Lula’s lawyers explain why the conviction of the ex-President should be annulled

Zanin and Lula

Lawyer Cristiano Zanin Martins with ex-President Lula

The lawyers Cristiano Zanin Martins and Valeska Teixeira Martins wrote an article published this Monday by the newspaper Folha de S. Paulo:

Brazil’s Supreme Federal Court (STF) will be evaluating the habeas corpus petition we filed on behalf of ex-President Luiz Inácio Lula da Silva (PT) on the 5th of November 2018 this Tuesday (June 25). If the rule of law is to prevail, Lula will have his liberty restored to him and the proceedings must go back to the beginning, presided over by a natural, independent and impartial judge, which for the ex-President has never been the case up until now.

The Federal Constitution and the legislation do not allow the conducting of proceedings and their conclusion by a judge who has, or apparently has an interest in the outcome.

Any mere doubt over the impartiality of the exemption of the judge is sufficient grounds for their recusal. Besides seeking to protect the fundamental rights of citizens, this aims to protect he image and reliability of the Justice system itself that is an essential element to democracy.

There is no argument as to the fact that in 2016, Judge Moro illegally authorized the intercepting of the main telephone line to our offices for 23 days, and together with prosecutors and police, monitored the conversations we had about the legal strategy for the defence of ex-President Lula. At that time, we discussed a Supreme Court appeal (Originary Civil Action 2.833) that the Federal Prosecutor for Paraná had no legal attribution to take any initiative in the so-called “triplex case”. It should be highlighted that our work was scandalously monitored when Judge Moro and the prosecutors were disputing the Lula case with other jurisdictions.

The most senior Supreme Court Justice, Celso de Mello, recognized the suspected partiality of Moro in 2013 in judging an appeal involving the monitoring of other lawyers authorized by the ex-judge, noting at the time in a losing vote that this fault must be recognized “in anomalous situations where the judge takes on the role of the real investigator” (habeas corpus 95.518).

This is  exactly what has been verified in the proceedings that resulted in the conviction of ex-President Lula, because besides the monitoring of the defence team, there were numerous other similarly uncontested deeds that show judge Moro not to be impartial.

In this vein we can cite: (a) the rulings made even before the criminal indictment (such as the forced deposition with no legal base), which clearly showed the predisposition of the current Minister of Justice to convict Lula; (b) the task force led by Judge Moro to impede fulfilment of the release order issued by a federal appeal judge of the TRF-4 4th Federal Regional Court in July 2018; (c) the official lifting of judicial secrecy of material on the eve last Presidential elections and also (d) the move of judge Moro to the post of Minister of Justice in a government where the impediment of the Lula candidacy in the election was decisive, on the basis of the conviction passed down by the ex-judge – even going against the UN rulings.

Judge Moro argues endlessly that his sentencing has been reviewed by other judges. But besides the fault of partiality contaminating the proceedings, regardless of the evidence of such prejudice, given the gravity in this case, the damage is obvious. In the crusade against Lula, his defence was treated as a mere formality; relevant evidence was excluded and the deeds of the judge in the case created the expectation of conviction in the public mind that was hard to overturn even with the proof of innocence we presented.

The recent reports by the site “The Intercept” have revealed new and shocking elements that prove the history of judicial persecution against Lula (“lawfare”) and will be very important in the future analysis of the process of erosion of democracy in the country.

Regardless of this episode, the facts for grounds of the habeas corpus petition are more than sufficient to nullify the proceedings against Lula and for his immediate release.

Leak shows Car Wash operation ‘Depends on the Americans’

Dallagnol messages

Car Wash Prosecutor Dallagnol and the message to Judge Moro revealing link to the US

247 12 June 2019

Car Wash prosecutor Deltan Dallagnol told Judge Moro that certain details of the operation would “depend on the articulation with the Americans”, in a further set of messages published this Wednesday (June 12) by the site The Intercept.

In the message published by the The Intercept Brasil, Moro complained that the operation could not be “stopped” too long”, to which Dallagnol responded – in a scandalous promiscuos and partisan relationship between the judge and the Prosecutor – saying they had to await the articulation with the Americans.

Read the excerpt of the messages published:

“Moro – 18:44:08 – Is it not too long without an operation?
Deltan – 20:05:32 – Yes, it is. The problem is that the operations are with the same people who are working on the charge against Lula. We decided to postpone everything until that charge is brought, except for the taccla  op because of the risk of leaking, but it depends on the articulation with the Americans
Deltan – 20:05:45 – (What is being done)
Deltan – 20:05:59 – We are scheduled to charge on the 14th
Moro – 20:53:39 – OK”

Another Whistleblower Bites the Dust as The Intercept Adds a Third Notch to Its Burn Belt

Scahll-Hale

A screenshot from a video of an appearance by Jeremy Scahill, left, and Daniel Hale, right for Scahill’s book, Dirty Wars, at Busboys & Poets at 5th St and K St in Washington, DC, June 8, 2013. Rhett Rebold | Vimeo

The Intercept, which has long been associated with the documents shared by whistleblower Edward Snowden, has yet to fire any of the reporters responsible for these breaches that have seen two whistleblowers already imprisoned and third, Daniel Hale, likely to be imprisoned.

by Whitney Webb

May 10th, 2019

Early Thursday morning of May 9th, the Department of Justice unsealed an indictment against Daniel Everette Hale — a former intelligence analyst for the U.S. Air Force and National Security Agency (NSA) and later a defense contractor working for the National Geospatial-Intelligence Agency (NGA) — for providing a reporter with classified government information. The reporter in question, although unnamed in the indictment, is Jeremy Scahill, co-founder of and journalist for the online publication The Intercept.

The indictment against Hale makes him the third Intercept source to be charged with leaking classified information to the outlet in less than two years. Notably, both of the government whistleblowers that have already been prosecuted and convicted by the Trump administration – Reality Winner and Terry Albury – were Intercept sources who were outed as whistleblowers by reporters working for the online publication.

The publication, which has long been associated with the documents shared by whistleblower Edward Snowden, has yet to fire any of the reporters responsible for these breaches that have seen two whistleblowers already imprisoned and third, Daniel Hale, likely to be imprisoned.

Despite its increasingly dismal track record, the publication – largely funded by government-linked tech billionaire Pierre Omidyar – continues to invite and “welcome” whistleblowers from the public and private sector and implores them to “consider sharing your information securely with us.”

“An utter failure of source protection. Again”

According to the Department of Justice website and the official indictment, Hale has been charged with obtaining national defense information, retention and transmission of national defense information, causing the communication of national defense information, disclosure of classified communications intelligence information, and theft of government property. Each charge carries a maximum sentence of 10 years in prison, meaning that Hale faces 50 years behind bars.

The indictment, which can be read in full here, details that Hale and “the reporter” (Scahill) communicated rather insecurely on several occasions, appearing at public events together, talking by phone and sending unencrypted text messages by phone.

Other information in the indictment shows that Scahill is clearly “the reporter” in question, given that “the reporter” in the indictment attended the Oscars in 2014 and held book events at the Washington, D.C. venue Busboys and Poets on April 29, 2013 and on June 8, 2013. During the June 8 book event, the indictment states that Hale was seated next to “the reporter” at an event where said reporter was promoting his book. A video taken at an event at Busboys and Poets held on June 8, 2013 shows Hale seated next to Scahill.

The indictment does not specify what led federal investigators to Hale several years after the events in question took place. Indeed, the indictment deals exclusively with events that took place between 2013 and 2015, and Hale’s house had been raided in August 2014, from which some of the evidence cited in the indictment was likely acquired. However, the Obama administration never pressed charges and it is unclear why the Trump administration has waited until now to do so, or if investigators acquired new information on Hale’s whistleblowing activities relatively recently. Hale, who appeared in the 2016 documentary National Bird about drone whistleblowers, had stated in that film that he anticipated being indicted at some point in time.

While the indictment suggests that the lack of secure communication with Scahill was a likely factor, there are other possibilities, such as the “friend” of Hale, noted in the indictment, with whom he discussed his relationship with Scahill.

Another possibility is that someone else at the Intercept other than Scahill was made aware of Hale’s identity, a point raised years ago by CIA whistleblower John Kiriakou and recently pointed out by independent journalist Caitlin Johnstone. After it was revealed that the Intercept  had obtained information from a whistleblower on drone warfare, which turned out to be Daniel Hale, in 2015, Kiriakou tweeted: “New drone whistleblower at The Intercept. For God’s sake don’t let Matthew Cole learn his identity.”

Cole, as will be noted later on in this report, has been accused by Kiriakou for outing him as a journalistic source to the federal government and, two years after Kiriakou’s tweet, was believed to have helped lead federal investigators to Intercept source Reality Winner in 2017. Thus, it is possible that Cole or another employee of the online publication had learned of Hale’s identity from Scahill and then passed it along, either intentionally or inadvertently, to the government.

Betsy Reed, editor-in-chief of the Intercept, said in a brief statement that the publication “does not comment on matters relating to the identity of anonymous sources.”

Jesselyn Radack — Hale’s lawyer, who has represented several past whistleblowers, such as Thomas Drake and Kiriakou — stated on Twitter that “unsophisticated whistleblowers” like Hale, now 31 years old but who was only 23 when he met Scahill, should not have borne the burden of keeping his identity safe. Rather, Radack wrote, such a burden fell to the journalist – particularly those working at an outlet like the Intercept that promotes its source protection capabilities (now very much in doubt).

In a separate tweet to journalist Tim Shorrock, Radack called Hale’s case “an utter failure of source protection. Again.” In other words, Hale’s lawyer – who is privy to information not contained in the publicly available indictment – asserts that a large part of the blame for Hale’s arrest was attributable to the Intercept’s, and presumably Scahill’s, behavior and failure to protect their source. The other guilty party, of course, is the Trump administration’s continuation — if not intensification — of the Obama-era crackdown on whistleblowers and journalistic sources.

The Intercept’s three-of-a-kind

For readers who may be puzzled by Radack’s use of “again” in her tweet to Shorrock, it is worth revisiting the case of the two currently imprisoned Intercept sources – Reality Winner and Terry Albury – both of whose whistleblowing activities were made known to the government as a result of poor decisions by Intercept staff.

MintPress reported on the acts by the online publication and noted that the Intercept made two Freedom of Information Act (FOIA) requests in March 2016 for documents that the publication had already received from Albury — so the requests were an effort to “launder” or obfuscate the fact that the classified documents had been obtained from a whistleblower. Yet, both FOIA requests contained specific information identifying the names of the documents that were not publicly available, an error that led the FBI to link references contained in the requests to Albury’s activity on FBI information systems. The FBI subsequently found that documents that Albury had accessed had been later published by the Intercept.

Albury, a father of two young children, is currently serving a four-year sentence for bringing important information about the FBI’s abuse of power in relation to its counter-terrorism activities and surveillance of journalists to the public. To date, no one at the Intercept was fired in connection with Albury’s prosecution, despite the role of the FOIA requests made by the Intercept in his arrest.

Nine months prior to Albury’s arrest, Reality Winner, a federal contractor, had been arrested for giving a classified document to the Intercept. While the Intercept has long maintained that it was unaware that Winner was the source of the document, FBI documents have shown that negligence helped lead federal investigators straight to Winner. The Intercept’s scanned images of the intelligence report that Winner leaked contained tracking dots – a type of watermark – that, according to Rob Graham of the Errata Security blog, showed “exactly when and where documents, any document, is printed.” These dots make it easy to identify a printer’s serial number as well as the date and time a document was printed. As Graham noted, “Because the NSA logs all printing jobs on its printers, it can use this to match up precisely who printed the document.”

Intercept-Victims_Winner, Albury, Hale
From left to right: Winner, Albury and Hale

Most concerning of all, the FBI warrant also notes that the reporter in question – who is unnamed in the document – contacted a government contractor with whom he had a prior relationship and revealed where the documents had been postmarked from – Winner’s hometown of Augusta, Georgia – along with Winner’s work location. He also sent unedited images of the documents that contained the tracking dot security markings that allowed the documents to be traced to Winner. Jesselyn Radack as well as whistleblower John Kiriakou, who served two and a half years in prison for exposing the CIA’s illegal torture program, have since asserted that Matthew Cole was the journalist mentioned in this warrant. Well prior to being hired by the Intercept, Cole’s behavior was known to have been a key factor that led to Kiriakou being outed as a confidential source, which led to his arrest. Upon learning of Hale’s arrest, Kiriakou openly speculated upon whether the outlet was incomptent or compromised.

Despite this track record, the Intercept hired Cole anyway. Cole continues to write for the Intercept and appears to have suffered no negative consequences for his alleged role in outing Winner. Intercept editor-in-chief Reed took responsibility for the acts on the part of the publication that led to Winner’s arrest and “for making sure that the internal newsroom issues that contributed to it are resolved.” Reed remains employed by the Intercept and continues to make a hefty six-figure salary. Winner is currently serving a five year and three month prison sentence for releasing a classified NSA document in relation to alleged Russian intrusion of a U.S. election software supplier.

Furthermore, journalist Barrett Brown — who served a lengthy 63-month prison sentence for linking to hacked material — has recently stated that Intercept journalist Sam Biddle played a role in his imprisonment, further worsening the optics of the publication’s track record. Brown originally faced a combined sentence of over 100 years in prison before negotiating a plea deal.

With Hale now the latest whistleblower to have been allegedly outed as a result of poor operational security by Intercept staff, the question turns to whether any of those responsible will be held accountable. Scahill, a celebrity reporter at the paper who makes over $40,000 per article, is just as unlikely as those involved in the outing of Albury and Winner to face any sort of negative consequences for failing to protect their sources, who risked (and have temporarily lost) their freedom to bring vital information to the public.

Will Omidyar’s pull keep Scahill out of hot water?

While only an indictment against Hale has been made public, Scahill may soon find himself in trouble with the Department of Justice based on information contained in that indictment.

As Moon of Alabama noted in an article detailing the charges against Hale:

The first contacts with Hale and the first leaks by Hale were in the first half of 2013, when Hale was still enlisted and worked at the NSA. In July Hale emailed a resume to Scahill which he wanted to use to find a job with a defense contractor who leases people with security clearances to other U.S. agencies. They seem to have discussed the resume by phone. Hale was later hired by such a contractor and worked at the NGIA. There he copied the secret and top secret documents and presentations that seem to be the objects of Scahill’s later reporting. That Scahill discussed Hale’s resume with him could be construed as active help to gain access to secrets that would then be leaked to The Intercept.”

Indeed, such a narrative is present within the indictment and Scahill may be pursued by the Trump Department of Justice, which has shown great zeal in prosecuting not only confidential government sources but also their publishers. Notably, the currently unsealed charges against WikiLeaks co-founder and Editor-in-Chief Julian Assange put forth a similar, though less compelling, narrative that Assange actively goaded Chelsea Manning into accessing state secrets that were subsequently given to WikiLeaks. Based on this alone, it seems likely that Scahill’s behavior as detailed in the indictment is likely to see the journalist pursued by the DOJ in some capacity, given the charges now facing Assange.

If this comes to pass, it will bode dark days for the future of American journalism that are already heralded by the indictment awaiting Julian Assange and the current imprisonment of Chelsea Manning for refusing to testify against Assange or WikiLeaks.

Yet, if Scahill evades any legal predicament on his end, it will raise many questions, most notably one of a double standard between his treatment and Assange’s treatment by the Trump DOJ, especially considering that both Scahill’s and Assange’s journalistic work has largely been unfavorable to government interests. Unlike Assange, Scahill’s publication and work are funded by eBay billionaire and the owner of PayPal, Pierre Omidyar, who is very well-connected to the public and private sector as well as to the U.S. intelligence community. Omidyar’s past public statements show hostility towards whistleblowers, whom Omidyar had likened to “thieves” prior to the Intercept’s founding.

If Scahill goes uncharged, it would likely be due to the intervention of powerful, politically-connected forces in the United States that are friendly towards Scahill, something Julian Assange lacks. Omidyar, given his ownership of the Intercept, would be the most probable person who could intervene successfully.

What did Hale’s whistleblowing reveal?

Based on the indictment, Hale is named as the source of several documents that revealed grave government wrong-doing, much of which related to the Obama administration’s expansion of the drone war and other counterterrorism programs with little or no oversight that have resulted in untold numbers of civilian deaths abroad.

One document noted in the indictment — “Document M,” which was classified as “secret” — appears in an article published in the Intercept in August 2014. That article revealed that most of the people in the government’s secret terror suspect database had no affiliation with any terror group and that the system disproportionately targeted Arab-Americans.

In addition, Documents A-F in the indictment appear to have been used in the Intercept’s “Drone Papers” series. Those documents revealed many stark truths and shocking facts about the Obama administration’s drone warfare campaign — which Trump has since significantly expanded — including the fact that U.S. drones killed innocent people 90 percent of the time, victims who were subsequently labeled “enemy combatants” regardless of their actual status.

Hale’s motive for coming forward with this information is very compelling and shows him to have risked his personal freedom in order to change a corrupt system. Cited in a 2015 article by Scahill as “the source,” Scahill wrote that Hale “decided to provide these documents to The Intercept because he believes the public has a right to understand the process by which people are placed on kill lists and ultimately assassinated on orders from the highest echelons of the U.S. government.”

Hale had said anonymously at the time:

This outrageous explosion of watchlisting — of monitoring people and racking and stacking them on lists, assigning them numbers, assigning them ‘baseball cards,’ assigning them death sentences without notice, on a worldwide battlefield — it was, from the very first instance, wrong…We’re allowing this to happen. And by ‘we,’ I mean every American citizen who has access to this information now, but continues to do nothing about it.”

To date, no one in the government has been held accountable for the killing of civilians in relation to the U.S. government’s covert drone assassination program.

The Intercept must be held accountable

Daniel Hale, just like Terry Albury and Reality Winner, is a hero. He exposed government programs that were out of control and killing innocent people around the world. Hale’s bravery helped hold the powerful to account and now Hale faces 50 years in prison, thanks to both the Trump administration’s troubling effort to double down on the persecution of whistleblowers and would-be whistleblowers as well as the actions of an employee, and potentially employees, of the Intercept.

If the Intercept will not hold itself accountable, as has thus far been the case, then it must be held accountable in the court of public opinion. Its employees must be held to account, including its celebrity journalists, for the paper’s refusal to deal with its indefensible track record of burning sources who have placed their trust in it. Concerned citizens on social media should ask Intercept journalists and the publication’s own accounts why nothing has been done and should demand that something tangible be done now that no less than three brave Americans who trusted the Intercept have found out the hard way that their trust was misplaced.

The lives of Winner, Albury and now Hale have been destroyed, in large part by the acts of a single publication that continues to market itself as “safe” for whistleblowers. While the Trump administration’s continued persecution of whistleblowers is the clear root of the problem, the fct remains that a site that advertises itself as “adversarial” to the State’s interests and as a haven for whistleblowers has aided the Trump administration in its persecution of whistleblowers, regardless of whether its operational security failures were intentional or inadvertent. If the Intercept as an organization were really so concerned with the Trump administration’s crackdown on press freedom, there would be accountability — not impunity — in such cases.

Sadly, by all appearances, the only confidential Intercept source from the public sector who was not outed by the publication and subsequently arrested was the source that prompted its formation: Edward Snowden, who “outed” himself. However, the Intercept closed its archive of the Snowden documents in late March, citing “cost” factors, despite the fact that the archive was less than 2 percent of its budget and its celebrity journalists, Glenn Greenwald and Jeremy Scahill, make over $500,000 and $349,000, respectively, leaving aside that the Intercept’s owner, Omidyar, is worth $12.7 billion.

If the Intercept continues to remain unaccountable, its track record of poor operational security and lack of concern for the risks its sources have taken could lead to the destruction of other lives. It also aggravates the chilling effect that the government’s prosecution of journalistic sources has had on those in the public sector seeking to expose government wrong-doing by narrowing their options for coming forward. Indeed, if something had been done after Winner’s case, perhaps the whistleblowing activities of neither Albury or Hale would have been made known to the government.

The Intercept claims to “hold the powerful accountable,” but such an adage will ring forever hollow until it is applied internally to its own organization and to those in its ranks who put the Trump administration on the trail of these brave whistleblowers.

Whitney Webb is a MintPress News journalist based in Chile. She has contributed to several independent media outlets including Global Research, EcoWatch, the Ron Paul Institute and 21st Century Wire, among others. She has made several radio and television appearances and is the 2019 winner of the Serena Shim Award for Uncompromised Integrity in Journalism.

© 2019 Copyright Mint Press, LLC

Russiagate explained

Russiagate cartoon-870x519This video from The Epoch Times breaks down the web of intrigue over the allegations of Trump Russian collusion explaining how all this came from within Western intelligence agencies. For those wanting to understand this saga, this is a clear explanation of how these agencies cooperate to obfuscate the real narratives and push false ones in their place, with embarrassing full backing from the mainstream media.

 

 

Inside the Integrity Initiative, the UK gov’s information war on the public with David Miller

Journalists Max Blumenthal and Ben Norton discuss Britain’s Integrity Initiative and the information war it is waging on the public, with propaganda expert Professor David Miller. They address the scandal surrounding this UK government-funded think tank, which has attacked Jeremy Corbyn and the anti-war left and laundered disinformation through the corporate media under the guise of countering Russia.
© 2019 Moderate Rebels

See more of their work at: https://moderaterebels.com/

Show Notes

Integrity Initiative

New Documents Reveal a Covert British Military-Intelligence Smear Machine Meddling In American Politics, Max Blumenthal and Mark Ames, The Grayzone Project, 8 January 2019

Inside the Temple of Covert Propaganda: The Integrity Initiative and the UK’s Scandalous Information War, Mohamed Elmaazi and Max Blumenthal, The Grayzone Project, 17 December 2018

UK government-funded attacks on Jeremy Corbyn

https://twitter.com/BenjaminNorton/status/1067211746904023041

David Miller

Professor David Miller’s website: dmiller.info

Twitter: @Tracking_Power

Miller’s media watchdog Spinwatch

Ukraine admitted to interfering in the 2016 US election on Clinton’s side

There feels to be something fishy about the Trump – Clinton – Russia bruhaha, and this might just explain the story.

clinton-ukraine

Celia Schmidt https://off-guardian.org/2019/04/14/ukraine-admitted-to-interfering-in-the-2016-us-election-on-clintons-side/

Special Counsel Robert Mueller has finally released his conclusions of the investigation into Russia’s role in the US Presidential Election 2016. The investigation did not establish that members of the Trump campaign conspired or coordinated with Russians, the press reported. But there is a curious detail: most people charged have no connection to Russia, as in Manafort’s case. The former Trump campaign manager has been accused of money laundry and illegal foreign lobbying for Ukraine.

Thus, the Mueller investigation findings are leading to Kiev, not Russia. Moreover, Ukraine did admit to interfering in the 2016 US election helping the Democratic candidate, Hillary Clinton. In this regard, there are fair questions to raise: why American citizens are indicted and sentenced with less charges while the evidence of a foreign conspiracy is omitted? Where are fair debates over the issue? Why there were no special committee hearings to determine the truth?

It is clear: a new investigation is coming. The US prosecutors need to interrogate Ukrainian politicians and members of the Clinton campaign as well as to probe the activity of Ukrainian lobbyists in Washington.

Thus, the audio recording made public in the Ukrainian media was one piece of evidence of Ukraine’s interference. According to it, a person with a voice similar to the voice of the head of Ukraine’s National Anti-Corruption Bureau (NABU), Artem Sytnyk, admitted that he had supported Hillary Clinton in the 2016 US election. His office was responsible for publicly disclosing the contents of the Ukrainian «black ledger», which implicated Paul Manafort, to the media. The document contained a list of secret payments made by Ukraine’s Party of Regions to Manafort.

Earlier, the county administrative court of Kyiv had pledged the director of the NABU Artem Sytnyk, and a member of the Ukrainian Parliament Sergey Leshchenko guilty of publicizing the pre-trial investigation materials concerning Paul Manafort and election interference. The information was spread illegally and inflicted damage on the foreign policy of Ukraine.

Ukraine message 1
Translation:

Admit unlawful acts of the director of the NABU A. Sytnyk and the Ukrainian MP S. Leshchenko concerning the disclosure and distribution of the information about D. Trump’s campaign chairman P. Manafort and the presence of P.Manafort’s name and signatures in the lists of “The Party of Regions’ black ledgers” in the materials of the pre-trial investigation, which was the result of interference in the electoral processes of the United States of America in 2016 and harmed the interests of Ukraine.

Eventually, a slew of incriminating information forced Paul Manafort to resign as Donald Trump’s campaign chairman in August 2016, just in the middle of election campaign. Serhiy Leshchenko, the Ukrainian MP, intended to share his gloat with his Facebook followers by posting a message stressing that “after such a blow Trump would not recover”.

Ukraine message 2
Translation:

“The Party of Regions’ black ledgers” saved the world. Manafort, who was fed from Yanukovich’s hands, leaves with dishonor. Guess, after such a blow Trump will not recover.

P.S. We can clearly see the reaction of the Ukrainian politicians involved in “Yanukovich’s black ledgers”. Political culture – you’ve either got it or you haven’t”.

Another confirmation of the Ukrainian officials’ overt support of Hillary Clinton was the anti-Trump publications on social media. However, as soon as the Republican had won, the Ukrainian politicians, in particular, the Minister of Internal Affairs of Ukraine Arsen Avakov and Ukrainian MP Oleg Lyashko began to remove massively their anti-Trump narratives from their social media pages.

Certainly, the US President did not forgive the Ukrainian leadership actions. On his Twitter page, Donald Trump criticized the Ukrainian efforts to “sabotage” his campaign.

Trump Ukraine
Moreover, in August 2017, it became clear that on the election day Petro Poroshenko sent Hillary Clinton a telegram, in which he congratulated her on the victory in the elections even before the announcement of the voting results. The then Minister for Foreign Affairs of Ukraine Pavel Klimkin personally delivered it. The president himself did not comment on this at all. His assistants strongly rejected all the suspicions of illegal actions during the election campaign. However, all these facts speak for themselves.

Despite this, Washington does not refuse financial assistance and cooperation with Ukraine. The intervention in the US Presidential Campaign 2016 and the leverages issues undoubtedly overshadow the current position of Petro Poroshenko. Moreover, the growing scandal related to accusations against our diplomat gives us reason to doubt the trustworthiness of the head of state and his future plans as a presidential candidate for the second term.

Odebrecht plea bargain also makes Federal Prosecution Service into a millionaire fund manager

Odebrecht
2 April 2019

By Pedro Canario

The plea bargain agreement Odebrecht signed with the Federal Prosecution Service in December 2016 is quite similar to agreement with Petrobras. Both provide for the setting up of a judicial account under the tutelage of the 13th Federal Court of Curitiba, with the money being at the disposal of the  FPS to do with it as they wish.

Odebrecht agreement with the FPS also allows Car Wash prosecutors to manage the fine paid by the engineering company.

In the Odebrecht case, the company undertook to pay $ 2.9 billion as a fine for their misdeeds, to be divided by the FPS amongst themselves, the U.S. Department of Justice (DOJ) and the Prosecutor-General of Switzerland. The part that is to remain in Brazil is to be under the charge of the Car Wash prosecutors in Curitiba.

According to the agreement, this money is to be for reparation of ” material and non- material damages” caused by the corruption at Odebrecht. According to the explanation given by the FPS in Parana to ConJur, 80% of the money will remain in Brazil, 10% with the USA and 10%, in Switzerland. Thus, the FPS will be responsible for managing R$ 6,8 billion.

Of that amount that is to remain in Brazil, 97.5% is to go to “public bodies, companies and foundations and mixed economy companies” damaged by the deeds of the engineering company. In other words, $ 1.71 billion is to be directed at the discretion of the FPS. The other 2.5% is to go to the Federal purse in compensation for having committed administrative impropriety.

The sharing out of the money is set forth in paragraph 3 of clause 7 of the agreement, according to which the “total amount is to go to the Federal Prosecution Service”. In response to questions from ConJur however, the FPS asserts that “the agreement does not give the resources to the Federal Prosecution Service nor place them under management by the Prosecution Service”. According to the official explanation, the money will be paid to the “victims”, wherever the FPS is responsible the administrative impropriety suit adheres to the FPS agreement.

Although the agreement is public and one of its clauses says that the money will be at the disposal of the FPS, its destination is described in a secret clause of the document, “Appendix 5”. This document was not published by the Prosecution Service and is being dealt with carefully by the 13th Federal Court of Curitiba, which was led by the now Minister of Justice Sergio Moro throughout Operation Car Wash. At least three times, Moro denied requests for access to this appendix under the argument that it could harm investigations underway.

The agreement with Odebrecht is dated December 2016 and is therefore older than the Petrobras one signed in September 2018 and published in January this year. But many of the elements that raise suspicions about the intentions of the Car Wash prosecutors and its anti-corruption crusade were already there — and have not been seen.

In the case of Petrobras, annexes of the agreement were published recently and revealed these intentions: the setting up of a foundation in which the money, $ 650 million, is to be directed at interventions to combat corruption. This fund is to be managed by the operation Car Wash prosecutors in Curitiba. Naturally, it will be sent to friendly bodies. This text was suspended by Justice Alexandre de Moraes of the Federal Supreme Court.

The Odebrecht agreement has been better protected. But we do already know, for example, that the money that is to remain in Brazil will not be sent to a Treasury account, as mandated by Supreme Court jurisprudence. It is to be under the control of members of the self-proclaimed Car Wash task force.

Rendering services
In exchange, they undertake to “manage” together with the Comptroller-General of the Union, with the Attorney-General of the Union and the Accounts Court of the Union so that they do not question the amount of the fine nor accuse the company and their directors of administrative impropriety.

Car Wash prosecutors
In exchange for managing the millionaire fine, Car Wash prosecutors undertake to ‘manage’ so that oversight bodies do not interfere in the agreement
Reproduction/YouTube

In bureaucratic jargon, “manage” means articulating and in some cases making non-official requests. In the case of public agents receiving money to do so in the name of private individuals, it is administrative advocacy, explained one specialist who spoke to ConJur on the condition of not being identified.

The U.S. chapter of the agreement has less to do with power and more to do with business. Amongst the various requirements Odebrecht has undertaken to meet is the nomination of an “external monitor of compliance with the agreement” to submit reports every 120 days.

These reports must be shown to the board of directors of the company and to the head of the FCPA division of the U.S. Department of Justice. The last item of the last annex of the agreement with the DoJ explains that the reports expected by the U.S. government will “probably include proprietary, financial, commercial and secret competition information”.

FCPA is the abbreviation for the U.S. international anti-corruption law. It exists to punish companies abroad that trade on the U.S. stock exchanges or with U.S. companies. But analysts have pointed out that the law has been used as an instrument of expansion of the economic influence of the U.S. government through private companies in other countries.

This analysis is not very popular amongst prosecutors at the DoJ who discredit the argument whenever they can. But the fact is that at the start of operation Car Wash, Odebrecht had 240,000 employees. According to the company, there are now 60,000.

Defence case
The defence for ex-President Lula, made by the lawyer Cristiano Zanin Martins, has been trying to access the documents for the agreement since May 2017, without success. Moro has turned down three requests for access in the space of little more than one year. The first denial was in September 2017, when the then judge said that handing over a copy of the document could harm other investigations underway. On May 24th of the next year, he was more clear: “There is no need for access to the case documents of the plea bargain “. In the third denial, in August 2018, he merely repeated the decision of the previous year.

Lula
Since May 2017, ex-President Lula has tried to obtain access to the case documents of the Odebrecht agreement with the FPS, unsuccessfully
Ricardo Stuckert

In February, Zanin filed a motion with the Supreme Court alleging violation of Binding Ruling 14 of the STF over the denials. The ruling guarantees the defence access to all elements of the inquiry already documented, provided the access does not harm diligences underway — exactly the argument used by Moro.

According to the lawyer, access to the documents could corroborate the defence case that Lula never received any payment for any “service” rendered to Odebrecht, and that the charges made against him have not been repeated in the U.S. They were brought in Brazil to ensure benefits for the Odebrecht family and for ex-executives of the company.

Moro argued that access to the agreement documents is not necessary. But Zanin uses the example of Petrobras: the agreement was signed in September 2018 and was published on January 30th of this year. Only weeks later, details of the setting up of the fund by the FPS were published — and the information was seen to be essential to the process, to the point of a Supreme Court Justice suspending that part until further information becomes available to judge the merits.

There and here
Lula’s defence have spoken of two main reasons for having access to the agreement documents. The first is that, in appendix 5, says the claim, there is information on the destination of the money paid by Odebrecht by way of the fine, and the FPS is arguing that Lula pay a fine in indemnification for the damages caused to the country for his corrupt deeds. But he is charged with receiving an apartment from the construction company. If both he and the company pay fines for the same facts, there would be punishment twice over, argues Zanin, which would harm the ex-President.

Justice Fachin
There was no “flagrant illegality” in Moro’s decisions denying Lula’s defence access to the agreement of Odebrecht with the FPS, says Justice Luiz Edson Fachin
Rosinei Coutinho / SCO STF

Lula also asked to see what there was in the My Web Day system. This concerns a parallel accounts software to control the bribes paid, owed and received, used by the “structured operations sector”, the bribes department, as the newspapers called it. But when the Federal Police obtained access to the system, they reported the lack of integrity of the files, with data deleted or corrupted.

For Lula’s lawyer, the fact of these files being corrupted argue in favour of his client. Odebrecht told different stories in Brazil and in the USA. Here they said hey bribed Lula for him to intercede on behalf of the company at Petrobras. One of these interventions was for the nomination of ex-directors responsible for maintaining the tender fraud scheme functioning.

But to the DoJ, the Odebrecht executives described how the cartel worked that engineering companies set up to defraud Petrobras tenders and over bill for civil construction contracts, but nothing about Lula.

No smoke
At the Supreme Court, Justice Luiz Edson Fachin also denied the request for access. According to him, there was no “flagrant illegality” in Moro’s decisions, and therefore there was no reason to grant the motion. The decision was made on March 15 of this year, and also calls for further information from the self-proclaimed Car Wash task force.

The current head of the 13th Federal Court of Curitiba, Luiz Antonio Bonat, repeated to Fachin the arguments of his predecessor: allowing access to the agreement documents would harm investigations underway. He added that the documents Lula asked to see, “in the main, corresponded to information which had no wider relevance”. “However, there is no obstacle to providing this information”, Bonat concluded in his ruling.

In response, Lula’s defence asked Fachin to reconsider the previous decision and that it would suspend the criminal case against the ex-President in the case of the apartment. “Is it possible to guarantee that the version of facts from Odebrecht in the plea bargain agreement documents is the same as that given in the court cases? Or are there things in the agreement documents approved there not relevant to the petitioner’s defence?”

Click here to read the Odebrecht agreement with the FPS
Click here to read the Odebrecht agreement with the DoJ
Click
here to read the Lula petition to obtain access to the agreement documents
Click
here to read the Justice Fachin ruling on the Lula petition
Click
here to read the judge Luiz Antonio Bonat document to the Supreme Court on the Odebrecht agreement
Click
here to read the request for reconsideration submitted to Justice Fachin

Claim 33.543
Criminal case 5063130-17.2016.4.04.7000, at Federal Justice in Parana

Pedro Canario is chief editor at Consultor Juridico.