Lula and Trump

A tale of two post-presidencies

Protests in front of the Brazilian presidential palace in 2016 against Luiz Inácio Lula da Silva’s appointment as chief of staff, which would have shielded him from an ongoing corruption probe that eventually sent him to prison.

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I’ve managed mostly to avoid commenting on Donald Trump’s continuing legal troubles, limiting myself so far to this meta-meditation on why anyone is talking about it at all. But I still am being asked regularly what I think about the subject as a political matter. And I will confess that I’ve been following with morbid fascination the debate between other pundits, like Damon Linker and Jamelle Bouie (and here’s Linker responding to Bouie responding to Linker), on the subject. So I suppose I might throw two cents in after all.

Consider the following scenario:

A populist president leaves office under a cloud of corruption scandals that targeted numerous aides and associates, and resulted in multiple lawsuits against the ex-president himself. The ex-president’s home is raided as part of a wide-ranging operation to expose bribe-taking and influence-peddling. The ex-president is ultimately charged as the mastermind of an enormous scheme of corruption, bribery and money-laundering, sentenced to prison and jailed. He tries to run for the presidency from prison, but his candidacy is rejected by the courts. At trial, his lawyer accuses the judge of bias, and the judge replies that not even a former president is above the law.

Knowing nothing else about the foregoing, I would imagine most liberal readers would cheer the judge’s statement. After all, that’s precisely what’s at issue with Trump and the debate over possible legal consequences: whether a president or former president is above the law.

So consider how the scenario develops from this point. The ex-president’s conviction is suddenly and dramatically reversed by the supreme court on the grounds that the judge was, in fact, biased against him, and so all evidence presented was tainted. Freed from prison, the ex-president runs again— and becomes the overwhelming front-runner for his former office.

Is this a liberal nightmare about the future trajectory of Donald Trump? That even after he is finally convicted of wrongdoing, he’ll be freed by justices he appointed, and sweep back into power?

That might turn out to be the case—but that’s not what it is. The scenario I described is a narrative of the post-presidential career of Luiz Inácio Lula da Silva, the former president of Brazil, who will very likely be its next president as well.

Comparing the two leaders might seem perverse. After all, Da Silva is a tribune of the left who painstakingly built a political and social movement over decades, enacted a host of important reforms during his two terms as president, and left office as one of the most popular leaders in Brazilian history and a major figure on the world stage. The Trump-like figure in Brazilian politics is the current president, Jair Bolsonaro, who parachuted into politics spouting half-baked far-right slogans, has frequently expressed sympathy for Brazil’s military dictatorship and undermined its democracy, and presided over an incompetent, divisive and unpopular administration.

But that just demonstrates how important the larger political context is to our perceptions of legal proceedings involving prominent politicians. Da Silva remained extraordinarily popular even after his conviction for corruption because he stood for something that mattered to millions of Brazilians. Politically, they weighed the evidence of corruption in the balance and did not find it dispositive—and neither have sympathetic international observers, who were saddened or outraged by his conviction (depending on how much credence they gave to the prosecution’s motives) and eagerly await his return to power now that the conviction has been overturned. Even when there’s not only smoke, but a raging fire, the perception—and, in Da Silva’s case, the reality—of political motives behind the prosecution of a sufficiently important political figure can have wildly unpredictable consequences, not only for the target’s political fortunes but for the rule of law itself.

It’s important to remember that corruption really was widespread in Da Silva’s administration, after all, even if Lula himself protested his ignorance of it to the end. That’s why the justices who freed the former president crafted their decision with the intent to leave the other convictions of Operation Car Wash intact. With damning evidence of bias in the trial revealed, however, and with Da Silva running in part on his exoneration, the whole anti-corruption effort has understandably come under disrepute. Other defendants will undoubtedly pursue all avenues to reverse their own convictions. Meanwhile, the independence of the judiciary has been badly compromised by the revelation that the key judge in the case, Sergio Moro, who later served in President Bolsonaro’s cabinet, improperly collaborated with the prosecution. That hardly adds up to a vindication for the rule of law.

Could anything similar happen in Trump’s case? No one has offered any evidence that Attorney General Merrick Garland and the FBI head Christopher Wray are acting in anything but an entirely disinterested manner. That should minimize the risk of the kind of dramatic reversal that has happened in Brazil. But they don’t have complete control of events going forward. Trump has every incentive to politicize the case as much as possible, which could have the perverse result of making either a decision to prosecute or a decision not to proceed to trial look like a response to political pressure. As the career of former FBI chief James Comey demonstrates, it is not easy to sustain a reputation for apolitical neutrality when the case you’re handling has the largest political consequences imaginable.

That’s particularly the case when the perception is widespread, and not only among Republicans, that the American judicial system is already run through with bias in favor of the powerful and well-connected. In making the case for prosecuting Trump, Jamelle Bouie wrote that “political elites in this country are already immune to most meaningful consequences for corruption and lawbreaking” and concludes that, therefore, Trump must be held to account rather than shown similar magnanimity and forbearance. The problem with making an example of Trump in this way, though, is that Trump is viewed by his supporters—however inaccurately—not as an example of the unaccountable elite but as their scourge, much as Lula is to his supporters in Brazil.

I don’t know whether the Mar-a-Lago raid was or wasn’t a mistake. We’ll only know the answer to that in the fullness of time. And it’s worth pointing out that it could have been the right thing to do while also being a political mistake. So many people who talk to me are excited by the prospect of finally “getting” Trump, but if I had to bet, I’d bet that Trump won’t be prosecuted for anything related to that raid at all. National security agencies don’t tend to like their secrets exposed in open court, after all, and the charge of mishandling classified documents is a hard one to make stick. The same, by the way, is true of Trump’s involvement in the events of January 6th; his moral culpability is perfectly clear to me, but the legal standard for conspiracy is quite a bit higher, and to get a conviction you need to clear that bar beyond a reasonable doubt. But the raid might still have been worth doing to make the point that the government really did expect to get the documents back, and the January 6th investigation might still have been worth conducting to establish a record of the truth, even if neither results in any legal action against Trump, and even if, to some degree, they backfire politically by increasing his support within the GOP.

The point, rather, is that the decision was an unavoidably political one, and that the political consequences are unpredictable. Liberals who cannot fathom how anyone could object to holding Trump accountable for breaking the law should reflect on the example of Lula. Can they understand why he continued to be popular after the revelations of Operation Car Wash? Do they share the delight at his subsequent vindication? Then they should be able to understand the dynamic behind the closing of ranks on right in support of Trump in the face of his legal troubles.

If that reality is taken to heart, it should lead all those involved to operate with the appropriate humility. Which, as it happens, is the most likely way to assure that any prosecution that may come at least has a chance of being perceived as a vindication of the rule of law, and not its opposite.