Brazil's High Court Invalidates Lula's Convictions, Leaving Him Eligible to Run Against Bolsonaro

The decision by a Brazilian judge reverses Lula's unjust and politicized persecution. The corruption that led to this holds many lessons for the west.

Brazil’s ex-president Luiz Inacio Lula da Silva on November 9, 2019 as he walked free from jail (Photo by NELSON ALMEIDA/AFP via Getty Images); Brazilian President Jair Bolsonaro on February 24, 2021 (Photo by EVARISTO SA/AFP via Getty Images)

The resounding victory of the seven-term right-wing Congressman Jair Bolsonaro in Brazil’s 2018 presidential elections was stunning by every metric.

Consigned for decades to the political fringes due to his explicit praise for the military dictatorship that savagely ruled Brazil until 1985 along with other outlandish statements (“I would be incapable of loving a gay son. I prefer that he die in an accident”), the former Army Captain’s ascension to the presidency of the world’s sixth-most populous country was highly consequential for the region and the world. That he won by a large margin in a country that had previously voted for the center-left Workers’ Party (PT) in four consecutive national elections dating back to 2002, and whose media and political establishment were undisguised in their revulsion toward him, made his victory, whatever else one might say about him, politically impressive.

But that victory has always borne an enormous asterisk: the judicial elimination of his most formidable opponent. Polls throughout 2017 and into 2018 uniformly showed former two-term president Lula da Silva, founder of the Workers’ Party, as the clear frontrunner. That should not be surprising: Brazil experienced massive economic growth under Lula’s two terms, eventually passing the UK to become the world’s sixth largest economy (it is now back to twelfth); millions were lifted out of poverty; and Lula was term-limited out of office with an 86% approval rating. “That’s my man right there. The most popular politician on Earth,” proclaimed then-President Barack Obama when he met Lula in 2010 at the G-20 summit, Lula’s final year in office.

As Americans know better than anyone, none of this proves Lula would have defeated Bolsonaro had he been permitted to run. As the world saw in 2016, when Hillary Clinton was the overwhelming frontrunner, polling data can be wrong. And just as was true of Donald Trump in 2016, one could make the case that 2018 in Brazil was the perfect storm for a Jair Bolsonaro victory no matter his opposition.

Still, we will never know whether Lula would have prevented Bolsonaro’s victory. That is because a low-level judge in the mid-sized city of Curitiba named Sergio Moro declared Lula, in early 2018, to be guilty of various corruption felonies, based on procedures, charges and evidence so dubious that even Lula’s long-time critics were skeptical. But the guilty verdict was issued so quickly that it enabled an appellate court notorious for rubber-stamping Moro’s rulings to affirm the conviction, and thus declare Lula ineligible to run in 2018 by virtue of his losing his political rights. With Lula out of the way, Bolsonaro crushed PT’s replacement, the highly competent but little-known former one-term São Paulo Mayor, Fernando Haddad, by seventeen points in the first round and then ten points in the run-off.

For years, Judge Moro and the team of young prosecutors who oversaw the sprawling anti-corruption probe called "Operation Car Wash” (Lava Jato) were regarded as national heroes, as they brought charges and sentenced to long prison terms some of the nation’s most powerful oligarchs and politicians. As their popularity grew, they increasingly resorted to radical and lawless tactics against their targets, including ordering people imprisoned for months or years with no trial until they accused others of criminality, often falsely. But Moro’s status as a national hero and international icon — he was named to the TIME 100 list in 2016 — meant that no institutions, including superior courts, were willing to challenge him even when he transgressed clear legal and ethical lines.

All of that began to change in November, 2018. One of Bolsonaro’s first acts after he won the election was to offer Moro a huge promotion and an unprecedented amount of power by becoming his Minister of Justice and Public Security. In other words, after Judge Moro removed Bolsonaro’s primary obstacle from his path by finding Lula guilty under dubious circumstances, Bolsonaro turned around and elevated Moro to a top spot in the government: quite a reward for a job well done.

Even Moro’s most stalwart supporters, including many of the Car Wash prosecutors, were indignant at this obvious quid pro quo, complaining that it would forever taint the legacy of their work by vindicating their most virulent critics. For years, those critics insisted that Car Wash, far from the noble and high-minded crusade against corruption it was depicted to be, was instead a sustained abuse of law for naked political and ideological ends, to achieve what they could not accomplish at the ballot box: namely, the destruction of the Workers’ Party. It was, in sum, classic lawfare. When Moro went to join the Bolsonaro government that he helped usher in — not just as any official but one so powerful that the Brazilian press began referring to him as Super-Minster — even his allies acknowledged the ammunition it gave to this long-standing suspicion.

The collapse of Moro and the Car Wash probe accelerated greatly on Mother’s Day of 2019 — Sunday, May 12 — when an anonymous source contacted me to say he had hacked into the Telegram accounts of some of Brazil’s most powerful officials, including Moro and the chief Car Wash prosecutor, Deltan Dallagnol. In the massive archive he provided me was indeed years worth of conversations and documents produced by Moro and high-ranking officials, and it revealed systemic corruption on their part, including the use of flagrantly illegal and unethical tactics to ensure Lula’s conviction.

That brave source, Walter Delgatti, has been arrested on hacking charges and awaits his criminal trial. His courageous leaking enabled us to report more than 100 stories in Portuguese and English over the next nine months, some in partnership with Brazil’s largest media outlets, that revealed that among the most corrupt figures in this anti-corruption probe were the heroic judge that led it and the team of prosecutors whom he improperly and secretly commanded.

Four months after our first set of articles was published, the Brazilian Supreme Court ordered Lula released from prison, and Moro began suffering a series of once-unthinkable defeats in Congress, in the Supreme Court and in public opinion. Even media outlets long supportive of him called for his resignation. In April, 2020, Moro resigned his position as Bolsonaro’s Justice Minister, accusing the president of serious crimes involving attempts to interfere in the investigative process to protect his son, Senator Flávio Bolsonaro, from a growing corruption scandal.

But Lula, back in November, 2019, was freed from prison on the ground that his imprisonment was improper while he still had appeals left to pursue. It was not an exoneration. That was a technical ruling that left his convictions in place and thus made Lula still ineligible to run against Bolsonaro in 2022. It has been assumed since then that Bolsonaro would be able to run for re-election without having to face Lula.

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All of that changed over the last twenty-four hours. On Thursday, a justice of the Brazilian Supreme Court who has long been known as one of the most ardent supporters and defenders of Operation Car Wash ruled that Lula’s criminal convictions were invalid because Judge Moro never had the legal authority to judge the case in the first place (that the prosecutors knew this to be so but hid it was one of the first stories we published). Yesterday’s ruling had the effect of sending Lula’s case all the way back to the starting point, to a different court. That makes it extremely unlikely that he could be found guilty both in the original court and on appeal in time to ban him from running against Bolsonaro in 2022.

Bolsonaro’s approval ratings have weakened significantly with his gross mismanagement of the COVID pandemic, leaving Brazil as clearly the worst of all major countries in terms of financial and social damage. The expiration of monthly checks, the payment of which had inflated his popularity in 2020, has further weakened him. And multiple scandals involving his family remain a serious weight on his back, particularly since his anti-corruption posturing was a major part of his 2018 appeal.

But much like Trump, the president’s hard-core base of roughly 30% of the voting population has remained rock-solid, while another 30% is ambivalent. That leaves roughly 40% of the country staunchly opposed to him. Bolsonaro is vulnerable, but his defeat in 2022 is far from certain. Mainstream political and media centers hate Bolsonaro more than ever. But as was true for Trump and the U.S., when much of the population (validly) distrusts and despises these mainstream institutions, their hatred is as much of an asset as a liability, if not on balance a net benefit.

That is what makes the prospect of Lula’s candidacy so significant. Contrary to the conventional belief that Lula and his Workers’ Party are too widely hated to win again, a recent poll found that the percentage of Brazilians saying they would never vote for Lula was lower than any other potential 2022 candidate, including Bolsonaro. As the economy sags and the multiple crises that led to Bolsonaro’s election worsen, it is easy to envision a sort of nostalgia for Lula — who has not been in power since 2010 — replacing the intense anti-PT sentiment that was a key factor in Bolsonaro’s 2018 victory.

A major variable is the boost Lula will get from the public perception that, all along, he was the victim of persecution, exactly as he insisted for years.

Glenn Greenwald @ggreenwald

Here's an amazing excerpt from the interview I did with Lula in May, 2019 -- when he was still unjustly imprisoned. It was weeks before we began our exposés (he didn't know we had the archive). He speaks about the collusion between his corrupt prosecutors/judge & the press:

None of what has happened or what has been revealed proves the negative that Lula is innocent of corruption: Lula himself has said repeatedly that this cannot be proven until he has a fair trial, which he has never been given. But Brazilians already watched Lula waltz out of Moro’s prison in 2019, and are watching now as the Supreme Court invalidates his convictions. All of that will likely vindicate in the public mind Lula’s argument that what was corrupt all along was not the ex-President but those who sought to imprison him and ban him from running against Bolsonaro.

That scenario appears even more likely with new events today at the Supreme Court. Not content to invalidate Lula’s convictions merely on jurisdictional grounds, several of the high court’s members are urging a ruling that Judge Moro all along proved himself to be biased, unfair and even unethical in how he presided over Lula’s trial. Though likely to be close, it appears the justices urging this outcome command a majority on the court. It is hard to overstate the impact of such a ruling: for years it was Moro successfully sitting in judgment of and condemning Lula, but now it appears that Lula may be effectively exonerated while the judge will become the condemned (the Supreme Court suspended its proceedings today with the vote tied 2-2 on the question of whether Moro acted improperly, and it will resume shortly).

It is hard to imagine a better storyline for a politician to use to ride back to power than this one. Anyone who has witnessed Lula’s turbulent but storied rise from extreme childhood poverty and three consecutive narrow defeats to one of the 20th Century’s most iconic and successful leaders, and then his fall from grace into prison and widespread unpopularity, only to rise again, would know that it is likely that there are further dramatic chapters to be written in his story.

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There are several relevant points from an American perspective beyond the inherent global significance of Brazil, a country that is the largest in Latin America and in possession of huge oil reserves and the Amazon. The first is the abuse of legal process to accomplish nakedly political ends.

Huge amounts of resources and energy were poured into defeating Lula and especially his handpicked successor, Dilma Rousseff, at the ballot box. Dilma, who was imprisoned and tortured in the early 1970s by the U.S.-supported military dictatorship which Bolsonaro still praises to this very day, became the country’s first female president with her 2010 victory. When she ran for re-election in 2014, PT’s enemies were convinced they were finally poised to defeat the party, but they instead narrowly lost to PT yet again, this time behind the center-right Senator Aécio Neves, who now faces multiple investigations for extreme corruption, including discussing the murder of his own cousin in order to silence a witness.

But PT’s enemies never accepted the legitimacy of that 2014 defeat, so they turned to non-democratic means to seize power (one of many ironies was that Lula, in order to win in 2002 after three losses, made many compromises with neoliberalism, including selecting a banker as his Vice President, and pursuing pro-growth policies that allowed the oligarchical class to thrive). To accomplish PT’s destruction, they first impeached Dilma in 2016 based on a preposterously trivial and pretextual claim of wrongdoing, replacing her with a lifelong corrupt nonentity named Michel Temer, who was promptly caught on tape ordering bribes to silence witnesses in his own party. They then set their sights on the top prize: Lula’s head on a pike. And they concocted all kinds of unethical scams and lies to justify his imprisonment.

This fraud would never have succeeded without the corrupt collusion of the Brazilian press, which treated Moro and his team of prosecutors the way a teenager treats their favorite girl and boy bands. A major aspect of what we were able to reveal is how the Globo media empire — whose billionaire owners, the Marinho boys, owe their wealth to their father’s support for the dictatorship — acted hand-in-hand with the Car Wash prosecutors and Moro all along: to propagandize the country, obfuscate the wrongdoing of the judge and prosecutors, and glorify them as heroes and high priests of ethics, all with the ultimate goal of removing PT from power non-democratically.

As the U.S. witnessed over the last five years, this is increasingly becoming the playbook for neoliberal elites who are angry that the population has defied them by voting for those they oppose. Thwarted by the democratic process, elites now resort instead to subversions of democracy in the name of upholding it. The employ frivolous impeachments to remove the leader whose legitimacy they never accepted, lawfare designed to make governance impossible through endless investigations or even the unjust imprisonment of their political opponents, and a full-scale union with the corporate media which openly and shamelessly ceases to report and instead engages in tawdry political activism to destroy the leaders chosen by the disobedient population. Indeed, the oligarchical Brazilian media so openly and overwhelmingly favored Dilma’s impeachment that the steadfastly apolitical press freedom group Reporters Without Borders dropped Brazil to 104th in its annual press freedom rankings and warned that the Brazilian press’ abandonment of the journalistic function while agitating for Dilma’s removal was so severe that the Brazilian press itself endangered press freedom.

As neoliberalism destroys more and more lives around the world, leaving an endless array of social pathologies in its wake, power centers will seek out tactics to subvert the democratic will. The increasing insistence on censoring the internet and controlling the flow of information is one symptom of elite fear of popular rage and desperation. So, too, is the related attempt by corporate media outlets to regain their monopoly over news and discourse by discrediting anyone or anything which sits in opposition to them. And the playbook that resulted in Dilma’s removal from office less than eighteen months after Brazil elected her, followed by the unjust imprisonment of Lula to ensure he could not run and win again, is reflective of a pattern already emerging in the west: abusing the force of law, propaganda and state processes to destroy those whom the population was not supposed to elect.

The same ruling class fears motivate increasing attacks on anyone who effectively exposes the rot and deceit of their conduct. Just as the U.S. Government has imprisoned Julian Assange and exiled Edward Snowden, the Brazilian government is intent on imprisoning my source, Walter Delgatti, for the crime of exposing the truth (they also tried, unsuccessfully, to criminally prosecute me for the crime of doing the reporting that exposed the fraud of Lula’s prosecution).

The guardians of the ruling neoliberal order know their days are numbered and will become increasingly desperate to cling to power for as long as it can. The playbook used and just exposed in Brazil will be seen with greater frequency as a hated elite seek to weaken that which most threatens their interests: a discourse and a democracy they can no longer manipulate and control.