The lords of the law: foundations and functions of operation “Car Wash”*

By Rogerio Dultra dos Santos**

Translated by Brigada Herzog

The world watched, on that fateful April 17th a Sunday of horror for Brazil, the initial approval of the impeachment process of President Dilma Rousseff without sufficient presentation of legal grounds. This was, among other factors, result of the distorted electoral system based on businessfunded campaigns.

But the consolidation of the coup – as most of the international press understood what is happening in the country – cannot be explained only by Dilma Rousseff’s government defeat at the House of Representatives. There are several other factors, such as street demonstrations that divided the country; media oligopolies, transformed into a party of the wealthy classes; the lack of solidity of Rousseff’s government in keeping control of enforcement agencies; the economic crisis; and even the seditious articulation by VicePresident Michel Temer, underway since mid2015.

One of the greatest threats to democracy today, that can eliminate the dream of elections free from external interference in accordance to a democratic state which has always existed in fact just for wealthy sectors is called operation “Car Wash”.

What is operation Car Wash?

 Even the origin of the operation Car Wash is problematic. Justified by a federal police investigation, it began in March 2014 aiming to inquire possible money laundering in a Curitiba gas station (hence the name), coming to discover bribes in Petrobrás, the Brazilian semipublic company of oil, gas extraction and refining. The first indicted and arrested by the operation were Alberto Youssef, a blackmarket exchange broker and Paulo Costa, former Director of Oil and Gas at Petrobrás, who received a car as a gift from the money dealer.

In fact, this “public” source legitimizes the continuity of the operation in Paraná state Federal Justice, justifying why it wasn’t submitted to the Supreme Court, nor decomposed in various processes addressed to other states, where most crimes occurred. Judge Moro argues based on the first process that gave him national prominence, the investigation of fraud in 2006 at Banestado, Paraná state bank, as it involved the same blackmarket exchange dealer Alberto Youssef and the deceased politician José Janene (Progressive Party), investigated for tax evasion through the Curitiban dealer. Because of this, Moro would be the competent judge to receive cases related to Petrobras.

The problem is that the wiretapping that underlies this link and which would authorize Judge Moro’s competence to evaluate the process was obtained illegally. In Brazilian law, the illicit origin of the evidence invalidates its use in the process.

Despite the purposes, many processed by the operation are politicians with current mandates, therefore entitled for trial directly by the Supreme Court. Object of numerous complaints and requests, Judge Sergio Moro has assumed to himself all inquiries opened in other states, without competence or jurisdiction for so.

By any means, based on plea bargains, a fairly recent addition to the Brazilian legal system, the operation presented to national media an intricate bribery scheme and illegal campaign financing (the socalled slush fund), involving construction companies, Petrobrás directors and politicians from different parties.

Prosecutors from the Government Attorney’s Office in Curitiba, the city where the operation started, were organized along with the 13th Specialized Federal Court presided by Judge Moro, in order to carry out the plea deals and articulate new investigations, which succeed in “phases” currently the operation is in its 25th phase together with the Federal Police. This is the “task force”.

The Car Wash task force took dimensions of a “fourth power” in Brazil, surfing the “anticorruption” wave and legitimized by mass media, articulated in political opposition to Dilma Rousseff’s government in the year of her tight and dramatic reelection.

The operation has shown to be prodigious in numbers. It conducted over 480 searches and confiscations, 117 arrests, 49 plea deals, plus dozens of international cooperation agreements in several countries, 93 convictions, these accounting for 990 years of sentences. The judge and prosecutors were raised to the status of national heroes and great part of the government’s political crisis stems from their actions.

Interestingly, although a great number of politicians from the opposition parties to the government has been accused or even appeared in lists seized in investigations, the absolute majority of the ones investigated and arrested has links with the government.

A list seized at Furnas, a public power company from Minas Gerais, indicated the existence of kickbacks among its main heads, still during the mandate of the former president Fernando Henrique Cardoso. The ones now articulating Rousseff’s impeachment appear in the list, such as the defeated candidate for presidency of Brazil Aécio Neves, senator José Serra and the current governor of São Paulo Geraldo Alkmin, all from PSDB.

Car Wash snitches recently indicated that Furnas kickback scheme during Lula’s government was kept operating by Aécio Neves, but this generated no repressive action or investigation by the task force.

Related to this fact, repeated operations against government allies, especially against former president Lula, without any proof which culminated in his bench warrant last month generate strong evidence that Car Wash has, in addition to the vaunted fight against corruption, greater political objective: removing the Workers Party power and preventing that Lula, the strongest candidate for the presidential succession, is elected.

Problems of operation Car Wash

In this sense, the main instruments of operation Car Wash are either illegal and unconstitutional, or misused in a selective and biased manner.

A structural problem of the operation is its task force organization. The fact that federal police, prosecutors and criminal court are working together violates the Federal Constitution, to the extent that, in Brazil, it prevails the constitutional principle of accusatorial criminal proceedings. This means that, by our legal system, the functions of investigation, prosecution and trial are distinct and cannot be tangled or, worse, merged into the figure of a task force that acts together in agreement. If it is the same body that investigates, accuses and judges, there is no independence required by law and the Constitution. The person subjected to such procedure has his right to an impartial judge violated: a judge who is presented equidistant between the parties, in other words, who arises in a position of impartiality between prosecution and defense.

In this sense, the judicial process, supported by the right to contradictory and full defense, becomes a mere inquiry, an inquisition, where the accused or the defendant lose any condition to oppose to the charge on equal terms, since it is all tangled with the judge.

Another set of problems derives from the so called selective “leakage”. In order to politically legitimize the task force actions to the public opinion, parts or even the whole content of processes under judicial secrecy, often with personal and private information of the accused or defendants, fall into the hands of media vehicles almost in real time.

This systematic and “secret” articulation between the task force or some of its agents and the media have produced the effect of shielding the operation towards the public opinion, creating a moralistic mystical aura around its main characters. One of them, the prosecutor Deltan Dalagnoll, has conducted dozens of conferences across the country advocating a religious crusade of its activities and a complete reform of national legislation, in order to eliminate procedural guarantees and fundamental rights to “facilitate” the criminalization of corrupts.

The latest leaks produced by the operation even generated a rebuke from the Supreme Court and an “apology” request from Judge Moro. The reason was the wiretapping leaks of private conversations between former president Lula and president Dilma Rousseff and hers with ministers of state.

In accordance with the Constitution and 9296/96 Federal Law, regulating telephone interception and data, no content of judicial interception can be publicized. Its exposure is a crime with imprisonment from two to four years and fine. Thus, the judge apologized due to the real or at least legal possibility of being held criminally responsible. What, by the way, did not occur.

Another commonplace fact in operation Car Wash is information withholding or prohibition of defense attorneys accessing the entire content of documents and even the process itself. Several renowned lawyers abandoned the defense of the ones arrested or accused from Car Wash simply due to the procedural inability to hold the defense activity. Many others made public in press organs a petition with dozens of law professors and attorneys, denouncing the arbitrariness of the operation.

The cruelest resource, however, is the constant and excessive use of procedural arrests under generic grounds such as “guaranteeing public order” and “convenience of the criminal process” aiming to constrain businessmen to accept plea deals. In average, after five months the prisoners carry out denounces and are often released to respond the process in freedom. Meanwhile those who refuse to whistleblow are detained and sentenced to stratospheric jail time, as with the construction company chief executive and owner Marcelo Odebrecht, sentenced to 19 years in prison.

The way the institution of plea deals was “reinvented” by operation Car Wash violates the Constitution and Brazilian criminal law and procedure. The embarrassment of confessed defendants and coercion to admit only what interests the authorities have become the legal basis for the operation.

This type of judicial practice stimulates what is commonly called, in criminal procedure theory, preeminence of hypothesis over the fact, an usual symptom of trials with an inquisitorial nature. During inquisition, the authority constitutes an interpretation of what is believed to have happened and leads sometimes unconsciously the testimony in the direction of its imagined truth, by default of which could effectively be proven by the comprehensive evidencefinding work that characterizes the judicial system, requiring contradictory and full defense. In short, plea deals deepen the submission of the Brazilian legal system to the inquisitorial logic, essentially authoritarian and averse to constitutional guarantees.

Some plea bargains already signed with the Federal Regional Court of the 4th Region – Superior Court above Judge Sergio Moro, which is apparently guaranteeing the procedure violations, described here – prevent whistleblowers to report an habeas corpus or even demand giving up liberty pleas that might exist.

The investigation notified by reporter Sergio Rodas, from Conjur magazine, states that in most Car Wash plea deals the defense is not allowed to have access to the entire content of the proceedings for “secrecy” reasons.

The plea deals defendants – now over 30 – also have to waive the right to silence and the guarantee against selfincrimination. For most of the deals, sentence times are served in the initial regime, usually the grossest, indefinitely. All these plea bargains clauses violate constitutional and legal provisions.

While large media corporations have free and abundant access to frequent leaks of parts of the process, supposedly secret, the defense lawyers are basically prevented to know what they are fighting against, a medievalesque distortion of due process, as already pointed out by the Minister of Supreme Court Teori Zavascki about Judge Moro’s attitudes in operation Car Wash.

What operation Car Wash means in legal and political terms

It must be said that the Brazilian penal system the fourth largest in the world in prison population tends to waive sentence convictions as the basis of imprisonments. It already works as a regular and automatic incarceration bureaucracy of individuals within reach of the police apparatus. Poor people have always known the fascist side of the Brazilian criminal justice.  Defendants are detained and kept imprisoned only through clues of evidence and police arrests are backed by the judiciary in bureaucratic and misguided way.

To understand how a movement that, in theory, aims to fight corruption at the core of political and economic power has become a biased and selective political weapon, it is crucial to understand not only operation Car Wash, but also how the criminal justice system operates in Brazil.

In practice, despite the codes and numerous laws, the Brazilian repressive system, particularly the institutions responsible for criminal prosecution, was never formalistic. The legal veneer of criminal decisions has always acted as a shield for the selection and biased determination of wrongdoing. Criminal sociology calls it “artificial setting of public enemies”, which vary according to the dominant interest demands.

In the country, including due to a never extirpated dictatorial heritage, arrests are almost always held before investigation, condemnations are almost always sentenced before proving guilt. The Brazilian justice is not blind: it sees selectively.

To clarify the political role of operation Car Wash it is necessary to point out that Lula and Dilma expanded and empowered all judiciary organs, including the Federal Police, not only through career plans, wage increases, civil service exams, equipment, etc.

This empowerment was radical to the point that the Worker’s Party governments gave up their right to control the suggestions to the heads of these corporations. The triple and sextuple lists for the choice of ministers, prosecutors and chiefs, established by the Constitution to allow the coordination of government bodies such as the High Court of Justice, the Federal Public Ministry, the General Attorney of the Union, etc, supported by the democratic principle, were “respected” in a way never seen before.

Thus, the “suggestions” now invariably are the first ranked in their home agencies, which is the top rated in the civil service exam, instead of those chosen by the Executive Branch regardless of their position in the rank the classic formula of “counterweight brakes”, where the executive politically controls the directors of judicial institutions, performing in practice the balance between powers.

It turns out that this “respectful” procedure to the alleged internal democracy of the judiciary bodies, originally functional corporations, generated a perverse effect: the never before seen radicalization of corporatism. Cohesive political groups were organized towards internal struggle for hegemony, producing a political agenda of functional autonomy and independence from the Executive Branch which is not even allowed by the Constitution.

Therefore, the political agenda today led by operation Car Wash does not come only from the minds of a judge and his “advisory” prosecutors. It is the result, paradoxically, of the erosion process of democratic control over the judiciary, which is a direct responsibility of the Worker’s Party itself.

Without proper institutional control, the main objective of operation Car Wash, the “fight against corruption”, is achieved by eliminating the limits of criminal proceedings. In fact, operation Car Wash from the beginning, following an “institutional tradition”, functions as a court of exception.

The exception judgment is exercised in the manner of a monarchy without laws or as a dictatorship, i.e., by the sole will of those driving the process. The authority thus understood is not subjected to legal limits and advances not respecting them. The exception judgment has, in its horizon, a political goal: to reaffirm a certain power.

In this agenda apparently supported by the law underlies thus a moralizing project, refractory to the naturally plural and contradictory aspect of democracy. Imbued that it holds the unquestionable truth, operation Car Wash focuses on the national political life, scrutinizing their agents and obstructing its course, a religious desire for purification of what it considers odd to the Republic.

Therefore, an institution subjected to official regulatory limits is almost unfeasible when it operates a schedule based on its own interests. The institution loses its republican character, because it is not subjected to external control, nor guided by the public interest. Thus, the first big move of state agents acting on behalf of the people without being elected for so is the criminalization of politics: they discredit the elections, politicians and parties.

The problem is that the political nature of the exception judgment dishonors its excuse of cleanup and correction. In this judicial case, it is exactly the ones corrupting the process who investigate corruption in the country.

Any resemblance to Mussolini’s fascist Italy is no coincidence. Operation Car Wash was assumedly inspired in “Operation Clean Hands”, which took place in Italy in the 1990s. There the objective of exterminating the representative parties and questioning the democratic process as a whole functioned like clockwork. Nothing was less political and democratic than the Berlusconi’s successive elections, a media byproduct of openly authoritarian profile.

Underlies at this stage of operation Car Wash a legislative reform project inspired on the largest prison system in the world, the USA. The goal is the flexibility or even the extinction of fundamental guarantees to protect citizens against the arbitrary will of the penal state.

In spite of recent decisions of the Supreme Court towards the embrittlement of criminal procedural rights in individual cases, as the relativization of the presumption of innocence, the problem for the implementation of this project is that our constitutional system despite our authoritative history still provides procedural rights for Brazilian citizens that, even if prosecuted and convicted, have the guarantee of two levels of jurisdiction and all the resources inherent to it, as well as doing justice to the presumption of innocence until the final sentence.

Although the system practices systematically violate these guarantees, they do exist, almost to demonstrate that justice operators continually infringe them. The legislative purpose of Car Wash is exactly pushing this repressive practice, now illegal and unconstitutional, to become an operation supported by a new and more flexible legislation.

Thus, a change of course towards the AngloSaxon tradition of the process, as observed since the mid1990s in Brazil, while important, has not yet modified the essence of the system. Our criminal justice system, at least in its constitutional guidance, continues to be accusatory and rigid regarding procedural rights that strongly differs from the US criminal proceedings.

It can be stated, however, that relevant but scattered laws – such as the ones that deal with heinous crimes, special criminal courts, organized crime, tax and economic crimes, money laundering and drugs – shifted the dynamics of the process: the possibility for both the prosecution and judgment to negotiate the responsibility, conduct testimonies to obtain evidence and bargain sentences.

This is a clear move towards relativization of rights and “privatization” of procedures and judgments, well suited for the taste of Car Wash operators. In practice, this alien inspired legislation eases the process towards managerial efficiency and configuration of criminal cases progress based on accounting for results.

The judge, this complex figure that transpires impartial rationality and committed without embarrassment to the need to meet the “public opinion”, becomes a manager of social expectations and the case progresses beyond the constraints and limitations that legal rules can impose.

This way, it opens wide the decisionist character of the law and the inescapable fact that political and economic reasons guide the process management. The judge becomes thus an overdetermined agent for purposes beyond those strictly legal regarding the criminal case.

Bargain, transaction, negotiation and bluff are the new tools Brazilian criminal proceedings have to offer, in order to achieve its social objectives of criminalization of poverty and politics. Although there are differences between the process of criminalization of poverty and of politics, the fact is the same instruments and principles are working for both in these Car Wash days.

Has operation Car Wash gone well for Brazil?

Two days before the outbreak of the 24th stage of the operation Car Wash the Minister of Justice requested exoneration. Thus, last March 4th, Judge Sergio Moro, violating the Code of Criminal Procedure, authorized the bench warrant of former president Lula, who testified under false imprisonment for a few hours at Congonhas Airport in São Paulo. If it wasn’t for the immediate popular reaction that filled up the airport in protest, Lula probably would have been taken directly to Curitiba, operation Car Wash Q.G., and arrested.

This operation was flagrantly illegal because Lula had not been subpoenaed prior to testify at operation Car Wash, nor even had refused to testify – the two requirements that would authorize bench warrant under the Code of Criminal Procedure. Lula had never refused to testify at the operation Car Wash exactly because he had never been subpoenaed.

In these dark times in which the judicial decisionism – as says professor of law Gisele Cittadino – arrests to force plea bargains for certain interests, archives investigations against friendly political actors, selectively leaks testimonies that support their version to prove, and holds various tribunes asking for popular support, what does the Supreme Court, guardian of the Constitution, do?:

Since then, as a strategy to not risk a single scratch on its own authority, the Supreme Court has been watching, paralyzed, excesses of authority from a judge of the 13th Court from Paraná. Since it believes its legitimacy derives solely from the fact it is authority, putting limits on the authority of others institutions seems to represent, for the Supreme Court, limiting itself.

The truth is that, although liberal in individual rights matters, the Supreme Court, especially considering the relativization of the presumption of innocence principle, after decisions in several cases has unveiled its conservatism in criminal matters.

Moro, the legal operator of Car Wash, for contradicting neutrality and throwing open the politicization of justice, compromises and exposes the judiciary. In the shoes of a righteous avenger, he negates the very raison d’être of justice, pushing the judiciary away from the position of guarantor of democracy and becoming a powerful political actor, without the corresponding responsibility from political agents required by the Republic. Thus, the conductor of the process goes through a real enthronement, a ceremony that celebrates his figure and places it at the center of social and moral expectations, as an example and guide of what to do.

The judge and prosecutors of Car Wash are not questioned by leaks, statements outside the judiciary law, awards received with rejoice on national television, nor comments on ongoing processes. They are celebrated, considered representatives of the sound elite, fighters of the difference and exterminators of barbarism.

A balance of operation Car Wash stages quantified recovering from corruption the sum of R$2.9 billion, approximately US$820 millions. During these phases, as above stated, it was conducted the arrest of a number of officers and directors of construction companies, oil companies and even Eletronuclear, responsible for building the first nuclear submarine with national technology.

The problem is the operation resulted the retraction of these sectors of the productive chain, generating an estimated loss in economy of R$60 billions, approximately US$17 billions. The  deepening economic crisis, significantly stimulated by operation Car Wash, led in a straight line, the further development of legal uncertainty, political and economic, and the unprecedented crisis that threatens to destroy the country instead of saving or purifying it.

Demand due process is now considered a desperate attitude of those who feel persecuted, instead of a basic need that makes social life possible among the differences, or a collective guarantee, rational and objective of freedom, to stay within the liberal constitutionalism tradition. This is the current tragedy in Brazil: the existence of these lords of the law, who play as they want with our democracy.

*This article results from monitoring operation Car Wash since its beginning in 2014. Many reflections presented here derive from texts previously published at www.democraciaeconjuntura.com  and other political analysis websites in Brazil, in 2015 and 2016.

** Professor of Public Law at the Law School of Universidade Federal Fluminense (UFF), Doctor in Political Science, Bachelor and Master in Law