BREACH OF ETHICS
Exclusive: Leaked Chats Between Brazilian Judge and Prosecutor Who Imprisoned Lula Reveal Prohibited Collaboration and Doubts Over Evidence
The Intercept
https://theintercept.com (Brasil) https://theintercept.com/2019/06/09/brazil-lula-operation-car-wash-sergio-moro/
Secret Brazil Archive Part 1
How and Why The Intercept Is Reporting on a Vast Trove of Materials About Brazil’s Operation Car Wash and Justice Minister Sergio Moro
The Intercept Brasil today published three explosive exposés showing highly controversial, politicized, and
legally dubious internal discussions and secret actions by the Operation Car
Wash anti-corruption task force of prosecutors, led by the chief prosecutor Deltan
Dallagnol, along with then-Judge Sergio Moro, now the powerful and internationally celebrated justice minister for Brazilian
President Jair Bolsonaro.
These stories are based on a
massive archive of previously undisclosed materials — including private
chats, audio recordings, videos, photos, court proceedings, and
other documentation — provided to us by an anonymous source. They reveal
serious wrongdoing, unethical behavior, and systematic deceit about which the
public, both in Brazil and internationally, has the right to know.
These three articles were published
today in The Intercept Brasil in Portuguese, and
we have synthesized them into two English-language articles for The Intercept. Given the size and global influence of Brazil under the new Bolsonaro government, these stories are of great significance to an international audience.
we have synthesized them into two English-language articles for The Intercept. Given the size and global influence of Brazil under the new Bolsonaro government, these stories are of great significance to an international audience.
This is merely the beginning of
what we intend to be an ongoing journalistic investigation, using this massive
archive of material, into the Car Wash corruption probe; Moro’s actions
when he was a judge and those of the prosecutor Dallagnol; and the
conduct of numerous individuals who continue to wield great political and
economic power both inside Brazil and in other countries.
Beyond the inherent political,
economic, and environmental importance of Brazil under Bolsonaro, the
significance of these revelations arises from the incomparably consequential actions of the yearslong Car Wash
corruption probe. That sweeping scandal implicated numerous
leading political figures, oligarchs, Bolsonaro’s predecessor as president, and even foreign leaders in corruption prosecutions.
Most importantly, Car Wash was
the investigative saga that led to the imprisonment of former President
Luiz Inácio Lula da Silva last year. Lula’s conviction by Moro, once it
was quickly affirmed by an appellate court, rendered him ineligible to run for
president at a time
when all polls showed that Lula — who was twice elected
president by large margins in 2002 and in 2006 before being term-limited
out of office in 2010 with an 87 percent approval rating — was the frontrunner in
the 2018 presidential race. Lula’s exclusion from the election, based
on Moro’s finding of guilt, was a key episode that paved the way for
Bolsonaro’s election victory.
Perhaps most remarkably, after
Bolsonaro won the presidency, he created a new position of unprecedented
authority, referred to by Brazilians as “super justice minister,” to
oversee an agency with consolidated powers over law enforcement,
surveillance, and investigation previously interspersed among multiple
ministries. Bolsonaro created that position for the benefit of the very judge who found
Lula guilty, Sergio
Moro, and it is the position Moro now occupies. In other words, Moro now wields immense
police and surveillance powers in Brazil — courtesy of a president who was
elected only after Moro, while he was as judge, rendered Bolsonaro’s key
adversary ineligible to run against him.
The Car Wash prosecutors and Moro
have been highly controversial in Brazil and internationally — heralded by many
as anti-corruption heroes and accused by others of being clandestine
right-wing ideologues masquerading as apolitical law enforcers. Their critics
have insisted that they have abused and exploited their law enforcement powers
with the politicized goal of preventing Lula from returning to the presidency
and destroying his leftist Workers’ Party, or the PT. Moro and the
prosecutors have, with equal vehemence, denied that they have any
political allegiances or objectives and have said they are simply trying
to cleanse Brazil of corruption.
But, until now, the Car Wash
prosecutors and Moro have carried out their work largely in secret, preventing
the public from evaluating the validity of the accusations against them and the
truth of their denials. That’s what makes this new archive so journalistically
valuable: For the first time, the public will learn what these judges and
prosecutors were saying and doing when they thought nobody was listening.
Today’s articles show, among other
things, that the Car Wash prosecutors spoke openly of their desire to prevent
the PT from winning the election and took steps to carry out that agenda, and
that Moro secretly and unethically collaborated with the Car Wash prosecutors
to help design the case against Lula despite serious internal doubts about the
evidence supporting the accusations, only for him to then pretend to be its
neutral adjudicator.
The Intercept’s only role in
obtaining these materials was to receive them from our source, who contacted us
many weeks ago (long before the recently alleged hacking of Moro’s
telephone) and
informed us that they had already obtained the full set of materials and
was eager to provide them to journalists.
Informing the public of matters in
the public interest and exposing wrongdoing was our guiding principle in doing
this initial reporting on the archive, and it will continue to be our guiding
principle as we report further on the large number of materials we have been
provided.
The sheer volume of materials in
this archive, as well as the fact that many documents include private
conversations among public officials, requires us to make journalistic
decisions about which documents should be reported on and published, and which
documents should be withheld.
When making these judgments, we
employ the standard used by journalists in democracies around the world: namely,
that material revealing wrongdoing or deceit by powerful actors should be
reported, but information that is purely private in nature and whose disclosure
may infringe upon legitimate privacy interests or other social values should be
withheld.
Indeed, in our reporting on this
material, we are guided by the same rationale that led much of Brazilian
society — including many journalists, commentators, and activists — to praise
the disclosure in 2016 by Moro and various
media outlets of the private telephone calls between Lula and former President Dilma
Rousseff, in which the two leaders discussed the possibility of Lula becoming a
minister in Dilma’s government. Disclosure of those private calls was crucial
in turning public opinion against the PT, helping to lay the groundwork
for Dilma’s 2016 impeachment and Lula’s 2018 imprisonment. The principle
invoked to justify that disclosure was the same one we are adhering to in our
reporting on these materials: that a democracy is healthier
when significant actions undertaken in secret by powerful figures are
revealed to the public.
But unlike those disclosures by Moro
and various media outlets of the private conversations between Lula and Dilma —
which included not only matters whose disclosures were in the public
interest, but also private communications of Lula that had no public relevance and that many argued were
released with the intention of personally embarrassing Lula — The Intercept has
resolved to withhold any private communications, audio recordings, videos, or
other materials relating to Moro, Dallagnol, or any other parties that are
purely private in nature and thus unrelated to matters of public interest.
We have taken measures to secure the
archive and all of its component materials outside of Brazil, so that numerous
journalists have access to it, ensuring that no authorities in any country will
have the ability to prevent reporting based on these materials. We intend
to report on and publish stories based on the archive as expeditiously as
possible in accordance with our high standards of factual accuracy and
journalistic responsibility.
Consistent with journalistic
practice in countries where the press operates under the threat of censorship
and prior restraint orders, as has been the situation recently in Bolsonaro-led
Brazil, we did not seek comment from the powerful legal officials mentioned in
these stories prior to publication because we did not want to give them advance
notice of this reporting, and because the documents speak for themselves. We
contacted them immediately upon publication and will update the stories with
their comments if and when they provide them.
Given the immense power wielded by
these actors, and the secrecy under which they have — until now — been
able to operate, transparency is crucial for Brazil and the international
community to have a clear understanding of what they have really done. A
free press exists to shine a light on what the most powerful figures in society
do in the dark.
Update: June 9, 2019, 8:13 p.m. ET
The Car Wash task force did not refute
the authenticity of the information published by The Intercept. In a press
release published Sunday evening, they wrote, “possibly among the illegally
copied information are documents and data on ongoing strategies and
investigations and on the personal and security routines of task force members
and their families. There is peace of mind that any data obtained reflects
activities developed with full respect for legality and in a technical and
impartial manner, over more than five years of the operation.”
Update: June 9, 2019, 9:53 p.m. ET
Justice Minister Sergio Moro also
published a note in response to our reporting: “About alleged messages that
would involve me, posted by The Intercept website this Sunday, June 9, I lament
the lack of indication of the source of the person responsible for the criminal
invasion of the prosecutors’ cell phones. As well as the position of the site
that did not contact me before the publication, contrary to basic rule of
journalism.
As for the content of the messages they
mention, there is no sign of any abnormality or providing directions as a
magistrate, despite being taken out of context and the sensationalism of the
articles, they ignore the gigantic corruption scheme revealed by Operation
Car Wash.”
The Intercept: We depend on the support of readers
like you to help keep our nonprofit newsroom strong and independent. Join Us
Contact the author:
-----
HIDDEN PLOT
Exclusive: Brazil’s Top Prosecutors Who Indicted Lula Schemed in Secret Messages to Prevent His Party From Winning 2018 Election
The Intercept https://theintercept.com (Brasil) https://theintercept.com/2019/06/09/brazil-car-wash-prosecutors-workers-party-lula/
Secret Brazil Archive Part 2
A massive archive
exclusively provided to the Intercept confirms long-held suspicions about the
politicized motives and deceit of Brazil’s corruption investigators.
An enormous trove of secret documents reveals that
Brazil’s most powerful prosecutors, who have spent years insisting they are
apolitical, instead plotted to prevent the Workers’ Party (PT) from winning the
2018 presidential election by blocking or weakening a pre-election interview
with former President Luiz Inácio Lula da Silva with the explicit purpose of
affecting the outcome of the election.
The massive archive, provided
exclusively to The Intercept, shows multiple examples of
politicized abuse of prosecutorial powers by those who led the
country’s sweeping Operation Car Wash corruption probe since 2014. It also
reveals a long-denied political and ideological agenda. One glaring
example occurred 10 days before the first round of presidential voting
last year, when a Supreme Court justice granted a petition from the country’s
largest newspaper, Folha de São Paulo, to interview Lula, who was in prison on
corruption charges brought by the Car Wash task force.
Immediately upon learning of that
decision on September 28, 2018, the team of prosecutors who handled Lula’s
corruption case — who spent years vehemently denying that they were driven by
political motives of any kind — began discussing in a private Telegram chat
group how to block, subvert, or undermine the Supreme Court decision. This was
based on their expressed fear that the decision would help the PT — Lula’s
party — win the election. Based on their stated desire to prevent the PT’s
return to power, they spent hours debating strategies to prevent or dilute the
political impact of Lula’s interview.
The Car Wash prosecutors explicitly
said that their motive in stopping Lula’s interview was to prevent the PT from
winning. One of the prosecutors, Laura Tessler, exclaimed upon learning of the
decision, “What a joke!” and then explained the urgency of preventing or
undermining the decision. “A press conference before the second round of voting
could help elect Haddad,” she wrote in the chat group, referring to the PT’s
candidate Fernando Haddad. The chief of the prosecutor task force, Deltan
Dallagnol, conducted a separate conservation with a longtime confidant, also a
prosecutor, and they agreed that they would “pray” together that
the events of that day would not usher in the PT’s return to power.
Many in Brazil have long accused the
Car Wash prosecutors, as well as the judge who adjudicated the corruption
cases, Sérgio Moro (now the country’s justice minister under President Jair
Bolsonaro), of being driven by ideological and political motives. Moro and the
Car Wash team have repeatedly denied these accusations, insisting that their
only consideration was to expose and punish political corruption irrespective
of party or political faction.
But this new archive of documents —
some of which are being published today in other articles by The Intercept and
The Intercept Brasil — casts considerable doubt on the denials of the
prosecutors. Indeed, many of these documents show improper and unethical plotting between
Dallagnol and Moro
on how to best structure the corruption case against Lula — although Moro
was legally required to judge the case as a neutral
arbiter. Other documents include private admissions among the prosecutors that the evidence proving Lula’s
guilt was lacking. Overall, the documents depict a task force of prosecutors
seemingly intent on exploiting its legal powers for blatantly political ends,
led by its goal of preventing a return to power of the Workers’ Party
generally, and Lula specifically.
(Sérgio Moro, Brazil’s minister of justice, speaks at a news conference on
Feb. 4, 2019, in Brasília, Brazil, where he announced tougher measures to
overhaul crime. Photo: Andre Coelho/Bloomberg via Getty Images)
The secrets unveiled by these
documents are crucial for the public to know because the massive Car Wash
corruption probe, which has swept through Brazil for the last five years, has
been one of the most consequential events in the history of the world’s
fifth-most populous country — not just legally but also politically.
Until now, both the Car Wash task
force and Moro have been heralded around the world with honors, prizes, and media praise. But this new archive of documents shines
substantial light on previously unreported motives, actions, and often
deceitful maneuvering by these powerful actors.
While the Car Wash team of
prosecutors has imprisoned a wide range of powerful politicians and
billionaires, by far their most significant accomplishment was the 2018 imprisonment of Lula. At the time of Lula’s conviction,
all polls showed that the former president — who had twice been elected by
large margins, in 2002 and then again in 2006, and left office with a 87
percent approval rate — was the overwhelming frontrunner to once again win the presidency in
2018.
But Lula’s criminal conviction last
year, once it was quickly affirmed by an appellate court, rendered him ineligible to run for the
presidency,
clearing the way for Bolsonaro, the far-right candidate, to win against Lula’s
chosen successor, Haddad, the former São Paulo mayor. Supporters of the PT and
many others in Brazil have long insisted that these prosecutors, while
masquerading as apolitical and non-ideological actors whose only agenda was
fighting corruption, were in fact right-wing ideologues whose overriding
mission was to destroy the PT and prevent Lula’s return to power in the
2018 election.
These documents lend obvious
credibility to those accusations. They show extensive plotting in secret to
block and undermine the September 28 judicial order from Supreme Court Justice
Ricardo Lewandowski, which authorized one of the country’s most prominent
reporters, Folha’s Mônica Bergamo, to interview Lula in prison. Lewandowski’s
decision was expressly grounded in the right of a free press, which he said
entitled the newspaper to speak to Lula and report on his perspectives.
In his decision, Lewandowski
also explained that the arguments that had been used all year to prevent a
prison interview with Lula — namely, “security fears“ and the need to keep
prisoners silent — were blatantly invalid given the numerous other prison
interviews “permitted for prisoners condemned of crimes such as trafficking,
murder and international organized crime.” The ruling also noted that
Lula was neither in a maximum-security prison nor under a specially restrictive
prison regime, further eroding the rationale for a ban on interviewing him.
Up until that point, Lula — widely
regarded as one of the most effective and charismatic political communicators
in the democratic world — had been held incommunicado, prevented from speaking
to the public about the election. Any pre-election interview of Lula, in which
he could have offered his views on Bolsonaro and the other candidates,
including the PT’s Haddad, would have commanded massive media attention
and likely influenced a decisive block of voters who, to this day,
remain highly loyal to the former president (which is why Lula, even once he
was imprisoned, remained the poll frontrunner).
The Car Wash prosecutors learned of
the judicial decision authorizing Folha’s pre-election prison interview with
Lula when an article about it was posted in their encrypted Telegram chat
group. The panic among them was immediate. They repeatedly worried that the
interview, to be conducted so close to the first round of voting, would help
the PT’s Haddad win the presidential election. Based explicitly on that fear,
the Car Wash prosecutors spent the day working feverishly to develop strategies
to either overturn the ruling, delay Lula’s interview until after the election,
or ensure that it was structured so as to minimize its political impact and its
ability to help the PT win.
Reacting to the
decision, Tessler, one of the prosecutors, exclaimed: “What a joke!!!
Revolting!!! There he goes hold a rally in prison. A true circus. After Mônica
Bergamo, based on the principle of equal treatment, I’m sure many other
journalists will also be coming … and we’re left here, made to act like clowns
with a supreme court like that …” Another prosecutor, Athayde Ribeiro
Costa, responded to the decision with one word and numerous exclamation marks:
“Mafiosos!!!!!!!!!!!!!!!!!!!!!”
The prosecutors, according to the
time stamps on their chats, spent nearly a full day inventing strategies
for how to prevent the Lula interview from taking place before the election or
at least dilute its impact — from speculating whether a press conference would
be less effective than a one-on-one interview, or whether they should petition
to allow all other prisoners to be interviewed to distract attention from Lula.
Tessler then made clear why these prosecutors were so deeply upset that the
public could be allowed to hear from the former president so soon before the
election: “Who knows … but an interview before the second round of voting could
help elect Haddad.”
(Deltan Dallagnol, attorney of the Federal Public Ministry, during an
interview in Curitiba, Brazil, on Jan. 26, 2017. Photo: Heuler Andrey/AFP/Getty
Images)
While these chats were taking place
within the Car Wash chat group, Deltan Dallagnol, the task force’s chief, was
also having his own side conversation with a close confidant, a prosecutor who
does not work on the Car Wash task force. They both expressly agreed that the
chief objective was preventing the return of the PT to power, and the chief
prosecutor — who often boasts of his religious piety — agreed that they would
“pray” that this did not happen:
Carol PGR – 11:22:08 – Deltannn, my friend
11:22:33 – all of my solidarity in the world to you with this episode …. We’re on a runaway train and I do not know what’s waiting for us
11:22:44 – The only certainty is that we’re together
11:24:06 – I remain very worried about the possible return of PT, but I have prayed frequently for God to enlighten our population and for a miracle to save us
Deltan – 13:34:22 – I’m with you, Carol!
13:34:27 – Pray indeed
13:34:32 – We need this as a country
These admissions of the prosecutors’
true concerns — that a Lula interview could “elect Haddad” and usher in a
“return of PT” to power — were hardly isolated confessions. To the contrary,
the entire discussion, held over many hours, reads far less like a meeting of
neutral prosecutors than a war-room session of anti-PT political operatives and
strategists, focused on the goal of determining the most effective way to
prevent or minimize the political impact of Lula’s interview.
Athayde Ribeiro Costa, for
instance, cynically suggested that the omission of any date in
Lewandowski’s decision could allow the Federal Police to purposely schedule the
interview for after the election while pretending to comply with the order:
“There’s no date. So the Federal Police could just schedule this for after the
election, and we’ll still be in compliance with the decision.”
Another prosecutor, Januário Paludo,
proposed a series of actions designed to prevent or minimize the Lula
interview: “Plan A: we could enter an appeal on the Supreme Court itself, zero
probability [of success]. Plan B: open it up for everybody to interview him on
the same day. It’ll be chaotic but reduces the likelihood that the interview is
directed.”
At no point did Dallagnol, who
actively participated in the discussion throughout the day, or any other Car
Wash prosecutor, suggest that it was improper for such political considerations
to drive prosecutorial strategizing. Indeed, this Telegram chat group, which
was used by its participants for many months, suggests that political
considerations of this kind were routinely incorporated into the task force’s
decision-making process.
The prosecutors lamented among
themselves that they were barred from appealing the decision because an appeal
in the name of the task force would make them look too political and would
create the public perception that their intentions were to silence Lula and
prevent him from helping the PT win — which, as these documents reveal, was
indeed their actual motive. But later in the day, they learned that a
right-wing party, called Novo (meaning “New”), had appealed the decision, and
that the authorization to interview Lula was stayed by the court. They
boisterously celebrated this news by, among other things, mocking the conflicts
that were likely to arise within the Supreme Court (STF) and heaping praise on
those responsible for trying to stop the interview:
Januário Paludo – 23:41:02 – Just heard about it…
Deltan – 23:41:32 – lol
Athayde Costa – 23:42:02 – The atmosphere at the STF must be great
Januário Paludo – 23:42:11 – it’s gonna be a war of judicial decisions…
Paludo added, ironically, that “we
should thank our Prosecutors’ Office: the Novo Party!” meaning that this
right-wing political party, which was also contesting the 2018 election,
had performed what the task force themselves wanted to achieve
by preventing Lula from being heard.
The appeal from that party resulted
in a judicial stay of Lewandowski’s interview authorization. As a result, no
pre-election interview with Lula was permitted and he was thus never heard from
prior to the voting. Only once the election was concluded and Bolsonaro won did
the Supreme Court begin authorizing media outlets to interview Lula in
prison. Last month, Bergamo of Folha was permitted to interview Lula jointly with El País Brasil, and shortly thereafter,
Lewandowski granted The Intercept Brasil’s petition to interview Lula alone,
the video and transcript of which were published by The Intercept.
Once Bolsonaro was elected
president, he quickly offered Moro — whose corruption ruling had resulted in
Lula’s candidacy being barred — a newly created and unprecedentedly powerful
position as what is now called the “super justice minister,” designed to
reflect the massive powers vested in Moro.
That the same judge who found Lula
guilty was then rewarded by Lula’s victorious opponent made even longtime supporters of
the Car Wash corruption probe uncomfortable, due to the obvious perception
(real or not) of a quid pro quo, and by the transformation of Moro, who long
insisted he was apolitical, into a political official working for the most
far-right president ever elected in the history of Brazil’s democracy. Those
concerns heightened when Bolsonaro recently admitted that he had also promised to
appoint Moro to a lifelong seat on the Supreme Court as soon as there was
a vacancy.
Now that the actual conversations
and actions of the Car Wash team and of Moro can be revealed and seen, the
public — both in Brazil and internationally — will finally have the opportunity
to evaluate whether their longtime denials of being politically motivated were
ever true.
These September 28 discussions are
just the start of reporting by The Intercept and The Intercept Brasil on
this archive.
Update: June 9, 2019, 8:13 p.m. ET
The Car Wash task force did not
refute the authenticity of the information published by The Intercept. In a
press release published Sunday evening, they wrote, “possibly among the
illegally copied information are documents and data on ongoing strategies and
investigations and on the personal and security routines of task force members
and their families. There is peace of mind that any data obtained reflects activities
developed with full respect for legality and in a technical and impartial
manner, over more than five years of the operation.”
Update: June 9, 2019, 9:53 p.m. ET
Justice Minister Sergio Moro also
published a note in response to our reporting: “About alleged messages that
would involve me, posted by The Intercept website this Sunday, June 9, I lament
the lack of indication of the source of the person responsible for the criminal
invasion of the prosecutors’ cell phones. As well as the position of the site
that did not contact me before the publication, contrary to basic rule of
journalism.
As for the content of the messages
they mention, there is no sign of any abnormality or providing directions as a
magistrate, despite being taken out of context and the sensationalism of the
articles, they ignore the gigantic corruption scheme revealed by Operation
Car Wash.”
Related
How and Why The Intercept Is Reporting on a Vast Trove of Materials About Brazil’s Operation Car Wash and Justice Minister Sergio Moro
Contact the author:
-----
Secret Brazil Archive Part 3
Judge Sergio Moro repeatedly counseled
prosecutor Deltan Dallagnol via Telegram during more than two years of
Operation Car Wash.
The Intercept https://theintercept.com (Brasil)
https://theintercept.com/2019/06/09/brazil-lula-operation-car-wash-sergio-moro/
A large trove of documents furnished exclusively
to The Intercept Brasil reveals serious ethical violations and legally
prohibited collaboration between the judge and prosecutors who last year convicted and imprisoned former Brazilian President Luiz Inácio Lula da
Silva on corruption charges — a conviction that resulted in Lula being barred
from the 2018 presidential election. These materials also contain
evidence that the prosecution had serious doubts about whether there was
sufficient evidence to establish Lula’s guilt.
The archive, provided to The
Intercept by an anonymous source, includes years of internal files and private
conversations from the prosecutorial team behind Brazil’s sprawling Operation
Car Wash, an ongoing corruption investigation that has yielded dozens of major
convictions, including those of top corporate executives and powerful
politicians.
In the files, conversations between
lead prosecutor Deltan Dallagnol and then-presiding Judge Sergio Moro reveal
that Moro offered strategic advice to prosecutors and passed on tips for new
avenues of investigation. With these actions, Moro grossly overstepped the
ethical lines that define the role of a judge. In Brazil, as in the United
States, judges are required to be impartial and neutral, and are barred from
secretly collaborating with one side in a case.
Other chats in the archive raise
fundamental questions about the quality of the charges that ultimately
sent Lula to prison. He was accused of having received a beachfront
triplex apartment from a contractor as a kickback for facilitating
multimillion-dollar contracts with the state-controlled oil firm Petrobras. In
group chats among members of the prosecutorial team just days before filing the
indictment, Dallagnol expressed his increasing doubts over two key elements of
the prosecution’s case: whether the triplex was in fact Lula’s and whether it
had anything to do with Petrobras.
These two questions were critical to
their ability to prosecute Lula. Without the Petrobras link, the task
force running the Car Wash investigation would have no legal basis for
prosecuting this case, as it would fall outside of their jurisdiction. Even
more seriously, without proving that the triplex belonged to Lula, the case
itself would fall apart, since Lula’s alleged receipt of the triplex was the
key ingredient to prove he acted corruptly.
Operation Car Wash is one of the
most consequential political forces in the history of Brazilian democracy and
also one of the most controversial. It has taken down powerful actors once
thought to be untouchable and revealed massive corruption schemes that sucked
billions out of public coffers.
The probe, however, has also been
accused of political bias, repeated violations of constitutional guarantees,
and illegal leaks of information to the press. (A separate article published today by The Intercept reveals that
the Car Wash prosecutors, who long insisted that they were apolitical and
concerned solely with fighting corruption, were in fact internally plotting how
to prevent the return to power by Lula and his Workers’ Party).
The successful prosecution of Lula
rendered him ineligible to run in the 2018 presidential election at a time when
all polls showed that the former president was the clear frontrunner. As a
result, Operation Car Wash was scorned by Lula’s supporters, who considered it
a politically motivated scheme, driven by right-wing ideologues masquerading as
apolitical anti-corruption prosecutors, in order to prevent Lula from running
for president and to destroy the Workers’ Party.
But on the Brazilian
right, there was widespread popular support for the corruption
probe, the team of prosecutors, and Moro. The yearslong corruption probe
transformed Moro into a hero both in Brazil and around the world, a status that
was only strengthened once he became the man who finally brought down Lula.
After the guilty verdict from Moro
was quickly affirmed by an appellate court, Lula’s candidacy was barred by law.
With Lula out of the running, the far-right candidate Jair Bolsonaro shot up in the polls
and then handily won the presidency by defeating Lula’s chosen
replacement, former São Paulo Mayor Fernando Haddad.
Bolsonaro then named Moro, the judge
who had presided over the case against Lula, to be his justice minister.
Jurists and scholars will continue to debate the role of Car Wash for decades,
but these archives offer an unprecedented window into this crucial moment in
recent Brazilian history.
(A truck with a portrait of Sergio Moro reading, “Long live Lava Jato
(Car Wash),” from April 6, 2018. Photo: Mauro Pimentel/AFP/Getty Images)
Sergio Moro Crosses the Line
Telegram messages between Sergio
Moro and Deltan Dallagnol reveal that Moro repeatedly stepped far outside the
permissible bounds of his position as a judge while working on Car Wash cases.
Over the course of more than two years, Moro suggested to the prosecutor that
his team change the sequence of who they would investigate; insisted on less
downtime between raids; gave strategic advice and informal tips; provided the
prosecutors with advance knowledge of his decisions; offered constructive
criticism of prosecutorial filings; and even scolded Dallagnol as if the
prosecutor worked for the judge. Such conduct is unethical for a judge, who is
responsible for maintaining neutrality to guarantee a fair trial, and it
violates the Judiciary’s Code of Ethics for Brazil.
In one illustrative chat, Moro,
referring to new rounds of search warrants and interrogations, suggested to
Dallagnol that it might be preferable to “reverse the order of the two planned
[phases].”
Numerous other instances in this
archive reveal Moro — then a judge, and now Bolsonaro’s justice minister —
actively collaborating with the prosecutors to strengthen their case. After a
month of silence from the Car Wash task force, Moro asked: “Hasn’t it been a
long time without an operation?” In another instance, Moro said, “You cannot
make that kind of mistake now” — a reference to what he considered to be
an error by the Federal Police. “But think hard whether that’s a good idea… the
facts would have to be serious,” he counseled after Dallagnol told him of a
motion he planned to file. “What do you think of these crazy statements from
the PT national board? Should we officially rebut?” he asked, using the plural
— “we” — in response to criticisms of the Car Wash investigation by Lula’s
Workers’ Party, showing that he viewed himself and the Car Wash prosecutors as
united in the same cause.
As in the United States, Brazil’s
criminal justice system employs the accusatory model, which requires separation
between the accuser and judge. Under this model, the judge must analyze the
allegations of both sides in an impartial, disinterested manner. But the chats
between Moro and Dallagnol show that, when he was a judge, the current justice
minister improperly interfered in the Car Wash task force’s work, acting
informally as an aid and advisor to the prosecution. In secret, he was helping
design and construct the very criminal case that he would then “neutrally”
adjudicate.
Such coordination between the judge
and the Public Prosecutor’s Office outside of official proceedings squarely
contradicts the public narrative that Car Wash prosecutors, Moro, and their
supporters have presented and vigorously defended over the years. Moro and
Dallagnol have been accused of secret collaboration since the early days of Car
Wash, but these suspicions — until now — were not backed by concrete evidence.
Another example of Moro crossing the
line separating prosecutor and judge is in a conversation with Dallagnol on
December 7, 2015, when he informally passed on a tip about Lula’s case to the
prosecutors. “So. The following. Source informed me that the contact person is
annoyed at having been asked to issue draft property transfer deeds for one of
the ex-president’s children. Apparently the person would be willing to provide
the information. I’m therefore passing it along. The source is serious,” wrote
Moro.
“Thank you!! We’ll make contact,”
Dallagnol promptly replied. Moro added, “And it would be dozens of properties.”
Dallagnol later advised Moro that he called the source, but she would not talk:
“I’m thinking of drafting a subpoena, based on apocryphal news,” the prosecutor
said. While it is not entirely clear what this means, it appears that Dallagnol
was floating the idea of inventing an anonymous complaint that could be used to
compel the source to testify. Moro, rather than chastise the prosecutor or
remain silent, appears to endorse the proposal: “Better to formalize then,” the
judge replied.
Moro has publicly and vehemently
denied on several occasions that he ever worked in partnership with the team of
prosecutors. In a March 2016 speech, Moro denied these suspicions explicitly:
Let’s make something very clear. You
hear a lot about Judge Moro’s investigative strategy. […] I do not have any
investigative strategy at all. The people who investigate or who decide what to
do and such is the Public Prosecutor and the [Federal] Police. The judge is
reactive. We say that a judge should normally cultivate these passive virtues.
And I even get irritated at times, I see somewhat unfounded criticism of my
work, saying that I am a judge-investigator.
In his 2017 book, “The Fight Against Corruption,” Dallagnol
wrote that Moro “always evaluated the Public Prosecutor’s requests in an
impartial and technical manner.” Last year, in response to a complaint
from Lula’s lawyers, Brazil’s prosecutor general — the presidentially-appointed
chief prosecutor who runs the Car Wash investigation — wrote that Moro “remained impartial during the
entire process” of Lula’s conviction.
(Brazilian Federal Attorney Deltan Dallagnol listens, during a ceremony
for the return of resources to Petrobras, which were recovered in connection
with Lava Jato operation, in Curitiba, Brazil, on Dec. 7, 2017. Photo: Heuler
Andrey/AFP/Getty Images)
Doubts, Misinterpretations, and a Triplex
Beyond Moro’s interjections, the
documents obtained by The Intercept Brasil reveal that, while publicly boasting
about the strength of the evidence against Lula, prosecutors were internally
admitting major doubts. They also knew that their claimed jurisdictional
entitlement to prosecute Lula was shaky at best, if not entirely baseless.
In the documents, Dallagnol, the
Operation Car Wash lead prosecutor, expressed concerns regarding the two most
important elements of the prosecution’s case. Their indictment accused Lula of
receiving a beachfront triplex apartment from the construction firm Grupo OAS
as a bribe in exchange for facilitating millions of dollars in contracts with
Petrobras, but they lacked solid documentary evidence to prove that the
apartment was Lula’s or that he ever facilitated any contracts. Without the
apartment, there was no case, and without the Petrobras link, the case would
fall out of their jurisdiction and into that of the São Paulo division of the
Public Prosecutor’s office, which had argued that it, rather than Operation Car
Wash prosecutors, had jurisdiction over the case against Lula.
“They will say that we are accusing
based on newspaper articles and fragile evidence … so it’d be good if this item
is wrapped up tight. Apart from this item, so far I am apprehensive about the
connection between Petrobras and enrichment, and after they told me I am
apprehensive about the apartment story,” wrote Dallagnol in a group Telegram
chat with his colleagues on September 9, 2016, four days before filing their
indictment against Lula. “These are points in which we have to have solid
answers and on the tips of our tongues.”
None of Dallagnol’s subordinates
responded to his messages in the materials examined for this article.
Prosecutors in São Paulo had publicly questioned the Petrobras connection in an
official court filing, noting, “In 2009-2010 there was no talk of scandal at
Petrobras. In 2005, when the presidential couple, in theory, began to pay
installments on the property, there was no indication of an ‘oil scandal’.”
The Curitiba-based Car Wash team
eventually prevailed over their São Paulo counterparts and were able to
maintain the high-profile, politically explosive case in their jurisdiction.
But private chats reveal that their argument was a bluff — they weren’t
actually sure of the Petrobras link that was the key to maintaining their
jurisdiction.
On Saturday night at 10:45 p.m., a
day after expressing his original doubts, Dallagnol messaged the group again:
“I’m so horny for this O GLOBO article from 2010. I’m going to kiss whichever
one of you found this.” The article, headlined “Bancoop Case: Lula Couple’s
Triplex Is Delayed,” was the first to publicly mention Lula owning an apartment
in Guarujá, a coastal town in São Paulo state. The 645-word article, published
years before the Car Wash investigation began, does not mention OAS or
Petrobras and instead covers the bankruptcy of the construction cooperative
behind the development and how it could negatively impact the delivery date of
Lula’s new vacation apartment.
The article was submitted as
evidence and, in his decision to convict Lula, Moro wrote that the O Globo
article “is quite relevant from a probative point of view.” But Lula’s defense
attorneys dispute that he was the owner of a triplex, claiming instead that he
purchased a smaller, single level apartment on a lower floor, and the O Globo
article presented no documentation proving otherwise.
Moreover, there is a small but
telling inconsistency between the O Globo article and the claims of the
prosecution regarding the triplex. The article itself puts Lula’s penthouse in
Tower B, and even notes that Tower A is yet to be built at the time the article
was written: “The second tower, if constructed according to the project
blueprints, finalized in the early 2000s, may end part of Lula’s joy: the
building will be in front of the president’s property, obstructing his ocean
view at Guarujá.” But the prosecutors alleged that Lula owned the beachfront
triplex in Tower A. Without noting this contradiction, Item 191 of the
indictment cites the O Globo article: “This article explained that the then
President LULA and [his wife] MARISA LETÍCIA would receive a triplex penthouse,
with a view to the sea, in the said venture.” That is the apartment that would
eventually be seized by authorities and that Lula would be convicted of
receiving.
Car Wash prosecutors used the
article as evidence that the triplex belonged to the presidential family, but
indicted and convicted Lula on a triplex in a different building — demonstrating
that the investigation was imprecise on the central point of their case:
identifying the bribe that Lula allegedly received from the contractor.
When the indictment was revealed
during a press conference on September 14, the triplex and its provenance as a
bribe from OAS were the key pieces of evidence on the charges of passive
corruption and money laundering. In a now infamous moment, Dallagnol presented
a typo-laden PowerPoint presentation that showed “Lula” written in a blue
bubble surrounded by 14 other bubbles containing everything from “Lula’s
reaction” and “expressiveness” to “illicit enrichment” and “bribeocracy.” All
arrows pointed back to Lula, whom they characterized as the mastermind behind a
sprawling criminal enterprise. The presentation was widely spoofed and
criticized by critics as evidence of the weakness of the Car Wash prosecutors’
case.
Two days later, Dallagnol messaged
Moro and, in private, explained that they went to great lengths to characterize
Lula as the “maximum leader” of the corruption scheme as a way to link the
politician to the R$87 million (US$26.7 million, at the time) paid in bribes by
OAS for contracts at two Petrobras refineries — a charge without material
evidence, he admitted, but one that was essential so that the case could be
tried under Moro’s jurisdiction in Curitiba.
“The indictment is based on a lot of
indirect evidence of authorship, but it wouldn’t fit to say that in the
indictment and in our communications we avoided that point,” Dallagnol wrote.
“It was not understood that the long exposition on command of the scheme was
necessary to impute corruption to the former president. A lot of people did not
understand why we put him as the leader to gain 3,7MM in money laundering, when
it was not for that, but to impute 87MM of corruption.”
Moro responded two days later:
“Definitely, the criticisms of your presentation are disproportionate. Stand
firm.” Less than a year later, the judge sentenced the former president to nine
years and six months in prison. The ruling was quickly upheld unanimously by an appeals court and
the sentence was extended to 12 years and one month. In an interview, the
president of the appeals court characterized Moro’s decision as “just and
impartial” before later admitting that he had not yet obtained access to the
underlying evidence in the case. One of the three judges on the panel was an old friend and classmate of Moro’s.
Even Lula’s most vehement critics,
including those who believe him to be corrupt, have expressed doubts about the
strength of this particular conviction. Many have argued that it was chosen as
the first case because it was simple enough to process quickly, in time to
fulfill the real goal: to bar Lula from being re-elected.
Until now, most of the evidence
necessary to evaluate the motives and internal beliefs of the Car Wash task
force and Moro remained secret. Reporting on this archive now finally enables
the public — in Brazil and internationally — to evaluate both the validity of
Lula’s conviction and the propriety of those who worked so tirelessly to bring
it about.
The Intercept contacted the offices
of the Car Wash task force and Sergio Moro immediately upon publication and will
update the stories with their comments if and when they
provide them. Read the editors’ statement here.
Update: June 9, 2019, 8:13 p.m. ET
The Car Wash task force did not
refute the authenticity of the information published by The Intercept. In a
press release published Sunday evening, they wrote, “possibly among the
illegally copied information are documents and data on ongoing strategies and
investigations and on the personal and security routines of task force members
and their families. There is peace of mind that any data obtained reflects
activities developed with full respect for legality and in a technical and
impartial manner, over more than five years of the operation.”
Update: June 9, 2019, 9:53 p.m. ET
Justice Minister Sergio Moro also
published a note in response to our reporting: “About alleged messages that
would involve me, posted by The Intercept website this Sunday, June 9, I lament
the lack of indication of the source of the person responsible for the criminal
invasion of the prosecutors’ cell phones. As well as the position of the site
that did not contact me before the publication, contrary to basic rule of
journalism.
As for the content of the messages
they mention, there is no sign of any abnormality or providing directions as a
magistrate, despite being taken out of context and the sensationalism of the
articles, they ignore the gigantic corruption scheme revealed by Operation
Car Wash.”
Contact the author:
Related
Exclusive: Brazil’s Top Prosecutors Who Indicted Lula Schemed in Secret Messages to Prevent His Party From Winning 2018 Election
Secret Brazil Archive
A massive trove of
previously undisclosed materials provides unprecedented insight into
the operations of the anti-corruption task force that transformed Brazilian
politics and gained worldwide attention.
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