President Lula, Judge Moro and Poor Judgment / by Mark Langevin

Federal Judge Sergio Moro and former President Lula

Federal Judge Sergio Moro and former President Lula

This week Brazilian Federal Judge Sergio Moro convicted former Brazilian President Luiz Inácio Lula da Silva of corruption and money laundering and sentenced the political icon to nine years and six months of jail along with a fine of nearly $209,000 USD. Judge Moro found Lula guilty of receiving a beachfront apartment in Guarujá located in the state of São Paulo. According to Judge Moro, Lula received the apartment and its reforms (valued at over $1 million USD) from the Petrobras contractor Group OAS in exchange for his direct influence over Petrobras and its decision to award contracts to this company.

The court found that OAS documents indicated that after the company took control of the beachfront condominium community in 2009 it proceeded to reserve and reform the “triplex” apartment for then President Lula and his late wife Marisa. Judge Moro commented on the evidence and argued that Lula and Marisa did not effectively communicate their decision to exercise an option to purchase the apartment after 2009, a violation of the rules imposed upon all the condominium members.

Lula’s lawyers, Cristiano Zanin Martins and Valeska Teixeira Martins, argued that the apartment was never owned by Lula or his wife, and that evidence exists that the apartment was being sold to another buyer with financing from the Caixa Economica. Lula’s defense team also insisted that Judge Moro was biased throughout the proceedings, engaged in arbitrary rulings, and should have recused himself from the trial. Indeed, Judge Moro has been scrutinized by his apparent decision in 2016 to secretly wiretap, record, and leak a conversation between then President Dilma Rousseff and Lula regarding the latter’s nomination to become the Minister of the Casa Civil (chief of staff) and evade Moro’s jurisdiction. The questionable leak led the Supreme Court to annul Lula’s nomination, effectively keeping the former president in Moro’s courtroom.

The trial of Lula has confirmed that the former president did not take active measures to avoid the appearance of “pay to play” procurement based corruption; a scheme thoroughly documented through Judge Moro’s Lava Jato prosecutions.  Pay to play corruption preceded Lula’s election in 2002 (for an excellent analysis of the scope of corruption and lack of prosecution prior to 2002 see Antonio Lassance’s article in Carta Maior), but it took on greater scope and political importance during Brazil’s rapid economic expansion from 2004 to 2010. Increasing government revenues, the rapid expansion of Petrobras, and its procurement contracts opened up the possibilities for pay to play corruption to finance major political parties and their candidates, as well as enrich Petrobras directors and several intermediaries (often known as “doleiros”).  Clearly Lula and his government benefited in the short term as pay to play served to expand the Workers Party influence around Brasilia as corruption flowed into campaign slush funds (known as “Caixa 2”) to elect and reelect candidates across a broad spectrum of political parties (see http://meucongressonacional.com/). Few, including Judge Moro, had any idea of the pervasive scope of the Lava Jato scheme, but it has tainted almost every leading political figure, current President Michel Temer, prominent political parties, and Brazilian building and engineering contractors. Throughout the first decade of the 21st century Lula and his Workers Party did little to confront the Lava Jato scheme and replace it with a transparent campaign financing system. This neglect has cost the party, condemned Lula, and all but shipwrecked the country. Lula’s poor judgment and his inability or unwillingness to set the record straight on the Lava Jato is catastrophic even if Judge Moro’s conviction is light on evidence and heavy on judicial bias.

President Lula and Federal Judge Sergio Moro missed an historic opportunity during the trial. Judge Moro has zealously pursued the former president through Brazil’s odd system for Federal judges that allows them to act as prosecutor, jury and judge all together in a confusing whirlwind of conflicting institutional interests. Rather than tread lightly and guarantee constitutional due process, Judge Moro used every power under his authority to publicly condemn Lula before the trial began, and may have engaged in unethical or illegal acts related to the wiretapping of then President Dilma. He also selected to hear a case based on evidence that does not clearly indicate that Lula enjoyed or benefited from the beachfront apartment under the control of OAS, which would seem to be an essential condition of any Quid pro quo; that any suspected influence peddling on OAS’ behalf be contingent upon a benefit enjoyed by the president. The underlying evidence and logic of Lula’s trial suggests that Judge Moro was zealous about this particular case, a relatively weak case in light of the scope of the Lava Jato scheme.  Why did Moro choose this case, one that did not feature a smoking gun or evidence that Lula directly owned, enjoyed, or benefited from the OAS apartment? The answer: poor judgment by Judge Moro.

Poor judgment by Lula and Moro leaves Brazil in the lurch. Lula’s popularity increased in the weeks prior to his conviction. Moro is just as popular, but among those impressed by his work or deadest against Lula and the Workers Party. Their popularity provides each ample limelight, but together they are unbeatable. Lula and Moro missed a great opportunity to shed light on how politics really works in Brasilia and throughout the state capitals of the nation. Procurement based pay to play corruption is really just a systematic function of a broader institutional requirement based on money in politics, a dysfunctional condition that condemns candidates and their parties to seek out dark money and assemble slush funds to win, to become elected. Judge Moro should be applauded for his x-ray of the function, but his trial of Lula distracted Brazilians from the dysfunction of the system. Former President Lula also punted, choosing to defend himself rather than publicly attacking a system of campaign finance and pay to play procurement corruption that undermines the democratic principle of one citizen – one vote. Poor judgment.

What if Judge Moro had tossed the charges aside, but on the condition that he and former President Lula sit in front of the cameras and together explain what democracy looks like in Brazil?