The Shoddy Case Against Greenwald Goes Beyond Bolsonaro

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(Bloomberg Opinion) -- Brazil’s anti-corruption battle recently took a troubling turn when a federal prosecutor accused journalist Glenn Greenwald of conspiring with phone hackers to steal private messages from former anti-graft judge Sergio Moro. This was a collision foretold. So was the inevitable public outcry it provoked, in Brazil and beyond.

Moro became a national legend for presiding over the storied Carwash case, which took down dozens of corrupt politicians and contractors who had gamed public tenders. Hence, an attack on Moro, the argument goes, is a pass for scoundrels.

Greenwald is also a hero for those who believe, as the hackers’ trove strongly suggests, that Moro had his thumb on the scale against iconic former President Luiz Inacio Lula da Silva. Indeed, after convicting the Workers Party leader for graft, hadn’t Moro quit his judgeship to become justice minister for President Jair Bolsonaro, the right wing’s anti-Lula?  

Brazil’s judiciary will have the final word. Yet such is the excitable state of the Brazilian zeitgeist that matters of law which ought to be argued by professionals and settled within institutional bounds have become a proving ground for partisans battling over the nation’s soul, and ammunition for an army of Cassandras fretting over global democracy.

U.S. presidential hopeful Bernie Sanders tweeted a gem: “I call on Brazil to end the authoritarian attack on press freedom and the rule of law.” His rival, Elizabeth Warren, enjoined Brazil to end its “state retaliation” against Greenwald. So did the New York Times, in a scolding editorial followed by an op-ed by Brazilian filmmaker Petra Costa, riffing off the narrative in her Oscar-nominated documentary “The Edge of Democracy” that a corrupt and authoritarian cabal has overrun Brazil.

The ideologues need to take a breath. First, the charges against Greenwald look weak. Until now, he was not even a target of investigation. The Brazilian constitution safeguards freedom of expression and shields journalists and anyone else divulging even ill-gotten information in the public interest, so long as they don’t participate in the theft. Any prosecutor arguing that Greenwald crossed that red line will have to reckon with the federal police: Reviewing the same evidence, they had already discarded that version months before.

If the charges against Greenwald are fragile, so is the case against Brazil. True, more than a splenetic right-winger, Bolsonaro has little regard for the rule of law and the governing institutions upon which democracy depends. The former Brazilian army captain rarely misses the opportunity to offend adversaries, attack journalists or slight some social group, always to the delight of the partisan swarm. (“Every day,” he said of native Brazilians last week, “the Indian is becoming a human being just like us.”)

Bolsonaro’s critics confuse hubris with clout. Brazil is a flawed democracy bordering at times on dysfunction, but it’s also one with many competing layers of oversight and influence. Each one is a cantilever to central authority, never mind aspiring autocrats. Bolsonaro cannot wish away the Brazilian legislature, auditors, the courts or public opinion, anymore than he can control them.

Not that he hasn’t tried. Last year, Bolsonaro issued 48 provisional executive orders, but due to congressional pushback saw only 11 converted into law — thus underperforming the last four democratically elected presidents. Lawmakers also beat back Bolsonaro’s attempt to stop a bill to hold judges accountable for abusing their authority. Moro, understandably, feared that such a law could embolden criminals and weaken the fight against graft. Yet the bill became a contest of political tensile strength, with congress overturning 18 presidential vetoes.

The Brazilian Supreme Court also has curbed Bolsonaro’s willful agenda. It unanimously rejected a decree to hand over control of indigenous lands to the agriculture ministry, a move that many feared would mortgage the wellbeing of native populations to agribusiness. It also granted the tax authority and the financial crimes unit discretion to share records with courts and prosecutors, a setback for Bolsonaro’s eldest son, who is under investigation for suspicious financial dealings.

Nor has public opinion been bowed. Ask Bolsonaro’s onetime protege and former culture secretary, who was sacked a day after provoking a national scandal in a speech paraphrasing Joseph Goebbels.

Such retreats testify to the strength of Brazilian democracy’s damage controls. “When Bolsonaro threatens journalists and shows contempt for adversaries, he flaunts his illiberal instincts,” said political analyst Carlos Pereira, of the Getulio Vargas Foundation in Rio de Janeiro. “But what we’ve seen instead is that Brazil has checks and balances and institutions which have imposed important defeats on the presidential agenda.”

In a recent paper, University of Texas at Austin professor Kurt Weyland, a scholar of Latin American government, called this democracy’s threat to populism. The idea, he says, is that strongmen need special conditions to prevail. More than feeble institutions ripe for capture, authoritarian populists need an economic windfall in the form of a sudden resource bonanza, which they may then plunder and gift to the people, or else some national catastrophe from which society clamors for redemption.

Peru’s Alberto Fujimori had all of that when he helped to end hyperinflation, defeated a guerrilla insurgency and went on to shut down congress and rule as a popular autocrat. It was much the same for Venezuela’s Hugo Chavez, who won adulation by sharing out the takings from the oil bonanza like social manna, before going on to hollow out and take over all political institutions.

Yet few populists can count on such a fortuitous coincidence, and even deficient democracies such as Brazil’s can constrain a rogue. Bolsonaro may have an authoritarian’s id but not the aptitude. For one, Brazil’s economy is sluggish but not devastated. “People aren’t looking for a savior,” said Weyland. What’s more, political power is fractured between multiple parties hungry for pork and patronage not ideology, hardly the autocrat’s dream team. “Even a guy who might like to do a lot of damage won’t have the capacity to get away with it,” he added.

But what about the ability to charge Greenwald in the first place? No doubt Bolsonaro would prefer a world without Greenwalds or any other of Brazil’s democratic impedimenta. He may even have sympathizers within the judiciary who share that sentiment. Yet that would suggest professional independence more than institutional capture. Brazil’s office of public prosecutors was a creation of the 1988 democratic constitution, whose framers envisioned a well-trained corps of prosecutors with remarkable operative autonomy. That sprawling brief imbued judges and prosecutors with an avenger’s zeal, sometimes to a fault, occasionally in open contradiction with one another, and not infrequently to the displeasure of sitting authority.

“If there is an issue for democracy, it might be the radical independence of public prosecutors, who have enormous flexibility to interpret the law with little oversight or control,” said political analyst Fernando Schuler, of the Sao Paulo business school Insper.

That’s not the sort of institutional menace Bernie and democracy’s doom-watch have been warning about. Even with its dysfunctionality and chaos, Brazil’s democracy is one with little tolerance for fiat and many institutional counterweights. The remedy for even the most eager rogue lies in fixing the system’s flaws, not in overdramatizing his powers.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Mac Margolis is a Bloomberg Opinion columnist covering Latin and South America. He was a reporter for Newsweek and is the author of “The Last New World: The Conquest of the Amazon Frontier.”

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