When Sergio Moro, Brazil's current Minister of Justice and Public Safety, studied the anti-corruption push in Italy stemming from Operation Mani Pulite (Clean Hands) in 2004, he could not have imagined he would later lead a corruption investigation in his home country with even more far-reaching effects – Operation Lava Jato (Car Wash).
In a 2004 academic article analyzing Operation Mani Pulite, Moro concluded that:
Perhaps the most important lesson from this entire episode is that judicial action against corruption only will be effective with the support of democracy. It is she who defines the limitations and the possibilities of judicial action. As long as [judicial action] counts with the support of popular opinion, it has conditions to advance and will present good results. If this does not occur, it likely will not find success.1
Like the Italian anti-corruption investigation Moro studied, Lava Jato exposed the fact that his country's "political and administrative life . . . was drowning in corruption. . . ." And, as with Operation Mani Pulite in Italy, faith in Lava Jato's success in ferreting out corruption has waned as the political tides continue to ebb and flow and Moro himself has left the judiciary and taken a role in government.
In my opinion, reports of Lava Jato's demise are exaggerated, but significant additional popular pressure will be needed for the gains made in fighting corruption in Brazil are to be maintained long-term. In this article, I will briefly discuss the aftermath of Italy's Mani Pulite investigation and the demonstrated lack of popular support that it enjoyed during its final years, the circumstances that have led Lava Jato to similarly see a reduction in popular support, and finally discuss steps that must be taken so that Lava Jato's failures and successes alike ultimately can continue to assist Brazil in its long struggle against corruption and its corrosive effects.
See "Anti-Corruption Is Front and Center for Recently Elected Presidents in Latin America" (Nov. 28, 2018).
The Judicial Attack on "Tangetopoli" and the Resulting Backlash
The Operation Mani Pulite investigation started in early 1992 when a Milanese entrepreneur did what at the time was unthinkable – he refused to pay a bribe to a politician and instead reported him to the police. Exposing Milan as Tangetopoli, or "Bribesville" in English, Mani Pulite led to the indictment of more than 3,000 individuals, captivated popular attention and ultimately led to the demise of Italy's two most powerful political parties – the Christian Democrats and the Socialists. According to Alessandro Merli, an economist and journalist who is currently an associate fellow at the Bologna Institute for Policy Research, one of the results of this power vacuum was the rise of the controversial media mogul Silvio Berlusconi and the pitting of the political elite against the judiciary.
Berlusconi, attempting to fend off several corruption investigations directed at him and his cohorts, rose to the position of Italian prime minister and wasted no time deploying his extensive media holdings in an attempt to portray the Mani Pulite judges as overzealous. According to Merli:
As Berlusconi himself became the target of several investigations, including the corruption of judges, he initiated a powerful pushback against the magistrates, who had enjoyed a considerable degree of public support in the first phase of Mani Pulite. He not only used the means at his disposal on the media front, subjecting the judiciary to relentless attack, but also mobilized his majority in Parliament to approve legislation that would severely restrict the magistrates' actions. The most important measure was undoubtedly the law the imposed stricter statute of limitations. The impossibility of concluding the majority of the trials within the new deadlines was one of the factors in the public's loss of trust in the magistrates' actions.2
Other anti-investigation measures were implemented, including the Biondi decree, which "excluded corruption from the list of crimes for which prosecutors could request pre-trial custody, which had proven an effective tool in the Mani Pulite operation."3
Merli also argues that another factor negatively influenced popular opinion with regard to Mani Pulite: several magistrates entered politics themselves – founding parties and getting elected to Parliament – giving "credence to the image of a politicized judiciary."
The above factors eventually resulted in the loss of public support for, and public interest in, Mani Pulite. As noted by the University of Pisa's Alberto Vanucci, "[s]urprisingly, the question that acted as the detonator of the crisis – revelations of widespread corruption – quickly faded as a major issue on the agenda of Italian politics. The persistence of extensive corruption and the lack of effective anticorruption policies do not currently figure in public debate as relevant political and economic questions. . . ."4
Finally, one also can point to another significant factor for Mani Pulite's disappearance from the popular opinion radar: "[d]espite the overarching anti-corruption rhetoric, Italian politics is still corrupt 'on every level' . . . from top politicians taking bribes to the general public cheating on their taxes. The paradox is that Italians are constantly 'complaining about politicians who repeat, at the top, the same behaviors that many ordinary citizens demonstrate, on a smaller scale, on a daily basis.'"5
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1 Sergio Moro, Considerations on Operation Mani Pulite, R. CEJ, Brasília, No. 26, pp. 56-62 (July-September 2004) (translation of text by author).
2 Alessandro Merli, Lessons from Italy's Anti- Corruption Efforts, Brazil: Boom, Bust, and the Road to Recovery, International Monetary Fund, p. 344
3 Raffaele Asquer, The Persistence of Corruption in Italy: Politicians and the Judiciary since Mani Pulite," WPSA 2013 Annual Meeting (Preliminary Draft) 28 March 2013.
4 Alberto Vanucci, "The Controversial Legacy of 'Mani Pulite': A Critical Analysis of Italian Corruption and Anti-Corruption Policies," Bulletin of Italian Politics, Vol. 1, No. 2, 2009, 233-64, at p. 2.
5 Momigliano (quoting former Mani Pulite magistrate Gherardo Colombo).