July 5, 2019, The New York Times
https://www.nytimes.com/2019/07/05/opinion/lula-moro-brazil.html
Contributing Opinion Writer
Brazil’s Operation Car Wash was supposed to overthrow the country’s
culture of graft. Instead, it’s brought corruption into the heart of the state.
São Paulo, Brazil — On the surface, “Operation Car Wash” has been a
virtuous crusade against political corruption in this country.
Over the last five years, this federal investigation has uncovered vast
kickback schemes involving Brazil’s most important executives and politicians.
The operation has led to the criminal prosecution of 429 individuals and the
conviction of 159 of them. News outlets have eagerly covered each step of the
investigation, pushing for and praising the overthrow of a culture of graft in
Brazilian politics. The investigation should, in theory, be a source of pride
for our young democracy — only this is not the whole story.
From the beginning, Operation Car Wash resorted to questionable
procedures, such as using pretrial detentions to force confessions and relying
too heavily on generous plea-bargain deals. But these didn’t seem enough to
dismiss its efforts against wide-scale corruption, at least in the public’s
eye.
Then, on June 9, the news site The Intercept Brasil published the first
in a series of reports casting doubts on the integrity of the main actors
within the investigation. The journalists obtained,
from an anonymous source, a
massive archive of private texts, exchanged over the message service Telegram,
between federal prosecutors and the main judge in Operation Car Wash, Sergio
Moro. (We’ll come back to him later.)
The leaked messages show
that Mr. Moro often overstepped his role as a judge — someone who is supposed
to be impartial and free from bias — to act as a consigliere for the
prosecution. He offered strategic advice to prosecutors: they should, for
example, reverse the order of various phases of the investigation; think again
about a particular motion they were planning to file; speed up certain
processes; slow down many others. Mr. Moro passed on information about a
potential new source to the prosecution; scolded prosecutors when they
took too long to stage new raids; endorsed or disapproved of their tactics; and
provided them with advance knowledge of his decisions.
The revelations have shed new light on Mr. Moro’s conviction of former
President Luiz Inácio Lula da Silva, in 2017. (In Brazil, jury trials are
restricted for offenses against life, such as homicide and infanticide. In
other criminal cases, the same judge who oversees the investigation is also the
one who judges and sentences the accused.) The left-wing politician, who ruled
the country from 2003 to 2010, is currently in jail, having been convicted on
charges of corruption and money laundering. He was deemed ineligible to run for
president precisely at a time when polls showed him to be the front-runner in
the 2018 race. Mr. da Silva’s convenient detention cleared the way for the
election of the far-right Jair Bolsonaro, who then — wait for it — gracefully
appointed Mr. Moro as Brazil’s justice minister.
According to material published by the news site The Intercept Brasil,
over the course of the investigation, Mr. Moro meddled in matters of press
coverage and worried about how to get the public’s support for the prosecution.
“What do you think of these crazy statements from the PT national board? Should
we officially rebut?” he once asked federal prosecutor Deltan Dallagnol,
referring to a statement by Mr. da Silva’s Workers’ Party in which the
indictment was deemed a political persecution. Notice the use of the word “we”
— as if Mr. Moro and Mr. Dallagnol are on the same team.
This is all, of course, highly immoral — if not downright illegal. It
violates nothing less than the Universal Declaration of Human Rights, which
says: “Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.” Under Brazil’s Criminal Procedure Code,
judges are supposed to be neutral arbiters and cannot give advice to any of the
parties in a case. Mr. Moro also violated many provisions of the Brazilian Code
of Judicial Ethics, particularly one that says the judge should maintain “an
equivalent distance from the parties,” avoiding any kind of behavior that may
reflect “favoritism, predisposition or preconception.”
When the leaks were first reported, the Car Wash task force and Mr. Moro
did not dispute the authenticity of the material, arguing instead, per Mr.
Moro, that the messages showed “no sign of
any abnormality or providing directions as a magistrate.” He also expressed
dismay at the “lack of indication of the source of the person responsible for
the criminal invasion of the prosecutors’ cellphones” — even though The
Intercept’s reasons for not disclosing its source are obvious.
After a few days, though, Mr. Moro changed strategies. He started to
question the authenticity of the messages, which, in his opinion, could have
been tampered with. During a Senate hearing on June 19, in an apparent attempt
to confuse either us or himself, he tried out both explanations at the same time:
If a certain message “is authentic,” he said, “even if it is authentic, the
content is absolutely legal. There is no problem with that kind of statement. If
that message is totally authentic. Like I said: I cannot remember three years
ago if I sent a message of that nature.”
(By the way, my favorite excerpt from the leaked material is an exchange
between Mr. Moro and Mr. Dallagnol. In the message, Mr. Dallagnol informs Mr.
Moro that he has submitted a petition as a strategic move but that it is “not
essential.” Mr. Moro, Mr. Dallagnol says, should “feel free, needless to say,
to deny” the request. I admire the politeness of the prosecutor here, who
doesn’t want to seem too pushy and even offers the judge the choice of ruling
freely, this time.)
In addition to the legal collaboration of Mr. Moro, the texts also
reveal other offenses, such as the fact that the prosecutors discussed strategies to
prevent Mr. da Silva from giving interviews from jail before the elections,
since this could help the Worker’s Party candidate, Fernando Haddad.
All in all, the leaks reveal an immoral judge, who teamed up with
electorally-motivated prosecutors, in order to arrest and convict individuals
that they already considered guilty. Their only question was how best to do it.
The shocking content of these exchanges could give defense lawyers new
grounds on which to appeal convictions. Last year, Mr. da Silva’s lawyers
appealed to the Supreme Court and demanded a retrial, making the argument that
Mr. Moro had failed to be impartial; the leaked messages have now been added to
the petition, strengthening their case.
The Brazilian Bar Association has called for the
suspension of those involved in the scandal, saying, in a written statement,
that “The gravity of the facts cannot be disregarded, requiring a full,
unbiased and impartial investigation.”
But almost a month has passed since The Intercept’s first reports.
Effectively nothing has been done.
And incredible as it may seem, Sergio Moro is still our justice
minister.
*Vanessa Barbara is the editor of the literary website A
Hortaliça, the author of two novels and two nonfiction books in Portuguese, and
a contributing opinion writer.
A version of this article appears in print on July 8, 2019, Section A, Page 23 of the New York edition with the headline: When the Anti-Graft Crusaders Are Dirty.
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