Moro and the moral dilemma

Brazil is in the midst of convulsions right now as the investigative outlet The Intercept has begun to publish a series of private text messages that could threaten to tear the country’s social fabric apart. As has occurred throughout history, Argentina and Brazil’s historical processes are intertwined, and in comparing both it is possible to come to a macro-historical understanding that helps put in context what is going on beneath the surface.

Justice Minister Sergio Moro has claimed his place in history as a global crusader against corruption for his role in the Lava Jato (Car Wash) investigation which has led to the convictions of 159 individuals, and, of course, the jailing of the charismatic and two-term president Luiz Inacio “Lula” Da Silva, just as polls indicated he would once again win the presidency. Moro’s bold use of plea bargains or delaciones premiadas was groundbreaking in Brazil, as was the figure of “preventive prison” and the relationship with the media, key in garnering the general public’s support.

In order to utilise such innovative investigative methods, Moro and the prosecution led by Deltan Dallagnol relied on their untarnished reputations and a widespread sensation among many in Brazil, particularly in the rich urban south, that Lula’s Workers Party (PT) was a deeply corrupt organization that was taking advantage of having consolidated its power structure within the state to get rich. Lula and the PT didn’t create this system of public-private corruption, but they came to control it and reaped enormous benefits from it.

In parallel, Lula was also an able politician who put in place policies that helped lift millions of Brazilians out of poverty while chipping away at the tradit i o n a l p o w e r structures of Brazilian aristocracy. It’s important to keep in mind that Lula, like the Kirchners in Argentina, presided over a resource-rich nation during what is known as the commodities super-cycle, meaning that Brazil’s exports--which mainly consist of primary materials—rose in price tremendously, filling the nation’s coffers and allowing Lula to finance his populism.

While Brazil managed to escape the implosion that came with the end of the neoliberal cycle in Latin America, it went hand in hand with Argentina into an age of commodities-financed populism led by charismatic leaders who distrusted the United States. Part of the aforementioned commodities supercycle had its origin in China and its tremendous transition from an underdeveloped and overpopulated nation to global economic powerhouse. George W. Bush’s war on terror also alienated large portions of society, while the 2007-8 global financial crisis came with a global disillusionment with American capitalism and its particular vision of globalisation.

President Mauricio Macri’s surprise electoral victory in 2015 over Cristina Fernández de Kirchner’s appointed placeholder-— Daniel Scioli—marked the beginning of a changing tide in Latin America that saw the pendulum swing back to the right, with open markets and a clear alignment with the United States. If we highlight how Lula, the Kirchners and the rest of Latin America’s populists had the financial backing of rising commodity prices, then it is imperative to acknowledge the growing influence of the US in what it once considered its backyard. Jair Bolsonaro’s presidency is the final brick in the wall that is Latin America’s return to the right.

That long introduction is necessary if one is to understand how the Lava Jato investigation has reverberated across Latin America, as societies became deeply polarised between those who religiously supported populist governments that were clearly corrupt, and those who, with equal zeal, sought to destroy them at all costs. Lava Jato in general and Moro more specifically came to symbolise the end of an era of impunity, as mega-leaks like Panama Papers proved how those in power across Latin America had grown tremendously rich while waving the banner of the poor. Traditionally rich elites suffered, but new ones emerged with the explicit support of the governments, many of them acting as frontmen for politicians and their cronies.

That is why The Intercept’s leaks and the commotion caused by the indications that Moro overstepped his authority must be taken very seriously. Brazil’s legal system is adversarial, meaning that a judge must remain impartial, while it’s a prosecutor’s job to lead the investigation and make accusations. This is the opposite of Argentina, where we have an inquisitorial system where the judge works in tandem with prosecutors and instructs the investigation.

Whatever one may think of Lula and the rest of those found guilty of corruption in Brazil, it is important to uphold their rights. If indeed Moro broke the law, then the competent authorities must investigate the case and scrutinise its own rulings. This will be the Federal Supreme Tribunal’s job. And if Lula is to go free, then so be it, as long as the legal system is working correctly. Whether the legal system can be impartial is a related matter.

This latter point becomes relevant when one puts it into the context of Argentina’s own corruption investigations. The cuadernos or notebooks of corruption scandal uncovered by La Nación’s reporting and investigated by judge Claudio Bonadio and prosecutor Carlos Stornelli uncovered a massive scheme of public-private corruption whereas Kirchnerite officials and businessmen in the construction and public works sector grew incredibly wealthy at the expense of everyone else. The focus of the investigation is clearly put on Cristina Fernández de Kirchner, prosecuted as being the head of the illicit association exposed by Bonadio and Stornelli. The judge and prosecutor know it is difficult to prove this final point from a legal standpoint, and they must use every tool at their disposal if the accusation is to hold in an oral trial.

Yet, a second investigation into an illicit ring of espionage has unveiled that Stornelli used extortive methods and ill-gotten information in his investigations. The case being investigated by judge Alejo Ramos Padilla has blown the lid on another illicit association where members of the judiciary, the intelligence community, journalists and others exchanged information used to pursue cases, some of them true others not, in exchange for some sort of gain. While many in Argentina criticised Ramos Padilla and accused him of being politicised, he has won the respect of those who believe in impartiality as the guiding principle of justice. Perfil has demonstrated journalistically how Cristina and her cronies abused their positions of power to get rich, and we hope this will be proven in a court of law. This, though, doesn’t weaken the accusation that those investigating Kirchnerite corruption could also be corrupt.

The same principle should hold in Brazil. As The Intercept’s Glenn Greenwald laid out in a piece explaining why they decided to release the messages, “democracy is healthier when significant actions undertaken in secret by powerful figures are revealed to the public.” While I’ve personally pointed to judge Moro as a guiding light for Argentine judges and prosecutors in their battle against corruption, if indeed his actions were illegal, then he must suffer the consequences. It won’t be us who make the final call, but we can at least shine a light on what we think is right and wrong.