10 (of the several) reasons why Moro cannot convict Lula

The Operation Car Wash prosecutorial team led by Deltan Dallagnol accuses Lula of having received an apartment in Guarujá and the storage of the presidential collection between 2011 and 2016 in exchange for 3 Petrobras contracts investigated in a kickback scheme. Understand why the accusation is an absurdity in each of these charges and why convicting Lula is impossible within the law:

1- Because even the Public Prosecution admits not having any evidence against Lula, yet request his conviction in spite of the law

The Public Prosecution itself admit in their final petition not having any evidence against Lula. They thus ask that the concepts of proof and the “ex-officio action” (that is, the act of corruption Lula is being tried for) be softened and, instead, “objective criminal responsibility” be used to convict Lula. They say the wrongdoings are “difficult to prove”. Seven times the legal literature used to justify the prosecution’s theses are works by Deltan Dallagnol himself advocating the use of signs, indirect evidence, and softened approach to the presumption of innocence for the purpose of convicting even when there is no evidence of guilt. In his works, Dallagnol says that judging is an act “of faith” and that “proving is arguing”!?! Failing to produce the criminal act Lula would have perpetrated, they say the higher the office held by a civil servant, the vaguer the action may be. As Lula was president of the Republic, the highest possible office, they seek to do without the need, required by law, to produce an “ex-officio action”, an action that is, effectively, corruption. Thus, Lula is being tried for having been president of the Republic, or in other words, for the office he held and not for any criminal conduct as provided for in the law.
What’s more, at the other end of the accusation, regarding that which Lula would have received for the action they are unable to translate into words, they write that the fact that there is no evidence or document attesting to Lula’s ownership of the triplex apartment in Guarujá would be proof that he is the owner and that he is concealing ownership of the property (?!?).

It might seem funny, but it is tragic that after years of investigation and smearing against Lula, the prosecutors may write this in a petition where they ask for the conviction of a former president of the Republic.

2- The apartment is not Lula’s

It is not that, “formally”, the apartment is not Lula’s. It is not Lula’s because it is an asset owned by construction company OAS, who is responsible for the payment of the condo’s upkeep and administrative expenses, as listed in the company’s filing for Chapter 11. And OAS could not give the condo to the ex-president because it has been pledged as collateral with a fund managed by savings bank Caixa Econômica Federal. OAS had, first, to pay for the property placed as collateral, thus freeing it from the terms of the loan, in order to be able to convey the property.  There is even a specific account to receive such payment. This has been PROVEN in documents, and this financial operation is being discussed before the São Paulo judiciary.
It has also been proven in the records that Lula and his family never had the keys to the apartment, never used it, and only visited it twice (Lula only once) to decide whether to purchase it.  If the Lula family came to buy the apartment, OAS would use that amount to settle the financial operation the property is tied to. Without that, conveyance of the property by OAS would be impossible. Therefore, it is not an asset of the former president. All of the former president’s assets have been duly included in his income tax return.

3 – It is legal and provided for in the law that companies may contribute to store a president’s collection

Federal Law 8394, which regulates presidential collections after a president has stepped down from office, allows companies to contribute with the upkeep of the private collection of former presidents, as they are of public and historic interest. They are not the former president’s “personal goods”, but objects received from people during his term in office, the vast majority of them with no commercial value, yet great value for research. The Office of the Prosecutor General of the Republic has already handed down a ruling stating that such contribution, which amounted to 21,000 Brazilian reals [approx. US$ 6,350.00] for the storage of 13 containers, was not illegal. And nothing during the proceedings has indicated this help had any relation with any government or corruption act. On the contrary. Hauling business Granero took full responsibility for the contract originally entered into by OAS, while stating there had not been any intent to conceal.

4 – There was no “follow the money”. The company that built the apartment and the one that contracted with Petrobrás are not even the same.

There is absolutely no evidence of any sort of relation between such apartment and the three Petrobras contracts the Public Prosecution included in their petition, as those were entered into between 2006 and 2008, while Lula only went to the apartment to decide whether to buy it or not in 2014. The Petrobras contracts were entered into by construction company Construtora OAS, while the apartment building was built by real estate developer OAS Empreendimentos. Both firms belong to the OAS group, yet hold completely separated corporate registration numbers and cash flows. OAS Empreendimentos has no contract or business with Petrobras. Why, then, did the Public Prosecution include these contracts? Because if it did not include the Petrobras contract, the case could not be judged by Sérgio Moro in the Curitiba headquarters of Operation Car Wash. And Moro refused to authorize any further investigation to determine if, somehow, money from Petrobras contracts had been used in the Guarujá apartment building, renovations, or storage of the former president’s collection. It was the defense that requested further investigation to verify whether any Petrobras funds were funneled to the Guarujá apartment. Moro acquitted Eduardo Cunha’s wife, Claudia Cruz, precisely because there was no traceable evidence proving that the money she held in a Swiss account had come from Petrobras.

5 – There is no evidence whatsoever of Lula’s involvement in the 3 contracts listed by the Public Prosecution

In the accusation, the Public Prosecution literally says that Lula acted to obtain undue advantages in these three contracts together with plea bargainers and former Petrobrás managers Paulo Roberto Costa, Pedro Barusco, and Renato Duque. None of the former Petrobrás employees confirms that. Renato Duque says he only met Lula in 2012, Paulo Roberto Costa said he had never heard of any undue advantage for Lula, nor had any meeting with him to discuss any wrongdoing or advantage, and Barusco says he has never met the former president. Barusco and Paulo Roberto testified as cooperating witnesses, sworn to tell the truth.
6 – There is no evidence whatsoever of Lula’s involvement in the Petrobras kickbacks

After more than 3 years of Operation Car Wash, there is no evidence that Lula had any role in the Petrobras grafts. Zero. And this is after more than 200 plea bargaining deals, of his having his phone and bank data disclosed, and his life and that of his relatives searched. Two important auditing firms, KPMG and Price Waterhouse, found Lula had no participation in any Petrobras actions. Fábio Barbosa, former president of publishing company Editora Abril, who sat on the company’s Board of Directors, elected by minority stakeholders, said that, before Operation Car Wash, grafts at Petrobras were unknown of. And that there was nothing against the executives appointed by the company’s Board of Directors at the time. Petrobras has an executive board, a board of directors, an audit committee, internal and external audits. Neither these controlling bodies, nor the Federal Police, the Public Prosecution, and the Office of the Comptroller General of the Union knew of these grafts before Car Wash.

7- There is no logic: Why did Lula step up anti-corruption enforcement?

Even Car Wash prosecutors and Federal Police chiefs have to acknowledge that Lula was the first president to respect the autonomy of the Public Prosecution and nomination by peers, and to equip and strengthen the Federal Police. Lula also appointed a strict judge, Jorge Hage, to command the Office of the Comptroller General of the Union (CGU, in the Portuguese acronym) and vested him with powers to oversee state-owned companies, like Petrobras, too. Hage’s CGU removed over 5,000 public employees for irregularities. 5,000! The Lula administration also set up a Transparency Portal that made it possible for the people to analyze public spending and fostered cooperation and the signing of international anti-corruption and money laundering treaties. Why would Lula do that if his intention was to lead a criminal power scheme?

8- All the charges are based on affirmations made by Léo Pinheiro, who wants to get out of prison, and are in contradiction with documents signed by Léo Pinheiro himself

The only basis for the accusation filed by the Public Prosecution is the testimony by businessman and former OAS director Léo Pinheiro, who is under arrest by order of Sérgio Moro, and has already been found guilty in other lawsuits. It is Léo Pinheiro who says he agreed with the Workers Party (PT) former treasurer, João Vaccari, that the apartment belonged to Lula and would be handed over to the former president, who would not pay for it. He does not explain how the apartment would be conveyed without any payment. Nor does he explain how Lula would make use of the apartment incognito, or what advantage Lula would have in owning an apartment that was not in his name and, therefore, he could not sell. Nor does he explain how he signed financial operations placing an apartment that was “Lula’s” as collateral.  Léo Pinheiro also made references to meetings with Lula Institute’s chair Paulo Okamoto in 2009 and 2011, which did not take place, as clarified by the Lula Institute director in his deposition.

9 – Neither Moro, nor Car Wash prosecutors, should be eligible to judge this case

Moro and the prosecutorial team led by prosecutor Deltan Dallagnol spared no effort to ensure that Car Wash would try Lula in the Curitiba jurisdiction on the basis of a thesis previously conceived by Operation Clean Hands, carried out in Italy, that in order to succeed, an investigation had to reach the country’s most important politician. For that, Moro and the Public Prosecution violated two legal principles: that facts must be tried where they took place; and that judges and prosecutors should be chosen by a draw to prevent someone from suffering personal persecution or from being tried by an enemy.

Moro began with a Paraná state-based black market dollar dealer he had already arrested and released before –  Alberto Youssef – and whose phone he tapped for eight years, and gradually extended and expanded Car Wash through the so-called “connection” of cases up to a point it became a case that no longer had geographical or thematic boundaries. For that, Moro was assigned a unique task among all the judges in the country: that of only trying cases related to Operation Car Wash and no longer participating in the draws guiding the distribution of lawsuits. Moro still holds such distinction, yet was limited by the Supreme Federal Court to judge Petrobras-related cases only.

None of the facts included in the Public Prosecution’s petition took place in Paraná, while the nexus with the Petrobras contracts was artificially included in the case so that it could be tried by the 13^th Federal Circuit of Curitiba. Actually, he inherited this case from other prosecutors, in this case São Paulo State prosecutors, who had never established any connection between the Solaris apartment building and Petrobras, and had their petitions refused by a São Paulo State judge who ruled the case. This judge kept all the defendants of the case she was trying, except for Lula and his wife Marisa Letícia, who were referred to Moro.

10 – The trial is not fair – judge is biased, Lula’s adversary 

Judge Sérgio Moro’s bias against Lula was manifested at several moments:

– When he illegally disclosed private conversations of the former president and illegally recorded conversations between Lula and former President Dilma Rousseff.
– When in a document to the Supreme Federal Court he prejudged Lula.
– When he tapped the former president’s lawyers’ phones.
– When he fraternized with political adversaries of the ex-president.
– When he accepted the petition filed by the prosecutors, “corrected” it, which is unbefitting for a judge, who is supposed to be fair to both parties. The petition should have been returned to the Public Prosecution to be corrected, if it was inept.
– Throughout the hearings when he acted as a prosecutor, being hostile to the former president’s defense attorneys and asking questions unbefitting of the role of a judge in a lawsuit.
– When he denied several times to carry out further investigations and produce the evidence requested by the defense, always more in a hurry than interested in investigating the facts.
– For having “supporters” who call for the former president’s conviction.

The whole of society sees Moro as an accusing judge who persecutes Lula, including the magazines that are backing the judge, such as É and Veja. On the eve of the former president’s deposition, they did not portray Moro as a judge, but as a boxer or wrestler, an opponent of Lula’s wearing the colors of political party PSDB, a party opposing the former president. Moro is being urged – by his friends on the Antagonista site, by magazine Veja, by television network Rede Globo, by his supporters camped outside the Curitiba Federal Justice building – to convict Lula, even (see item 1) if no evidence is produced by the Public Prosecution.

Ex-presidente Lula em ato na Avenida Paulista