Monday, July 13, 2020
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LATIN AMERICA | 20-06-2020 09:15

Sérgio Moro: ‘I always acted with a clear conscience and impartially’

Former Brazilian federal judge Sérgio Moro – who resigned as Justice and Public Security minister in late April, criticising President Jair Bolsonaro for “political interference” as he quit his post – on Lava Jato, corruption and censorship.

After the cancellation of last week’s scheduled lecture by the Law Faculty of the University of Buenos Aires (UBA), Sérgio Moro addressed Argentine academics in an event organised by Perfil Educación and sponsored by various universities. 

Moro, who rose to fame as a tenacious federal judge probing criminal wrongdoing related to Brazil’s sweeping Lava Jato corruption scandal, served under President Jair Bolsonaro as the country’s Justice and Public Security minister until tendering his resignation in April this year. 

The rescheduled lecture, which took place last week, was followed by a question-and-answer session – here are some highlights from that section.

 

Avelino Porto (Chancellor of Belgrano University) asks: What were your expectations when you left judicial life and entered political? 

During Lava Jato I had the opportunity to get to know some Italian magistrates active in the 1990s like Gherardo Colombo, Antonio Di Pietro and Piercamillo Davigo. They took different courses in their careers. Di Pietro went into politics while the others continued their judicial careers. What always bothered me, in what all three had to tell me, was a certain frustration because despite having unmasked an entire system of corruption, this was not reflected – at least not at first – in any improvement in the levels of integrity in Italian politics.

When they invited me [to be Justice Minister], I faced a pretty difficult decision but my evaluation of it was very simple. If I entered government, I’d be able to influence corruption trials and advance an anti-corruption agenda. 

I confess that we managed to advance significantly in fighting both organised and violent crime but we faced institutional difficulties in advancing in an anti-corruption agenda. The vested interests of various powers opposed and prevented this but, as I have said, once the seed has been planted, it is an agenda which can always be picked up again. There is a perception, even more so in the international context, that corruption must be confronted in its totality as something unacceptable. It is very hard to make that evaluation because it forms part of a dark figure but I don’t think we have in Brazil today the same levels of corruption as in the past beyond not having had the opportunity to advance with our anti-corruption agenda. 

Our activity was misunderstood by many people who thought I was acting politically. That was not the aim. What I wanted was to expand the scope of that anti-corruption agenda. When I realised that it was impossible to achieve in the context where I found myself, it was time for me to go.

 

Your most recent television interview was last January on TV Cultura with the programme Roda viva, at that time a leading trend on Twitter worldwide. In Brazil you’re more popular than anybody. They say that President Jair Bolsonaro did not throw you out because that would have created a very strong electoral competitor. To Vice-President Hamilton Mourão is attributed the idea that if they threw you out, the government would collapse. In that same interview, they asked you if you’d be running for president and your answer was: “As a minister of the Bolsonaro government and if he seeks re-election, he’d be the logical government candidate in 2022 and not he who is now his minister.” Now that you’re no longer minister, will you be a presidential candidate in the 2022 elections? 

That’s not a question for an academic conference [laughs]. 

For me it was very difficult to leave the magistracy because it is a road of no return. I did it to protect judicial independence. Within government my plan was to advance the anti-corruption agenda. That was not possible and it was a great frustration. I left government little over a month ago, it was a time of a certain turbulence and now we’re in times of pandemic. 

My commitment is to reaffirm the fight against corruption whether from the private or public sector. But that’s not my only commitment. Today the rule of law is also at issue. The fight against corruption is only a slice of a bigger question which is the integrity of democracy and the rule of law. 

When you look at corruption as analysed by the ancient thinkers, you see corruption being conceived as something other than the mere payment of bribes. When Aristotle spoke of forms of government, he said that there were three ideal forms which degenerated into “corrupt forms.” He used precisely that term: corruption. That’s something which permeates  all political thinking through to modern times. At some point monarchy degenerated into tyranny; democracy can degenerate into mob rule; aristocracy can end up as oligarchy. And then there’s also corruption. 

The only acceptable form of government today is democracy. And within that context you have to think about corruption beyond crime. You must try and understand it as one of those evils affecting the quality of our institutions, our economy and democracy. In that context I’m always available for debate. 

 

You said: “[Corruption] was not just to finance campaigns but also for personal enrichment.” Not only in Brazil, but also in Argentina, you are accused of not being impartial after joining a government succeeding that of another party, many of whose leading figures you yourself condemned. I’d like you to enlighten Argentines over this issue since they tend to understand Lava Jato as something concentrated exclusively on throwing ex-president Luiz Inácio Lula da Silva into jail, explaining it as something which affected the entire political system, including the other political parties and the convicted businessmen. How do you defend yourself against the accusation of lacking impartiality? 

This distortion regarding Lava Jato or misunderstanding has to do with a scenario of political polarisation. It is not a problem of the political spectrum, left, right or centre. Corruption can affect any politician, independently of their ideological creed or convictions. Regrettably they can all be corrupted.

Lava Jato was a gigantic investigation of corruption which resulted in the conviction of many people – I don’t have the exact number, which keeps changing, but over 200 people, including the businessmen paying the bribes and the beneficiaries, who in turn include not only public officials, senior executives of Petrobras [Brazil’s biggest state company which explores oil and gas] or politicians profiting from that scheme of corruption for dishonest gains or to finance political campaigns. 

It was known that party hacks, normally from the federal government, were placed in the upper echelons of Petrobras. Those directors had the task of extracting bribes from businessmen with contracts in Petrobras, normally for fixed percentages. Those officials kept part of the money and gave part to their political bosses.

Why was the Partido Trabalhista [Workers' Party, PT] the worst affected? Because the PT formed the federal government and was also the dominant party in many states, thus explaining why it was especially affected. It also affected political allies beyond the left wing of the spectrum, for example, the former Chamber of Deputies speaker Eduardo Cunha, a centre-right politician often mentioned as the main architect of Dilma Rousseff’s impeachment and who was convicted for Lava Jato. This proves that there were politicians from various parties. 

At a determined moment, mainly through an agreement to collaborate made between the plaintiffs and Odebrecht also to blow the whistle on the payment of bribes to politicians within the Petrobras scheme of corruption, including governments controlled by parties in opposition to the federal government, there were advances in those investigations encompassing practically all political parties. 

In Curitiba, where I worked, we were especially busy with those responsible for government because we were handling the cases of bribery in Petrobras, which mainly affected politicians of the nationally governing parties but there were other ramifications which affected parties of the opposition. I always acted with a clear conscience and impartially, always basing myself on evidence. 

The international press or perhaps some misunderstanding placed the focus on the figure of ex-president Lula but in relation to that, it is necessary to stress that I issued only sentence against him, a conviction which was confirmed by the Federal Appeals Court and the Supreme Court in Brasilia in two instances, as well as in another trial by another judge. 

Of course, a standard form of defence in these trials against politicians is always to talk about political persecution – that’s natural. But when you examine the facts and the evidence, there are various judicial instances for the defence. 

In Brazil nobody was accused in Lava Jato because of their political opinions, that did not happen. Nor can an integrated judicial conspiracy be proven, no way. All the decisions were confirmed at each of the necessary instances and that applied to ex-president Lula as it did to other people in different cases. 

A certain distortion may be perceived here. Unfortunately, part of the analysis was affected by the excessive political polarisation everywhere in the world but very present today in Latin America. 

 

When I interviewed you in Curitiba while you were judge, you explained clearly to me that the key to convictions in corruption cases was starting with the businessmen paying the bribes, placing plenty of focus on convicting businessmen paying up. Some 60 businessmen were convicted in the Lava Jato case. We in Argentina have a similar case commonly known as “los cuadernos.” What is the role of businessmen in corruption and how should the courts approach them?

These crimes of bribery are very difficult to prove since they are done in secret, normally using complex mechanisms to transfer the money. For a long time the main technique of investigation has basically been “follow the money.” It depends a lot on the investigation, often springing from the beneficiary due to inconsistencies in their assets but also from those paying the bribes, the businessmen.

In Brazil, various leading and major companies acquiesced to paying bribes to public officials and many were convicted, including the executives of the biggest Brazilian company, Odebrecht. In Brazil we have special official privileges or prerogatives, which means that senior political authorities answer legally to special tribunals, not as common citizens. Hence a criminal accusation against a deputy, senator or president can only be judged and investigated by the Supreme Court. That’s a very serious and tricky problem because supreme courts tend to be relatively small with a heavy backlog. Within that context in the Lava Jato case it was easier to begin investigating those who paid the bribes and their middlemen, normally money-laundering professionals. And then, upon reaching the politicians, we found that they had privileges. So what we did in Lava Jato was to resort to an investigative technique widely used throughout the world which consists of rewarding collaboration: using the testimony of one of the incriminated to investigate the others. 

It is true that rewarding collaboration has its critics and some of these criticisms may be pertinent. That technique must be used carefully but can contribute greatly to advancing in the investigation. Rule Number One is that nobody can be accused and far less convicted solely due to a whistleblower. There are those who affirm that Lava Jato was resolved by this type of collaboration but no, a lot of the evidence was correct, independently of the collaboration. For example, multi-million accounts of Petrobras executives were uncovered in Switzerland ahead of the collaboration. Any time a whistleblower was used, everything had to be reconfirmed by independent evidence. The incriminated person was thus able to say that they paid a bribe to a politician via a deposit into an account with specific numbers. If the account mentioned is investigated and the deposit found, we have pretty robust proof. Ditto for payments in kind if the item is found to exist. The important thing is to avoid preconceptions and to use the investigative techniques well but carefully. 

 

JF: How many hundreds of millions of dollars were returned in these cases of corruption? 

I left the process when I entered the government and I’ve lost track a bit. The sums recovered were very precise, whether by confiscation or the collaboration agreements – one necessary condition for an agreement was that the criminal return all their ill-gotten gains while the companies paying bribes were also subjected to high indemnities. Unless my memory betrays me, over US$2 billion was recovered in that process. 

 

When you stopped being a judge and became minister, the site The Intercept disclosed a series of tapes placing you as passing on a source to the prosecutors so that they might have accusatory information and discussing whether an operation should be postponed or not, also recommending that they not appeal the habeas corpus of an Odebrecht executive. In that Roda Viva interview mentioned beforehand, Article 254 of the Criminal Code was cited saying that a judge has to exempt himself if they are a friend or foe of any of the legal parties or if they have advised them. Would you fall under that article? And please explain the differences between Brazilian and Argentine trial procedure regarding whether or not a judge can talk to the prosecutors.

Firstly, these messages were divulged by a hacker, thus originating in a criminal action. Furthermore, we do not have in Brazil, as Argentina does, the European model of investigating magistrate. A Brazilian judge has a mainly passive role in the investigation,  deciding the requirements of the prosecution, defence or police. In general they have no determined initiative and that applies alike to Curitiba, the Supreme Court and any other forum. In an operation of that kind, which lasted several years, conversations between judges, plaintiffs and lawyers are very common. Since Lava Jato gained enormous projection, lay people do not know the role of the judge and the prosecutors so that the denunciations came to my door. 

It was very common to receive diverse narratives saying things which could be interesting about corruption here or there and which we might investigate. When we received those denunciations, we sent them to the public prosecutors without making any value judgements or guiding their investigation or advising them in any way. That happened often. But they were messages criminal in origin whose authenticity was not confirmed. The press picked them up with sensationalism but there was no improper conduct.

 

Let’s talk about the problems you had as Justice minister. They removed some of your attributes, assigning them to the Economy Ministry and the Central Bank where financial crimes are concerned. They also created an area of warranty judges with which you were not much in agreement. At the same time radars on federal highways were suspended, producing a significant increase in traffic accident deaths, where you also disagreed with the President. And finally, the Federal Police investigation into the President’s son, Flavio Bolsonaro. In Brazil people had been asking for some months: “How much more pride is Moro going to swallow?”

As minister it was possible to advance quite a bit, as I said, in fighting violent and organised crime. It was an unprecedented, historic advance for Brazil. We lowered the murder rate considerably. My task as minister was always to aim for a concrete agenda. If I had some frustrations, they were mainly due to a lack of support from the Executive branch, especially in the anti-corruption agenda. The president clearly outranked me and took some decisions himself, for example, the radars, which was decided in an instant. The power of a minister is restricted. I tried to advance with my complete agenda and preferred to pursue it for as long as I lasted, which I did until it became unsustainable. 

The president interfered politically with the Federal Police, which is a corps with a great reputation – it was they who pursued the Lava Jato investigation. They are a police who deal with special crimes, investigating organised and federal crimes, including cases of corruption. The fight against corruption is intimately related to the rule of law so that the investigating police must have autonomy. And when I felt that this autonomy was threatened, along with other situations of interference, I thought that my role in government was over.

 

I’ll ask you for a final reflection directed to academics, both those who supported your lecture and those who rejected it, regarding the freedom of expression. 

This episode of UBA’s cancellation has nothing to do with a personal question but a misunderstanding of what was Lava Jato and mainly the polarisation of the governments, which is what contaminates the climate of debate, leading to a situation of censorship.

Instead of using that word, instead of listening to explanations, instead of judging the facts, they try to shut mouths and ears. That episode was negative. There is misunderstanding and that kind of episode should serve to understand that if there is a dialogue with less rancour, we could advance towards a democratic society mainly tolerant with alien ideas. 

Despite that this has triggered a very timely debate about the freedom of expression, especially necessary in the academic sphere which has truths to express. Debate and even respectful criticism are fundamental. We want to produce science, we want to produce knowledge and debate aids that kind of construction. 

 

Jorge Fontevecchia

Jorge Fontevecchia

Cofundador de Editorial Perfil - CEO de Perfil Network.

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