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Brazilworks: Sergio Moro, The #Vazajato, And Reflections On Stephenson

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30 de julho de 2019 : 14h18

On Brazil Works

Sergio Moro, The #Vazajato, And Reflections On Stephenson
July 22, 2019

Matthew Stephenson’s The Global Corruption Blog is the recent epicenter of discussion and debate on the behavior of Justice Minister and former judge Sergio Moro in light of The Intercept’s #vazajato revelations. Stephenson is a notable authority on corruption and anti-corruption efforts, and his successive posts (with open comments) on the #vazajato reflect the importance he gives to the question of impartiality and due process in the Lava Jato prosecutions and convictions between 2014 to 2018 and directly involving former judge Moro. I do not personally know Prof. Stephenson but I applaud his transparency, his efforts to detail his arguments, and his attention to this brewing scandal in Brazil.

In his latest post, “The Biggest Beneficiary of the Lava Jato Leaks Is Jair Bolsonaro,” Stephenson argues that The Intercept revelations based on leaked conservations among the Lava Jato prosecutorial taskforce and judge Moro may in the end benefit President Jair Bolsonaro over his opponents. Stephenson writes,

“I worry that the biggest beneficiary of VazaJato may be President Bolsonaro, and the biggest loser may be the Brazilian left. I say “worry” because I view Bolsonaro as a dangerous bigot and wanna-be authoritarian, one who is also likely to worsen Brazil’s corruption problem.”

He identifies four reasons behind his concern.

  1. The Intercept revelations undermine Sergio Moro as Justice Minister and one of the most important checks on President Bolsonaro’s authoritarian reflex and “lawless, corrupt, or outrageous tendencies.”

Here Stephenson argues that while Moro may demonstrated poor judgment by joining Bolsonaro’s cabinet, the move did place the former judge in position to constrain the worst of the president’s tendencies. That is, Moro could advance the anti-corruption campaign (including new legislation) while preventing the president from intervening in ongoing corruption investigations and prosecutions. Accordingly, #vazajato undermines this check and balance effect by undermining Moro’s popularity and credibility.

Stephenson’s reasoning assumes that Moro is a just and decent person who works in good faith, whether in his capacity as judge during the Lava Jato trials or as Justice Minister. With respect to The Intercept’s revelations, he finds the evidence of judicial misconduct “less clear” than The Intercept and others suggest, and finds that claims of Moro’s “ideological bias especially flimsy.”

In this blog post, Stephenson does not treat earlier reporting and debate of Moro’s judicial misconduct, including Alex Cuadros’ fair minded piece for The Atlantic on February 2, 2018. Cuadros investigates the aftermath of Lava Jato and reports,

“In March 2016, then-President Rousseff appointed Lula to her cabinet. Moro reacted by releasing a secretly recorded conversation in which she implied that the purpose of the appointment was to shield Lula, her mentor and ally, from prosecution. For exposing a private conversation with a sitting president, Moro was reprimanded by a Supreme Court justice. But another justice blocked Lula’s appointment, and he was soon indicted. Rafael Mafei, a law professor at the University of São Paulo, was among those to suggest that Moro should be removed from the case. “Personally, I don’t have confidence in Moro’s impartiality to judge Lula,” he said. Still, it was Moro who handed down Lula’s conviction in July last year.”

Cuadros does not treat all the criticisms of the Lava Jato, but his article does pierce the cheerleading bubble and raise questions about the motives driving the zealous prosecution carried out by Lava Jato taskforce and the behavior of Moro. Geoffrey Robertson, Lula’s international roving attorney and representative at the United Nations Human Rights Committee, argued in Foreign Affairs that Brazil’s federal judicial system is chock full of authoritarian attributes that open the door to rampant judicial misconduct. In the case of Lula, Robertson finds that Moro failed to guarantee the constitutional due process rights afforded to any defendant.

It is interesting that Stephenson avoids inclusion of any early, credible and critical treatment of Moro’s judicial behavior and the Lava Jato taskforce’s practices (it may be that Stephenson has treated these in earlier posts, but without citing them). Could Stephenson’s avoidance of these earlier claims, backed up by the published #vazajato leaks, lead him to prematurely conclude that Moro worked in good faith and any mistakes were not motivated by personal or political motives?

I do not think we can draw any precise conclusions about the motives behind Moro’s conduct or conversations at this point. However, there was plenty of evidence of judicial misconduct before the #vazajato and reason enough for Moro to step aside from overseeing Lula’s first trial on corruption charges. On July 13, 2017 I wrote of the Lula X Moro confrontation,

“Judge Moro has zealously pursued the former president through Brazil’s odd system for Federal judges that allows them to act as prosecutor, jury and judge all together in a confusing whirlwind of conflicting institutional interests. Rather than tread lightly and guarantee constitutional due process, Judge Moro used every power under his authority to publicly condemn Lula before the trial began, and may have engaged in unethical or illegal acts related to the wiretapping of then President Dilma.”

Also, I was increasingly concerned over Moro’s national and international appearances, some of which were financed by organizations with a direct interest in the politics of Petrobras and the impeachment of former President Dilma Rousseff of the PT. As it stands, Moro and chief prosecutor Deltan Dallagnol pursued both personal and political ends through their questionable conduct related to the Lava Jato prosecutions and convictions. I do not understand why Prof. Stephenson would give Moro the benefit of the doubt at this point. Clearly, The Intercept revelations indicate that Moro did not act in good faith and was motivated by values quite distant from upholding constitutional due process.

If Stephenson chose not to extend the benefit of the doubt, then his reasoning regarding Moro and the #vazajato might be very different. Cautious skepticism makes it much easier to understand Moro’s transactional agreement to serve in the Bolsonaro government, and agreement to provide greater credibility to the new government in exchange for the next seat on the Supreme Court bench. Just the appearance of such a quid pro quo should be sobering to those still inclined to believe that Moro is not a politician and is a decent man.

2. Second, Prof. Stephenson argues that the implicit assertion that anti-corruption investigations like the Lava Jato are politically motivated, and that the country’s “legal and judicial institutions are themselves biased and corrupt, helps Bolsonaro more than the PT or other left-wing parties right now.”

The professor and many others logically assume that the leaks undermine the credibility of Brazil’s legal system and the federal judiciary. They may be correct, and no one can blame Brazilians for lowering their trust in these essential democratic institutions. Yet, there exists another possibility. Brazilians who share democratic values, whether they are conservative, liberal or social democrat, are increasingly aware of the intersection of politics and the judiciary, opening the way to greater civil society efforts to reform the Public Ministry and Judicial branch to put the squeeze on judges and prosecutors who illegally conspire to achieve a conviction or plea bargain. Yes, the immediate impact of the leaks on Moro’s credibility could make the struggle for accountability more difficult in the short term, but there are no alternatives for a state governed by the rule of law.

There is also a third argument than counters Stephenson’s worrisome outlook for the Brazilian left. If everyone is corrupt, then a majority of voters will elect those candidates and parties who redistribute income away from the wealthy and toward a majority of much poorer workers and their families (the rouba mas faz effect).

Stephenson may be correct, but the alternative outcomes are just as likely. We will not know until the municipal elections in 2020 and the general elections in 2022.

3. Third, Stephenson continues his line of thinking to suggest that The Intercept’s revelations frame anti-corruption efforts as the singular domain of conservatives in Brazil.

Stephenson does not offer any evidence for this assertion. It would be difficult because Stephenson admits that he does not read Portuguese. To advance his argument he would need to understand the written and voiced narratives that are whirling around Minister Moro in recent weeks. Stephenson prefers to offer his critique of the left with respect to its messaging on the Lava Jato and the recent leaks. This is the weakest link in Stephenson’s piece.

Like any Revelation, Investigation and Prosecution (RIP), the #vazajato challenges established narratives and opens up space for reinterpretation of the facts on the ground. At this point no one political force has clearly replaced the old narrative, but Brazilians are deepening their understanding of the Lava Jato, its direct consequences for economic development, the behavior of the Supreme Court with respect to both due process and corruption, and finally, Moro himself. The eye of this whirlwind is Lula, as Stephenson indicates, but the professor sweeps the Lula effect under the rug without properly placing his conviction by Moro in legal, historical or electoral perspectives. In the end Lula may not have the last word, but for now it is clear that Brazilians are searching for the real truth, and if they find that Lula was improperly prevented from registering his presidential candidacy in 2018 then there will be hell to pay.

Regardless, the search for the truth will likely lead to greater efforts to squeeze politics out of the judiciary. As Stephenson indicates, the struggle for accountability is historically the domain of the Brazilian left, not the conservative-nationalist politics that triggered the remarkable rise of the PSL in the 2018 elections. In power, Bolsonaro and his PSL have not yet demonstrated a principled commitment to fighting corruption. To the contrary, the corruption allegations against Senator Flavio Bolsonaro and Minister of Tourism Marco Alvaro Antonio (PSL) substantiate Stephenson’s concerns and may lead the opposition to innovate stronger anti-corruption legislation. There are plenty of opportunities for the Brazilian left to reassume its historical mandate to fight corruption and privilege.

4. Stephenson places the last brick of his argument at the feet of the Workers Party and its efforts to retain Lula as the center-piece of national politics. He argues that #vazajato contributes to the “Brazilian left’s unhealthy, counterproductive obsession with Lula.”

Stephenson offers this reason from a sympathetic angle and through a political analysis. He argues that

“Bolsonaro is one of the biggest beneficiaries of anything that gets the opposition to spend its time focusing on the past, and on Lula, rather than on the future.”

We can all sympathize with Stephenson’s implicit directive that the Brazilian left spend more time on envisioning Brazil’s future rather than dwell on its past. Yet, it is nearly impossible to think about the future without understanding Lula’s historic role and his consequential presidency (2003 to 2010). Moreover, we cannot clearly understand President Lula’s success without understanding how Brazil operates and the underlying conditions that permitted the first social pact that included all Brazilians without exception (Brasil para todos).

One important condition for social inclusion was the deal with the devil that we now call Lava Jato. It is inconceivable that Lula’s government could expand opportunities to all Brazilians without partially coordinating efforts to finance the very expensive electoral campaigns of the PT and its more clientelistic allies (many of which now support the Bolsonaro government). Yes, I just said it. Brazilian social democracy was dependent on crony capitalism under Lula and Dilma. No wonder the Brazilian left is thinking through Lula and his legacy since there is not a clear path for restoring social democracy in Brazil.

Stephenson and many others are correct to suggest that Bolsonaro was the biggest beneficiary of the Lava Jato. Yet, It is highly unlikely that Bolsonaro and Moro can make sense of the experience and the fallout of the #vazajato to double down on fighting corruption. Moro now seeks protection from Bolsonaro and his PSL and it appears that he intends to shield the Bolsonaro family and its allies from corruption allegations. This is the decision of a man who knows that further leaks will lead a majority of Brazilians to conclude that his judicial misconduct is as corrupt as those rightly convicted of Lava Jato related crimes.

Bolsonaro and his PSL cannot save Moro from his hypocrisy. Besides, President Bolsonaro has other issues to grapple with, including his family’s penchant for petty corruption and his government’s preference for unforced errors and high-profile incompetence. Stephenson will have to wait for the 2020 municipal elections to test his hypothesis about the aftermath of the #vazajato. It is just too early to count the Brazilian left out. Rather, mayoral candidates from the PT and its allies may win the larger cities and make in-roads into the smaller towns of pivotal states like Minas Gerais, Rio de Janeiro and Sao Paulo. If the Bolsonaro government is not seen as effective in arresting economic decline and unemployment then the Brazilian left could also make gains in the presently conservative states of Parana, Rio Grande do Sul and Santa Catarina. Democracy surprises.

I share Prof. Stephenson’s observation that the Brazilian left needs to rehabilitate to effectively fight for accountability and equality on behalf of all Brazilians. Yet, I also understand and welcome the fact that Lula will inspire this effort and may play a role in guiding it. He is the central historical figure in Brazilian social democracy and his impact on politics, even from his jail cell, should never be underestimated.

I also share Stephenson’s concern that Bolsonaro may use the #vazajato moment to exercise his authoritarian reflex. However, we should all understand that Bolsonaro was likely to go rogue with or without the #vazajato and Moro. Moro knew this, but he was clearly focused on the transaction that would eventually land him a seat on the Supreme Court.

I have thought about Stephenson’s reasoning, and his arguments lead me to a critical question moving forward.

Will the combination of the Lava Jato, the Bolsonaro government, and The Intercept revelations galvanize public opinion and a political coalition that can advance the struggle for accountability and equality or is Stephenson right to worry about the future of Brazilian democracy?

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