Operation Car Wash: A Tale of Two Sergio Moros

Judge Sergio Moro’s Curitiba task force, its parallel power and four-year influence on Brazilian politics and economy.

By Rodrigo Tacla Duran*

Gag. In Portuguese it’s a feminine noun that is synonymous with a muzzle, cloth or any object put in the mouth to impede someone from speaking or screaming. It is also a verb that means the use of force to impede someone from speaking. The short and precise definition from the Aurelio dictionary reveals that gag is the sister of brutality and the child of authoritarianism and intolerance. On June 2, the lawyer Renato Moraes published an article in O Globo newspaper in which he exposed the harsh reality of a Brazil where the Judiciary has set a bad example by scorning the law and the Constitution. The brilliant legal scholar wrote, “we’ve arrived at the edge of an authoritarian precipice. There are those who unabashedly present the rationale that in conflicts between the Constitution and a vague popular will you should side with the people, as if the Constitution was not our only protection against authoritarianism.”

In his criticism of judicial populism, Moraes says that the public opinion is the “beloved daughter” of the published opinion. It is, he says, connected in real time to the means of communication with an aggravating factor: in this era of big investigations, the published opinion comes in a prepackaged form, complete with leaks from the public prosecutor’s office, the police and even judges. A large part of the press has stopped investigating to ensure the contradictory and transformed into a docile communications channel poisoned by those who decide to do justice by ignoring the Brazilian Constitution and the laws, instead applying legal norms that were voted on and approved by the United States Congress.

In this Brazil where lower court judges try to apply American laws, prosecutors insult Supreme Court Ministers as if they were in Maracana or Itaquerão football stadium and plea bargain testimonies are selective, I suddenly find myself in an unusual situation: I have been barred from testifying by orders from Judge Sergio Moro. I imagine that a situation like this could have happened during the Brazilian New State of the 1930s, or during the Military Dictatorship, but it is inexplicable in a democracy. In addition to being illegal, it is unfair because it violates the defendant’s right to present proof from witnesses who they deem important for their defense. The only two times in which I was heard and allowed to present my version about certain facts were on November 30, 2017, during the Congressional investigation of the JBS meat packing company, and on June 5 of this year, to the Congressional Human Rights Commission. The Public Prosecutors Office showed no interest in any facts I presented in either case.

My testimony was heard by representatives of the justice systems in Peru, Andorra, Switzerland, Argentina, Ecuador, Mexico and Spain. Among the direct and indirect consequences of these testimonies, an ex-minister from Ecuador was arrested, a Peruvian president resigned, and Uruguay extradited an ex-employee of BPA Bank to Andorra. These events were all widely covered in the international press. But, as if none of that were relevant, I continue to be prohibited from testifying in the Brazilian Justice System. I was never allowed to testify even though ex-President Lula’s defense team summoned me 5 times.

Judge Sergio Moro recently dismissed a request from Marcelo Odebrecht’s defense team to hear the lawyers Monica Odebrecht, his sister, and his brother-in- law Mauricio Carvalho Ferro. A hearing from the Odebrecht lawyer Marta Pacheco was deferred, but with due respect for the prerogative of professional confidentiality. It is correct that that everyone’s prerogatives should be respected, including professional secrecy. But in doing this you cannot apply two standards to two different people. When I worked for Odebrecht, I dealt with these three professionals on the same issues that the judge recognizes deserve protection. Nevertheless, the Curitiba task force didn’t have the same zeal for the prerogatives when they dealt with me. To the contrary, they criminalized my work as a lawyer and pressured me the entire time to release the same confidential information that judge Sergio Moro had decided to protect in other cases.

Over two years ago I spontaneously approached the Car Wash task force in Curitiba. I personally met with the prosecutors on three occasions. I did not reveal any confidential information about any client. In all of the meetings, I was treated as someone who had already been judged and condemned. The only thing left was for me to be arrested. I have been a lawyer for more than 20 years. I looked at that situation and thought: this is not possible. How can they condemn me without a trial, without proof, and without a sentence? The prosecutors from the Curitiba task force never wanted to listen to me, to know what I had to say, or give me the opportunity of contradiction. They threatened me with pretrial imprisonment the entire time. It is humiliating to be accused of crimes you did not commit and to be publicly insulted and and disqualified.

By not giving me a chance to defend myself, Judge Sergio Moro ignored the Constitution, the Organic Law of the Magistrate, the Penal Code, the Penal Process Code, the Law Statute and the UN’s Human Rights Statute. It even ignored the laws from the United States the he cares so much about because nobody there is condemned without proof or the right to a defense. Kant taught that injustice is an action that impedes the freedom of the other and, in this specific case, I refer to the right of a full defense. Therefore, no judge can adopt conduct that is different from what is proscribed by law, even if he disagrees with it. Injustice is a choice and justice is a responsibility. There is no shortcut for those who respect the rule of law. To condemn, you need to investigate, prove and contradict. It takes work and can take a long time but it is the correct thing to do. In my case, they never presented any proof against me, and investigations against me were dismissed in Spain for lack of proof.

There are serious issues that limit not only my right of defense but that of many others. The first of these is the disappearance of the São Paulo Federal Police’s Investigation 186/2016. It simply disappeared. Part of this investigation was sent to the Parliamentary Investigation into JBS meat packing company on the occasion of my testimony. That inquiry is very important to my defense because it contains clarifications on the accusations made against me. For two months my lawyers have been trying to locate this Investigation. The São Paulo Federal Police say that they forwarded it to Curitiba. However, in Curitiba, this Investigation does not exist because nobody can say where it is. The disappearance of a Federal Police Investigation is a serious problem.

In my case, it is not the first time that something like this happened. Last year, I asked the Curitiba 1st Court of Municipal Tax Enforcement Notary Public of file a certificate stating that Carlos Zucolotto had worked as defense lawyer on lawsuits involving my family. The Notary took nearly 6 months to issue the certificate and, when it did, issued it without Carlos Zuculotto’s name. After all of these delays, the Notary informed me that the the sub-establishment granted to Zucolotto’s office had been removed from the records without any judicial authorization without communication from the involved parties. A lawyer in my office received unofficial information that the sub-establishment was removed by hand of Zuculotto himself. According to this unofficial source he alleged to have not authorized the attachment of these documents to the files. However, I have an email with his authorization for this. These very serious facts were omitted by the magistrate who, once conscious of them, should have taken measures to clarify the issue because because this is documentary evidence that would be fundamental for any eventual solicitation of impediment or suspicion of judge Sergio Moro.

For four years we have lived with two judges, two Moros. The first became a hero in Brazil and abroad for his actions in Operation Car Wash and his uncompromising position on corruption. This Moro is celebrated in auditoriums in the United States and in the Principality of Monaco. The other Moro is harshly criticized by judges and lawyers who don’t conform with his violations of prerogatives, such as in the wire tapping of ex-President Lula’s lawyers and multiple search and seizures in law offices, including mine. This Moro is also criticized by human rights defenders in and out of Brazil for the practice of limiting the right to defense and politicizing Brazilian criminal proceedings. This is Sergio Moro’s dark side.

Judge Moro first got mad at me because I was ordered to give the Internal Revenue Service the names of my Office’s collaborators and the name of the lawyer Carlos Zuculotto [who is a firm partner with Sergio Moro’s wife Rosangela and represents several Car Wash defendants] my correspondent in Curitiba, appeared on the list of service providers. This professional relationship with Zucolotto began long before any investigation started against me. At the time, I did not have the slightest idea that he had been the best man at Moro’s wedding and is a friend of his. I was obliged to give this information to the Internal Revenue Service during the course of an audit of my Office, which took two years and was extended ten times. Finally, they concluded that I did not commit any accounting errors or fiscal irregularities, much less any type of crime.

Later, in 2016, Zucolotto asked me for R$5 million in exchange for his intermediating of negotiations with the Car Wash Task Force, the content of which amounted to a sentence for a crime that I did not commit. Strangely, this inconvenient truth has never been investigated. Nevertheless there have recently been reports of the sale of protection by other Curitiba task force lawyers, which makes an investigation necessary to clarify possible cases of influence peddling, administrative advocacy or extortion.

Today those who criticize the Curitiba task force for its production of serial plea bargain testimonies are considered enemies of Operation Car Wash. Could it be that lawyers who defend their prerogatives, the rites of law and legal guarantees are now enemies of “Car Wash” and considered accomplices in corruption? Could it be that we have to be complacent with the brutality, the violation of laws and the disrespect for rights practiced by public officials? This is very similar to that which the writer Hannah Arendt defined as the banality of evil while writing about Adolph Eichmann’s trial in 1961.

The Car Wash operation has become a center of political power capable of destroying reputations, businesses and institutions. In reality it is a form of parallel power which has, for four years, influenced the country’s political and economic management without having a mandate or the qualifications to do it. It’s pressured Congress, the Executive and the Federal Supreme Court, trampled on lawyers constitutional prerogatives and criminalized defenders as if they were the only legitimate people to have a monopoly over ethics and morals.

When I was listed as a witness for ex-President Lula, I became the target of attacks and was publicly condemned by prosecutors from the Curitiba task force. At that moment, I understood that I would never be accepted as a witness, not for ex-President Lula or President Michel Temer, in whose accusations from the Federal Public Prosecutors my name is cited. I will not be a witness for anyone because this is the wish of Judge Sergio Moro and the task force prosecutors. They cite the Law of Abuse of Authority and the Gag Law, but they don’t have the slightest qualms about gagging witnesses capable of threatening their theories and prosecution strategies.

Even though he knows that I was never condemned for anything and had my extradition request denied by the Spanish Judiciary, Judge Sergio Moro offended me on live national TV on the Roda Viva program. Without the slightest ceremony, he broke the decorum required in article 36, paragraph 3 of the Organic Law of the Magistrate, and prejudged and condemned me.

If he didn’t listen to me, never gave me an opportunity to defend myself and hasn’t judged me because he doesn’t have the jurisdiction for this, he can’t and shouldn’t, out of respect for the law, make a value judgment, prejudge, defame or slander me. He is a judge, not an accuser.

Justice is an asset in democratic societies that must be exercised with authority, never with authoritarianism. When a judge makes a public opinion against someone who is a defendant in his or her court, this is prejudicial and violates one of the most basic principles of human rights, namely, the right to an impartial, exempt, technical trial without any emotions of any kind.

Sergio Moro may have barred me from testifying, but he won’t be able to shut me up.

*Former lawyer for Odebrecht Engineering Company, currently based in Spain.

This article first appeared in Conjur and can be read in its original Portuguese here