with journalistic freedom under attack and a full blown judiciary crisis just around the corner ( while it is hard to find issues brazilians agree upon i am yet to find a Brazilian who holds the supreme court to high account, most suspect it to be deeply corrupted. I do not see the supreme court resolving this issue without a new scandal arising, but i hope i am wrong on this).

        I was sitting here wondering what could be the biggest nightmare for the fight on corruption in general. A lack of journalistic freedom maybe? An unsafe environment for whistleblowers?

        Then it came to me, wouldn’t it be the greatest tragedy for the fight on corruption, for itself to get corrupted?

        Shouldn’t all anti corruption crusaders deplore corrupted corruption investigations, or at least clearly distance themselves from the methods of those who seem to abuse their judicial powers in the name of anti-corruption?

        Do you believe criticizing Lavajato automatically makes a person pro-corruption?

        As for Brazil,
        It seems to me mr Stephenson you still have quite some catching up to do before understanding the context in which the scandal is taking place.

        As for the media landscape would like to suggest you watch BBC’s “beyond citizen Kane” a documentary that was forbidden in Brazil due to pressure from the globo media group on the judiciary. But in the free world you should have no troubles getting access to it.
        And have you seen the Netflix documentary the edge of democarcy yet?
        Both movies should do for some great watching and will be very enlighting…

        • Shame on you, who defends corrupt people praising the leftist cause. This is ridiculous. For you, leftists, the cause is most important than the people, whom all the ideologies are created for! It’s totally biased consider that criminal hacking activity (what has happened for sure) and a piece of whistleblower information have the same ethic value, especially in this context: the first one made that for money, invading someone’s privacy illegally; the other one had access to all the information because it belongs to his/her job’s nature per se, as per example, a worker from the government who has to deal in a daily basis with sensitive information and then in certain point the person decides to spread all that information which is of public concern.
          Furthermore, it’d be interesting to quote the Código de Processo Penal Brasileiro (in a free translation something like “Brazilian Criminal Rites Codex”):
          “Art. 563. Nenhum ato será declarado nulo, se da nulidade não resultar prejuízo para a acusação ou para a defesa.”
          It says that no action regarding the process will be nullified if that action doesn’t cause prejudice to the rights of the defendant.
          In all the hacked chats between Moro and Dalagnol, there isn’t any kind of plan to create a false proof or false facts in order to manipulate the results of the suit or create a conviction environment in prejudice of Lula da Silva. It is quite the opposite: there is big care aiming do not create such a thing, that everything needs to follow the Codex, the law.
          Therefore, even if we would consider a legitimate whistleblower brought these facts AND the facts are true with no HTML manipulation AND Moro and Deltan were acting in an inappropriate way, none of the conversations shown so far could null the conviction sentence.
          Said that I may add that there is no bad behavior in Moro’s acts, as of under the Brazilian law, that’s why only the corrupt’s lawyers directly are complaining about this so considered Moro’s “bad behavior”.
          Lula is still arrested – and forever and ever and ever!

          • Dear edy, your remarks and especially your final conclusion clearly demonstrate your poltical bias and your inability to adjust your view in face of new facts being presented. It shows your stance that whatever happens, Moro’s corrupted lurings should be anulled in no way whatsoever. Exposing your hatred. Curiously i wasn’t even talking about annulment….
            My piont was that this a huge scandal that will not blow over anytime soon.

            My second point is that justice should be blind, edy, do you dissagree?
            Should a judge be imparcial or not?

            Speaking of imparciality: the secret dialogues between Daltan and Moro clearly show their preocupation in remaining an image of imparciallity, to actually remain impacial seems to be of no concern, at least in the leaks reported on so far.

            Pointing to other cases in which a judge seems to have acted impartiality, does not rule out that the judge may have acted partially in specific cases.

            Let’s say you were a teacher that hates one of your students. When grading his work you judge him unfairly while giving the rest of the class the grades they deserve. Is that a fair teacher?

            Moreover i question how this very article has been used by certain actors in the vazajato case and certain media in Brazil. One would assume the very author of this blog would share my concerns, but so far……. (crickets)

    • There’s another point: it is said above – as a point of argument – that the author is somewhat linked to the prosecutor side. It also should be showed that the Intercept “journalist” and owner is spouse of a left-winged politician who, indeed, earned his mandate from the decline of a strong lava-jato (and Bolsonaro) enemy.

    • Speculating that the intecept brazil worked together with hackers or emphasising hackers involvement in this scandal serves no other purpose then criminalizing the journalistic work on vazajato. Serveral other journals besides the intercept have jumped ship on the hacker narative and are now actually reporting on the content of the leaks, moreover these outlets, veja, folha de sao paulo have verified the content of the leaks and like correio brasiliense they have come to the conclusion the content of the leaks is real and there exists no indication whatsoever that the content has been tampered with.
      The reports show that several lava jato prosecuters used the telegram desktop aplication. For users this currently is the only way to make a back-up of the conversation. Speculating about a large cybercrime attack while the simplest way to get access to the material is quickly go on the computer when a lavajato member leaves his computer unguarded for a moment, seems highly irresponsible to me. Moreover the discussion on the origin of the leak is quite useless at the moment, because there is no proof yet.
      What also is quite telling is the mediatic denial bubble that has been formed. O antagonista and globo are now the only outlets still defending Moro. Globo in perticular has gone quiet on the issue.
      Lava jato prosecutors on their twitter account have resulted to only retweet from these outlets and the interview with Matthew Stephenson in Crusoe!, flying the banner of mister stephenson harvard professor, as the worldwide anticurruption guru…
      Instead each of these people could easily confirm the veracity or falsification of the content by allowing the federal police access to theis telegram cloud. Coincidentally all of these people seem to have deleted all materials, due to the fear of the suposed “hacker”. Curiosly they al forgot to make the simple telegram backup, which could serve as proof of a possible hack and as evidence of their inocence.
      Moreover it is important to remember that by brazilian law any comunication between judge, prosecution and defendant need to be reported during the process. The mere existance of the secret messages amounts to a crime, the destruction of this evidence is an even bigger crime.
      Could you enlighten us on this? Mr. Matthews?
      Have you ever comunicated with mister Dallagnol through telegram? Does the possibility exist that your conversations are part of the obtained material? And if there would be Lavajato reporting showing you in dialogue with the lava jato task force, would you be willing to provide access to your telegram cloud to verify the content? Or did you delete your history due to fear of hacks? ( which telegram denies have taken place)
      Meanwhile the denial of moro’s double standard and the criminalization of mister Greenwald continue.
      Very worrysome to say the least:

      • On your first point, about there being no legitimate reason to emphasize the concern about hackers illegally accessing private data and sharing it with media outlets, I respectfully disagree. One can be concerned about the substance of the material disclosed AND be concerned about how that material was obtained. One can think that the Intercept journalists made the correct decision in deciding to publish excerpts of this material AND believe that those who obtained the material in the first place acted illegally and unethically. And this is not just the position I take in this particular case. I think all Americans (indeed, all citizens) should be concerned about the hacking of Democratic National Committee servers in the run-up to the 2016 election. I think all citizens should be concerned about the hack of the University of East Angelia climate research unit emails, and their selective disclosure by right-wing media outlets. The ease with which communications we believe to be private can be accessed by outsiders, with their own agendas, should worry all of us, regardless of our politics, and regardless of the extent to which, in any individual case, the illegally obtained material sheds light on a matter of important public interest.

        As for your question as to whether I’ve ever communicated with Mr. Dallagnol via text message, the answer is yes, though never with Telegram. If they have his whole phone, I’m sure they have some of my text messages. And no, I would not be willing to provide access to my private texts with Mr. Dallagnol, or anybody else—not because there’s anything embarrassing in them, but because it’s none of your business, or anybody else’s.

  5. Dear Professor Stephenson,

    Here you are writing the criminal lawyer RONALDO FERREIRA MARINHO (OAB / PA 18.225-B), and I make brief comments on the dissemination of his “Additional Reflections on the leaks of Operation Lava Jet.”

    In doing so, I say as soon as I respectfully diverge from his conclusions that, in the dialogues between the Judge and the Prosecutors of the Lava Jato, there is nothing illegal that can annul the conviction of former President Lula, notably because here in the Brazil the criminal procedural system is guided – all of it – by the principle of impartiality of the judge.

    This means that the Judge must keep equidistance of the parties (lawyer and / or prosecutor of the case), which was not done by Judge Sérgio Moro.

    On the contrary, he (the Judge) not only colluded with the Prosecutors, but advised them in the search for evidence, in this case, a witness.

    This is expressly prohibited by art. 254 of the CPP.

    In our accusatory system, the functions of accusing, judging and defending are separate. This is to avoid promiscuity.

    Best regards,


    OAB / PA 18.225-B

  6. There is this 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 acusatorial 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.

  7. Dear mr. Stephenson, maybe this article could be of assistence to your research on the incredible shrinking scandal:

    What is your take on the question: How come Sergio Moro is still the Brazil’s Minister of justice?

    And did you get a copy of todays VEJA?

  8. Dear mr. Stephenson, maybe this article could be of assistence to your research on the incredible shrinking scandal:

    What is your take on the question: How come Sergio Moro is still the Brazil’s Minister of justice?

    And did you get a copy of todays VEJA?

  9. Dear Professor, I will not translate this letter into English. I believe it is your duty to know my language, as well as to know the background of my legal system before giving such mediocre opinions.

    Reflexões à nudez: a imagem vista do espelho turvo
    Uma carta aberta a um professor de Harvard

    O Brasil tem passado por tempos difíceis onde a consistência de nosso sistema jurídico tem sido colocada à prova por uma série de divulgações de supostas conversas, travadas entre um juiz de direito e membros de nosso Ministério Público. Observa-se, nesse contexto, um efusivo cenário de discussões acerca da licitude ou ilicitude destas supostas provas à luz de uma análise judicial com a finalidade de reverter a condenação, claramente política, de um ex-Presidente de nossa República.
    O professor de Harvard Matthew Stephenson (, desconhecedor de nossa língua, de nosso direito, de nossa história, amigo de um dos procuradores envolvidos em todo esse embroglio, resolveu comentar ao mundo suas impressões. E a nossa impressão é que seu silêncio teria sido mais eloquente.
    Em suas “reflexões” o professor americano afirma incialmente que os relatos do The Intercept apontariam uma suposta condução antiética de um juiz brasileiro em investigações no âmbito processual penal e que as denúncias e os casos apresentados pelo Ministério Público estariam motivados por um viés ideológico contra Lula e seu partido o PT.
    Então, como base em suas impressões preliminares, o professor considerou ser inadmissível, ser “o cúmulo da impropriedade” e “uma violação indesculpável da ética judicial” o acontecimento das mensagens entre o ex-juiz Moro e os procuradores da “lava-jato”. Depois, ele passa a tratar como inócuas em grande parte as falas publicadas por não conterem material muito problemático além do fato das próprias comunicações em si.
    Continuou dizendo que o material em si não forneceria qualquer base legal ou probatória para mudança da condenação de Lula e que o fato de os procuradores não quererem que Lula vencesse as eleições, por si só, não caracterizaria o viés ideológico ou uma parcialidade partidária.
    E agora o professor reduziu o que chamou de “escândalo” a algo “consideravelmente menos escandaloso do que o Intercept noticiou, ou que eu acreditava originalmente”.
    Esse senhor, um professor de Harvard, precisa entender que o núcleo dessa discussão está em formação. Não precisamos de “juízes” ou opinantes estrangeiros que à luz de um mediano par de palavras, sem conhecimento mínimo de nosso sistema jurídico, venha delinear “conclusões” que de forma obscura tentam impor uma polaridade acentuada neste contexto em que o povo brasileiro, desde o vazamento dessas supostas conversas, se vê envolvido.
    Ao contrário desse subjetivismo quase colonialista sobre nossos preceitos jurídicos, expresso por um norte americano, chamamos a atenção para o fato de que em nosso sistema de leis temos determinações imperativas sobre a relação que deve ser mantida entre o Juiz, na condição de agente político do Estado, e as partes envolvidas, incluindo o Ministério Público e advogados.
    O art. 254, inciso IV, do Código de processo Penal brasileiro, é claro em estabelecer a suspeição de juiz que “tiver aconselhado uma das partes”. Qualquer indicativo que demonstre um mero apontamento ou dica, mesmo que de forma superficial pode invalidar o processo. E é disso que se tratam as mensagens divulgadas pelo The Intercept. Não se trata de mera comunicação entre magistrados e procuradores sobre questões administrativas do processo, como é a praxe. Por outro lado, não existe sequer uma mensagem do Juiz com a defesa do réu condenado.
    Caro professor, não se convença, e nem tente nos convencer, em hipótese alguma com sua ideia simplista e superficial de vestir com um manto ético ou com a mortalha antiética a conduta dos agentes envolvidos nas conversas.
    Aqui a questão perpassa por um cumprimento ou descumprimento da lei em face da validade de um processo, no caso, criminal. Porque nosso sistema jurídico, caro professor, é determinado por um império normativo que determina os limites de atuação do juiz em nome da imparcialidade, o que está além dessa teia de palavras quase sem sentido que o senhor coloca em seu texto. Em nosso meio são vedadas as interações heterodoxas do magistrado com as partes porque podem e vão afrontar nossa lei.
    Ao contrário do que este professor de Harvard coloca, a questão da valoração ética da relação entre um magistrado e as partes envolvidas num processo encontra seus limites naquilo que pode ou não afetar a imparcialidade do Juiz.
    O simples fato de terem ocorrido os diálogos sem a participação da defesa, denuncia parcialidade. Na mais simples literalidade do termo. Não houve em nenhum momento quaisquer diálogos entre o magistrado e a defesa, a não ser em contexto processual e audiências tudo à vista do Ministério Público. Logo, soa estranho que Juiz e procuradores mantenham linha tão acentuada de conversações entre si, sem que tenha havido equivalência com a defesa.
    Além das necessárias interações que juízes precisam ter com advogados e promotores no seio do processo, quando contrariamente à lei ocorrem verdadeiras parcerias com uma só das partes, as tais têm o efeito de destruir a equidistância que deve ser mantida entre aquele que deve julgar e aqueles que trabalham em prol do julgamento.
    E causa-nos perplexidade que um professor de Harvard venha a público tecer considerações tão absurdas, minguadas de substrato jurídico, quanto as do senhor. Tirando suas conclusões como se as tais fossem ter qualquer importância em nosso meio jurídico. Contraria, inclusive, a lógica do pensamento sobre a “ética” processual do sistema judiciário norte americano.
    Um exemplo desta lógica de pensamento foi a demissão da Juíza Gardiner em um caso famoso em terras americanas, no condado de Broward, Flórida, em 2007. Segundo as notícias a Juíza e o promotor Howard Michael Scheinberg trocaram 949 telefonemas e 471 mensagens de texto durante o julgamento em que ambos atuavam. Foi uma conduta imprópria segundo o que apuramos, levando a demissão da juíza e a proibição de atuar como advogada . O resultado não foi uma valoração de conteúdo ou mesmo ilações sobre o alcance do escândalo. Ocorreram as conversas que caracterizaram a parcialidade e que foram o suficiente para levar à imposição das penalidades legalmente devidas aos envolvidos.
    Podemos citar ainda o caso da Juíza Elizabeth J. Cocker no Texas no caso State v. David M. Reeves onde a troca de mensagens com a promotoria conduziu à demissão (resignation) da magistrada.
    Nos dois casos, caro professor, ficou ressaltado que a imparcialidade não é medida pelas simples interações entre juízas e procuradores, mas pelo fato destas interações apontarem a inclinação das magistradas em favor de uma das partes. Dessa forma, diferentemente do que Harvard, seus professores ou o senhor possam concluir, o que importa é que a necessária distância do Estado-Juiz para com os agentes do conflito ocorra em nome da imparcialidade.
    Isso, colega professor, não tem absolutamente nada a ver com as versões jurídicas, alicerçadas em quaisquer critérios filosóficos da justiça ou da injustiça que as motivações dos agentes possam levar ao processo. Porque nesse caminho não encontramos mais que ilações. Não podemos admitir falaciosas conclusões, com argumentos de pouco fôlego, como os do senhor, a respeito da valoração do conteúdo dos diálogos, desconsiderando as condutas que, por si só, parecem atentar contra o conceito de imparcialidade do Juiz.
    Se o senhor está ou não convencido de que o ex-Presidente Lula foi tratado com Justiça ou injustiça, condenado com provas ou sem provas, há ou não um ataque á “lava jato” na verdade tais perspectivas de análise não estão ainda em voga na discussão desta sucessão de notícias jornalísticas que vêm sendo propagadas em nossos veículos de imprensa.
    Digo isto porque a verdadeira pauta ainda não foi lançada sobre a mesa. Ainda faltam aos atores deste processo discutirem nuclearmente a ética procedimental do processo penal em questão. Porque ao que tudo indica, podemos ter tido um processo com grau de mácula que o leve à invalidade formal e material. Mas, acho que o senhor sequer entende de tais conceitos, considerando suas opiniões parcas.
    O que interessa é que nosso povo consagrou em nossa legislação processual civil, penal, administrativa e, por fim, constitucional, que existem limites legais para a interação do Juiz com as partes. Na nossa Constituição, há de se respeitar algo que o senhor conhece muito bem: Due Process of Law ou simplesmente Due Process, bem como, a dignidade das pessoas envolvidas no processo.
    Porque para além de nossos “convencimentos”, seja lá quais forem, não resta mais nada do que nossa nudez frente a imagem distorcida que temos de nós mesmos, em um espelho turvo.
    A garantia de um processo ético, legal e imparcial passa igualmente pelas interações positivas e negativas entre as partes e o Juiz. Porque se um Juiz interagisse com a defesa nesse mesmo caso da “lava jato”, mesmo altruísta em suas intenções, para absolver um réu ou réus onde escancaradamente houvesse provas forjadas, certamente esse Juiz seria tão punido quanto qualquer outro Juiz agindo em sentido contrário.
    Seu texto nos evoca um parecer medíocre de um jurista alienígena sobre um direito desconhecido a ele. Tece conclusões absurdas e faz análises de conteúdo probatório à meia luz de premissas falsas e superficiais.
    Suas profundas preocupações com a “impropriedade” das conversas entre um Juiz de nosso Tribunal e promotores federais brasileiros é alardeada por seu próprio discurso sem qualquer conteúdo filosófico ou jurídico. Não nos parece uma conduta própria de um professor de Direito, à medida que se sobrecarrega de paixões pessoais, decorrentes de sua relação de amizade com o Sr. Deltan Dallagnol (como disse em sua fala no seu blog).
    Quando o senhor afirma conclusivamente que a lei brasileira não parece proibir comunicações substantivas ex parte, acho que vale a pena um convite para conhecer nossa legislação. Numa leitura rasa, vai conhecer uma série de limitações processuais à comunicação das partes com o Juiz. A ultrapassagem de tais limites pode levar à nulidade do processo. Não nos cabe aponta-los em detalhe, porque não é nossa intenção lhe dar uma aula de processo penal brasileiro.
    Sua análise do artigo 254 de nosso Código de Processo Penal é sofrível. A forma como o senhor faz extensão de nossa limitação legal de interação, com a autorização da mesma lei para que o Juiz participe da instrução probatória só pode encontrar plateia em meio a desavisados e leigos.
    Obviamente que ao Juiz cabe o convencimento das provas apresentadas e mais, cabe a ele a produção de algumas que julgar necessárias para formar um juízo decisório próprio. Mas, como não queremos lhe dar lições de direito brasileiro, deixamos aqui apenas duas frases: Ao Juiz é dado o julgamento do processo! Ás partes é dada obrigação de construir o processo, cada uma em sua posição.
    Se nos Estados Unidos ou em outra parte é diferente, não nos cabe dizer e nem tecer considerações como as suas sobre “um problema estrutural com o processo criminal brasileiro”.
    Não, meu senhor, aqui no Brasil não vamos permitir que culpados ou inocentes sejam vitimados por um sistema de corrupção ética quando essa existir no contexto processual. Sempre que se levantarem os iníquos, logo em seguida, advogados, juízes, promotores em geral que não pactuam com a quebra da ética normativa vão se erguer e não haverá meio termo. Dura lex, sede lex!
    E certamente se há condutas abusivas e criminosas por parte da imprensa que alardeia os diálogos questionáveis entre autoridades de nosso estado, com certeza não haverá outro destino senão a justiça em face de seus crimes e abusos caso sejam comprovados.
    Existe sim um quid pro quo nas conclusões e premissas que o senhor levanta e nos espanta com tamanha intrepidez diante de um tema (no Direito Brasileiro) que nem de longe o senhor demonstra conhecimento.
    A nós expectadores do Direito Brasileiro restam as perspectivas de que se faça valer a lei, de modo que a segurança jurídica seja resgatada de seu abalo e haja no seio da população brasileira uma retomada do crédito na tão perseguida justiça!
    Um conselho, se nos permite: vista-se! Veja por si próprio que a imagem refletiva no espelho turvo que o senhor olha é a da própria nudez de seu sistema jurídico, então, atenha-se a ele.
    Se o estimado professor tem algo a discutir, discutiremos no campo da filosofia jurídica, mas não de forma superficial em que você se imiscuiu no debate, para proteger um amigo. O senhor deve se reduzir ao debate promíscuo, raso, passional e político em seu blog, no recôndito de seu escritório e mesmo assim a respeito de questões que o senhor minimamente conheça de seu sistema jurídico. Caso contrário, cale-se e não nos envergonhe com ilações tão superficiais e tão medíocres sobre nosso sistema jurídico. Em terras brasileiras o senhor, com suas análises do Direito Brasileiro, tem a importância de nada, com coisa alguma.
    Um abraço!

    Antonielle Julio
    Professor- Mestre em Direito pela Universidade de Brasília/UNB.

    • Dear mr. Stephenson. This expert raises some very valid points.

      “do not embarrass us with such superficial and mediocre conclusions about our legal system.”….

      Could I be of any assistance to you in translating this? I Believe it could be of great importance to the long awaited update of your opinion / defence of your personal and your friend Deltan’s conduct.

      • I will always welcome assistance in better understanding the complex legal, ethical, and factual matters at issue, including those that advance constructive criticisms of any positions that I have previously taken.

        • Here is a draft translation. It is not perfect but it should suffice to get a general idea.
          (With the courtesy of google translate)


          Reflections to nudity: the image seen from the murky mirror
          An open letter to a Harvard professor

          Brazil has gone through difficult times where the consistency of our legal system has been put to the test by a series of disclosures of alleged conversations between a court of law and members of our Public Prosecution Service. In this context, there is an effusive scenario of discussions about the legality or illegality of these supposed evidence in the light of a judicial analysis with the purpose of reversing the clearly political condemnation of a former President of our Republic.
          Harvard professor Matthew Stephenson (, ignorant of our language, our right, our history, friend of one of the solicitors involved in all this embroglio, decided to tell the world his impressions. And our impression is that his silence would have been more eloquent.
          In his “reflections,” the American professor states initially that The Intercept reports would point to a supposed unethical conduct of a Brazilian judge in criminal procedural investigations and that the denunciations and cases presented by the Public Prosecutor’s Office would be motivated by an ideological bias against Lula and his party the PT.
          Then, as a basis for his preliminary impressions, the professor considered it inadmissible to be “the height of impropriety” and “an inexcusable violation of judicial ethics” the event of the messages between former Moro judge and the prosecutors of the ” . He then goes on to treat as largely innocuous the statements published because they did not contain very problematic material other than the fact of the actual communications itself.
          He went on to say that the material itself would not provide any legal or probative basis for changing Lula’s conviction and that the fact that prosecutors did not want Lula to win the election would not in itself characterize ideological bias or partisan bias.
          And now the professor reduced what he called “scandal” to something “considerably less scandalous than Intercept reported, or that I originally believed.”
          This gentleman, a Harvard professor, needs to understand that the core of this discussion is in the making. We do not need “judges” or foreign commentators who in the light of a medium pair of words, without a minimum knowledge of our legal system, come to delineate “conclusions” that obscurely attempt to impose a marked polarity in this context in which the Brazilian people, since the leak of these supposed conversations, is involved.
          Contrary to this quasi-colonialist subjectivism about our legal precepts, expressed by an American North, we draw attention to the fact that in our system of laws we have imperative determinations on the relation that must be maintained between the Judge, in the condition of political agent of the State, and the parties involved, including the prosecutors and lawyers.
          The art. 254, item IV, of the Code of Criminal Procedure in Brazil, it is clear that a judge may be suspected of having “advised one of the parties”. Any indication that shows a mere note or tip, even if superficially can invalidate the process. And that’s what the messages posted by The Intercept are all about. It is not a matter of mere communication between magistrates and prosecutors on administrative matters of the process, as is the practice. On the other hand, there is not even a message from the Judge about the defendant’s conviction.
          Dear professor, do not be convinced, and do not try to convince us, under any circumstances with your simplistic and superficial idea of wearing with an ethical mantle or with the unethical shroud the conduct of the agents involved in the conversations.
          Here the question pertains to a compliance or non-compliance with the law in the face of the validity of a process, in this case criminal. Because our legal system, dear professor, is determined by a normative empire that determines the limits of the judge’s performance in the name of impartiality, which is beyond that almost meaningless web of words that you put in your text. In our midst the heterodox interactions of the magistrate with the parties are forbidden because they can and will face our law.
          Contrary to what this Harvard professor puts, the question of the ethical assessment of the relationship between a magistrate and the parties involved in a case finds its limits in what may or may not affect the Judge’s impartiality.
          The mere fact that the dialogues took place without the participation of the defense, denounces partiality. In the simplest literality of the term. There was at no time any dialogue between the magistrate and the defense, except in a procedural context and hearings all in the public prosecutor’s view. Therefore, it seems strange that Judge and Prosecutors maintain such a marked line of conversation with each other, without there being any equivalence with the defense.
          In addition to the necessary interactions that judges need to have with lawyers and prosecutors in the proceedings, when contrary to the law there are true partnerships with one party, they have the effect of destroying the equidistance that must be maintained between the judge and those who work for the trial.
          And we are perplexed that a Harvard professor comes to the public to make such absurd considerations, less legal as well as those of the master. Taking its conclusions as if they were to have any importance in our legal environment. It also contradicts the logic of thinking about the procedural “ethics” of the American judicial system.
          An example of this thinking was the dismissal of Judge Gardiner in a famous case on American soil in Broward County, Florida, in 2007. Judge and prosecutor Howard Michael Scheinberg reportedly exchanged 949 phone calls and 471 text messages during the judgment in which they both acted. It was an improper conduct, according to what we learned, leading to the dismissal of the judge and the prohibition of acting as a lawyer. The result was not a valuation of content or even conclusions about the scope of the scandal. The conversations that characterized the bias occurred and were enough to lead to the imposition of penalties legally owed to those involved.
          We can also cite the case of Judge Elizabeth J. Cocker in Texas in State v. David M. Reeves where the exchange of messages with the prosecution led to the resignation of the magistrate.
          In both cases, it was stressed that impartiality is not measured by the simple interactions between judges and prosecutors, but because these interactions point to the inclination of the magistrates in favor of one of the parties. Thus, unlike what Harvard, your teachers or you may conclude, what matters is that the necessary distance from the Judge to the agents of the conflict occurs in the name of impartiality.
          This, professor, has absolutely nothing to do with the juridical versions, based on any philosophical criteria of justice or injustice that the motivations of the agents can lead to the process. Because on this path we find no more than lessons. We can not admit fallacious conclusions, with little arguments, like those of the Lord, regarding the value of the content of the dialogues, disregarding the conduct that in itself seems to undermine the Judge’s concept of impartiality.
          Whether or not you are convinced that former President Lula has been treated with justice or injustice, condemned with evidence or without evidence, there is or is not an attack on “jet lag” in fact such perspectives of analysis are not yet in vogue in discussion of this succession of news stories that have been propagated in our press vehicles.
          I say this because the real agenda has not yet been thrown on the table. The actors in this process still have to discuss the procedural ethics of the criminal case in question. Because it seems that we may have had a process with a degree of macula that leads to formal and material invalidity. But, I think you do not even understand such concepts, considering your petty opinions.
          What matters is that our people have enshrined in our civil, criminal, administrative, and, lastly, constitutional procedural legislation that there are legal limits to the interaction of the Judge with the parties. In our Constitution, we must respect something that you know very well: Due Process of Law or simply Due Process, as well as the dignity of the people involved in the process.
          Because beyond our “convictions,” whatever they may be, there is nothing left but our nakedness in the face of the distorted image we have of ourselves in a murky mirror.
          The guarantee of an ethical, legal and impartial process also goes through the positive and negative interactions between the parties and the Judge. For if a Judge were to interfere with the defense in this same case of the “jet lava,” even altruistic in his intentions, to absolve a defendant or defendants where there was open evidence forged, surely that Judge would be as punished as any other Judge acting in the opposite direction.
          His text evokes a mediocre opinion of an alien jurist about a right unknown to him. It makes absurd conclusions and makes analyzes of probative content in the half light of false and superficial premises.
          His deep concerns about the “impropriety” of the conversations between a Judge of our Court and Brazilian federal prosecutors is boosted by his own speech without any philosophical or legal content. It does not seem to us to be the proper conduct of a law professor, as he is overburdened with personal passions, resulting from his friendship with Mr. Deltan Dallagnol (as he said in his blog).
          When you state conclusively that Brazilian law does not seem to prohibit substantive ex parte communications, I think it is worth an invitation to know our legislation. In a shallow reading, you will know a series of procedural limitations to the parties’ communication with the Judge. Exceeding such limits may lead to the invalidity of the process. We can not point them out in detail, because it is not our intention to give you a Brazilian criminal case class.
          Your analysis of Article 254 of our Code of Criminal Procedure is misplaced. The way you extend our legal limitation of interaction, with the authorization of the same law so that the Judge participates in the probationary statement can only find an audience among the unsuspecting and laymen.
          Obviously, the Judge must be convinced of the evidence presented and more, it is up to him to produce some that he deems necessary to form a decision of his own. But since we do not want to give you lessons from Brazilian law, we leave here only two sentences: Judge is given the trial of the case! The parties are given an obligation to build the process, each in its position.
          Whether in the United States or elsewhere is different, we can not say or even make considerations like yours about “a structural problem with the Brazilian criminal process.”
          No, my lord, here in Brazil we will not allow guilty or innocent people to be victimized by a system of ethical corruption when it exists in the procedural context. Whenever the wicked rise, soon thereafter, lawyers, judges, prosecutors in general who do not agree with the breach of normative ethics will rise and there will be no middle ground. Hard lex, thirst lex!
          And certainly if there is abusive and criminal conduct on the part of the press that flaunts the questionable dialogues between authorities of our state, surely there will be no other destination but justice in the face of their crimes and abuses if they are proven.
          There is a quid pro quo in the conclusions and premises that you raise and it amazes us with such intrepidity in the face of a theme (in Brazilian Law) that you do not know much from afar.
          We expect the Brazilian law to be enforced, so that legal security is rescued from its shock and there is a resumption of credit in the so persecuted justice within the Brazilian population!
          A piece of advice, if you please: dress yourself! See for yourself that the reflective image in the murky mirror that you look at is the very nakedness of your legal system, so stick to it.
          If the esteemed professor has something to discuss, we will discuss in the field of legal philosophy, but not in a superficial way in which you got involved in the debate, to protect a friend. You should reduce yourself to the promiscuous, shallow, passionate and political debate on your blog, in the back of your office, and even on matters you know least of your legal system. Otherwise, shut up and do not embarrass us with such superficial and mediocre conclusions about our legal system. In Brazilian lands you, with your analysis of the Brazilian Law, have the importance of nothing, with nothing.
          A hug!
          Antonielle Julio
          Professor- Master of Law at the University of Brasília / UNB

  10. Thanks for your article – yet another batch was released and the scandal is even smaller, this time they ‘leaked’ what was already public court records …. We have linked your article from our site, we hope that is okay. Thanks for writing.

    • Go mr. Stephenson… you still have time to allign yourself with this upcomming fake news campaign before it hits the web tomorrow. Oantagonista and their cronies desperately need your support!

      It would be very interesting also to research who is behind these attempt to discredit and criminalize news-outlets who’s reporting revealed the scandalous lava jato secret messeges.

  11. Still shrinking?… Mr. Stephenson, don’t you owe your readers a thorough update on your opinion on the operation carwash/vazajato after all it’s reveletions?
    This blog seems to now hide in “neutrality”, leaving the opinions to other writers…. Please mr. Stephenson, tell me it isn’t so, please corfirm you are working on a huge article on the vazajato revelations and its veracity and impact.
    Here’s a good source to get started:

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