Lula’s Lava-Jato lawsuits: The “suspeição” of Judge Sérgio Moro – what is it and where is it going?

RIO DE JANEIRO, BRAZIL – The Second Panel of the Brazilian Supreme Court (STF) is hearing a case in which counsel for ex-President Luiz Inácio Lula da Silva seek to overturn his convictions by reason of the “suspeição” of Sérgio Moro, the judge who oversaw the Lava-Jato lawsuits involving Lula.

“Suspeição” in Brazilian legal parlance does not mean “suspicion” when applied to the activities of a trial judge; rather, it encompasses the concepts of non-objectivity, favoritism, partiality, one-sidedness, prejudgment and bias.

According to Lula’s counsel, Judge Moro was biased in favor of the prosecution, conducting the trial non-objectively and one-sidedly, effectively prejudging the case.

The allegations list a number of actions Moro carried out that show his partiality, among them his forcibly bringing Lula to court for a deposition, and his publication of illegally wiretapped telephone conversations between Lula and then-President Dilma Rousseff. They further argue that his appointment as Minister of Justice by President Bolsonaro shows he was secretly working to ensure Lula could not be a candidate for President.

Importantly, the allegations do not mention the now public “Vaza-Jato” leaked conversations between Judge Moro and the Lava-Jato prosecutors that were revealed in the so-called “Spoofing” case.

The “suspeição” case is a motion for habeas corpus that has been pending in the Second Panel since 2018. That year, Justices Fachin and Carmen Lúcia voted not to receive the habeas corpus, but Justice Gilmar Mendes, chairing the panel, requested time to view the file, which automatically suspended the case.

On March 9^th, the day after Justice Fachin issued his controversial vote, an irate Gilmar returned the case to the Second Panel’s agenda. The panel’s first vote (4 to 1) was to hear the “suspeição” case, effectively overruling Fachin’s decision that it was moot after his individual decision the day before.

On the merits, Gilmar and Lewandowski – both acerbic critics of Moro – voted in favor of Moro’s “suspeição”. Recently appointed Justice Nunes Marques then asked for time to review the voluminous file, which suspends the case once more, without a date to reconvene the panel. Cármen Lúcia then added that she would submit a written vote after Nunes Marques had voted.

When the Second Panel reconvenes, most STF followers expect Kassio Nunes to follow Gilmar and Lewandowski, and vote that Moro was biased. In addition, they also expect Cármen Lúcia to join them, bringing the panel tally once again to 4 to 1.

What happens thereafter is uncertain. Fachin can petition the Chief Justice to have the case heard by the full 11-member court; according to commentators, Chief Justice Fux will so order. How the full court will vote is unknown, but many feel that the STF, inevitably influenced by the “Vaza-Jato” leaks, will eventually confirm the “suspeição” of Judge Moro.

Such a decision will prohibit the new judge of the cases involving Lula from reviewing the “suspect” measures taken by Moro. In other words, the prosecutors will have to start from scratch and build their case against Lula from the ground up – and that will take years to play out.

In the meantime, ex-president Lula’s convictions have now been definitively overturned. Accordingly, he has no criminal record, and is therefore free to run for elective office, including for president in 2022.