The Brazilian Supreme Court’s Most Recent Ruling in the Lula Case Reveals the Court’s Own Bias

Back in 2017, a Brazilian court convicted former President Lula for corruption offenses in connection with a seaside apartment that Lula allegedly received as a bribe from a construction firm. In 2019, he was again found guilty of a corruption offense in a separate trial, this time for receiving bribes in the form of improvements to his country house. And he faced other corruption charges as well, including an indictment in which Odebrecht—a major construction firm and one of the most significant players in the Car Wash scandal— allegedly bribed Lula by agreeing to construct a headquarters for his foundation, the Lula Institute. The principal evidence for this latter accusation was acquired by prosecutors as part of a so-called “leniency agreement” with Odebrecht. In Brazil, leniency agreements are negotiated settlements, regulated by the Clean Company Act (CCA), in which companies voluntarily agree to confess unlawful conduct, pay penalties, and take other remedial action—including cooperating with prosecutors by providing evidence against other wrongdoers—and, in return, the companies have their sanctions and fines reduced (see, for example, here, here, and here). Such agreements have been critical to the success of the Car Wash Operation, and more generally to the effectiveness of Brazil’s fight against corruption.

But this past June, the Brazilian Supreme Court decided to nullify the evidence against Lula that had been collected under the Odebrecht leniency agreement (here). The Court’s ruling was not only legally flawed, but its reasoning, if accepted, threatens to undo dozens of prior corruption convictions and to create a cloud of uncertainty surrounding the validity of evidence obtained in leniency agreements. Such a ruling would needlessly undermine the ability of Brazilian prosecutors and courts to fight corruption in the future. Of course, the Court may not actually adhere to its legal reasoning in future cases—but that only underscores another problem: though the Brazilian Supreme Court has criticized lower court proceedings as biased against Lula, the Court’s own conduct, particularly in the most recent case, suggests an unacceptable bias in Lula’s favor.

Continue reading

One Year After Bolsonaro’s Election, How Well Is His Administration Fighting Corruption in Brazil?

Exactly one year ago, on October 28th, 2018, Jair Bolsonaro, a right-wing congressman and former army captain, was declared the winner of Brazil’s presidential election after receiving 55.13% of the valid votes. He defeated the center-left-wing Workers’ Party (PT) candidate Fernando Haddad, ending the PT’s streak of four consecutive presidential election victories that had begun in 2002.

Brazil’s corruption problem played a major role in the election and in Bolsonaro’s victory. The Car Wash Operation had not only uncovered widespread corruption scandals during the PT administrations, but that Operation also led to the prosecution and conviction of former President Luiz Inácio “Lula” da Silva, which rendered Lula ineligible to compete in the 2018 election. Moreover, Bolsonaro centered his campaign especially on a vigorous anticorruption discourse, promising to set a new standard of public integrity and to hold corrupt companies and politicians liable for their misconduct (see here and here). To be sure, Bolsonaro did not campaign exclusively on an anticorruption platform. He also positioned himself as the defender of more conservative social values and pledged to take a hardline approach to violent crime and drug trafficking. Yet his anticorruption rhetoric undoubtedly played a key role in his victory.

Even before the election, though, some commentators expressed skepticism that Bolsonaro would undertake genuine efforts to fight corruption and strengthen the institutions needed to promote integrity, and this skeptical view has been echoed by other commentators, both inside and outside of Brazil, during Bolsonaro’s first term (see, for example, here and here).

Now, one year since Bolsonaro’s electoral victory, is a suitable time to analyze the Bolsonaro Administration’s performance so far on anticorruption related issues. Have his substantive accomplishments in this area matched his tough rhetoric?

Continue reading

Some Things Are More Important Than Corruption (Brazilian Elections Edition)

In the anticorruption community, it is fairly common to puzzle over—and bemoan—the fact that voters in many democracies seem to support candidates that are known or reputed to be corrupt. “Why,” we often ask, “do voters often elect or re-elect corrupt politicians, despite the fact that voters claim to despise corruption?” One of the common answers that we give to this question (an answer supported by some empirical research) is that even though voters dislike corruption, they care more about other things, and are often willing to overlook serious allegations of impropriety if a candidate or party is attractive for other reasons. We often make this observation ruefully, sometimes accompanied with the explicit or implicit wish that voters would make anticorruption a higher priority when casting their votes.

We should be careful what we wish for. Continue reading

Will Brazilians Elect Their Own Donald Trump?

Will Brazil get its own Donald Trump? Brazil’s next election is right around the corner (the campaign starts August 16, and first round elections are October 2) but currently Jair Bolsonaro—a right wing, pro-gun rights, anti-gay firebrand who has proudly branded himself the “next Donald Trump”—is polling first among eligible candidates, trailing only former president Lula Inácio de Silva—who as of now is not actually allowed to run due to his conviction on corruption charges—and the “null option” (that is, none-of-the-above). What explains Bolsonaro’s appeal? In large part, the issue of corruption. Revelations of graft and bribery have continued to pile up in Brazil over the last few years—most notably (though not exclusively) in connection with the so-called Car Wash investigation of corruption in Brazil’s state-owned oil company, which may have involved upwards of $5 billion in stolen public funds. These corruption scandals have already led to the impeachment and removal of former President Dilma Rousseff, criminal charges against the current President Michel Temer, and the conviction and imprisonment of former President Lula. Given all this, it’s little wonder that in a recent poll, corruption was ranked as the most important issue for 62% of Brazilian citizens.

Much as Donald Trump pledged to “drain the swamp,” Bolsonaro has centered his campaign on the issue of corruption. He asserts that he is the only candidate in the election who has not engaged in some form of corruption or white collar crime. Of the five major presidential candidates, he’s the only one who is not either from a major party that has been mired in a recent corruption scandal, or been part of a coalition with one of those tainted parties. (Bolsonaro’s party, the PSL (Social Liberal Party) is small, barely present at the national level, and he is advertising his status as a political outsider as one of his appeals.) Thus Bolsonaro has presented himself as the only candidate who will usher in a new, less corrupt era for Brazil.

This places some Brazilian voters who care deeply about corruption in a difficult situation. Many Brazilians may feel like their only alternative to perpetuating a corrupt system is to take a gamble on a disruptive figure like Bolsonaro. Indeed, at a recent campaign event, supporters cited his aggressive anticorruption and anti-crime stances as the principal reasons why they were planning to vote for him. Diehard supporters aside, it’s possible that some Brazilian voters who are not totally comfortable with Bolsonaro might nevertheless be swayed by his outsider persona and his aggressive attacks on Brazil’s current political class. For those who have followed U.S. politics over the past few years, this probably sounds disturbingly familiar—and indeed seems to fit into a now-recognizable pattern, also manifested in the Philippines’ 2016 election of populist, zero-tolerance Duterte. It’s precisely that similarity that should, and I hope will, give these on-the-fence Brazilian voters pause. Continue reading