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Prosecutors pursuing journalists and lawyers in anti-corruption probes
Brenno Grillo . Feb 11, 2020
Photo: Pixel-Shot/Shutterstock
For many years, the means that Brazilian authorities had at their disposal to obtain information related to investigations consisted largely of lifting the telephone, tax, and banking secrecy of suspects. However, after the beginning of the sweeping anti-corruption Operation Car Wash investigations, law enforcement and prosecutors got their hands on a new tool, the much discussed plea bargains.
Though commonly used in the U.S., plea bargains—which consist of defendants testifying and pleading guilty in exchange for varying degrees of benefits with regards to their punishment—were only made legal in Brazil in 2013, one year before Operation Car Wash came to be. And Brazil’s prosecutors made extensive use of this investigatory method.
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<p>One important aspect of the swath of plea bargains in Brazil was the regularity with which information from testimony was leaked to the press. In what was a carefully orchestrated and selective process, Justice Minister Sergio Moro—then the lead judge of the Car Wash probe—upheld that the support of the press was an essential part to the anti-corruption strategy, and that information leaks were useful to prevent attempts to obstruct justice.</p>
<p>The selective leaking of confidential information to journalists was confirmed by an exposé published by <em>The Intercept</em> last year. In a series of articles, the website showed private phone conversations in which lead Car Wash prosecutor Deltan Dallagnol <a href="https://brazilian.report/power/2019/06/27/car-wash-matthew-stephenson-interview/">leaked information to the press</a> according to the operation’s convenience. </p>
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<p><em>The Intercept</em>‘s own leaks strained the relationship between authorities and the press, with the backlash even leading to the website’s founder, U.S. journalist Glenn Greenwald, being <a href="https://brazilian.report/newsletters/brazil-daily/2020/01/22/freedom-press-car-wash-greenwald-charged-cybercrime-brazil/">charged for phone tapping and criminal organization</a>. The complaint against Mr. Greenwald was eventually dismissed, but he has not been the only journalist targeted by authorities. </p>
<p>Recent reports showed that two reporters from newspaper <em>Folha de S.Paulo</em>—one of the outlets which published parts of the Car Wash leaks in conjunction with <em>The Intercept</em>—were put under investigation for having covered the occupation of a beachfront apartment in São Paulo state, which was the object of one of former President Luiz Inácio Lula da Silva’s two corruption convictions.</p>
<p>The investigation, requested by the Federal Prosecution Service, analyzed the two journalists’ involvement in the break-in and subsequent occupation. According to the complaint, the act was also encouraged by Lula and organized by Guilherme Boulos, leader of the Homeless Workers’ Movement and former presidential candidate.</p>
<h2>Lawyers in the crosshairs</h2>
<p>But the press has not been the sole target for Brazilian authorities in recent years, attorneys have also been put under the microscope. In 2016, it was revealed that Sergio Moro had authorized the tapping of phones of the Teixeira, Martins & Advogados law firm, which represents former President Lula.</p>
<p><a href="http://agenciabrasil.ebc.com.br/justica/noticia/2019-11/lava-jato-escritorios-de-advocacia-sao-alvos-de-operacao-da-pf">Measures such as these</a> are usually very restricted, as Brazilian legislation considers law firms to be inviolable due to client confidentiality and defendants’ right to fair trials. However, in his wiretapping request, Mr. Moro listed the phone numbers of the lawyers’ office as belonging to Lula’s lecture company.</p>
<p>A survey by the Brazilian Bar Association showed that, in 2019, courts granted 200 authorizations for lifting secrecy and searching law firms across the country. One such operation occurred in August of last year when Antonio Cláudio Mariz de Oliveira, former lawyer of ex-President Michel Temer, had his bank secrecy lifted to investigate the origin of his legal fees.</p>
<p>Also in 2019, lawyer José Roberto Batochio—who represented Lula in one of the lawsuits filed against the former president—was the target of a police operation that aimed to find out whether he received BRL 1 million from construction company Odebrecht. Nothing has been found so far.</p>
<p>What’s more, the defense of Adélio Bispo, the man who stabbed Jair Bolsonaro on the campaign trail in 2018, was also investigated by the authorities. The Federal Police searched the offices of lawyer Zanone Manuel de Oliveira Júnior in an attempt to find his proof of payment, in accordance with conspiratorial ideas that third parties had been involved in the attack on the president.</p>
<p>One of the most recent cases involves lawyers Antônio Figueiredo Basto and Luís Gustavo Flores. The two became known after negotiating major plea bargains for Car Wash investigators, including that of kingpin currency exchanger Alberto Youssef, the center of the corruption scandal that involved state-owned oil company Petrobras.</p>
<p>Messrs. Basto and Flores are accused of illegally transferring USD 2.5 million abroad between December 2008 and October 2012. Sources with access to the investigation heard by <strong>The Brazilian Report</strong> claim that the lawyers presented repatriation receipts for these amounts and the subsequent proof of tax paid.</p>
<h2>Anti-corruption probes seek unreachable evidence </h2>
<p>When going after lawyers is not possible, prosecutors have instead chosen to limit access to the evidence obtained in the investigations. A recent case of this occurred in Operation <em>Câmbio, Desligo</em> (Over and Out), which investigates a network of illegal currency exchangers involved in transferring bribes received by politicians to offshore accounts.</p>
<p>The crux of the operation was a system called “Bankdrop,” an intricate piece of software allegedly created by the currency exchangers to organize their records of funds sent and received from abroad. Prosecutors became aware of the existence of Bankdrop by way of plea bargain testimonies from currency exchangers Vinícius “Juca Bala” Claret and Cláudio “Tony” de Souza.</p>
<p>However, despite having been launched two years ago, none of the defendants’ defense counsels in Operation <em>Câmbio, Desligo</em> have been able to access the Bankdrop system. Initially, prosecutors claimed the software was too heavily encrypted, but expert examinations commissioned by the defense of two defendants showed that there is no way to prove Juca Bala and Tony had actually handed the system over to the prosecutors.</p>
<p>The examination concluded that there were no executable files on the hard drive delivered to the authorities that could provide access to the database system. At one meeting on February 3, prosecutors limited themselves to sending a flash drive with screen grabs of the system, but not the executable file itself.</p>
<p>Sources with access to the case record consulted by <strong>The Brazilian Report</strong> said that the prosecutors used a tactic known as a “fishing net,” in which “bait” is thrown to force defendants into revealing information that may be used in future investigations.</p>
<p>A similar tactic was utilized in an operation launched in October 2019, which investigated the use of the five largest banks in Brazil—Itaú, Bradesco, Banco do Brasil, Caixa Econômica Federal, and Santander—for sending bribes abroad. During plea bargain negotiations with the Federal Police and prosecution service, one suspect was told by the authorities that they had no interest in the information he provided.</p>
<p>However, this same prosecutor said that the statements could be used in the future if confirmed by other means. Brazilian law prevents authorities from using evidence provided in these negotiations when the plea bargain is not officially signed.
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