{"id":156353,"date":"2020-03-16T12:00:43","date_gmt":"2020-03-16T12:00:43","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=156353"},"modified":"2020-03-14T03:16:01","modified_gmt":"2020-03-14T03:16:01","slug":"keep-it-confidential-the-secret-history-of-u-s-involvement-in-brazils-scandal-wracked-operation-car-wash","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2020\/03\/keep-it-confidential-the-secret-history-of-u-s-involvement-in-brazils-scandal-wracked-operation-car-wash\/","title":{"rendered":"\u201cKeep It Confidential:\u201d The Secret History of U.S. Involvement in Brazil\u2019s Scandal-Wracked Operation Car Wash"},"content":{"rendered":"
\n
\n
\n
\n
\n
\n
\n
\n

Leia em portugu\u00eas<\/strong><\/span><\/span> <\/a><\/p><\/blockquote>\n

Secret Brazil Archive:\u00a0\u00a0\u00a0<\/em><\/a>See all (13)<\/a><\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

\n
\n
\n
\n

Secret Brazil Archive <\/span><\/span><\/a>Part 13 <\/span><\/h2>\n
\n
\n

Leaked chat logs show that Brazilian prosecutors evaded treaties to help the U.S. Justice Department investigate Brazilian corporations.<\/em><\/p>\n<\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

\n
\n
\n
\n
\n
\n
<\/div>\n<\/div>\n
\n
\n
Photo illustration: Rodrigo Bento for The Intercept, AP<\/span><\/span><\/strong><\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
\n
\n

12 Mar 2020 – <\/em>Leaked conversations between Brazilian officials reveal the inner workings of a secretive collaboration with the U.S. Department of Justice on a sprawling anti-corruption effort known as Operation Car Wash. The chats, analyzed in partnership with the Brazilian investigative news outlet Ag\u00eancia P\u00fablica, show that the Brazilians were extremely accommodating to their U.S. partners, going out of their way to facilitate their involvement in ways that may have violated international legal treaties and Brazilian law.<\/p>\n

Operation Car Wash, or Lava Jato in Portuguese, rocked Brazil\u2019s political and business establishment, leading to the imprisonment of former president Luis In\u00e1cio Lula da Silva \u2014 a move that barred him from reelection and paved the way for a win for far-right Jair Bolsonaro. It also led to massive fines and economic and reputational harm for some of Brazil\u2019s most important companies. Yet the investigation itself has been mired in controversy, especially after reporting by The Intercept and partners revealed<\/a> clear misconduct and political bias<\/a> by the judge and prosecutors who handled the case against Lula.<\/p>\n<\/div>\n

\n

The nature of the U.S. government\u2019s role in the operation has also generated much public speculation and suspicion among many Car Wash critics. The chats published today show that prosecutors on the Car Wash team intentionally ignored procedures outlined in Brazilian law and a bilateral treaty agreement<\/a> with the U.S., apparently to keep the executive branch of the Brazilian government \u2014 then led by Lula\u2019s successor and ally, Dilma Rousseff \u2014 in the dark about their activities. They also appear to have misrepresented their potentially illegal actions to superiors and the Justice Ministry of Brazil. They secretly hosted a delegation of U.S. officials, and coached and facilitated U.S. efforts to secure cooperating witnesses in corruption investigations<\/a> into state-controlled oil giant Petrobras. With the approval of Car Wash prosecutors, the U.S. negotiated deals with some witnesses without following treaty procedures, which would have given Brazil greater control over the process.<\/p>\n

By circumventing the treaty and other relevant law, the Brazilian prosecutors also opened themselves up to criticism that the U.S. had undue influence over politically sensitive investigations \u2014 where U.S. interests may not always have lined up with Brazil\u2019s.<\/p>\n

Last summer, members of the U.S. Congress demanded answers<\/a> from Attorney General William Barr about the scope of the relationship and whether the Justice Department was aware of wrongdoing by their Brazilian counterparts, but they have yet to receive a response. Rep. Ilhan Omar, a Minnesota Democrat who signed the letter to Barr, said it is \u201cdeeply concerning\u201d that the Justice Department has not responded. \u201cThe United States has a dark history of intervention in domestic Latin American politics,\u201d she wrote in a statement to The Intercept. \u201cEspecially given the cozy relationship between the current Brazilian Administration and the Trump Administration, we in Congress need to be sure that our own Department of Justice was not party to this corruption.\u201d The Justice Department declined to comment for this story.<\/p>\n

The bilateral relationship, touted by U.S. Justice Department officials as exemplary<\/a>, resulted in multiple plea deals in U.S. courts in which companies paid over $8 billion in fines to settle corruption charges. A large portion of that money was funneled back to Brazil. Car Wash chief prosecutor Deltan Dallagnol had his eye on this cash from early on, and early last year, he announced a vague and unprecedented plan<\/a> to use a portion of the windfall to create an independent fund to \u201cfight corruption,\u201d rather than return the money to the Brazilian government. The proposal was widely criticized as a power grab and eventually deemed unconstitutional<\/a> by the Supreme Court last year. The leaked chats suggest that cash was a central consideration in the Car Wash team\u2019s relationship with the Justice Department, and a reason to keep the U.S. partners happy.<\/p>\n

The information on the collaboration comes from a massive archive of documents and Telegram chat logs provided exclusively to The Intercept Brasil by an anonymous source. The archive does not include direct conversations with U.S. officials, but some of their dialogues, emails, and working documents were shared in chats between Brazilian prosecutors.<\/p>\n

In response to questions from The Intercept and Ag\u00eancia P\u00fablica, a Car Wash spokesperson defended the practice of informal international cooperation and argued that the source materials for this article\u00a0were \u201cobtained in a criminal manner\u201d and \u201chave been decontextualized or altered over the past few months to produce false accusations, which do not correspond to reality.\u201d<\/p>\n

The Intercept and partner news outlets have published over 90 articles from the leaked materials, revealing<\/a>, among other things, extensive evidence<\/a> of unethical<\/a> and likely illegal<\/a> actions by the Car Wash prosecutors<\/a> and Justice Minister Sergio Moro, who was previously the presiding judge in the case against Lula. Last September, opposition leaders in Brazil\u2019s lower house of Congress attained enough votes to open a formal congressional inquiry<\/a> into the facts revealed in the reporting. Six months later, this has yet to happen.<\/p>\n

\u201cThey Asked Us to Keep It Confidential\u201d<\/h3>\n

Operation Car Wash prosecutors\u2019 relationship with their American counterparts began in March 2014, during the early days of the investigation, and culminated in a series of plea deals in 2018. The task force\u2019s strategy for dealing with the Americans is well-illustrated in their conversations about an early set of meetings presided over by Dallagnol, the chief prosecutor. In February 2015, Dallagnol and two colleagues flew to Washington, D.C., for informal meetings with officials from the U.S. Department of Justice, Securities and Exchange Commission, Internal Revenue Service, Federal Bureau of Investigation, and Department of Homeland Security. At the Justice Department\u2019s request, Dallagnol\u2019s team tried to keep the trip out of the press, but when the U.S. delegation came to Brazil, he went one step further: He tried to keep the Brazilian Justice Ministry out of the loop as well.<\/p>\n

In Brazil, the roles that the Justice Department performs in the U.S. are split between two entities: the Federal Public Prosecutor\u2019s Office and the Justice Ministry. Car Wash\u00a0task force is part of\u00a0the former, which is led by the prosecutor general and is responsible for prosecuting crimes. The Justice Ministry, which has oversight of federal law enforcement agencies \u2014\u00a0like the Federal Police, equivalent to the FBI \u2014 is responsible for many investigative and enforcement functions and helps guide the government\u2019s policy agenda in the area.<\/p>\n

A bilateral Mutual Legal Assistance Treaty, or MLAT, sets the rules for how two countries can cooperate for international law enforcement purposes, such as requesting evidence like foreign bank records or police reports, facilitating search warrants, interviewing foreign suspects, and processing extradition requests. Under the MLAT and other relevant treaties, the Justice Ministry\u2019s Department of Asset Recovery and International Legal Cooperation, or DRCI (its Portuguese acronym), should be the DOJ\u2019s point of contact in Brazil, not representatives of the Public Prosecutor\u2019s Office.<\/p>\n

But on October 5, 2015, unbeknownst to the Justice Ministry, at least 17 officials from the Justice Department, the FBI, and possibly Immigration and Customs Enforcement landed in Curitiba, the capital of the southern state of Paran\u00e1, for a four-day conference at the Operation Car Wash headquarters. Dallagnol instructed his press aide to keep the meetings under wraps, as the \u201cAmericans don\u2019t want us to divulge things,\u201d he advised. It is not unusual for agents to want to keep an ongoing investigation shielded from public view, but in this case, some details had already leaked to the Brazilian press.<\/p>\n<\/div>\n

\n
\n

\"Brazil's<\/p>\n

Secretary of International Cooperation Vladimir Aras, left, speaks with Brazil\u2019s Attorney General Rodrigo Janot during a meeting with 10 Latin American countries at the Attorney General\u2019s Office in Brasilia on Feb. 16, 2017.<\/strong>
\nPhoto: Evaristo Sa\/AFP via Getty Images<\/strong><\/p>\n<\/div>\n<\/div>\n

\n

The Justice Ministry apparently did not know about the visit until late the following day, after reading about it in the press and hearing from the foreign minister, who learned of it in a phone call from the U.S. ambassador. At 11:16 p.m. Vladimir Aras, the public prosecutor\u2019s point person for international cooperation, sent a Telegram message to a group chat with members of the Car Wash task force in Curitiba advising them that the Justice Ministry said it \u201cdid not have any knowledge\u201d of the visit and wanted details. Dallagnol\u2019s response at 12:13 a.m. was evasive and curt. He claimed that the Americans had come to have \u201cconversations\u201d on the Car Wash case and \u201cnot to practice investigative acts,\u201d which, he argued, put the visit outside of the scope of an MLAT.Rather than respond with the names and titles of his American guests and how long they planned to stay, Dallagnol counseled Aras to stonewall. \u201cI suggest that you suggest that they consult the DOJ, because they asked us to keep it confidential. If you understand that you should open up, I can send you the list, but I suggest you think on it, because this could create noise with the Americans.\u201d He later added in a private chat that opponents within the Justice Ministry could \u201calso use this info against us.\u201d<\/p>\n

In response to the Justice Ministry\u2019s final question, asking for \u201cother information that you understand to be relevant,\u201d Dallagnol cracked wise: \u201cThe contacts are being made in accordance with national and international rules. I suggest that you suggest that the DRCI stop being jealous of the SCI\u2019s relationship with other countries lol,\u201d he said, referring to Aras\u2019s department within the Public Prosecutor\u2019s Office.<\/p>\n

Aras thanked Dallagnol for his response, but took a more diplomatic tact in the draft response he sent back 20 hours later. He ensured his colleagues that the purpose of the meeting was merely to \u201cfacilitate the formalization of future requests for cooperation,\u201d which would go through the DRCI, and that the \u201cAmerican authorities did not come to carry out investigations in Brazil, which would be irregular.\u201d He also reminded them that the Car Wash prosecutors had already made a similar trip to Washington earlier that year and claimed that his team had sent an email the month before to notify the DRCI of the meetings.<\/p>\n

Meanwhile, the visit with the Americans continued.<\/p>\n

Political Implications<\/h3>\n

Keeping the DRCI out of the loop was a conscious choice. The Car Wash team was eager for its sprawling investigation to move quickly, and gaining approval through formal channels, like MLATs, can sometimes bog a case down for months or years. For that reason, prosecutors from many countries argue that informal contact, within limits, is a necessity. It\u2019s also clear in the chats that the Car Wash team was wary of potential political interference from the Brazilian government to protect allies who were under investigation \u2014 an understandable instinct, but one which legally cannot override the rules governing international cooperation.<\/p>\n

Months earlier, Dallagnol had expressed his distrust of the DRCI and Rousseff\u2019s government. In a group chat that included Aras, he said, \u201cI don\u2019t like the idea of the executive looking at our requests and knowing what\u2019s up.\u201d Rousseff and her justice minister are longtime members of Lula\u2019s Workers\u2019 Party, and, as president, Rousseff was under strong pressure to clip the prosecutors\u2019 wings from politicians who feared being swept up in the probe. But she repeatedly refused to do so, which eventually provoked<\/a> her 2016 impeachment.<\/span><\/p>\n

Aras also appeared to believe that the country\u2019s political leadership was fearful of U.S. involvement with Car Wash.<\/p>\n<\/div>\n

\n
\n
\n
October 7, 2015 \u2013 Group Chat FTS MPF<\/strong><\/h6>\n

\"\"<\/p>\n<\/div>\n<\/div>\n

\n
Vladimir Aras \u2013 09:16:08 \u2013 <\/strong>The Executive is \u201cindignant\u201d (that\u2019s what they told me) with the presence of an American delegation in Curitiba. I think the nervousness is because of the FCPA. There are people afraid of falling on the American\u2019s radar. I already foresee international end of year trips being canceled.\"\"<\/h6>\n<\/div>\n
\n
\"\"<\/a><\/div>\n<\/div>\n
<\/div>\n<\/section>\n
\n

FCPA refers to the Foreign Corrupt Practices Act, the legislation through which the U.S. claims jurisdiction to prosecute the bribery of foreign officials, even if the acts occurred outside of the U.S., as long as the transactions \u2014\u00a0or the corporations or individuals who made them \u2014 use the U.S. financial system. Petrobras is listed on the New York Stock Exchange, and many of the financial transactions under investigation at the time involved U.S. financial institutions or U.S. dollars.<\/p>\n

Dallagnol may have wanted to avoid political interference in his investigation, but \u2014 speaking generally and not about this specific situation \u2014 Eduardo Pitrez, international law professor at the Federal University of Rio Grande, says there are good reasons why the Justice Ministry is in charge of matters of international law enforcement cooperation. Under the Brazilian Constitution, the executive branch and Supreme Court are given authority over these processes \u201cbecause they involve very sensitive elements, such as national sovereignty, international interests and disputes, and bilateral relations,\u201d Pitrez said. Excluding the elected government and courts from the process creates \u201cfragmentation,\u201d he added. Without a central authority, \u201cany judge or prosecutor\u201d could independently establish relationships that directly affect \u201cthe government\u2019s agenda on important national concerns, such as an oil company or the competitive capabilities of large national companies.\u201d<\/p>\n

In an email to The Intercept, the Car Wash spokesperson wrote that \u201cthe federal government\u2019s department for international cooperation was called in whenever necessary.\u201d However, he added, \u201cthere is no duty or obligation to share the entire investigation.\u201d<\/p>\n

From the U.S. side, even when it comes to informal meetings, the Justice Department requires agents traveling overseas to get permission both from the department\u2019s Office of International Affairs as well as from the foreign government, according to Robert Appleton, a former senior U.S. attorney whose portfolio focused on international investigations. In this case, the Brazilian approval came from the Car Wash prosecutors.<\/p>\n

\u201cFor a U.S. prosecutor to do anything abroad, they\u2019re out of their country, so they don\u2019t have any power,\u201d said Appleton. \u201cPolicy-wise, they\u2019re not supposed to run around any country\u201d and conduct investigations \u201cwithout the host country\u2019s approval,\u201d he added. \u201cSo if someone is doing that, they\u2019re violating the Department of Justice protocols.\u201d<\/p>\n

Still, he cautioned, U.S. agents would not typically question whether the people they\u2019re meeting with have gone through the proper channels \u2014 in this case, the DRCI.<\/p>\n

A U.S. agent could \u201chave a relationship with an agent or prosecutor in a foreign country, and you get your approvals and then go \u2014 you don\u2019t know what that person is doing on their end,\u201d Appleton said. \u201cYou presume that they\u2019ve gotten their approvals to meet with you, but it\u2019s not like you ask them, \u2018Well, show me your approval that you can meet with me.\u2019 That\u2019s usually not something you ask. You take it for granted.\u201d<\/p>\n<\/div>\n

\n
<\/div>\n
\n
\n

Related:<\/em> At Sergio Moro\u2019s Suggestion, Brazil\u2019s Anti-Corruption Prosecutors Plotted to Leak Secret Evidence Aimed at Helping Venezuela\u2019s Opposition<\/em><\/a><\/strong><\/p>\n<\/blockquote>\n<\/div>\n<\/div>\n

\n

These issues were particularly sticky with Operation Car Wash, as the investigations involved a former president from the governing party and likely frontrunner in the upcoming 2018 elections. In his eight years in office, Lula had defiantly worked to build regional alliances and weaken U.S. influence in the hemisphere. Also under investigation were Petrobras, the crown jewel of Brazil\u2019s network of state-controlled businesses, and Odebrecht, Brazil\u2019s largest construction firm which, under Lula, ramped up operations across South America and beyond. Both companies were seen as key tools in Brazil\u2019s foreign policy aims \u2014 and as a threat to the U.S. corporations that they supplanted. In 2013, the Rousseff government famously canceled a state visit<\/a> with then-President Barack Obama, after documents leaked by Edward Snowden showed that the National Security Agency had been spying on Petrobras and the Brazilian Ministry of Mines and Energy. The U.S. government, in other words, might have an interest in bringing down certain Brazilian corporations that went beyond pure motives to stamp out corruption.<\/p>\n

\u201cA lot of people think that the U.S. came to investigate these companies in the attempt to find something that would give it a chance to interfere in these processes, by which these companies were evolving and gaining markets,\u201d said Fabio de S\u00e1 e Silva, a professor of Brazilian studies at the University of Oklahoma.<\/p>\n<\/div>\n

\n
\n

\"Brazil's<\/p>\n

Deltan Dallagnol, speaks during a press conference about the Lava Jato operation on the Petrobras corruption scandal, in Curitiba on March 16, 2015.<\/strong>
\nPhoto: Heuler Andrey\/AFP via Getty Images<\/strong><\/p>\n<\/div>\n<\/div>\n

\n

If U.S. involvement with the Car Wash task force went through the proper channels, Rousseff\u2019s Justice Ministry would have had the opportunity to deny the cooperation. If such a denial were meant to protect political allies from prosecution, it would be an entirely improper interference in the justice system. However, cooperation could provide the U.S. with free ammunition to take aim at two of Brazil\u2019s largest employers, in the middle of a major economic recession. This situation presented issues of national security and sovereignty, both of which are legitimate grounds under which MLAT collaboration can be denied.Car Wash prosecutors were well aware that any collaboration with the U.S. would inevitably generate suspicions, and were careful to control how the relationship was covered in the media. Nonetheless, the press reported multiple details about the relationship that politicians and others argued were clear examples of improper U.S. influence on the investigations.<\/p>\n

A congressman from the Workers\u2019 Party submitted a report<\/a> to the EU Parliament last year denouncing U.S. cooperation with Brazil as\u00a0illegal because it did not flow through the Justice Ministry. \u201cOur prosecutors and judges established, in clear defiance of the Constitution, a specific and independent foreign policy towards the U.S.,\u201d the document read.<\/p>\n

Eventually, the two countries signed multiple agreements under the MLAT related to Car Wash, but only after the U.S. investigation was well underway and perhaps irreversible. As Dallagnol put it to Aras, the help he and his team provided in secret had set in motion a scenario that \u201cmeets the Americans\u2019 needs and they will no longer depend on us. From there on, we will lose strength to negotiate sharing the money they recover. Hence our rush.\u201d<\/p>\n

\u201cThis Investigation by the Americans Really Worries Me\u201d<\/h3>\n

Dallagnol and Aras stayed in contact throughout the visit as they attempted to contain the backlash from Bras\u00edlia, Brazil\u2019s capital. On the evening that the U.S. delegation ended, Aras, who was on vacation in Germany, expressed his concerns in a private chat with Dallagnol, who he called \u201cDelta\u201d:<\/p>\n<\/div>\n

\n
\n
\n
October 9, 2015 \u2013 Private chat<\/strong><\/h6>\n

\"\"<\/p>\n<\/div>\n<\/div>\n

\n
Vladimir Aras \u2013 20:56:12 \u2013 <\/strong>Delta, Delta, as we already talked about, this investigation by the Americans really worries me. I was put at ease when you guaranteed that this group of Americans did not do investigations in Curitiba when they were there. You know they have few limitations for using evidence there. Even if they obtain them abroad less formally, they can use them validly in some cases. Hence my initial fear, since the [Public Prosecutor] and [Secretariat for International Cooperation] cannot allow this [\u2026] As I said on Monday, the [Ministry of Foreign Affairs] even mentioned the possibility of \u201cunsettling bilateral relations.\u201d Of course, we must comply with passive requests whenever possible, but without falling into traps. As I told you on the phone today, the government remains \u201cnervous\u201d about this story. The temperature in [Bras\u00edlia] rose because of their numerous presence in Curitiba.<\/h6>\n<\/div>\n
\n
\"\"<\/a><\/div>\n<\/div>\n<\/section>\n
\n

Aras said his worries were assuaged by the assurance that the delegation did not practice \u201cinvestigative acts\u201d; however, the agenda for the four-day meeting suggests that Dallagnol may have deceived his colleague on that crucial point.<\/a>According to the document, the first two days focused on presentations by the Brazilians about key cooperating witnesses in the Petrobras case. The second two were dedicated to U.S. officials meeting with the defense attorneys for Brazilians with whom they hoped to sign cooperation agreements. All of this was facilitated by the Car Wash prosecutors and took place in their offices. In chats with Aras and in his response to the Justice Ministry, Dallagnol neglected to mention the meetings with defense counsels.<\/p>\n<\/div>\n

\n

Visa requests for at least two of the DOJ prosecutors contradict Dallagnol as well, according to official documents from the Brazilian Foreign Ministry obtained recently by The Intercept. The Americans said they planned to travel to Curitiba \u201cfor meetings with Brazilian authorities regarding the investigation into Petrobras,\u201d and that \u201cthe objective of the meetings is to collect additional evidence in the case and speak with lawyers about their clients\u2019 cooperation with the investigation underway in the USA.\u201d<\/p>\n

Dallagnol and Aras told the Justice Ministry that the visit was meant to \u201cfacilitate the formalization of future requests for cooperation\u201d but at least three of the men whose cases were discussed that day reportedly later traveled to the U.S. to cooperate without an MLAT agreement.<\/p>\n

Brazilian law is clear that any investigation that occurs on Brazilian soil must be conducted formally and, in the case of international cooperation, that process is always mediated by the Justice Ministry\u2019s DRCI, not the Public Prosecutor\u2019s Office. The U.S. investigation into corruption in Petrobras was ongoing at the time that DOJ officials flew down to Curitiba to acquire information and collaborators for their prosecution and, therefore, should have gone through legal channels.<\/p>\n

The U.S. was not the only country to sidestep such requirements. In 2016, a Swiss court ruled<\/a> that prosecutors had illegally shared bank data with Car Wash prosecutors. Last September, the Brazilian news outlet UOL, in partnership with The Intercept, published documents from the leaked archive that revealed<\/a> Car Wash prosecutors intentionally broke the law by using evidence that they had received informally from colleagues in Switzerland and Monaco in arrest warrant requests. The article also detailed secret visits to Brazil by the Swiss.<\/p>\n

A Car Wash spokesperson told The Intercept that \u201cmeetings with foreign authorities \u2014 and there were dozens, some in person and others virtual, with different countries \u2014 do not require any formalization via DRCI, but only internal authorization from the respective interested bodies.\u201d Aras defended the exchange with the U.S. as legal and \u201cgood international practice,\u201d and told The Intercept that\u00a0the prosecutors were \u201cnot obliged to reveal or report these contacts to any authority in the Executive Branch.\u201d<\/p>\n

Ricardo Saadi, the head of the DRCI at the time, who has become a vocal supporter<\/a> of Car Wash, told The Intercept that he did not recall whether the Public Prosecutor\u2019s Office responded to his questions about the October 2015 visit. He added that \u201cinformal and direct contact between the authorities of different countries is permitted and provided for in international conventions. For this type of contact, there is no need to prepare an order based on the MLAT.\u201d<\/p>\n

Helping the Americans Do a Runaround<\/h3>\n

The week after the meetings in Curitiba, Car Wash prosecutor Orlando Martello sent Dallagnol a draft of a follow-up email he planned to send to the leaders of the U.S. delegation. The Brazilians could now \u201cconvince companies and individuals\u201d to cooperate by \u201cthreaten[ing] to inform \u2018the American authorities,’\u201d Martello wrote, adding \u201c\u2026 (lol).\u201d<\/p>\n

He then went on to lay out options for how the Americans could legally depose Brazilian suspects. Any interview that took place in Brazil would have to be \u201cpresided\u201d over by Brazilian authorities (\u201cI was not really aware of this fact, but Vladimir Aras reminded me about this understanding of our Supreme Court,\u201d the email reads). Therefore, Martello recommended avoiding that altogether.<\/p>\n

\u201cFirst option \u2014 To hear the defendants in the US. This is would be the best option, but I think (as does Patrick)\u201d \u2014 a reference to Patrick Stokes, the top ranking DOJ official at the meetings \u2014 \u201cthat just some of them will agree to go to the US,\u201d he wrote. \u201cWe could pressure them a little bit to go to the US,\u201d Martello went on. \u201cThings can change in the future (we never know what will happen in the future!!!). So, we could suggest that it is better to guarantee their immunity as soon as possible.\u201d (Stokes declined to comment. The Car Wash spokesperson told The Intercept that the Public Prosecutor\u2019s Office \u201chad no participation in Petrobras\u2019 decision to cooperate voluntarily with the US authorities.\u201d)<\/p>\n

The Justice Department followed\u00a0Martello\u2019s advice and quickly began closing a series of interview negotiations and collaboration agreements directly with key Brazilian suspects, rather than going through the more cumbersome and regimented MLAT process. It\u2019s unclear if this backfired on the Car Wash team or whether it was their plan all along.<\/p>\n

On November 30, less than two months after the Curitiba meeting, Dallagnol appeared to surprise Aras with the news that the Americans were already finalizing collaboration agreements with Brazilian defendants.<\/p>\n

\u201cWe have no control over the interviews, because there are about 10 collaborators who are already negotiating deals, or made deals,\u201d Dallagnol wrote. \u201cAs it will be in the USA, it will be without DRCI,\u201d meaning that it would not go through the MLAT process. The situation, Dallagnol informed Aras, meant that the balance of power in ongoing negotiations between Car Wash and the DOJ had swung in the American\u2019s favor. The Car Wash team needed to hurry along with their cases, because, according to him, the Americans had everything they needed to make theirs, and once that happened \u201cwe will lose strength to negotiate the division of the money they recover. Hence our rush.\u201d<\/p>\n

Aras said it was \u201ccraziness\u201d for the defense lawyers to send their clients to the U.S. without the stronger guarantees provided under the treaty. When they resumed the conversation more than two weeks later, Aras insisted that the DOJ should still follow the official channels and \u201crequest this via the DRCI.\u201d<\/p>\n

Dallagnol\u2019s response was complex. He resisted the suggestion, reminding Aras that they had already told the Americans that \u201cthere would be no problem\u201d if collaborators flew to the U.S. directly. However, he conceded, implicitly, that it may have been a mistake: \u201cWe had no restrictions yet, we were operating on automatic, unaware of the extent of the consequences,\u201d he said. At the same time, he admitted that they had been \u201cthinking about applying the treaty directly\u201d \u2014 meaning to follow the MLAT, but exclude the Justice Ministry from the process. He added that was \u201cstill not out of the question, we are all reflecting, I believe.\u201d The conversation ended without a clear resolution.<\/p>\n

As the Brazilians fumbled, the Americans pressed forward. In April 2016, news leaked that cooperating witnesses were traveling to the U.S. to be deposed, with the help of the public prosecutor. Aras presented the article in a chat with Car Wash prosecutors to confirm if it was true, as it was the first he had heard of it.<\/p>\n

\u201cIt would be good if there was an American request for the voluntary transfers of defendants or witnesses,\u201d he wrote. \u201cWe could establish guarantees and restrictions. Done directly, they can move forward without any control over the national interest.\u201d<\/p>\n

Dallagnol responded that they\u2019d already discussed this issue multiple times and Aras had agreed to everything along the way. Aras shot back that he remembered the discussions, but not \u201chaving agreed with the practice of collaborators receiving some kind of guarantee from the [Public Prosecutor] to travel to the USA, as people are saying.\u201d That should have been approved in a formal treaty request, Aras insisted, and asked whether there was a paper trail. \u201cNo papers from us agreeing, for sure,\u201d Dallagnol responded; rather, they had listened to the Americans\u2019 proposal and \u201cdidn\u2019t oppose it.\u201d<\/p>\n

\u201cIt\u2019s better that way. Great,\u201d said Aras.<\/p>\n

But Dallagnol appeared determined to break the rules. In a separate instance, in February 2016, Dallagnol alerted Aras of an email he\u2019d sent to American counterparts in which he offered to avoid the proper legal channels to help the Americans with another request. Aras was taken aback, explained at length all of the reasons why this was improper, and responded directly to the Americans to say that they would have to follow the protocols and go through the Justice Ministry.<\/p>\n

\u201cThank you, Vlad, but [\u2026] in this case it is not convenient to pass something through the executive,\u201d Dallagnol replied.<\/p>\n

\u201cThe matter is not convenience. It\u2019s legal,\u201d Aras insisted. \u201cThe treaty has the force of ordinary federal law and assigns intermediation to the [Justice Ministry]. [\u2026] For now, we need to observe the current rules.\u201d<\/p>\n

Money in the Middle<\/h3>\n

One subject infuses the Car Wash team\u2019s key conversations about collaborations with the U.S. government: money.<\/p>\n

An illustrative example of this arose in May 2016. Prosecutor Roberson Pozzobon shared an update with colleagues about their investigation into the Singapore-based Keppel Offshore & Marine, a Petrobras service provider. Pozzobon said that a Keppel lawyer had confirmed a trip to Brazil to meet with Car Wash prosecutors. \u201cI think we have a very good chance to recuperate lots of\u00a0 \u00a0\"\"\"\"\"\"\"\".\u201d<\/p>\n

Dallagnol had another idea:<\/p>\n<\/div>\n

\n
\n
\n
May 8, 2016 \u2013 Group Chat FT MPF Curitiba 3<\/strong><\/h6>\n

\"\"<\/p>\n<\/div>\n<\/div>\n

\n
Deltan Dallagnol \u2013 23:57:26 \u2013 <\/strong>Is there anything visible that would give an opening for American action? Something that happened in the USA, meetings, accounts, headquarters? I ask because if we do an agreement and the USA acts afterward, our fine may become small\u2026 If we do it together and with division, we prob increase the value. Perhaps it is the case to ask the USA if they are interested during the negotiations\u2026 Just a suggestion\u2026<\/h6>\n<\/div>\n
\n
\"\"<\/a><\/div>\n<\/div>\n
\n
\n
May 9th, 2016 \u2013 Group Chat FT MPF Curitiba 3<\/strong><\/h6>\n

\"\"<\/p>\n<\/div>\n<\/div>\n

\n
Roberson Pozzobon \u2013 00:01:24 \u2013 <\/strong>Yes, I think that\u2019s a good one, Delta. It is quite possible that in one of the platforms they have built for Petrobras they have used the US legal or banking structure.<\/h6>\n<\/div>\n
\n
\"\"<\/a><\/div>\n<\/div>\n<\/section>\n
\n

The Car Wash prosecutors felt that the Americans were able to negotiate larger settlements than they could and, in some cases, complex agreements stipulated that fines levied in one country could be discounted from amounts paid to another. Negotiating a settlement only to have a larger one negotiated later for the same crimes would be embarrassing. Nineteen months later, Keppel pleaded guilty to violating the FCPA in a U.S. court and agreed to pay $422 million in fines<\/a> to the U.S., Brazilian, and Singaporean governments. Half of it went to Brazil.<\/p>\n

In the FCPA case against Petrobras, it would appear that money was a determining factor in the Car Wash prosecutors\u2019 strategy in dealing with their U.S. counterparts. In the same message in which Aras lays out the legal and political concerns about their secret meeting in Curitiba in October 2015, he added: \u201cI thought Januario\u2019s idea was great that the USD 1.6 billion (or is it 4 billion?!) fine that the DOJ may apply to Petrobras would be divided between Brazil and the USA. If Patrick Stokes gave a positive sign for Brazil to keep a quarter of that, so much the better.\u201d<\/p>\n

Brazil kept 80 percent of the $853 million fine<\/a> under the final agreement.<\/p>\n

In one conversation between Aras and Dallagnol, Dallagnol cited asset sharing as a reason why they had delayed cooperating with the Americans on access to Brazilian suspects. \u201cThe reason we\u2019ve held off so far is because we\u2019re still in doubt as to whether we\u2019re going to facilitate things for them and because we wanted to negotiate the issue of asset sharing,\u201d Dallagnol wrote.<\/p>\n

In December 2015, there was internal discussion of whether or not to continue assisting the Americans (and whether or not to take a trip to meet with them in the U.S.). Again, at the center of the considerations was receiving a cut from the U.S. agreement with Petrobras. Dallagnol listed two considerations: One, should they end cooperation and how, and two, \u201ccan the asset sharing agreement influence the decision in point 1?\u201d<\/p>\n

On that point, Aras, the man responsible for ensuring that international partnerships follow the law, counseled the Car Wash prosecutors that it was \u201cbest not to invite the DRCI\u201d to conversations with American authorities so as to not \u201close negotiating positions\u201d related to asset sharing.<\/p>\n

The following year, Aras explained to the task force that there were serious problems in the Public Prosecutor\u2019s Office\u2019s relationship with the DOJ \u2014 a lack of reciprocity and long delays in fulfilling requests. Aras requested that Car Wash deny a DOJ request they were then helping with in order to send a message. \u201cVlad, we understand the need to generate pressure on Americans and that someone has to pay the price,\u201d Dallagnol responded. \u201cHowever, there are some things that concern me a lot in this specific context of Petrobras, especially the division of assets in the petrobras case. Because of this, I believe that it would be a very high risk to suspend in this specific case, at this time.\u201d<\/p>\n

In September 2018, Petrobras agreed to pay<\/a> the U.S. Justice Department and Securities and Exchange Commission $1.78 billion in fines, forfeiture of illicit gains, and interest. Eighty percent<\/a> of the $853 million fine was transferred to Brazil. In recent years, Brazil-related settlements were also reached with Walmart<\/a>, Odebrecht<\/a>, Braskem<\/a>, Embraer<\/a>, Rolls-Royce Holdings<\/a>, SBM Offshore<\/a>, Keppel Offshore\u00a0& Marine<\/a>, Samsung Heavy Industries<\/a>, and TechnipFMC<\/a>, among others.<\/p>\n

The big-dollar settlements have been touted by Car Wash as signs of success, but the plan to distribute the money also resulted in one of their most high profile defeats. Of the $682.5 million in Petrobras fees destined for Brazil, prosecutors proposed<\/a> that half go to pay back investors and the rest into a new, privately-controlled \u201csocial investment\u201d fund to support initiatives that \u201creinforce Brazilian society\u2019s fight against corruption.\u201d However, details about the private fund and how it would be administered were vague and prompted a fierce backlash<\/a> from critics, who considered it to be unconstitutional maneuver. One Supreme Court minister said<\/a> the proposal was part of a \u201cpower struggle\u201d and the Car Wash prosecutors \u201cwere participating in a gold rush.\u201d A former Petrobras director convicted under Car Wash filed to have his sentence overturned<\/a>, arguing that the prosecutors stood to personally gain from his conviction. Last September, the Supreme Court ordered<\/a> that the funds must be publicly administered, with a portion allocated to protecting the Amazon rainforest and the rest divided between the ministries of education, health, science and technology, and human rights.<\/p>\n

________________________________________________<\/p>\n

\n

Andrew Fishman<\/a> – fishman@\u200btheintercept.com<\/a><\/p>\n<\/div>\n

\n

Natalia Viana<\/a> – natalia@\u200bapublica.org<\/a><\/p>\n<\/div>\n

\n

Maryam Saleh – <\/a>maryam.saleh@\u200btheintercept.com<\/a><\/p>\n

Go to Original – theintercept.com<\/a><\/p>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

12 Mar 2020 – Leaked conversations between Brazilian officials reveal the inner workings of a secretive collaboration with the U.S. Department of Justice on a sprawling anti-corruption effort known as Operation Car Wash. The chats, analyzed in partnership with the Brazilian investigative news outlet Ag\u00eancia P\u00fablica, show that the Brazilians were extremely accommodating to their U.S. partners, going out of their way to facilitate their involvement in ways that may have violated international legal treaties and Brazilian law.<\/p>\n","protected":false},"author":4,"featured_media":156355,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[180],"tags":[547,239,550,1126,1050,651,1871,1870,985,70],"class_list":["post-156353","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-brics","tag-brazil","tag-brics","tag-corruption","tag-hegemony","tag-imperialism","tag-justice","tag-operacao-lava-jato","tag-operation-car-wash","tag-social-justice","tag-usa"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/156353","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=156353"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/156353\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media\/156355"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=156353"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=156353"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=156353"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}