Caught in an Authoritarian Trap of Its Own Making? Brazil's ‘Lava Jato’ Anti‐Corruption Investigation and the Politics of Prosecutorial Overreach
| Date | 01 October 2020 |
| DOI | http://doi.org/10.1111/jols.12245 |
| Published date | 01 October 2020 |
| Author | GEORGE MÉSZÁROS |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, ISSUE S1, OCTOBER 2020
ISSN: 0263-323X, pp. S54–S73
Caught in an Authoritarian Trap of Its Own Making?
Brazil’s ‘Lava Jato’ Anti-Corruption Investigation and the
Politics of Prosecutorial Overreach
GEORGE MÉSZÁROS∗
The negative and corrosive impacts of corruption in the fields of
economics, politics, and law are widely discussed. Less understood
are the potentially negative impacts of anti-corruption struggles and
strategies themselves. This article presents a case study of Brazil’s ‘Car
Wash’ (‘Lava Jato’) scandal from a legal and political perspective.
Although the subsequent Operation Car Wash investigation was widely
regarded as remarkably successful, supposedly buttressing the rule
of law through high-profile prosecutions of leading politicians and
businesspersons, the article argues that legal due process, wider
constitutional law, and the political process were undermined. While
the use of media leaks to strengthen the investigation proved tactically
successful, when coupled with new legal instruments it undermined the
presumption of innocence and contributed to a climate in whichpolitical
and legal debates themselves became increasingly subordinated to
simplistic polarizing anti-corruption discourses, thereby undermining
an already fragile political and institutional environment.
In recent years, Brazil had become an inspiration for many countries as a
successful example of confronting systemic corruption and impunity.1
Lula’s imprisonment is only viable in a context of total destruction of the
political system, and that is what Lava Jato has achieved.2
∗School of Law, University of Warwick, Coventry, CV4 7AL, England
g.a.meszaros@warwick.ac.uk
1G.France,Brazil: Setbacks in the Legaland Institutional Anti-Corruption Frameworks
(2019) 2, at <https://www.transparency.org/whatwedo/publication/brazil_setbacks_
in_the_legal_and_institutional_anti_corruption_frameworks>.
2 Gilmar Mendes, Brazilian Supreme Court judge, cited in C. Jiménez and R.
Oliveira, ‘Gilmar Mendes e a Lava Jato: “Deu-se poder para Gente Muito Chinfrim,
Mequetrefe”’ El País, 29 October 2019, at <https://brasil.elpais.com/brasil/2019/10/
24/politica/1571944278_725688.html>.
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This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits
use, distribution and reproduction in any medium, providedthe original work is properly cited and is not used for commercial
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University (CU).
I. INTRODUCTION
Context plays a vital role in how corruption is constituted and how anti-
corruption struggles are conducted and should be understood. In a special
issue of Daedalus entitled ‘Anticorruption: How to Beat Back Political &
Corporate Graft’, guest editor Robert I. Rotberg indirectly acknowledged the
significance of context and the role of politics. He offered a case in point:
‘In China … President Xi Jinping’s lengthy and aggressive anticorruption
campaign may result in the diminution of many enduring corrupt endeavours,
even if his foremost goals for the campaign are doubtless political.’3
Expressed another way, a holistic analysis is essential. Minxin Pei’s piece
for the same issue (‘How Not to Fight Corruption: Lessons from China’)
suggested that the intensive drive to beat corruption was allied to a purge
of political opponents; hence, this was not the way to fight corruption.4
Surprisingly, however, Rotberg’s assessment of Brazil’s recent anti-
corruption struggles (known as the ‘Lavo Jato’ (‘Car Wash’) investigation)
dispensed with all such qualifications in a manner symptomatic of policy-
oriented and media coverage in particular.5Instead, the issues were presented
as relatively straightforward, and the outcomes as largely positive and
conclusive:
rule-of-law reforms enabled Brazilian prosecutors and [Sérgio] Moro [the
judge heading the Operation Car Wash investigation] and his fellow judges to
pursue charges of corruption against individual politicians, political parties, and
corporations, strengthening the rule of law in Brazil and helping to bring the
impunity that politicians had long enjoyed to an unceremonious end.6
Like official narratives of the fight against corruption in China, Rotberg’s
account of Lava Jato left out vital pieces of the equation, including the
political context surrounding those arrests, their implications for the wider
3 R. I. Rotberg, ‘Accomplishing Anticorruption: Propositions & Methods’ (2018) 147
Daedalus 5, at <https://www.mitpressjournals.org/doi/full/10.1162/daed_a_00513>.
4 M. Pei, ‘How Not to FightCor ruption: Lessons from China’ (2018) 147 Daedalus 216,
at <https://www.mitpressjournals.org/doi/full/10.1162/daed_a_00512>. See also A.
Laurence, Anti-Corruption Campaigns in Authoritarian Regimes: The Case of China
(2016) Master’s Thesis, Central European University, Budapest, at <http://www.etd.
ceu.hu/2016/laurence_anthony.pdf>. Laurence is clear that anti-corruption campaigns
can be a means of consolidating authoritarian power.
5 Brazil’s deeply divided legal profession became increasingly critical, as did academic
coverage. See, for example, J. Souza, A Radiografia do Golpe (2016); J. Souza, A
Elite do Atraso: da Escravidão à Lava Jato (2017). Groups such as Transparency
International, however,remained overwhelmingly supportive, presenting the Operation
Car WashTask Force with its 2016 Anti-Corruption Award. Likewise,the Organisation
for Economic Co-operation and Development (OECD) allied itself to and deflected
criticism of the investigation. See M. Sanches, ‘“Estamos Preocupados com Possíveis
Retrocessos no Combate à Corrupção no Brasil”, Diz Dirigente da OCDE’ BBC News
Brasil, 25 October 2019, at <https://www.bbc.com/portuguese/brasil-50174618>.
6 Rotberg, op. cit., n. 3.
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University(CU).
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