Since June 9, The Intercept Brasil has been publishing a series of leaked private messages between former Judge (and current Justice Minister) Sergio Moro and Operation Car Wash prosecutors. By the reports, it seems that Mr. Moro overstepped his responsibilities as a judge and collaborated with the prosecution—which is illegal—at least in the case against former President Luiz Inácio Lula da Silva.

Since its launch in 2014, Operation Car Wash has drawn massive popular support—and equally passionate critics. And The Intercept‘s reports, which were given the moniker Car Wash Leaks, have inspired intense reactions—either by those critical of the investigation, or those who adamantly defended Mr. Moro, the prosecutors, and their methods.

Matthew C. Stephenson is a Harvard law professor, and editor of the Global Anticorruption Blog. While never extreme, he swung from criticism to Mr. Moro to a more skeptical look at the leaks. His first commentary was used by anti-Car Wash observers, while his second one, recanting many positions, was quoted several times by Mr. Moro himself during a congressional hearing as validation for his actions.

Dr. Stephenson talked over the phone with The Brazilian Report about how the leaks can impact former President Lula’s conviction, the future of Brazil’s democratic institutions, and the country’s quest against corruption.

(If you want more details on the case and its possible implications, click here. Or here, if you want to listen to The Brazilian Report‘s chat with The Intercept‘s managing editor, Andrew Fishman.)

</span></p> <p><i><span style="font-weight: 400;">Note: This interview has been edited and condensed for clarity.</span></i></p> <div id="attachment_19833" style="width: 615px" class="wp-caption alignnone"><img aria-describedby="caption-attachment-19833" class="size-full wp-image-19833" src="" alt="matthew stephenson harvard law professor car wash leaks" width="605" height="403" srcset=" 605w, 300w" sizes="(max-width: 605px) 100vw, 605px" /><p id="caption-attachment-19833" class="wp-caption-text">Harvard Law Professor Matthew Stephenson. Photo: Kris Snibbe/Harvard Staff Photographer</p></div> <h4>You recently told online magazine <i>Crusoé</i> that the Car Wash leaks undermine Brazil&#8217;s democracy. Why is that?</h4> <blockquote><p><span style="font-weight: 400;">I know the interview was translated into Portuguese, and that might have created a misleading impression [of what I said]. What I meant to say is that everything about [the leaks]—both the fact that there was a cyber attack on Brazilian prosecutors and judges, potentially the content of the leaks themselves, and the subsequent increase in polarization and potential damage to the legitimacy of Brazilian institutions poses a significant challenge to Brazilian democracy. That’s the way I would frame it.</span></p></blockquote> <h4>Couldn&#8217;t the actions of Judge Sergio Moro be considered a violation of Brazil&#8217;s democratic rules?</h4> <blockquote><p><span style="font-weight: 400;">My own feeling as someone from a different country and a different legal system is that I don’t feel comfortable with that degree of back and forth communication and apparent friendliness between prosecutors and judges. I would favor a much stricter separation of communications between prosecutors and judges. But even if we’re uncomfortable with that, one might ask whether the communications that have been disclosed so far violate Brazilian laws or ethical codes. Countries vary with respect to their laws and ethical rules on this subject and I don’t yet know enough about Brazilian rules or the specific context in which these exchanges took place to have a definitive view on that topic. Finally, one might ask, is there evidence that the [Car Wash] prosecutors or Judge Moro were politically biased against President Lula, the Workers&#8217; Party or the left in general? Is Lula a political prisoner? Were these prosecutions a subversion of democracy? There, I think the answer is that the leaks so far do not indicate anything of the sort and saying that they do is borderline irresponsible. </span></p></blockquote> <h4>Lula’s defense argues that due process wasn’t observed. Why does this seem not to be the case in your opinion?</h4> <blockquote><p><span style="font-weight: 400;">There is an ongoing debate about whether the prosecution and conviction [of Lula] were appropriate, but nothing in the leaks that I’ve seen shows that the prosecution knew that there was no evidentiary basis to convict Lula but proceeded either way. I’m not going to say definitively that there was no deprivation of due process— there may have been. But I’m not an expert in Brazilian criminal procedure or judicial ethics laws. I’m also not sure I entirely understand the context or even the meaning of these communications. It’s actually clear that many of the people commenting on these communications also don’t fully understand necessarily what [the messages] mean. There’s so much subtlety and nuance here. That’s why for me, the claim that these leaks show that the prosecution of Lula or any other defendant didn’t have a sound legal or evidentiary basis is not correct based on what I’ve seen so far.</span></p></blockquote> <h4>Mr. Moro has repeatedly said that the message exchanges were within the norms of Brazilian legal practice, which allows judges to offer direction to prosecutors during the investigation phase. Where do we draw the line between a judge who is offering guidance and one who is overly collaborative with the prosecution?</h4> <blockquote><p><span style="font-weight: 400;">This is the question that I wish more people would be asking. This is not a question about Judge Moro, or [Operation Car Wash] or about Lula— it’s a question about the structure of Brazilian criminal procedure. Based on what I understand from Brazilian judges, lawyers or other legal professionals, the judge [in Brazil] has a much more active role in overseeing the investigative phase of a case like this. If Judge Moro is in fact correct and these kinds of communications are normal in the context of Brazilian criminal investigations, and if Judge Moro’s critics are also correct that these kinds of regular communications lead to a relationship that feels more collaborative than the judge acting as a kind of a neutral overseer, than that points to a fundamental challenge or tension in the Brazilian criminal justice system overall that needs to be addressed. I feel like everyone is getting so caught up with Lula, Moro, Bolsonaro, and the PT that I’m worried that these larger structural issues may not get the attention that they deserve. </span></p></blockquote> <h4>There is an overwhelming focus on Lula’s conviction rather than on the other convictions of Operation Car Wash. What are the implications of this?</h4> <blockquote><p><span style="font-weight: 400;">I understand Lula is a former President—he’s one of the most popular presidents that Brazil has had since the transition back to democracy. He’s very charismatic. If he were to run during the 2018 elections the polls suggest that he may well have won. So for all of those reasons, I can understand why people are so focused on Lula. The Workers&#8217; Party was in power for most of the relevant period, so its politicians are disproportionately represented in news reports about [Operation Car Wash]. But the investigations have secured convictions of people in a range of political parties and ideological backgrounds, as well as a large number of private business people. The corruption was very widespread and transcends political parties. [Operation Car Wash] is much bigger than Lula and in the desire to exonerate this one person, the Workers&#8217; Party and its supporters are waging an incredible scorched-earth campaign discrediting the entirety of the Car Wash probe in ways that are most likely unjustified and will probably have destructive consequences.</span></p></blockquote> <h4>Judges in Brazil are supposed to be neutral umpires. In the leaks, Mr. Moro seems to be coaching prosecutors on several occasions. On one he tells them to change the order of police operations. On another, he tips the prosecution off to a possible witness. Based on your current exposure to the issue, does it seem that Mr. Moro played a neutral role?</h4> <blockquote><p><span style="font-weight: 400;">You framed the question by saying Judge Moro appeared to be “coaching” the prosecutors. That’s a possible conclusion, but it’s not obvious from the text messages that I’ve seen that that’s the correct conclusion. In terms of passing on the tip, it could have been the case that Mr. Moro received a tip from an intermediary source, but couldn’t do anything because he’s a judge. He then passed that tip to Mr. Dallagnol, who found out that the witness didn’t want to talk. Mr. Moro might have found that strange, so Mr. Dallagnol considered formalizing the inquiry by issuing a subpoena saying he had an unconfirmed report that such [witness] might have information. I’m not saying that’s the right way to interpret it. But if that’s actually the way it happened, that doesn’t actually look like the judge was coaching the prosecutor in an impermissible way. </span><i><span style="font-weight: 400;">The Intercept</span></i><span style="font-weight: 400;">’s reporting has not yet persuaded me that it was [impermissible]. </span></p></blockquote> <h4>It seems that without proper context around the leaks, we could reach different conclusions about whether Judge Moro was coaching prosecutors or simply providing guidance during an investigation. <i>The Intercept’s </i>reporting seems to offer a lot of grey areas. How problematic is this uncontextualized reporting considering Brazil’s already polarized society?</h4> <blockquote><p><span style="font-weight: 400;">If you read [</span><i><span style="font-weight: 400;">The Intercept’s</span></i><span style="font-weight: 400;">] stories, there’s a mix of news reporting and straight up editorializing in ways that I find very frustrating. It certainly seems like they’re out to get Mr. Moro and [Operation Car Wash] and they want to vindicate Lula. I don’t want to come down hard on [</span><i><span style="font-weight: 400;">The Intercept</span></i><span style="font-weight: 400;">] because I recognize that they’re doing an important service for Brazilian democracy the way investigative journalists do. Yet at the same time, I am frustrated at what I feel is excessive editorializing, jumping to conclusion, failure of contextualization, and such a strong political, ideological agenda. My main concern about these [reports] is it’s very one-sided and they fail to provide sufficient context so that readers can understand the issues. </span></p></blockquote> <h4>You just discussed some of the ways <i>The Intercept </i>failed to follow basic journalistic norms in the reporting of these leaks. One of them is that <i>The Intercept </i>didn’t approach Mr. Moro and Mr. Dellagnol prior to publication. On the other hand, <i>The Intercept</i> has claimed that they wanted to avoid legal maneuvers from the people involved to censor the reports. In fact, there is precedent for that—Supreme Court Justices recently tried to censor a piece on statements by Car Wash collaborators citing the Chief Justice. Do you think that not contacting people concerned taints the reporting?</h4> <blockquote><p><span style="font-weight: 400;">Not contacting the people concerned probably didn’t taint the reporting because </span><i><span style="font-weight: 400;">The Intercept</span></i><span style="font-weight: 400;"> has a particular line that they’re taking on this. I feel like even if Judge Moro had produced a 20-page document signed by 50 of the leading lights of the Brazilian legal community saying that these kinds of communications are totally standard, </span><i><span style="font-weight: 400;">The Intercept </span></i><span style="font-weight: 400;">would’ve run the story the exact same way. They could have contacted other people in confidence, maybe without giving full context as to what they were gonna publish, to ask about whether these sorts of communications would be permissible, what the Brazilian rules are, or something like that. As a reader, I wish they would have done this so that when I’m reading the original stories, I would understand that in fact, there’s some complicated questions about the ethical rules here. Instead, there’s just a lot of conclusory statements that may turn out to be right, but when you push on them, it turns out the issues are a lot more complicated. </span></p></blockquote> <h4>You told <i>Crusoé</i> that an outsider hacked prosecutors&#8217; phones. But <i>The Intercept</i> has offered no information on their source or sources. Why do you say this case is very different from the Pentagon Papers, or the NSA leaks?</h4> <blockquote><p><span style="font-weight: 400;">This is speculation. There are two ways that </span><i><span style="font-weight: 400;">The Intercept </span></i><span style="font-weight: 400;">could get this kind of information: either there’s an internal leak or an outsider hacked the phones of those involved. Here’s a couple reasons why I think the [cyber attack] scenario is much more likely—it does not appear that a single person would have access to all the different conversations through one cell phone. It appears that we have sources from at least two people, maybe more. </span><i><span style="font-weight: 400;">The Intercept </span></i><span style="font-weight: 400;">makes sense of the fact that they have access to all this private information that they’re not divulging because it’s not relevant to the public interest. If it was an insider leaking information, [the insider] could’ve just leaked information from the specific group chats, and not all the information on Mr. Dallagnol’s phone, which </span><i><span style="font-weight: 400;">The Intercept</span></i><span style="font-weight: 400;"> claims that they’ve got. There have also been repeated attempts to hack the phones of Judge Moro, multiple prosecutors and multiple lawyers working on this case. If you put all those things together, it strikes me as much more plausible that the information was a result of a hack than the result of an internal leak.</span></p></blockquote> <h4>Nearly every leak involves some form of illegality. Why could this specific series of leaks have less credibility than others before it?</h4> <blockquote><p><span style="font-weight: 400;">You’re right that most leaks involve some form of illegality. Most leaks come from insiders who go to the media to expose a cover-up of bad behavior. The ethical issues there are extremely complicated. Sometimes those leaks are justified, sometimes they’re not, but there’s gotta be a place for them in a democracy. In cyber attacks, it’s not only the disclosure of information that’s unlawful, it’s also that gaining access to the information in the first place involves hacking security systems to gain private information. That strikes me as worse. Especially when it’s done specifically to try to find information to make the targets look as bad as possible. If you look over all of someone’s data of communications with the objective of making them look bad, you could often do it. I think if we care about privacy and the ability of people to have candid conversations about hard issues, then we should worry about [cyber attacks] much more than we worry about the occasional [insider] leak.</span></p></blockquote> <h4>In a news show on <a href="">YouTube</a>, Glenn Greenwald said you are someone who doesn&#8217;t know much about Brazilian law, that you are a friend of Deltan Dallagnol (which you disclose in your text), and that essentially you have no business analyzing this case. How do you respond to that?</h4> <blockquote><p><span style="font-weight: 400;">I don’t want to jump to conclusions because I haven’t seen it myself. I’ve acknowledged over and over that I’m an outsider who doesn’t speak Portuguese. I do know a fair amount about comparative law and about corruption. Don’t just dismiss [my arguments] out of hand because I’m not Brazilian. I mean, Mr. Greenwald isn’t Brazilian either. He’s married to a Brazilian person and he lives there, but I’m married to a Thai person and that doesn’t make me more of an expert at Thai politics than someone else. I find it a little bit much for Mr. Greenwald to make a big deal out of the fact that I have a friendly professional acquaintance with Mr. Dallagnol as if that impunes my credibility. Contrary to media reports, [Mr. Dallagnol] was never my student. I have met [Mr. Dallagnol] in a professional context and we have socialized with each other professionally. I went out of my way to disclose this and if people think that I’m giving Mr. Dallagnol too much of the benefit of the doubt, they are entitled to do that. Finally, Mr. Greenwald is married to a Brazilian opposition politician [Congressman David Miranda] who is affiliated with a party [Socialism and Liberty Party] that is very hostile to the current administration and to the now Justice Moro. This is a fact that is never mentioned in any of </span><i><span style="font-weight: 400;">The Intercept’s </span></i><span style="font-weight: 400;">reports. It’s a bit hypocritical for him to attempt to dismiss what I have to say about the case on the grounds that I’m friendly with Mr. Dallagnol when [Mr. Greenwald] is married to somebody who is not a neutral party in all of this.</span></p></blockquote> <h4>Mr. Moro&#8217;s approval ratings have dropped by 10 points since the leaks started. And Operation Car Wash, although still very popular, has also become less popular. If Car Wash loses support, what could be the consequences for the fight against corruption?</h4> <blockquote><p><span style="font-weight: 400;">If [Car Wash] is utterly discredited and people believe it was all a political witch hunt, then I’m afraid that this attempt to root out corruption will wither. [Corruption] will return full force and it’ll be really hard to mobilize people and institutions against it. One of the most important things Brazil needs to do to combat corruption in a systematic way is to strengthen institutions that are separate from the political process. We need impartial judges and impartial prosecutors that have the professionalism, training, autonomy and institutional strength to take on some of the most powerful people in the system. The fight against corruption in Brazil should not be about Mr. Moro, Deltan Dallagnol or any particular person. People want heroes and villains, but in the long-term it’s more about institutions and building them up and making them more credible. Indiscriminate attacks on the prosecution’s service and the judiciary with the sole objective of vindicating Lula is going to do incalculable long-term damage to institutional development in Brazil.</span></p></blockquote> <p><span style="font-weight: 400;">

Read the full story NOW!

PowerJun 27, 2019

Tags: - - -

BY Martha Castro

Martha Castro is an intern at The Brazilian Report. She is a Brazilian journalism and political science student at Northwestern University in Evanston, Illinois.