Two weeks ago, we published a guest post is from Professor Gregory Michener and Breno Cerqueira, based on an op-ed they had originally published (in Portuguese) in the Folha de São Paulo newspaper, concerning an important decision last by Justice Toffoli of the Brazilian Supreme Court. That decision nullified the evidence that Brazilian prosecutors had acquired from the Odebrecht firm as part of the agreement to settle the corruption charges against that firm; Justice Toffoli’s decision thus called into question ever subsequent corruption conviction that had relied on this evidence. That guest post prompted a response, which we published last week, from a Brazilian lawyer who took issue with many of the assertions that Professor Michener and Mr. Cerqueira had made in their piece. (The author of that post asked to remain anonymous. While GAB does not usually publish anonymous pieces, after considering the reasons for the anonymity request, I decided to grant it in that case.) Today’s guest post is from Professor Michener and Mr. Cerqueira, who offer a rebuttal to last week’s criticisms of their piece.

I realize that some readers may find this a bit excessive, especially since the issues here involve some fine technical points of Brazilian law. But in my view the issues are so important—going to the heart of one of the largest and most important anticorruption investigations in the world over the last decade (the “Car Wash” Operation)—and the legal issues are sufficiently difficult even for attentive outsiders to understand, that a thorough debate about what the most recent decision does and does not mean, that this exchange serves a useful purpose. I am grateful to all the parties involved for being willing to engage in this important conversation..

Without further adieu, here is Professor Michener and Mr. Cerqueira’s rebuttal to the criticism of their post on Justice Toffoli’s ruling:

The Odebrecht case spanned twelve countries and involved nearly a billion dollars of elaborate payments made from Odebrecht’s in-house bribery department to corrupt governments on three continents. (Perhaps the best way to understand the case is through the documents posted with the US Department of Justice press release about the settlement of the US Foreign Corrupt Practices Act charges in the case.)

The primary objective of our editorial was to discuss the deficient transparency of corruption cases in Brazil, an understudied aspect of corruption that should be of concern to citizens everywhere. Transparency of corruption cases can assign responsibility and promote accountability, deter graft among businesses and public officials, identify institutional weaknesses that need to be fixed and, perhaps most importantly, provide an important historical archive to keep the record straight – not only of crimes committed but of retributive government efforts in favor of the public interest. In the case of Brazil, we argued, a lack of transparency worked in favor of corruption and impunity, which is currently on the upswing.

We find it ironic that the critic of our article, a Brazilian lawyer (“Anonymous”), would ask for anonymity if his or her critiques were squarely fair handed and factual. (As an aside, anonymity is illegal as per the Brazilian Constitution (Article 5 IV – “the expression of thought is free, and anonymity is forbidden”). As a leading anticorruption specialist and friend commented on the Anonymous post a day after it appeared, it attempts to “muddy the waters.” Rather than “setting the record straight” it simply creates doubt where little should exist. The following explains why:

• The most consequential critique of Anonymous deals with our central issue, which s/he minimizes as an inaccuracy that is “less important.” For us, it is central: Anonymous claims that “the [Odebrecht] agreement has been publicly available for more than five years on the Ministry of Federal Prosecution’s [MPF] website.” But as one of us has shown in prior research, only resolutions and formalistic documents full of legalese were available on the MPF’s website. These included no substance regarding the details and crimes of corruption. From the perspective of public transparency, which requires information that is not only visible but reasonably inferable, these documents do not constitute a fair public record of what occurred, nor are they, by themselves, representative of the substance of the agreement. The MPF is not the only institution to blame; the Office of the Comptroller General (CGU) also maintains all details of crimes in annexes that are not publicly accessible. The MPF documents are skeletal, cryptic resolutions. Most documents of any substance are held as secret. Please have a look at the 5^th Chamber website and the MPF leniency panel. Specific Odebrecht´s documents are the agreement and the 5^th Chamber resolution. These documents may provide legal information for lawyers, but nothing of substance for the public. Furthermore, to maintain them as secret more than half a decade after the fact, responding to requests for information with claims of “ongoing investigations,” is simply unreasonable. Government can provide a more sanitized record if need be, but a record of crimes committed there must be.
• On the issue of Tofolli’s decision, Anonymous takes exception with our “effective” appraisal of what occurred, preferring to focus on a “technical” inaccuracy. As Anonymous relates, “the suggestion that the ruling annulled the settlement itself is not accurate.” Anonymous is technically correct; yet the inadmissibility of evidence effectively kills the prospect of enduring retributive justice for the corruption that occurred. The technical point is accurate, but if we put this point to a harm test of what should appear on this blog, it does more harm than good; it effectively muddies the waters in an apparent attempt to misrepresent what effectively happened. If we had wanted to write a technical report, we would not have written an editorial for popular consumption.
• Finally, it is important to address a critique Anonymous makes about what s/he sees as “inherently a speculation about what might have happened under different conditions.” In social science we call what we wrote a “counterfactual,” and to treat it as speculation is either ungenerous or ignorant or perhaps both. The presence or absence of information can make huge differences in outcomes, as all stripes of scholars have long shown. Our counterfactual proposition – that Justice Toffoli’s recent decision on the evidence obtained in the Odebrecht case may have been different or may not have even occurred – places emphasis on the pivotal importance of information in influencing political behavior. The sort of collective amnesia we appear to be seeing in Brazil regarding massive graft would be less tenable if there were an accessible public registry of prosecuted cases.
• Anonymous’s reply to our post includes a few other criticisms, but these are hardly worth more than a few words. We imply nothing about the surprise element of the decision, although it was magnitudes more important and far-reaching than any previous decisions (and to suggest otherwise is to engage in false equivalence, to say the least). We also never mention, nor do we imply, that Justice Toffoli’s decision occurred “because he was appointed by President Lula,” as claimed by Anonymous. This is pure invention on the part of Anonymous.

Point-counterpoint is important, but to misrepresent and demean another’s arguments does little service to productive dialogue. Furthermore, the author’s insistence in finding technical error in what is by all regards an accurate general interpretation of what occurred does a disservice to the cause of anticorruption, to which this blog is dedicated.