Waithera Junghae
13 June 2019
Brazilian lawyers have adopted a “wait-and-see” attitude to articles published by an online news publication that claim Sérgio Moro, the former judge in charge of Operation Car Wash, improperly directed the investigation.
News organisation The Intercept published an article on 9 June detailing messages that show Moro “repeatedly counselled” Deltan Dallagnol, the prosecutor in charge of Operation Car Wash, on how to steer the investigation by suggesting when prosecutors should conduct raids, providing them with advanced knowledge of his decisions and by offering constructive criticism to prosecutors about their filings.
“Such conduct is unethical for a judge, who is responsible for maintaining neutrality to guarantee a fair trial, and it violates the Judiciary’s Code of Ethics in Brazil,” The Intercept said.
The Intercept also reported that the documents contain evidence that show prosecutors had “serious doubts” about whether there was enough evidence to establish a case against ex-president Luiz Inácio Lula da Silva.
Lula was sentenced to 12 years in jail on corruption and money laundering charges in July 2017 for receiving a beachfront triplex apartment from a contractor as a kickback for facilitating contracts with Petrobras.
Moro, who is now Brazil’s justice and security minister, oversaw Lula’s case, and had overseen Operation Car Wash since 2014 until he joined government in January. Brazil’s Superior Court of Justice reduced Lula’s sentence to eight years and 10 months in April after reportedly finding the previous sentence “excessive”.
The news organisation said that on 9 September 2016, four days before prosecutors filed an indictment against Lula, Dallagnol expressed doubts over whether the apartment was in fact Lula’s and whether it had anything to do with Petrobras and urged prosecutors to find evidence of both theories.
A prosecutor subsequently sent a link to Dallagnol to an article published by Brazilian newspaper O Globo in 2010, which said that Lula owned an apartment in a coastal town in the state of São Paulo. In response, Dallagnol reportedly wrote: “I’m so horny for this O Globo article from 2010. I’m going to kiss whichever one of you find this.” The Intercept said that prosecutors used the article to establish the case against Lula.
The Intercept also reported in a separate article on 9 June that the Car Wash prosecutors, while insisting that they were apolitical and concerned solely with fighting corruption, “were in fact internally plotting how to prevent the return to power by Lula and his Workers’ Party”.
The Intercept said the articles are based on a massive archive of previously undisclosed materials, including private chats, audio recordings, videos, photos and information from court proceedings, provided to the news organisation by an anonymous source.
After the articles were published, Brazil’s Federal Prosecution Service (MPF) said that its prosecutors have been a victim of hacking.
“Several prosecutors in the task force are close friends, and in this environment, outbursts and jokes are common,” the MPF said. “Many conversations, without due context, can give way to misinterpretations. The task force deeply regrets the discomfort of those who may have felt affected.”
Moro said in a tweet on 9 June that The Intercept’s articles are based on messages obtained from prosecutors by “criminal means”.
“Careful reading reveals that there is nothing in there…,” he said in the same tweet.
Moro’s phone was hacked for six hours on 4 June and his WhatsApp and Telegram apps were accessed, according to reports. However, The Intercept said it received the materials from the anonymous source before the hack took place. The Intercept said it plans to publish more articles based on documents the anonymous source has handed over.
Most Brazilian lawyers Latin Lawyers sister publication Global Investigations Review (GIR) spoke to said it is too early to tell whether The Intercept’s claims will affect Operation Car Wash but added the reports may be used by defendants caught up in the sprawling investigation to suggest impropriety in their own cases.
João Daniel Rassi at Siqueira Castro Advogados in São Paulo said the leaks may be used by defence counsel to demand a retrial by arguing that Moro failed to be impartial. However, he said that whether defendants will be successful in mounting appeals while relying on The Intercept articles will depend entirely on higher courts.
Eloy Rizzo Neto at KLA - Koury Lopes Advogados in São Paulo said the messages contained in The Intercept articles have not been presented in their entirety but seem to indicate that Moro closely collaborated with prosecutors in the task force.
“Such an attitude is not only a breach of ethical rules, but a violation of Brazil’s due process, in which a judge should always maintain a neutral position and should not collaborate with either parties,” he said.
He added that if the messages are verified, lawyers will use the communications to challenge decisions made by Moro when he was in charge of Operation Car Wash. However, he said that in the past, defendants have found it difficult to launch appeals by challenging judges’ partiality.
Isabel Franco at Azevedo Sette Advogados in São Paulo said that while it is too early to comment on any potential effect of the leaks, she added that The Intercept’s articles have “clear political motivations”.
She added that readers should remain sceptical of the content of the messages as they have been presented so far.
“Hackers in a clear criminal action stole the disclosed conversations and it is very common that they themselves adulterate the messages by including false portions or even changing the order of the texts,” Franco said. “Any changes can only be confirmed by the victims of the attacks.”
Lawyers acting for Lula reportedly reacted to The Intercept’s articles by asking for the former president’s “full freedom” and accusing the prosecutors of political persecution.
Since his conviction, Lula has launched three appeals against his conviction and sentence in the case. Franco said that as a result of those appeals, nine judges in total have overviewed his case and upheld his conviction.
“In other words, there is nothing in the disclosed conversations that can erase the evidence of the corruption that devastated Brazil,” Franco said.
Glenn Greenwald, the award-winning journalist behind the Snowden leaks in 2013, is one of three co-founding editors of The Intercept. Greenwald’s husband, David Michael Miranda, is a federal congressman for Brazil’s Socialism and Liberty Party representing the state of Rio de Janeiro.
This article was originally published by Latin Lawyers sister publication Global Investigations Review (GIR) on 10 June.