By Brian Mier / Fairness and Accuracy In Reporting (FAIR)
Former Brazilian President Jair Bolsonaro was convicted on June 30 of the first of 16 charges of election fraud levied against him in Brazil’s Superior Electoral Court, and sentenced to an eight-year ban from running for political office.
A July 1 New York Times article, headlined “Why Bolsonaro Was Barred in Brazil but Trump Can Run in the US,” does a fine job of explaining the differences in the two nations’ electoral systems. However it also further develops a narrative it has been building since Brazil’s 2022 election season of an authoritarian court system that engages in judicial overreach to persecute political enemies.
To an average news consumer who hasn’t paid much attention to the last eight years of Brazilian history and is unfamiliar with Brazilian law, the Times’ claims that courts may be overstepping their boundaries may look legitimate. When compared to the way the Times portrayed the Lava Jato (or “Car Wash”) anti-corruption investigation, and its political persecution of (then former) President Luiz Inacio Lula da Silva and other members of the leftist Workers Party, however, it looks like as though the Times is using its traditional double standard of going soft on right-wing extremists while portraying leftist Latin American governments as authoritarian.
Judicial abuses of a ‘hero’
In 37 New York Times articles published between January 2015 and April 2018 about the US DoJ-backed Lava Jato operation, which culminated in Lula’s illegitimate election-year arrest, judicial overreach was barely alluded to at all.
One rare reference occurred in Simon Romero’s 2016 article “Tempers Flare in Brazil Over Intercepts of Calls by Ex-President ‘Lula’” (3/17/16). Twenty-four paragraphs into the piece, after labeling now-disgraced Lava Jato Judge Sergio Moro as a “hero,” and giving space to his allies to falsely claim it isn’t illegal in Brazil to wiretap a standing president and leak the conversations to the press, a voice of criticism creeps in:
“He was not acting as a judge,” said Ronaldo Lemos, a law professor at Rio de Janeiro State University and one of the creators of the legislation covering freedom of speech and privacy on the Internet. “He was acting as a politician. That’s what concerns me.”
This voice of reason, however, is immediately debunked in a subsequent paragraph quoting conservative law professor Fernando Castelo Branco, “I don’t think there was a single illegal act in what Judge Sergio Moro did.”
The same day of the Times article, Moro submitted a 31-page apology to the Brazilian Supreme Court for illegally leaking the conversation, but this was skipped over by the New York Times. Nor did the Times cover the episode when he broke the law again by wiretapping all telephone conversations in Lula’s defense lawyers’ law firm for 30 days, sharing the conversations with the prosecution team so that it could preemptively map out and develop strategies against future motions from the defense team.
Shortly after Moro admitted to breaking the law, a group of his cronies in Brazil’s TRF-4 regional court in Porto Alegre made an unprecedented ruling, allowing the Lava Jato investigation to operate outside of the law. The New York Times didn’t identify this as a warning sign of judicial overreach, however, as it continued to publish article after article praising Lava Jato. This led up to Lula’s April 2018 arrest for “indeterminate acts of corruption,” based on one coerced plea bargain testimony with no material evidence.
Lula was released from prison, due a finding of illegal forum-shopping for a sympathetic court, and his convictions were reversed and all pending Lava Jato charges dropped due to collusion between the judge and prosecutors. The Times nevertheless failed to engage in any self-criticism on its role in normalizing the presidential candidate’s arrest and Bolsonaro’s subsequent rise to power.
Crimes on live TV
Both-sidesing Lula’s FBI-backed political persecution and Bolsonaro’s guilty verdict as examples of judicial overreach is an act of bad faith. Unlike Lula—who was declared guilty during an election year, based on a single witness with a coercive plea bargain, by a judge who went on to serve as justice minister for his electoral opponent—Bolsonaro committed the crimes he was convicted of on live national television.
In a publicly funded event inside the president’s official residence, over 100 foreign officials were subjected to a slide show presented by Bolsonaro, during which he attacked the integrity of Brazil’s electoral system without providing any evidence to support his claims. Three months before the elections, at a moment when he was trailing Lula in double digits in the polls, millions of people watched him on TV Brasil and in his social media accounts, as he claimed that his enemies were going to defraud Brazil’s electronic voting system. In Brazil, this constitutes abuse of authority, election fraud and misuse of public funds.
Bolsonaro’s guilty conviction in the electoral court has opened the door to a federal audit that could result in him being charged for the estimated R$12,000 in public funds he spent to host the event, and a criminal investigation that could result in jail time.
‘Going too far?’
Judicial overreach in Brazil never seemed to bother the Times when it was used in a kangaroo court procedure against Brazil’s largest progressive political party, but one week before the 2022 presidential elections it insinuated that right-wing extremist President Jair Bolsonaro and his followers were the real victims, with “To Defend Democracy, Is Brazil’s Top Court Going Too Far?” (9/26/22). It continued in January with “He Is Brazil’s Defender of Democracy. Is He Actually Good for Democracy?” (1/22/23), which ran with the subhead:
Alexandre de Moraes, a Brazilian Supreme Court justice, was crucial to Brazil’s transfer of power. But his aggressive tactics are prompting debate: Can one go too far to fight the far right?
Why would the New York Times wait to complain about judicial overreach until a leftist government in Latin America attempts to enforce the rule of law to punish people guilty of fomenting a neofascist military coup? Brazil’s case is hardly unique. After the Nicaraguan government began prosecuting participants in the failed 2018 right-wing coup attempt that left 253 people dead, the New York Times (3/2/23) compared the government to Nazi Germany. When Bolivian courts ordered the arrest of the leader of the 2019 right-wing coup, during which police massacred dozens of nonviolent protesters, the Times (6/10/22) raised concerns about “politicians’ use of the justice system to target opponents.”
Bolsonaro’s close ties to Donald Trump and Steve Bannon created the first convergence of interests between the Brazilian left and the US Democratic Party in decades, leading the Biden administration to quickly recognize Brazil’s election results and support Lula’s inauguration in January. However, a series of moves Lula has taken since then—from refusing to send ammunition to Ukraine, to giving the red-carpet treatment to Nicolas Maduro, to de-dollarization plans for trade with China—must have some people in the State Department thinking about the possibilities of fostering another coup in Brazil.
This is where the New York Times‘ “judicial overreach” narrative can be helpful. If the US does decide to move in that direction, Times readers are already being groomed for an “authoritarian Latin American strongman” narrative.
Brian Mier is a TV correspondent for TeleSur English in Brazil, and editor of the book Year of Lead: Washington, Wall Street and the New Imperialism in Brazil. He has lived in Brazil for more than 25 years.