Lula, Dilma, and Moro's good faith.

Days after Judge Sérgio Moro stated in Congress that illegally obtained evidence could be valid in an investigation if it had been obtained "in good faith," the country has a good opportunity to clarify the practical application of such a subjective concept.

Authorized yesterday by Supreme Court Justice Teori Zavascki, the investigation into allegations that Lula and Dilma acted together to obstruct a Lava Jato investigation is based on a matter of faith.

Whether it's good faith, bad faith, or zero faith, it's not difficult to answer.

As Brazilians may recall, the basis of this investigation rests on illegally obtained evidence—a recorded conversation in March between the President of the Republic and Lula himself, when the two were finalizing bureaucratic details for the former president's appointment as Chief of Staff. The Federal Police did not have authorization to record the President of the Republic, which could only occur with authorization from the Supreme Court. Even if the wiretap had been authorized at some point in the investigation, that Lula-Dilma recording should not have been made—because the conversation took place after the authorization had expired. Worse still, in neither case could the content of the conversations have been disclosed, obviously. Having proven its illegality, the wiretap should have been destroyed, according to Federal Police regulations.

There are many types of faith involved in this issue, aren't there?  

A person of good faith would hardly fail to admit that, by attracting to her government the most popular president in republican history, responsible even for her two elections, Dilma intended nothing more than to strengthen the team that, in the following weeks, would face the decisive test of its survival: the hunt for votes in the impeachment process.

You can think whatever you want of Lula. But only a person of bad faith cannot see his extraordinary qualities to perform the role. When in doubt, consult the majority of Brazilians. Or Abílio Diniz, Henrique Meirelles, Barack Obama. Ask union leaders who, in those days, went to the factory gates to find out what they thought of Lula's presence in the government.

It is also important to acknowledge a crucial point. The interpretation of the dialogue was never a demonstration of collusion. Contrary to what was suggested in reports that imitated the style of radio dramas, by signing the oath of office Lula would not automatically become a Minister of State. The document would only have official value after it was returned to Dilma and signed by her, the President of the Republic, which only occurred at the inauguration ceremony in the Planalto Palace the following day, in Lula's own presence.

The best proof that Dilma acted in good faith in this case was produced in the following weeks. Even after his appointment to the Civil House was prevented, in an act (of good faith?) by Minister Gilmar Mendes of the Supreme Court, Lula continued his constant activity to try to expand the president's support base. He did exactly what he was said not to do, as demonstrated by the dozens of meetings and encounters held at the time in hotel rooms in Brasília, described in a tone of suspicious activity by journalists who were trying to stage a circus for the coup. Even produced in an atmosphere of bad faith and denunciation, the reports on these meetings are proof that Lula did what he always said he would do – as any person of good faith would agree.

Sérgio Moro acts like a magistrate convinced that he was only invited to the ministry because he wanted to save his own skin, threatened by an accusation -- which had not yet been made -- by Senator Delcídio Amaral -- who had just made his own plea bargain -- that would inevitably lead him to prison, an easy recourse in Brazil during Lava Jato and preventive detentions at the whim (or faith) of the client in most Brazilian prisons.

Even before gathering facts and evidence in the case, Moro was already acting as if he were absolutely convinced of the guilt of a citizen who hadn't even been formally charged yet.

In practice, what was done was to prevent Lula from having access to the so-called "jurisdiction of office," a legal rule that allows presidents, ministers of state, senators, and federal deputies to be tried by the Supreme Federal Court (STF). You may agree or disagree with this rule. Considering that it is a constitutional provision, it is advisable that it be followed. The Constitution cannot be made flexible according to the faith—religious? political? good? bad?—of each moment.

Since then, Lula has been treated as a criminal awaiting proof, a situation that is only acceptable in a political-legal universe that ignores the presumption of innocence, a principle intended to prevent a savagery well described by Eros Grau, a Supreme Court Justice between 2004 and 2010. Without the presumption of innocence, the Justice argued, "it's better to go out with a club in hand, to break the spine of anyone who opposes us."

In a correct decision, Minister Teori Zavascki ended up annulling the recordings that could support the accusation. But Teori did not determine that, without evidence, the case should be dismissed. He asked the Attorney General Rodrigo Janot if there was reason to proceed anyway. It was a question of questionable faith, let's say.

This is because the Attorney General ceased to be an impartial figure in the case after he too was affected by the wiretaps released by Sérgio Moro, a classic example of how words spoken in private have a specific meaning that can change entirely when they become public. In a dialogue with lawyer Sigmaringa Seixas, Lula complains about the Attorney General. In a sarcastic tone, he recalls that in those days Janot "had dismissed the fourth complaint against Aécio and accepted the first one made by a bandit against me."

In the same conversation, Lula comments: "that's his gratitude for having been a prosecutor." The statement recalled that, in seeking support to be first on the list of prosecutors, and thus have the clout to be nominated as Attorney General, Janot had mobilized to secure the votes of close colleagues from the Workers' Party, to the point that José Genoíno, already accused in AP 470, even participated in an event supporting Janot's candidacy. After the wiretaps were released, the Attorney General initially said that he did not oppose Lula's appointment to the ministry, even questioning the jurisdiction of the position he could hold. Later, when the repercussions of the dialogue had become a mandatory topic in legal circles, creating an obviously embarrassing situation, Janot released a second opinion. He condemned the nomination and even pointed to a certain "eagerness" on Lula's part to assume the ministry.

We are thus witnessing a case in which illegally obtained evidence continues to form the basis of an indictment. The fact that it is annulled is merely a formality, as the memory remains in everyone's mind.

If I had Nelson Rodrigues' talent, everything would be resolved with one question: will a betrayed husband forget photos of his wife in adultery scenes after they've been torn up and shredded? Will he rethink the marriage from scratch, just because he was told the pictures shouldn't have been taken? 

It was, as you can see, a matter of faith. Good faith? Bad faith? In whose favor?