The Brazilian Legal Profession

Volume 4 • Issue 6 • September/October 2018
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Operation Car Wash

Highlighting key stories about the profession you may have missed

Any comprehensive view of the state of the Brazilian legal profession needs to address the elephant in the room: the now-five-year-long investigation, known as Operação Lava Jato (“Operation Car Wash”), that has left the country’s political elite reeling. The ongoing federal probe into bribery and corruption, which began as a largely routine investigation into the suspicious gift of a Land Rover to a former state official, has already seen more than 200 individuals charged, even reaching as high as Brazil’s highest office—its current occupant as well as a number of his predecessors, cabinet officials, and dozens of members of Congress.

One noteworthy thread running throughout Operation Car Wash is the force that is driving it—the individuals in the Brazilian justice system who have taken on what some commentators have called the most widespread corruption scandal in modern history. Perhaps most notable about these lawyers is their age—they are young. The judge who has overseen many of these corruption cases and has become one of the faces—if not the face—of the current anticorruption movement in Brazil, Sérgio Moro, is only 46. The lead prosecutor for the Operation Car Wash investigation, Deltan Dallagnol, is just 38. The Wall Street Journal reported in 2015 that the median age of Dallognol’s team, dubbed locally as “The Nine Horsemen of the Apocalypse,” was 36.

Corruption is such a difficult thing to prove because it is done in whispers, surrounded by four walls with no witnesses, explains lead prosecutor Deltan Dallagnol.

At a 2017 Harvard Law School event, Dallagnol talked about the origins of the investigation that would become Operation Car Wash. “[The] Car Wash case began as a money-laundering case,” he began. No one could have predicted just how deep into the country’s political leadership this lead would take them. He explains:

We were investigating four criminal organizations … who used to move money abroad back to Brazil without wiring the money internationally. They made compensations among funds that they had abroad and funds that they had in Brazil. Well, along the investigation we discovered that one money-laundering agent, Alberto Youssef, gave a luxury car in favor of one former Petrobras director, Mr. Paolo Costa … And when we talk about Petrobras, we are talking about the biggest Brazilian company at that point. It is one of the giants of the world in the matter of oil and gas, and its director led a field that had a budget bigger than the budget of many ministries in Brazil. He was not anymore a director when he received that car, but the fact that a money-laundering agent was giving a car to a former director of Petrobras was very suspicious.

Since then, Dallagnol explained during the April 2017 panel, the investigation has proceeded in 39 phases, each measured by a moment when prosecutors executed search or arrest warrants. In that time, prosecutors uncovered evidence of more than $2 billion in bribes paid, with losses estimated as high as $42 billion—and that pertains only to the Petrobras case, which the investigation has revealed to be part of a much larger network of corruption. Prosecutors, Dallagnol explains, had to undertake tactics and strategies that were seldom tried in Brazil, such as flipping witnesses through plea bargaining agreements.

Because corruption is such a difficult thing to prove by its very nature—paraphrasing Dallagnol, it is done in whispers, surrounded by four walls with no witnesses—and because techniques have developed in sophistication such that following paper trails is simply not an option in many cases, the prosecutors homed in on a strategy of obtaining cooperation agreements with those implicated in the investigation. Dallagnol traces the inspiration for that strategy back to a fundamental component of the law school curriculum: negotiation. Namely, no one is going to negotiate unless the negotiation is better than the alternative.

“When we talk about Petrobras, we are talking about the biggest Brazilian company at that point,” says Dallagnol.

A number of these prosecutors honed these skills at foreign law schools. Dallagnol is a graduate of Harvard Law School. Carlos Fernando dos Santos Lima, another Car Wash prosecutor, attended Cornell Law School. Another prosecutor, Paulo Roberto Galvão de Carvalho, studied public law at the London School of Economics.

Investigations linked to Operation Car Wash continue to this day, and where they will end remains uncertain. What it will ultimately mean for the Brazilian legal profession will depend in part on how and to what extent lawyers are implicated in the ever-growing scandal, but one aspect has emerged as a clear success: the country’s prosecutors and judges. Operation Car Wash was possible because of a unique political moment where Brazilian society refused to dismiss corruption and abuses of office, but it would not have gone as far as it has without the continued effort and resolve of the police investigators digging up evidence, the federal prosecutorial team leveraging that evidence to further the investigation, and judges granting their requests for warrants and otherwise sanctioning their progress. Thus far, Operation Car Wash has been a win for the influence of government lawyers in Brazil.

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The Brazilian Legal Profession Volume 4 • Issue 6 • September/October 2018

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