Anti-corruption, Authoritarianism and the Arrest of a Governor

Rio Governor Luiz Fernando Pezão was not very popular, but his evidence-free preventative imprisonment by the Federal Police may be an ominous foreshadowing of what to expect under a totalitarian, militarized Bolsonaro government.

By Gabriel Deslandes

In an unprecedented show of power, the Federal Police arrested the standing governor of Rio de Janeiro, Luiz Fernando Pezão (MDB) and denied him bail last November 29th. Pezão was the main target in the Boca de Lobo investigation, which is part of the Rio Lava Jato operations, and he was arrested by federal agents inside the Governor’s Palace. On the same day, police also executed search warrants inside Palacio Guanabara, the State Capital building.

The governor was arrested by orders by Supreme Justice Court Minister and Lava Jato Rapporteur Felix Fischer, who authorized the arrest warrant for the Federal Police with the consent of the Attorney General’s Office. Pezão is the fourth Rio governor to be arrested but this case is unique because it has never happened during a governor’s term in office. Furthermore, he was only a month away from finishing his mandate, which ends on December 31, 2018 when power  will be handed over to the newly elected governor Wilson Witzel.

Pezão‘s arrest is based on a single plea bargain testimony by economist Carlos Miranda – also known as the “man with the suitcase” – the former financial operative of a criminal organization that was ruled over by ex-Governor Sergio Cabral, the political godfather of Pezão, who has also been in jail since 2016, accused of running several corruption schemes during his government (2007-2014). Pezão has been cited in investigations of Cabral since 2017, as references to nicknames for him were found in the notes of Luiz Carlos Bezzera, who was a bagman for Miranda from 2010 forwards.

In his collaboration with the Justice department, Carlos Miranda accused Pezão of receiving a monthly bribe of R$150,000 from 2007-2014. The payments were allegedly delivered to Pezão in blue envelopes, and the quantity was separated immediately after collecting bribes from government contractors. According to Miranda, the Pezão bribe, collected while he was Sergio Cabral’s Vice Governor, even included an annual “13th” salary and two, R$1 million bonuses, which were paid in 2013 to members of the criminal organization. The first bonus, according to the witness, was paid in four installments in an office in Ipanema. He says the second bonus came from the JRO Construction Company.

Attorney General Activism

In the petition sent to the Supreme Justice Court, the Federal Attorney General demanded Pezão‘s arrest, alleging that the criminal scheme that was set up by Sérgio Cabral, “remains active”. For Attorney General Raquel Dodge, Pezão was not just a member of Cabral’s scheme, he “operated his own corruption scheme, with his own financial operators,” and, for this reason, if he is allowed to remain free awaiting his trial, it could make it harder to recuperate the money, as well as allowing time to dissipate the patrimony acquired through the criminal practices.

In an interview, Raquel Dodge said that they are dealing with a “criminal scheme which has not ended”. “What we see is that one of the crimes is ongoing and being done by a criminal organization. Our information indicates that the criminal organization continues in operation, especially through money laundering, which is done by hiding or disguising money,” she said.

According to the Federal Attorney General’s Office, there are records that Pezão received more than R$25 million between 2007-2015. The amount is absolutely incompatible with the patrimony he declared to the Federal Tax Department. Adjusted for inflation, the amount would equal R$39 Million. Due to this, rapporteur Felix Fischer, who authorized the Boca de Lobo investigation, also ordered freezing R$39 million in assets.

Boca de Lobo Contradictions

In Brazil, the judiciary has authorized the preventative imprisonment of governors since 2010, understanding that the measure is needed to guarantee the regularity of investigations. Therefore, governors do not have the same kind of immunity extended to, for example, the President of the Republic. However the case of Pezão’s preventative imprisonment raises questions about the real need for such a drastic measure. According to the justifications made by the Attorney General’s Office, the justification for his preventative imprisonment – for an unspecified amount of time – is the allegation that the Governor of Rio could act to deliberately obstruct the investigations and therefore needs to be imprisoned to “preserve the public order”. This raises the question of whether there is any concrete proof that he was causing a risk to the investigation.

First of all, it is worth noting that the arrest warrant made by the Attorney General’s Office was kept confidential, even after Pezão was in jail. As criminal lawyer from the National Network of People’s Lawyers, Patrick Mariano alerted, there is a notable lack of transparency and publicity of the content of the arrest warrant for the governor of the second most populous state in Brazil. The reason for this practice, which violates the Penal Process Code and the Brazilian Constitution, is supposedly to avoid criticism and public scrutiny of a police operation. This is a surprising explanation, because it refers to the highest public official in the state, who was elected through democratic vote. It is not normal, therefore, that a governor who is exercising his mandate could be taken away in a police car, and afterwards there would only be one press conference in which the arresting parties presented their version of the facts, without explaining the content of the arrest warrant.

Furthermore, during an interview with Raquel Dodge, information was presented that the facts which led to Pezão’s arrest took place between 2007-2015, nearly 4 years ago. This is important because preventative imprisonment in Brazil has rules, as stipulated in Article 312 of the Criminal Proceedings Code: “Preventative imprisonment can be decreed as a guarantee of public order, or to insure the application of criminal law, when there is proof of crime and sufficient clues of authorship.”

However, there is no proof that Pezão acted to undermine the application of criminal law or refused to cooperate with the authorities. Faced with this lack of facts, there is a time lag between the alleged practice of the crimes by the governor and his arrest: how could a fact that occurred in 2015 pose a risk to public order in November 2018? Furthermore, no evidence was provided that Pezão was still committing the crime.

Another controversial element revealed in Raquel Dodge’s interview is the fact that at the time of the arrest, the bribe money that was allegedly passed on to Pezão had not been located by the Federal Police. As BandNews radio journalist Reinaldo Azevedo said, preventive detention in this specific case could only be sustained by what he sarcastically calls “creative law”. “Attorney General Raquel Dodge explained, in her endorsement of the Federal Police actions, that Pezão transferred a very small sum of money into his personal bank account, which would suggest that he has other means of survival,” he said. “In a double rhetorical twist used to justify his arrest, the governor could be laundering money from the crime – money which has yet to be found – and could be spending it. “

Azevedo says that the Federal Attorney General and the Federal Police are using inductive reasoning to argue that Pezão practiced money laundering simply because they do not believe that the Governor could have a small amount of money in his personal back account, even though they have not been able to find any dirty money yet. “Using this logic,” he says, “they can arrest anyone. All they need is a witness who wants to get himself out of jail to point his finger at someone else. (…) Look at the case of Pezão. It’s enough to affirm that he received R$25 million and that they don’t have any information about where the money ended up. This is used as evidence that he continues to be part of a criminal organization that is responsible for hiding the money that it is laundering.”

The Police Party Advances into the Political Chaos

Looking at the controversies in the Boca de Lobo investigation and other Federal Police and Attorney General actions it is worth asking: whose interests does arresting the governor at this moment serve? What will be the impact of this action in the process of criminalization and judicialization of politics that is underway in Brazil? Is there a relationship between these coercive actions made by the Judiciary and the implementation of the neoliberal economic agenda, not just in Rio but in the entire country?

The interference and political partisanship of judges, public prosecutors and the federal police is being discussed more and more in the Brazilian political debate. The decisions, practices and the institutional power of their organizations is being progressively dominated by opportunism and political convenience and perhaps here lies the answer to why the arrest warrant has been left confidential, as well as why the governor was arrested in the first place: they are no longer following the fundamental principles of law, favoring political idiosyncrasies and needs instead.

As criminal lawyer Patrick Mariano says, another aspect of the act of imprisonment and its symbolism is the meeting between criminal populism and the economic consolidation in a state devastated by years of financial crisis, political scandals, destruction of its productive chain, unemployment and chaos in public security. “In the Brazilian political context – especially Rio de Janeiro – which reveals itself in the form of a deep economic and social crisis materialized in the backwardness of government worker salaries, a disaster in public health, education and security(in which military intervention is the culmination), scapegoating is a handy tool to atone for all evils.”

Public exposure and the ritual of character assassination is stimulated and strengthened by the media as well. The coverage of anti-corruption operations by Rede Globo, Brazil’s largest media conglomerate, is proving to be a mixture of sadism and spectacle. This builds a belief in the popular imagination that the whole economic crisis is not the result of the imposition of governments submission to the interests of Capital – which obviously includes Sérgio Cabral and Pezão themselves – and of choices that led to the reduction of the Welfare State, but that it was caused by a single person.

From the Anti-Corruption Battle to Authoritarianism

The spectacle of preventative imprisonment for a democratically elected, standing governor ends up not only serving to stigmatize and criminalize politics. It also serves as a convenient excuse to deepen the neoliberal model. The greatest proof of this is president-elect Jair Bolsonaro’s declaration congratulating the Lava Jato task force for arresting Pezão. “Lava Jato is here. Congratulations to the Federal Police and the Attorney General’s Office for really fighting against corruption in Brazil. Things will get worse for the corrupt starting next year when we take office and Moro will have a carte blanche in the Justice Ministry.”

The great irony in this case is that Bolsonaro himself, in an interview, said that he was going to vote for Pezão for governor of Rio in 2014. “Pezão called me and I have already spoke a few times with him,” he said. “I will support him. I believe that he will be a balanced governor.” Bolsonaro’s son Flávio is a state congressman who voted in favor of all of the bills introduced by governors Sergio Cabral and Pezão and gave continual support for the MDB political group within the state legislature.

When questioned by the press about his past support, the president-elect downplayed it. “What is the problem, boy? Even marriages go wrong. Why can’t a politician? I lament this current episode [of Pezão’s imprisonment]. I lament that the politics in Brazil and in Rio de Janeiro have engaged with corruption. Those who made mistakes will pay the price now.”

In any case, Bolsonaro’s most recent decisions, including the appointment of Judge Sérgio Moro as Minister of Justice, demonstrate the consolidation of the Lava Jato investigation’s legalistic-police methods. More than that, it was this judicialization of politics, headed by Brazilian state agencies acting as parallel forces, which helped create the social climate that contributed to the election of Bolsonaro in the first place. And in the Bolsonaro government, the Lava Jato team sees an opportunity to definitively institutionalize its lawfare practices.