Brazil’s Lula Launches Comeback — as the Judge Who Locked Him Up Falls from Grace
BRICS, 22 Mar 2021
By ending Lula’s political ban and trying the ex-judge Sergio Moro for bias, the Supreme Court shook up Brazilian politics.
15 Mar 2021 – Even for a nation accustomed to its courts interfering in political and electoral disputes, Brazil saw a pair of moves by the judiciary the first week of March that could have stunningly consequential ramifications for the future of South America’s largest country. Successive moves by the nation’s Supreme Court reinstated ex-President Luiz Inácio Lula da Silva’s political rights and cut down the image of incorruptibility so carefully cultivated by the former judge who put Lula behind bars, Sergio Moro.
The moves from the court stand to upend the key political effects of a sweeping, yearslong anti-corruption probe called Operation Car Wash. The investigation, which examined corporate and political corruption, delivering a slew of indictments, rocked Brazilian politics. Though wide-ranging in its targets, Car Wash’s most notable outcome was barring Lula’s 2018 run for president at a time when he remained the most popular politician in the country, clearing the way for the ascension of far-right President Jair Bolsonaro. Bolsonaro’s rise was bolstered by anger at the perception of corruption among powerful Brazilian figures, and Car Wash, at the time, commanded high levels of public trust. Moro, who presided over the case against Lula, served as Bolsonaro’s justice minister for nearly a year and a half.
With Lula setting himself up to challenge Bolsonaro in 2022, though, the exposure of right-wing political bias at the heart of the probe itself — as an Intercept investigative series in both English and Portuguese began documenting in 2019 — could see the tables turn against the Brazilian right.
Successive moves by the nation’s Supreme Court reinstated Lula’s political rights and cut down the image of incorruptibility so carefully cultivated by the then-judge who put Lula behind bars, Sergio Moro.
The past week was a whirlwind of activity, but questions about Operation Car Wash — and Moro’s role in adjudicating it — have been bouncing around for years. As the probe widened and widened further still, ensnaring top corporate figures and prominent politicians, the effort faced increasing scrutiny. The most intense attention fell on the headquarters of the probe, in the conservative southern city of Curitiba, where Moro presided, and where Lula was convicted.
First Lula’s case went to the appeals courts, which upheld the decisions, and, eventually, to Brazil’s high court. (Other Car Wash matters had come before the court; even Lula had tried to argue procedural matters before the Supreme Court early on his case, but failed to sway the panel at the time.) The trial to decide whether Moro was biased when judging Lula began in 2018 but had been put on hold until last week, on March 8, when it resumed earlier than expected; the case could be closed as early as next week, though there is no set deadline. This time, Moro was in the hot seat, and the two Supreme Court judges who voted last week said that he had acted with political animus when sentencing Lula.
Now the court is mired in a draw. Two other judges had already voted that Moro acted correctly when sentencing Lula. These two votes were cast in 2018, before The Intercept began publishing its investigative stories on the Car Wash probe; one of these two judges, Minister Cármen Lúcia, has signaled that she might change her vote. Barring that, the case has been put on hold by the one remaining judge on the panel, Minister Nunes Marques, who has asked for more time to review the case.
In a separate, surprise ruling by a Supreme Court minister, the corruption charges that saw Lula imprisoned and stripped of his right to run for office will have to be retried. The ruling, which was handed down by a minister who had been seen as aligned with Car Wash, will require a new judge oversee the retrial, which is to take place in the nation’s capital, Brasília, rather than in Curitiba.
It’s possible that Lula will be convicted a second time, which would weaken his claim of innocence of all charges brought against him by the Federal Public Ministry, Brazil’s prosecuting body. There’s also a chance that some of the charges lapse, based on complex Brazilian statutes of limitations, before the retrial.
Car Wash Collapses
These two parallel developments in the Supreme Court are the latest in a series of blows that the Car Wash investigation has suffered in the last two years. The narrative around Car Wash began to unravel in June 2019 with the launch of The Intercept’s investigative series. The Intercept Brasil published more than 100 articles showing, among other things, that Moro inappropriately coordinated with prosecutors and brought in evidence from external sources that did not pass through proper legal channels.
In addition, The Intercept Brasil revealed that wiretapping on Lula’s phones was kept from the public; that there was a plot to leak information to the Venezuelan opposition with the intent of overthrowing President Nicolás Maduro; and that chief prosecutor Deltan Dallagnol gave paid lectures to the very same banks he would later be tasked with investigating.
Car Wash, which began as a probe of corruption at the state oil company, Petrobras, had weighty collateral effects on the country. Its allegations unveiled immense collusion between large national contractors and Petrobras across a span of decades. The probe, though, became much more. Before prosecutors’ and Moro’s political motivations, selective moralism, and procedural misconduct were exposed, the Car Wash investigations targeting figures like Lula fostered a revulsion for politicians among Brazilians. This disdain paved a path for Bolsonaro to become president of the republic.
Car Wash was instrumental in Bolsonaro’s election, both by stoking resentment of the political classes in general and, specifically, taking Lula out of the 2018 race, when his high popularity ratings suggested that he could have won.
Now, however, the tables could be turning: Lula is back, and even the Supreme Court is verging on a near-complete recognition that his antagonists in the Car Wash probe held political motivations of exactly the sort they had imputed on their targets.
Moro and Lula’s Linked Fates
There was long-standing suspicion surrounding Moro’s handling of Lula’s trial. Moro had accelerated court dates to ensure that Lula was sentenced by Moro himself and, later, so that an appellate court ruling could come in just in time for the former president to be barred from running in the 2018 elections. A Brazilian law known as “Lei da Ficha Limpa,” or “Clean Sheet Act,” prevents politicians who have been sentenced by an appeals court in certain types of cases from running for office.
Lula was tried in record time not only by Moro, but by three other judges from the appeals court in Porto Alegre, who concurred with Moro on a 12-year prison sentence. The speed foreclosed the introduction of new arguments that Lula’s defense team hoped to raise. The rulings rendered Lula ineligible for the presidency — and, in April 2018, he was arrested on Moro’s orders.
Thanks to Moro’s work, Bolsonaro, a far-right ex-military officer, was able to avoid his stiffest competition: Lula. One of Moro’s last acts in his judgeship was yet another gift to Bolsonaro: Six days before the first round of elections, Moro publicly released the plea-bargain testimony from one of Lula’s former allies, Antonio Palocci. A chief campaign fundraiser and minister in Lula’s first-term government, Palocci later tried to become a witness for the Car Wash investigation and testified against Lula. Though Palocci’s statements were not damning enough to earn witness protections — a decision that Moro, it was later revealed, agreed with — the release of the testimony nonetheless served to further erode the public’s faith in Lula’s Workers’ Party less than a week before the election. Bolsonaro sailed to victory in the second round of voting.
Thanks to Moro’s work, Bolsonaro was able to avoid his stiffest competition: Lula.
Exactly one month after releasing Palocci’s testimony, and nine months after signing Lula’s arrest warrant, Moro resigned his judgeship and accepted the invitation to serve as Bolsonaro’s justice minister. The role, as Moro took office, would accrue new powers, leading the press to call the ex-judge one of Bolsonaro’s superministers.
Meanwhile, things were looking dire for Lula: He was in prison, and his rivals in the justice system now sat at the highest levels of government. Even a vigorous defense seemed unlikely to succeed. That started to change, however, in the summer of 2019, as The Intercept began its investigative series on the prosecutors and judges who had coordinated to put Lula behind bars.
The reports were based on leaked conversations on a mobile messaging app that prosecutors and Moro used to communicate with each other, assuming that they were away from any public scrutiny. The message transcripts quickly caused a political earthquake in Brazil. One pattern would hold: Lula and Moro’s fortunes remained intimately linked and diametrically opposed. The leaks, though, stood as a paradigm shift. From the moment the articles began coming out, Lula was ascendant, and Moro’s decline began.
“Vaza Jato” at the High Court
Known as “Vaza Jato” — a play on the investigation’s Portuguese name, meaning, roughly, “Car Wash Leaks” — the messages played a key role in last week’s Supreme Court deliberations.
On March 9, at the trial to determine if Moro acted in a biased fashion, Supreme Court judges read aloud the messages published by The Intercept as a means of justifying their votes.
“Without a doubt, from the content of the conversations divulged, we can highlight manifestly illegal situations.”
“In a democratic and accusatory penal case, the role of prosecution must not be mixed with that of judgment,” said Minister Gilmar Mendes, the first judge to vote. Mendes is perhaps the most articulate, media-savvy, and influential minister of the Supreme Court. The chats published by The Intercept had documented prohibited collaboration between the prosecutors and Moro, which Mendes said revealed lawbreaking: “Without a doubt, from the content of the conversations divulged, we can highlight manifestly illegal situations.”
Though Mendes was once a supporter of the Car Wash investigations, he had over time become a fierce critic. As he explained his vote last week, in a more than hourlong speech to the court, Mendes compared the prosecutors’ methods to those of the KGB in their covert phone taps of Lula’s lawyers, which were monitored in real time by police and prosecutors.
After Mendes came Minister Ricardo Lewandowski, a highly respected judge and the earliest critic of Car Wash on the panel. Lewandowski said the messages in which Moro and prosecutors engaged in prohibited collaborations was “astonishing” and indignantly repeated three times that Moro had committed an “abuse of power.”
On March 8, just a day before the judges publicly deliberated Moro’s bias, Supreme Court Minister Edson Fachin made a move that many critics thought was a last-ditch effort to spare Moro the embarrassment of having the court rule against him. Fachin, a longtime supporter of the Car Wash cases, made a surprise decision that threw out all the Car Wash convictions against Lula. The justification was that Moro’s mandate at the court in Curitiba was to judge crimes related to Petrobras, so Lula’s case fell outside his purview.
With Moro’s convictions of Lula vacated, Fachin wrote in his ruling, there was no more need to investigate the former judge’s bias in the cases. Fachin’s colleagues, though, did not bite. The trial had already gotten underway in 2018, and two votes — one of which belonged to Fachin — had already been cast in the ex-judge’s favor. The remaining judges decided to continue their deliberations.
Car Wash’s Fall and Lula’s Rise
The dual Supreme Court developments were major defeats for partisans of the Car Wash probe, which is no longer formally underway. In February, Brazil’s Attorney General Augusto Aras, a Bolsonaro ally, decided to close the Car Wash task force working in Curitiba and Rio de Janeiro. Ongoing investigations were passed along to a group that fights organized crime.
Aras’s decision was yet another move in the complex chess game that is the intertwined worlds of Brazilian jurisprudence and politics. Though Bolsonaro rode Car Wash to victory, the investigation and its fallout have become an irritating thorn in his side.
In one important case, Flávio Bolsonaro, a senator for the state of Rio de Janeiro and the president’s eldest son, was recently prosecuted on charges of embezzling employee salaries. Though Flávio Bolsonaro’s case was not related to Car Wash, undermining Car Wash investigation was a way to weaken and raise suspicions about prosecutorial forces in Brazil — including the officials that were targeting Flávio.
Moreover, larger political considerations are at work: Bolsonaro is also seeking to woo a bloc of centrist and right-wing politicians known as Centrão (Wide Center, in English), in hopes that they will shore up his political position. Centrão, with its reputation for pursuing big-money interests, naturally has in its circle people who have been targeted by the Car Wash probe, allowing Bolsonaro to curry favor with the bloc by curtailing investigations.
One person Bolsonaro can no longer — for now — look to for political support is Moro. Famous for his political ambitions, Moro made a show of resigning from Bolsonaro’s government when the president was purportedly restraining police from investigating his son’s crimes.
Despite the rift and the looming cloud of the likely Supreme Court censure, Moro is still seen as a strong candidate for the presidency in 2022 — but it’s not clear whether this is an ambition he harbors. After leaving his post, Moro dedicated himself to writing seldom-viewed articles on a right-wing website and became director of a law firm that works to recoup funds from the biggest company involved in the Car Wash scandal. If Moro — whose lack of charisma and unfamiliarity with compromise — decides to run, he would face serious obstacles not only in Bolsonaro but also, most likely, in Lula.
Bolsonaro’s utter failure to deal with a rampaging coronavirus pandemic in Brazil left an opening for Lula.
Lula, on the other hand, is gaining momentum. Despite his lack of popularity among right-wing voters, the former president is still in the best position to challenge Bolsonaro in 2022, according to the latest polls. Lula’s and Bolsonaro’s disapproval rates run neck and neck. And Bolsonaro’s homicidal policies in dealing with the rampaging coronavirus pandemic in Brazil — refusing masks, doubting vaccine efficacy, and deferring blame for his chaotic management — left an opening for Lula.
The botched coronavirus response also plays to another of Lula’s strengths. While in office, Lula oversaw a booming economy, bringing countless Brazilians out of poverty. But Bolsonaro’s slow pandemic response has led to a flight of cash as investors see how far the country has to go before public health is restored. Without investors’ cash, the Brazilian real is falling against the dollar, leading to inflation and rising prices for products such as gas and food.
Lula, meanwhile, gave something of a comeback speech to the country last week, calling a news conference two days after his political rights were restored. Most major media outlets picked up the broadcast, and Lula said he was willing to build bridges with business and various other political factions — the same strategy that carried him to victory in 2002. Though he spoke without a mask on, he made a case for vaccines and increased caution with respect to the new coronavirus strains. The speech marked such a decisive break from Bolsonaro’s messaging that it incited former Speaker of the House Rodrigo Maia — a right-wing figure from one of the parties that served as the main opposition to Lula’s presidency — to praise him on social media.
Lula hasn’t formally announced his candidacy, but his fortunes are clearly ascendant. With the obstacle of the Car Wash probe rapidly fading, all Lula has to do now is convince Brazilians that he can bring back the fast-growing economy of his days in the presidency. If he is successful, Bolsonaro’s defeat could suddenly become a real possibility for Brazil next year.
Translated by Elias Bresnick
Tags: BRICS, Bolsonaro, Brasil, Brazil, Dilma Rousseff, Justice, Latin America Caribbean, Lula da Silva, Restorative Justice, Sergio Moro
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