Pope Francis, in a June speech, denounced the misuse of judicial powers against perceived enemies, saying that “lawfare” is “generally employed to undermine emerging political systems,” and puts democracy at serious risk.
The judges in the audience from his native South America are likely to have guessed exactly what he was talking about. Over the past few years, a growing anti-corruption crusade exposed shocking levels of graft across the continent and rocked the political systems of a half a dozen countries. While the investigations—the most important of which is Brazil’s Lava Jato, or “Car Wash”—initially enjoyed widespread support, it became clear that the line between legal and political goals was blurred. Most famously, Sérgio Moro, the judge in the Car Wash case, ordered the imprisonment of former President Luiz Inácio “Lula” da Silva, removing the front-runner from Brazil’s 2018 election. Moro then took a position as hugely powerful “super justice minister” in the far-right administration of ultimately victorious Jair Bolsonaro, one of the most extreme figures in global electoral politics.
But if the pope had reason to worry in June, all of Latin America now has reason to be horrified. Over the past few months, private messages initially leaked to The Intercept Brasil have pointed to serious wrongdoing and abuse of power at the heart of Lava Jato, and the revelations keep coming. It is now apparent that Moro was not acting as impartial judge, but actively conspiring with the prosecution to make sure Lula, as the popular center-left former president is widely known, was put behind bars. The prosecution presented evidence against him despite knowing it was weak; Moro gave the team tips on how to go after Lula and attack him in the press. The most recent of many explosive reports indicate prosecutors coordinated to put pressure on Brazil’s Supreme Court, including by looking for evidence to use against one prominent court justice.
“For decades, we had this clear narrative that in the 1980s, we transitioned from dictatorship to democracy, and made a clean break with that past,” Matias Spektor, a professor of international relations at the Fundação Getúlio Vargas university in São Paulo, told me. “Lava Jato revealed just how imperfect this transition was, that at the heart of our democracy, corrupt practices endemic to authoritarian regimes are still very pervasive—and, now, the tragic irony of it all is we learn that a very small group of activist bureaucratic entrepreneurs [such as Moro and chief prosecutor Deltan Dallagnol] themselves used features of this dirty system to propel themselves into politics.”
The Lava Jato investigation started out of a small office in 2014 in the small city of Curitiba, in southern Brazil, and exposed a transnational network of bribes, especially in the energy and infrastructure sectors. Illicit transfers totaled billions of dollars, as large companies routinely paid politicians bribes while procuring government contracts. The investigation made its way to Argentina, Colombia, Mexico, Panama, Peru, and Venezuela. (In the most dramatic result, former Peruvian President Alan Garcia killed himself this year rather than face imprisonment by prosecutors working with Lava Jato.) All of these countries are watching what happens in Brazil.
The leaked messages seemed to have reversed the dynamic between Bolsonaro, a former military officer who was an outspoken supporter of Brazil’s dictatorship as a congressman from Rio de Janeiro, and Moro. The judge, often depicted heroically by national and international media during his meteoric rise, might have been powerful enough to rival the president, but is now a hostage to radical Bolsonarismo, best understood as a violent obsession with destroying the left combined with contempt for democratic institutions. Weakened, he serves at the pleasure of the president, whose own family now appears to be linked to the dirtiest and darkest elements of Brazilian politics, including the violent paramilitary milicias that control much of Rio. Egregious violations apparently committed by Flávio Bolsonaro, one of the president’s three adult sons, have not led to any arrests or serious investigation.
This isn’t the strongest moment for South American institutions. Support for democracy has dropped in recent years, as the end of a commodity boom led to economic slowdown; crime levels remain shockingly high in many countries; and voters watched many of their elected leaders hauled off to jail. In 2018, 71 percent of Latin Americans told the Latinobarómetro polling service they were somehow dissatisfied with democracy—up from 51 percent in 2008. According to the latest Pew “Global Attitudes” survey, only 8 percent of Brazilians say that democracy is a “very good” system—the lowest among the surveyed residents of more than 30 countries. In Argentina, that number was 32 percent; it is 22 percent in Chile, and 9 percent in Mexico.
“Scandals that involve judges are even more dangerous to democracies than scandals that involve other institutional actors, since the judiciary only derives its legitimacy from the claim to neutrality,” Donatella della Porta, a professor of political science at the Scuola Normale Superiore in Florence, Italy, and expert on corruption and anti-corruption campaigns, told me. Moro famously modeled his own crusade on Mani Pulite, or “Clean Hands,” the Italian anti-corruption investigation that started in the 1990s. Mani Pulite weakened and discredited the political class, forcing a re-branding, but did not reduce overall corruption, della Porta said.
“There are not many examples of truly successful anti-corruption campaigns,” she added.
She said that investigative journalism had raised awareness in some cases—but that the other way these battles have been fought, with a mobilized judiciary leading the charge, usually has serious consequences.
“They divide public opinion, and politicians defend themselves by saying the judiciary has been politicized,” she said. “In Italy, this accusation was inaccurate, but in Brazil, it’s been proved to be true.”
The judiciary isn’t the only thing to be politicized. In the first six months of Bolsonaro’s government, his opposition to anything that smelled vaguely leftist or “politically correct” has had global consequences. Destruction of the Amazon, already a serious problem under the Social Democratic governments of Lula and his successor, Dilma Rousseff, has exploded. Bolsonaro responded by firing the head of the scientific body that reports the data, which the president called “lies.”
Bolsonaro responded to The Intercept Brasil’s revelations by threatening to jail the journalist Glenn Greenwald for unspecified crimes. In response, the Brazilian supreme court barred the administration from investigating Greenwald and his journalism, an exercise of his constitutional rights.
Like in much of South America, Brazil’s democracy is only a few decades old in its current iteration; during the Cold War, US.-backed coups resulted in murderous right-wing authoritarian regimes taking power in most of the region. This history has led a few Latin Americans, especially on the left, to wonder aloud if “lawfare,” or the misuse of judicial powers against perceived enemies, is the new mechanism through which conservative elites, or foreign governments, or international capital, undermine democracies, taking the place of the old-fashioned military putsch. Lula himself, in an interview behind bars, told The Intercept he suspected the U.S. Justice Department was behind Lava Jato, though he offered no proof.
The Catholic Church, especially in Brazil, was one of the most important opponents of human rights abuses committed by the era of anticommunist dictatorships. Francis sent Lula a letter in jail earlier this year, encouraging him to keep the faith, and released a video about judicial propriety after the revelations about Lava Jato emerged.
The Intercept, partnering with Brazilian outlets including El País, Folha de S.Paulo, UOL, and Veja, says it is working on a number of new stories, and still processing much of the leaked material in its possession. The goal is to inform the public about abuses committed by judges and prosecutors, too, and thereby strengthen the anti-corruption movement, the publication says.
“Before Lava Jato, we were in the gutter with our eyes shut,” said Spektor, the university professor. “Now still we’re in the gutter—okay, maybe we’re even deeper in the gutter—but with our eyes wide open.”
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