Former president Lula is being investigated for alleged participation in a multibillion-dollar kickback scheme that favored his party. He is under direct scrutiny for having allegedly hidden the property of a country house and a beach apartment. He denies wrongdoing and is not yet a defendant in any criminal suit.
Meanwhile, President Dilma Rousseff faces impeachment proceedings in Congress, based on allegations of mismanagement of the country’s fiscal targets. At the same time, she’s a defendant in a lawsuit alleging campaign finance violations in Brazil’s electoral court. Although the corruption charges and the impeachment proceedings are technically distinct, they have become inseparable.
When news broke that Rousseff was considering nominating Lula to her cabinet, the opposition cried foul and accused the government of trying to shield Lula from Moro’s investigation. As a member of the cabinet, Lula can only be investigated and tried by the Supreme Court. Rousseff argued that she needed Lula’s political expertise to help deal with Congress and fight the impending impeachment proceedings.
On the day before Lula’s swearing in, and while pundits debated whether Lula’s appointment was a savvy political move or simply brought Lava Jato into the heart of the government, Lula’s private phone conversations were released to the public in time to be broadcast on the evening news on March 17.
The conversation between Lula and Rousseff that has received the most attention is ambiguous at best in support of claims that she was appointing Lula for the sole purpose of helping him escape prosecution. It was taped two hours after Judge Moro had ordered a stop to the wiretap. It was transcribed, certified, included in the proceedings, and made available to the press in haste, with no oversight, and with no consideration of the implications of wiretapping a conversation of a sitting president.
Moro also released conversations between Lula and his lawyers, between Lula’s wife and their children, and even a conversation between Lula and a political scientist offering advice as a consultant. Some conversations were embarrassing, showing Lula making use of profane language and making politically incorrect and offensive remarks about other politicians and members of the judiciary. These materials, even if accepted in court, would not help convict Lula of any crime. They were, nonetheless, politically devastating for the government, and Rousseff’s impeachment process was put in motion the next day.
Over the course of his investigations, Moro has been criticized for using aggressive tactics like holding defendants in jail to extract plea agreements and blurring the line between investigator and judge. At the same time, many argue Moro acted within the bounds of the law.
The release of the recordings, however, is another matter, and there is no obvious legal motive to Moro’s actions. Most experts doubt that Moro acted legally in releasing the recordings, and very few deny that it was an overt political move. Not surprisingly, Moro’s actions were followed by a flurry of litigation and by outraged upheaval both on the part of those who want the government out, and of those who still defend the government. We might expect such a move from a politician, but this came from a judge, which is what makes the release a watershed moment.
Judicial independence from the executive branch is essential for democracy and rule of law — but Moro’s move could represent a serious threat to Brazil’s democracy. Earlier research from Brazil cautioned against too much judicial independence and called for reforms to enhance the judiciary’s social responsiveness and responsibility. While discussion of checks and balances in government often focuses on “checking and balancing” strong presidents, Moro’s actions suggest a need to think more broadly about unchecked power in other branches of government.
If Brazil’s Supreme Court eventually decides that the release of the taped conversations was illegal, Moro might suffer a slap on the wrist, but the damage to Lula, Rousseff and the innocent caught on tape will be done. Moro’s actions might even discredit the outcome of a possibly successful impeachment process in the eyes of many, in a moment in which the political system has hardly any credibility left.
If the Supreme Court decides, on the other hand, that the release was legal, then Moro will have succeeded in using his popular clout to free the judiciary from checks on its power. Even if the release was done to achieve a goal that polls say most Brazilians desire, there is no silver lining. Moro will have paved the way for other judges to follow suit, ignoring people’s rights to privacy and attorney-client privilege. An independent but unchecked and politicized judiciary bodes poorly for democracy.