1 Introduction

The issue of corruption, which has always been present in Brazilian politics, has taken on a new centrality since Car Wash Operation (Lava Jato). But the operation didn't just shed light on that issue. It itself adopted shady methods to deal with the cases it was investigating. The most emblematic event occurred when Sérgio Moro, then the Lava Jato judge, made public the unauthorized interception of Lula and Dilma's phone calls. According to Judge Pizzolatti, of the Federal Regional Court, “the investigations and criminal proceedings of the so-called Operation Car Wash constitute unprecedented cases, bring unprecedented problems and demand unprecedented solutions”. Moro carried out an illegal act, but the illegality was cleared by his own peers on the basis of an unjustifiable exceptionality within legal parameters.

The intimate affairs between judge Sérgio Moro and federal prosecutor Deltan Dallagnol in the Car Wash Operation, among other almost normalized practices in the justice system, help raising a series of relevant questions to critically analyze the performance of judicial institutions in the struggle against large-scale corruption. The central issue that arises from this series of events is institutional corruption. Very little is said about such kind of corruption practiced within the public administration—and, more specifically, within the organs of the justice system. It existed before Lava Jato, for sure, but the operation exacerbated it.

We seek to discuss the concept of institutional corruption with a specific focus on the Judiciary and the Public Prosecution Service. We assume that the wide discretion of judges and prosecutors, and the lack of external accountability mechanisms and transparency about their actions and behavior, facilitate institutional corruption within the justice system. There are scarce institutional instruments for preventing or punishing them (Kerche et al., 2020).

In addition to the fact that the Brazilian judiciary has no external control, as Kerche et al. (2020) discuss, Lava Jato had become, during its heydays, the shield of the “magistocracy” (Mendes, 2023), protecting it from any attack on its illegal, immoral and corrupt acts. The National Council of Justice (CNJ), an internal control body, left the cases against Moro unresolved. This case is just one of the examples of what we will be dealing with in this epilogue.

To do this, we start from the concept of “judicial corruption” presented by Gloppen (2014), for whom it includes “all forms of inappropriate influence that may damage the impartiality of justice, and may involve any actor within the justice system, including lawyers and administrative support staff” (Gloppen, 2014, p.69).

This is our starting point, but not the end. The international theoretical debate on the subject, which is still not widely disseminated in Brazil, will be essential for our subsequent analysis of the types of judicial corruption seen in the country, especially in the case of Lava Jato. Based on this, we present a typology of judicial corruption we can detect in Brazil and certainly elsewhere. As we argue, there are two distinct types and variations within them: judicial corruption for institutional purposes and judicial corruption for individual purposes. We then take an exploratory look at the categories presented in the Lava Jato case. We conclude with some final considerations about the implications of judicial corruption for the quality of Brazilian democracy.

This epilogue attempts to cast some new light on an important research agenda that is both conceptual and empirical. It requires theoretical elaboration that informs the analysis of a number of practices that still lack the proper lenses to be institutionally, ethically and legally problematized.

2 Institutional Corruption and Judicial Corruption

Corruption can be defined as the inappropriate use of public resources for private gain (Rose-Ackerman & Palifka, 2016). This definition, however, looks at corruption as illegality. Another conception of corruption is one that goes beyond the idea of “corruption as illegality”, but understands it as “corruption as the breach of duty”, which includes improper use of authority, deviation from accepted or formal norms, lack of integrity in the conduct of public duties, including both intentional actions and inactions—when failing to do what should be done (Underkuffler, 2013, p.15).

But since theories that see “corruption as a breach of duty” disregard cases in which the established norm is unjust, and therefore breaking it may be the path found by the bureaucrat to achieve more justice, without the intention of misuse or personal gain, it has been criticized for not being able to capture the essence of the act of corruption. Thus, some theorists added to the debate the idea of “betrayal”, “abuse of power”, “exploitation” (Underkuffler, 2013, p.21).

These are important concepts for understanding some of the types of judicial corruption we are dealing with here, since many of the corrupt acts that take place in the judiciary are not just “breaches of duty”, but involve, in essence, an abuse of power.

Moving on in the discussion of corruption to the specific topic of “institutional corruption”, Thompson (2018) differentiates it from individual corruption (Rose-Ackerman & Palifka, 2016), as well as from the structural corruption seen in Latin American countries (Acemoglu & Robinson, 2010). The author questions why institutionalists look more closely at the issue of institutional corruption. According to him, firstly because understanding it can be a way of gaining a deeper understanding of the very institutions in which corruption takes place. Secondly, it reinforces the need to look at corruption beyond individual gain, also considering the issue of conflict of interest. Finally, from an institutionalist conception of corruption, it is possible to better understand corruption that is not individual, which is generally more difficult to capture. According to the author,

“Because it is so closely connected to the legitimate procedures and practices of the institution, its agents often are not seen, and do not see themselves, as participating in corruption at all.” (Thompson, 2018, p.3).

This is the inquiry we intend to develop here, looking at institutional corruption within the judiciary, generally not treated as “corruption”. We are not going to look at the “varieties of institutional corruption” listed by Thompson (2018), but discuss judicial corruption from a deductive analysis of reality, returning later to the theoretical debate (on another occasion).

For the purposes of the debate here, it is worth pointing out that, like Corcioli Filho (2013), we do not take the term “corruption” in its strict criminal sense, but as an unrepublican practice, undue because it corrupts the democratic principles of zeal for public affairs. In the author’s words,

“(...) if the term corruption is taken not in a way strictly linked to the respective criminal types, but rather in the sense of something distorted from its announced attributes (republican) and objectives (democratic), perhaps it is not a mistake, or at least an exaggeration, to observe aspects of corruption in the bowels of a Judiciary that is still very much tied to the owners of power. It is in this sense, then, that it seems pertinent to speak of the corruption of the Judiciary.” (Corcioli Filho, 2013, p. 434).

In this context, analyzing the case of the judiciary, we can say that judicial corruption goes beyond the payment of bribes to judges, which would be the private appropriation of public resources—although this is the case we first imagine when we talk about corruption within the justice system.

As Siri Gloppen contended, such corruption does not only include “all forms of inappropriate influence that may damage the impartiality of justice”, like even petty corruption, such as bribery, it actually hinders access to justice, since for the poorest the amounts can be prohibitive, incorporating a class bias into the justice system (Gloppen, 2014). Judicial corruption generates damage that goes beyond unequal access to justice.

Another form of judicial corruption is political influence. This can involve illegal aspects (bribes, blackmail, threats), but it can also occur through the influence of other powers over the judiciary, for example through the appointment of judges to specific positions, the definition of criteria for career promotion or the regulation of financial gains, including salaries and benefits (Gloppen, 2014, p. 71).

Finally, Gloppen points out at a kind of influence that does not come from politics, but from the internal hierarchical structure of the judiciary:

Such influence may be the result of direct pressure from superiors; more subtle incentives based on judges’ anticipation that a ‘wrong’ decision in an important case could have career consequences; or selective allocation or cases to judges who are likely to rule in a particular manner. Besides, internal procedures can be misused to limit individual judges’ ability to voice criticism, for example by refusing dissenting judgments. (Gloppen, 2014, p. 72).

Analyzing the causes of judicial corruption, Li (2015) states that a number of institutional factors are used to explain judicial corruption in China:

“the most frequently mentioned factors are insufficient salaries for judges (Zou 2000; Li 2002), insufficient funding for courts (He 2009), insufficient legal training of judges (Zou 2000), local protectionism (Zou 2000), and lack of judicial independence (Zou 2000; Li 2002; Henderson 2007) and accountability (Gong 2004)” (Li, 2015, p. 849).

Regarding the “low salaries”, the author states that this does not seem to be a plausible explanation for the case he analyzed (from Wuhan province), given that these are officials at the top of the judicial hierarchy, who receive high salaries and privileges that are not available to most other bureaucrats. The same can be said of Brazilian magistrates, although we do not intend to discuss here what explains judicial corruption.

Judicial corruption is therefore seen as the result of a set of factors, both internal (institutional and cultural) and external (social and political).

A series of measures can be taken to combat, prevent or punish institutional corruption in justice system bodies. Some measures can be taken to reduce political influence on justice system actors. We will not discuss these measures here, and some studies have already explored this topic (e.g. Gloppen, 2014). Nor do we adopt an anthropological perspective to understand corruption, as in Ferreyra (2017). We are not interested in understanding the cultural dimensions of this phenomenon. On the other hand, like Ferreyra (2017, p.143), we understand it as a social process, not an isolated or infrequent event. It is a process that is deeply present in the Brazilian judiciary and with serious consequences for the performance of justice, especially in relation to the issue of impartiality, according to the definition used explicitly here.

What is important to us, in this initial approach to the subject, is to make it clear that Lava Jato not only sought to combat political and corporate corruption, but also made judicial corruption explicit, a subject that is little discussed in Brazil.

3 Judicial Corruption in the Brazilian Justice System

‘if most people who take bribes go to hell, I think that no judges will be let in heaven’.

The phrase above, uttered by an actor in the Indonesian justice system (Butt & Lindsey, 2010, p. 190), exposes the type of corruption most commonly known within the justice system: the payment of bribes to judges to serve the interests of litigants. However, this is not the only or main form of institutional corruption in the judiciary, as mentioned above.

Based on the concept of institutional corruption, we can differentiate between certain types of corruption that occur not only in the judiciary, but in the justice system as a whole. This is based on an analysis of the unrepublican practices found in the Brazilian judiciary, here called “judicial corruption”—in its non-criminal sense. The types of judicial corruption can be grouped into two broad categories: judicial corruption for institutional purposes and judicial corruption for individual purposes. What drives the actors in the justice system is the institutionalization of corporate gains, in the first case, or personal gains, in the second. Both manifest themselves in different ways, referred to here as specific subtypes of judicial corruption.

It is important to clarify that the ideal-types presented are an analytical construction based on a deductive logic—from the observation of factual reality, we highlight elements that are considered central in the cases analyzed, creating the typology presented. This is an analytical tool to guide us through the complex reality of judicial corruption. Although, like the Weberian ideal types, reality is more complex than the typology is capable of expressing, these are useful categories to classify and capture specificities.

The table below classifies these ideal types of judicial corruption, as well as their specific subtypes (Table 1).

Table 1 Types and subtypes of judicial corruption—reflections from the Brazilian case
Full size table

4 Judicial Corruption and the Car Wash Operation

As we contended, the types of judicial corruption listed above help us to understand several of the practices verified in Lava Jato. Based on an exploratory analysis of some exemplary cases, we demonstrated how Lava Jato not only incurred in several cases that, in our categorization, are considered as judicial corruption, but also made these practices explicit within the Brazilian Judiciary and Public Prosecutor’s Office.

In particular, Lava Jato used various practices that can be taken as, according to our denomination, judicial corruption for individual ends. Let’s take a look at each of them.

Firstly, the promiscuous activity. The Sérgio Bermudes law firm defended Eike Batista, a target of Lava Jato. Gilmar Mendes’ wife works for this firm, which is why the justice would be prevented from judging cases related to it. Even so, Justice Gilmar Mendes granted a writ of habeas corpus to the businessman, who did not consider himself prevented from judging the case. According to the judge, there was no impediment in the Brazilian Code of Criminal Procedure because there was no direct relationship between Bermudes’ office and the habeas corpus, which was in the criminal sphere (and not commercial and labor, which are handled by the office) and presented by another law firm. Article 144 of the New Code of Civil Procedure states in its item VIII: “In which a client of the law firm of his or her spouse, partner or relative, appears as a party, even if sponsored by a lawyer from another firm”.

The then Attorney General of the Republic (PGR), Rodrigo Janot, asked the Federal Supreme Tribunal (STF) to consider the justice recused. This was the PGR’s first request for the impeachment of a STF justice. The request was judged by justice Carmém Lúcia, who decided to deny Janot’s requests, arguing that “sufficient documents to analyze the case had already been attached to the file, demonstrating that it was unnecessary to take the steps requested”. Gilmar Mendes’ counsel argued that when the justice denied habeas corpus in another case involving the same businessman (HC 141.478), there was no question about his actions in the case. However, this does not make his actions in both cases legally adequate.

What’s more, in the case of the justice’s promiscuous actions, it’s worth noting how close he is to lawyer Sérgio Bermudes. In an article in Piauí magazine in September 2010, the lawyer told the reporter: “Gilmar and I are brothers, we talk twice a day”.Footnote 1 In addition, Gilmar and his wife had already used the lawyer’s apartment in NY and Rio de Janeiro. Asked if there was no conflict of interest in this relationship, Justice Gilmar Mendes replied: “not at all”. He also said that Sergio Bermudes does not act in criminal cases, as is the case with Eike Batista, and therefore there would be no impediment. However, the lawyer defends the businessman in several other cases.

The second type of judicial corruption for individual purposes is instrumentalizing one‘s position for business matters. Prosecutor Deltan Dallagnol, the coordinator of Operation Car Wash, began to focus on the business world, giving dozens of lectures and earning at least R$580,000 (US$2000) as of 2017, according to conversations obtained by The Intercept Brasil (Vaza Jato). The prosecutor suffered a disciplinary complaint at the Public Prosecutor’s Office and defended himself by claiming that he sent most of his earnings to charities. However, the prosecutor refused to disclose the list of companies and organizations that paid for his lectures, as well as the amounts received for each one. The sum of all the lectures given by the prosecutor since 2016 exceeds R$1 million.

According to the prosecutor’s Telegram messages, leaked by The Intercept Brasil, Dallagnol outlined a business plan to profit from Lava Jato’s fame, which included opening a company in his wife’s name. He claimed that the lectures could be classified as a teaching activity, which is allowed by law, as well as having the purpose of fighting corruption, with the funds going to philanthropy. However, as of 2017, these funds were no longer earmarked for philanthropy. As the prosecutor himself argues in his defense,

“In 2017, after deducting the amount of 10% for personal expenses and taxes, the values of the lectures on corruption and ethics at major events are being allocated, to date, to a fund that will be used, in due course, for expenses or costs arising from the work of public servants in anti-corruption operations, such as Operation Car Wash, to fund initiatives against corruption and impunity, or even for initiatives aimed at promoting citizenship and ethics in general.”Footnote 2

In August 2019, the National Public Prosecution Council (CNMP) internal affairs department opened a new investigation into irregularities in one of the lectures given by the prosecutor to a group of bankers during the 2018 election campaign. At the time, eight complaints had already been opened to investigate misconduct by Dallagnol.Footnote 3 By December 2019, there were already 23 complaints against the prosecutor at the CNMP,Footnote 4 6 of which were closed on the last day before the 2019 judicial recess.

One of the cases concerns the issue of political action, the third subtype of judicial corruption for individual ends. Prosecutor Deltan Dallagnol took a stand, in a series of posts on his Twitter account, against the election of Renan Calheiros to the presidency of the Senate. Among other things, the prosecutor wrote that “we will hardly see an anti-corruption reform approved”.Footnote 5 The prosecutor also asked his followers to campaign for an open vote, in an attempt to force senators not to vote for Renan Calheiros. In the end, after a closed session, the senator lost out to Davi Alcolumbre (DEM-AP). Senator Renan Calheiros then filed a request for a PAD (Disciplinary Administrative Proceeding) with the CNMP against the prosecutor, claiming that he was engaged in acts of a party political nature, which is forbidden to members of the Public Prosecutor’s Office.

Another explicit case of political action is that of former judge Sérgio Moro, who gained widespread public visibility in the Lava Jato case, which allowed him to be appointed to Jair Bolsonaro’s Ministry of Justice. Although he entered and left the government claiming to be a technician and not a politician, the fact is that his actions during Lava Jato made his politicalparty preferences clear. The evidence presented by Fabiana Rodrigues in her master’s thesis (2022) and in her chapter at this collected volume confirm that official justifications shroud personal interests and advantages of the main protagonists of the Lato Jato Operation. The multivariate analysis made by Da Ros, Fontoura, Simoni Junior and Taylor in their chapter “Moro’s Opinions: a Quantitative Analysis of Sentencing in Operation Car Wash” also show the severity with which political defendants were treated in that court.

Finally, another example of political activity comes from another member of Lava Jato, federal judge Marcelo Bretas. He took part in two public events in Rio de Janeiro in February 2020, alongside President Jair Bolsonaro and other Bolsonarist politicians.Footnote 6 Not only did Bretas take part in the event, he received the president at Santos Dumond airport and drove to the event (the inauguration of an access road to the Rio-Niterói bridge) in an official presidential car. Considering the ban on political party activities imposed by the Brazilian constitution on members of the judiciary (art. 95), the OAB asked the CNJ, the organ designated to control the judiciary, to investigate Bretas’ behavior. However, as Kerche et al. (2020) have shown, the CNJ rarely punishes its magistrates and clearly does not serve as an instrument for controlling members of the institution.

The issue of political expression by judges, also prohibited by the statutory regulation, was the subject of a CNJ rule in 2019, which recommends that judges avoid “expressing opinions or sharing information that could harm society’s concept of the independence, impartiality, integrity and suitability of the magistrate or that could affect public confidence in the Judiciary”. The measure aims to discipline the use of social media by members of the Judiciary, in view of the various cases in which judges publicly express themselves on party political issues, based on the argument that social media are for personal use, and not as public servants of the Judiciary.

The last subtype of judicial corruption for individual ends is acting in public debate. Gilmar Mendes’ anti-Worker’s Party crusade is an example of this. In 2015, the Worker’s Party (PT) published a booklet denouncing the justice’s anti-Party stance, in which the justice acts with “maneuvers and statements incompatible with the impartiality and modesty required of a judge”.Footnote 7 In response, Gilmar Mendes stated that he would continue to act in the same way.

In 2016, the justice even called for the political party to be dismissed on the grounds that it had been financed with illicit funds. This certainly doesn’t justify the annulment of a party, but it does make public the justice’s view of the party and therefore makes him impartial in judging cases related to it, as happened in Lava Jato. As Guilherme Boulos, a left-wing congressman (PSOL) recalled in an article published in Folha de São Paulo on August 11, 2016, the Lava Jato allegations did not only affect the PT, but also indicated illicit funds for José Serra’s presidential campaign (with the Brazilian Social Democracy Party, PSDB) in 2010, delivered to Michel Temer (president from 2016–2018, with the Party of the Brazilian Democratic Movement, PMDB). However, Gilmar Mendes did not file a request for the impeachment of the PSDB or PMDB parties. This stance demonstrates not only how taking part in the public debate makes the judge impartial for present and future cases, but also how, by publicly expressing his party-political preferences, he becomes equally impartial.

In all the cases presented, judicial corruption for individual purposes is seen by its practitioners as part of their judicial performance, which is institutionally legal. According to Thompson’s statement mentioned earlier, “because it is related to legitimate procedures and institutional practices, agents are not seen, and do not see themselves, as participating in acts of corruption” (Thompson, 2018, p.3). There is always a justification related to acceptable institutional procedures for their actions, hence the difficulty of punishment, despite the visible breach of republican principles of zeal for public affairs. In these cases, they have individual ends since they originate from personal interests, not institutional or corporate ones, as in judicial corruption with institutional ends. These are acts of judicial corruption practiced in the name of preserving personal friendships, for individual political gain or self-enrichment.

The fact is that Lava Jato made them explicit because, unlike the ordinary actions of judges and prosecutors, the operation gained unparalleled public visibility, putting all its actors at the center of public attention. If, on the one hand, it gave notoriety to the judicial actors, who gained individually from it, on the other hand it put them in a delicate situation, exposing their unrepublican actions, excessively focused on individual interests and gains.

5 Conclusions

The expansion of the concept of corruption, so as to make it capable of capturing non-criminal activities that deeply harm institutional integrity and capacity, is an urgent analytical demand of the anti-corruption enterprise, as both an intelectual and political project that must be pursued by democratic polities. As we demonstrated through a rich collection of anecdotal examples of Brazilian judicial practice, there are several ways of perverting an institutional function by instrumentalizing the office for non-republican ends. This can be for petty individual purpose, but also for non-republican corporatist purpose.

This book is product of a valuable effort of describing, explaining and criticizing organizational crime and anti-corruption operations in Brazil. The protagonism of the justice system, which embarked on a messianic posturing, also needs to be sided by a level of attentive scepticism. Because such anti-corruption endeavor might ironically become deeply corrupted in itself. And, as such, it must become visible.

This is obviously important for refining the analytical parameters to gauge the quality of democracy, to imagine democratic innovation and reform, and to improve the tools of comparative politics.