Hacked Messages Don’t Nullify Brazil’s Corruption Rulings

(Bloomberg Opinion) -- A former lower court judge with a gimlet eye for graft, Sergio Moro made his name taking down crooked Brazilian politicians and their corporate enablers. In naming Moro justice minister in January, President Jair Bolsonaro aimed to shake up an ethically challenged nation. Little did he know.

Since June 8, the muckraking news site The Intercept has been publishing tranches of what it calls a trove of “internal files and private conversations” between Moro and key figures in the Carwash case — the serial corruption and influence peddling trials that Moro has oversaw from 2014 to 2018. The hacked text messages seem to confirm what some Brazilians have long suspected: Moro went too far, apparently coaching lead prosecutor Deltan Dallagnol on how to bring suit against Carwash targets, starting with former Brazilian President Luiz Inacio Lula da Silva — who was duly convicted by Moro of graft and money laundering in 2017.

The theatrical methods used in the Carwash probe have long divided Brazilians. Dawn police raids, perp walks, press gaggles, wiretaps and leaked testimony — all this fed into a carefully scripted public narrative of pirates being dismissed from public office. Moro himself praised the spin because it built public support for necessary judicial actions. But the clean-up undoubtedly benefited Brazil, and has since inspired similar pursuits across Latin America.

Now, Lula’s champions have seized on the leaks as confirmation that Moro was unfit to sit in judgment, and that Lula was railroaded. This distorts the facts. The hacked messages offer no suggestion that Moro or any of the prosecutors fabricated evidence. In a Senate hearing this week, Moro insisted he did nothing. On appeal, Lula’s conviction was upheld and his prison sentence, lengthened. And Brazil’s Supreme Court has repeatedly declined to vacate the ruling. (Lula will get another chance later this month when the high court weighs whether Moro was biased.) And as Christian Lynch, a Rio de Janeiro State University political scientist, points out, “A judge’s intentions don’t annul the evidence.”

However the hacked conversations affect Lula’s case, the problem for Brazil goes beyond Moro’s hauteur. In Carwash, apparently, the country’s judicial system was repurposed as a crusade. Bolsonaro called Moro’s verdicts “priceless,” and until recently most Brazilians agreed, treating the judge as a national hero. What they have needed, however, is not heroism but basic due process.

That was meant to have been guaranteed by the country’s 1988 constitution, but in trying to curb executive-branch fiat it gave perhaps too much clout and latitude to the courts and prosecutors, especially the independent public prosecutors office and its cadre of career investigators. During the recent run of political corruption scandals — a congressional vote buying scheme in the 2000s, then the pillage of Petrobras which blew up into Carwash — empowered prosecutors and judges leaned in on legislative affairs. “Prosecutors and judges adopted a missionary spirit,” explains Lynch. “Like the armed forces in the past, they took it upon themselves to clean up the country and take compromised leaders out of circulation.”

In the process, Moro became a role model for prosecutors in other Latin American countries investigating the dealings of the Odebrecht Group, a Brazilian contractor that had engaged in continent-wide over-billing and kickbacks. Moro’s followers in Panama, Guatemala and Peru pushed the legal limits, often holding graft suspects in the Odebrecht scheme and other scandals in jail for months without formal charge or trial.

Colombia, too, has given prosecutors the purview to jail suspects without charge, tap phones, seize passports and search through private bank accounts. Maybe some of these excesses amount to democratic growing pains. After all, there was a day when leaders were above the law. But the Carwash revelations demonstrate that it’s possible for police and prosecutors to overreach.

“The whole Moro incident shows us we need better internal controls over the justice system,” said Thiago Bottino, a professor of criminal law at the Getulio Vargas Foundation in Rio de Janeiro. “Cronyism has weakened oversight and undermined checks and balances.”

The Carwash probe is still going, but its future is now in play. It’s hard to escape the conclusion that Moro crossed a line, playing both judge and litigant. His aura has dimmed as a result. But evidence hacked from a judge’s phone and fed piecemeal to a partisan media site is shaky ground on which to remove him from office. Brazilians don’t need a martyr any more than a legal action hero. They need institutions that play by the rules.

To contact the editor responsible for this story: Mary Duenwald at mduenwald@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or 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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