Supreme Court Justices head to their seats

On March 17, 2014, the Brazilian Federal Police launched the so-called Operation Car Wash, a probe into a money-laundering scheme working out of a gas station less than 1 kilometer from the seat of Brazil’s Congress. Twenty-eight people were arrested at first, and another 19 were forcibly taken in to provide statements in an effort spread across 17 cities and 7 states.

What seemed like a banal investigation into little-known (at least to the public) crooks became one of the biggest anti-corruption investigations in history. For the last five years, Brazilians have grown accustomed to waking up and following the latest flashy, high-profile round of arrests on the morning news. There have been 258 of them—including some of Brazil’s wealthiest businessmen, a powerful former House Speaker, and the most popular politician in the country’s democratic history.

In a country where citizens expect the worst from public institutions, Operation Car Wash offered a much-needed hope for change. Despite its excesses—and there were many—the probe is the most courageous reaction to structural corruption in Brazilian history. Politicians from all corners of the political spectrum tried to attach themselves to the Car Wash brand—none more effectively than President Jair Bolsonaro.

He was swept into the presidency on an anti-establishment wave, and one of his first cabinet appointments was none other than Sergio Moro, the former federal judge who became a celebrity among conservatives and the most powerful Justice Minister of recent decades. Parallel to that, federal prosecutors who worked with the operation were promoted, while investigators were named to top positions at the Federal Police. With those moves, the government promised to push the probe to new frontiers.


operation car wash popularity moro lula


All of this now seems unlikely. Instead of getting stronger, more independent, and powerful, Operation Car Wash has suffered its hardest blow to date this week. And it didn’t come from Congress, nor from the multiple political forces which barely concealed their attempts to curb the impetus of the investigation. The biggest defeat of the operation came from the Supreme Court.

By a narrow 6-5 majority, the country’s highest court decided that Operation Car Wash cases related to electoral crimes should fall under the scope of the Electoral Justice system—and not criminal courts. Prosecutor Deltan Dallagnol, the coordinator of the Car Wash task-force, said: “the window to fight corruption in Brazil is closing.” And Transparency International warns that “the fight against corruption will be dramatically impacted.”

One Supreme Court justice laid grounds for further attacking the operation, saying the decision could lead to overturning past convictions—creating what is known in the Brazilian judiciary as “procedural turmoil.”

Why the Supreme Court might have ruined Operation Car Wash

Brazil’s Electoral Justice system is, as put by Prosecutor Roberson Pozzobon, “the dream of the corrupt and corruptors.” It is a very slow-paced judicial system—even for Brazilian standards. That’s because judges are not only responsible for trying cases, but they also must organize and monitor elections every two years.

Moreover, it is short-staffed and overburdened. Not to mention its lack of experts to investigate sophisticated money-laundering schemes. Supreme Court Justice Luís Roberto Barroso, also a member of the Superior Electoral Court, explains the problem: he said he has two experts in criminal law clerking for him at the Supreme Court. At the Electoral Court, he has none.

There is an additional problem: electoral crimes are barely punished in Brazil. If cases don’t fall through the cracks, defendants usually have to deal with fines and no jail time. For decades, politicians have used the electoral court as an institutional loophole to escape punishment. When it became known that the Workers’ Party bribed congressmen in order to secure a parliamentary majority, then-President Lula tried to build a narrative that it was “only” a scheme to illegally fund election campaigns.

Justice Luis Roberto Barroso

Justice Luis Roberto Barroso

But Justice Barroso stated what should be obvious: it doesn’t matter what the money will be used for—campaigns or buying luxury items—what matters is its illicit origin.

Trying politicians in the Electoral Justice system will certainly enhance impunity. And you don’t have to go far back to see how these courts operate in a very lenient way. In every election year, auditors find problems with campaign books from nearly all parties, but that doesn’t prevent the top electoral court from approving campaign accounts (even if with some caveats).

The most bizarre example came in 2017, when the Dilma Rousseff-Michel Temer 2014 campaign faced trial for illegal financing. Despite an abundance of testimonies and evidence proving that the duo benefited from dirty money, the court decided not to convict. After all, Ms. Rousseff had already been impeached by Congress in unrelated charges and Michel Temer was politically close to the majority of the judges.

Justice Gilmar Mendes, who was the biggest defender of the case, suddenly became its fiercest combatant. Same evidence, same campaign, different views—based on who was on trial.

Judicial system at war

During the Supreme Court trial, Operation Car Wash and its prosecutors were harshly criticized by some of the justices, with Gilmar Mendes leading the way. He came as close as possible to calling Mr. Dallagnol an “immoral” prosecutor. It is the latest episode of an ancient war.

For years, Justice Mendes has been a vocal critic of the probe. He is against many of the instruments used to extract confessions and unveil the serpentine corruption existing within the public administration, such as plea bargain agreements and the incarceration of convicted felons after a confirmed conviction by a court of appeals (but before a Supreme Court ruling).

In Justice Mendes’ opinion, the operation is excessive and violates the civil rights of defendants. Meanwhile, prosecutors have asked for him to be removed from several cases, arguing that the justice is not capable of holding a fair trial. Lately, leaders of Operation Car Wash asked voters to corner the Supreme Court on social media. In response, Chief Justice Dias Toffoli opened a criminal probe into this “menacing” online behavior.

Operation Car Wash has also created an even closer enemy in Raquel Dodge, the Prosecutor General. Since she took office in 2017, her office has cut the operation’s budget. Recently, Ms. Dodge opposed to the idea of using money from criminal convictions to create an “anti-corruption fund.”

Thursday’s trial caps a series of defeats for Operation Car Wash—and a new one could be on the horizon. On April 10, the Supreme Court is set to decide on whether convicted felons can go to jail before exhausting all appeal routes—as is the case with former President Lula. That could take all the leverage prosecutors have to push defendants towards plea deals.

This offensive against Operation Car Wash shows that even if the task force is not being made extinct, the political establishment is close to neutering its power.

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BY Gustavo Ribeiro

An award-winning journalist with experience covering Brazilian politics and international affairs. His work has been featured across Brazilian and French media outlets.