Part 9
The top Car Wash prosecutor
leaked sensitive information to a Brazilian reporter with motives that could
jeopardize the task force’s convictions.
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BRAZIL’S CHIEF PROSECUTOR overseeing
its sweeping anti-corruption probe, Deltan Dallagnol, lied to the public when
he vehemently denied in a 2017 interview
with BBC Brasil that his prosecutorial task force leaked secret
information about investigations to achieve its ends.
In fact, in the months
preceding his false claim, Dallagnol was a participant in secret chats
exclusively obtained by The Intercept, in which prosecutors plotted to leak
information to the media with the goal of manipulating suspects by making them
believe that their indictment was imminent even when it was not, in order to
intimidate them into signing confessions that implicated other targets of
the investigation.
Critics of the so-called Car
Wash investigation — which imprisoned dozens of Brazilian elites including,
most significantly, the center-left ex-President Luiz Inácio Lula da Silva when
he was leading
all polls to win the 2018 presidential election (ultimately won by
Jair Bolsonaro after Lula was barred) — long suspected that the
prosecutorial team was responsible for numerous media reports that revealed
sensitive details about suspects targeted by the investigations.
Dallagnol and his team always
publicly, even angrily, denied this. Yet the Secret Brazil
Archive obtained by The Intercept, which we began
reporting on June 9, contains numerous instances of the prosecutorial team
planting exactly the sorts of leaks they repeatedly denied involvement
in — often with motives that rendered the outcome legally
questionably, if not outright illegal.
One illustrative example came
relatively early in the investigation. On June 21, 2015, in a Telegram group
for task force members, the Car Wash prosecutor Orlando Martello Júnior
asked one of his colleagues, Carlos Fernando dos Santos Lima: “what is the
strategy for revealing the next steps in the cases of Electrobras, etc.?”
Santos Lima replied that while he did not know what specifically his colleague
was referring to, “my leaks are always designed to cause them to think
that investigations are inevitable and thus incentivize them to collaborate.”
According to Brazilian law of
criminal prosecutions (which provides rules governing confessions as part
of plea bargains), a plea bargain can be accepted only if it has been
offered “voluntarily.” But the prosecutor admitted to his colleagues that he
used media leaks to forge an intimidating environment and, with that, could
obtain confessions through manipulative means. These actions are squarely
at odds with what are required to be the voluntary nature of confessions and
plea bargains.
June 21, 2015 – Chat
Group: FT MPF Curitiba 2
Orlando Martello –
09:03:04 – CF(leaks) what is the strategy for revealing the next steps of
Electrobras, etc?
Carlos Fernando dos Santos
Lima – 09:10:08 –http://m.politica.estadao.com.br/noticias/geral,na-mira-do-chefe-,1710379
Santos Lima – 09:12:21 – I
don’t know what you’re talking about, but my leaks are always designed to cause
them to think that investigations are inevitable and thus incentive them to
collaborate.
Santos Lima – 09:15:37 – I
read the news of Flores on the other list. It’s just reheated news.
Santos Lima – 09:18:16 – Incidentally,
Moro told me that he will have to use this week’s Avancini term on Angra
Martello – 09:25:33 – CFleaks,
we don’t know want to do BA on Angra e Eletrobrás? Why alert them to this fact
in the press conference?
Martello – 09:26:00 – In
order not to lose our habit?
The prosecutors were debating strategies to reach a plea bargain agreement with Bernardo Freiburghaus, whom they believed had served as one of the engineers of the bribery scheme used by the construction giant Odebrecht. Freiburghaus had escaped a police operation to arrest him because he had relocated to Switzerland in 2014 and was being pursued with an Interpol alert.
In the chat, Santos
Lima boasted, without any embarrassment, that he “leaked” information
to the press. In addition, his comment implied that this was a customary
practice, since it referred to the plural: “my leaks.” And the prosecutor
stated with apparent pride that he did so with well-defined objectives: to use
fear of indictments in order to induce suspects to act in the prosecutors’ own
interests by “collaborating.”
Notably, the
prosecutor’s boast of these types of leaks did not elicit
any objections from the other Car Wash prosecutors. Throughout the
conversations, the rest of the group remained silent, suggesting that leaks of
this type were far from unusual.
On the same day, the task
force’s chief prosecutor, Dallagnol, along with Martello, announced in the chat
that — in order to pressure the suspect — they had leaked information to a
reporter with the right-wing newspaper Estadão that the U.S. government would
help investigate Freiburghaus. They were expecting that this media leak would
advance their investigation by pressuring Freiburghaus. It was Dallagnol
who was personally responsible for the leak, as shown in his secret
conversation with the newspaper reporter (The Intercept has translated the
Portuguese conversations into English).
June 21, 2015 – Private chat
Deltan Dallagnol –
11:43:49 – The operator of Odebrecht was Bernardo, who is in Switzerland.
The U.S. will act on our request, because the transactions passed through the
U.S. We have already made a request for US cooperation regarding deposits
received by PRC. This is something new. Are you interested in publishing this
today or tomorrow, REDACTED, keeping my name off? You can
say “source in the MPF.” At the press conference, Igor said there is a red
notice to arrest him, and there is. He can be arrested anywhere in the
world. Now with the US in action, which is new, let’s see if we can do what was
done in the FIFA case to Bernardo, which is what inspired us.
REDACTED – 11:45:44
– Whoa awesome! !!!! I will publish today!!!!!!!
As the conversation
progressed, the reporter advised that the story about U.S. aid in the Odebrecht
case (which was not formalized at the time) would be the Estadão headline
the next day.
Back in the prosecutor’s
Telegram chat group, a conversation between June 21 and 22 detailed the task
force’s intentions toward Freiburghaus:
June 21, 2015 – Chat Group: FT
MPF Curitiba 2
Deltan Dallagnol – 20:33:52 – Tomorrow
the cooperation with the US regarding Bernando is the headline in Estadão.
Dallagnol – 20:34:00 – Confirmed
Carlos Fernando dos Santos
Lima – 20:55:16 – I tried to read, but I couldn’t. Tomorrow I’ll look.
Let’s closely control the media. I have space at FSP [Folha], who knows how we
can use them if we need.
The information leaked by the
Car Wash prosecutorial task force was indeed the newspaper headline, and
the methods of pressure imposed on the investigative source were resumed
shortly thereafter in the same chat:
June 22, 2015 – Chat Group: FT
MPF Curitiba 2
Deltan Dallagnol – 01:56:40 – I
think we need to request a freeze of his assets in Switzerland
Dallagnol – 01:56:48 – Bank
account, real estate and others
Dallagnol – 01:57:00 – Go
and tell him he’ll lose everything
Dallagnol – 01:57:20 – Have
him on his knees and then offer redemption. There’s no way he won’t take it
At the end of the day, the
strategy failed, as Freiburghaus never provided any plea bargain or
cooperation.
Beyond the use of media leaks
to intimidate and manipulate confessions, what makes all of this particularly
incriminating is that Dallagnol has publicly, and vehemently, denied that Car
Wash prosecutors have ever used any leaks, claiming that all the leaks about
Car Wash came instead from defense attorneys and their clients.
In the interview
with BBC Brasil following a speech he gave at Harvard Law School in April
2017, Dallagnol said that “public officials do not leak information — the
loophole is inevitable access to secret data by defendants and their clients.”
When asked directly if the task force had leaked, the chief prosecutor replied,
“In cases where only public officials had access to the data, the information
did not leak.”
Responding to inquiries from
The Intercept about this story, the press spokesperson for the Car Wash task
force denied that the prosecutors had ever leaked information to Estadão, insisting
that it “never leaked sensitive information to the press, contrary to what the
questioning suggests.” To justify this denial, the task force argues that
information passed to the press must violate the law or a court order to be
characterized as a “leak.” Using this newly created definition of “leak,” the
task force argues that the material sent by Dallagnol to Estadão did not, in
its view, violate either the law or any court order and therefore, cannot be
accurately described as a “leak.”
“Is there any chance to
release the news to GOL?”
But The Intercept’s reporting
here does not claim or suggest that Dallagnol or Santos Lima committed a crime
or violated court orders by leaking information that was not known to the public.
The point of the reporting is that the prosecutors did exactly what Dallagnol
told the BBC they never did: namely, leaked inside information about
investigations of which the public and the media were unaware in order to
advance their investigative goals.
To defend Dallagnol from this
clear evidence that he lied, the task force is trying to invent a new
definition of “leak,” a meaning that only considers an act to be a “leak”
if it entails a violation of the law or a court order. But that, to put it
generously, is not a commonly recognized understanding of what leaking
means. Indeed, in his interview with the BBC, Dallagnol did not deny that the
task force illegally leaked. He denied that the task force used leaks
of any kind — “public officials do not leak information,” he said, adding: “In
cases where only public agents had access to the data, the information did not
leak.”
The task force’s insistence
that it never used leaks is especially bizarre given that Santos Lima himself
boasted that he did just that, using the word “leak” to describe his own
actions: “my leaks are always designed to cause them to think that
investigations are inevitable and thus incentive them to collaborate,” he
wrote, demonstrating that even the prosecutors themselves do not understand leaks
to have the definition they are now trying to impose on it. Moreover, in his
conversation with the Estadão reporter, Dallagnol himself described the
information he was sending about the proposed collaboration with the U.S. as
“new” and for this reason, insisted that the information he sent could only be
published if they keep “my name off” the record.” If the
information published was already public, as the Car Wash task
force is now claiming through its spokesperson, why would Dallagnol insist
on anonymity?
Thus, the task force’s denial
that prosecutors did exactly what Dallagnol falsely insisted they never did —
leaking information that was not known to the public — is contradicted by the
prosecutors’ own words, as posted in the chat above, in which they themselves describe
their actions as “leaks.” It is also negated by Dallagnol’s insistence to the
Estadão reporter that information passed to the paper should not be
attributed to him. It is further refuted by other repeated episodes in which
prosecutors admit to leaking information about investigations to the media,
often using specifically the word “leaks” that they now seek to redefine.
Selective Leak
These leaks were not isolated
cases. In 2016, Car Wash prosecutors spoke explicitly about their use
of “selective leaking” to the media intended to influence and manipulate a
rumored petition for habeas corpus from former Speaker of the House Eduardo
Cunha, to be filed in the Supreme Court:
December 12, 2016 – Chat
Group: Filhos do Januario 1
Carlos Fernando dos Santos
Lima – 18:45:31 – I received from the Russian: off the record I
received news, I don’t know if it’s true, that there would be an order from the
Supreme Court that would release Cunha tomorrow
Roberson Pozzobon –
18:51:49 – This info is circulating here at the federal prosecutor’s
office also
Paulo Roberto Galvão –
18:57:24 – The Supreme Court would be drained. I don’t believe it.
Athayde Ribeiro Costa –
18:57:40 –toffi, lewa and gm. I don’t doubt it.
Santos Lima – 18:58:37 – It’s
necessary to see who goes to the hearing.
Jerusa Viecili – 18:58:39
– Pqp
Santos Lima –19:00:58 – Is
there any chance to release the news to GOL?
Costa – 19:01:35 – selective
leak …
These dialogues prove that
Dallagnol lied to the BBC when he denied the use of leaks. That denial came
after Dallagnol participated in several conversations in which his task force
colleagues explicitly discussed doing what he publicly denied: namely,
promoting leaks and using the media for their own interests. Ironically,
Dallagnol himself pointed out to the BBC how complex the task of proving leaks
was because, according to him, those involved always deny it.
“It is very difficult to
identify the point (source of the leak), because if you listen to these people,
they will deny it,” he said. Indeed they do. That’s precisely what Dallagnol
and his colleagues spent years doing falsely — until the truth was finally
revealed through the publication of their own words.
João
Felipe Linhares has contributed research to this article.
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