11 de June de 2019

A large trove of documents furnished exclusively to The Intercept Brasil reveals serious ethical violations and legally prohibited collaboration between the judge and prosecutors who last year convicted and imprisoned former Brazilian President Luiz Inácio Lula da Silva on corruption charges — a conviction that resulted in Lula being barred from the 2018 presidential election. These materials also contain evidence that the prosecution had serious doubts about whether there was sufficient evidence to establish Lula’s guilt.

The archive, provided to The Intercept by an anonymous source, includes years of internal files and private conversations from the prosecutorial team behind Brazil’s sprawling Operation Car Wash, an ongoing corruption investigation that has yielded dozens of major convictions, including those of top corporate executives and powerful politicians.

In the files, conversations between lead prosecutor Deltan Dallagnol and then-presiding Judge Sergio Moro reveal that Moro offered strategic advice to prosecutors and passed on tips for new avenues of investigation. With these actions, Moro grossly overstepped the ethical lines that define the role of a judge. In Brazil, as in the United States, judges are required to be impartial and neutral, and are barred from secretly collaborating with one side in a case.

Other chats in the archive raise fundamental questions about the quality of the charges that ultimately sent Lula to prison. He was accused of having received a beachfront triplex apartment from a contractor as a kickback for facilitating multimillion-dollar contracts with the state-controlled oil firm Petrobras. In group chats among members of the prosecutorial team just days before filing the indictment, Dallagnol expressed his increasing doubts over two key elements of the prosecution’s case: whether the triplex was in fact Lula’s and whether it had anything to do with Petrobras.

These two questions were critical to their ability to prosecute Lula. Without the Petrobras link, the task force running the Car Wash investigation would have no legal basis for prosecuting this case, as it would fall outside of their jurisdiction. Even more seriously, without proving that the triplex belonged to Lula, the case itself would fall apart, since Lula’s alleged receipt of the triplex was the key ingredient to prove he acted corruptly.

Operation Car Wash is one of the most consequential political forces in the history of Brazilian democracy and also one of the most controversial. It has taken down powerful actors once thought to be untouchable and revealed massive corruption schemes that sucked billions out of public coffers.

The probe, however, has also been accused of political bias, repeated violations of constitutional guarantees, and illegal leaks of information to the press. (A separate article published today by The Intercept reveals that the Car Wash prosecutors, who long insisted that they were apolitical and concerned solely with fighting corruption, were in fact internally plotting how to prevent the return to power by Lula and his Workers’ Party).

The successful prosecution of Lula rendered him ineligible to run in the 2018 presidential election at a time when all polls showed that the former president was the clear frontrunner. As a result, Operation Car Wash was scorned by Lula’s supporters, who considered it a politically motivated scheme, driven by right-wing ideologues masquerading as apolitical anti-corruption prosecutors, in order to prevent Lula from running for president and to destroy the Workers’ Party.

But on the Brazilian right, there was widespread popular support for the corruption probe, the team of prosecutors, and Moro. The yearslong corruption probe transformed Moro into a hero both in Brazil and around the world, a status that was only strengthened once he became the man who finally brought down Lula.

After the guilty verdict from Moro was quickly affirmed by an appellate court, Lula’s candidacy was barred by law. With Lula out of the running, the far-right candidate Jair Bolsonaro shot up in the polls and then handily won the presidency by defeating Lula’s chosen replacement, former São Paulo Mayor Fernando Haddad.

Bolsonaro then named Moro, the judge who had presided over the case against Lula, to be his justice minister. Jurists and scholars will continue to debate the role of Car Wash for decades, but these archives offer an unprecedented window into this crucial moment in recent Brazilian history.

A truck with a portrait of Sergio Moro reading, “Long live Lava Jato (Car Wash),” from April 6, 2018.  Photo: Mauro Pimentel/AFP/Getty Images
Sérgio Moro Crosses the Line

Telegram messages between Sergio Moro and Deltan Dallagnol reveal that Moro repeatedly stepped far outside the permissible bounds of his position as a judge while working on Car Wash cases. Over the course of more than two years, Moro suggested to the prosecutor that his team change the sequence of who they would investigate; insisted on less downtime between raids; gave strategic advice and informal tips; provided the prosecutors with advance knowledge of his decisions; offered constructive criticism of prosecutorial filings; and even scolded Dallagnol as if the prosecutor worked for the judge. Such conduct is unethical for a judge, who is responsible for maintaining neutrality to guarantee a fair trial, and it violates the Judiciary’s Code of Ethics for Brazil.

In one illustrative chat, Moro, referring to new rounds of search warrants and interrogations, suggested to Dallagnol that it might be preferable to “reverse the order of the two planned [phases].”

Numerous other instances in this archive reveal Moro — then a judge, and now Bolsonaro’s justice minister — actively collaborating with the prosecutors to strengthen their case. After a month of silence from the Car Wash task force, Moro asked: “Hasn’t it been a long time without an operation?” In another instance, Moro said, “You cannot make that kind of mistake now” — a reference to what he considered to be an error by the Federal Police. “But think hard whether that’s a good idea… the facts would have to be serious,” he counseled after Dallagnol told him of a motion he planned to file. “What do you think of these crazy statements from the PT national board? Should we officially rebut?” he asked, using the plural — “we” — in response to criticisms of the Car Wash investigation by Lula’s Workers’ Party, showing that he viewed himself and the Car Wash prosecutors as united in the same cause.

As in the United States, Brazil’s criminal justice system employs the accusatory model, which requires separation between the accuser and judge. Under this model, the judge must analyze the allegations of both sides in an impartial, disinterested manner. But the chats between Moro and Dallagnol show that, when he was a judge, the current justice minister improperly interfered in the Car Wash task force’s work, acting informally as an aid and advisor to the prosecution. In secret, he was helping design and construct the very criminal case that he would then “neutrally” adjudicate.

Such coordination between the judge and the Public Prosecutor’s Office outside of official proceedings squarely contradicts the public narrative that Car Wash prosecutors, Moro, and their supporters have presented and vigorously defended over the years. Moro and Dallagnol have been accused of secret collaboration since the early days of Car Wash, but these suspicions — until now — were not backed by concrete evidence.

Another example of Moro crossing the line separating prosecutor and judge is in a conversation with Dallagnol on December 7, 2015, when he informally passed on a tip about Lula’s case to the prosecutors. “So. The following. Source informed me that the contact person is annoyed at having been asked to issue draft property transfer deeds for one of the ex-president’s children. Apparently the person would be willing to provide the information. I’m therefore passing it along. The source is serious,” wrote Moro.

“Thank you!! We’ll make contact,” Dallagnol promptly replied. Moro added, “And it would be dozens of properties.” Dallagnol later advised Moro that he called the source, but she would not talk: “I’m thinking of drafting a subpoena, based on apocryphal news,” the prosecutor said. While it is not entirely clear what this means, it appears that Dallagnol was floating the idea of inventing an anonymous complaint that could be used to compel the source to testify. Moro, rather than chastise the prosecutor or remain silent, appears to endorse the proposal: “Better to formalize then,” the judge replied.

Moro has publicly and vehemently denied on several occasions that he ever worked in partnership with the team of prosecutors. In a March 2016 speech, Moro denied these suspicions explicitly:

Let’s make something very clear. You hear a lot about Judge Moro’s investigative strategy. […] I do not have any investigative strategy at all. The people who investigate or who decide what to do and such is the Public Prosecutor and the [Federal] Police. The judge is reactive. We say that a judge should normally cultivate these passive virtues. And I even get irritated at times, I see somewhat unfounded criticism of my work, saying that I am a judge-investigator.

In his 2017 book, “The Fight Against Corruption,” Dallagnol wrote that Moro “always evaluated the Public Prosecutor’s requests in an impartial and technical manner.” Last year, in response to a complaint from Lula’s lawyers, Brazil’s prosecutor general — the presidentially-appointed chief prosecutor who runs the Car Wash investigation — wrote that Moro “remained impartial during the entire process” of Lula’s conviction.

Brazilian Federal Attorney Deltan Dallagnol listens, during a ceremony for the return of resources to Petrobras, which were recovered in connection with Lava Jato operation, in Curitiba, Brazil, on Dec. 7, 2017.  Photo: Heuler Andrey/AFP/Getty Images
Doubts, Misinterpretations, and a Triplex

Beyond Moro’s interjections, the documents obtained by The Intercept Brasil reveal that, while publicly boasting about the strength of the evidence against Lula, prosecutors were internally admitting major doubts. They also knew that their claimed jurisdictional entitlement to prosecute Lula was shaky at best, if not entirely baseless.

In the documents, Dallagnol, the Operation Car Wash lead prosecutor, expressed concerns regarding the two most important elements of the prosecution’s case. Their indictment accused Lula of receiving a beachfront triplex apartment from the construction firm Grupo OAS as a bribe in exchange for facilitating millions of dollars in contracts with Petrobras, but they lacked solid documentary evidence to prove that the apartment was Lula’s or that he ever facilitated any contracts. Without the apartment, there was no case, and without the Petrobras link, the case would fall out of their jurisdiction and into that of the São Paulo division of the Public Prosecutor’s office, which had argued that it, rather than Operation Car Wash prosecutors, had jurisdiction over the case against Lula.

“They will say that we are accusing based on newspaper articles and fragile evidence … so it’d be good if this item is wrapped up tight. Apart from this item, so far I am apprehensive about the connection between Petrobras and enrichment, and after they told me I am apprehensive about the apartment story,” wrote Dallagnol in a group Telegram chat with his colleagues on September 9, 2016, four days before filing their indictment against Lula. “These are points in which we have to have solid answers and on the tips of our tongues.”

None of Dallagnol’s subordinates responded to his messages in the materials examined for this article.

Prosecutors in São Paulo had publicly questioned the Petrobras connection in an official court filing, noting, “In 2009-2010 there was no talk of scandal at Petrobras. In 2005, when the presidential couple, in theory, began to pay installments on the property, there was no indication of an ‘oil scandal’.”

The Curitiba-based Car Wash team eventually prevailed over their São Paulo counterparts and were able to maintain the high-profile, politically explosive case in their jurisdiction. But private chats reveal that their argument was a bluff — they weren’t actually sure of the Petrobras link that was the key to maintaining their jurisdiction.

On Saturday night at 10:45 p.m., a day after expressing his original doubts, Dallagnol messaged the group again: “I’m so horny for this O GLOBO article from 2010. I’m going to kiss whichever one of you found this.” The article, headlined “Bancoop Case: Lula Couple’s Triplex Is Delayed,” was the first to publicly mention Lula owning an apartment in Guarujá, a coastal town in São Paulo state. The 645-word article, published years before the Car Wash investigation began, does not mention OAS or Petrobras and instead covers the bankruptcy of the construction cooperative behind the development and how it could negatively impact the delivery date of Lula’s new vacation apartment.

The article was submitted as evidence and, in his decision to convict Lula, Moro wrote that the O Globo article “is quite relevant from a probative point of view.” But Lula’s defense attorneys dispute that he was the owner of a triplex, claiming instead that he purchased a smaller, single level apartment on a lower floor, and the O Globo article presented no documentation proving otherwise.

Moreover, there is a small but telling inconsistency between the O Globo article and the claims of the prosecution regarding the triplex. The article itself puts Lula’s penthouse in Tower B, and even notes that Tower A is yet to be built at the time the article was written: “The second tower, if constructed according to the project blueprints, finalized in the early 2000s, may end part of Lula’s joy: the building will be in front of the president’s property, obstructing his ocean view at Guarujá.” But the prosecutors alleged that Lula owned the beachfront triplex in Tower A. Without noting this contradiction, Item 191 of the indictment cites the O Globo article: “This article explained that the then President LULA and [his wife] MARISA LETÍCIA would receive a triplex penthouse, with a view to the sea, in the said venture.” That is the apartment that would eventually be seized by authorities and that Lula would be convicted of receiving.

Car Wash prosecutors used the article as evidence that the triplex belonged to the presidential family, but indicted and convicted Lula on a triplex in a different building — demonstrating that the investigation was imprecise on the central point of their case: identifying the bribe that Lula allegedly received from the contractor.

When the indictment was revealed during a press conference on September 14, the triplex and its provenance as a bribe from OAS were the key pieces of evidence on the charges of passive corruption and money laundering. In a now infamous moment, Dallagnol presented a typo-laden PowerPoint presentation that showed “Lula” written in a blue bubble surrounded by 14 other bubbles containing everything from “Lula’s reaction” and “expressiveness” to “illicit enrichment” and “bribeocracy.” All arrows pointed back to Lula, whom they characterized as the mastermind behind a sprawling criminal enterprise. The presentation was widely spoofed and criticized by critics as evidence of the weakness of the Car Wash prosecutors’ case.

Two days later, Dallagnol messaged Moro and, in private, explained that they went to great lengths to characterize Lula as the “maximum leader” of the corruption scheme as a way to link the politician to the R$87 million (US$26.7 million, at the time) paid in bribes by OAS for contracts at two Petrobras refineries — a charge without material evidence, he admitted, but one that was essential so that the case could be tried under Moro’s jurisdiction in Curitiba.

“The indictment is based on a lot of indirect evidence of authorship, but it wouldn’t fit to say that in the indictment and in our communications we avoided that point,” Dallagnol wrote. “It was not understood that the long exposition on command of the scheme was necessary to impute corruption to the former president. A lot of people did not understand why we put him as the leader to gain 3,7MM in money laundering, when it was not for that, but to impute 87MM of corruption.”

Moro responded two days later: “Definitely, the criticisms of your presentation are disproportionate. Stand firm.” Less than a year later, the judge sentenced the former president to nine years and six months in prison. The ruling was quickly upheld unanimously by an appeals court and the sentence was extended to 12 years and one month. In an interview, the president of the appeals court characterized Moro’s decision as “just and impartial” before later admitting that he had not yet obtained access to the underlying evidence in the case. One of the three judges on the panel was an old friend and classmate of Moro’s.

Even Lula’s most vehement critics, including those who believe him to be corrupt, have expressed doubts about the strength of this particular conviction. Many have argued that it was chosen as the first case because it was simple enough to process quickly, in time to fulfill the real goal: to bar Lula from being re-elected.

Until now, most of the evidence necessary to evaluate the motives and internal beliefs of the Car Wash task force and Moro remained secret. Reporting on this archive now finally enables the public — in Brazil and internationally — to evaluate both the validity of Lula’s conviction and the propriety of those who worked so tirelessly to bring it about.

The Intercept contacted the offices of the Car Wash task force and Sergio Moro immediately upon publication and will update the stories with their comments if and when they provide them. Read the editors’ statement here.

Update: June 9, 2019, 8:13 p.m. ET

The Car Wash task force did not refute the authenticity of the information published by The Intercept. In a press release published Sunday evening, they wrote, “possibly among the illegally copied information are documents and data on ongoing strategies and investigations and on the personal and security routines of task force members and their families. There is peace of mind that any data obtained reflects activities developed with full respect for legality and in a technical and impartial manner, over more than five years of the operation.”

Update: June 9, 2019, 9:53 p.m. ET
Justice Minister Sergio Moro also published a note in response to our reporting: “About alleged messages that would involve me, posted by The Intercept website this Sunday, June 9, I lament the lack of indication of the source of the person responsible for the criminal invasion of the prosecutors’ cell phones. As well as the position of the site that did not contact me before the publication, contrary to basic rule of journalism.

As for the content of the messages they mention, there is no sign of any abnormality or providing directions as a magistrate, despite being taken out of context and the sensationalism of the articles, they ignore the gigantic corruption scheme revealed by Operation Car Wash.”

The Intercept

Secret Brazil Archive
Part 1: How and Why The Intercept Is Reporting on a Vast Trove of Materials About Brazil’s Operation Car Wash and Justice Minister Sergio Moro

Part 2: Exclusive: Brazil’s Top Prosecutors Who Indicted Lula Schemed in Secret Messages to Prevent His Party From Winning 2018 Election

Part 4: Exclusive: Brazilian Judge in Car Wash Corruption Case Mocked Lula’s Defense and Secretly Directed Prosecutors’ Media Strategy During Trial

Part 5: At Sergio Moro’s Suggestion, Brazil’s Anti-Corruption Prosecutors Plotted to Leak Secret Evidence Aimed at Helping Venezuela’s Opposition

Part 6: In Secret Chats, Brazil’s Chief Corruption Prosecutor Worried That Bolsonaro’s Justice Minister Would Protect President’s Son From Scandals