Batista’s recording of the midnight meeting appeared to show Temer approving a bribe. And when the contents of the tape were leaked last week, Brazil ground to a halt. The stock market crashed, Congress stopped functioning and Brazilians tuned in to the evening news in near-record numbers. Now Temer is at risk of impeachment, and the future of Latin America’s biggest country may rest on what was allegedly caught on this hidden recording device.
The facts of the situation — including the integrity of the recording itself — are still in serious dispute, but one thing is nearly certain: This will not be the last time a secret recording roils Brazilian politics. “I think we will see more secret recordings in political corruption cases,” predicted Carlos Ayres, a Sao Paulo lawyer who specializes in compliance and economic crimes.
Leaked recordings have become game-changers in Brazil’s fight against political corruption, exposing malfeasance at the highest levels of power — and apparently spreading some paranoia among them. In one of the recordings released last week, an informant testified that a Brazilian senator had asked to speak about a bribe in a sauna. The informant noted it was only “when he entered the sauna, we were both alone, in a clearly protected environment, without clothes, without which I could [not] be recording . . . [that the senator] began to talk.”
So why the recent explosion of leaked tapes? “Wiretapping is not very new in Brazil,” said Bruno Brandão, manager of the Brazil program at Transparency International. “What is very new are sting operations.”
In 2013, Brazil’s Congress enacted the Law Against Organized Crime, which legalized stings on groups of suspected criminals. Those operations may include phone-tapping or videotaping.
The law was originally drafted to help police investigate drug traffickers or even would-be terrorists. Brazil was preparing to host the 2014 World Cup and the 2016 Summer Olympics; politicians were looking for ways to deter criminal interference in these massive events.
But Brazil had also just experienced a huge corruption scandal, nicknamed the mensalão, which centered on a vote-buying scheme. That scandal was sparked by a leaked video showing discussion of the plot. Even though the organized crime law was written primarily with street crime in mind, police began using it to root out white-collar crime in light of the new wave of political corruption investigations. As the number of corruption cases has boomed, so has the number of leaks.
Often, recordings like the one that caught Temer speaking to Batista should be handled much like sealed court documents until a wiretap is closed or a plea agreement is ratified. In reality, they are often made public.
One of the first such recording bombshells happened in March 2016. As part of the Operation Car Wash corruption investigation, in which federal prosecutors are investigating widespread corruption linked to government contracts with the state-owned oil company, Petrobras, the phone of former president Luiz Ignácio Lula da Silva was tapped. The judge presiding over the investigation, Sergio Moro, released the tapes to the public.
Excerpts of the phone calls were played on Brazilian prime-time TV for days afterward, drawing delight from some Brazilians. They saw the tapes as a satisfying glimpse into what was happening in the investigation and proof that Moro was deserving of his heroic reputation. Some opponents of Lula and his successor, Dilma Rousseff, were also thrilled by the release of the tapes, which seemed to show the corrupt behavior they suspected all along.
But other Brazilians questioned why tapes used in an ongoing investigation were released to the public. Some even called for the removal of Moro, who has since said that investigating the sources of other leaked recordings was akin to “ghost hunting.” The tapes ultimately led to the impeachment of Rousseff and the installment of Temer in her place.
Despite the seeming value of leaked recordings in promoting transparency, Brandão of Transparency International called the leaks “a systemic problem here.” While the leaks make the news only when they involve the highest levels of power, he said that “the leaking of secret judicial information is a reality throughout the country.” And when small-town whistleblowers are identified via leaks, he said, “it can be a matter of life or death.”
Kathleen Clark, an expert on secrecy and whistleblowing at the Washington University School of Law in St. Louis, pointed out that, “if not limited in scope and limited by law,” wiretapping and surveillance can undermine democracy, because “people will not feel free to explore ideas and relationships without undue fear.”
But she also admitted that, in the United States, “video and photographic evidence has proven much more powerful than mere words” in convincing people that major societal problems are real. Clark noted that videos showing police shooting or abusing black men seemed to “get through to many white people who had denied such incidents occurred,” leading the recordings to serve as a potential driver of social change.
The same might be happening in Brazil. While most Brazilians may not need much convincing that their politicians are corrupt, the videos and tape recordings have gone a long way to convince them of political corruption’s incredible reach.
While wiretapping is helping to identify the dirty players, for Brandão it also “creates a paranoia and a lack of trust, where meetings are held in saunas. And that is never going to be the optimal scenario for creating a society where integrity is a shared value.”