The Resignation of Brazilian Justice Minister Sérgio Moro: Reflections on How Key Players Should Handle This Political Crisis

If a global pandemic and a mounting economic crisis weren’t enough, Brazil now faces a political crisis. Last Friday (April 24), Sérgio Moro, the former judge in the Car Wash anticorruption operation who had become Minister of Justice in the administration of far-right President Jair Bolsonaro, resigned his ministerial post and accused President Bolsonaro of multiple improprieties having to do with apparent interference with ongoing federal criminal investigations. In particular, Moro stated that Bolsonaro fired the head of the Federal Police, Maurício Valexio, without Moro’s necessary approval (and, indeed, had forged Moro’s electronic signature on the dismissal papers), because—according to Moro—Bolsonaro “was concerned about investigations underway in the Federal Supreme Court,” which many interpreted as an allusion to ongoing investigations into corruption allegations against President Bolsonaro’s sons. This was not the first time President Bolsonaro had meddled in the  Ministry of Justice—notwithstanding his promise that Moro would have full autonomy—but the firing of Valexio seems to have been the final straw for Moro. In his resignation speech, Moro emphasized his reluctance to resign in the midst of a public health crisis, but declared that Bolsonaro’s actions were beyond the pale. “I could not,” Moro explained, “set aside my commitment to the rule of law.”

It’s hard to exaggerate the significance of Moro’s resignation for Brazilian politics, and for the future of Brazil’s fight against systemic corruption. The resignation of a senior minister on grounds of alleged presidential interference in an investigation would be an enormous scandal under any circumstances, but to appreciate the significance of Moro’s resignation from the Bolsonaro government, one must know a bit more about the larger context. Moro became a nationally prominent figure due to his role in presiding over some of the most high-profile investigations and trials in the Car Wash anticorruption investigation, including the trial of former President Lula of the left-wing Worker’s Party (the PT); the Car Wash investigation also led to the impeachment and removal of Lula’s successor, Dilma Rousseff, though Judge Moro was not directly involved in that political process. Lula’s conviction meant that he was disqualified from running in the 2019 presidential election, which many observers believe he would have won. Thus, while Judge Moro was heralded as a hero by many Brazilian’s for his role in the Car Wash Operation, others—especially those affiliated with the PT—accused him of political bias against the left.

Lula’s disqualification, and the taint of corruption that attached to the PT due to the Car Wash Operation, created a window of opportunity for Jair Bolsonaro in the 2019 presidential election. Bolsonaro, a far-right politician who had long been considered a marginal figure at best, ran on an anticorruption platform, claiming that only he could clean up the corrupt Brazilian political system. This appeal worked: Many Brazilian voters who did not share Bolsonaro’s radical right-wing ideology nevertheless concluded that they couldn’t stomach another presidency with the “corrupt” PT. After Bolsonaro won the election, he appointed Moro to be his Minister of Justice—a move that many saw as intended to bolster Bolsonaro’s claims to be committed to ushering in a new era of anticorruption reform in Brazil. Bolsonaro made explicit and extravagant promises that Moro—an anticorruption hero in the eyes of most Brazilians, including many skeptical of Bolsonaro himself—would have a free hand to run his Ministry without presidential interference. But Moro’s acceptance of a senior position in the Bolsonaro administration drew criticism from the Brazilian left, a line of criticism that only intensified after a series of media stories last summer that suggested, based on leaked text messages, that while Moro was the presiding Judge in the Car Wash cases he may have inappropriately coordinated with prosecutors or exhibited bias against Lula. While some disputed this interpretation of the text messages, they fed into the narrative that Moro was partisan and Car Wash was a witch hunt. Even some of Moro’s supporters expressed concern about the content of the leaks, and about his acceptance of a position in the Bolsonaro government.

Moro’s resignation is a shocking new twist to this ongoing drama. Until recently, he was condemned by the far-left as Lula’s jailer; now he’s condemned by the far-right as a traitor. With some Brazilians, he’s still a popular anticorruption standard-bearer. It’s understandable that there’s considerable speculation both about Moro’s future and about the immediate ramifications of his dramatic resignation for the Bolsonaro government. There are questions about the longer-term impact of these developments on Brazilian politics and the future of anticorruption reform.

How should the various actors in this drama handle the situation going forward? In the remainder of this post, I advance some tentative advice for three principal players—the Brazilian Congress, the investigative agencies (especially the Federal Police), and Moro himself. How these players handle this volatile situation over the coming weeks and months will have far-reaching implications for Brazilian politics and institutions.

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

International Scholars, Stay in Your Lane: The Risks of Uninformed Foreign Commentary on Corruption Cases

Last June, a group of international scholars and jurists published an article in the French newspaper Le Monde arguing that former Brazilian President Luiz Inácio Lula da Silva (known as Lula), who was convicted and imprisoned in a case related to the Lava Jato (Car Wash) anticorruption investigation, did not receive a fair trial, and was the victim of political persecution. A couple months later, a slightly revised version of the article, styled as an open letter to the Brazilian people and Supreme Court, appeared in the Brazilian media, where it made quite a splash. The letter, which was republished on GAB last month, was signed by prominent US scholars, including Susan Rose-Ackerman and Bruce Ackerman, as well as lawyers, professors, and former judges from numerous Latin American and European countries. Echoing accusations leveled by The Intercept and other media outlets, the letter claimed that presiding judge Sergio Moro (now Justice Minister) conducted the proceedings in a partial fashion and directed the prosecution “in contempt for fundamental rules of the Brazilian procedure.” Judge Moro, the letter asserts, “manipulated substantial assistance plea bargaining mechanisms, oriented the prosecution service works, required the substitution of a prosecutor, and directed the prosecution’s public communication strategy.” Furthermore, the letter states that the Judge “wiretapped Lula’s lawyers” and “disobeyed an order from an appeal judge to release Lula”. The letter also contended that there was no material evidence of Lula’s corruption, and that his arrest, prosecution, and conviction were all prompted by the illicit political motive of excluding him from the 2018 presidential elections. In light of all this, the letter asserted that the Brazilian Supreme Court has a duty to release Lula and nullify his conviction.

These accusations are largely baseless, or at least presented in an extremely one-sided fashion that parrots what have become the standard talking points of Lula’s supporters. The Car Wash prosecutors effectively debunked the texts’ main arguments in a rebuttal also published on this blog. (The blog also published a response from Lula’s lawyers that rehashed the same talking points and alluded to as-yet-undisclosed evidence, but that didn’t otherwise counter the prosecutors’ clear documentation of the open letter’s many errors.) What most troubled me about the original article and the open letter was less the fact that these arguments were being advanced—again, by now they’re familiar pro-Lula talking points—but the fact that the texts were signed not only by lawyers, but also by renowned law and political science professors. Lawyers are expected to act as advocates. But scholars are supposed to be more judicious, more scrupulous about evidence, and more circumspect about making bold, aggressive claims on subjects whose factual and legal particularities they don’t fully understand. Continue reading

Lula’s Lawyers Respond to the Lava Jato Prosecutors’ Letter

Last week, GAB published two letters presenting alternative perspectives on the so-called “Car Wash” (Lava Jato) anticorruption operation in Brazil, in particular the prosecution and conviction of former president Luiz Inácio Lula da Silva (Lula). The first letter was a re-publication of an open letter sent by a group of international jurists and scholars, who asserted that Lula did not receive a fair trial and that the prosecutors were politically biased. The second letter was a reply from the prosecutors, who defended their conduct, argued that the conviction of Lula was legitimate and not politically motivated, and contended that a number of factual and legal assertions in the international jurists’ letter were incorrect.

After publication of that post, I received a message from Lula’s lawyers (the law firm of Teixeira, Martins & Advogados), who asked me to publish their letter in response to the prosecutors. In the interest of furthering this important substantive debate, I am presenting their letter below: Continue reading

A Group of International Jurists and Scholars Condemns the Conviction of Former Brazilian President Lula as Unfair and Politically Motivated. A Group of Brazilian Prosecutors Defend Their Conduct, and the Conviction. Read Their Dueling Open Letters Here!

One of the biggest stories in the anticorruption community over the last few months—and one that we’ve featured extensively here on GAB—has been the controversy swirling around the so-called “Lava Jato” (Car Wash) anticorruption operation in Brazil, in light of private text messages among the Lava Jato prosecutors, and between prosecutors and then-Judge Sérgio Moro. These messages were stolen from hacked cell phones and provided to The Intercept, which published a series of stories based on them and also shared them with other media outlines. Critics, including the Intercept journalists, have argued that these messages show unethical conduct, political bias, and due process violations by the Lava Jato prosecutors and by Judge Moro, and that this alleged misconduct demonstrates that the convictions of many of the Lava Jato defendants—most importantly, former President Lula—ought to be thrown out. Others remain unconvinced by the most serious accusations of political bias, and find many of the allegations of misconduct questionable. (For my own, somewhat evolving take on these issues, see here and here, and for a useful debate among Brazilian legal experts, see here.)

Recently, a group of international jurists and scholars weighed in, writing an open letter in which they declared their view that, in light of the evidence revealed by the leaked text messages, Lula did not receive a fair trial and was the victim of political persecution. (An English translation of the letter is available here; the original Portuguese text can be found here.) In response, a group of 20 Brazilian Federal Prosecutors wrote a reply to the open letter’s signatories, arguing that the allegations in the open letter were based on an inaccurate, incomplete, or distorted representation of the facts. The prosecutors’ response letter has not previously been published, but the prosecutors have provided me with that letter and given me permission to post a slightly-revised version here.

I have my own views on the merits of the underlying dispute, which I may go into in a later post, but here I just want to present the two letters side by side, in the hope that this will be helpful to others who have been following this controversy and are trying to better understand the complicated questions at issue. I’ll present this in point-counterpoint format, starting with the English translation of the original open letter (with some corrections to apparent errors or ambiguities in the original translation linked above), and then presenting the prosecutors’ rebuttal: Continue reading

The Biggest Beneficiary of the Lava Jato Leaks Is Jair Bolsonaro

As most GAB readers are likely aware, one of the biggest stories in the anticorruption world in the last couple of months has involved the disclosure of private text messages by Brazilian officials involved in the so-called Lava Jato (Car Wash) Operation. Lava Jato, which has been in progress for five years, is one of the largest anticorruption operations ever, not just in Brazil but worldwide. The operation has secured the convictions of scores of high-level Brazilian political and business leaders once thought to be untouchable, including former President Lula of the Workers Party (PT). Lula’s conviction rendered him ineligible to run in the 2018 presidential election—which he likely would have won—and this factor, many believe, helped far-right candidate Jair Bolsonaro win the presidency. The prosecution of Lula, and a number of other PT figures, triggered accusations, mainly from PT supporters and others on the political left, that the Lava Jato Operation was a politically motivated conspiracy against Lula and the PT. That view had not been taken very seriously by Brazilian or international experts outside of a relatively small circle of left-wing activists, though when Judge Moro, who had presided over most of the Lava Jato cases, including Lula’s, accepted a position in Bolsonaro’s cabinet, it certainly fed into that narrative.

Then, last month, The Intercept published a series of stories based on leaked/hacked/stolen private text messages among the prosecutors on the Lava Jato Task Force, and between Task Force prosecutors and then-Judge Moro. According to The Intercept and others reporting on this these revelations (dubbed “VazaJato” on social media), the disclosed texts corroborate the longstanding PT narrative that the Lava Jato prosecutors and Judge Moro were ideologically biased against the PT, especially Lula, and that Lula was denied a fair trial as a result. The Intercept described its own reporting as “explosive,” and while one might quibble with the lack of humility (guys, it’s generally better form to let other people praise the importance of your work), the characterization is accurate. Now, I think the evidence of misconduct is less clear than The Intercept and other commentators have suggested (see a useful debate on the legal and ethical issues here), and I find the claims of ideological bias especially flimsy (see here and here). But there’s no doubt that the revelations have tarnished Judge Moro’s reputation, and have also damaged the credibility of the Lava Jato Task Force prosecutors (though unfairly and excessively so, in my view).

Who has benefited from these stories? The conventional wisdom seems to be that the VazaJato stories hurt not only Sergio Moro, but also the Bolsonaro administration—both because Moro is a senior figure in that administration, and because the VazaJato stories imply, or state outright, that Bolsonaro’s election was illegitimate due to the fact that the strongest alternative candidate was barred, on trumped up charges, from running. And the biggest beneficiaries of the VazaJato stories, the conventional view maintains, are Brazil’s left-wing parties (the PT and its allies), mainly because the VazaJato stories show (allegedly) that the PT activists were right all along when they claimed a right-wing conspiracy against Lula. That view is plausible, and seems widely shared (not least by The Intercept’s reporters and editors, who makes no pretense of journalistic neutrality). But I think it’s wrong.

Indeed, I worry that the biggest beneficiary of VazaJato may be President Bolsonaro, and the biggest loser may be the Brazilian left. I say “worry” because I view Bolsonaro as a dangerous bigot and wanna-be authoritarian, one who is also likely to worsen Brazil’s corruption problem. But my personal political views are not really important for present purposes—I mention them in the interests of full disclosure (much as I have been careful, in previous posts, to disclose my cordial professional relationship with Lava Jato Task Force lead prosecutor Deltan Dallagnol). Rather, my goal here is to explain why I think the VazaJato leaks, and the narrative they have helped to amplify, are likely to help Bolsonaro, while hurting the Brazilian left. There are four reasons for this perhaps counter-intuitive conclusion: Continue reading

Do the Lava Jato Leaks Show Illegal or Unethical Behavior? A Debate Between Brazilian Legal Experts

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. Continue reading

Just How Damning Are the Lava Jato Leaks? Some Preliminary Reflections on The Intercept’s Bombshell Story

[Note: My thinking on the issues discussed in this post has evolved somewhat. For the update, see here.]

Two days ago, The Intercept published a collection of dramatic reports (here, here, and here) regarding the long-running Brazilian investigation into high-level corruption. That investigation, known as the Lava Jato (Car Wash) operation, which began as in inquiry into money laundering and associated offenses at the Brazilian state-owned oil company Petrobras, has led to the prosecutions and convictions of scores of powerful business leaders and senior politicians—including, most notably, the conviction and imprisonment of former President Luiz Inacio Lula da Silva (known as Lula). That conviction prevented Lula from competing in the presidential election in 2018, an election that was one by far-right candidate Jair Bolsonaro. Anger on the Brazilian political left over Lula’s conviction, as well as the impeachment and removal of his successor Dilma Rouseff, has provoked accusations that the Lava Jato operation is really a right-wing conspiracy, and that the Lava Jato task force—the special team of prosecutors led by Deltan Dallagnol—and Sergio Moro, who presided over the most significant Lava Jato trials, including Lula’s, are politically biased enemies of the Left who are engineering a kind of coup d’etat through the judicial system. Many people, both in Brazil and internationally (me included), have pushed back against these accusations.

The Intercept’s recent reports assert that the critics were right all along. The evidence for this consists mainly of a huge quantity of data (texts, emails, and video and audio recordings) from a cell phone—almost certainly Mr. Dallagnol’s, based on the fact that all of the reported exchanges involve him. The Intercept has published a set of stories (some in English, some in Portuguese) based on a small portion of this material, mainly text message exchanges; the reporters emphasize that more is likely to emerge as they and other journalists review more of the leaked/hacked data. The big story here is that, according to the Intercept’s reporting, these text messages provide evidence of serious ethical breaches, particularly by then-Judge Moro, as well as evidence that the prosecutors knew their case against Lula was not strong, and, most damningly, that the task force prosecutors were motivated by partisan antipathy toward Lula and his party (the Worker’s Party, or PT), despite their claims to the contrary.

What to make of this? The news is clearly bad for the Lava Jato operation, the task force, and those of us who have supported the operation and defended it against various accusations and attacks. The question I want to address here is: Just how bad is it? My tentative answer is that, while the Intercept’s reports reveal some very upsetting, disappointing, and in some cases likely unethical conduct, the leaked text messages quoted in these first reports are not as damning as either the Intercept or other preliminary reports have made them appear. In this post (which will be longer than usual), I’ll try to work through the various allegations and associated texts and do my best to assess which revelations are most serious, which least so, and where we really need more evidence before making even a preliminary judgment. Continue reading

Brazil’s Supreme Court May Have Ended the Lava Jato Operation as We Know It

This past March, Brazil’s Supreme Court (the Supremo Tribunal Federal, or STF) issued an opinion that is considered one of the most significant defeats yet to the anticorruption effort known as the Car Wash (or Lava Jato) operation (see here and here). The case involved allegations that the former mayor of Rio de Janeiro and his campaign manager received roughly USD 4 million from the construction firm Odebrecht that was used for a campaign slush fund, in exchange for business advantages in connection with certain construction projects. The particular legal claim on which the defendants prevailed concerned not a substantive issue, but rather a jurisdictional question: whether the case was brought in the wrong court. In Brazil, the ordinary federal courts adjudicate ordinary federal crimes, but there are also special electoral courts that handle violations—including criminal violations—of Brazil’s Electoral Code. The use of slush funds, though not expressly listed as one of the actions criminalized under the Electoral Code, could be prosecuted under the Electoral Code’s prohibition on false statements, because doing what the former mayor allegedly did would entail failure to report funds used in an election campaign. Such charges would ordinarily be heard by the specialized electoral courts. But taking illegal contributions to a campaign slush fund in exchange for political favors could also be charged as bribery (or associated crimes like money laundering) under Brazil’s Criminal Code—crimes that would typically be adjudicated by the regular federal courts. Given that the same wrongful transaction might entail violations of both the Electoral Code and the Criminal Code, which court (or courts) should hear the case?

This is the question that the STF had to resolve, and it had, roughly speaking, three options. First, the STF could have ruled that the whole case (both the electoral crimes and the ordinary crimes) should be heard by an ordinary court. The second option would be to require that the special electoral court adjudicate the whole criminal case, including the ordinary criminal charges. Third, the STF could have held that the case should be split, with an electoral court dealing with the alleged violations of the Electoral Code and an ordinary court handling all the other charges. In a 6-5 decision, the STF went with the second option, holding that whenever an ordinary crime is committed in connection with an electoral crime, the whole criminal case must be decided by an electoral court.

This is hugely significant for the Lava Jato operation, because many of the cases the operation has uncovered involve potential violations of the Electoral Code, in the form of illegal or undisclosed campaign contributions made in exchange for political favors. (The newspaper Folha de Sao Paulo estimates  that almost 30% of Lava Jato’s rulings touch discussions of illegal campaign finance.) But although some cases related to Lava Jato have gone to the electoral courts, most of the cases, including all of the main criminal cases, have been prosecuted in the ordinary courts. Federal prosecutors, especially the Lava Jato task force, are very concerned about the STF’s decision and have criticized it as a significant blow to Brazil’s anticorruption efforts.

They are right to be worried. Although some have maintained that there is no serious cause for concern, in fact the STF’s decision poses a very serious problem, for several reasons.

Continue reading

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