Prosecutor asks: Is there fascism in Lava Jato?

By Wilson Rocha, from Justificando - The question is serious because it casts anathema on the most significant action of the Public Prosecutor's Office in the fight against corruption. If the answer is affirmative and comes from a member of the institution, the case is extremely serious, because some level of credibility is always attributed to the insider's statement. And the gravity of the accusation could condemn him to merciless ostracism. Having said that, let's get to the task.

Fascism is a complex phenomenon that has suffered the ills of successive appropriations, affiliations, mutations, and developments. Although Italy is the birthplace of fascism, it was Hitler's rise in Germany that made fascism a global phenomenon. There was no racism in the confused rainbow of political ideas that Mussolini mobilized. And it was not possible to foresee the gas chambers in his charismatic speeches. But Hitler's affiliation with fascism is a historical consensus, perhaps responsible for the markedly negative semantic charge that gravitates around the expression.

The multiple fascist regimes that proliferated around the world make it difficult to discern a common ideology, although we could relatively easily point to regimes inspired by fascism in the 1930s. It was not a form of state organization, nor a political theory. It was rhetorically revolutionary because it promised a radical transformation of society, although conservative in its promise to ensure the maintenance of traditional order and morality for the upper and middle classes. Hobsbawm teaches, in *The Age of Extremes*, that "the fascists were the revolutionaries of the counter-revolution: in their rhetoric, in their appeal to those who considered themselves victims of society, in their call for a total transformation of society"; "they denounced liberal emancipation [...] and distrusted the corrosive influence of modern culture, especially modernist arts" (p. 121).

Therefore, although it is a historically dated phenomenon – strictly speaking, fascism refers to the political regime inaugurated by Mussolini in Italy in the 1920s – there are subsequent developments that maintain an essential semantic core, characterized by nationalism, anti-liberalism, and anti-communism. In practice, it expressed itself as a mass movement, articulated around a charismatic political leadership that dispensed with representative political institutions. I retain here the essential image of fascism: the axe wrapped in a bundle of rods. A simplifying and unifying image of society, directly and firmly tied to the State, without intermediary or subsidiary bodies, entirely mobilized or instrumentalized as a tool of power.

Traditional corporations grumbled at the rise of fascism, precisely because their role in the construction of state power was no longer needed. Hobsbawm notes that "the only group that actually launched a revolt against Hitler – and was consequently decimated – was the old aristocratic Prussian army" (p. 131). Under Nazism, the justice system adapted to the new political reality, replacing the maxim "nullum crimen sine lege" with the frightening formula "nullum crimen sine poena," signaling an expansion of state punitivism to the detriment of classical liberal principles.

That said, comparing Lava Jato to fascism certainly presents difficulties. Beyond the historical distance, there is currently a unique set of actors and institutions. To contextualize, at the dawn of the 21st century, neoliberalism reshaped public administration, imposing efficiency metrics with little democratic permeability. The activism of the judiciary was fostered and later refined through complex strategic planning processes. The autonomization of the judiciary was tolerated insofar as it was perceived as an instrument for making the state itself more efficient. New times, certainly.

The capitalist crisis that began in 2008 increased social dissatisfaction and stimulated new forms of political action, with strong questioning of traditional instances of representation. New forms of social mediation challenged the traditional mechanisms of political intermediation. This is where the radically new phenomenon of social networks comes in. In the justice system, the notice board in the office, the official notice, and the official orders became anachronistic in the face of the speed and low costs of social networks. For the Public Prosecutor's Office, constitutionally structured to defend the democratic order, it became seductive to bypass traditional representations – political parties and parliament, above all – to directly build new democratic consensuses with the social body. The well-trained bureaucracy, situated at the top of the Administration, could not resist the temptation and took to the streets.

The institutional capital accumulated over decades of committed action in promoting rights did not prevent the institution from making revolutionary promises to mobilize the masses, the main one being the end of corruption. The promise – effectively revolutionary – rallied heterogeneous sectors of society, and the objective was fulfilled with the strengthening of the sectors of the institution responsible for criminal prosecution and the fight against corruption.

Up to this point, one could discuss the correctness of the strategy, the effectiveness of the proposed instruments, or the limits to be observed by the Public Prosecutor's Office in its direct interaction with society. But there was no reason to speak of fascism. Lava Jato, although it had attempted it, had not yet launched a systematic effort of popular mobilization. The turning point occurred with the "Ten Measures Against Corruption" project. This was a bill drafted in the offices of the Federal Public Prosecutor's Office, but presented to society as a bill of popular initiative.

Launched by Lava Jato, the initiative is championed by the institution's leadership and is being promoted throughout Brazil, financed with resources from the Federal Public Prosecutor's Office. Public servants received incentives to collect signatures in various social spaces. Federal prosecutors traveled the country promoting the bill. The bill was presented as a popular initiative, but drafted by public employees, publicized in official marketing campaigns, with signature collection financed with public funds. The paradox was evident, but also convenient. Treating it as a popular initiative undermined the proposal's legitimacy and increased institutional capital amidst a crusade against powerful figures. There were sincerely devoted warriors in the infantry. But there was no strategic calculation. The National Congress denounced the maneuver.

I will not comment on the content of the proposal, I will only draw attention to the flirtation with a fascist strategy: the revolutionary promise, the mobilization of the masses, the erasure of the formal and essential distinction between State and society. There was no shortage of the personalism of a hero, the appeal to traditional values, the fear of the middle class in the face of the economic crisis, the corruption scandals unleashed by a left-wing government. The progress of the police-judicial operation provided concrete merits in the fight against crime, comparable to those of Mussolini. Hobsbawm teaches that fascism was "the only Italian regime to succeed in suppressing the Italian Mafia and the Neapolitan Camorra" (p. 131). The promise of Lava Jato, beyond democratic vicissitudes and historical setbacks, was launched: henceforth, there will be no crime without punishment.

In the most recent case of the foundation announced as a result of the agreement between members of Lava Jato and Petrobras, two issues stand out. First, the institutional creativity. Second, the justification that the new entity will be managed by society, for the benefit of society.

There are dangerous contradictions in the proposed institutional design. Item 2.4.1, (i), of the agreement, provides for an institutional design that takes into account the autonomy of its management in relation to groups or individuals linked to party politics. Item 2.4.6, in turn, reinforces the foundation's closure to the model of democratic representation prescribed by the Federal Constitution when it establishes that "no person affiliated with a political party or who has been affiliated in the last 5 (five) years may act in the foundation, in any function, and the statute may extend this restriction".

Item 2.4.1, (ii), aims to guarantee the legitimacy of the proposal through the institutional plurality of its management, transparency regarding the criteria for decision-making, and broad consultation and social participation.

Now, items 2.4.1, (i) and 2.4.6 directly conflict with item 2.4.1, (ii), when they exclude from the intended institutional plurality for the management of the new foundation groups or individuals linked to political parties. It is worth remembering that political parties are intended to ensure, in the interest of the democratic regime, the authenticity of the representative system and to defend the interests defined in the Federal Constitution, according to article 1 of Law No. 9.096/95. Paying attention to the subtext of the Agreement, it is clear that Lava Jato not only excludes political parties, central organizations in Brazilian democratic life, but intends to create legitimacy precisely because of this exclusion. The mistake is tremendous.

Is this another flirtation with fascism? Similarities are possible, along the lines already discussed regarding the bill initiated by the Federal Public Prosecutor's Office. Let me explain. The principle of legality is probably the greatest contribution of classical liberalism to modern democracy. By prescribing the law as both a means and a limit to state action, the principle of legality liberates the individual from the arbitrariness, whims, and good intentions – sometimes poorly considered – of public administrators. As a matter of caution and out of love for democracy, caution is necessary when innovating. When innovation arises without legal basis, works to distance itself from democratic institutional controls, and, moreover, has a strong component of corporate strengthening, a warning light should be turned on.

The sum of public resources involved is enormous, and allocating them to a private foundation exceeds legal requirements. This measure violates the principle of legality and, therefore, the theoretical assumptions of classical political liberalism. On the other hand, speaking on behalf of society, the people, or the nation is always a solemn act, surrounded by material and formal formalities. Attempting to realize the democratic principle through vague references to "civil society organizations" is insufficient, especially when the actions of these organizations are clearly subordinate to the powers of the corporation, in this case, the Public Prosecutor's Office.

Okay, but is that fascism? One could say that fascism involved a great effort to circumvent the formal mechanisms of democratic representation, consolidating powers that exceeded the limits of the law and harmed democracy, in favor of favorable transformations in the social fabric. Everything was done in the name of society. The vicissitudes and setbacks of the democratic regime were disregarded in favor of the efficiency of institutions, according to the privileged vision of a leader. It was said in Italy that "Mussolini made the trains run on time."

Finally, to better understand how fascism can infiltrate innovative social engineering projects, it's worth noting that it is not an ideology. According to Hobsbawm, "theory was not the strong point of movements dedicated to the inadequacies of reason and rationalism and to the superiority of instinct and will." The supposed trivialization of its use is not a theoretical error, but an expression of its imprecise and diffuse nature. Identifying its characteristics in contemporary political phenomena demonstrates the failure to overcome the historical reality that marked its birth. Today, as in the 1930s, economic crises that threaten the status quo of established groups give rise to movements that are simultaneously reformist and regressive, challenging liberal democracy.

Self-restraint is the greatest virtue of those who wield a portion of sovereign power. Fascism, in its multiple manifestations, appears as innovative, truly creative strategies for expanding power, capable of circumventing the traditional and sometimes precarious means by which liberal democracy manifests itself, in favor of accelerating historical time. Driven by popular clamor, individuals and institutions can contribute to the advancement of fascism in a variety of ways. Technical indifference is one of the most tragic instruments of fascism, because it blinds the individual to the immediate or long-term consequences of their actions, absolving them of their ethical responsibility towards their fellow human beings.

When asking if there is fascism in Lava Jato, the intention is to reflect on the broader historical process in which the Federal Public Prosecutor's Office has become a protagonist. In historical fascism, there were good intentions in the effort to make social processes more efficient. There may be good intentions in the autonomization of Lava Jato and its institutionalization in the form of a private foundation. But there is a clear disregard for the constitutional rules of governing democratic life. Fascism is fully modern in proposing the overcoming of the old rules of the democratic political game through the speed of a direct and personal relationship between a leader or an institution and "society." Without formalities, political parties, or liturgy.

There was fascism before the gas chambers.

Wilson Rocha Fernandes Assis is a Federal Prosecutor in Goiás.