Anti-corruption and Lava Jato: A problem far beyond Brazil

Eduardo Salcedo-Albarán (Director of the Vortex Foundation)

On June 9, 2019, the media revealed private conversations by the prosecutors of the Lava Jato task force in Curitiba. Among them was Judge Moro, who issued some of the most striking court decisions in Brazil’s recent political history. Beyond the talks between agents of the Public Ministry and the judge, which are contrary to the principle of impartiality with which the magistrate must act, the revelations suggest the prosecutors’ interest in reducing Lula’s political protagonism in the 2018 presidential elections. This interest leads to questions of investigative competence. These revelations have served to question the legitimacy of the investigations and sentences that have emerged from Lava Jato. In the context of Judge Moro’s agreement to be part of the Bolsonaro administration, the questions that have emerged are as relevant as they are significant.

The first sentences issued by then-Judge Moro allowed for the impediment of Lula’s participation in the 2018 presidential elections; it is possible that Bolsonaro was the main electoral beneficiary of these judicial decisions. Moro’s decision to be part of the Bolsonaro administration appears to fit into a larger strategy to neutralize Lula by election. Although Moro no longer acts as a judge, the fact that he is part of the Bolsonaro government is an insightful lens through which to interpret the Lava Jato judicial operation. This applies to future decisions of the administration and in the retrospective sense: The judicial decisions that prevented Lula from participating in the 2018 presidential elections will certainly be interpreted as the cause of any negative result of the Bolsonaro administration.

For many, Lula would not be in jail without Lava Jato; thus, Bolsonaro would not be president. Without Lava Jato, the Amazon rainforest would presently be more protected and Brazil’s main political leader would not be someone who takes pride in exaggerated misogyny. In the context of this logic and recent revelations, the question of who was corrupt becomes a secondary issue. However, the question of who was corrupt should not lose its prominence among other issues that are also important. The investigations, verdicts and decisions made in Brazil following Lava Jato allowed us to understand and begin to confront the scale of corruption in several Latin American countries. While the list of public servants and businessmen investigated or convicted in Latin America goes beyond the scope of this article, the cascading effects of the investigation are noteworthy. In Peru, for example, Lava Jato’s investigations resulted in the investigation, pre-trial detention, flight or death of the last four presidents. Alan Garcia, one of the most important political figures in Peru, committed suicide after learning of his pre-trial detention on charges of corruption related to Lava Jato.

Lava Jato’s investigations, which originated in Brazil and now extend to Latin America, allowed us to understand structures of corruption so extensive, varied and complex that it became necessary to develop new scientific and methodological landmarks to understand them. Lava Jato was not another typical case of corruption, but a phenomenon so complex that new mechanisms were needed to comprehend its depth. After two years of academic research, for example, Humanitas360 and the Vortex Foundation had to introduce the concept of “macro corruption” to define the extent and intricacy of Lava Jato’s corruption networks, as it exceed previously developed concepts in Law and Social Sciences. Since mid- 2019, it became necessary to formalize the concept of a “corruption superstructure” to differentiate the magnitude of networks that were known in 2017.

Lava Jato’s judicial investigations have also highlighted the technical and institutional limitations of each country’s justice system, which has had to investigate transnational corruption beyond its jurisdictions, methodologies and capabilities. This does not mean that everything must go on the line to advance the investigations and convictions of the Lava Jato in Brazil or any country in Latin America. In each country, the actions of prosecutors or judges who exceed their own administrative and legal boundaries or competencies must be investigated and punished by the corresponding instances. Furthermore, any improper or enforced interpretation of judicial evidence should be reviewed and corrected by higher courts. Using this mechanism, former President Lula filed a lawsuit that will certainly bring appeals before the Supreme Court, which is outside the influence of any first instance judge or prosecutor.

In the specific case of former President Lula, the facts that served as evidence in his conviction were not only evaluated by Judge Moro, but also by additional instances, including the Superior Court of Justice. The possible acts of corruption of powerful public officials and business leaders on one hand and possible misconduct of prosecutors and judges on the other are issues that require special treatment. When questions arise about the influence of prosecutors and judges on judicial decisions, superior and supranational authorities should intervene with the power to correct those decisions. In other words, demanding the proper legal and ethical conduct of prosecutors and judges is not a secondary issue, and neither is the corruption of senior civil servants. Both issues are crucial to ensure the rule of law.

Furthermore, it should be noted that when prosecutors and judges face corruption charges against the members of a country’s social elite, they are subject to both grounded and ungrounded attacks and questions. In Colombia, for example, Supreme Court justices who in the past decade condemned the massive co-optation of narco-paramilitaries and civil servants were subject to stalking and threats against them and their families, including by state public officials who wanted to maintain corrupted status quo. In Guatemala, critics accused the head of the International Commission Against Impunity of promoting a leftist agenda since 2015, when he resigned former President Otto Perez Molina for investigations of corruption. This is because the main investigators and those involved in networks of corruption belong to traditional right-wing parties. The Commission was also accused of generating an economic crisis in Guatemala as a result of investigations against businessmen involved in corruption.

However, in Guatemala as in Brazil, the economic crisis is not the fault of those who investigated and sanctioned corruption, but of those who have adopted corruption as a common practice. Corruption of civil servants has facilitated rising criminal activity in Latin America, making it one of the most violent regions in the world. These same acts also condemned the region to economic, cultural and social backwardness, or even to humanitarian tragedies, as in Venezuela and Central America. Therefore, the fight against corruption must remain an indispensable condition for the consolidation of the rule of law in Brazil and in the region. This objective should remain, as we cannot lose sight of the big picture in the process of questioning the actions of specific prosecutors and judges.