Opinion: In Defense of Glenn Greenwald, or Vaza Jato vs. Lava Jato

RIBEIRÃO PRETO, BRAZIL – (aka The Curmudgeon): Glenn Greenwald, the American journalist who became famous worldwide for having collaborated with Edward Snowden in publishing classified government documents, has now become (in)famous in Brazil.

Greenwald’s publication The Intercept has been divulging behind-the-scenes communications between judge Sérgio Moro and members of the Lava Jato prosecutorial team, which purport to show collaboration between them—something that is impermissible in criminal court cases.

Sérgio Moro, as a federal court judge, became the public face of Brazil’s Lava Jato anti-corruption investigations, which have undeniably brought about a sea change in Brazil’s criminal law—now, for the first time in Brazil’s history, rich and powerful people are put in jail for their crimes.

The “Vaza Jato” leaks involving Moro have caused intense anxiety among supporters of Lava Jato, because they question his impartiality as a judge. Partiality by judges makes their decisions subject to annulment.

That prospect simultaneously frightens and angers Lava Jato supporters, whose immediate reaction has been to question Greenwald’s character and his motives for publishing the leaked material.

Some see Greenwald as part of a leftist-inspired conspiracy to resurrect the crown of saintly innocence that sits, rather uneasily, on Lula’s head while he remains in a Curitiba jail cell: Greenwald’s husband is, after all, a leftist federal deputy.

Others say Greenwald’s true objective is to destabilize and eventually de-legitimize Brazil’s current government by discrediting Moro and, by implication, President Bolsonaro who rewarded his crusading activities by handing him the Ministry of Justice and the promise of a seat on Brazil’s Supreme Court (STF).

The Curmudgeon disagrees with both of these criticisms; rather, he firmly believes that Glenn Greenwald wants to improve justice in Brazil by bringing transparency and impartiality to legal proceedings.

We will begin with who Glenn Greenwald is, and what drives him to criticize the excesses of the Lava Jato program.

First of all, he is a U.S. citizen and a U.S.-trained lawyer. He knows the canons of Anglo-Saxon common law and believes in their efficacy. One of the absolute principles of this law is that courts and judges should not—indeed: they must not—act as crusaders.

The only role of the courts is to decide cases and controversies, based on evidence submitted in court by lawyers for the parties. This is the essence of the adversarial system of justice, which was knowingly adopted by Brazil’s 1988 Constitution.

A corollary principle is that lawyers are prohibited from speaking privately to a judge without opposing counsel also being present (an “ex parte communication”) in relation to any matter that may affect the outcome of the case.

These two ethical principles are inculcated into all U.S. lawyers, starting in law school; lawyers are taught that ethical violations compromise the entire system of justice, not just individual litigants.

The published Vaza Jato leaks indicate that judge Sérgio Moro engaged in numerous ex parte communications with prosecutor Deltan Dallagnol; they further indicate that Moro independently suggested that prosecutors investigate certain facts.

Glenn Greenwald clearly believes that the Vaza Jato leaks demonstrate two ethically improper actions by Judge Moro, which together amount to collusion between judge and prosecutors.: (1) he acted as an investigating “crusading judge”; and (2) he engaged in prohibited “ex parte” communications with prosecutors.

The Curmudgeon respectfully submits that Glenn Greenwald is correct.

There are those, of course, who say that even if the ethical violations occurred, they really should not matter, because the results in the Lava Jato cases were correct—guilty criminals were convicted and went to jail.

The Curmudgeon respectfully disagrees with this proposition, because the end does not justify the means.

In bygone U.S. frontier days, judges and sheriffs would prevent outraged citizens from lynching cattle rustlers. They would calm irate ranchers by telling them they would work together: “We’ll give them a fair trial and then we’ll hang them.”

That was not justice then; it is not justice now.