Lula & now imprisoned Chief of Staff José Dirceu - Better Days

Colluding Against Brazil’s Criminal Justice System? Good Luck.

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The Minister of Justice, Eduardo Cardozo, resigned about a month ago, buffeted by pressures to reel-in the Federal Police. No one doubts what these pressures are about – the ferocious prosecution of the Car Wash (Lava Jato) investigation. Now the government is apparently looking to replace the director general of the Federal Police, who is administratively and financially beholden to the Minister of Justice. This ostensible ‘neutering’ of the Ministry of Justice and the Federal Police is a first political stab at bringing the Car Wash investigations to an end, which is something a large and powerful segment of the political establishment – both coalition and opposition parties – desire.

Never before in Brazil have large swaths of the political elite been so humiliated by revelations of graft. The Car Wash investigation has surpassed the mark of one hundred search-and-seizure warrants, implicating and jailing government politicians, private sector tycoons, as well as leaders of the opposition. The danger of having Lula in government is that he may be able to orchestrate a truce among major political players in return for making the Car Wash Scandal go away. Just as Lula’s PT government was responsible for a giant legislative vote-buying scheme (the Mensalão – see my and Carlos Pereira’s forthcoming article on the subject) that saw 28 public and private officials go to prison, so too may the collusive ethos of another de facto Lula government be able to bring the political elite together against further incriminations.

Fortunately for Brazil, the two other major powers involved, the judicial branch and the constitutionally autonomous public prosecutor’s office, appear to be relatively impervious to political exorcisms. Just yesterday, Supreme Court Justice Luiz Fux – a Rousseff appointee – denied an appeal by the Attorney General to remove an injunction against Lula’s assumption of the President’s Chief of Staff (Ministro da Casa Civil), the second most powerful post in government. Lula’s inability to gain ‘special standing’ privileges by assuming the Ministry diminishes his leverage and paves the way for the continuation of the Car Wash Scandal and the ultimate impeachment of Dilma Rousseff.

2 Comments

  • Always happy to read your posts. On this one, however, I think you’re oversimplifying.

    For one thing, the federal police, whomever is running it, is legally bound to carry out the orders of the federal prosecutors in charge of the Lava-Jato investigation. Changing the minister of justice won’t change that. However, the new Minister’s insistence on stopping leaks by the police is not only legally correct — information about ongoing procedures are, in principle, not public as long as a formal accusation hasn’t been made (at which point the evidence collected by the police is integrated into the criminal procedure record) — but also in the public interest, as judgment by public opinion, prior to any actual trial, is not compatible with a democratic State. Regardless of what any of us thinks about the responsibility of Lula, Dilma or anyone else, respect for criminal procedure went out the window, and needs to be brought back if the procedure, and eventual convictions, are to be taken seriously. As the Common law has long held ‘Not only must Justice be done; it must also be seen to be done’.

    As a general matter, I don’t see the Lava Jato inquiry disappearing, whatever happens to the Federal Police, or to judge Moro’s position as the magistrate in charge. Should Moro be replaced, and should the federal police stop leaking information, the procedure will continue regardless. But perhaps, it will be seen as less partisan. Lula’s appointment to chief of cabinet doesn’t change the judicial situation that much — after all, José Dirceu occupied precisely that position when he was prosecuted and found guilty by the very same Supreme Court –, although it might just create enough political stability to save Dilma from the impeachment procedure.

    Whether that is fortunate or unfortunate depends on your personal opinion on the merits of the impeachment procedure. I happen to be one of those who thinks that the ‘pedaladas’ do not constitute the kind of impeachable offense that the opposition claims it is. But then again, at this stage, whatever allegations were filed in Congress have next to no bearing on what Congress will do when it is time to vote. All that matters, in Congress right now, is the voting arithmetic. Which again, seems to set a very dangerous precedent in a democratic State. Impeachment is not the same as a recall election: we can’t have elected governments kicked out of office on the simple basis that Congress doesn’t like it, or because a coalition partner wants something that the government doesn’t want to give. We are, after all, not a parliamentary country.

    • Very nicely articulated, Matthias – agreed on almost all accounts. You make a particularly good point about the susceptibility of the Casa Civil to prosecution, given the Dirceu precedent. If you read my previous post (below), you will see I support your contentions about leaking and justice. Very nicely said and thanks for coming back!

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