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With some delay, Lula gets a win over Moro in Car Wash case

. Aug 05, 2020
sergio moro lula supreme court Sergio Moro during a 2018 anti-corruption seminar in São Paulo. Photo: Marcelo Chello/Shutterstock

As The Brazilian Report editor-in-chief Gustavo Ribeiro told Time magazine, former judge and Justice Minister Sergio Moro was arguably the most influential Brazilian of the 2010s. He convicted one former president, and his actions from the bench helped to oust a sitting head of state. But pundits suggest his influence is waning. Mr. Moro is no longer a member of the presidential cabinet, after clashing with President Jair Bolsonaro over the autonomy of the Federal Police. And on Tuesday night, the Supreme Court reversed a key ruling of his tenure as judge: the inclusion of profoundly damaging testimony against former leader Luiz Inácio Lula da Silva.

</p> <p>A panel of three justices considered that Mr. Moro&#8217;s decision to attach the testimony of Lula&#8217;s former Finance Minister Antonio Palocci was biased and unfair. This ruling is crucial, as it weakens the case against the former president — just as the Supreme Court prepares to vote on whether Mr. Moro upheld the standards of the bench by being a neutral umpire in a case.</p> <p>Mr. Moro, who became the figurehead of the Operation Car Wash anti-corruption investigation, published the content of Mr. Palocci&#8217;s plea bargain testimony on October 1, 2018 —&nbsp;a mere six days before the first round of the presidential election. The statements, however, had been available to the judge since July, which raised questions about the timing of the move.</p> <h2>Moro tipping the scales?</h2> <p>At that point, the election was shaping up to be a dispute between former Education Minister Fernando Haddad and Jair Bolsonaro, who wanted to shatter the legacy of former President Lula, embodied in the 2018 race by Mr. Haddad.</p> <p>The bombastic testimony was exceedingly harmful to Lula and his Workers’ Party. Mr. Palocci gave lengthy descriptions of <a href="https://brazilian.report/power/2018/04/27/palocci-operation-car-wash-plea-deal/">massive corruption schemes</a> carried out by former party colleagues, in the hopes of softening his sentence&nbsp;—&nbsp;but many of the former Finance Minister&#8217;s claims remain unproven.</p> <p>“This delay seems to have been carefully planned by [Sergio Moro] to create a political fact, in the very week before the 2018 presidential election&#8217;s first round,” said Justice Gilmar Mendes, one of the two court members to have sided with Lula.</p> <iframe src="https://open.spotify.com/embed-podcast/episode/74RIRb9Ff76AhkvEQ9bULf" width="100%" height="232" frameborder="0" allowtransparency="true" allow="encrypted-media"></iframe> <hr class="wp-block-separator"/> <p>As we described in our <a href="https://brazilian.report/newsletters/brazil-daily/2020/08/05/industry-understanding-brazil-latest-economic-figures/">August 5 Daily Briefing</a>, the document was made public at a time in which Mr. Haddad experienced a surge in polls, after being named as Lula&#8217;s replacement on the ballot. (After multiple convictions, the ex-president was barred from running and appointed Mr. Haddad as his understudy.)&nbsp;</p> <p>In the wake of Mr. Palocci&#8217;s claims being made public, Mr. Haddad <a href="https://brazilian.report/power/2018/10/02/female-vote-bolsonaro-poll/">stalled in the polls</a> and suffered a sound defeat in the runoff stage on October 28. Three days after Mr. Bolsonaro won the presidency — and exactly one month after the plea bargain was published&nbsp;— Mr. Moro announced he was leaving the bench to join the president-elect&#8217;s transition team as the future Justice Minister. While it is impossible to quantify how many votes Mr. Moro&#8217;s maneuver flipped, it opened room for interpretations that the decision was designed to tip the scales against the center-left candidate.</p> <p>“It is an important milestone because it is the first time that [Supreme Court] justices have admitted so clearly that he has been partial,” says criminal law expert Davi Tangerino, a professor at think tank Fundação Getulio Vargas.</p> <p>In a public statement, Sergio Moro said the public already knew about Mr. Palocci’s allegations when the plea bargain testimony was published. He emphasizes that he intended to provide Lula with the right to a fair hearing.</p> <h2>The trial and its consequences</h2> <p>The decision was not made by the entire court, but by one of its five-justice panels. Two of the members were absent, however, leading to a 2-1 majority against Mr. Moro and in favor of Lula. Mr. Tangerino says that the result shows the stance of those present for future cases on Mr. Moro&#8217;s conduct, but the absences mean the situation is still unclear.</p> <p>The practical consequence of the decision is to delay what is the third criminal case against Lula. Mr. Moro&#8217;s replacement as the overseer of Operation Car Wash will have to reopen the deadline for Lula&#8217;s closing arguments.</p> <p>Furthermore, the ruling comes at a time in which Operation Car Wash is <a href="https://brazilian.report/power/2020/08/04/is-the-government-dismantling-operation-car-wash/">suffering attacks on several fronts</a> — even from within the Federal Prosecution Service.&nbsp;</p> <p>This also chips away at the reputation Mr. Moro enjoyed before the election, of a tough-but-fair figure, guided solely by ethics and anti-corruption. In the near future, the Supreme Court is expected to rule on a request by Lula to void his convictions based on an argument that Mr. Moro acted in a biased manner throughout his case.</p> <p>While Brazil&#8217;s Supreme Court doesn&#8217;t have much regard for precedents — not even its own — this week&#8217;s ruling could certainly help Lula&#8217;s case.

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José Roberto Castro

José Roberto covers politics and economics and is finishing a Master's Degree in Media and Globalization. Previously, he worked at Nexo Jornal and O Estado de S. Paulo.

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