Opinion: Brazil’s Lava Jato: Chronicle of a Death Foretold (Again)

Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – Last weekend, after Brazil’s “Seleção” crashed out of the World Cup, its judiciary staged an embarrassing demonstration of how politics has usurped the Judicial Branch of government.  Worse, it is another warning sign that the Lava Jato investigation will soon be rendered ineffectual.

We refer to the battle of writs focusing on whether former President Lula should receive a “get out of jail free” card. After the dust cleared, when we were all (so to speak) at writ’s end, the decision was that Lula should remain incarcerated.

The first political move was taken Saturday by three federal deputies, all from Lula’s Workers Party (PT), who filed a writ of habeas corpus on his behalf at the 4th Regional Appellate Court (TRF)—the court where a three-judge panel had ruled that Lula should remain in jail while his appeals were pending.

Why the weekend? Why this court? Simple politics.

On weekends, the TRF is not in session, so one of the court’s judges remains on duty to deal with emergencies until Monday. The petitioning politicians had obviously planned this maneuver some time in advance, but had bided their time until a weekend when a judge known to be a PT sympathizer would be on duty.

This weekend, the duty judge was someone who, for twenty years before his appointment to the federal bench in 2010, had been an active member of PT, and a government official in PT administrations. Unsurprisingly, the duty judge was sympathetic to Lula’s plight, and ordered him to be released.

The duty judge denies any political motivation; however, no one believes him. The Public Prosecutor has requested an investigation from the judicial watchdog agency.

The next political move occurred after the duty judge sent the release order to the lower court presided over by crusading Judge Sergio Moro — who simply refused to follow the order of his hierarchical superior, and instead told the police not to release Lula.

Judge Moro denies any political motivation; however, no one believes him. The duty judge has requested an investigation by the judicial watchdog agency.

PT politicians have always treated the Lava Jato investigations as political rather than judicial questions. They have shouted that Lula is a “political prisoner” and that Judge Moro, the Public Prosecutors and the 4^th TRF are engaged in a plot to keep Lula from becoming President.

Judge Moro, although clothing his decisions in legalspeak, has taken certain actions that clearly indicate that he regards Lula’s continued presence in jail as essential to his investigations. That is a political position, not a judicial one.

Judge Moro should not have taken the bait offered by the PT politicians and its co-opted weekend duty judge — he should have complied with the order for Lula’s release, even though it was clearly politically motivated, and waited for the Judicial Branch to overrule the decision on strictly judicial grounds.

He did not do so; rather, he took a clearly political position that bodes ill for the future of the Lava Jato investigations because it casts suspicion on all his future decisions.