Sergio Moro at the STF

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By THIAGO BARISON*

The annulment of Moro's decisions and his suspicion in the Lula case: Savonarola goes to Rome.

Almost five years ago, after the impeachment of Dilma Rousseff, but even well before Lula's arrest and electoral disqualification, Unicamp professor emeritus, Rogério Cezar de Cerqueira Leite, wrote “Unveiling Moro”, in which he compares him to Girolamo Savonarola: the Dominican whose moralistic preaching contributed to weakening the power of Renaissance Florence and who, after fulfilling certain objectives, is lured by the pope to Rome and finds himself a victim of the Inquisition. The historical example bothered Moro at the time. As seen today, with good reason[1].

The unannounced decision of one of the Lava Jatista ministers of the STF, Edson Fachin, to recognize the territorial incompetence of the Criminal Court in which Sérgio Moro acted (HC 193.726) and, the following day, the resumption of the trial of suspicion by that same magistrate in the cases against Lula (HC 164.493) with the publication of the votes of the guarantors Gilmar Mendes and Ricardo Lewandowski indelibly inscribed these 24 hours in the history of the Brazilian judiciary.

Not only because it is the continuity of the trial of what was heralded as “the corruption scheme that shocked the world”[2], or for involving a president of the Republic of popular origin, nor for the fact that the political-procedural facts preceded one of the greatest political and institutional crises experienced under the 1988 Constitution: what records these STF trial sessions in the history of the judiciary is the fact of state self-disclosure. A self-revelation, moreover, made in time to produce relevant political effects for the forces in dispute and for the State apparatus itself.

From an institutional point of view it looks like a kind of autophagy. The judiciary is a cohesive body, whose members have been socially sifted with the utmost rigor, its operation is protected by robust material guarantees and its performance always takes place under the guise and the script produced by the role played by the State in the social macrostructure. In view of this, it was impossible not to be perplexed by the self-revelation on the part of this state body that it had been violating its principles in the service of political and class interests.

It can be argued: the top of the judiciary is identifying arbitrariness perpetrated by lower bodies and, thus, reaffirms its monopoly over the law and restores the health of the system. In the same sense, liberals and institutionalists will say: the system matured, the institutions took a while, but, in the end, they worked.

However, even though this self-revelation may strengthen the judiciary, it is undeniable that it did not have to happen like this, “in life”. And everything, as we said, led to believe that it would not happen until a long time later, conveniently, when the truth no longer produced practical effects beyond the historiographic record.

Enthusiasts of the slogan “the institutions work” must say that it was not the purest chance, the consistent randomness in hackers having illegally accessed the phones of the task force members, and having done so for reasons unrelated to the hunt for the one led by Lava Jato , institutions would hardly work by themselves, if not in the sense they have been working: participating in the judicial and political measures that brought the neoliberal front to power and, more recently, seeking to lessen the damage that neo-fascist idiosyncrasies can cause to the stability of this new hegemony[3].

The dissemination of dialogues between Lava Jato judges and prosecutors revealed the existence of an authentic middle-class political organization, whose action goes beyond the limits set by law. Luckily, or unluckily, depending on the point of view, these compromising conversations reached journalists with expertise and sectors of the mainstream press safely. From then on, the negligence of the lavajatistas prevailed and also a certain impossibility of acting otherwise; after all, how can you deny the undeniable? How to try to counteract such a vast plurality of detailed information to be confirmed by hundreds of different agents who were the subject of conversations (journalists, parties, lawyers, etc.)? The book Vaza Jato — behind the scenes of the reports that shook Brazil, by Leticia Duarte[4], shows how the journalists realized the veracity of the material's content: they found references to themselves and facts in which they participated in Operation coverage among the prosecutors' conversations. As Gilmar Mendes later said, “Either we are facing a fantastic fictional work that deserves the Nobel Prize for Literature, or we are facing the biggest judicial scandal in the history of mankind”[5]. The embarrassment, in this place on the stage, is inevitable. The limelight came with the criminal investigation opened against hackers — Operation Spoofing — in which the material obtained was examined by the Federal Police.

But more importantly, and with that we conclude, if it is true that the state self-disclosure of the Lava Jato crimes takes place in time to produce political and institutional effects, and everything indicates that it will do so with the change in the electoral scenario, it is equally certain that the judiciary as a body, for what matters, from Curitiba to the STF, actively participated in a new type of coup d'état, which involved illegal judicial persecution, the production of media heroes, the supply of battle flags, an ideological discourse and a conjunctural line of action to middle-class masses against corruption, and all with a view to a very precise political objective: to destroy the political representation of the neo-developmentalist front and pave the way for the rise, outside the ballot boxes, of neoliberal hegemony[6]. The same Gilmar Mendes who now reveals to us “the biggest judicial scandal in history” participated in a climactic moment in this plot: the injunction, issued after the disclosure of an illegal interception by the Presidency of the Republic — astonishingly — against Lula’s nomination to the Civil House, This act would immediately remove him from Sérgio Moro's sights.

Today, yes, there is a victory for democracy: a great judicial farce is naked before the people. But we would be wrong if we forgot the fact that it wasn't the people who stripped her. One king was replaced by another. Girolamo Savonarola is sent to the bonfire in a public square, but by the hands, who would say, of the Holy Office itself.

*Thiago Barison He holds a PhD from the Faculty of Law at USP. Author, among other books, of The State Union Structure in Brazil and the judicial control after CF/88 (LTr).

Notes

[1] Rogério Cezar de Cerqueira Leite, “Unveiling Moro”, Trends & Debates, Folha de S. Paulo, 14/10/2016.

[2]This is the subtitle of the extremely relevant work by Malu Gaspar, “The organization” (São Paulo: Companhia das Letras, 2020). The subtitle certainly forms part of the list of slips that do not invalidate the serious work carried out, which, to the good observer, reveals that corporate-political corruption is very old, monopolies and agents from countries with different degrees of economic and social development participated in it, it is suprapartisan and that umbilically integrates the entire Brazilian political system.

[3] We deal with this in an article published in Jornal Brasil de Fato, “O neofascismo e o Partido Lava Jato”, on 25/4/2020: https://www.brasildefato.com.br/2020/04/25/artigo-o- neo-fascism-and-the-car wash-party

[4]DUARTE, Leticia; The Intercept Brazil. “Vaza Jato: behind the scenes of the reports that shook Brazil”. Rio de Janeiro: Morula, 2020.

[5]Sentence uttered at the trial session of Complaint 43.007, on 9/2/2021. Cf. https://www.redebrasilatual.com.br/politica/2021/02/gilmar-mendes-sobre-os-dialogos-de-moro-na-lava-jato-obra-ficcional-ou-o-maior-escandalo- judicial-of-humanity/

[6] BOITO JR., Armando. “Reform and political crisis in Brazil: class conflicts in PT governments”. Campinas: Ed. Unicamp, Sao Paulo: Ed. Unesp, 2018.

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