Thursday, July 27, 2017

Q&A: Rodrigo Janot's Dissenting Opinion on Lava Jato

By Luisa Leme

The fix to Brazil’s political crisis will have to come from within politics—and not the judiciary—says the country’s top prosecutor.

<hr /> <a href="http://www.as-coa.org/articles/latam-focus-rodrigo-janot-e-o-como-o-brasil-est%C3%A1-exportando-luta-contra-corrup%C3%A7%C3%A3o">Leia a entrevista original em português</a>. <hr /> <div class="wrapper" style="width: 100%;"> <table align="right" border="0" cellpadding="5" cellspacing="5" style="width: 30%;"> <tbody> <tr> <td> <img alt="" src="/sites/default/files/Janot_Rodrigo.jpg" style="width: 100%; height: 100%;" /> </td> </tr> </tbody> </table> </div> Brazilians are growing tired of the country’s <a href="http://www.americasquarterly.org/content/brazil-tired-guess-who-benefits">political crisis</a> as the three-year-long corruption investigation known as Lava Jato, or the “Car Wash” operation in English, has uncovered possibly the <a href="https://www.theguardian.com/world/2017/jun/01/brazil-operation-car-wash-is-this-the-biggest-corruption-scandal-in-history">largest organized crime operation</a> involving the public and private sectors in Latin America. But when Brazil’s Prosecutor General Rodrigo Janot—author of a <a href="http://www.as-coa.org/articles/brazil-update-legal-steps-involved-big-oil-case">list of indictments</a> involving more than a hundred politicians in the country—uncovered evidence that President Michel Temer was about to <a href="https://download.uol.com.br/noticias/documentos/DENUCIA-TEMER-CORRUPCAO-PASSIVA.pdf">receive a $152,000 bribe</a> via an intermediary between March and April of 2017 even he was surprised. “Given the status of the authority figures involved, I really refused to believe that these high-up dignitaries of the Brazilian Republic, holding these positions, were committing crimes,” Janot told AS/COA Online’s Luisa Leme in New York.  Even under scrutiny and criticism over how the Brazilian justice system let the source of this information go free, Janot is an advocate of plea bargains. For him, Lava Jato’s success came through changes to Brazil’s legal code, including a 2013 law that defines organized crime in the country and introduces <a href="http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/lei/l12850.htm">plea bargaining</a> as a means of obtaining proof in an investigation. Since Lava Jato first broke in March 2014, Brazil’s Prosecutor’s Office has issued <a href="http://lavajato.mpf.mp.br/atuacao-na-1a-instancia/resultados/a-lava-jato-em-numeros">1,765 legal proceedings</a>, including 279 requests to foreign governments for information and cooperation, 158 plea bargains with individuals, and 10 agreements with companies for leniency.   <div class="wrapper" style="width: 100%;"> <table align="left" border="0" cellpadding="5" cellspacing="5" style="width: 40%;"> <tbody> <tr> <td> "Thanks to plea bargains, we broke code of silence. There is no more omertà." </td> </tr> </tbody> </table> </div> As the end of his mandate on September 17 nears, Janot says Brazil’s fight against corruption is irreversible and has made too much progress to turn back now: “We have mapped out the web of this criminal organization, and now the next step is a criminal proceeding to dismantle this organization,” he explains. Bringing individuals to justice will not solve Brazil’s political crisis, he says, however, as the country’s political crisis can only be solved through political solutions. As Brazil becomes an example to other Latin American countries in the anticorruption fight and the Lava Jato investigation’s tentacles reach <a href="http://http://www.latinfinance.com/Article/3665513/Odebrechts-bribery-scandal-casts-a-shadow-over-Latin-America.html#/.WXi3mdPytEI">across the region</a>, Janot talked about the importance of a “deep reform” in the political system and how prosecutors’ offices in different countries can work together to address corruption throughout the region.  <hr /> <ul> <li>Enjoy this podcast? <a href="https://itunes.apple.com/us/podcast/latin-america-in-focus/id1089353175">Subscribe to Latin America in Focus on iTunes</a>!</li> </ul> <hr /> ***TRANSCRIPT*** The corruption revealed through Brazil’s Lava Jato investigation, aka the Car Wash operation, could ultimately cost more than $12.6 billion and has demoralized Brazilians. But in Latin America, the investigation is becoming an anticorruption case study. According to Transparency International’s 2016 Corruption Perceptions Index, Brazil is ahead of countries like Argentina, Mexico, Peru, and Venezuela in the fight against corruption, showing how to dismantle criminal organizations that contaminate government and block free enterprise. Hello, I’m Luisa Leme and this is Latin America in Focus, the podcast of Americas Society/Council of the Americas. This month in New York, I sat down with Brazil’s Prosecutor General Rodrigo Janot, the man behind indictments against some of the most high-profile figures in the country. In this episode, Janot explained how changes in Brazil’s legal system, notably the introduction of plea bargaining, allowed the Lava Jato investigation to uncover one of the largest organized crime operations in Latin America. To date, the investigation has extended 279 requests for information and cooperation to foreign governments. Janot also spoke of the rise of compliance among businesses operating in the region, how federal prosecutors’ offices across Latin America are working in coordination with each other, and how momentum for Lava Jato remains strong. He also discussed the role of the judiciary in Brazilian politics and what needs to happen in the 2018 elections for Brazil to continue leading the anticorruption movement. Luisa Leme: Dr. Janot, thank you so much for your visit to the United States and spending this time with the Council of the Americas. Rodrigo Janot: It’s an honor and a privilege to be here. The Council of the Americas is known internationally for its excellent work. And it was a privilege to accept the invitation to come here and speak with you a bit. LL: Could you describe your reaction when you came across the content of the investigation and learned that so many people in positions of power were involved? RJ: Look, I joke that if this investigation had revealed everything at once, I don’t think I would have accepted the job. Just a joke, obviously, but the investigation has taken its time. The facts were uncovered bit by bit, and the people involved appeared slowly. But now it’s amazing, really, the extent of this criminal organization that ensnared part of the government and part of the economic activity in Brazil. LL: Even during this last set of charges you filed, in which crimes were still happening as you learned about them, you said at the time that you could not believe what was happening. RJ: Given the status of the authority figures involved, I really refused to believe that these high-up dignitaries of the Brazilian Republic, holding these positions, were committing crimes that were still in progress when we had the opportunity to stop these criminal practices. LL: This whole operation has been based on plea bargains, and while you have explained that this is new to Brazil’s judicial system, you have also spoken of your enthusiasm for these agreements. There is a critical debate now among legal scholars about the function of plea bargains. Do you think it’s worth abandoning various rights in a lawsuit if it serves a greater good? RJ: I don’t think it’s a question of abandoning various rights—the means do not justify the end. A plea bargain is not a means of proof. A plea bargain, according to Brazilian law, is a means of obtaining proof. So when I make an agreement with a defendant, this agreement gives me a list and description of people involved, the means through which I have to gather evidence. And in the criminal process I have to produce evidence as I would have produced it in the same process without plea bargains. So there isn’t interference with other rights. What it does is it facilitates the investigation. Every investigation is trial and error. We suppose we know a fact and we need to know what the signs are that will take me to prove this fact and know which people were involved. And to follow this line of research, I will assemble theories to facilitate the investigation. If this doesn’t work, I will need to start over from the beginning until I find a reasonable line of inquiry. What cooperation through plea bargaining does is shorten these paths and direct these decisions in the investigations. LL: In this case involving the JBS beef company, the Batista brothers agreed to cooperate and present evidence. If that does not happen from now on, can this plea deal be canceled? RJ: Absolutely, for sure. The deal foresees that first, one side volunteers evidence or a means to obtain the evidence and, secondly, that throughout the investigation, the cooperator continues to act to facilitate the discovery process. If the defendant makes the plea deal and then does not follow the agreement or if he does not help the prosecution obtain evidence, he or she is exiting the deal. So, therefore, the agreement can be broken. LL: And is there more evidence that still needs to be presented in this case involving the Batista brothers? RJ: Several pieces of evidence were presented already and we continue to have the plea bargainers’ help in obtaining evidence. They in fact committed to the plea deal and participated in surveillance operations before even signing the agreement. There was the expectation that there would be a plea deal. They agreed to help the prosecution in these operations. LL: You said here in the United States that Lava Jato actions are irreversible, that fighting corruption won’t end with this operation or with your mandate. There is no going back. But now, it’s almost like this is out of your jurisdiction because of legal immunity granted to politicians. You indicted the president in this case, and now Congress—many of whose members are also under separate indictments—is now voting [on a motion to allow the case against Temer to proceed]. Do you feel like we have been swimming against the current? Will it make a difference if these indictments against politicians in power do not end up in prison sentences? RJ: Time in prison is the ultimate result in a lawsuit. We have to wait until we get to the trial stage. It can end in a prison sentence or in acquittal. It depends on the prosecution being efficient to produce the necessary proof for these people to be declared guilty. What Brazil’s Constitution says is that only in the case of the president is there a need for the lower house of Congress to approve that an indictment against him can move to the Supreme Court. In other cases it is not like that: the prosecutor general deals directly with the Supreme Court and the legal process begins. Today, we have 24 lawsuits in the Supreme Court resulting from Lava Jato investigations. This case involving the president is peculiar because of that rule. It is what the Constitution says about the president—rightfully so—as his office is the highest authority in the country. For him to be charged, the Chamber of Deputies must uphold the case against him. And the chamber judges him politically, not legally. The lower house does not accept or reject the indictment. It simply authorizes the legal proceedings against him or not. If this doesn’t pass in the lower house, the indictment is put on hold until the president is out of office. From that moment on, the indictment goes forward like other legal cases. LL: So, can we say then that the Brazilian institutions are working? RJ: Yes, they are working for sure. LL: Do you believe Lava Jato is bringing more transparency to the government? RJ: I believe the operation is bringing more transparency for the country and Brazilian society. What we’re doing is shedding light on an illegal system that’s existed in the country for many years. LL: Lava Jato revealed systemic corruption, reaching public and private sectors. Do you believe members of the judiciary are being spared from this investigation? RJ: I will give you a clear example of how no one is outside the reach of the law. We live in a republic—the idea is that everyone is equal under the law and the law applies to everyone equally. In this investigation, in the last plea bargain deal, we unfortunately discovered a colleague in the federal Prosecutor’s Office who was compromised and passing information to people under investigation. He has been in jail for more than two months now. So this is confirmation that, if there is concrete proof, we will cut out our own flesh. If there is an illegal act happening, we will pursue it. LL: This investigation has had a demoralizing effect in Brazil: people are very disappointed with the country and its political class. What will be the political consequences of this investigation? RJ: Lava Jato shed light on this illegal network. I hope that consequently, there is political reform in the country. The solution for the political crisis can only come from the political system itself. The judiciary cannot resolve political problems. So, I hope that a natural consequence is a deep political reform for us to create the mechanisms to avoid situations like today’s and diminish the chances for endemic and systemic corruption to spread in the future. LL: What do you think needs to happen for us to see political reform in the country? RJ: This political reform is in the hands of Congress. They must have the political will to make that happen. What we are seeing now is that the system as it is is exhausted—it’s bankrupt. We’re anxious to see deep reform. LL: A lot of people in Brazil today have put their political hopes in the judiciary, in judges, in people who’ve become famous working on the investigation. What do you think of judges, prosecutors, and police investigators getting involved in politics? What might be a role for the Prosecutor’s Office in terms of democracy and during the elections? RJ: During the electoral process, the Prosecutors’ Office role is to act as an electoral prosecutor, which is what the law says. The Electoral Prosecutor’s Office oversees the elections. For democracy, I believe the main role for the Prosecutor’s Office is to do its work, to show that the right to free and fair elections is guaranteed in an open democracy and must also mean that the law is able to reach everyone. Whoever acts illegally must suffer the consequences, all in the same manner. It doesn’t matter what race, religion, rich or poor … an illegal act must be addressed. Whoever acts that way should get the same response from the state. LL: Do you believe in members of judiciary turning to politics? Do you yourself think about entering politics? RJ: I can speak on my own behalf. I am not and will never be a candidate to any political post whatsoever. I respect politics and the people who get into politics, but it is not my vocation. The only thing I know is how to work with the law, and I will keep working as a lawyer. LL: For a judge or a prosecutor to become a candidate, he or she needs to leave his or her post, right? RJ: Yes, constitutionally, a judicial officer or member of the Prosecutor’s Office cannot take part in any political or partisan activities. So, for one of us to be able to join political causes or a party, you must resign your post—and that is not an easy decision. LL: We Brazilians are putting all our hopes in the 2018 elections. You always bring up several examples from Italy when talking about Lava Jato and its similarities with the Clean Hands operation. Do you believe it’s possible Brazil will see someone like a [former Italian Prime Minister Silvio] Berlusconi in 2018? RJ: No. The circumstances in Italy with the Clean Hands operation and in Brazil with Lava Jato have some commonalities, but there are profound differences as well. The difference here is that all the circumstances that strengthened someone like Berlusconi in Italy are not present in Brazil today. The question in Brazil today is about the rise of a dark horse, outsider candidate, but I don’t know. We have to wait and really hope that citizens make informed decisions in 2018. There is no solution for politics that does not come from within politics itself. LL: Moving out to Latin America and how to export this fight against corruption to other countries, the Prosecutor’s Office is gaining an international reputation. How do you think the collaboration with other Latin American countries in the anticorruption effort is going? RJ: It is very clear today that corruption is not isolated to any one country. [The countries] cannot analyze it individually; corruption goes beyond borders and organized crime today is a regional problem. So, there is no way to fight corruption at this level of organization if there is not intensive cooperation between countries. In Latin America’s legal systems today, we are seeing a transformation, and prosecutors’ offices in these countries understand that you either work collaboratively and professionally, or no one of us will have success in our own investigations, as these are acts that are committed across borders. So, to fight transnational organized crime, we have to set up a judicial cooperation framework that goes beyond countries’ borders. The problem of corruption today is not of individual countries—it’s a regional problem, and so we face it as such. LL: What are the types of partnerships you make? How do the prosecutors’ offices work together? RJ: We have partnerships previously outlined in international conventions such as the OECD, the Mérida Convention, and the Palermo Convention that guide how to work together. The first step, which we are working on, is to set up international investigation teams. These teams are put together by two or more countries if the issues under investigation are of interest to them. We can then share information more quickly and guide investigations and discovery in a way that one piece of evidence can be used by all countries involved. LL: Are there significant differences in these countries’ laws or legal codes? RJ: A great advantage was that there was a movement in Latin America to transform criminal law from an inquisitorial tradition into an <a href="http://biblioteca.cejamericas.org/bitstream/handle/2015/3622/cavise.pdf?sequence=1&isAllowed=y">accusatorial system</a>. In this, the state gathers evidence, and when it has a collection, it initiates criminal proceedings against a citizen. Therefore, we have the parity of resources when we start to gather evidence. The investigation already has the defense’s response, so you do not have to repeat everything when the criminal trial starts. It’s a democratic process that revitalizes the right to a defense and prioritizes efficiency because you don’t have to go through the discovery process twice. Most of countries (Brazil is in transition now) are implementing their accusatorial systems in their criminal processes. That’s made things much easier because then you all work within similar frameworks. Of course, each country has its own legal peculiarities, but we have international treaties and conventions that make the prosecutors’ offices’ actions uniform. The tools are available to us—we just have to put them into practice. LL: How are companies in the region acting in light of these investigations? We spoke about the growth in compliance departments and how these companies are interested in changing, but, as you mention, there are difficulties. RJ: This talk of compliance is music to our ears. We saw that in certain sectors of the economy, self-regulation did not work. And prioritizing regulatory agencies to intervene in illegal activities in these sectors did not work well either, so much so that it created Lava Jato. We were not effective in preventing crime from happening. The model being proposed now is one of internal regulation, in participation with the state. A company is interested in its employees and directors not participating in any illegal activity, and the State has a vested interest in the company operating legally because it will help prevent illegal activity in that sector. So, this is the ideal path: the private sector works with regulatory agencies to prevent crime. LL: We are talking about an anti-bribery system then? RJ: Not only bribery, but other crimes as well. It is a system that guards against illegal activity. A company knows its own structure, division of labor, and responsibilities much better [than the government]. When I work on an investigation into an employee of a company, I don’t know how things work, I have no idea about this division and who controls what, who decides, and who acts. So if the company does an internal review prior to that and starts to identify where illegal activity might occur, that’s a perfect instance of prevention. On one side, the company works to set up these protections where they’re needed, and on the other side there is a state regulatory agency that monitors anyone who engages in illegal activity. LL: You’ve said it’s impossible to know when the Lava Jato is going to end in Brazil, since it has affected so many sectors of society. There is no expiration date for the investigation. What do you see in the future for Lava Jato in Brazil and in other countries? What still needs to happen for us to have a concrete system to prevent illegal activity like this? RJ: I cannot say how much time it will take to finish Lava Jato, but I can say that we are closer to the end than to the beginning. These investigations had two goals: to identify and dismantle a criminal organization. We have identified and now mapped out the web of this criminal organization, and now the next step is criminal proceedings to dismantle this organization. I don’t know about time, but having this design already puts us on the path to the end. LL: You said in Washington that a criminal organization adapts. So instead of corrupting a government official, it could place someone in government. Is there a chance this could start happening? What is the future of these criminal activities? RJ: We need to wait to see how organized crime reacts. The ability to adapt is huge: if we close a door, they will try to open another and continue their operations. So what we have intuited so far, with the help of intelligence, is that either in professional sectors or in politics, these criminal organizations are acting as follows: bribes paid to a campaign or to a politician are now traceable. Thanks to plea bargains, we broke code of silence and there is no more omertà. In politics, what we are seeing is that organizations don’t traffic in money anymore. They ask, for example, how many votes are needed for a congressional candidate to win. After the voting happens and the person is elected, the politician needs to pay back this organization. In professional sectors, we feel these organizations know that we can identify and punish, even when it’s difficult, for example, my [former] colleague who is now answering to the law. The investment they are making is in preparing professionals to pass civil service exams and join the police or prosecutors’ offices. There must be investigations within government institutions from the inside out. We are on alert for that and will see about finding safeguards to avoid this situation. LL: So an internal change in institutions such as the Prosecutor’s Office? RJ: Regulation. More regulations and controls, for sure. LL: Dr. Janot, is there any question I did not ask you that I should have? RJ: No, not really (laughs). LL: Thank you very much for our talk. RJ: My pleasure. Meg Healy contributed to the transcription and translation of this interview.

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Q&A: Rodrigo Janot's Dissenting Opinion on Lava Jato

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