|
June 2019
from
TheIntercept Website
How and Why 'The Intercept'
is Reporting on a Vast Trove of Materials
about Brazil's Operation Car Wash
and Justice Minister Sergio Moro...
-
Part 1
How and Why
'The Intercept' is Reporting on a Vast Trove of Materials
About Brazil's Operation Car Wash and Justice Minister Sergio Moro
-
Part 2
Exclusive: Brazil's Top Prosecutors Who Indicted Lula Schemed in
Secret Messages to Prevent His Party From Winning 2018 Election
-
Part 3
Exclusive: Leaked Chats Between Brazilian Judge and Prosecutor Who
Imprisoned Lula Reveal Prohibited Collaboration and Doubts Over
Evidence
Part 1
by Glenn Greenwald, Leandro Demori, Betsy Reed
June 09,
2019
Illustration: Soohee Cho
The Intercept
A massive archive
of previously undisclosed materials
reveals
systematic wrongdoing
among powerful officials
- and the public has
a right to know.
The Intercept Brasil today published
three explosive exposés showing
highly controversial, politicized, and legally dubious internal
discussions and secret actions by the
Operation Car Wash
anti-corruption task force of prosecutors, led by the chief
prosecutor
Deltan Dallagnol, along with then-Judge
Sergio Moro, now
the powerful and
internationally celebrated justice minister for
Brazilian President
Jair Bolsonaro.
These stories are based on a massive archive of previously
undisclosed materials - including private chats, audio recordings,
videos, photos, court proceedings, and other documentation -
provided to us by an anonymous source.
They reveal serious
wrongdoing, unethical behavior, and systematic deceit about which
the public, both in Brazil and internationally, has the right to
know.
These three articles were published today in The Intercept Brasil in
Portuguese, and we have synthesized them into
two English-language
articles for The Intercept. Given the size and global influence of
Brazil under the new Bolsonaro government, these stories are of
great significance to an international audience.
This is merely the beginning of what we intend to be an ongoing
journalistic investigation, using this massive archive of material,
into,
-
the Car Wash corruption probe
-
Moro's actions when he was a
judge and those of the prosecutor Dallagnol
-
the conduct of
numerous individuals who continue to wield great political and
economic power both inside Brazil and in other countries...
Beyond the inherent political, economic, and environmental
importance of Brazil under Bolsonaro, the significance of these
revelations arises from the
incomparably consequential actions of
the years-long Car Wash corruption probe.
That sweeping scandal
implicated numerous leading political figures, oligarchs,
Bolsonaro's predecessor as president, and
even foreign leaders in
corruption prosecutions.
Most importantly, Car Wash was the investigative saga that led to
the imprisonment of former President Luiz Inácio Lula da Silva last
year.
Lula's conviction by Moro, once it was quickly affirmed by an
appellate court, rendered him
ineligible to run for president at a
time when all polls showed that Lula - who was twice elected
president by large margins in 2002 and in 2006 before being
term-limited out of office in 2010 with an
87 percent approval
rating - was the frontrunner in the 2018 presidential race.
Lula's
exclusion from the election, based on Moro's finding of guilt, was a
key episode that paved the way for Bolsonaro's election victory.
Perhaps most remarkably, after Bolsonaro won the presidency, he
created a new position of unprecedented authority, referred to by
Brazilians as "super justice minister," to oversee an agency with
consolidated powers over law enforcement, surveillance, and
investigation previously interspersed among multiple ministries.
Bolsonaro created that position for the benefit of
the very judge
who found Lula guilty, Sergio Moro, and it is the
position Moro now
occupies.
In other words, Moro now wields immense police and
surveillance powers in Brazil - courtesy of a president who was
elected only after Moro, while he was a judge, rendered Bolsonaro's
key adversary ineligible to run against him.
The Car Wash prosecutors and Moro have been highly controversial in
Brazil and internationally - heralded by many as anti-corruption
heroes and accused by others of being clandestine right-wing
ideologues masquerading as apolitical law enforcers.
Their critics
have insisted that they have abused and exploited their law
enforcement powers with the politicized goal of preventing Lula from
returning to the presidency and destroying his leftist Workers'
Party, or the PT.
Moro and the prosecutors have, with equal
vehemence, denied that they have any political allegiances or
objectives and have said they are simply trying to cleanse Brazil of
corruption.
But, until now, the Car Wash prosecutors and Moro have carried out
their work largely in secret, preventing the public from evaluating
the validity of the accusations against them and the truth of their
denials.
That's what makes this new archive so journalistically
valuable: For the first time, the public will learn what these
judges and prosecutors were saying and doing when they thought
nobody was listening.
Today's articles show, among other things, that the Car Wash
prosecutors spoke openly of their desire to prevent the PT from
winning the election and took steps to carry out that agenda, and
that Moro secretly and unethically collaborated with the Car Wash
prosecutors to help design the case against Lula despite serious
internal doubts about the evidence supporting the accusations, only
for him to then pretend to be its neutral adjudicator.
The Intercept's only role in obtaining these materials was to
receive them from our source, who contacted us many weeks ago (long
before the recently alleged
hacking of Moro's telephone) and
informed us that they had already obtained the full set of materials
and was eager to provide them to journalists.
Informing the public of matters in the public interest and exposing
wrongdoing was our guiding principle in doing this initial reporting
on the archive, and it will continue to be our guiding principle as
we report further on the large number of materials we have been
provided.
The sheer volume of materials in this archive, as well as the fact
that many documents include private conversations among public
officials, requires us to make journalistic decisions about which
documents should be reported on and published, and which documents
should be withheld.
When making these judgments, we employ the standard used by
journalists in democracies around the world:
namely, that material
revealing wrongdoing or deceit by powerful actors should be
reported, but information that is purely private in nature and whose
disclosure may infringe upon legitimate privacy interests or other
social values should be withheld.
Indeed, in our reporting on this material, we are guided by the same
rationale that led much of Brazilian society - including many
journalists, commentators, and activists - to praise the disclosure
in 2016 by Moro and various media outlets of the
private telephone
calls between Lula and former President Dilma Rousseff, in which the
two leaders discussed the possibility of Lula becoming a minister in
Dilma's government.
Disclosure of those private calls was crucial in
turning public opinion against the PT, helping to lay the groundwork
for Dilma's 2016 impeachment and Lula's 2018 imprisonment.
The
principle invoked to justify that disclosure was the same one we are
adhering to in our reporting on these materials: that a democracy is
healthier when significant actions undertaken in secret by powerful
figures are revealed to the public.
But unlike those disclosures by Moro and various media outlets of
the private conversations between Lula and Dilma - which included
not only matters whose disclosures were in the public interest, but
also private communications of Lula that
had no public relevance and
that many argued were released with the intention of personally
embarrassing Lula - The Intercept has resolved to withhold any
private communications, audio recordings, videos, or other materials
relating to Moro, Dallagnol, or any other parties that are purely
private in nature and thus unrelated to matters of public interest.
We have taken measures to secure the archive and all of its
component materials outside of Brazil, so that numerous journalists
have access to it, ensuring that no authorities in any country will
have the ability to prevent reporting based on these materials.
We
intend to report on and publish stories based on the archive as
expeditiously as possible in accordance with our high standards of
factual accuracy and journalistic responsibility.
Consistent with journalistic practice in countries where the press
operates under the threat of censorship and prior restraint orders,
as has been the situation recently in Bolsonaro-led Brazil, we did
not seek comment from the powerful legal officials mentioned in
these stories prior to publication because we did not want to give
them advance notice of this reporting, and because the documents
speak for themselves.
We contacted them immediately upon publication
and will update the stories with their comments if and when they
provide them.
Given the immense power wielded by these actors, and the secrecy
under which they have - until now - been able to operate,
transparency is crucial for Brazil and the international community
to have a clear understanding of what they have really done.
A free
press exists to shine a light on what the most powerful figures in
society do in the dark.
Update: June 9,
2019, 8:13 p.m. ET
The Car Wash task force did not refute the authenticity of the
information published by The Intercept. In a press release published
Sunday evening, they wrote,
"possibly among the illegally copied
information are documents and data on ongoing strategies and
investigations and on the personal and security routines of task
force members and their families.
There is peace of mind that any
data obtained reflects activities developed with full respect for
legality and in a technical and impartial manner, over more than
five years of the operation."
Update: June 9,
2019, 9:53 p.m. ET
Justice Minister Sergio Moro also published a note in response to
our reporting:
"About alleged messages that would involve me, posted
by The Intercept website this Sunday, June 9, I lament the lack of
indication of the source of the person responsible for the criminal
invasion of the prosecutors' cell phones.
As well as the position of
the site that did not contact me before the publication, contrary to
basic rule of journalism.
As for the content of the messages they mention, there is no sign of
any abnormality or providing directions as a magistrate, despite
being taken out of context and the sensationalism of the articles,
they ignore the gigantic corruption scheme revealed by Operation Car
Wash."
Part 2
Hidden
Plot
by
Glenn Greenwald, Victor Pougy
June 09, 2019
Former
Brazilian President Luiz Inácio Lula da Silva.
Illustration: Rodrigo Bento
The
Intercept Brasil. Photo: Getty Images
Exclusive:
Brazil's Top
Prosecutors
Who Indicted
Lula Schemed in Secret Messages
to Prevent His
Party from Winning 2018 Election
A massive
archive
exclusively
provided to The Intercept
confirms
long-held suspicions
about the
politicized motives and deceit
of Brazil's
corruption investigators.
An enormous trove of secret documents reveals that Brazil's most
powerful prosecutors, who have spent years insisting they are
apolitical, instead plotted to prevent the Workers' Party, or PT,
from winning the 2018 presidential election by blocking or weakening
a pre-election interview with former President Luiz Inácio Lula
da Silva with the explicit purpose of affecting the outcome of
the election.
The massive archive, provided exclusively to The Intercept,
shows multiple examples of politicized abuse of prosecutorial powers
by those who led the country's sweeping
Operation Car Wash
corruption probe since 2014.
It also reveals a
long-denied political and ideological agenda.
One glaring example
occurred 10 days before the first round of presidential voting last
year, when a Supreme Court justice granted a petition from the
country's largest newspaper,
Folha de São Paulo, to interview Lula,
who was in prison on corruption charges brought by the Car Wash task
force.
Immediately upon learning of that decision on September 28, 2018,
the team of prosecutors who handled Lula's corruption case - who
spent years vehemently denying that they were driven by political
motives of any kind - began discussing in a private Telegram chat
group how to block, subvert, or undermine the Supreme Court
decision.
This was based on their
expressed fear that the decision would help the PT - Lula's party -
win the election.
Based on their stated desire to prevent the PT's
return to power, they spent hours debating strategies to prevent or
dilute the political impact of Lula's interview.
The Car Wash prosecutors explicitly said that their motive in
stopping Lula's interview was to prevent the PT from winning...
One of the prosecutors,
Laura Tessler, exclaimed upon learning of the decision,
"What a joke!" and
then explained the urgency of preventing or undermining the
decision.
"A press conference
before the second round of voting could help elect Haddad," she
wrote in the chat group, referring to the PT's candidate
Fernando Haddad.
The chief of the
prosecutor task force, Deltan Dallagnol, conducted a separate
conversation with a longtime confidant, also a prosecutor, and they
agreed that they would "pray" together that the events of that day
would not usher in the PT's return to power.
Many in Brazil have long accused the Car Wash prosecutors, as well
as the judge who adjudicated the corruption cases, Sérgio Moro (now
the country's justice minister under President Jair Bolsonaro), of
being driven by ideological and political motives.
Moro and the Car Wash
team have repeatedly denied these accusations, insisting that their
only consideration was to expose and punish political corruption
irrespective of party or political faction.
But this new archive of documents - some of which are being
published today in other articles by The Intercept and The Intercept
Brasil - casts considerable doubt on the denials of the prosecutors.
Indeed, many of these documents show
improper and unethical plotting
between Dallagnol and Moro on how to best structure the corruption
case against Lula - although Moro was legally required to judge the
case as a neutral arbiter.
Other documents include
private admissions among the prosecutors that the evidence proving
Lula's guilt was lacking.
Overall, the documents
depict a task force of prosecutors seemingly intent on exploiting
its legal powers for blatantly political ends, led by its goal of
preventing a return to power of the Workers' Party generally, and
Lula specifically.
Sergio Moro, Brazil's minister of Justice,
speaks
during a news conference in Brasilia, Brazil,
on
Monday, Feb. 4, 2019.
Moro
announced tougher measures to overhaul crime.
Photographer: Andre Coelho
Bloomberg via Getty Images
The secrets unveiled by these documents are crucial for the public
to know because the massive Car Wash corruption probe, which has
swept through Brazil for the last five years, has been one of the
most consequential events in the history of the world's fifth-most
populous country - not just legally but also politically.
Until now, both the Car Wash task force and Moro have been 'heralded'
around the world with honors, prizes, and
media praise.
But this new archive of
documents shines substantial light on previously unreported motives,
actions, and often deceitful maneuvering by these powerful actors.
While the Car Wash team of prosecutors has imprisoned a wide range
of powerful politicians and billionaires, by far their most
significant accomplishment was
the 2018 imprisonment of
Lula.
At the time of Lula's
conviction, all polls showed that the former president - who had
twice been elected by large margins, in 2002 and then again in 2006,
and left office with a 87 percent approval rate - was the
overwhelming frontrunner to once again win the presidency in 2018.
But Lula's criminal conviction last year, once it was quickly
affirmed by an appellate court,
rendered him ineligible to run for
the presidency, clearing the way for Bolsonaro, the far-right
candidate, to win against Lula's chosen successor, Fernando
Haddad, the
former São Paulo mayor.
Supporters of the PT and
many others in Brazil have long insisted that these prosecutors,
while masquerading as apolitical and non-ideological actors whose
only agenda was fighting corruption, were in fact right-wing
ideologues whose overriding mission was to destroy the PT and
prevent Lula's return to power in the 2018 election.
These documents lend obvious credibility to those accusations.
They show extensive
plotting in secret to block and undermine the September 28 judicial
order from Supreme Court Justice Ricardo Lewandowski, which
authorized one of the country's most prominent reporters, Folha's
Mônica Bergamo, to interview Lula in prison.
Lewandowski's decision
was expressly grounded in the 'right' of a free press, which he said
entitled the newspaper to speak to Lula and report on his
perspectives.
In his decision, Lewandowski also explained that the arguments that
had been used all year to prevent a prison interview with Lula -
namely, "security fears" and the need to keep prisoners silent -
were blatantly invalid given the numerous other prison interviews,
"permitted for
prisoners condemned of crimes such as trafficking, murder and
international organized crime."
The ruling also noted
that Lula was neither in a maximum-security prison nor under a
specially restrictive prison regime, further eroding the rationale
for a ban on interviewing him.
Up until that point, Lula - widely regarded as one of the most
effective and charismatic political communicators in the democratic
world - had been held incommunicado, prevented from speaking to the
public about the election.
Any pre-election
interview of Lula, in which he could have offered his views on
Bolsonaro and the other candidates, including the PT's Haddad, would
have commanded massive media attention and likely influenced a
decisive bloc of voters who, to this day, remain highly loyal to the
former president (which is why Lula, even once he was imprisoned,
remained the poll frontrunner).
The Car Wash prosecutors learned of the judicial decision
authorizing Folha's pre-election prison interview with Lula when an
article about it was posted in their encrypted Telegram chat group.
The panic among them was immediate...
They repeatedly worried
that the interview, to be conducted so close to the first round of
voting, would help the PT's Haddad win the presidential election.
Based explicitly on that
fear, the Car Wash prosecutors spent the day working feverishly to
develop strategies to either overturn the ruling, delay Lula's
interview until after the election, or ensure that it was structured
so as to minimize its political impact and its ability to help the
PT win.
Reacting to the decision, Laura Tessler, one of the prosecutors,
exclaimed:
"What a joke!!!
Revolting!!! There he goes hold a rally in prison. A true
circus.
After Mônica Bergamo,
based on the principle of equal treatment, I'm sure many other
journalists will also be coming… and we're left here, made to
act like clowns with a supreme court like that…"
Another prosecutor,
Athayde Ribeiro Costa, responded to the decision with one word
and numerous exclamation marks:
"Mafiosos!!!!!!!!!!!!!!!!!!!!!"
The prosecutors,
according to the time stamps on their chats, spent nearly a full day
inventing strategies for how to prevent the Lula interview from
taking place before the election or at least dilute its impact -
from speculating whether a press conference would be less effective
than a one-on-one interview, or whether they should petition to
allow all other prisoners to be interviewed to distract attention
from Lula.
Tessler then made clear
why these prosecutors were so deeply upset that the public could be
allowed to hear from the former president so soon before the
election:
"Who knows… but an
interview before the second round of voting could help elect
Haddad."
Brazilian Deltan Dallagnol,
attorney of the Federal Public Ministry,
speaks
during an interview in Curitiba, Brazil on January 26, 2017.
Dallagnol, in charge of Petrobras' multimillionaire bribery case,
said
Thursday that the denunciation of managers of Brazilian company
Odebrecht
will
duplicate the number of people under investigation.
AFP /
Heuler Andrey / TO GO WITH AFP STORY BY DAMIAN WROCLAVSKY
(Photo
credit should read HEULER ANDREY/AFP/Getty Images)
While these chats were taking place within the Car Wash chat group,
Deltan Dallagnol, the task force's chief, was also having his
own side conversation with a close confidant, a prosecutor who does
not work on the Car Wash task force.
They both expressly
agreed that the chief objective was preventing the return of the PT
to power, and the chief prosecutor - who often boasts of his
religious piety - agreed that they would "pray" that this did not
happen:
Carol PGR – 11:22:08
– Deltannn, my friend
11:22:33 – all of my solidarity in the world to you with this
episode... We're on a runaway train and I do not know what's
waiting for us
11:22:44 – The only certainty is that we're together
11:24:06 – I remain very worried about the possible return of
PT, but I have prayed frequently for God to enlighten our
population and for a miracle to save us
Deltan – 13:34:22 – I'm with you, Carol!
13:34:27 – Pray indeed
13:34:32 – We need this as a country
These admissions of the
prosecutors' true concerns - that a Lula interview could "elect
Haddad" and usher in a "return of PT" to power - were hardly
isolated confessions.
To the contrary, the
entire discussion, held over many hours, reads far less like a
meeting of neutral prosecutors than a war-room session of anti-PT
political operatives and strategists, focused on the goal of
determining the most effective way to prevent or minimize the
political impact of Lula's interview.
Athayde Ribeiro Costa, for instance, cynically suggested that
the omission of any date in Lewandowski's decision could allow the
Federal Police to purposely schedule the interview for after the
election while pretending to comply with the order:
"There's no date. So
the Federal Police could just schedule this for after the
election, and we'll still be in compliance with the decision."
Another prosecutor,
Januário Paludo, proposed a series of actions designed to prevent or
minimize the Lula interview:
"Plan A: we could
enter an appeal on the Supreme Court itself, zero probability
[of success]. Plan B: open it up for everybody to interview him
on the same day.
It'll be chaotic but
reduces the likelihood that the interview is directed."
At no point did Dallagnol,
who actively participated in the discussion throughout the day, or
any other Car Wash prosecutor, suggest that it was improper for such
political considerations to drive prosecutorial strategizing.
Indeed, this Telegram
chat group, which was used by its participants for many months,
suggests that political considerations of this kind were routinely
incorporated into the task force's decision-making process.
The prosecutors lamented among themselves that they were barred from
appealing the decision because an appeal in the name of the task
force would make them look too political and would create the public
perception that their intentions were to silence Lula and prevent
him from helping the PT win - which, as these documents reveal, was
indeed their actual motive.
But later in the day,
they learned that a right-wing party, called Novo (meaning "New"),
had appealed the decision, and that the authorization to interview
Lula was stayed by the court.
They boisterously
celebrated this news by, among other things, mocking the conflicts
that were likely to arise within the Supreme Court (STF) and
heaping praise on those responsible for trying to stop the
interview:
Januário Paludo –
23:41:02 – Just heard about it…
Deltan – 23:41:32 –
lol
Athayde Costa – 23:42:02 – The atmosphere at the STF must be
great
Januário Paludo – 23:42:11 – it's going to be a war of judicial
decisions…
Januário
Paludo added, ironically, that,
"we should thank our Prosecutors'
Office: the Novo Party!",
...meaning that this right-wing political
party, which was also contesting the 2018 election, had performed
what the task force themselves wanted to achieve by preventing Lula
from being heard.
The appeal from that party resulted in a judicial stay of
Lewandowski's interview authorization.
As a result, no
pre-election interview with Lula was permitted and he was thus never
heard from prior to the voting. Only once the election was concluded
and Bolsonaro won did the Supreme Court begin authorizing media
outlets to interview Lula in prison.
Last month, Bergamo of
Folha was permitted to interview Lula
jointly with El País Brasil, and shortly thereafter, Lewandowski granted The Intercept
Brasil's petition to interview Lula alone, the video and transcript
of which were
published by The Intercept.
Once Bolsonaro was elected president, he quickly offered Moro -
whose corruption ruling had resulted in Lula's candidacy being
barred - a newly created and unprecedentedly powerful position as
what is now called the "super justice minister," designed to reflect
the massive powers vested in Moro.
That the same judge who found Lula guilty was then
rewarded by
Lula's victorious opponent made even longtime supporters of the Car
Wash corruption probe uncomfortable, due to the obvious perception
(real or not) of a quid pro quo, and by the transformation of Moro,
who long insisted he was apolitical, into a political official
working for the most far-right president ever elected in the history
of Brazil's democracy.
Those concerns heightened
when
Bolsonaro recently admitted that he had also promised to
appoint Moro to a lifelong seat on the Supreme Court as soon as
there was a vacancy.
Now that the actual conversations and actions of the Car Wash team
and of Moro can be revealed and seen, the public - both in Brazil
and internationally - will finally have the opportunity to evaluate
whether their longtime denials of being politically motivated were
ever true.
These September 28 discussions are just the start of reporting by
The Intercept and The Intercept Brasil on this archive.
Update: June 9,
2019, 8:13 p.m. ET
The Car Wash task force did not refute the authenticity of the
information published by The Intercept. In a press release published
Sunday evening, they wrote,
"possibly among the
illegally copied information are documents and data on ongoing
strategies and investigations and on the personal and security
routines of task force members and their families.
There is peace of
mind that any data obtained reflects activities developed with
full respect for legality and in a technical and impartial
manner, over more than five years of the operation."
Update: June 9,
2019, 9:53 p.m. ET
Justice Minister Sergio Moro also published a note in response to
our reporting:
"About alleged
messages that would involve me, posted by The Intercept website
this Sunday, June 9, I lament the lack of indication of the
source of the person responsible for the criminal invasion of
the prosecutors' cell phones.
As well as the
position of the site that did not contact me before the
publication, contrary to basic rule of journalism.
As for the content of the messages they mention, there is no
sign of any abnormality or providing directions as a magistrate,
despite being taken out of context and the sensationalism of the
articles, they ignore the gigantic corruption scheme revealed by
Operation Car Wash."
Part 3
Breach
of Ethics
by Andrew Fishman,
Rafael Moro Martins, Leandro Demori, Alexandre de Santi, Glenn
Greenwald
June 09,
2019
Sergio Moro.
Illustration: Rodrigo Bento/The Intercept Brasil.
Photo:
Fabio Rodrigues Pozzebom/Agência Brasil
Exclusive:
Leaked
Chats Between
Brazilian Judge and Prosecutor
Who
Imprisoned Lula
Reveal
Prohibited Collaboration
and
Doubts Over Evidence
Judge Sergio Moro
repeatedly counseled prosecutor
Deltan
Dallagnol via Telegram
during
more than two years
of
Operation Car Wash (Lava Jato).
A large trove of documents furnished exclusively to The Intercept
Brasil reveals serious ethical violations and legally prohibited
collaboration between the judge and prosecutors who last year
convicted and
imprisoned former Brazilian President Luiz Inácio
Lula da Silva on corruption charges - a conviction that resulted
in Lula being barred from the 2018 presidential election.
These materials also
contain evidence that the prosecution had serious doubts about
whether there was sufficient evidence to establish Lula's guilt.
The archive, provided to The Intercept by an anonymous
source, includes years of internal files and private conversations
from the prosecutorial team behind Brazil's sprawling
Operation Car Wash, an ongoing corruption investigation that
has yielded dozens of major convictions, including those of top
corporate executives and powerful politicians.
In the files, conversations between lead prosecutor Deltan
Dallagnol and then-presiding Judge Sergio Moro reveal
that Moro offered strategic advice to prosecutors and passed on tips
for new avenues of investigation.
With these actions, Moro
grossly overstepped the ethical lines that define the role of a
judge. In Brazil, as in the United States, judges are required to be
impartial and neutral, and are barred from secretly collaborating
with one side in a case.
Other chats in the archive raise fundamental questions about the
quality of the charges that ultimately sent Lula to prison.
He was accused of having
received a beachfront triplex apartment from a contractor as a
kickback for facilitating multimillion-dollar contracts with the
state-controlled oil firm
Petrobras.
In group chats among
members of the prosecutorial team just days before filing the
indictment, Dallagnol expressed his increasing doubts over two key
elements of the prosecution's case: whether the triplex was in fact
Lula's and whether it had anything to do with Petrobras.
These two questions were critical to their ability to prosecute
Lula.
Without the Petrobras
link, the task force running the Car Wash investigation would have
no legal basis for prosecuting this case, as it would fall outside
of their jurisdiction. Even more seriously, without proving that the
triplex belonged to Lula, the case itself would fall apart, since
Lula's alleged receipt of the triplex was the key ingredient to
prove he acted corruptly.
Operation Car Wash is one of the most consequential political forces
in the history of Brazilian democracy and also one of the most
controversial. It has taken down powerful actors once thought to be
untouchable and revealed massive corruption schemes that sucked
billions out of public coffers.
The probe, however, has also been accused of political bias,
repeated violations of constitutional guarantees, and illegal leaks
of information to the press.
(A separate article
published by The Intercept reveals that the Car Wash
prosecutors, who long insisted 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 successful prosecution of Lula rendered him ineligible to run in
the 2018 presidential election at a time when all polls showed that
the former president was the clear frontrunner.
As a result, Operation
Car Wash was scorned by Lula's supporters, who considered it a
politically motivated scheme, driven by right-wing ideologues
masquerading as apolitical anti-corruption prosecutors, in order to
prevent Lula from running for president and to destroy the Workers'
Party.
But on the Brazilian right, there was widespread popular support for
the corruption probe, the team of prosecutors, and Moro.
The years-long corruption
probe transformed Moro into a hero both in Brazil and around the
world, a status that was only strengthened once he became the man
who finally brought down Lula.
After the guilty verdict from Moro was quickly affirmed by an
appellate court, Lula's candidacy was barred by law.
With Lula out of the
running,
the far-right candidate Jair Bolsonaro shot up in
the polls and then
handily won the presidency by defeating Lula's
chosen replacement, former São Paulo Mayor Fernando Haddad.
Bolsonaro then named Moro, the judge who had presided over the case
against Lula, to be his justice minister.
Jurists and scholars will
continue to debate the role of Car Wash for decades, but these
archives offer an unprecedented window into this crucial moment in
recent Brazilian history.
View of a truck with a portrait of Brazilian judge Sergio Moro
reading "Long live Lava Jato", referring to an anti-corruption
operation, during a protest against Brazilian former president
(2003-2011) Luiz Inacio Lula Da Silva outside the Federal Police
headquarters, where he is awaited to start his 12-year prison
sentence in Curitiba, Parana, Brazil.
Lula da Silva, the
controversial frontrunner in Brazil's October presidential election,
remained defiantly holed up Friday as a deadline for him to
surrender and start a 12-year prison sentence for corruption loomed.
A truck with a portrait of Sergio Moro reading,
"Long live Lava Jato (Car Wash),"
from April 6, 2018.
Photo: Mauro Pimentel
AFP/Getty
Images
Sergio Moro
Crosses the Line
Telegram messages between Sergio Moro and Deltan Dallagnol
reveal that Moro repeatedly stepped far outside the permissible
bounds of his position as a judge while working on Car Wash cases.
Over the course of more
than two years, Moro suggested to the prosecutor that his team
change the sequence of who they would investigate; insisted on less
downtime between raids; gave strategic advice and informal tips;
provided the prosecutors with advance knowledge of his decisions;
offered constructive criticism of prosecutorial filings; and even
scolded Dallagnol as if the prosecutor worked for the judge.
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 for Brazil.
In one illustrative chat, Moro, referring to new rounds of search
warrants and interrogations, suggested to Dallagnol that it might be
preferable to,
"reverse the order of
the two planned [phases]."
Numerous other instances
in this archive reveal Moro - then a judge, and now Bolsonaro's
justice minister - actively collaborating with the prosecutors to
strengthen their case.
After a month of silence
from the Car Wash task force, Moro asked:
"Hasn't it been a
long time without an operation?"
In another instance, Moro
said,
"You cannot make that
kind of mistake now" - a reference to what he considered to be
an error by the Federal Police.
"But think hard
whether that's a good idea… the facts would have to be serious,"
he counseled after Dallagnol told him of a motion he planned to
file.
"What do you think of
these crazy statements from the PT national board? Should we
officially rebut?" he asked, using the plural - "we" - in
response to criticisms of the Car Wash investigation by Lula's
Workers' Party, showing that he viewed himself and the Car Wash
prosecutors as united in the same cause.
As in the United States,
Brazil's criminal justice system employs the accusatory model, which
requires separation between the accuser and judge.
Under this model, the
judge must analyze the allegations of both sides in an impartial,
disinterested manner. But the chats between Moro and Dallagnol show
that, when he was a judge, the current justice minister improperly
interfered in the Car Wash task force's work, acting informally as
an aid and advisor to the prosecution.
In secret, he was helping
design and construct the very criminal case that he would then
"neutrally" adjudicate.
Such coordination between the judge and the Public Prosecutor's
Office outside of official proceedings squarely contradicts the
public narrative that Car Wash prosecutors, Moro, and their
supporters have presented and vigorously defended over the years.
Moro and Dallagnol have
been accused of secret collaboration since the early days of Car
Wash, but these suspicions - until now - were not backed by concrete
evidence.
Another example of Moro crossing the line separating prosecutor and
judge is in a conversation with Dallagnol on December 7, 2015, when
he informally passed on a tip about Lula's case to the prosecutors.
"So. The following.
Source informed me that the contact person is annoyed at having
been asked to issue draft property transfer deeds for one of the
ex-president's children.
Apparently the person
would be willing to provide the information. I'm therefore
passing it along. The source is serious," wrote Moro.
"Thank you!! We'll make contact," Dallagnol promptly replied.
Moro added,
"And it would be
dozens of properties."
Dallagnol later advised
Moro that he called the source, but she would not talk:
"I'm thinking of
drafting a subpoena, based on apocryphal news," the prosecutor
said.
While it is not entirely
clear what this means, it appears that Dallagnol was floating the
idea of inventing an anonymous complaint that could be used to
compel the source to testify.
Moro, rather than
chastise the prosecutor or remain silent, appears to endorse the
proposal:
"Better to formalize
then," the judge replied.
Moro has publicly and
vehemently denied on several occasions that he ever worked in
partnership with the team of prosecutors.
In a
March 2016 speech,
Moro denied these suspicions explicitly:
Let's make something
very clear.
You hear a lot about
Judge Moro's investigative strategy. […] I do not have any
investigative strategy at all. The people who investigate or who
decide what to do and such is the Public Prosecutor and the
[Federal] Police.
The judge is
reactive.
We say that a judge
should normally cultivate these passive virtues. And I even get
irritated at times, I see somewhat unfounded criticism of my
work, saying that I am a judge-investigator.
In his 2017 book, "The
Fight Against Corruption," Dallagnol wrote that Moro,
"always evaluated the
Public Prosecutor's requests in an impartial and technical
manner."
Last year, in response to
a complaint from Lula's lawyers, Brazil's prosecutor general - the
presidentially-appointed chief prosecutor who runs the Car Wash
investigation - wrote that Moro,
"remained impartial during the
entire process" of Lula's conviction.
Brazilian Federal Attorney Deltan Dallagnol listens,
during
the ceremony for the return of resources to Petrobras,
which
were recovered through cooperation and leniency agreements
in
connection with Lava Jato operation, in Curitiba, Brazil on December
07, 2017.
Petrobras received 654 million reais (200 million dollars)
from legal agreements related to Lava Jato operation,
the largest corruption investigation in Brazil's history,
the state-owned company reported.
Photo: Heuler Andrey
AFP/Getty Images
Doubts, Misinterpretations, and a Triplex
Beyond Moro's interjections, the documents obtained by The Intercept
Brasil reveal that, while publicly boasting about the strength of
the evidence against Lula, prosecutors were internally admitting
major doubts.
They also knew that their
claimed jurisdictional entitlement to prosecute Lula was shaky at
best, if not entirely baseless.
In the documents, Dallagnol, the Operation Car Wash lead prosecutor,
expressed concerns regarding the two most important elements of the
prosecution's case.
Their indictment accused
Lula of receiving a beachfront triplex apartment from the
construction firm
Grupo OAS as a bribe in exchange for facilitating
millions of dollars in contracts with Petrobras, but they lacked
solid documentary evidence to prove that the apartment was Lula's or
that he ever facilitated any contracts.
Without the apartment,
there was no case, and without the Petrobras link, the case would
fall out of their jurisdiction and into that of the São Paulo
division of the Public Prosecutor's office, which had argued that
it, rather than Operation Car Wash prosecutors, had jurisdiction
over the case against Lula.
"They will say that
we are accusing based on newspaper articles and fragile
evidence… so it'd be good if this item is wrapped up tight.
Apart from this item,
so far I am apprehensive about the connection between Petrobras
and enrichment, and after they told me I am apprehensive about
the apartment story," wrote Dallagnol in a group Telegram chat
with his colleagues on September 9, 2016, four days before
filing their indictment against Lula.
"These are
points in which we have to have solid answers and on the tips of
our tongues."
None of Dallagnol's
subordinates responded to his messages in the materials examined for
this article.
Prosecutors in São Paulo had
publicly questioned the Petrobras
connection in an official court filing, noting,
"In 2009-2010 there
was no talk of scandal at Petrobras. In 2005, when the
presidential couple, in theory, began to pay installments on the
property, there was no indication of an 'oil scandal'."
The Curitiba-based Car
Wash team eventually prevailed over their São Paulo counterparts and
were able to maintain the high-profile, politically explosive case
in their jurisdiction. But private chats reveal that their argument
was a bluff - they weren't actually sure of the Petrobras link that
was the key to maintaining their jurisdiction.
On Saturday night at 10:45 p.m., a day after expressing his original
doubts, Dallagnol messaged the group again:
"I'm so horny for
this O GLOBO article from 2010. I'm going to kiss whichever one
of you found this."
The article, headlined "Bancoop
Case: Lula Couple's Triplex Is Delayed," was the first to publicly
mention Lula owning an apartment in Guarujá, a coastal town in São
Paulo state.
The 645-word article,
published years before the Car Wash investigation began, does not
mention OAS or Petrobras and instead covers the bankruptcy of the
construction cooperative behind the development and how it could
negatively impact the delivery date of Lula's new vacation
apartment.
The article was submitted as evidence and, in his decision to
convict Lula, Moro wrote that the O Globo article,
"is quite relevant
from a probative point of view."
But Lula's defense
attorneys dispute that he was the owner of a triplex, claiming
instead that he purchased a smaller, single level apartment on a
lower floor, and the O Globo article presented no documentation
proving otherwise.
Moreover, there is a small but telling inconsistency between the O
Globo article and the claims of the prosecution regarding the
triplex.
The article itself puts
Lula's penthouse in Tower B, and even notes that Tower A is yet to
be built at the time the article was written:
"The second tower, if
constructed according to the project blueprints, finalized in
the early 2000s, may end part of Lula's joy: the building will
be in front of the president's property, obstructing his ocean
view at Guarujá."
But the prosecutors
alleged that Lula owned the beachfront triplex in Tower A.
Without noting this
contradiction, Item 191 of the indictment cites the O Globo article:
"This article
explained that the then President LULA and [his wife] MARISA
LETÍCIA would receive a triplex penthouse, with a view to the
sea, in the said venture."
That is the apartment
that would eventually be seized by authorities and that Lula would
be convicted of receiving.
Car Wash prosecutors used the article as evidence that the triplex
belonged to the presidential family, but indicted and convicted Lula
on a triplex in a different building - demonstrating that the
investigation was imprecise on the central point of their case:
identifying the bribe that Lula allegedly received from the
contractor.
When the indictment was revealed during a press conference on
September 14, the triplex and its provenance as a bribe from OAS
were the key pieces of evidence on the charges of passive corruption
and money laundering.
In a now infamous moment,
Dallagnol presented a typo-laden PowerPoint presentation that showed
"Lula" written in a blue bubble surrounded by 14 other bubbles
containing everything from "Lula's reaction" and "expressiveness" to
"illicit enrichment" and "bribeocracy."
All arrows pointed back
to Lula, whom they characterized as the mastermind behind a
sprawling criminal enterprise.
The presentation was widely spoofed
and criticized by critics as evidence of the weakness of the Car
Wash prosecutors' case.
https://twitter.com/o_antagonista/status/956167537347067904
Two days later, Dallagnol messaged Moro and, in private, explained
that they went to great lengths to characterize Lula as the "maximum
leader" of the corruption scheme as a way to link the politician to
the R$87 million (US$26.7 million, at the time) paid in bribes by
OAS for contracts at two Petrobras refineries - a charge without
material evidence, he admitted, but one that was essential so that
the case could be tried under Moro's jurisdiction in Curitiba.
"The indictment is
based on a lot of indirect evidence of authorship, but it
wouldn't fit to say that in the indictment and in our
communications we avoided that point," Dallagnol wrote.
"It was not
understood that the long exposition on command of the scheme was
necessary to impute corruption to the former president.
A lot of people did
not understand why we put him as the leader to gain 3,7MM in
money laundering, when it was not for that, but to impute 87MM
of corruption."
Moro responded two days
later:
"Definitely, the
criticisms of your presentation are disproportionate. Stand
firm."
Less than a year later,
the judge sentenced the former president to nine years and six
months in prison.
The ruling was
quickly upheld unanimously by an
appeals court and the sentence was extended to 12 years and one
month. In an interview, the president of the appeals court
characterized Moro's decision as "just and impartial" before later
admitting that he had not yet obtained access to the underlying
evidence in the case.
One of the three judges on the panel was an
old friend and classmate of Moro's.
Even Lula's most vehement critics, including those who believe him
to be corrupt, have expressed doubts about the strength of this
particular conviction.
Many have argued that it was chosen as the
first case because it was simple enough to process quickly, in time
to fulfill the real goal: to bar Lula from being re-elected.
Until now, most of the evidence necessary to evaluate the motives
and internal beliefs of the Car Wash task force and Moro remained
secret. Reporting on this archive now finally enables the public -
in Brazil and internationally - to evaluate both the validity of
Lula's conviction and the propriety of those who worked so
tirelessly to bring it about.
The Intercept contacted the offices of the Car Wash task force and
Sergio Moro immediately upon publication and will update the stories
with their comments if and when they provide them.
Update: June 9,
2019, 8:13 p.m. ET
The Car Wash task force did not refute the authenticity of the
information published by The Intercept. In a press release published
Sunday evening, they wrote,
"possibly among the
illegally copied information are documents and data on ongoing
strategies and investigations and on the personal and security
routines of task force members and their families.
There is
peace of mind that any data obtained reflects activities
developed with full respect for legality and in a technical and
impartial manner, over more than five years of the operation."
Update: June 9,
2019, 9:53 p.m. ET
Justice Minister Sergio Moro also published a note in response to
our reporting:
"About alleged
messages that would involve me, posted by The Intercept website
this Sunday, June 9, I lament the lack of indication of the
source of the person responsible for the criminal invasion of
the prosecutors' cell phones.
As well as the
position of the site that did not contact me before the
publication, contrary to basic rule of journalism.
As for the content of the messages they mention, there is no
sign of any abnormality or providing directions as a magistrate,
despite being taken out of context and the sensationalism of the
articles, they ignore the gigantic corruption scheme revealed by
Operation Car Wash."
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