The Brazilian legal community reacted in shock to the information revealed by The Intercept news portal. If confirmed, it could be evidence of one of the greatest examples of lawfare on the planet. The expression “lawfare” is used to point to a situation of “legal war” or the use of the law as a political weapon to defeat governments or replace political regimes. The documents obtained by journalist Glenn Greenwald and his team confirm the suspicion of experts who already considered Operation Car Wash – as the anti-corruption task force in Brazil called itself – an example of “political justice”, an expression used by the German jurist Kirchheimer to describe the use of judicial procedures for political ends.
It was already known that prosecutors and judges violated procedural laws and constitutional guarantees, such as the presumption of innocence, under the pretext of combating corruption at any price. But the revelations that have now come to the fore are much more serious. The prosecutors of Operation Car Wash, which has been hyped up by the hegemonic media, gained exceptional powers and competences over time to create a special task force, drawing to one judicial division, in the city of Curitiba, lawsuits that originally should have been judged and processed elsewhere.
In this way, cases with dubious connections were all submitted to the same judge. Thus, Sergio Moro established himself as a national anti-corruption hero by centralizing all processes and enjoying unprecedented popularity for the country’s judiciary. The style of this judge, subsequently appointed Minister of Justice by President Jair Bolsonaro, has always been exceptional, disregarding the discretion recommended by the law of magistracy. His extravagance in attending social events and awards, in addition to his ubiquitous public presence produced great media power. It also embarrassed other judicial bodies who were partly inebriated by public opinion.
This alignment between the judiciary in Curitiba, the mainstream media and public opinion created the conditions for criminal law to be applied in an increasingly arbitrary manner. Examples are the so-called “coercive conducts” transformed into media spectacles and the very long preventive arrests in order to obtain denunciations. Plea bargain is a recent innovation in Brazilian criminal procedural law, based on the US model. In the Operation Car Wash this instrument was freely used and abused by the prosecutors. Moreover, the hegemonic corporate media was given weekly insider information of inquiries and confidential proceedings, criminally leaked by public officials whose duty was to protect them. All this was used to fabricate a climate of public outrage.
The trials against Lula have always been the most violent and mediatic, and they are exceptional in every way: the urgency with which the process was dealt, Lula’s quick imprisonment, the denial of his political and civil rights and even in its disregard for the binding decision of the United Nations. Over a hundred democratic jurists harshly criticized the sentence that condemned Lula to prison for its lack of both evidence and just reasoning. The plotting that made his conviction possible is revealed by The Intercept Brazil. It reproduces conversations between the judge, Sérgio Moro, and the prosecutor, Deltan Dallagnol. The procedural timetable and rhythm, the use of evidence and witnesses, the relationship with the press and the other powers are all established in these conversations. The dialogues disclosed suggest that Judge Moro clandestinely directed the prosecution’s work, in breach of the Brazilian Constitution that demands impartiality from judges. The person who accuses cannot be the same person who sentences, and the judge/prosecutor Moro has acted at the same time on both sides of the case. This is a violation of the law. In one of the excerpts, while Judge Moro apologized to the Supreme Court for illegally releasing recordings of a conversation between then-President Dilma Rousseff and former President Lula, he was exchanging messages with the prosecutor, Deltan Dallagnol: “I do not regret the fact that secrecy was lifted. It was the best decision. But the reaction is bad”(sic). Elsewhere, Moro cites one of Dallagnol’s colleagues and recommends that she be given better training in witnessing. Moro also recommends that Dallagnol seeks specific evidence against Lula. And in another extract the judge even states that the prosecutors should speed up their “operations”. This set of information, a small part of what is expected be revealed soon, may be the confirmation of what has long been known: that in Brazil a complex and perverse plot has hijacked the autonomy and independence of the judiciary power.
This collusion has jeopardized Brazil’s political destiny since 2016 and perhaps much earlier, since there is evidence of a promiscuous relationship between the prosecutors and public and private agencies of the United States to construct agreements of assumption of responsibility by the Brazilian companies involved in corruption. These agreements generated resources that Car Wash members subsequently intended to manage themselves through a private foundation, though were prevented from doing so by the Brazilian Supreme Court.
In a scenario of economic crisis and political destabilization, the 2018 presidential elections were largely decided by Operation Car Wash. Once condemned and imprisoned by the plot of the prosecutors and judges in Curitiba, Lula could not run in the elections, despite being the most popular candidate.
Operation Car Wash opened up space for the election of Jair Bolsonaro, who later rewarded Sérgio Moro, the judge who convicted Lula, by naming him Minister of Justice. The Intercept revelations finally bring the truth to the fore. And they show Brazil and the world the risks that democracies run when people are fooled by fake news and the perverse use of law, while believing that all this is being done to fight corruption.
* Carol Proner and Juliana Neuenschwander
International Committee of the Brazilian Association of Jurists for Democracy (ABJD)