Let Them Speak: Why Brazilian Courts Were Wrong to Bar Press Interviews with an Incarcerated Ex-President

In July 2017, Brazil’s former President Luiz Inácio Lula da Silva (“Lula”) was convicted on corruption and money laundering charges. His appeal was denied in January 2018, and he started serving his sentence in April 2018. Although Lula was in jail, his party (the Workers Party, or PT) attempted to nominate him as its candidate for the October 2018 presidential elections. But pursuant to Brazil’s Clean Records Act (which Lula himself signed into law when he was President), individuals whose convictions have been affirmed on appeal cannot run for elective offices. Though Lula and his defenders argued that he should be allowed to run anyway, his candidacy application was denied; ultimately, as most readers of this blog are likely aware, far-right candidate Jair Bolsonaro defeated the PT’s alterative candidate, Fernando Haddad, in last October’s election.

Perhaps less well known, at least outside of Brazil, is the fact that in the run-up to the election, Lula received several invitations from the press to give interviews. Although there is no clear rule on whether prisoners are allowed to give interviews in Brazil, past practice has been to allow the press to reach out those in jail under the authorization of the prison management. After the prison denied several requests by media organizations to interview Lula, those media outlets turned to the courts, asking for the right to interview Lula. The courts said no. The Brazilian Supreme Court, in an order by Supreme Court Justice Luis Fux, issued a preliminary injunction blocking the interviews stating (in a free translation from Portuguese): Continue reading

Guest Post: The World’s Biggest Anticorruption Legislative Package You Haven’t Heard About Is in Brazil

Today’s guest post is from Professor Michael Freitas Mohallem (head of the Center for Justice and Society at Fundação Getulio Vargas (FGV) in Rio de Janeiro, Brazil), Bruno Brandão (Director of Transparency International, Brazil), and Guilherme France (a researcher at FGV).

Transparency International’s Brazilian chapter, together with scholars at FGV’s Rio and Sao Paolo law schools, are leading a wide-ranging effort, with input from multiple sectors of Brazilian society, to develop a package of legislative, institutional, and administrative reforms—the “New Measures Against Corruption”—that will address the systemic causes of corruption and offer long-term solutions. The project, which was developed over approximately 18 months in 2017 and 2018, was prompted by two related developments. First, so-called Car Wash (Lava Jato) operation has uncovered one of the biggest corruption scandals in modern times, implicating hundreds of politicians, civil servants, and business leaders. Second, although the Lava Jato operation led to a proposal, spearheaded by some of the Lava Jato prosecutors themselves, for “Ten Measures Against Corruption,” which was endorsed by over 2 million people, that effort was stymied by the National Congress. So, despite the success of Lava Jato in exposing and punishing corruption, Brazil has not yet developed the necessary long-term reforms to address the underlying sources of the problem.

The New Measures Against Corruption are intended to provide a path forward for Brazil, setting out a bold reform agenda that addresses issues relating to prevention, detection, and prosecution of corruption. The New Measures consist of a package composed of 70 anticorruption measures—ranging from draft federal bills, proposed constitutional amendments, and administrative resolutions—in 12 categories:

  1. Systems, councils and anticorruption Guidelines;
  2. Social accountability and participation;
  3. Prevention of corruption;
  4. Anticorruption measures for elections and political parties;
  5. Public servant accountability;
  6. Public servant investiture and independence;
  7. Improvements in internal and external control;
  8. Anticorruption measures for the private sector;
  9. Investigation;
  10. Improvements in criminal persecution;
  11. Improvements in the fight against administrative improbity;
  12. Tools for asset recovery.

The complete report on all 70 proposals (which runs 626 pages, and so far is only available in Portuguese) is here. Further discussion of the specific proposals would be welcome, both from domestic and international commentators, and we hope that at some point soon we will be able to provide summaries and translations of all of the measures. But in the remainder of this post, we want to offer some more background on the process that we used to develop the New Measures, as well as the prospects going forward for pushing the government to adopt these reforms. Continue reading

Four Steps Brazilian Judge Sergio Moro Can Take to Remain an Anticorruption Fighter as the New Minister of Justice

The biggest anticorruption-related news to come out of Brazil since the election of the far-right Jair Bolsonaro as Brazil’s next president has been the announcement that President-Elect Bolsonaro has tapped Judge Sergio Moro—the federal judge who oversaw the trials of several high profile Brazilian politicians in the Car Wash (Lava Jato) operation, including former President Lula Inácio de Silva—to be the next Minister of Justice. Some are hopeful that Judge Moro, who has emerged as an anticorruption hero to many Brazilians, will be well-positioned to use this new high-level post to push forward with systemic anticorruption reforms, including the “New Measures Against Corruption” championed by Transparency International and other civil society activists. Others, including Professor Stephenson in a recent post on this blog, worry that Judge Moro’s acceptance of this position would be a step backward for Brazil’s struggle against corruption, because his appointment could further politicize not only the Lava Jato trials, but the entire country. While President-Elect Bolsonaro wants to portray his appointment of Judge Moro as the first step toward making good on Bolsonaro’s promise to make anticorruption a priority of his administration, this appointment could be seen by centrists or the left as adding insult to injury by giving more power to the man who put Lula behind bars.

If Judge Moro accepts the appointment, then, he will be in a difficult and delicate position. He will have the power to influence the anticorruption agenda (assuming Bolsonaro follows through on his promise to give Moro autonomy in deciding how to deal with organized crime and corruption), but he needs to be sensitive to the fact that his very appointment risks entrenching the view in some quarters that the anticorruption agenda is really a politically-motivated conspiracy against left-wing politicians. There are four things Judge Moro can and should do in his new position to minimize this risk: Continue reading

“Say It Ain’t So, Sergio!”: Judge Moro’s Apointment to the Bolsonaro Cabinet Is a Setback for Brazil’s Struggle Against Corruption

Two weeks ago, far-right candidate Jair Bolsonaro was elected President of Brazil. Likely no single factor explains Bolsonaro’s success, but as I noted in a previous post, disgust at the corruption of the Worker’s Party (the PT), which had been exposed by the so-called Car Wash (Lava Jato) investigation, likely played a significant part. The Lava Jato operation has brought to light shocking levels of corruption, mainly though not exclusively at Brazil’s state-owned oil company Petrobras, and has led to the convictions of scores of businesspeople and politicians. Some of the key figures involved in the Lava Jato operation, including prosecutor Deltan Dallagnol and Judge Sergio Moro, have become national heroes, at least in some quarters. But their popularity is by no means universal. The fact that Lava Jato has investigated and convicted so many PT politicians, including former President Luiz Inacio Lula da Silva (known as Lula), has led some PT members and sympathizers to accuse the investigators, prosecutors, and judges involved in the Lava Jato operation as engaged in a politically-motivated right-wing conspiracy against Lula, the PT, and the left generally. On this account, Lula is a “political prisoner,” and the impeachment and removal of his successor, President Dilma Rousseff, was a “coup.”

Many people, me included, have pushed back hard against the notion that the Lava Jato operation is a politically-motivated conspiracy. The evidence that has come too light seems incontrovertible, and while critics have identified a number of questionable decisions by the prosecutors and judges (criticisms I’m not in a position to evaluate on the merits), the notion that it’s all a politically motivated sham are baseless. Overall my impression, shared by many other domestic and international observers, is that the Lava Jato operation has been conducted with great professionalism. Yes, it’s true that the operation has targeted many PT figures, but Lava Jato has gone after politicians from across the political spectrum, and if PT politicians seem to make up a disproportionate share, this is most likely because the PT had held the presidency from 2003 to 2016, first under Lula and then under Dilma. Furthermore, many of us in the international community, along with a number of Brazilian anticorruption scholars and activists, worried that these unsubstantiated attacks on the integrity of Lava Jato—attacks that go beyond challenging individual decisions or rulings—would do serious damage to the longer-term development of an effective set of institutional checks and balances in Brazil. One doesn’t need to subscribe to a naïve view that prosecutors and judges are entirely “neutral” to recognize the importance of developing institutions of justice that are not, and are not perceived as, partisan or “political” in the crude sense.

It’s in that context that I was so disheartened to learn last week that Judge Moro had accepted President-Elect Bolsonaro’s appointment to serve as Minister for Justice. I have no reason to doubt Judge Moro’s integrity or to believe that he accepted this job for any reason other than because he believes it will give him an opportunity to serve his country. But I nonetheless fear that it was a mistake, one that will set back Brazil’s ongoing efforts to develop more robust anticorruption institutions. Continue reading

Brazil’s Electoral Dilemma: Which Outcome Will Be Better for Anticorruption?

My post last week expressed some dismay at the political situation in Brazil, and the role that understandable disgust at widespread corruption in the left-wing Worker’s Party (PT), which controlled the presidency from 2003 to 2016, seems to be playing in contributing to the astonishing electoral success of far-right candidate Jair Bolsonaro. Bolsonaro—whose extremist views, history of bigotry, violent rhetoric, and admiration for autocrats has led some to label him, with justification, as a quasi-fascist—was the top vote-getter in the first round of Brazilian’s two-round presidential election system, and he is favored to win the run-off against PT candidate Fernando Haddad on October 28. Though I’m no expert on Brazil or its politics, this situation—voter revulsion at the corruption of the mainstream parties leading to the rise of a tough-talking extremist—is distressingly familiar. It’s a pattern we’ve seen play out in several countries now, usually with quite unfortunate consequences. So, much as I believe that corruption is a serious problem, and tend to support aggressive anticorruption efforts—including the so-called Car Wash (Lava Jato) investigations in Brazil—I used my last post to express my dismay that anticorruption sentiments might propel someone like Bolsonaro to victory. Some things, I argued, are more important than corruption.

The post seems to have touched a nerve—I’ve gotten far more feedback on that post (some in the public comments section, some in private communications) than anything else I’ve written in the four and half years I’ve been blogging about corruption. While some of the comments have been the sort of substance-free invective one gets used to on the internet, a lot of people have provided useful, thoughtful, constructive criticism and pushback of various kinds. So I thought that perhaps it would be worth doing another post on this general topic, and connecting my thoughts about the current Brazilian political situation to some more general themes or problems that those of us who work on anticorruption need to confront, whether or not we have any particular interest in Brazil. 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

The Lula Opinions (Trial Court Verdict and Summary of Appeals Court Affirmance), Now Available in English Translation

The conviction and imprisonment of former Brazilian President (and current would-be presidential candidate) Luiz Inácio Lula da Silva (known as Lula) is among of the most consequential and polarizing outcomes of a corruption investigation in recent memory. The case that led to Lula’s conviction (one of several that were pending against him) did not necessarily involve the biggest or most important allegations, but it was the one that was brought first, presumably because this was the case where the prosecutors felt they had all the evidence they needed to proceed, though critics insist that the case was rushed through on skimpy evidence in order to disable Lula from seeking the presidency in this month’s election.

I only know a bit about the specifics of the case, which involved a beachfront apartment than a construction company had allegedly promised to Lula in return for helping the company secure contracts with Brazil’s state-owned oil company. (Lula, for his part, claims that he was never promised the apartment and the only evidence otherwise is unreliable testimony from one of the company’s executives, who offered the testimony in exchange for a reduced sentence as part of a plea bargain.) But I’ve been repeatedly told by passionate, seemingly well-informed Brazilians on both sides of this debate that the judicial opinions in this case—the original trial court verdict and the appellate court affirmance—demonstrate that their side of the argument is clearly correct:

  • On the one hand, I’ve been told by several of Lula’s strong supporters that the charges against him are bogus and the conviction is improper. “Just read the judicial opinions from the trial court and the appeals court,” one of them told me last spring, “and it will be obvious that they make no sense, and that there was no real legal or factual basis for the conviction.” (I’m paraphrasing, but only slightly.)
  • On the other hand, I’ve been told by supporters of the prosecution in this case that Lula’s conviction was the right legal result, and that the attacks on the verdict (and the associated attacks on the prosecutors and judges) are politically-motivated obfuscation. “Just read the judicial opinions from the trial court and the appeals court,” several people with this view have emphasized, “and it will be obvious that the law and the evidence amply supported the verdict.”

Since smart, well-informed advocates on both sides have told me I should read the opinions, that seemed like a sensible thing to do. Until recently, though, this would not have been possible, as the opinions were (to my knowledge) only available in Portuguese, which I do not read. But I was recently informed that the trial court opinion, as well as an official summary of the appeals court opinion, are now available online in English translation! I haven’t had a chance to read them yet (the trial court opinion is 185 pages long; the summary of the appellate court ruling is a more succinct six pages); I may post again after I’ve done so if I feel like I’ve got anything useful to say. For now, it occurs to me that there might be other non-Portuguese speakers out there who are following developments in Brazil and would like to read these opinions for themselves, so I’m posting the links:

  • The trial court verdict is here.
  • A summary of the appellate court ruling is here. (I’m still hoping to find and post an English translation of the full appeals court ruling.)

Hopefully this will be helpful to others who are trying to work through what they think about the accusations and counter-accusations swirling around this high-profile case. Again, there’s only so much an outsider can learn from the text of court opinions, especially without knowing more about the surrounding context and the details of Brazilian law, but I figure this will at least be helpful.

[NOTE: The original version of this post erroneously characterized the appeals court document linked to above as the full appeals court ruling. That was incorrect; the online document is an English translation of the summary of the appeals court ruling. The text of the post–as well as its title–have been changed to correct this mistake.]