As readers of this blog are likely well aware, last month The Intercept published a series of articles, in both Portuguese and English, that called into question the fairness, legitimacy, and motivations of the Lava Jato (or “Car Wash”) anticorruption operation in Brazil. These articles were based on private text messages between prosecutors and then-Judge Sergio Moro (and among members of the prosecution team) that The Intercept obtained from an anonymous source (widely suspected to be an outside party who hacked prosecutors’ cell phones). The revelations raise a number of questions about the Lava Jato operation, including whether the leaked text messages demonstrate that Judge Moro violated Brazilian law and/or ethical codes, and if so whether these breaches would invalidate the convictions of at least some of the Lava Jato defendants, most notably former President Luiz Inácio Lula da Silva (known as Lula).
Shortly after the first set of Intercept stories came out, I offered my own perspective on the implication of the leaked text messages (see here and here). But on the specific question of whether these text messages were unlawful or unethical, I was and remain uncertain, not least because evaluating this particular question requires expertise in Brazilian law. To help shed further light on this topic, and to assist others in understanding the complex legal and ethical questions at stake, today’s blog post features a point-counterpoint debate between two Brazilian legal experts with opposing perspectives on this question:
- First, Ademar Borges de Sousa Filho (a Professor of Law at IDB-Brasilia and a practicing defense attorney) makes the case that the text messages disclosed by The Intercept demonstrate that Judge Moro behaved unethically and unlawfully, and that his lack of impartiality requires the nullification of the conviction of Lula (and possibly other Lava Jato defendants, though any such decisions would need to be made on a case-by-case basis).
- Next, Luciano Benetti Timm (the National Consumer Protection Secretary at the Brazilian Ministry of Justice and Professor of Law at FGV São Paulo) presents a rebuttal, arguing, first, that the unauthenticated text messages obtained by The Intercept are not legally admissible, and that even if they were, they do not demonstrate any illegal partiality, or unethical behavior, by Judge Moro, and therefore do not provide grounds for questioning the convictions of Lula (or any other Lava Jato defendant).
Before proceeding, I should note that there are a number of other legal and political issues that are being hotly debated inside and outside of Brazil related to the Lava Jato case, Lula’s conviction, and related matters. The pieces below do not address these other issues, because I specifically requested Professor Borges and Professor Timm to focus narrowly on the question of the legality/ethics of the communications between Judge Moro and the Lava Jato prosecutors. I hope that readers find the debate below useful and enlightening on this issue.
POINT (Professor Ademar Borges): The Lava Jato Leaks Demonstrate that Former Judge Sergio Moro Lacked Impartiality, Meaning that Lula’s Conviction Must be Vacated
The exposés published by The Intercept Brazil have disclosed the content of messages exchanged between former federal judge Sergio Moro and Lava Jato prosecutors, particularly lead prosecutor Deltan Dallagnol. The large number of messages exchanged between the prosecutor who was in charge of the Lava Jato task force and the federal judge responsible for adjudicating the charges brought by that same prosecutor call into question the impartiality of that judge, and require nullification of the case or cases in which that lack of impartiality has been revealed.
The Accusatory System and the Impartiality of the Criminal Judge in Brazil
To understand and evaluate the impropriety of the text messages between the presiding judge and the prosecutor, it is first necessary to understand that Brazilian law rigidly separates the functions of the judge and the prosecutor in criminal proceedings. Indeed, this is no longer the subject of significant disagreement in national case-law. In 2014, the Supreme Federal Court (the Supremo Tribunal Federal, or STF) set an important precedent (ADI 5104 MC, Rapporteur Justice Luís Roberto Barroso, Full Bench (Plenary)) that affirmed the absolute separation between the functions of accusing and of judging in the criminal process, declaring that “the 1988 Constitution made an unequivocal choice for the accusatory system—not the inquisitorial system—creating the basis for a profound change in the conduct of criminal investigations and prosecution of criminal cases in Brazil.” The most important feature of this accusatory system, as Justice Barroso’s majority opinion stressed, is the establishment of “a rigid separation between prosecuting and judging.” This rigid separation, the STF continued, has two main consequences for Brazilian criminal procedure: First, the judge ceases to play an active role in the investigation and prosecution stage, in order to preserve his or her neutrality at the trial and judgment stage of the case. Thus the judge must remain passive, acting only in response to the parties. As STF opinion put it, Brazilian criminal procedure “segregates the investigation, prosecution, and trial phases, and it is not permissible for the judicial authority to determine the course of the investigations, to the detriment of its own neutrality.” Second, and relatedly, the judge must treat the prosecution and defense equally, remaining equidistant from both parties. These principles, though articulated especially clearly and forcefully in Justice Barosso’s 2014 decision, were hardly novel, as the same basic understanding had already been asserted on other occasions. For example, in a 2008 decision (HC 95009, Rapporteur Justice Eros Grau, Full Bench), the STF declared that Brazil’s accusatory system prohibits a judge in a criminal case from becoming directly and personally involved with the police and prosecutors in the planning of the investigations, because a judge who does so can no longer be considered independent and impartial. The requirement of judicial impartiality, the Court held, requires the criminal judge’s “complete disengagement from investigative activity and active combat of crime.”
Moving from these general principles to the specific statutes on point, the Brazilian Criminal Procedure Code guarantees the impartiality of the judge in Article 252 (which establishes rules of “impediment,” prohibiting a judge from presiding over a case when the judge has a family relationship with the parties or has acted as a lawyer or witness in the case) and in Article 254 (which establishes what in Brazil are called rules of “suspicion,” allowing either party to demand recusal of a judge who has certain other relationships with the parties to the case, relationships that the judge must disclose). As most relevant here, Article 254, paragraph IV requires disclosure and on-demand recusal if the judge has “advised” either party. Furthermore, the general “suspicion” clause of the Civil Procedure Code (Article 145, paragraph IV), which is applicable to criminal proceedings, says that a judge is “suspected” whenever he or she is “interested in the judgment of the case in favor of either party.”
In addition to these statutory provisions, Brazilian courts have applied analogical and teleological reasoning to elaborate and refine the rules on judicial impartiality (see, for example, here). As the Superior Court of Justice (the Superior Tribunal de Justiça, or STJ) has explained, there are a multitude of other connections between judges and parties that can corrupt the impartiality of the judge, in addition to those expressly provided by the Criminal Procedure Code (see, for example, HC 331.527, Rapporteur Judge Jorge Mussi, Fifth Panel, 10/21/2015). When deciding whether there is sufficient “suspicion” of the judge, Brazilian courts assess whether the personal attitude of the judge in the concrete case demonstrates a lack of equidistance in relation to the parties. In making this assessment, Brazilian courts take an objective approach, asking whether there are concrete facts sufficient to call into question the impartiality of the judge, who is obliged to offer sufficient guarantees to eliminate any doubts about his or her impartiality. As most relevant here, the STJ has held that a judge may exhibit lack of impartiality by conduct that demonstrates a preference or predisposition toward any of the parties. For example, the STJ has held a criminal judge who speaks about a case with a higher court judge who would participate in hearing the appeal of that case has impaired impartiality (HC 172.819, Rapporteur Judge Jorge Mussi, Fifth Panel, 02/28/2012). And perhaps the most common reason that a criminal judge is deemed to have lost his or her objective impartiality is when that judge participates actively in obtaining evidence in preliminary proceedings (see, for example, STF, HC 94641, Rapporteur Justice Joaquim Barbosa, Second Panel, 11/11/2008).
To be clear, none of this is to deny that in Brazil, both the prosecution and the defense may hold private meetings (what in some legal systems are called ex parte meetings) with the judge. Indeed, the STJ has ruled that “the conversation between magistrate and prosecutor on cases in progress does not, in itself, reveal suspicion of the mentioned authorities…. Lawyers are received very often by … judges without any kind of nullity.” That said, informal private conversations between a prosecutor and a judge may result in the loss of the judge’s impartiality when:
- the content of the communications demonstrate that judge has “advised” the prosecutor (within the meaning of Article 254, paragraph IV of the Criminal Procedure Code); or
- when the judge’s conduct in the proceedings demonstrates partial behavior; or
- when the judge performs functions typically performed by the Public Prosecutor or the police, such as participating in the planning of the investigation or the prosecution’s strategy (see STF, HC 95009, Rapporteur Justice Eros Grau, Full Bench, 11/06/2008).
Finally, in addition to these legal requirements, Brazil’s Code of Judicial Ethics also requires (in Article 8) that the judge must remain equidistant from the parties throughout the process and avoid any kind of behavior that may reflect favoritism, predisposition, or prejudice. Furthermore, Article 9 of the Ethics Code states that the judge must provide the parties with equal treatment, and that although this requirement does not prohibit the judge from holding a private hearing with lawyers for one party, this is only permitted if ”the other party is guaranteed the same right if requested.”
The Informal Conversations Between Judge Moro and the Lava Jato Prosecutors Regarding Pending Cases Violated the Requirement of Judicial Impartiality
In light of the rules and principles just discussed, it is clear that the messages exchanged between former Judge Moro and prosecutor Deltan Dallagnol indicate a lack of judicial impartiality.
First of all, although (as noted above) Brazilian law authorizes the judges to receive lawyers and members of the public prosecutor’s office in their chambers to discuss ongoing proceedings, the extensive exchange of private electronic messages with only one side (here the prosecutors) to discuss matters relating to those proceedings violates both the law and the Code of Judicial Ethics, both of which require the judge to remain equidistant between the parties, so as to maintain judicial impartiality.
Some messages exchanged between Judge Moro and the Lava Jato prosecutors are particularly problematic:
- In one of them, Judge Moro advised Mr. Dellagnol to alter the order of the phases of the Car Wash Operation, which would imply accelerating certain arrest and search and seizure requests and delaying others.
- In another message, Judge Moro suggested that the prosecutors issue a press release clarifying alleged contradictions in Lula’s testimony.
- In yet another text exchange, Judge Moro informed Mr. Dallagnol that he had obtained information about the alleged transfer of ownership of property of one of Lula’s sons, and Judge Moro suggested that the prosecutor speak with a particular person to confirm the information.
These messages reveal the judge’s partial behavior—a clear predisposition towards the prosecution, as well as involvement in strategic planning and the timing of the investigation itself. Such messages show not only that Judge Moro was not impartial in a general sense, but that he was “advising” the prosecution, within the meaning of Article 254, paragraph IV of the Criminal Procedure Code. And the abnormality of this interaction between the judge and the prosecutor—and the lack of equidistance between the prosecution and defense—becomes all the clearer when one observes that Judge Moro did not adopt the same attitude of “collaboration” with the defense attorneys.
Now, to be clear, the Lava Jato Operation involves hundreds of cases and criminal defendants, and it is not possible to declare with confidence that these breaches of the judicial impartiality principle affects all of these cases. Whether the judge’s partial behavior requires the nullification of a conviction depends on whether such lack of impartiality can be demonstrated in the individual case. But while it’s not possible to make a blanket statement about other Lava Jato cases, there is no doubt, based on the text messages that have been reported so far, that Lula’s conviction must be vacated due to Judge Moro’s demonstrated lack of impartiality in that case.
Now, on that point, some have argued that the fact that these text messages may have been obtained illegally (possibly by hackers, though this has not yet been definitively established) means that the messages may not be used by a defendant, such as Lula, to challenge his conviction on the basis of judicial partiality. This is incorrect. The alleged unlawfulness in obtaining the messages does not prevent them from being used in favor of the defendant to prove a lack of judicial impartiality (see, for example, STF, HC 74678, Rapporteur Justice Moreira Alves, First Group, 06/10/1997). The principal reason, as the STF case law has explained, is that the greater constitutional relevance of individual freedom in the face of the prohibition to use illegal evidence justifies the admissibility of unlawfully obtained evidence in favor of the defendant (see STF, HC 75261, Rapporteur Justice Octavio Gallotti, First Panel, 06/24/1997, and STF, RE 212081, Rapporteur Justice Octavio Gallotti, First Panel, 12/05/1997).
To sum up, while nobody disputes the importance of fighting corruption in Brazil, the ends do not justify the means. Nobody should be convicted except by an impartial judge. And this requirement of judicial impartiality requires the judge to adopt a position of equidistance in relation to the defense and the prosecution. A judge who exchanges hundreds of private messages with the prosecutor about the case will not be able to eliminate doubts about his impartiality—especially if these messages reveal that the judge was deeply committed to the prosecution’s point of view from the beginning. A judge who engages in planning an investigation and prosecution violates the ideal of a fair trial and erodes the credibility of the judiciary. Former Judge Sergio Moro’s failure to adhere to this fundamental principle of judicial impartiality violated both the Judicial Code of Ethics and the law of criminal procedure. As a result, his rulings on those cases that he discussed informally and systematically with prosecutors—including that of former President Lula—must be vacated.
COUNTERPOINT (Professor Luciano Timm): The Lava Jato Leaks Do Not Demonstrate Partiality, Illegality, or Impropriety, and Do Not Justify Vacating Any of the Lava Jato Convictions
Professor Borges, like many other commentators inside and outside of Brazil, argues that the text messages between Judge Moro and the Lava Jato prosecutors demonstrate that then-Judge Moro acted unethically and illegally, and that in light of this new evidence, Lula’s conviction (and perhaps the convictions of other Lava Jato defendants) must be nullified. Professor Borges has laid out his case ably and clearly, but his analysis is incorrect. First, unauthenticated text messages obtained by illegal means are inadmissible as evidence, and thus could not be the basis for vacating the conviction of Lula or any other defendant. Second, even if one ignores that fundamental problem and assumes, for the sake of argument, that these text messages are authentic and legally admissible, none of the messages disclosed so far shows behavior that violates Brazilian law or ethical codes.
Illegally Obtained Evidence Is Inadmissible in Court
I shall begin where Professor Borges ends, with the question of whether the text messages disclosed by The Intercept could be used in a legal proceeding challenging the conviction of any of the Lava Jato defendants, such as Lula. The answer is no, for two reasons.
- First, the text messages have not been authenticated. Under Article 439 of the Brazilian Civil Procedural Code (which applies to criminal proceedings when Criminal Procedure Code doesn’t have a specific provision on the same point), for an electronic document to be admissible in court, it must be printed and subjected to authenticity check by an independent expert. This has not been done. Unless and until it is, these alleged conversations mean nothing from a legal point of view. And this is the right approach, given that, without authentication, we do not know if the content of these messages is accurate. Indeed, the editor of The Intercept, Mr. Glenn Greenwald, has already acknowledged that he edited a few of the messages. While he explains his alterations as “corrections,” this fact highlights how easy it would be for the original source to doctor the messages.
- Second, even if the messages were authenticated, they would be inadmissible in court because these texts were obtained by illegal means. Brazil’s Internet Law, in Article 7, paragraph III, guarantees the inviolability and confidentiality of private communications stored online, except when obtained pursuant to a judicial order. And Brazilian law expressly prohibits the use of illegally obtained evidence. Not only is this prohibition found in the Brazilian Constitution (Article 5, paragraph LVI), but Article 157 of the Brazilian Criminal Procedure Code also explicitly states that “unlawful evidence, … obtained in violation of constitutional or legal norms, is inadmissible and must be disregarded”). Professor Borges argues (as do a few other commentators) that even unlawfully obtained evidence can be used by a criminal defendant to challenge the impartiality of the judge. But this is incorrect, and the cases Professor Borges cites are inapposite. (An aside here, but an important one: unlike the United States, there is no stare decisis doctrine in Brazil, and courts can and do frequently change their opinions.) First of all, none of the cases cited by Professor Borges declare that illegally obtained evidence can be used to challenge a conviction on the grounds that the evidence in question shows the partiality of a judge. Rather, the cases that he cites deal with distinguishable situations, mainly involving the recording of telephone conversations in which only one side of the conversation knew the conversation was being recorded. In one of the cases (HC 75261), the recording was made by the police officers that negotiated the release of a victim, while another (HC 74678) is about the use of a phone recording made by a third party with the authorization of one person and without the authorization of the other. Thus, these cases involve materially different facts; they do not involve the illegal hacking of law enforcers fighting corruption. Additionally, more recent developments in the STF’s case law point in the opposite direction: Just last week, on June 28, 2019, the STF ruled that unlawfully obtained WhatsApp messages cannot be used as evidence in a court of law (HC 168052. Rapporteur Judge Gilmar Mendes. First decision made on 11/06/2019, other votes still pending). And it makes good sense for Brazilian law to prohibit the introduction of evidence obtained through illegal hacking, as allowing such evidence would create incentives for criminals to hack smart phones and other electronic devices of public authorities.
The Text Messages, Even if Authentic, Do Not Reveal Illegal or Unethical Behavior
Even if one ignored the above issue and treated these unauthenticated, illegally obtained text messages as legitimate evidence, this evidence would not suffice to show illegal or unethical behavior by Judge Moro or the Lava Jato prosecutors.
Before proceeding to the analysis of these specific messages, it’s necessary first to clear up some confusion about the background principles and norms of the Brazilian criminal justice system. Professor Borges asserts that Brazil has an “accusatory system” of criminal justice (in contrast to the “inquisitorial system” used elsewhere), and that this accusatory system “rigidly separates the functions of the judge and the prosecutor in criminal proceedings.” But this is at best an exaggerated and incomplete statement of how the Brazilian criminal justice system works. Although the Brazilian system contains elements of the accusatory model, it is not a “pure” accusatory system, and it retains important elements of the inquisitorial model. For example, Article 156 of the Criminal Procedure Code states that the judge may have a more participatory role during the trial, and may seek evidence, according to the principle of “seeking the real truth” (“princípio da verdade real”). More specifically, according to the Criminal Procedure Code a judge can interrogate the defendant, pose as many questions as he or she wants during the hearing, ask for technical expert evidence, and so on. The fact that the judge engages in these truth-seeking activities does not mean that the judge is biased. Quite the opposite. The judicial impartiality principle means that the judge’s rulings must be based on the evidence presented to the court, not that the judge must be a wholly passive participant following the model of a U.S. judge. Also relevant here is the fact that prosecutors in Brazil have a special status, different from lawyers for other parties. Article 128 of the Brazilian Constitution declares that prosecutors are “defenders of legal order, the democratic regime, and social rights” and have the same constitutional guarantees like judges to protect their independence and autonomy. In hearings, the prosecutor sits beside the judge at the bench, in contrast to lawyers for other parties, who stay beside the client and away from the judge’s bench. This is yet another important contrast with pure accusatory systems of justice. It is true that a handful of STF opinions (including ADI 5104 MC, the case mentioned by Professor Borges) use more sweeping language endorsing the accusatory model. But these decisions—which, again, are not binding precedents—should not be understood to radically change long-established Brazilian legal culture and practice regarding the more active role of the criminal judge and the special status of the prosecutor.
Turning to the more specific question of whether or under what conditions it is appropriate for a judge to engage in ex parte communications with prosecutors: First of all, as Professor Borges acknowledges, not only does the Brazilian legal system allow ex parte contacts between judges and lawyers for one side or the other, but in fact it is customary for lawyers to have private communications with a judge without the presence of the other parties’ lawyers. Professor Borges is right to acknowledge that the STJ has explicitly ruled that “the conversation between magistrate and prosecutor on cases in progress does not, in itself, reveal suspicion of the mentioned authorities…. Lawyers are received very often by … judges without any kind of nullity.” Nevertheless, Professor Borges and others argue that these private communications between Judge Moro and the Lava Jato prosecutors violate the principle of judicial impartiality, as enshrined in Articles 252 and 254 of the Criminal Procedure Code, Article 145 of the Civil Procedure Code, and Articles 8 and 9 of the Code of Judicial Ethics. But these assertions are mistaken. None of the cited provisions, or the more general Brazilian case law, prohibits the sorts of communications between the judge and the prosecutors that The Intercept has disclosed.
To begin with, we need to clear away some misleading suggestions regarding the applicability of certain legal or ethical rules to this case:
- The idea that there’s a possible violation of Article 252 of the Criminal Procedure Code can be dismissed out of hand, as this provision is limited to the specific relationships (mainly family relationships) between the judge and a party. There is no serious argument that any of these specific relationships applies in the Lava Jato cases heard by Judge Moro.
- Although Professor Borges also involves a general provision in Article 145, paragraph IV of the Civil Procedure Code (which says that a judge may be deemed to lack impartiality if the judge is “interested in the judgment of the case in favor of either party”), the Civil Procedure Code is not applicable here, because there are specific rules of the Criminal Procedural Code on the matter. (The case cited by Professor Borges to suggest that the Civil Procedure Code could be applicable deals with a very different situation, where the criminal defendant was the presiding judge’s attorney in a separate civil case. Judge Moro was a not a client of any Lava Jato defendant.)
- Next, while Professor Borges and others have suggested that there’s a distinct problem in this case because the judge and the prosecutor were communicating via text message, rather than holding their ex parte conversations in the judge’s chambers, in fact neither Article 9 of the Judicial Ethics Code nor any other provision prohibits otherwise lawful ex parte contacts between judges and lawyers to take place by text message rather than in chambers. Smartphones can be and constantly are used for work, and there is no reason why communications through texts should be treated differently from in-person conversations, so long as the nature and purpose of the communications are equivalent. Indeed, Brazil’s National Justice Council officially decided to allow notifications via WhatsApp for both civil and criminal proceedings.
With that out of the way, we can proceed to the more significant objection to the text exchanges between Judge Moro and the Lava Jato prosecutors: that they demonstrate partiality (or, to use the Brazilian terminology, “suspicion”) within the meaning of Article 254, paragraph IV or the Criminal Procedure Code (or, perhaps, some more general principle of impartiality recognized in the case law). This claim is not as frivolous as the others just discussed, but it is still incorrect.
- First, as emphasized above, the exchange of information between prosecutors and judges (the latter of whom apply the fundamental principle of “seeking the real truth”) are in fact quite common in Brazilian criminal justice. There would be a violation of the judicial impartiality principle only if Judge Moro had prejudged the merits of the case. But an examination of the text messages that have been disclosed (again, assuming for the moment that they are authentic) reveals only contacts concerning procedural aspects and measures related to the investigation, or general communications. At no time did Judge Moro address the merits or indicate that he had prejudged the legal or evidentiary issues. Nor do any of these texts indicate that Judge Moro planned to convict the defendants regardless of the evidence, or that he had any sort of political bias. For example, Professor Borges and others play up the fact that Judge Moro suggested that the prosecutors alter the order of the phases of the investigation. But according to the STF (AS 89 AgR. Rapporteur Justice Edson Fachin, Full Bench, 13/09/2017), more is required in order for there to be “suspicion” of a judge within the meaning of Article 254 paragraph IV. Moreover, in making his argument that the communications at issue here show lack of impartiality under Brazilian law, Professor Borges relies prior cases that are not on point. For example, the STJ’s decision in HC 172.819 involved a trial judge who had called the appellate court judges who were going to hear the appeal of the trial judge’s case, and who in these calls exhibited an interest in having his decision upheld on appeal. There is nothing similar in any of the text messages published by The Intercept.
- Second, even if there were some question about the propriety of the text messages, the evidence is nowhere near clear enough to support a nullification of Judge Moro’s rulings. In advancing a challenge to a judge’s impartiality, the burden of proof is on the defendant to show “concrete and objective” evidence that of “partial behavior of the judge in the proceeding, incompatible with its functional competence,” in order to invalidate the judge’s exercise of jurisdiction over the case. (Though the case quoted was in the civil context, the same principle applies in criminal matters.) Indeed, Brazilian jurisprudence on suspicion of judges in the criminal area quite restrictive, in order to avoid opportunistic behavior. The texts disclosed in Judge Moro’s case are, at the very least, sufficiently ambiguous that neither Lula nor any other Lava Jato defendant could meet this demanding standard.
- Third, even if it were true that Judge Moro exhibited partiality in the first instance trial, that failure did not prejudice Lula (or any other defendant), given that the verdicts were reviewed and validated by the Regional Federal Tribunal. The Regional Federal Tribunal not only confirmed the verdicts in the cases at issue, but increased the penalty of the defendants. Later on, STJ also affirmed the conviction. (Furthermore, the fact that the STF affirmed more than 80% of Judge Moro’s preliminary decisions in the Lava Jato cases casts doubt on any claim that he was systematically biased in his procedural or other pre-trial rulings.)
As for the separate but related assertion that Judge Moro breached his ethical duties as a judge by showing favoritism toward the prosecution, the response is generally similar to the response to claims that Judge Moro acted illegally. Although Brazil’s Judicial Code of Ethics—as well as the Federal Prosecutors’ Code of Ethics—list a variety of duties related to independence, impartiality, symmetry, and the like, there is no breach of any of these ethical duties if there is a conversation ex parte or if the judge seeks evidence in the name of the principle of the search for truth or makes suggestions concerning the general organization of an investigation. And even if there were a breach of an ethical duty, unless there is also a violation some legal provision, this would not affect the finality of any verdict. Rather, an alleged ethical breach would be handled separately by the ethical board of the entity involved (judges or prosecutors), with a view to imposing an appropriate sanction on the individual who behaved wrongfully (warning, admonishment, censure, among others), without any implication for the cases already judged. As it happens, the Brazilian National Prosecutor Council already resolved the ethical complaint brought against Mr. Dallagnol in relation to the text messages disclosed by The Intercept, and concluded that not only the messages were illegally obtained and may not be authentic, but also that Mr. Dallagnol’s texts did not breach his ethical duties. There is little reason to believe that Judge Moro’s case will be decided differently.
In sum, the text conversations published by The Intercept are legally inadmissible and in any event do not show any abnormality when evaluated in the context of Brazilian law and practice, which allow private communications between judges and prosecutors regarding the sorts of matters discussed in these texts.
Before concluding, it’s important to step back and recognize the larger context here. In the past, attempts to prosecute high-level corruption networks in Brazil have been stymied by courts on a variety of formalistic grounds raised by powerful politicians and wealthy entrepreneurs. Lava Jato has been revolutionary because, for the first time, prosecutors have breached the seemingly impenetrable wall of impunity, and successfully convicted scores of powerful people from different political parties. All of these defendants were guaranteed due process of law and convicted only when their corruption was proven beyond any reasonable doubt. But the efforts to undermine Lava Jato continue. This does not mean that the normal legal and ethical rules do not apply to the Lava Jato operation. But it does mean that, when assessing the brief excerpts from past conversations, as well as the recent commentary on The Intercept’s reports, one must be appropriately sensitive to this broader context. Lava Jato is unprecedented, and everything about this operation and the actors involved should be evaluated bearing in mind Ortega Y Gasset’s wise observation: “I am I and my circumstances.”