Mani Pulite, Lava Jato and the Road Ahead for Anti-Corruption Efforts in Brazil

anti-corruption.com January 22, 2020 BRAZILIAN ANTI-CORRUPTION LAW Mani Pulite, Lava Jato and the Road Ahead for Anti-Corruption Efforts in Brazil By Rafael Ribeiro, Hogan Lovells When Sergio Moro, Brazil’s current Minister In my opinion, reports of Lava Jato’s demise of Justice and Public Safety, studied the are exaggerated, but significant additional anti-corruption push in Italy stemming from popular pressure will be needed for the gains Operation Mani Pulite (Clean Hands) in 2004, made in fighting corruption in Brazil are to he could not have imagined he would later be maintained long-term. In this article, I will lead a corruption investigation in his home briefly discuss the aftermath of Italy’s Mani country with even more far-reaching effects – Pulite investigation and the demonstrated lack Operation Lava Jato (Car Wash). of popular support that it enjoyed during its final years, the circumstances that have led In a 2004 academic article analyzing Operation Lava Jato to similarly see a reduction in popular Mani Pulite, Moro concluded that: support, and finally discuss steps that must be taken so that Lava Jato’s failures and successes Perhaps the most important lesson from alike ultimately can continue to assist Brazil this entire episode is that judicial action in its long struggle against corruption and its against corruption only will be effective corrosive effects. with the support of democracy. It is she who defines the limitations and the possibilities See “Anti-Corruption Is Front and Center for of judicial action. As long as [judicial action] Recently Elected Presidents in Latin America” counts with the support of popular opinion, (Nov. 28, 2018). it has conditions to advance and will present good results. If this does not occur, it likely The Judicial Attack on [1] will not find success. “Tangetopoli” and the Like the Italian anti-corruption investigation Resulting Backlash Moro studied, Lava Jato exposed the fact that his country’s “political and administrative life The Operation Mani Pulite investigation . was drowning in corruption. .” And, as started in early 1992 when a Milanese with Operation Mani Pulite in Italy, faith in entrepreneur did what at the time was Lava Jato’s success in ferreting out corruption unthinkable – he refused to pay a bribe to a has waned as the political tides continue to politician and instead reported him to the ebb and flow and Moro himself has left the police. Exposing Milan as Tangetopoli, or judiciary and taken a role in government. “Bribesville” in English, Mani Pulite led to the ©2020 Anti-Corruption Report. All rights reserved. 1 anti-corruption.com indictment of more than 3,000 individuals, crimes for which prosecutors could request captivated popular attention and ultimately pre-trial custody, which had proven an led to the demise of Italy’s two most powerful effective tool in the Mani Pulite operation.”[3] political parties – the Christian Democrats and the Socialists. According to Alessandro Merli, Merli also argues that another factor an economist and journalist who is currently negatively influenced popular opinion with an associate fellow at the Bologna Institute regard to Mani Pulite: several magistrates for Policy Research, one of the results of this entered politics themselves – founding power vacuum was the rise of the controversial parties and getting elected to Parliament – media mogul Silvio Berlusconi and the pitting giving “credence to the image of a politicized of the political elite against the judiciary. judiciary.” Berlusconi, attempting to fend off several The above factors eventually resulted in the corruption investigations directed at him and loss of public support for, and public interest his cohorts, rose to the position of Italian in, Mani Pulite. As noted by the University prime minister and wasted no time deploying of Pisa’s Alberto Vanucci, “[s]urprisingly, the his extensive media holdings in an attempt to question that acted as the detonator of the portray the Mani Pulite judges as overzealous. crisis – revelations of widespread corruption According to Merli: – quickly faded as a major issue on the agenda of Italian politics. The persistence of extensive As Berlusconi himself became the corruption and the lack of effective anti- target of several investigations, corruption policies do not currently figure including the corruption of judges, he in public debate as relevant political and initiated a powerful pushback against economic questions. .”[4] the magistrates, who had enjoyed a considerable degree of public support Finally, one also can point to another in the first phase of Mani Pulite. He not significant factor for Mani Pulite’s only used the means at his disposal on disappearance from the popular opinion radar: the media front, subjecting the judiciary “[d]espite the overarching anti-corruption to relentless attack, but also mobilized rhetoric, Italian politics is still corrupt ‘on his majority in Parliament to approve every level’ . from top politicians taking legislation that would severely restrict the bribes to the general public cheating on magistrates’ actions. The most important their taxes. The paradox is that Italians are measure was undoubtedly the law the constantly ‘complaining about politicians who imposed stricter statute of limitations. The repeat, at the top, the same behaviors that impossibility of concluding the majority many ordinary citizens demonstrate, on a of the trials within the new deadlines was smaller scale, on a daily basis.’”[5] one of the factors in the public’s loss of trust in the magistrates’ actions.[2] See “Regional Risk Spotlight: Baker & McKenzie Lawyers Discuss Italy’s Corruption Risks and Other anti-investigation measures were Unique Compliance Model” (Apr. 20, 2016). implemented, including the Biondi decree, which “excluded corruption from the list of ©2020 Anti-Corruption Report. All rights reserved. 2 anti-corruption.com Moro and Lava Jato’s those affiliated with the Workers’ Party (Partido dos Trabalhadores or PT), even though Initial Salvo Against the Lava Jato prosecutions indisputably targeted Political Class members of several of Brazil’s major political parties). Additionally, Moro was criticized for In 2013, Brazil greeted spectators of the a decision to release evidence damaging to Confederations Cup, the warm-up soccer President Rousseff. tournament before the 2014 World Cup, with millions of Brazilians protesting in the streets The public protests did not let up in 2015, and what initially had been a decision by various arguably peaked in March 2016 when former states and municipalities to increase bus Brazilian president Luis Inácio Lula da Silva, fares. Weeks of transformative street protests, who already was the target of Lava Jato-related without any central leadership or coordination, investigations, was being considered by then- lashed out against the Brazilian government for President Rousseff for a Cabinet post. Had its perceived poor handling of the economy, Lula been appointed to a Cabinet post with the education and infrastructure, as well as Rousseff administration, he would have been corruption. A few months later, undoubtedly immune from prosecution in regular courts pressured by the public to take action, and instead only could have been tried by President Dilma Rousseff signed Law No. 12.846, Brazil’s Supreme Federal Tribunal. known as Brazil’s Clean Company Law. In March 2016, Moro unsealed audio As has been extensively discussed in this and recordings of wiretaps involving Lula and other publications, starting in 2014, Brazilian President Rousseff. In the recordings, prosecutors used the Clean Company Law, President Rousseff, who already was facing along with already established criminal impeachment proceedings and popular statutes, to unravel the massive corruption anger at her administration, indicated schemes that had been perpetrated by, among that she already had executed a document others, Brazil’s largest construction companies appointing Lula to her Cabinet were it to as uncovered by the Lava Jato investigation. become “necessary,” which was a statement Sergio Moro was the magistrate presiding over that was widely interpreted to mean that the the investigation and resulting prosecutions. appointment was directly linked to the risk of Lula being arrested in connection with Perception of Political Motivation the Lava Jato probes. The Supreme Federal Tribunal suspended President Rousseff’s As the Lava Jato prosecutors trained their attempt to nominate Lula and Lula eventually targets on Brazil’s political elite for receiving was tried and convicted by Moro on one Lava improper payments or illicitly funding their Jato indictment. Lula was later convicted in parties’ campaigns, the same arguments that another matter, by another federal magistrate. were trotted out by the Mani Pulite critics were used to attack Moro. One argument Support From the Judiciary that obtained particular traction with a tranche of the Brazilian populace was that Some saw Moro’s decision to release the investigation was a witch hunt aimed at these tapes as politically motivated and the members of the political class, principally controversial, though he maintained popular ©2020 Anti-Corruption Report. All rights reserved. 3 anti-corruption.com support. Moro also enjoyed support from presidency, was implicated in numerous Brazil’s judiciary in the form of jurisprudence scandals but Brazil did not experience the that advanced Lava Jato’s goals. Specifically, popular convulsions that

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