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In Brazil, Court's Decision Illustrates Corruption Probe Overreach

BRAZIL / 19 MAR 2021 BY MAX RADWIN EN

With Brazil's Supreme Court canceling the conviction of former President Luiz Inácio Lula da Silva, the country must now contend with continued fallout from a heralded corruption investigation tainted by evidence of political bias and overreach.

On March 8, a judge annulled bribery and money laundering charges against the two-time former Brazilian president, according to Reuters, saying the court that had convicted Lula, as he is popularly known, lacked jurisdiction in the case. Instead, the judge said, Lula would have to be retried in federal court in the capital, Brasilia.

The case, which had upended Lula’s bid for a third presidential term in 2018, has opened the door for him to run again in 2022. Lula was the highest politician in Brazil prosecuted in the sweeping investigation known as "Operação Lava Jato," or "Operation Car Wash," which brought down a number of prominent officials and business elites in the country and elsewhere in Latin America.

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But the investigation in Brazil has been roiled by evidence that prosecutors and judges collaborated improperly. Prosecutors in Lula’s case, for example, alleged that Lula received renovations to a beach-front property and thousands of dollars worth of furniture as a bribe from engineering firm OAS. Lula, however, maintained the investigation was politically motivated and strongly denied any wrongdoing. Lula’s arguments received a boost when text messages leaked to investigative news outlet The Intercept in 2019 revealed that the judge overseeing the case, Sergio Moro, had been strategizing with the prosecution.

What's more, Moro was accused of illegally releasing wiretap recordings, which hurt Lula politically and accelerated the impeachment of his successor, Dilma Rousseff. Around the same time, Moro was in discussions with right-wing President Jair Bolsonaro – Lula's presidential rival – to become justice minister. Moro's posting as minister became official shortly after Bolsonaro won the election.  

InSight Crime Analysis

Brazil's Operation Car Wash has been heralded as an example of how Latin American countries can successfully investigate a vast corruption scheme, and in many regards, it was pathbreaking in its scope and reach. But revelations about political machinations and missteps in the Lula case are a stark reminder of how even the best tools can be mishandled, and possibly misused, for political purposes.

The Lula case fell apart for many reasons, but at the heart of it was political overreach. To begin with, lawyers and legal scholars have called into question the legitimacy of the investigation into Lula and the motives behind it, in particular Moro’s role in the case. In addition to working with the prosecution and releasing wiretaps, it was Moro who pushed the case into a regional instead of federal court, the justification the judge used to upend the case.

But political overreach went further still. The prosecution, for example, painted Lula as the leader of a criminal conspiracy and his Worker’s Party (Partido dos Trabalhadores – PT) as a kind of “cartel” (a narrative backed by the controversial Netflix series, “The Mechanism”). The legal strategy was similar to what in the United States is called the Racketeer Influenced and Corrupt Organization Act (RICO). The RICO statute has been used to prosecute mafia organizations and criminal gangs, since it allows prosecutors to develop a case against a group of people who act together to carry out a crime or series of crimes, and it does not require that person's direct participation in the crime for the person to be prosecuted for it.

However, for Mauricio Santoro, a political science professor at the State University of Rio de Janeiro, a RICO-style organized crime case loses its credibility when wielded against an entire political party. The case, he told InSight Crime, tried to create "the image that it’s the same thing to be a politician as a member of an organized crime group.” However, it rang hollow, he added, “especially when you define a whole political party as an organized crime institution.”

SEE ALSO: Major Oil Trader Fined for Bribes Across Latin America

Part of the problem in Brazil is that judges are political players. They have widespread discretion over the cases they can push through the judicial system, and Santos says politics can play a role in their decision-making process. Some judges want the limelight, he says. Others do not.

“They don't want to get dragged into this kind of political fight, this kind of confusion,” Santoro said, referring to judges who may avoid highly politicized cases. “Unless, of course, they have some kind of huge ambition to become national stars.”

Brazilians seem dispirited by the never-ending flow of corruption scandals, as well as the appeals and court rulings that are always reversing course. Even a poll taken at the height of the Moro narrative, in 2018, showed that people had other things on their minds – the economy, for example, and healthcare.

Despite these stumbles, other analysts note that Brazil has improved its capacity to prosecute once-untouchable elites. Matthew Taylor, a political scientist at American University, pointed out the country has undergone a lot of “incremental change” over the last three decades, which made launching such a massive corruption probe possible in the first place.

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