Judge Sergio Moro Is to Blame for Jair Bolsonaro’s Far-Right Presidency
Despite having one of the largest public health systems in the world, the capacity to produce its own vaccines en masse, and a noble history of past mass vaccination campaigns, the government opted to pursue a political strategy of promoting mass death as a response to COVID, according to former health minister Luiz Henrique Mandetta (Brazil is now on its fourth health minister since the pandemic began): “When the pandemic came along, there was a choice between life and death. Bolsonaro chose death.”
Jair Bolsonaro’s government has the death of thousands on its hands. But Bolsonaro would not have been elected if not for the efforts of former anti-corruption superstar judge and ex–justice minister Sergio Moro and the “Lava Jato” (“Operation Car Wash”) anti-corruption investigation, who secured his election by jailing the leading contender in the polls at the time, former president Luiz Inácio Lula da Silva.
As of earlier this month, Lula is back, after a Supreme Court ruling quashed his conviction. Now, following a characteristically arcane legal process, another historic Supreme Court ruling initiated by Judge Gilmar Mendes has found that Moro was biased against Lula in his handling of the case. The result of the verdict is that evidence gathered by Lava Jato investigators in the trial cannot be used in another trial against Lula again.
No figure personifies the decline of Brazilian democracy better than Moro. He was once an anti-corruption hot shot, a celebrity crusader judge celebrated across the world, and perhaps the most popular public figure in Brazil, heralded by the Financial Times as one of the fifty individuals who shaped the decade. Now, after a failed stint as justice minister in the Bolsonaro government, his legacy will forever be tied to Bolsonaro’s catastrophic presidency.
In the words of Supreme Court judge Gilmar Mendes, “Lava Jato will go down as the biggest judicial scandal in history.” Courts had ample evidence of judicial corruption years before the Intercept’s Vaza Jato (“Jet Leak”) investigation broke. Moro, for instance, illegally tapped Lula’s and then-president Dilma Rousseff’s phones, then leaked recordings of their conversation to the media. Even before the investigation, it was clear to many critical commentators that the methods used by the investigation were questionable at best, and flagrantly criminal at worst. And they were aided by the United States’ Department of Justice.
As Lula’s defense team noted after receiving the verdict, “We suffered all sorts of illegalities in Lava Jato, some of them described in the ruling that recognized the bias of the former judge, such as the illegal monitoring of our phones so members of the investigation could follow the defense strategy in real time.” Mendes, citing the opinion of Bernie Sanders, noted, “the Tribunal of Curitiba [Moro’s court] is becoming known worldwide as a tribunal of execution.”
The ends justified the means. As an old saying attributed to Brazil’s ex-dictator/president Getúlio Vargas and former Peruvian president Óscar R. Benavides goes, “For my friends, everything; for my enemies, the law.”
Moro represents what has been called “the judicialization of politics” in Latin America, an outgrowth of military impunity and institutional weakness, meaning that judges act as openly political actors. In a country like Brazil, the judiciary is a caste, enjoying immensely generous privileges and staffed by a white, bourgeois demographic. By virtue of its history, members of the judiciary are entirely comfortable working under authoritarian regimes.
Beginning in June 2013, protests and economic crisis generated anti-systemic energies across the Brazilian polity. Citizens increasingly rejected “the system,” sometimes inchoately. Brazil’s right-wing political class, aided by big capital and the media, managed to use Lava Jato to channel much of the collective rage and frustration toward support for a faction of the judiciary who portrayed themselves as able to singlehandedly rid the country of systemic corruption.
As the journalist Reinaldo Azevado, who is no friend of the Workers’ Party, put it, Lava Jato was part of an “era of judicial terror.” Preemptive detention, threats to family members, illegal wire taps, and all sorts of questionable intimidation tactics were used to get results in the investigation. All was justified in the struggle against corruption. This was in turn promoted as a modernizing, heroic defense of the rule of law and accountability abroad.
Political scientist Leonardo Avritzer argues that Moro became the personification of anti-politics in Brazil, the rejection of the idea that problems can be solved through the typical political institutions and representatives. According to this approach, the basics of politics — negotiation, coalition building — should be abandoned, as they are intrinsically tainted by the stain of corruption. Politics and the rule of law must be discarded in order to solve the country’s corruption problem.
As João Santana, the PT’s spin guru convicted by Moro for corruption, suggested, “Lava Jato was the best system of marketing in Brazilian history.” Leaks to the media were timed with arrests, and Moro could more or less dictate the tone of coverage and headlines of the investigations and trials for years.
Supporters of Lava Jato embraced the judicial version of “rouba mas faz” (“he robs but gets things done”): judicial corruption was fine, provided it delivered convictions of the right people.
Tellingly, many of Moro’s most vigorous defenders outside of Brazil have become rather quiet of late. The best they can manage is moaning about how these latest verdicts will make Brazilians lose faith in anti-corruption efforts.
Brazil was divided then between “the pure,” who were “against corruption,” and “the impure,” who were somehow for it. With the backing of the media, the judiciary took it upon itself to go beyond legal norms to punish the corrupt. Governance was replaced by moralism — articulated through the judiciary in the figure of Moro.
Moro was the lone “good man” standing against a sea of mud. Rather than being a set of coherent political positions and demands, anti-corruption was transformed into support for the operation and its heroic judge. As I have argued elsewhere, corruption is a form of governance in Brazil. Almost everyone is guilty of it. Anti-corruption can easily be strategically deployed as a political weapon, provided you have enough cops and judges backing your play whenever and against whoever you need to.
The mere presence of Moro was seen as enough to signify that the Bolsonaro government was committed to anti-corruption, even if the president’s entire political career had demonstrated his fidelity to the petty corruption of Brazil’s political class. This mythology of the lone good man would also enable Bolsonaro to run as an anti-corruption candidate who would put an end to impunity.
Moro: A Man of the Far Right
Moro’s political trajectory wasn’t the result of poor choices or errors made in pursuit of worthy goals. As Rodrigo Maia, ex-president of Brazil’s Congress, once said, “Moro is a man of the extreme right.” Former presidential candidate Ciro Gomes agreed, calling Moro a “fascist” who “even dresses like fascists of 1930s Italy. He is always wearing a dark jacket over a dark shirt. Moro . . . arrested a political opponent, removed him from the election, and then accepted a nomination to be minister for the [candidate, Bolsonaro,] that won the election.”
Moro’s presence in cabinet granted the Bolsonaro government a fig leaf of international and institutional “anti-corruption” credibility. For instance, one contributor to Foreign Policy argued that the world should not “overreact to the rise of a sharp-tongued populist . . . After all, if there is one thing a caudillo should fear, it is a strong, independent, and multi-layered judiciary — exactly the kind Brazil has.” Moro was the very personification of a strong independent judiciary, and Bolsonaro was signaling to the world he would respect its autonomy and the rule of law by appointing him as his “justice superminister.”
Bolsonaro and his clan’s contempt for democracy, dodgy deals with questionable characters, and ties to organized crime were clear to anyone who bothered to pay attention before he was elected. They would either have to turn a blind eye, be willfully ignorant, or simply support the type of candidate who openly advocates extrajudicial killing and defends torture.
Bolsonaro, a serial party swapper, spent the majority of his political career as a member of the Progressive Party — a strong candidate for being the singularly most corrupt party in Brazil, embodied by its leader, the legendarily corrupt former São Paulo governor Paulo Maluf. Maluf dedicated his life to two things: building impressively overpriced infrastructure projects and robbing the public purse. He is currently serving house arrest after a corruption conviction for receiving $334 million in bribes during his last stint as mayor of São Paulo, between 1993 and 1997.
Most of Moro’s time as justice minister was spent trying to pass an anti-crime bill that would have shielded police from accountability after killings and attacking journalists. His record in the Bolsonaro government was described by one Folha de S.Paulo columnist as “the most important center of support for authoritarianism in the government.”
When COVID-19 arrived in Brazil, Bolsonaro’s government launched what might be the world’s worst response to the pandemic. At that time, he faced upheaval within the ranks of his own cabinet and more than thirty impeachment requests sitting at the desk of the president of Congress. As pots clattered every night to chants of “fora Bolsonaro” (“Bolsonaro out”), it seemed for a moment that the pandemic might put an end to his government.
But the very opposite happened. Bolsonaro handed over billions of dollars to the most venal sections of Congress — and with that secured his presidency’s future. He then made his final break with Lava Jato by appointing a tame prosecutor general and directly intervening in the federal police to quash investigations into his family. Moro resigned, Lava Jato’s leading figures were forced out, and the investigation’s powers were curtailed.
But while this might have ended any lingering delusions that a fundamental break with Brazil’s culture of endemic corruption had been achieved through Lava Jato, it has also institutionalized “anti-corruption” as the way to fight political battles.
While the chants of “fora Bolsonaro” are once again being heard across Brazil, the president is currently safe from sixty-two separate impeachment counts, even if his popularity has begun to fall and he is showing signs of visible fear following Lula’s return to the political arena.
Moro is a failed cabinet minister and ex-judge who, if there is any standard of justice left or commitment to the rule of law in Brazil, should face consequences for his actions. (It is telling that Moro’s current gig is as a consultant for an international law firm that includes the construction company Odebrecht, which was at the center of the Lava Jato investigation, as one of its clients.)
There has been speculation for years that Moro might run for president as the “moderate” or “centrist” anti-Bolsonaro candidate in the 2022 election. But, given his role in electing the ex-army captain to the presidency, Moro’s rebranding of himself as a member of Brazil’s “resistance” is as openly absurd as the Lincoln Project.
I doubt Moro will ever be a serious future presidential candidate. As Ciro Gomes has repeatedly pointed out, the majority of Brazilians like the idea of Moro, the image of the crusading anti-corruption superstar propagated by the media, more than the man himself. Moro doesn’t have much charisma nor a popular touch. If he does go into politics, it will be in Congress, where he will, among other things, look to secure the Congressional immunity that comes with the position in order to protect himself from the legal repercussions for his many misdeeds.
The long-term consequences of Brazil’s anti-corruption crusade are the discrediting of the 1988 constitution and the democratic order it created in Brazil, now itself deemed corrupt and an obstacle to dealing with the country’s bad guys. An authoritarian whose entire political career is based upon the rejection of the constitution is in power, and Brazil is staring into the abyss.