Brazil After Lawfare: The Return of ‘President’ Lula and the Fall of a 'Hero' Judge

Operation Car Wash, the probe into the 'world’s biggest corruption scandal', has turned out to be a scandal itself.

Sao Paulo: If a tweet tells a story, this one was perfect. And it came with a photo worth a thousand words. “Returning from Brasilia. See you soon,” Luiz Inacio Lula de Silva tweeted last Friday, with a snap in which the former Brazilian president is sitting in the back seat of a sedan, with his eyes focused on a document in his left hand. In the backdrop, framed with the car’s window, stand two towers with a saucer-like structure on either side and flags of different nations fluttering on the avenue which flanks this edifice. This complex, designed by Oscar Niemeyer, is Brazil’s Congress: the right-side up saucer hosts the Senate, while the upside-down one is the Chamber of Deputies. No building in Brazil represents politics – and power – as this futuristic creation.

It was hard to miss the symbolism in Lula’s tweet. Put on a trial for corruption, sent to jail and barred from the 2018 elections, the former president travelled to the capital last week from Sao Paulo, where he lives, after a long hiatus. Dressed in a blue shirt and deep blue jacket and looking every bit a statesman, Lula, 75, was announcing his return to the centre of national politics as President Jair Bolsonaro drags the country through a raging pandemic and rising poverty. Under the Senate’s dome, captured in Lula’s photo, a congressional commission is investigating Bolsonaro for his handling of the pandemic.

A country has only one president at a time – one who holds the office and leads it. That president, Bolsonaro, was clicked on Friday riding a motorbike with a billionaire buddy, without masks or helmets and laughing as he led a procession of his supporters on the way to inaugurate a bridge. The photo was tweeted by the president’s office. The contrast in two photos couldn’t be clearer: the president in power is busy firing up his far-right base; the former president is ready to lead the country out of misery – again.

Brazilian President Jair Bolsonaro riding a bike with his billionaire backer Luciano Hang during an official engagement last Friday. Photo: Twitter/@planalto

Since early March, after a Supreme Court judge, Justice Edson Fachin, overturned Lula’s conviction, he has been giving interviews and speeches, focused on ways to combat the pandemic. After April 16, when the full bench of the court confirmed Justice Fachin’s decision, Lula began to signal that he was ready to run for office again. Landing in Brasilia on last Monday, Lula set up an office in a hotel, just three km away from the Congress, and lined up meetings with politicians from across the ideological spectrum and ambassadors from countries such as China, Germany and Argentina to discuss the COVID-19 crisis, the environmental problem and political issues which will dominate the next presidential elections in October 2022.

With his eyes on presidency, the Workers Party leader has plunged into the rough and tumble of Brazilian politics from where he was banished in the most brazen manner.

A hero and a villain

Lula served as Brazil’s president from 2003 to 2010. During his presidency, Brazil’s economy boomed, poverty fell and the country emerged as a major player in world affairs. When he left office, Lula had the approval rating of 87%. The same year his former chief of staff, Dilma Rousseff, was elected as Brazil’s first female president. Rousseff won the re-election in 2014. It was the fourth straight victory for the Workers Party (PT). It was the fourth successive defeat for the Social Democratic Party (PSDB), which had been in power from 1994 to 2002. As Rousseff began her second term amid the anticipation that Lula would be back as the PT candidate in 2018, the right-wing PSDB became desperate. It was staring at irrelevance.

Something needed to be done to stop Lula and PT.

In March 2014, just weeks into Rousseff’s second term, the federal police branch in the city of Curitiba launched a probe against a money exchanger, who used a petrol pump in Brasilia for his business. Dubbed as “Operation Car Wash” and driven by a Curitiba judge named Sergio Moro, the operation grew in scope by the week, even reaching a former director of the state oil company Petrobras and the construction giant Odebrecht. Tearing apart companies and landing politicians in jail, the operation reached the doorsteps of Lula da Silva, who was accused of accepting bribes.

Between 2014 and 2016, as the operation grew, Sergio Moro turned into a public figure. Appearing regularly on magazine covers and regularly praised on prime-time news, Moro became a middle-class hero as he was projected as a “saviour” of Brazil who would be a president soon. Moro’s stock rose not just at home but also abroad, especially in the US, where he was paraded as a judge who was cleaning up Brazil. In 2016, Moro was invited by the Wilson Center in Washington, DC to speak about “Handling political corruption cases in Brazil”. Appearing under the headline, “Sergio Moro, the Brazilian judge who brings down presidents”, Moro was chosen as one of the 50 “personalities of the decade” by the Financial Times newspaper.

On both sides of the Atlantic, Moro was a presented as a hero who was using law to clear the corruption-filled swamp Brazilian politics and economy.

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As every hero needs a villain to complete the picture, Lula was turned into a symbol of corruption as the Brazilian media filled their columns with the stories leaked by the prosecutors who led the Car Wash probe. Known as the Republic of Curitiba, the prosecutors, led by Deltan Dallagnol who was also showcased in the local and American media as a corruption-buster, behaved like a law unto themselves. Calling Lula the “big boss” of a bribery scheme, Dallagnol declared just before the trial that the former president would be “charged with corruption”. He didn’t bother to present any evidence. During the trial, Dallagnol showed a slide which had a series of bubbles, containing words like “corrupt governance” and “illegal enrichment”, with arrows pointing towards a big circle in the middle called “Lula”. Based on such “evidence”, Moro declared Lula guilty on July 12, 2017.

The conviction shook up Brazil’s politics. Lula, who was leading the opinion polls at that time, was placed in a solitary prison cell in Curitiba and barred from election. After 580 days in jail, during which Bolsonaro won the presidency and Moro quit the court to become his justice minister, Lula was released on bail in 2019. Emerging from the prison, Lula promised to clear his name and to prove that Moro had persecuted him to prevent him from running in elections.

The mask slips and falls

When Judge Moro was conducting his show in Curitiba, all institutions of Brazil, including the higher courts and media, ate from his hands whatever he served. But his image suffered a bit when he joined Bolsonaro’s cabinet. Seen as a reward for helping Bolsonaro win the election, Moro survived the criticism as Bolsonaro presented him as the “super justice minister” who would rid the country of crime and corruption. In 2019, after The Intercept Brasil exposed how Moro and the Curitiba prosecutors had colluded with each other against defendants, especially Lula, Moro became a toxic commodity.

Based on the explosive messages, procured and leaked by a group of Brazilian hackers, from a Telegram group which comprised the prosecutors and the judge, the exposé showed that Moro was actually leading them at every step of the trial. The prosecutors, revealed the messages, were also working with the certain government departments of the United States and Switzerland as they hounded Lula. In their secret chats, the judge and his prosecutors were determined to stop Lula from returning to power in 2018. Car Wash was not an investigation into a scandal, it was itself a scandal and Moro was its kingpin. In a landmark judgement on March 23, Brazil’s supreme court ruled that Moro was “partial” in Lula’s trial. “In this case what is discussed is something that for me is key: everyone has the right to a fair trial, due legal process, and the impartiality of the judge,” said Justice Carmen Lucia, casting the tie-breaking vote in favour of Lula.

Despite a strong reprimand from the country’s top court, the former judge and justice minister has refused to back off or apologise for his conduct. After the Supreme Court pronounced that he was not impartial in Lula’s trial, Moro said he was absolutely calm about his decisions. “Despite the decision of the Supreme Court, I have absolute tranquility in relation to the correctness of my decisions, all based on the judicial processes, including those which had the former President as accused,” said Moro, praising the Operation Car Wash as a “milestone in the fight against corruption in Brazil”.

Having quit the judicial service in 2018 and lost his job in Bolsonaro administration in 2020, Moro was reportedly considering to run for presidency on an anti-corruption plank. After the rap on the knuckles from the apex court, his political future too is in doubt. For now, he is sitting comfortably in the moneys-spinning world of consultancy, dividing his time between Sao Paulo and Miami.

Judge, jury and prosecutor

A few months after leaving Bolsonaro’s government, Sergio Moro announced in November 202o that he was joining the US consulting firm Alvarez & Marsal as a director. As this firm acts as a judicial administrator for Odebrecht, the company that was at the centre of Car Wash scandal, Moro’s career move reinforced the suspicions about his motives in persecuting Lula.

Though a lower court judge, Moro’s actions had a far-reaching impact on Brazil’s politics, economy and foreign policy. As Bolsonaro, who would not be president but for Moro’s conviction of Lula, runs Brazil to the ground, the former judge’s judicial conduct is being documented and discussed. And the picture that emerges is rather murky.

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As a judge in Lula’s case, Moro committed several illegalities, says lawyer Marco Aurelio de Carvalho who coordinates Prerogatives, a group of progressive jurists and lawyers. “This judge, clandestinely and illegally, tapped the lawyers of Lula, violating their rights to defence,” said Carvalho in an interview with The Wire. Founder of the Association of Jurists for Democracy, Carvalho highlights another illegal action by Moro: in 2016, the judge tapped a phone conversation between then President Rousseff and Lula and leaked parts of it to the Globo TV, which broadcast it on their ‘national news’ show. Played repeatedly on television, the selective audio wrongly created an impression that Rousseff wanted to appoint Lula as her chief of staff to protect him from prosecution. “This had a direct impact on Lula, who was accused of obstructing justice, but also on the history of this country. It played an important role in the impeachment of Rousseff, an impeachment without a legal basis,” said Carvalho.

Moro’s conduct, as revealed in the Telegram chats, was that of a judge, jury and prosecutor. Carvalho says Moro had repeatedly ignored proof of innocence from Lula while considering the prosecution’s evidence which he had himself given to them. “This judge acted in an absolutely compromising way as a coordinator of the prosecution. He established a promiscuous relationship with the prosecutors and denied the right of defence,” said Carvalho.

Throughout the trial, Moro, says Carvalho, used the media to destroy Lula’s image. In 2016, the country was shocked as police officers knocked at Lula’s door early in the morning and took him away for interrogation. The former president was picked like a criminal in the full glare of television cameras. “At no time, Lula had refused to appear for questioning if he was summoned, but Moro’s objective was to discredit him in the face of public opinion,” said Carvalho. Even a Supreme Court judge, Justice Ricardo Lewandowski compared the action against Lula to the transportation of “animals to the slaughterhouse”.

But given Moro’s track record, his behaviour was not surprising. In a new documentary, Sergio Moro: The construction of a judge above the law by Luis Nassif, Marcelo Auler and Cintia Alves of the Youtube channel GGN, the journalists have shown that Moro had already been criticised in the past by Supreme Court judges for denying a “fair trial” and for having acted “as an investigator, performing the actions of the prosecution”. “The film documents Moro’s previous abuses, going back to the years in early 2000s. Many lawyers who had pleaded cases in front of him complained about him to the Supreme Court,” said Cintia Alves, speaking to The Wire.

Law is a political weapon

Despite his bad record as a judge, Moro became synonymous with Operation Car Wash as he appeared at black tie events in New York, openly hobnobbed with PSDB politicians inimical to Lula and was feted by the media – Brazilian and western – who took his words as gospel truth. When Lula and the PT protested their innocence, they were branded as a corrupt cabal which had taken Brazil down. With Dilma impeached, in 2016, Lula was convicted in 2017 and sent to prison in 2018. A political party, which had led the country’s growth and transformation, was turned into a villain in just a couple of years.

The main protagonist of the story was Moro who had become the darling of the elite – local and global – for pushing the PT and Lula to the sidelines with a legal process, something they had not been able to achieve politically.

Judicial experts see Moro’s scandalous conduct as “lawfare”. According to Gisele Cittadino, a professor of law at the Pontifical Catholic University of Rio de Janeiro and author along with other jurists of the book Lawfare: The Calvary of Brazilian Democracy (2020), lawfare is the use of law for political persecution. “In Brazil, lawfare was widely used in Operation Car Wash, with three different targets. The first target was ex-President Lula da Silva, the second target was the political project as represented by the governments of the Workers’ Party and the third target was the national sovereignty. It managed to dismantle the oil and gas contractors and a good part of the shipping industry, the sectors of the Brazilian economy that had a strong international presence and were competing with the US companies,” said Cittadino, speaking to The Wire.

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The practice of lawfare is present across Latin America. According to the professor, in Argentina, ex-president Cristina Kirchner was subjected to judicial persecution; Rafael Correa, the former president of Ecuador, was forced to go into exile due to lawsuits; and the Bolivian justice tried to arrest ex-president Evo Morales. “What is common in these cases? All were left-wing governments, committed to policies aimed at the most disadvantaged. Lawfare seems to be the substitute for the military dictatorships, because in both the cases we are faced with an economic elite who refuse to include the poor in the policies. In the past, they resorted to the military. Now, they use the justice system,” said Cittadino.

The fall of Brazil

Since 2019, when Bolsonaro, the biggest beneficiary of Operation Car Wash, assumed presidency, the country has become a basket case of far-right politics, unbridled neoliberal economy and a skewed foreign policy that works against its own national interest. That probably was the objective of this investigation all along. In a breathtaking report published by the French newspaper Le Monde on April 10, it was revealed that it was the US strategy to “undermine Brazil’s geopolitical autonomy and weaken its companies that would be obstacles to American interests”. This strategy, said the report, began to be put together after Brazil found massive oil reserves in the ocean, the so-called pre-salt reserves, in 2006 when Lula was serving his first term.

At that time, the Brazilian foreign policy was strongly disapproved by Washington for not being subservient to its interests. At that time, Brazilian companies, such as Odebrecht and Camargo Correa, which would later be hit by Moro’s operation, were operating and growing in Latin America and Africa. According to Le Monde, the US embassy in Brazil started to create a group of local experts, sympathetic to their interests and willing to learn their methods which consist of making anti-corruption “working groups”, application of their legal doctrine and the “informal” sharing of information about the processes outside the official channels. This is exactly what happened with Operation Car Wash. In 2007, Sergio Moro had attended a meeting funded by the US Department of State where he met representatives from the FBI and the Department of Justice (DoJ). It has been revealed that the Curitiba prosecutors were working closely with the DoJ while they were persecuting Lula.

Former Brazilian president Lula de Silva was in Brasilia last week, meeting politicians from different parties and ambassadors of some countries. Photo: Ricardo Stuckert

While Moro and his prosecutors were hunting Lula, they were damaging Brazil. The full horror of the destruction they inflicted on the economy is coming out into the open only now. According to a study, released in March 2021, by the Inter-Union Department of Statistics and Socioeconomic Studies, the operation caused a damage of 174 billion reals ($34 billion), with more than 4.4 million jobs lost, and dozens of companies destroyed. On April 22, when Moro was pronounced “partial and incompetent” by the Supreme Court, Justice Lewandowski, bluntly stated that the Operation Car Wash dismantled many sectors of the national economy, such as the oil industry, in favour of foreign interests.

This damage to the economy, said Justice Lewandowski, was done in violation of rule of law. “Operation Car Wash’s modus operandi has led to forced deposition, lengthy arrests, threats to family members and other conducts incompatible with the rule of law,” said the Supreme Court judge. “Who facilitated the dismantling of the Brazilian economy? We have gone down from being the 8th economy in the world to the 14th.”

It is not just the economy which has spiralled downwards. In five years since the impeachment of Rousseff, Brazil has sunk on important parameters like democracy, media freedom, poverty, hunger, per capita income and life expectancy. On all socio-economic indicators, the country is in worse position than it was in 2016. And politically, it is back where it was in 2018. Amid the COVID-19 catastrophe, Bolsonaro’s hate-based populism is in sharp decline; Lula is again the country’s favourite politician and presidential candidate as he was three years ago when Moro’s lawfare against him blocked him and derailed Brazil.

But now, Brazil wants to correct its course. In two opinion major polls released on Wednesday, Lula was leading Bolsonaro by 41% to 23% in the first round of elections. If the two leaders went head-to-head in the second round, the Workers Party’s leader would win by 55% to Bolsonaro’s 32%. In the first survey since Lula regained his rights to contest an election, 54% of Brazilians said they would never vote for the current president. Such a high rejection rate for Bolsonaro is the result of his disastrous governance, deliberate mishandling of the pandemic and the daily wear-and-tear being caused to him by the inquiry at the Senate.

While passing by the Senate dome last Friday, Lula sent a clear message to Brazil with his “see you soon” tweet. That message has been received well by the country.

Shobhan Saxena and Florencia Costa are independent journalists based in Sao Paulo, Brazil.