Lawfare Unmasked in Brazil

Alexandre Fortes

The impacts of the Lava Jato (Car Wash) judicial inquiry—the largest corruption probe in Brazil’s history—have dominated Brazilian politics for over five years. In recent weeks, however, any remaining shred of supposed impartiality of the investigations has been undone, thanks to the publication of reports by the investigative news outlet The Intercept. Beyond the revelations’ immediate political and judicial consequences, the reports are of historical importance for a country in the midst of political crisis.

Lava Jato exposed a vast network of illegal funding for a wide range of political actors across the ideological spectrum, largely sustained through artificially overpriced contracts between the state-owned oil company Petrobras and the country’s biggest construction corporations. It contributed to the dubious impeachment of former President Dilma Rousseff and to the imprisonment of her predecessor Luiz Inácio Lula da Silva. It also led to a ban on Lula’s 2018 presidential bid, which rendered right-wing fascist Jair Bolsonaro’s ascendance to the presidency not only possible, but almost inevitable. As Brazil’s president, Bolsonaro poses the most dangerous threat to democracy since the country’s 21-year military dictatorship.

The Roots of a Long-Simmering Crisis

Prior to Rousseff’s 2016 impeachment, she and Lula, both members of the Workers’ Party (PT), oversaw three successful presidential terms, beginning with Lula’s first election in 2003. Under PT leadership, Brazil received international acknowledgement for its policy programs, which helped alleviate extreme poverty, reduce income disparities, and strengthen social policies. Their administrations tackled race and gender inequalities, protected the rights of LGBT citizens, improved environmental regulations, assumed a leading role in international affairs, weathered the 2008 financial crisis, and reduced unemployment, among other accomplishments.

In 2014, the PT’s image was damaged during critical moments in the presidential campaign, a consequence of both Car Wash and leaked information Federal Police agents and prosecutors provided to the Globo media corporation. Nevertheless, Rousseff won a tight run-off against senator Aécio Neves, who garnered 48 percent of the electorate and later became the subject of well-documented corruption charges. Like most of his party’s leaders, Neves was spared conviction by means of procrastination procedures that the courts denied to Workers’ Party officials facing similar charges. Thus, despite the PSDB’s center-left origins, the party’s 2014 run-off campaign already resembled a feverish moralistic crusade against “communism and corruption,” one that resented the PT’s progressive policies for granting Brazil’s poor and non-white majorities access to social spheres that had historically excluded them, such as shopping malls, airports, and universities. It was hard to defeat the incumbent president, however, whom the still highly-popular Lula supported. And despite significant criticism of her economic policies, Rousseff nevertheless benefited from largely positive social and economic indicators, including an unemployment rate of less than five percent.

But behind the seeming continuity in the two-decade standoff between PT and PSDB, a systemic crisis was looming. In June 2013, large street demonstrations shook Brazil. Demonstrators decried the discrepancy between the poor quality of public services and heavy spending on the 2014 World Cup and the 2016 Olympics, among other grievances. They also denounced the alliances between the Workers’ Party and conservative political forces, which collaborated in order to secure a working majority in the National Congress. The election of an evangelical representative as head of the House Committee on Human Rights also sparked outrage.

However, as the demonstrations began to catalyze a widespread and ill-defined discontent, the students who initially led the demonstrations lost their footing to emerging neoconservative groups and corporate media. These new mouthpieces unleashed a successful operation aimed at disseminating an increasingly hegemonic narrative of nationalistic revolt against political corruption.

A few months later a team of mostly young federal prosecutors, led by Deltan Dallagnol and supported by the Federal Police, authorized raids that resulted in the preventive arrest of politicians, party treasurers, company managers, and CEOs. They also confiscated documents, computers, and cellphones that demonstrated evidence of bribes and illegal funding for political campaigns. Many Brazilians celebrated the prosecutors as heroes. In 2017, after Lava Jato achieved its ill-concealed goal of convicting Lula, an agribusiness association erected a 30-foot inflatable Superman in Brasilia that sported the face of Judge Sergio Moro, who ruled in the proceedings.

The popular appeal of the operation made it very difficult to criticize its methods. But despite real concern over corruption in Brazilian politics—something hardly limited or even concentrated within the PT—the process sparked concern over legal due process from the very start. Coercive driving, or taking an individual into custody when they do not voluntarily appear after receiving a summons, became standard practice for federal prosecutors and Federal Police agents. In the case of those Lava Jato proceedings, however, individuals only learned of their summons at the moment of their detainment. Coercive driving thus became a form of preventative attention applied before and formal charges were made. These preventive detentions, based on the alleged risk of destruction of evidence, were extended indefinitely, aiming to weaken the morale—and even the health conditions—of the accused, thereby inducing them to accept plea bargains. Prison cells and even lawyers’ offices were wiretapped. The operation’s numerous “stages” and selective leaks of apprehended evidence were used to influence press and media coverage, feeding public outcry. In a 2004 article, Judge Moro lauded similar methods when they were used in the Italian corruption investigation “Clean Hands:” pretrial detentions, plea deals, and influence over media coverage were essential to prosecute corruption, Moro claimed.

Among the political left, suspicions long abounded that the operation was politically biased and motivated, and they grew as the operation unfolded. In March 2016, facing the risk of preventive detention, Lula was about to be designated chief of staff in Rousseff’s government. If appointed, the Supreme Court would be the only body able to adjudicate charges against him. Shortly before his appointment, Moro leaked illegally wiretapped phone calls between Dilma and Lula, causing a political commotion that led the Supreme Court to suspend the nomination, despite the Court’s own criticism of Moro’s methods.

Six months later, Dallagnol and the Car Wash prosecutorial team announced Lula’s indictment at a press conference featuring a rudimentary PowerPoint presentation prepared to stress the former president’s connection to the crimes under investigation. When journalists asked what conclusive evidence of Lula’s purported crimes had been found, one of the prosecutors, Roberson Pozzobon, answered: “We don’t have proof, but we are convinced.”

The timeline of Lula’s case, including his conviction in July 2017, its confirmation by the court of appeals in January 2018, and his arrest in April 2018 was enacted against legal precedent to ensure that he would not be allowed to run for president. In fact, the historical precedent, informed by and upheld in hundreds of previous cases, allows a convicted individual to run for office if they intend to appeal the decision before the high courts. That tradition was also overthrown in Lula’s case.

The Rot of Anti-Corruption

The leaked messages show that Moro maintained regular communication with Dallagnol, in which the two openly expressed their common goal of convicting Lula. Car Wash critics have had reason to suspect the political motivations behind the operation for some time. The Intercept’s revelations now provide proof. The leaked messages show that Moro maintained regular communication with Dallagnol, in which the two openly expressed their common goal of convicting Lula. Moro suggested possible evidence that he believed could make the argument stronger. He coached Dallagnol on how to best navigate the media in order to rebuke statements from Lula’s lawyers, which Moro described as “their little show.” When the computer system used by the giant construction company Odebrecht to manage bribes was apprehended in one of the Car Wash raids, Moro instructed Dallagnol to restrict the investigations to 30 percent of the politicians and executives listed as receiving bribes, arguing that a broader indictment would be beyond the operation’s means. The cases they chose to pursue are, of course, telling.

When Car Wash uncovered evidence about the legality of contracts for lectures given by both former president Fernando Henrique Cardoso and Lula, Moro and his team declined to take action against the institution managing Cardoso’s contracts for speaking engagements. Although emails shared in one prosecutor’s Telegram groups provided evidence that Cardoso was delivering lectures abroad as a means of collecting political donations, his institute never came under investigation. In a WhatsApp message uncovered by The Intercept, Moro justified not acting because he didn’t want to risk “upsetting one of our strongest supporters,” clearly referring to Cardoso. This stood in sharp contrast to Moro’s approach to Lula’s firm, which he subjected to raids despite a lack of evidence of wrongdoing.

In March 2017, Moro told Dallagnol that Laura Tessler, one of the prosecutors, gave a subpar performance in Lula’s first court appearances and suggested she needed some training. On June 19, 2019, before a Senate Committee, Moro denied that his comments had produced any concrete consequences in the legal proceedings. But the new leaks released the next day tell a different story: minutes after receiving Moro’s criticism of Tessler, Dallagnol shared the judge’s messages with Carlos Fernando Santos Lima, another leading prosecutor. They both immediately initiated a plan to improve the training of two other prosecutors and changed the teams’ work schedule to prevent Tessler from taking part in Lula’s second appearance before the judge.

Four days before his infamous PowerPoint spectacle, Dallagnol himself expressed doubts about the soundness of his evidence against Lula in the case of the beachside flat—a shaky case that later led to Moro’s conviction of Lula. Moro’s claim rested on the accusation that Lula was contracting renovations to a beach house he planned to purchase as a way to conceal bribes by the OAS construction corporation in a corruption scheme. Ultimately, he never bought the apartment and the renovations never materialized. In fact, the most recent leaks demonstrate that team Lava Jato did not consider OAS’ CEO a reliable witnesses until his lawyers presented the third version of a proposed plea bargain in which he finally implicated Lula.

After Lula’s conviction and arrest, which barred him from running for president despite being the frontrunner, team Car Wash continued its efforts. Their Telegram group chats reveal attempts to stymie media requests to interview Lula before the election, because they feared that interviews could result in the election of Workers’ Party candidate Fernando Haddad, who faced Bolsonaro in the final round. At that time, Bolsonaro offered Moro a position as Minister of Justice in his administration, though he was still the acting judge in charge of Lava Jato’s legal procedures. In one of their group messages, some of the prosecutors classified Moro’s association with Bolsonaro as a “gross mistake,” and accused him of using the operation as a “ladder:”  As one message said: “He overthrows the left, his wife campaigns for Bolsonaro and now he accepts a cabinet position. We cannot watch this and pretend it is normal.”

The alliance between Bolsonaro, infamous for his open admiration of violence, and the most famous member of the country’s justice system, was puzzling to many national and international observers. In its May 30, 2019 issue, in an article entitled “Fighting Thugs with Thugs,” The Economist criticized Bolsonaro for his tolerance and close family connections to Rio’s militias. Two weeks later, the British magazine reported on The Intercept revelations, acknowledging that the Telegram messages “appear to throw doubt on the judge’s impartiality and the integrity of the prosecution,” and that Moro’s “position now looks untenable”. The magazine, however, still praises Car Wash for “holding the powerful to account and revealing the unbearable scale of corruption in Brazil.”

But is it a coincidence that someone who used his position as a judge to act as the secret boss of an operation aimed at producing a regime change would later join a president that despises democracy and human rights? The Economist is not alone in its failure to connect the dots between militias and “the fight against corruption;” in fact, this is common in national and international press coverage alike. This media coverage often portrays Moro in a much more favorable light than Bolsonaro, no matter Bolsonaro’s “excesses.” But is it a coincidence that someone who used his position as a judge to act as the secret boss of an operation aimed at producing a regime change would later join a president that despises democracy and human rights?

The Bolsonaro government reveals connections between militia-related politicians and Operation Car Wash; indeed, 19 Lava Jato members hold cabinet positions. In his second month as Minister of Justice, Moro expressed his support for an “anticrime package” which would enable a judge to suspend a policeman’s sentence for homicide if he acted out of “excusable fear, surprise or intense emotion.” This was a first sign that Moro would not act as a moderating force against the President’s authoritarian leanings, as some had hoped. Instead, Moro is more likely to use his prestige to support Bolsonaro’s policies aimed at exacerbating Brazil’s already obscene levels of police violence. And as The Intercept leaks have further tarnished Moro’s image, he has become all the more dependent on Bolsonaro, strengthening their symbiotic relationship.

Short and Long-Term Effects

The fight to defend Brazilian democracy faces formidable challenges, and The Intercept is providing an inestimable contribution in making public the malfeasance of Operation Car Wash. Though it is impossible to predict their full scope, we can predict that the revelations will certainly influence the Supreme Court ruling—expected this August—against Lula and his legal team’s appeal to the UN Human Rights Committee, in both cases questioning Moro’s impartiality. If proven, some of Moro’s alleged illegal acts, such as appointing prosecutorial witnesses, may nullify the entire case against Lula, and subject the former judge to criminal charges.

The Minister of Justice’s popularity—higher than any political leader since 2015—is already decreasing. It went down from 60 percent to 50 percent in a poll issued a week after the first reports by The Intercept came out. In response, the most important Brazilian right-wing groups—some of them partially critical of Bolsonaro’s government—held a nationwide demonstration on Sunday in Moro’s support. Meanwhile, however, an increasing number of public figures, newspapers, and weekly magazines that previously supported Car Wash are now calling for Moro’s resignation, and even for Lula’s release from prison.

The former judge’s designation as a minister aimed at weakening the resistance against Bolsonaro among more centrist voters. If, as seems probable, his image continues to be gradually worn out by new details about his illegal behavior as a judge, his support will probably be reduced to the president’s extreme-right basis. Moro’s ill-conceived presidential dreams will almost certainly be dashed, and even his to the Supreme Court will certainly face strong opposition in the Senate.

It is harder to speculate about the possible political effects for the Left. Anti-Workers’ Party sentiment, mostly in southern and southeastern Brazil, will probably remain strong for the foreseeable future. The revelations, however may become another factors playing against Bolsonaro-supported candidates in the 2020 municipal elections, opening some space for broad center-left alliances with non-PT candidates to win seats.

Regardless of the long-term impacts, the revelations have already fundamentally affected the dominant narrative underpinning a most tumultuous period in Brazilian history. Where once a Manichean version centered on the fight of virtuous law agents against the greatest corruption scheme ever to stand unchallenged, now the Car Wash’s raison d’être is open to debate. As one of the prosecutors worried in a leaked Telegram messages when Moro accepted a position in Bolsonaro’s administration: “People are already saying that this proves his partiality in judging the PT. And that discourse is going to stick.”


Alexandre Fortes holds a Ph.D. in History from Campinas State University. He is Associate Professor and current Provost for Research and Graduate Studies at the Rio de Janeiro Rural Federal University (UFRRJ). He served as a Mellon Visiting Professor at the Duke University Center for Latin American and Caribbean Studies (2011-2012).