20 ways Lawfare led to Brazil’s State of Exception

The rise of Bolsonaro is the result of a long and systematic process of bending or violating laws for political ends  to  remove one democratically elected president and arrest another.

It may have taken the Intercept’s Telegram leaks for the international press to stop uncritically supporting Lava Jato but the fact that it was conducted illegally to deliberately target the PT has been public knowledge for years. The following timeline, composed by José Crispiniano, traces the roots of the Lava Jato investigation starting in 2003 with the so-called Mensalão investigation, which resulted in kangaroo court proceedings and arbitrary arrest of two of the top officials in the PT party: José Genoino José Dirceu. All of this information was publicly available before the Intercept revealed social media conversations showing illegal collusion between the judge, the prosecuting task force and members of the Brazilian supreme court that invalidates the 2016 impeachment of Dilma Rousseff and Lula’s imprisonment. By systematically ignoring mountains of evidence and a huge body of critical work written by Brazil’s top legal scholars that challenged the US-backed Lava Jato investigation’s official narrative, northern commercial media companies essentially worked to normalize the return of fascism to Brazil. As they shift strategies to profit through Bolsonaro bashing  it is important to remember their role in Brazil arriving in its current situation.

Lava Jato and the State of Exception: A timeline

by José Crispiniano

2004 – Sérgio Moro writes an article entitled, “Considerations on Operation Mani Pulite”, in which he praises coerced plea bargains, media leaks and destruction of public image – three tactics that would form the basis of the Lava Jato investigation ten years later.

2005 – According to statements made by Jair Bolsonaro’s current Chief of Staff, Onyx Lorenzoni to Globo News reporter Roberto D’Ávila, Moro suggested that two changes be made to Brazilian law: 1) legalizing the use of coerced plea bargain testimony; and 2) the transformation of money laundering into an autonomous crime no longer dependent on a prior offense. This, according to Onyx, made the difference between “reaching Lula or not” in the Mensalão investigation and Lava Jato.

2007 – Sérgio Moro makes a coerced plea bargain deal with black market money trader Alberto Yousseff during the Banestado investigation.

2006-2014 – During the ongoing Banestado investigation, Moro monitors Yousseff’s phone conversations, acting against the orders of the local Public Prosecutors Office (before Deltan Dallognol took over). These wire taps only ended when the Lava Jato investigation went public.

2009 – A US diplomatic cable revealed by Wikileaks (09BRASILIA1282_a) registers Sérgio Moro participating in a one-week conference on money laundering, as part of “Project Bridges”, a bilateral program to approximate the US and Brazilian judiciary, public prosecutors and federal police. The document registers that the participants in the seminar requested additional training on how to set up “proactive task force model”.

2012 – Moro works as a prosecution assistant to Supreme Court Minister Judge Rosa Weber on the Mensalão case. It’s the first Brazilian case which uses the theory of “domain of the fact” to establish guilt in the absence of material evidence (the author of the theory, German legal scholar Claus Roxin, later said that it was misused in the Mensalão case). This was in this case that Rosa Weber made her famous statement that, “there is no evidence, but the literature permits me”, while condemning José Dirceu with, as she herself said, no evidence. There is a big chance that this statement was written by her assistant Moro, since Weber does not have a background in criminal law.

2013 – In part as a response to the June street protests, President Rousseff signs anti-corruption measures as part of the new Law to Fight Criminal Organizations, which enables coerced plea bargain deals to be set up with nearly no supervision and with extremely vague language that enables broad interpretations by prosecutors.

2014 – The Lava Jato investigation goes public, after a car accident at a gas station and the arrest of Alberto Yousseff. Every movie and book you see about it says that this was a random event, but the fact that Yousseff had been under surveillance by Moro for 8 years proves otherwise.

2014-2017 – A series of “preventative” arrests and coerced plea bargain testimonies are conducted against former directors of Petrobras and executives of various engineering companies. Starting with Alberto Yousseff people are arrested – in most cases based on one plea bargain testimony -confess to crimes and make new plea bargain testimonies. This in turn leads to more arrests and coerced plea bargain deals, as Moro described in his 2003 article about Mani Pulite. During this process, Brazil’s 5 largest engineering companies are destroyed and Petrobras loses billions of dollars in value. Hundreds of thousands of jobs are destroyed as executives make personal deals in exchange for huge sentence reductions. In the case of Odebrecht construction company alone, 70 plea bargain deals are made in which the company agrees to pay salaries for the executives who testify for the next 15 years. 100,000 Odebrecht employees, who have not committed any crime, lose their jobs without receiving anything comparable to the 15 years of paychecks going to the executives. By May 2017, Odebrecht has R$47 Billion in debt (in the case of Odebrecht alone, the debt caused by investigators paralyzation of the company, including that to public banks, is several times larger than the total amount recovered by the Lava Jato investigation). This debt is deferred pending the selling off of assets that remain in company control, such as highway concessions and Braskem Petroleum refinery company. By October 2017, the companies investigated by Lava Jato have sold off R$100 billion in assets. And for those who believe that all of this damage was worth it if powerful people ended up in jail, how many of these corrupt executive are actually doing jail time? Only former company director Marcelo Odebrecht, who is under house arrest. Nobody is in jail. Well, maybe some of the 100,000 people who lost their jobs have entered a life of crime and are now in jail, but not as part of Lava Jato.

January 2016 – Moro invents an arbitrary connection between an apartment in Guarujá as part of the “Triple X” phase of Lava Jato. It is supposedly related to a business that was the center of a money laundering investigation in Panama, Mossack & Fonseca, but this is only used as an excuse to get to Lula. It’s never mentioned again.

March 14, 2016 – There is a disagreement between prosecutors in São Paulo and the Paraná Federal Court over the beach-side apartment case involving Lula. A São Paulo judge only transfers authorization over the case involving Lula and his wife Dona Marisa to Moro. The other defendants remain in São Paulo and are totally exonerated due to lack of evidence.

March 16, 2016 – Lula is appointed Chief of Staff in the Dilma Rousseff government. This means his case would have to be investigated by the Federal Attorney General’s Office and judged in the Supreme Court. Sérgio Moro leaks illegally recorded phone conversations between Lula and Rousseff, and phone conversations made by his defense lawyers. Moro’s lawyers later say the conversations were “accidentally” recorded, despite the fact that they were advised that they were engaged in illegal activity three times by the phone company. Furthermore, they leaked the illegally recorded phone conversation between Lula and the President of the Republic to Globo TV network, which by any legal parameter constitutes a crime.

September 2016 – Michel Temer is now President and the 4th Federal Regional Court (TRF-4) decides by 13-1 that Moro will not be punished in any way for committing the crime of leaking an illegal recording of the President of the Republic to the media. Lava Jato, it rules, will be an exceptional investigation that does not have of follow “normal” rules. The decision cites a text from former Supreme Court Minister Eros Grau, in which he quotes a book by Giorgio Agamben entitled The State of Exception. In the passage quoted by Grau, Agambem cites Carl Schmitt’s explanation of how the 3rd Reich applied law by exception. Schmitt does not recommend doing this – the passage was written to explain how the law worked in Nazi Germany. This is the theoretical basis used by the TRF-4 to authorize Lava Jato to operate above the law – Carl Schmitt’s description of law in Nazi Germany.

July 2017 – Moro convicts Lula in the Triplex apartment case. The Public Prosecutors argument that there was a crime (that money laundering took place as internal financial compensation by OAS construction company during the construction of the building in Guarujá in exchange for three contracts), is not clearly connected to Moro’s argument for conviction (that a slush fund was set up for bribes related to one of the three government contracts). This later argument only popped up at the end of the trial, during testimony by Léo Pinheiro – during his second preventative imprisonment (ordered by Moro) – when he changed lawyers (according to the press at the time, this was done because of pressure from the prosecution) and had his sentence reduced. Leo Pinheiro did not produce any proof to back up his story. During the final arguments, the Public Prosecutors insisted on their original argument even though it contradicted the story built by Moro. It is an unusual situation. A Judge creates his own accusations, built and validated only on the basis of a single plea bargain testimony by a jailed co-defendant who is in the process of successfully negotiating a 70% sentence reduction. Moro also rejects the requirement that Lula has to have committed a specific act of corruption or signed or acted in any of the contracts, by repeatedly citing Rosa Weber’s Mensalão ruling, which was probably written by him (these are only two of many problems with Lula’s conviction, which has already inspired several books).

January 2018 – Lula is convicted in the fastest progression between first and second appeal in the history of Lava Jato. In denying appeal, the three judges make the only unanimous, absolute decision in the history of the Lava Jato investigation. This decision accelerates the process of imprisonment by denying any room for the defense team to submit any motions for clarification.

August 2018 – Supreme Court Minister Luiz Barroso changes the Electoral Court’s jurisprudence in order to quickly bar Lula’s candidacy for the presidency before the period of free electoral commercial airtime begins. His ruling has nothing to do with the “Clean Slate” law, which the Brazilian press tries to use to justify the move. The basis of his ruling is that Lula had a fair trial and that he cannot suffer irreparable damage by not running in the elections, despite the legally binding UN Human Rights Committee ruling that he has a right to run for office. To justify this, Attorney General Rachel Dodge contradicts everything she has ever said about international law, arguing that Brazil should not obey the guidelines of a signed international treaty (with the UNHRC). The Superior Electoral Court rules 6 x 1 that Brazil does not have to obey the treaty. The Supreme Court then bars Lula’s candidacy despite the fact that, 6 weeks before the election, he is leading the polls with a higher level of support than all other candidates combined.

October 2018 – With Lula removed from the race and prevented from speaking to the press or campaigning for his last minute replacement candidate, Fernando Haddad, Bolsonaro wins the election and immediately offers Sérgio Moro a position as “Super justice Minister”. Moro accepts and resigns as judge. The Times of London sums it up as follows, “Bolsonaro nominates judge for high level position who imprisoned his rival”. In many countries around the world if a judge ever accepts a job in a company that his rulings benefited, even years later, he would be arrested.

Moro’s role in Lava Jato is temporarily substituted by Gabriela Hardt, a public admirer of Moro and public critic of Lula. Moro defends his decision saying that it is not his fault if Lula was convicted for “committing crimes” and that it was his obligation to convict him if he had committed crimes.

Who said that Lula ever committed any crime? Moro.

What was the crime committed by Lula which resulted in his conviction, according to Moro? After years of investigation, Moro convicted him for committing an “undetermined act”.

What did his supposedly steal? An apartment which was listed as belonging to OAS construction company, and used by the company as collateral for an OAS financial operation.

In other words, by any criteria – monetary, use, finance, documentation, and relation to other lawsuits, the property belonged to OAS. In fact, the apartment was later seized by the courts from OAS to justify the conviction.

January 2019 – A new judge is chosen by the TRF-4 to take over the two remaining cases related to Lula which were overseen by Moro.

February 4, 2019 – Moro presents a package of policy measures to Congress. Several of them, if passed, would legalize practices and strategies used by the Lava Jato taskforce which, if they had been legal at the time, would not now have to be legalized. These include:

– Imprisonment before appeals processes are completed
– Imprisonment after second appeal is denied
– Informal cooperation (meaning secret and not following protocol) between investigators in different countries, which is absurd in terms of sovereignty (US Asst. Attorney General Kenneth Blanco admitted publicly, on video, that they provided informal support in the case against Lula).
– Wiretapping defense lawyers’ phone conversations, which Moro authorized against Lula’s legal team even though it was illegal
– Freezing illicit assets (Moro even froze the estate of Lula’s deceased wife Dona Marisa to prevent the will from being executed), demanding that after his assets are frozen the onus falls on the citizen to prove that they were acquired legally (and that he will have to do this with no money to pay for lawyers since his assets have all been frozen).

Most of the measures promoted by new Justice Minister Moro are unconstitutional, with some contradicting specific articles of the constitution. The increased admissibility of coerced plea bargain testimony as evidence would change the nature of Brazilian law based on adapting part of the Anglo Saxon model.

But not everything. Because in Anglo-Saxon law the Public Prosecutors are not independent, don’t receive the position for life and the judge who oversees investigations is barred from ruling on them. Moro is not interested in changing these measures.

February 6th, 2019 – Judge Gabriela Hardt, in the final days before she was scheduled to be pulled off the case, issued a ruling convicting Lula of a second crime, days before they replaced her with another judge. Her decision is based primarily on earlier decisions by Moro and the TRF-4 during Lula’s first conviction. There are citations followed by their citations, remembering that these rulings were based on the Mensalão ruling that Moro worked on.

There is no causal nexus between the contracts listed and any action by Lula, but they don’t need it because he was already judged and can be convicted. There is no specific crime, but they don’t need one, because in 2012 the Mensalão ruling allowed convictions without a specified crime (there was another argument about the concept, vetoed in the constitution, of retroactive law, also known as “law in movement”, which is another concept from Nazi law. According to the Brazilian constitution the law can only be retroactively applied if it benefits the defendant. A new conceptualization in 2012 criminalized prior activities and stipulated retroactive punishment for acts that, at the time they were committed, were not illegal).

In Lula’s case, they recycled Delcidio do Amaral’s testimony, which was already thrown out for being based on lies by the Federal Public Prosecutors Office and the Brasilia Federal courts. There is no relationship between Lula and the contracts, but this proof is not needed because Judge Gebran already ruled that Lula does not need to be responsible for everything inside the Lava Jato investigation. The calculations for embezzlement that supposedly happened in relation to the contracts are not based on bank records or accounting analysis, but on the application of an estimated percentage of 3% (which was sketched out by Barusco during a coerced plea bargain testimony and taken at face value by prosecutors), which became applied to the entire case in a standardized manner, at times repeatedly applied to the same contract.

Despite no accounting audit to see if Petrobras money was used in the vacation property, no proof that Lula acted in response to the contracts listed in the accusations (in fact there was no evidence that any irregularities occurred during the contracts’ bidding processes), despite all of this Lula was convicted and ordered to compensate for the damages that were not proven, in contracts that he did not sign, that were awarded in bidding processes that were not proven fraudulent, for construction projects that he never ordered, on a vacation property that was proven he never owned.

What was proven? They proved that the companies paid money to Pedro Barusco, a middle manager in Petrobras, in relation to some of the contracts. From there, they jumped to order Lula to pay damages, an estimate based on 3% of the contract values, despite the fact that Barusco said during his testimony – which was not included in the ruling but registered in trial records – that he never spoke with Lula, made any payments to Lula or heard about any payments made to Lula.

And this is where we are now. Lula is in jail, Moro is reformulating the nature of the Brazilian state and the 1988 Constitution, Bolsonaro is president and says that all he needs is a corporal and a soldier to shut down the Supreme Court.